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UNITED STATES DISTRICT COURT for the DISTRICT of COLUMBIA D.C. ASSOCIATION of CHARTERED PUBLIC SCHOOLS, Et Al., Plaintiffs

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UNITED STATES DISTRICT COURT for the DISTRICT of COLUMBIA D.C. ASSOCIATION of CHARTERED PUBLIC SCHOOLS, Et Al., Plaintiffs Case 1:14-cv-01293-TSC Document 46 Filed 09/09/16 Page 1 of 78 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA D.C. ASSOCIATION OF CHARTERED PUBLIC SCHOOLS, et al., Plaintiffs, Civil Action No. 14-1293 (TSC) v. DISTRICT OF COLUMBIA, et al., Defendants. DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT Pursuant to the Court’s May 26, 2016 Minute Order, defendants move for summary judgment on all claims in the Complaint [1]. The basis for this Motion is Fed. R. Civ. P. 56, and the grounds are set forth in the accompanying Memorandum of Points and Authorities, which shall also serve as an opposition to Plaintiffs’ Motion for Summary Judgment [43]. A proposed order is attached. Because this Motion is dispositive of the Complaint, defendants have not sought plaintiffs’ consent. See LCvR 7(m). DATED: September 9, 2016. Respectfully Submitted, KARL A. RACINE Attorney General for the District of Columbia ELIZABETH SARAH GERE Deputy Attorney General Public Interest Division /s/ Toni Michelle Jackson TONI MICHELLE JACKSON [453765] Chief, Equity Section /s/ Matthew Robert Blecher Case 1:14-cv-01293-TSC Document 46 Filed 09/09/16 Page 2 of 78 MATTHEW ROBERT BLECHER [1012957] GREGORY M. CUMMING [1018173] Assistant Attorneys General 441 Fourth Street, N.W., Suite 630 South Washington, D.C. 20001 Phone: (202) 442-9774 [email protected] Counsel for Defendants 2 Case 1:14-cv-01293-TSC Document 46 Filed 09/09/16 Page 3 of 78 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA D.C. ASSOCIATION OF CHARTERED PUBLIC SCHOOLS, et al., Plaintiffs, Civil Action No. 14-1293 (TSC) v. DISTRICT OF COLUMBIA, et al., Defendants. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT1 Plaintiffs in this case—two public charter schools and an association representing their interests—seek an order requiring the District of Columbia2 to fund their programs on the same dollar-for-dollar (per-student) basis as the District of Columbia Public Schools (DCPS). Plaintiffs make no claim of need; their appeal is abstract and purely legal. They contend, in substance, that a law enacted two decades ago by Congress—the School Reform Act—prohibits the District’s popularly- elected officials from exercising basic judgment in the area of public education funding. But differences in system-level costs between DCPS and public charter schools make plaintiffs’ argument fundamentally unreasonable. Fortunately, the legal basis for their claim fairs no better. Sounding as it does in the Home Rule Act, plaintiffs’ remaining cause of action can only succeed if the District indeed ran afoul 1 This Memorandum shall also serve as defendants’ Opposition to Plaintiffs’ Motion for Summary Judgment [43]. 2 Defendants are the District of Columbia, Mayor Muriel E. Bowser, and Jeffrey DeWitt, the Chief Financial Officer; they are referred to collectively in this Memorandum, and all accompanying papers, as “the District.” Case 1:14-cv-01293-TSC Document 46 Filed 09/09/16 Page 4 of 78 of congressional law and had no authority to do so. Plaintiffs miss the mark on both: The District’s public education law enacted since the School Reform Act is in fact consistent with the Act’s essential terms; yet even if it were not, nowhere in the School Reform Act did Congress restrict the District from choosing a different course. For both of these reasons, the Court should grant the District’s Motion for Summary Judgment and enter judgment in the District’s favor. BACKGROUND I. RELEVANT FEDERAL AND LOCAL LAW A. The Home Rule Act In 1973, Congress enacted the Home Rule Act, Pub. L. No. 93-198, 87 Stat. 774 (1973), codified as amended, D.C. Code § 1-201.01, et seq., “to delegate certain legislative powers to the [District] … and, to the greatest extent possible, … relieve Congress of the burden of legislating upon essentially local District matters.” Pub. L. No. 93-198, § 102, 87 Stat. 777, D.C. Code § 1-201.02(a). As such, Congress created the Council and delegated to it broad legislative powers over “all rightful subjects of legislation within the District.” See id. § 1-204.04(a); id. § 1-203.02. The delegation included authority to “amend or repeal any Act of Congress … restricted in its application exclusively in or to the District.” See id. § 1-206.02(a)(3) (“Council “shall have no authority to … enact any act or amend or repeal any Act of Congress … which is not restricted in its application exclusively in or to the District”).3 Congress 3 If there is any doubt concerning the Council’s authority to amend and repeal local congressional law, the District refers the Court to the arguments and authorities in its Motion to Dismiss [11-1] at 8-18, and Reply in Support of the Motion to Dismiss [22] at 8-23, which it incorporates here by reference. 