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Judge upholds Denver innovation schools plans, with two exceptions

A Denver district judge has upheld the city school board’s approval of nearly a dozen innovation plans that the teachers union argued violated state law.

But Denver District Court Judge Ann B. Frick ruled that the Board’s pre-approval of innovation plans at Swigert and McAuliffe International Schools did violate the state’s Innovation Schools Act [ISA], because the schools were not opened to replace struggling schools or as part of clear school improvement efforts in neighborhoods without quality school options.

The act — which became law in 2008 and was intended to give some schools flexibility over areas like staffing, scheduling and budgeting —  requires at least 60 percent of a school’s teachers to approve the innovation plans, which have typically included provisions like longer working hours or at-will employment contracts.

The Denver Classroom Teachers Association argued that the Denver Public Schools board inappropriately approved innovation school plans for schools undergoing restructuring without first gaining consent of the schools’ current staff members and that the district prematurely approved innovation plans for new schools whose staffs had not yet been hired.

“The central dispute is whether [Denver Public Schools] can create an Innovation Plan and seek Innovation status for a ‘new’ school,” Frick wrote.

The innovation schools all held secret ballots on the waivers after teachers were hired and the schools opened, but the union claimed that approval was not voluntary since it was a condition of employment for those teachers.

“We are disappointed with the current decision allowing a flawed innovation process to move forward,” said DCTA President Henry Roman in a statement. “But we are heartened that the Court acknowledged that such innovation plans must have “buy-in” from all stakeholders, including the teachers and classified staff who make innovation happen for students in our schools.”

In her ruling, Frick distinguished between schools that were granted innovation status as part of restructuring related to school improvement efforts, new innovation schools opened to replace schools that were being closed due to poor performance, and new schools not intended to replace other closing schools.

For those schools that are either undergoing restructuring as part of school improvement efforts or that were created as part of clear efforts at improving the quality of a neighborhood’s educational offerings, Frick ruled, then the district’s process was permissible under the law.

“What is significant here is that Colorado law permits a school to seek status as an Innovation School and adopt an Innovation Plan as its strategy for addressing the issues identified in its turnaround plan as necessary to raise the school’s performance levels,” Frick wrote.

DPS Superintendent Tom Boasberg said that he was pleased that the judge hinged her ruling on the ISA’s intent to improve school performance.

“I think that’s really the heart at what’s at issue here, when we have had schools failing kids: how do we make those schools more flexible and more innovative and more able to meet the needs of students,” Boasberg said. “It was good to see the court really employ the statutory intent of the ISA.”

But in the cases of Swigert and McAuliffe, Frick ruled, the district opened the schools not as part of clear school improvement efforts but rather to meet growing enrollment demands in the Stapleton neighborhood.

“Indeed, no evidence was presented that the students in the Stapleton neighborhood schools were failing academically,” Frick wrote. “Thus, the Court finds that the creation of these schools does not serve the legislative purpose or intent of the ISA.”

The ruling presents a clear path for the district in cases where innovation plans are being approved as part of efforts to replace struggling schools or to establish new programs in high-need neighborhoods.

“We’re most likely going to be doing new innovation schools as part of turnaround – that’s the most common way that these schools are going to come online,” said DPS board President Mary Seawell. “I think this is a huge victory for the district.”

Less clear is what the decision means for new innovation schools like Swigert and McAuliffe that are opened in neighborhoods with high enrollment needs but without pressing academic challenges.

“I think it’s interesting to think about the concept of new innovation schools being in two different buckets,” Seawell said.

The ruling orders that Swigert and McAuliffe establish a task force of staff, parents and community members to review their schools’ innovation plans and either re-submit the original plans or to submit new, modified proposals. Those proposals will then be held up for a vote by the staff and then be sent to the district board for approval.

“The faculties in those schools have already voted,” Boasberg noted. “They would have another chance to approve the plans.”

But for new schools set to open separately from turnaround efforts, Seawell said that the process for hiring new staff and approving innovation plans is less clear.

Similarly, Seawell said that there is a possibility that McAuliffe’s move to the building where Smiley Middle School is phasing out changes the school’s status as not part of a school turnaround effort.

Still, Seawell said that the judge’s decision to uphold the bulk of the district’s process with regard to the innovation schools cements DPS’ reform efforts.

“This is really big part of what the district is doing to improve performance,” Seawell said.

Roman said that the DCTA intends to push for further changes to the way that the district opens innovation schools.

“Our schools need true, creative innovation that inspires educators and students toward amazing outcomes, not innovation that primarily serves to remove teachers’ input from the conversation,” he said. “This is not the last word on this issue, and DCTA intends to continue to work toward a more fair, transparent implementation of the Innovation Act.”