Denver Public Schools officials withheld a proposed policy that would require the superintendent to conduct a boundary study, claiming the document was exempt from disclosure because of “deliberative privilege” before reversing that decision and releasing it.

Proposed by Board of Education Director Scott Esserman, Executive Limitation 19 would require Superintendent Alex Marrero to review enrollment boundaries and zones at least every 10 years, in conjunction with the U.S. census.

Esserman distributed a copy of the policy to the District Accountability Committee (DAC) during its public meeting in December.

The Denver Gazette initially requested a copy of Esserman’s policy informally and then under the Colorado Open Records Act.

In the denial, Stacy Wheeler, the district’s custodian of records, claimed the proposed policy was deliberative and, therefore, exempt from public disclosure.

“A claim of privilege goes away when a document is distributed to a public body and discussed in a public meeting,” said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition.

“By the time something gets distributed to a public body and discussed in a public meeting, I don’t know how they claim there’s privilege anymore.”

Formed in 1987, the coalition promotes the freedom of the press and open access to government.

The deliberate process relates to materials that are so candid or personal that distribution would stifle “honest and frank” discussion.

Given that Esserman had waived deliberative privilege by distributing the policy to a public body for their consideration at a public meeting, The Denver Gazette asked for the district’s justification for withholding the draft policy.

Bill Good, a district spokesperson, explained that the draft had not been formally presented to the board nor reviewed by district staff.

“While we are committed to transparency, we also must ensure that the integrity of the decision-making process is maintained,” Good said in an email to The Denver Gazette. “This is a difficult, but important balancing act. In the spirit of transparency, we have re-evaluated your original request and decided to share the document coupled with the above explanation.”

‘It’s no exaggeration’

Broadly speaking, school districts typically consider school boundaries in response to increases or decreases in student enrollment; to address overcrowding or underutilization; or when opening or closing schools.

Over the past two years, the board has closed 10 schools.

With the closures approved in November, district officials did create enrollment zones, geographic areas that determine where students living within the boundary would be guaranteed a slot in one of several schools.

The board last considered adopting EL-19 two weeks after closing Denver Discovery, Mathematics and Science Leadership Academy and Fairview Elementary in 2023 but tabled the policy.

It’s unclear why Esserman is proposing the policy now.

Esserman did not respond to an email and phone call seeking comment.

But in his proposed boundary study, Esserman suggests the superintendent should take steps to address the effect declining enrollment poses on schools.

“Understand the uniqueness of neighborhoods and the impacts of declining enrollment by involving the community through regional meetings and conversations to help inform and co-create recommendations for boundary adjustments,” the draft says.

The district — like many across Colorado and the U.S. — has been grappling with declining enrollment.

In Colorado, enrollment is tied to funding.

District officials anticipate losing $70 million each year for the next four.

Lower birth rates, skyrocketing home costs and gentrification have been identified as the biggest factors driving enrollment declines.

Esserman sought feedback on the draft from the DAC during its Dec. 17 meeting.

“I’ve been doing some digging and, as near as I can tell, the last time that Denver Public Schools considered, globally, the boundaries where schools are was after the Keyes case was decided,” Esserman said.

Laughter erupted from the audience.

“No joke; it’s no exaggeration,” Esserman added. “It is laughable, but this is the last time as a district we considered individual school boundaries.”

That was 1973.

In Keyes v. School District No. 1, U.S. Supreme Court justices, in a 7-1 decision, found evidence that DPS officials had resegregated schools through gerrymandering campus boundaries.

Executive Limitation 19, or EL-19, would address this.

‘An instinct for secrecy’

General Counsel Aaron Thompson made the call to withhold the policy.

According to his LinkedIn profile, Thompson was hired by the district in 2020 as deputy general counsel and rose to general counsel in July 2022.

Thompson has had his legal decisions challenged before.

After a disturbed student at East High School shot and wounded two administrators in March 2023, the board of education held a marathon executive session, ostensibly to discuss the accused student shooter and security arrangements.

But the meeting veered into a policy discussion about the district’s 2020 ban on police officers in schools.

The board emerged after five hours in executive session with a policy reversal, temporarily lifting the district’s prohibition on armed school resource officers.

A coalition of media outlets that included The Denver Gazette and Colorado Politics filed a lawsuit alleging the executive session was improper and sought the release of the recording, as required by law.

A Denver District Court judge agreed and the district released the recording.

At least three directors — including then Board President Xóchitl Gaytán —said they would curb the board’s use of executive session in the wake of public criticism of their secret meeting.

“DPS has — and you’ve done several stories on this — had a history of not releasing information to the public that probably should be,” Roberts said. “There often has to be a dispute over it. Maybe this is another example of that.”

Will Trachman, general counsel for Mountain States Legal Foundation, agreed.

“They just have an instinct for secrecy that doesn’t serve them well,” said Trachman, who has been on both sides of the public of CORA as a requester and as a custodian of records.

Headquartered in Colorado, Mountain States Legal Foundation is a nonprofit law firm dedicated to defending and expanding constitutional rights since 1977.

Trachman previously served as deputy assistant secretary in the Office for Civil Rights for the Department of Education and as general counsel for the Douglas County School District.

“The message is, if you’re going to ask for something from DPS, come ready to sue or threaten to sue because your first answer is going to be no,” Trachman said.