School Boundary Trial Day 1: Aug. 14, 2012
Two different petitions from nine parents asked Loudoun Circuit Court Judge Thomas D. Horne Tuesday to review the process that established boundaries for Douglass Elementary School in Leesburg.
With summer on the wane, the trial began the day before teachers report to work for the new academic year, calling into question whether Loudoun Public Schools (LCPS) even has time to re-do boundaries before school starts Aug. 27.
It is the first time residents have legally challenged an unpopular boundary decision – and all school boundary changes are unpopular, according to former School Board member Tom Marshall of Leesburg, who testified.
Two attorneys representing separate plaintiffs said LCPS staff ignored all but one of the tenets – demographics — in School Board policy 2.32 when they approved boundaries for Douglass last December. And demographics are still skewed at two schools, parents say.
“Instead of following the law, they followed their own agenda,” said John C. Whitbeck, attorney for Erik Dekenipp, who lives in Potomac Station near the intersection of Battlefield Parkway and Ft. Evans Road, NE. His young daughter, a rising first grader, was reassigned from Tolbert Elementary to Frederick Douglass, the new elementary school that opens this month on Sycolin Road south of East Market Street.
Dekenipp’s neighborhood is one of three known collectively in LCPS jargon as CL 19. Another, Evans Ridge Apartments immediately east of Leesburg Outlet Mall, will stay at Tolbert, but Potomac Ridge single-family homes and Sycamore Hills townhomes in CL 19 were reassigned to Douglass, Dekenipp said. As a result, students on the west side of CL 19 will travel east and those on the east side will travel west on school buses, violating an LCPS requirement for efficiency, attorneys said. According to trial testimony, no walk zones to Tolbert exist in CL 19.
Whitbeck said his clients want the 35 children in CL 19, a small part of Potomac Station, to be assigned back to Tolbert before school starts. “[LCPS] continues to let CL 19 kids back in” with waivers to attend Tolbert, Whitbeck said. “They did go through a [boundary] process that they have begun to admit was not about bylaws.”
Attorney Michael Petkovich represents eight parents from CL 05, a neighborhood of large single family homes northwest of Leesburg that were moved from Frances Hazel Reid, a newer school, to Catoctin, built in 1966 and touted as “the first school using a circular design to be constructed in Loudoun County.”
But unlike Potomac Station residents in CL 19, Petkovich said his clients do not seek any certain “result” such as returning their children to Reid.
Instead, they hope for a boundary re-do that employs LCPS guidelines as expressed in LCPS policy 2.32: proximity, efficiency, demographics, accessibility and stability. Both Petkovich and Whitbeck argued that the School Board was “arbitrary and capricious” in drawing boundaries for Douglass.
“They purported on the administrative record to be following [policy] 2.32,” Petkovich said, but “There is evidence of a hidden agenda that is different from 2.32.
“That ‘s why we have so many motivated petitioners who are alarmed at the process,” he said.
In his 35-minute opening statement, Petkovich argued Tuesday that Catoctin District Board member Jennifer Bergel “wanted the biggest voting community in the area [River Creek] to stay at Frances Hazel Reid.”
He traced a meticulous timeline to show that LCPS staff prematurely used raw data to estimate special education (SPED) numbers. That was “the tail wagging the dog,” according to Marshall.
Normally, SPED numbers are established late in the summer before school opens, according to Petkovich. Instead, Bergel requested the data in November of last year, Petkovich said, demonstrating that the School Board process was arbitrary. “You can’t determine Special Education accommodations in December for school [the following] September,” he said.
The same numbers then provided a pretextual reason to eliminate the boundary plans suggested by the public, leaving only the plan preferred by Bergel and LCPS staff, Petkovich asserted.
Bergel voted for her own proposed “Plan 2” with full knowledge that “it did not meet SPED recommendations at Tolbert. But it also did not meet SPED recommendations at Douglass,” Petkovich said, again indicating an arbitrary approach.
Bergel’s “Plan 2” did favor placement of the River Creek community at Reid over communities that were closer, such as Beacon Hill and Old Waterford Knolls, which were both moved to Catoctin. Bergel’s plan passed 5-3 (with one member absent) on Dec. 13, 2011, at the last business meeting held by the former board. A new board, with six new members, had been elected one month prior.
