A coalition of media entities urged a trial court judge to deny Denver Public Schools’ “11th hour request” to halt releasing the recording from a March 23 executive decision held in the wake of the East High School shooting that wounded two administrators.

The DPS board appealed a trial court judge’s order to DPS to release the recording. Separately, the board asked the judge to stay his release order.

After several hours in executive session in March, the board returned a memo drafted to temporarily change the district’s policy barring police officers on campus, which was unanimously approved without discussion.

DPS fights court order to release executive session tape to media coalition

In opposing the stay motion from DPS, Rachael Johnson and Steve Zansberg, who are litigating the case on behalf of the media coalition that includes the Denver Gazette and Colorado Politics, said releasing the recording now, rather than later, best serves the public interest.  

“The (DPS) Board conducted extensive discussion, in public, of the reasons it has decided permanently to change its prior official policy regarding the placement of armed police officers in the District’s high schools,” they wrote in response to the DPS motion. “The audio recording of the Board’s March 23, 2023 discussion is timely, now, to shed light on the ongoing discussion, in the affected community, about that 180-degree policy change.”

They added: “Rather than comply with the Court’s judgment, which fully effectuates CORA’s purpose of providing speedy access to public records, the Defendants have now, literally on ‘the 11th hour,’ sought a stay so that they can pursue a plainly frivolous appeal. The Court should not condone such gamesmanship, particularly when it comes at the public’s expense.”

Johnston and Zansberg cited case law to press the media coalition’s case, saying the Court of Appeals has rejected a similar motion over a police officer’s internal affairs file, arguing that such a delay in releasing records would “disserve the public interest.”

Crucially, the lawyers said, the court in that case concluded the officer was unlikely to succeed on appeal.

“Here, the record before the Court is fully developed and it speaks for itself,” the media lawyers said, referring to the lawsuit against DPS. “The Court has listened to the entirety of that recording and has concluded that none of the three statutory bases cited in the Board’s public announcement (in which identified no particular matter to be discussed) authorized the discussion of the topics that were actually discussed behind closed doors.”

Media Coalition’s Response to Defendants’ Motion to Stay Judgment Pending Appeal

Denver District Court Judge Andrew J. Luxen – who spent two days listening to the five-hour executive session – ruled Friday that the district “did engage in a substantial discussion of matters” in contravention of open meeting laws and ordered DPS to release the audio recording.

DPS Notice of Appeal

In its stay motion, the district said if the recording were released, it “cannot be undone” even if DPS ultimately succeeds on appeal. The district said releasing the records now, before its appellate rights are exhausted, would “effectively eviscerate its right of appeal.” The court is set to hear the motion at 10 a.m. Tuesday.  

The district also argued that neither media groups that sued nor public interest would be harmed by staying the recording’s release while the appeal is pending.

“DPS will continue to maintain the recording of the Executive Session through the duration of the appeal. Moreover, since the Executive Session, the DPS Board of Education has had extensive public debate about its policy regarding police in schools, culminating in the public approval of a new policy at its June 15, 2023 regular meeting allowing the return of School Resource Officers,” the district said. 

“Finally, DPS maintains that the issues it will raise on appeal are important, novel, and meritorious,” the district added.