School Boundary Trial Aug. 15

Frederick Douglass Elementary opens Aug. 27 in Leesburg.

Petition for judicial review goes before Loudoun Circuit Judge Thomas D. Horne this week. 

Five witnesses testified Wednesday in Loudoun Circuit Court on behalf of nine Leesburg residents who seek judicial review of Loudoun County Public School (LCPS) Board’s process for establishing attendance boundaries for Frederick Douglass Elementary School late last year.

At the end of the second trial day, LCPS special counsel Julie Judkins left open the question of whether she would call any witnesses on Thursday. Trial resumes at 9:30 a.m. in Courtroom 2A at the Loudoun County Courthouse in Leesburg.

Plaintiff’s attorney John C. Whitbeck questioned his client, Eric Dekenipp of Potomac Station, who said he represents 80% of the town homes in “CL 19,” defined by LCPS staff as a “planning unit” for purposes of establishing boundaries.

“We were violated in every sense of 2.32,” Dekenipp said, referring to the School Board policy that establishes board guidelines for setting school attendance boundaries by considering “efficiency, proximity, community, demographics, accessibility, stability, and cluster alignment.”

“The neighborhood was outraged,” he said.

Since December, LCPS granted Dekenipp’s first-grade daughter a one-year “hardship waiver” that allows her to attend John Tolbert Elementary instead of the new Douglass Elementary, where two of three component communities in CL 19 were reassigned.

Dekenipp said he is fighting now for 35 other families who live in west Potomac Station, two-tenths of a mile from Tolbert. Douglass is three miles from their community, he said.

Originally, about 50 families were affected, Dekenipp testified, but “six families moved because of this decision” and others have been granted waivers for medical or childcare hardships.

In his opening statement on Tuesday, attorney Michael Petkovich argued that the LCPS boundary process last fall morphed into a secretive attempt to satisfy two Loudoun communities with a favorable result.

To bolster that premise on Wednesday, he questioned Mary Kearney, LCPS director of Special Education (SPED), about how she arrived at the numbers of special education students projected to attend Loudoun Schools.

Petkovich, representing eight named residents of Beacon Hill, argued that those numbers were cooked to establish a pretext under which LCPS staff, at the 11th hour, eliminated proposed boundary plans that the public had been invited to submit, essentially guaranteeing selection of “Bergel Plan 2 Amended.” It left too many children with economic and language hardships assigned to Douglass, according to testimony, but secured assignments for the River Creek community to Frances Hazel Reid Elementary and the Spring Lakes community to John Tolbert Elementary at the expense of other communities, including Beacon Hill and Waterford Knolls.

A plan submitted by Beacon Hill residents was the only one that would have satisfied all the guidelines, according to plaintiff’s witnesses, but staff scuttled it along with the others that did not match the required special education numbers developed by Kearney and provided to the School Board on Nov. 29, two weeks before a vote on Douglass boundaries on Dec. 13. The boundary process had been under way since October.

Under Petkovich’s questioning, Kearney testified that those special education numbers were projected based on current enrollment. Normally, those numbers would not have been tallied for eight more months.

LCPS staff also waited  until late in the boundary process to release “chassis capacity”  – the basic numbers of students and programs that each school could accommodate, said Beacon Hill resident Micah Green, who helped develop the plan known as “Bergel by Request Plan B as Amended by Marshall.” Those numbers caused changes in the SPED recommendations that Kearney provided, Green said.

Not only was information about capacity released too late in the boundary process for inclusion in initial proposals, he said, but also  ”There was a serious problem with the SPED numbers. It seemed mathematically flawed.”

Then, on Dec. 2,  “something very stunning occurred,” Green testified: LCPS staff revealed that five of eight proposed boundary plans from the public were eliminated from final consideration because they failed to meet SPED recommendations. Each was stamped in red with a notation that it “does not meet the special education classroom space recommended goals.”

Before that day, Green testified, “There was never a hint that those [SPED recommendations] would be used to fail plans.”

Beacon Hill’s plan, the only one to satisfy the School Board’s goal of a 30% ceiling for percentage of students with economic and language hardships at any one school, was among those eliminated.  It had kept the number of Douglass students receiving free and reduced meals (FRM) or English language instruction (ELL) below 30%, the stated LCPS goal, according to witness Miguel Morales, one of the architects of Beacon Hill’s proposal. In “Bergel Plan 2 Amended,” the plan ultimately adopted, numbers of FRM and ELL students at Douglass both exceed 30%.

Green testified that he immediately challenged the numbers, but received no response from Kearney. Instead, LCPS counsel Stephen DeVita answered Green with an email stating that SPED numbers “are not locked down” because of “enrollment volatility over the summer.”

On Dec. 13,  in a meeting just before the School Board’s final vote, Green said he questioned the methodology that established SPED numbers. He was told that Kearney’s staff first combined the numbers of school and cluster-based students who need special services, then added the projected number of incoming students who qualified for more than one of those services.

Green said that when he asked “Don’t you have to subtract the outgoing [number of students] too?” he was told “Our math doesn’t go that deep.”

Tempers flared in the courtroom Wednesday as Petkovich questioned Green about how LCPS applied the SPED numbers that “changed the labeling” of various attendance plans submitted by the public.

“Maybe he doesn’t understand the legislative process,” Judkins said in open court to challenge opposing counsel Petkovich, who reacted angrily.

That drew a remonstrance from Horne, who told Petkovich to “Never interrupt counsel when she’s speaking.”

“You’re offending the court,” Horne said.

“I take offense to counsel saying I don’t ask the right questions,” Petkovich said.

A few moments earlier in Green’s testimony, LCPS counsel Stephen DeVita’s cell phone rang audibly. Horne said quietly: “Do you want to turn that off?” and DeVita briefly left the courtroom.

On Tuesday, Judkins repeatedly mispronounced Whitbeck’s last name and addressed former School Board member Bob Ohneiser “Mr. DuPree,” the name of another former board member.

After the plaintiffs’ case completed on Wednesday, Judkins said a motion to strike their petition was not appropriate. “The petitioners have to clearly prove the unreasonableness [of the School Board’s action],” she said. “Only then does the burden [of proof] shift to the School Board.”

The School Board did not have to present “a preponderance of evidence,”  Judkins said, only that its actions were “consistent with the law.”

Because the remedy sought was judicial review, she said. “This is not like an ordinary case,” Judkins told Horne. “This is not an even playing field.”

“There is no burden on you to do anything at any time,” Horne responded, but “good legal practice” requires that “the court should articulate its reasons for doing whatever it does when it addresses those acts.”

“Your arguments have not fallen on deaf ears,” he said. “You can be assured of that.

“I think I’ve got a good grasp on what your arguments are.”

 See Day 3 coverage at “Home” tab.


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