June 25, 2015 Commissioner Robert Hammond Colorado Department of Education 201 East Colfax Avenue Denver, CO 80203 Dear Commissioner Hammond: We are in receipt of your June 23, 2015 letter to Superintendent Dr. Fagen regarding the Douglas County School District’s request for modification of the Department of Education’s 2012 and 2013 student count audit findings, which were first reported by the Department to the District last May – respectively, three and two years after the fact. We have also reflected on the telephone conversation you had with Superintendent Fagen minutes after you transmitted the letter. Our District completely rejects the Department’s position as arbitrary, capricious and not the result of reasoned agency decision-making. We intend to pursue our remedies in the Colorado courts with all deliberate speed. More broadly, and to prevent further bureaucratic and wasteful interference by your Department in the meaningful and productive education of students in our District as well as other school districts in this State, we intend to work expeditiously with the General Assembly to divest the Department of the discretion that the Department has either failed to exercise here at all or, to the extent it has exercised any discretion, has done so with such obvious incompetence and backward thinking. Indeed, the entire premise of the Department’s actions in this matter is rooted in the early 20th century, if not the century before. It is hard to believe that, in this age of nearly constant learning through technology that brings content to students in classrooms, hallways, households, and locations far beyond school buildings, the Department still employs a vast bureaucracy of well-pensioned employees who seriously spend valuable time – at taxpayer expense – tallying the number of minutes that a student sits in a seat, rather than the results achieved by that student, supported by outstanding teachers and encouraged by devoted parents. Such a dumbing down of what it means to receive a Thorough and Uniform education under our Constitution strains credulity. Such a trivialization of the amazing and hard work of our teaching professionals in the classroom massively interferes with the work of our District with no compensatory benefit. This District chooses not to be part of such a ridiculous, callow, and wasteful enterprise. The reasons for the foregoing District position should be obvious to you, because they were set out clearly in our earlier correspondence on this subject. Those reasons, nonetheless, bear repeating for the record. 620 Wilcox Castle Rock, CO 80104 P 303-387-0123 F 303.387-0107 www.dcsdk12.org Commissioner Robert Hammond June 25, 2015 Page 2 First, we believe the Department’s position – which is tantamount to confiscation of Douglas County taxpayers’ funds – cannot be fairly reconciled with previous decisions you and the Department you lead have made. For example, in an audit involving the Pawnee School District, the Department exercised its discretion to disregard the audit findings entirely in that case because that District is wholly funded from local sources. Applying that same reasoning to the audit findings here, the Department should at least reduce the amount it seeks to recover from our District by the approximate thirty (30) percent of our total program funding that derives from local sources. And, yet, the Department simply refused to do so. We find such obviously disparate treatment of our District invidious, unlawful, arbitrary, capricious, and retaliatory. Second, we believe the Department’s position imposing a 50% reduction in funding in cases involving, at worst, a 3.3% average shortfall in documented minutes is untenable, punitive and unjust. The Department clearly has the lawful discretion to make any funding reductions proportionate to the time for which the Department’s audit could not account in District documents. Any other approach elevates form over substance. It elevates wooden bureaucracy over meaningful justice in the orderly administration of education in our State. The Department’s stubborn insistence on an all-or-nothing mathematical approach is particularly galling in the face of the academic results our District has achieved and which the Department has acknowledged: our students now graduate at the highest rate and with the greatest number of credits on the Front Range. Those results had precious little to do with the work of your Department. Our students, many of whom are now attending colleges and universities around the country, were provided with a full-time, world-class education by our dedicated, professional teachers in classroom settings paid for with the very funds the Department now seeks callously to claw back, at the expense of future District students. Third, we believe the Department’s failure to exercise its lawful discretion is particularly ironic and unacceptable because our District was compelled, in the face of unilateral funding reductions carried out by your Department during the recent financial crisis, to take bold and urgent measures to protect our classrooms. In response to your Department’s implementation of the so-called “Negative Factor” – which had the deleterious effect of depriving our District of nearly $100 million in aggregate funding – we developed a high school bell schedule that both preserved a rich array of electives and kept class sizes manageable. To have your Department, three years after the fact, now challenge the minute-by-minute bookkeeping that our high school staff undertook to track classroom time in that more complex schedule collides squarely with traditional notions of basic fairness. This collision comes against the further aggravating backdrop of our District receiving lower funding from your Department than any other district on the Front Range, even as your Department continues to ensure that politically favored school districts receive a munificent and generous largesse from your Department’s accounts. Finally, we believe the Department’s actions in this matter convey the unmistakable whiff of policy retaliation. It is no secret that this District has taken positions closely at odds with those of your Department on any number of fronts. These disagreements include our efforts to make certain that funding for HOPE Online was full, fair, and equitable; our position that the crushing regime of assessments administered by the Department’s bureaucracy is not sustainable; our steadfast 620 Wilcox Castle Rock, CO 80104 P 303-387-0123 F 303.387-0107 www.dcsdk12.org Commissioner Robert Hammond June 25, 2015 Page 3 support for the sovereign right of parents to decline to participate in the incompetently developed standardized tests administered by the Department’s vast testing bureaucracy; our view that Common Core was a scandalously inadequate framework of academic standards; our recent reporting to you that the Department’s TELL survey was fraught with security problems and easily hacked; and, the list goes on. These disagreements have doubtless created some friction between the Department’s leadership and institutional bureaucracy, on the one hand, and the State Board of Education and outside stakeholders, on the other hand. It is deeply unfortunate that the Department’s apparent resentment over these public policy differences appears now to have taken a retaliatory and harsh turn. To allow such considerations ever to be a part of agency decision making is, of course, unacceptable and unlawful. By this letter, we are formally placing you and the Department you lead on notice of imminent litigation in this matter. Please take all reasonable and lawful steps immediately to preserve all documents, data, information, communications, memoranda, work papers, electronic mail, and any other written or tangible expression of any kind whatsoever related to the subject of this correspondence. Such materials constitute the administrative record that is subject to discovery and, ultimately, judicial review. Please contact Rob Ross, our District Legal Counsel, immediately if you are aware of any reason the Department cannot preserve such information and data pending forthcoming judicial proceedings, or if you are aware that the Department has destroyed or lost any such information or data. Sincerely, Kevin Larsen President, Board of Education cc: Doug Benevento Vice President, Board of Education Chairman Marcia Neal, State Board of Education Vice-Chairman Angelika Schroeder, State Board of Education Ms. Valentina Flores, State Board of Education Ms. Pam Mazanec, State Board of Education Mr. Steve Durham, State Board of Education Ms. Debora Scheffel, State Board of Education Ms. Jane Goff, State Board of Education Ms. Elizabeth Burdsall, State Board of Education Cynthia Coffman, Attorney General Hon. Walker R. Stapleton, State Treasurer Senator Corey Gardner Senator Michael Bennet Congressman Ken Buck Representative Mike Coffman 620 Wilcox Castle Rock, CO 80104 P 303-387-0123 F 303.387-0107 www.dcsdk12.org Commissioner Robert Hammond June 25, 2015 Page 4 Senator Mark Scheffel Senator Chris Holbert Representative Polly Lawrence Representative Kevin Van Winkle Representative Kim Ransom Representative Patrick Neville DCSD Board of Education Dr. Elizabeth Celania-Fagen, Superintendent Robert Ross, DCSD Legal Counsel . 620 Wilcox Castle Rock, CO 80104 P 303-387-0123 F 303.387-0107 www.dcsdk12.org