2 Case 1:14-cv-01293-TSC Document 46 Filed 09/09/16 Page 5 of 78 simultaneously reserved the right to legislate for the District, including to “amend or repeal ... any act passed by the Council.” Id. § 1-206.01. The Home Rule Act requires that ordinary Council legislation becomes effective after a 30-day congressional review period, during which Congress can disapprove by joint resolution. See id. § 1-206.02(c)(1).4 Congress must also act affirmatively to appropriate local funds for the District. See id. § 1-204.46 (“no amount may be obligated or expended … unless such amount has been approved by Act of Congress”).5 Supplemental appropriations similarly require affirmative congressional approval, unless they are funded by “increase[s] in [local] revenue,” in which case they are treated the same as ordinary Council law, subject to 30-day congressional review. See id. (“the Mayor shall not transmit any supplements … until completion of the [Home Rule Act] budget procedures”); id. § 47-369.02.6 B. The School Reform Act On April 26, 1996, Congress exercised its authority under the Home Rule Act and passed the School Reform Act, Pub. L. No. 104-134, 110 Stat. 1321, 107-56, codified as amended, D.C. Code § 38-1800.01, et seq. The School Reform Act erected a “structure” to correct local education failures and authorized the creation of public charter schools. Pub. L. No. 104-134, § 2201, 110 Stat. 1321, 115-16; S. Rep. No. 104- 144 (1995) at 6 (“What the Congress can do … is to create a structure within which 4 The 30 days of congressional review excludes weekends, holidays, and any period of time during which Congress is not in session for more than three consecutive days. See D.C. Code § 1-206.02(c)(1). 5 The details of the District’s budget process are set forth in D.C. Code §§ 1-204.04(e) and 1-204.46. 6 D.C. Code § 47-369.02 was passed by Congress as part of the FY 2009 Omnibus Appropriations Act, Pub. L. No. 111-8, § 817, 123 Stat. 699. 3 Case 1:14-cv-01293-TSC Document 46 Filed 09/09/16 Page 6 of 78 change and reform will take place”). The Act did not reflect Congress’ unilateral expectations for public education reform; rather, it incorporated feedback from the community and was modeled on legislation prepared by the Council. See H.R. Rep. No. 104-455 at 141 (“a year of debate, discussion, and negotiation from the local school level to the Congress regarding the amount, shape and pace of education reform necessary”); id. at 142 (School Reform Act “goes a long way toward creating the local structures to address the concerns expressed by the community”).7 1. Subtitle B: Public Charter Schools Subtitle B of the School Reform Act authorized the creation of public charter schools in the District and specified the requirements applicable to their operation. Pub. L. No. 104-134, §§ 2201-2215, 110 Stat. 1321, 115-134. According to these provisions, a public charter school “shall exercise exclusive control over its expenditures, administration, personnel, and instructional methods,” and “be exempt from [District] statutes, policies, rules, and regulations established for [DCPS] ….” Id. at § 2204(a), (c)(3), 110 Stat. 1321, 119-120; see also H.R. Rep. No. 104-455 at 143 (“[Public charter schools] are different from traditional public schools, however, in that they are not required to be managed by a government bureaucracy.”). The provisions also recognized that “[a] public charter school may establish a retirement system for employees under its authority,” id. at § 2207(c), 110 Stat. 1321, 125, and set forth rules governing participation in the District retirement system by former DCPS employees rehired by public charter schools, see id. at § 2207(b)(2)-(4), 110 Stat. 1321, 7 For a discussion of the Public Charter Schools Act of 1995, the Council legislation that served as a model for much of the School Reform Act, including the funding provisions of section 2401-2403, refer to pages 7-12 of the Council’s Amicus Brief [45]. 4 Case 1:14-cv-01293-TSC Document 46 Filed 09/09/16 Page 7 of 78 124. However, these provisions specified that, “[n]otwithstanding any other provision of law and except as provided in [the Act], an employee of a public charter school shall not be considered to be an employee of the District of Columbia Government for any purpose.” Id. at § 2207(b)(2)-(5), 110 Stat. 1321, 124-25. 2. Subtitle D: Annual Budgets for Schools Subtitle D of the School Reform Act (Sections 2401-2403) addressed the annual operating budgets for DCPS and public charter schools.
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