School Boundary Trial, Aug. 16

Numbers provided by Loudoun County Public Schools show that Douglass Elementary’s component of students receiving free meals and English language instruction [in orange in the chart on right] will exceed the desired ceiling of 30 percent from the first day of school. The charts above were prepared by Miguel Morales, a Beacon Hill resident. The chart at left shows that Beacon Hill’s plan would have balanced the nine Leesburg elementary schools according to LCPS criteria.

School lawyers call no witnesses on third day of trial.

Attorneys for Loudoun County Public Schools (LCPS) on Aug. 16 opted not to present witnesses to defend the School Board’s attendance plan for Frederick Douglass, the new elementary school that will open Aug. 27 in Leesburg. Eight other elementary schools were impacted.

Sam Adamo, LCPS Director of Planning and Legislative Services, was present during the first two days of trial, but did not appear in Loudoun Circuit Court for closing arguments before Judge Thomas D. Horne on the third day.

“It was my understanding up until yesterday that Sam Adamo was going to testify,” said Michael Petkovich, attorney for a group of petitioners in northwest Leesburg. He and John Whitbeck, who represents a petitioner from Potomac Station, presented a total of seven witnesses on Aug. 14 and 15. In closing arguments on Aug. 16, each attorney characterized the School Board’s plan for Douglass boundaries as “arbitrary and capricious” in violation of authority granted them under state law.

Petkovich and Whitbeck represent separate plaintiffs seeking judicial review of the boundary plan adopted by the School Board on Dec. 13, 2011.

Julie Judkins, the School Board’s outside counsel, argued that while the Douglass attendance plan might not be perfect, it does not have to be, because the guidelines for boundaries are to be satisfied “to the greatest extent possible.” That is a subjective standard, Judkins argued.

“Give me the weekend, and I will give you an opinion on Monday, Circuit Judge Thomas D. Horne told the attorneys just before noon on Thursday, Aug. 16.

In his closing argument, Petkovich used a lock and key metaphor for what witnesses described as a pretextual basis by which the School Board adopted “Bergel Plan 2” after five other plans were eliminated for not meeting LCPS’s recommended placement of special education students.

Catoctin District School Board member Jennifer Bergel, who represents what was described as “the doughnut” around Leesburg, voted for the adopted plan. Her district includes both River Creek and Spring Lakes, two communities that lobbied successfully to retain their assignments to Frances Hazel Reid and Tolbert Elementary Schools, respectively. She also represents Potomac Station and Beacon Hill, the two communities that challenged her plan in court after they were moved to different schools.

Petkovich compared “Bergel Plan 2″ to a lock. The Board process to form attendance boundaries for the plan, he said, was “like designing a key to fit that lock, then saying the other locks [plans] don’t fit because they don’t fit the key.”

“They used a key that fit one lock to eliminate our plan. Then they threw the key away. That is capricious,” Petkovich said.

In Petkovich’s parlance, “the key” was a formula for configuration of special education (SPED) classes that was first released to the public 11 days before the School Board voted on a final boundary plan. The public process began in October.

Bergel “voted for Plan 2 knowing her plan did not meet SPED requirements at either Tolbert or Reid [Elementaries],” Petkovich said. “That defines ‘capricious.’”

As evidence, Petkovich submitted a chart [above] showing that from the first day of school, Douglass Elementary will be overenrolled with children who are economically disadvantaged and who need English language instruction.

In LCPS shorthand that means Douglass will have too many students who qualify for free and reduced meals (FRM) or are classified as “English language learners (ELL). The School Board’s goal was to keep those numbers below 30 percent at each of the nine elementaries in Leesburg. But under the adopted plan,  they will exceed 30 percent at Douglass from day one, according to projections.

“Bergel by Request Plan B as amended by Marshall,” the plan developed by residents of Beacon Hill, was the only one that met LCPS goals, Petkovich said. But it was eliminated by the projected SPED data, which was developed prematurely to eliminate all the other plans, Petkovich argued.

When LCPS staff did not provide direct comparisons of numbers for enrollment of FRM and ELL students under all the proposed plans, residents applied LCPS data to develop their own, according to trial testimony from Miguel Morales, a Beacon Hill resident. “LCPS [staff] said they could not do a chart,” Petkovich said Thursday. “Mr. Morales’s secretary took their data and showed unavoidably that the plan they adopted has FRM and ELL [at Douglass] over 30 percent, right out of the box.”

Despite appeals from former School Board Chairman John Stevens and former members Tom Marshall (Leesburg) and Bob Ohneiser (Ashburn), SPED data was not provided until it was too late to include in a proposed plan, Petkovich argued. Beacon Hill resident Micah Green testified Aug. 15 that he, too, repeatedly asked for SPED data, but “He was stonewalled the whole time,” Petkovich said. Green also testified that Bergel could not find time to meet with Beacon Hill residents.

The plans competing with “Bergel Plan 2,” including all those submitted from the public, were stamped in red with the words: “does not meet special education goals,” Green testified. Petkovich argued that meeting “specific SPED recommendations is not a [School Board bylaws] 2.32 criteria.” Meanwhile, the School Board ignored the one plan that did meet the required criteria, Petkovich said.

LCPS staff also created a false planning unit — CL 7.02 —  that consisted only of Tuscarora High School but no residents, Petkovich argued. Its purpose was “to create the illusion” that Beacon Hill did not have proximity to Francis Hazel Reid Elementary and justified moving the community to Catoctin Elementary, Petkovich argued.

Whitbeck, whose client lives in Potomac Station, said he agrees with Judkins that the standard of review to be applied “must be based on fact, law or reason.” He then reiterated Petkovich’s arguments that the School Board ignored its own criteria in setting attendance boundaries: first efficiency, proximity, community, and demographic balance, with “further consideration” to accessibility, stability, and “cluster alignments” with middle and high schools.

“Maybe they did look at cluster alignment. But they ignored it,” Whitbeck said of the School Board’s two-month boundary process.

“We are not asking the court to find the better plan,” Whitbeck said. “All we care about is that the School Board follow the law.”

“Their failure to follow the policy is arbitrary and capricious, and exceeds their authority,” he said.

“There were winners and losers in this plan, to be sure,” Whitbeck said. “We ask that the court fashion a remedy to address those aggrieved and put [planning unit] CL 19 back at Tolbert [Elementary].”

“We don’t separate out SPED students in the planning zones from other students,” Judkins argued. “They are counted where they live.”

“Ms. Bergel not meeting with them is irrelevant.

“They had lots of meetings with people. What their argument may be is that they were not listened to,” Judkins said.

“Ms. Bergel, for whatever reason, has been unfairly targeted,” Judkins said.



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