Marshall said he voted for Bergel’s version of the plan only after his own proposal plan was judged by LCPS staff not to meet SPED requirements. But Marshall said he was not provided with SPED numbers to feed into his plan. “How can I win, if they are going to throw in another factor before I make my decision?” he said.
LCPS “never did an analysis” to directly compare all eight proposed plans presented, as former School Board member Bob Ohneiser and former Board Chairman, John Stevens, had requested, Petkovich said. He argued that LCPS also created an empty “planning zone,” a geographic component used by planners to designate which students go where.
The staff created CL 7.2 directly across from Reid Elementary, but it consists only of Tuscarora High School. “There isn’t a person living in 7.2,” Petkovich said, but its creation “does not allow CL 05 and CL05.1 (Beacon Hill) to claim proximity” and provided a pretext to keep River Creek in the Reid attendance area. To make room, children in Beacon Hill and Waterford Knolls, in northwest Leesburg, were then shifted from Reid to Catoctin Elementary, farther to the south. “That is why you have a community up in arms,” Petkovich said.
LCPS staff “strong armed a community” to make an attendance plan based in “fundamental bad faith” rather than move two other communities: River Creek (Reid) and Spring Lakes (Tolbert), he said.
Whitbeck’s opening statement argued that LCPS staff had “blown off” requests from School Board members for more information during the Douglass boundary process.
“We had taxpayer-funded employees telling a board member, ‘No comment,’ Whitbeck said, arguing that the board simply ignored the new policies it had developed after boundaries were drawn for Sycolin Creek Elementary, the most recent elementary boundary process before Douglass. “Instead of following the law, they followed their own agenda,” Whitbeck said.
“Bergel and [at-large member Thomas] Reed, in particular, decided there was no reason for them to follow the bylaws any longer. When you don’t follow your own rules, you are ‘arbitrary and capricious,’” Whitbeck said.
He assiduously recounted each School Board guideline for defining boundaries, arguing they were not achieved at Douglass but instead allowed continued overcrowding, demographic imbalance, and inefficiency.
Defending the School Board in the courtroom next to LCPS counsel, Stephen L. DeVita, LCPS special counsel Julie Judkins said, “The record refutes everything [plaintiffs argued] about SPED and CL 19.”
“Someone had to move. If nobody wants to move, the School Board has to make a decision,” said Judkins. “These petitioners just don’t like the decision the School Board made.
“At the end of the day, it moved the fewest number of children,” she said.
Judkins called testimony about Bergel and an LCPS staff member who lives in River Creek “malicious slander.”
“You know better than all of us what the School Board is allowed to do,” she told Horne, arguing that its bylaws “are aspirational. They are not as restrictive as the petitioners argue.”
The School Board has “broad constitutional delegated authority” and “is not limited to [their own] criteria. At the end of the day, they may consider any factors,” Judkins said. “Nothing says you have to give them equal weight.”
“I believe these parties are aggrieved, and they have standing to bring this case,” Horne said.
Over Judkins’ objection, he allowed factual testimony from Ohneiser, who represented Ashburn District for eight years, and Marshall, who had represented Leesburg since 2008. Both lost their seats in the election last fall, when the board gained six new members.
For five hours in court Tuesday, the petitioners’ two attorneys contended almost constantly with Judkins. She had asked the judge to restrict testimony to the administrative record. Having lost that argument, she challenged Marshall and Ohneiser relentlessly.
“It’s true you had contentious relationships with other members of the School Board, correct?” Judkins asked Ohneiser. When he did not answer immediately, she prompted, “Right, Mr. Dupree?” mistakenly calling Ohneiser by the name of another former Board member, Robert Dupree (Dulles).
“When you lost your bid for [Tom] Reed’s at-large position [last year], you said from the dais that you were going to become ‘a School Board lawyer.’ You actually lobbied?” Judkins asked Ohneiser.
“The way you are describing it is insulting and inappropriate and it is harassing me on the stand,” Ohneiser said.
Judkins then tried to introduce as evidence a damaging email allegedly written by Ohneiser after the Sycolin Creek boundary process, but Whitbeck objected, calling her attempt an “ambush on the petitioner on the day of trial.
“This was designed to make Mr. Ohneiser look bad,” Whitbeck said, objecting to Judkins’ late production of the email, which she said was provided by Dupree.
Horne sustained the objection.
The trial continues at 9 am on Wednesday in Courtroom 2A of the Loudoun County Courthouse.