Denver Public Schools releases recording of unlawful executive session

The board of the Denver Public Schools has released the recording of a closed-door meeting where board members unlawfully crafted a policy reinstating armed police officers to local high schools the day after a March school shooting.

The board voted last Friday to disclose a redacted version of the recording of the March 23 executive session. The vote came roughly a month after a Denver District Court judge held that the secret meeting violated the Colorado Open Meetings Law, finding that the district failed to properly notice the public about the topics school officials would discuss before they met behind closed doors.

In April, six news outlets — The Denver Post, Colorado Newsline, Nexstar Media Group, KUSA 9News, The Denver Gazette and Colorado Politics, and Chalkbeat Colorado — sued the Denver Public Schools with free legal support from Rachael Johnson, the Reporters Committee’s Local Legal Initiative attorney for Colorado, and attorney Steven Zansberg, president of the Colorado Freedom of Information Coalition. The newsrooms successfully argued that the executive session was unlawful and, as a result, that the recording of the meeting should be made public under the Colorado Open Records Act.

As many of the local news outlets have reported, the more than four-hour recording of the executive session shows board members engaged in heated debates and policy discussions about whether the district should re-deploy armed police officers to schools, suspending its former written district policy. Some board members emphasized the pressure they faced to take decisive action after the shooting, which injured two school administrators at Denver’s East High School. The shooter, a 17-year-old student, later took his own life.

At times, board members expressed concerns about whether the discussion had exceeded the scope of the executive session. In the end, however, the board effectively crafted a district policy — in violation of the Colorado Open Meetings Law — during the closed-door session before reconvening in public to vote unanimously on the plan without any public discussion.

Melanie Asmar, a senior reporter for Chalkbeat Colorado, is one of the journalists who covered the aftermath of the school shooting and the legal dispute over the recording of the school board’s executive session.

The Reporters Committee recently spoke with Asmar about why it was so important for the school community to see what board members discussed behind closed doors, how the successful legal battle could make Colorado school boards more transparent moving forward, and what it meant to get free legal support from a Reporters Committee attorney through RCFP’s Local Legal Initiative. (This conversation has been edited for length and clarity.)

Take me back to the immediate aftermath of the shooting at East High School. How did community members and school officials initially respond?

This was actually the third shooting this school year in or around East High School. So this community was already reeling from the two [previous] shootings. And earlier in the year, they had also had one of these “swatting” hoaxes that were happening at a lot of schools around the country, where a caller would call the police and say, “I’m a teacher at X high school, and there’s a school shooter in the hallway.” And the SWAT team would show up and a million police would show up, and it would be fake. So this was a school community that was already feeling the effects of gun violence and already sort of on edge and traumatized.

I got there shortly after the police tweeted out that there was a shooting at the school. And parents were starting to come as students were being evacuated. And the mayor showed up and the superintendent and the police chief, and parents were just yelling at them, shouting at them, “What are you going to do?” They held a press conference and explained what had happened. And a couple of hours later, the superintendent wrote a letter to the school board, which we obtained, that said, “I’m going to bring police back into Denver schools.” And that was a big decision because in 2020, following the murder of George Floyd and the nationwide protests against racist policing, the Denver school board had very quickly voted to remove police officers from Denver schools. He was essentially defying his bosses. And that was the context in which this closed-door meeting happened the very next day.

What tipped journalists off that the executive session likely exceeded the scope of what was allowed under the Colorado Open Meetings Law? 

[The day of the executive session], all of the press was there at school district headquarters because the school board and superintendent were supposed to hold a press conference after this meeting. When they came out of executive session, they held a public meeting, and it was very short. They opened up the meeting, and they read this memo, which was not usually the form in which they make policy, that kind of said, “Due to increasing gun violence, we are temporarily suspending our ban on [armed police officers in schools],” which was what the superintendent said that he was going to unilaterally do.

The school board president said, “Any discussion?” And nobody said anything. And all seven members of the school board voted then to approve the memo. And then they ended the meeting and had a press conference. Our suspicion, and the suspicion of the other news organizations that ended up suing, was that they had crafted that policy behind closed doors in that executive session, which is against state law.

After the news outlets sued, the district court ruled that the meeting did indeed violate the law and that the recording of the meeting should be released. What was your reaction to that ruling?

We were happy that we would get the recording, but we also knew that there was a chance that the district would appeal the decision, [which it ultimately did.] At that point, it seemed like gosh, I don’t know when we’ll get this, if ever.

You wrote a detailed story about the contents of the recording for Chalkbeat Colorado. What were some of your key takeaways from the executive session?

We knew that all of the members had agreed to bring back the police officers. And they, in fact, had voted in June to make that permanent. So getting the recording wasn’t so much about understanding the outcome, but it was more about seeing the process. The recording revealed tensions between some of the board members and the superintendent. They were upset with him that he had tried to defy their policy. They felt like they had not been in the loop. One of the board members said she had learned about [the superintendent’s decision] from the TV news. There was one board member who was expressing concerns about his personal safety because he had been one of the main supporters of removing the [police officers] back in 2020 and was getting threats from folks saying this is the reason that the shooting happened. Board members were getting angry emails, and they talked about that a bit. A lot of the meeting was spent debating the technicalities of how to move forward.

And at times, didn’t some board members also express concerns about whether it was OK to be having the debate in executive session?

Yeah, it came up several times. One board member would ask, “Hey, should we be talking about this in executive session?” And every time, the school district’s attorney, who was in the executive session, said, basically, yes. So the board kind of kept going. But that did come up. There were questions about whether they should be doing this behind closed doors.

Why is it so important for the public to be able to see what happened during that unlawful executive session?

This is not the first time that we’ve suspected school boards in Denver and elsewhere of making policy behind closed doors, or in a way that’s not public. It doesn’t always involve executive sessions, but sometimes a school board will come to a meeting with a policy already crafted, and they won’t really debate it in public and they’ll just vote to adopt it. I think that leaves a lot of questions about how this public policy was made. And I think that the public, especially the parents, students, and educators who are going to be affected by this policy, deserve to know why and how it was put in place. This particular decision about the police in schools was a pretty huge one for Denver. This issue was controversial back in 2020, and a lot of parents felt very strongly on both sides after these high-profile gun violence incidents, either really wanting the police back or really not wanting the police back. And when the board just came out and voted without discussion, the community wanted to know more about how they arrived at that decision and why.

Could the end result of this legal dispute over the executive session serve as a deterrent for school boards crafting policy in secret?

I think it could. I hope that boards think really carefully about when it’s appropriate to do things behind closed doors. Boards go into executive session all the time, and we can’t sue every time to figure out if the notice matched what they actually discussed. But I hope that this decision will make boards more thoughtful of making sure there is a legit reason to go behind closed doors.

Do you think this recording would have seen the light of day if the news outlets hadn’t sued?

Definitely not.

What did it mean to be able to get free legal support from a Reporters Committee attorney in this case?

I think that made all the difference. We have to choose our legal battles carefully because it can be extremely expensive to challenge every rejected open records request or every closed-door meeting. And getting the free legal support really made this possible.

To learn more about what officials discussed during the executive session, check out reporting from Chalkbeat Colorado, The Denver Gazette, The Denver Post, KUSA 9 News, KDVR, and Colorado Newsline. You can also watch the entire recording for yourself.