A judge on Friday morning ordered the Denver Public Schools board to release the recording of an executive session in March in which the board discussed returning police officers to some schools for the rest of the school year.

Hours after the ruling, a DPS board member strongly suggested against appealing the decision.  

The Board of Education’s decision came the day after a student at East High School allegedly shot two school administrators before fleeing, and members unanimously voted to return school resource officers without public debate following a five-hour secret session.

A coalition of news outlets, including the Denver Gazette and Colorado Politics, sued the Board of Education and its custodian of records, seeking the release of the recording and minutes of the executive session from the special meeting the board held on March 23.

The coalition’s lawsuit alleged the session violated the Colorado Open Meetings Law’s prohibition on making policy in executive session. Denver District Court Judge Andrew Luxen earlier this week decided to review the recording of the executive session.

In his order, Luxen said DPS either “did engage in a substantial discussion of matters” not permitted under the state’s Open Meetings Law or adopted a proposed policy in the executive session in “contravention” of the statutes.

Under Colorado’s law, a public body can go into executive session to purchase property, consult with an attorney for legal advice, and discuss certain matters considered confidential, such as personnel issues, items concerning individual students and specialized details of security arrangements or investigations. The law does not allow for discussing policy changes in executive session. 

A meeting that violates the Open Meetings Law invalidates any formal action or policy made during the meeting.

The board voted to return police officers to some schools for the rest of the academic year the day after a student at East High School allegedly shot two school administrators on March 22 before fleeing and killing himself hours later. The student, Austin Lyle, underwent daily searches as a condition of attending the school.

In an email obtained previously by the Denver Gazette, Superintendent Alex Marrero told the school board hours after the shooting he wanted to have two armed police officers stationed at East High School for the rest of the school year. He said the district policy against armed officers in schools did not allow for it and asked to discuss the matter in an executive session the next day.

Luxen also ruled the district did not provide proper notice of the executive session. The lawsuit claimed the public notice wasn’t specific enough about the topic of the session. Luxen found the discussions did not meet the Open Meetings Law’s allowances for an executive session cited by the board in its notice.

The board, for example, cited “matters required to be kept confidential by federal or state law or rules and regulations.” Luxen wrote he could not identify any issues discussed in the executive session that would fall under this part of the Open Meetings Law.

The board also cited the portion of the law that allows an executive session to discuss “specialized details of security arrangements or investigations, including defenses against terrorism, both domestic and foreign, and including where disclosure of the matters discussed might reveal information that could be used for the purpose of committing, or avoiding prosecution for, a violation of the law.” 

Luxen wrote the session included discussion of general security matters, including the return school resource officers, but again found the discussions did not meet the portion of the law the board cited.

Finally, the board cited an intent to discuss “individual students where public disclosure would adversely affect the person or persons involved.”

Luxen wrote that the board’s discussion of an individual student would not have negatively affected the person. His order does not name the student, but he likely was referring to Austin Lyle.

The judge gave DPS until noon Monday to turn over the records to the media entities that sued. Luxen also decided the coalition’s lawyers can seek attorney’s fees.    

The Denver Gazette has reached out to representatives of the Board of Education for comment, including whether the district plans to appeal the ruling.

In a statement, Auon’tai Anderson, the board’s vice president, raised worries about the financial implications of appealing the court ruling, adding it might “unintentionally convey” the impression that the board is hiding something, “possibly undermining the board’s commitment to openness and accountability.”

“These are the cornerstones of our relationship with you, the community,” Anderson said.

The Board of Education removed school resource officers from the district in 2020 in the wake of national protests over the death of George Floyd and concerns about what some critics say is the “school to prison pipeline” exacerbated by the presence of law enforcement officers in schools.

The Board of Education voted last week, 4-3, to bring back school resource officers on a long-term basis.