District of Columbia School Reform Proposals: Congress's Possible Role in the Legislative Process
District of Columbia School Reform
Proposals: Congress’s Possible Role in the
Legislative Process
Eugene Boyd
Analyst in American National Government
Government and Finance Division
Summary
On January 5, 2007, the newly elected mayor of the District of Columbia, Adrian
Fenty, released his legislative proposal to transfer administrative and budgetary control
of the District’s public schools from the Board of Education to the Office of the Mayor.
Under the proposed Education Reform Act, the city council would reorganize the city’s
authority over the schools, while calling on Congress to amend provisions of the Home
Rule Act relating to the District of Columbia School Board structure and to restrictions
on the school budget authority. To the extent that Congress sought to legislate beyond
these two issues, it could pass legislation implementing any or all other aspects of the
proposed act itself. This report will examine that option.
On January 5, 2007, Adrian Fenty, the mayor of the District Columbia, released a
detailed legislative proposal that would transfer administrative, policy making, and
budgetary authority for the District of Columbia’s public schools from the District of
Columbia Board of Education to the mayor. The proposal, “The District of Columbia
Public Education Reform Amendment Act of 2007”1 (Education Reform Act), was
introduced one day after the mayor was sworn in. Key elements of the proposal would
!create a new cabinet-level department for public school education to be
managed by a “Chancellor of the District of Columbia Public Schools,”
appointed by the mayor with the advice and consent of the city council;
1 On January 5, 2007, City Council Chairman Vincent Gray, by request of the mayor, introduced
the District of Columbia Public Education Reform Amendment Act of 2007 (B17-0001),
available at [http://www.dccouncil.washington.dc.us/images/00001/20070110123820.pdf].
!reduce the authority and power of the Board of Education from an
independent governing and policymaking entity to an advisory body to
the mayor; and
!transfer the current Board of Education charter-school authority to the
State Education Office.2
!transfer the authority to set the budget for the District of Columbia
schools to the mayor.
Home Rule Congressional Authority
Congress’s authority to review, amend, and approve or disapprove the mayor’s
education proposal is derived from the “District Clause” of the Constitution, which states
that Congress has the power
To exercise exclusive Legislation in all Cases whatsoever, over such District (not
exceeding ten Miles square) as may, by Cession of particular States, and the3
Acceptance of Congress, become the Seat of the Government of the United States.
In 1973, Congress passed the District of Columbia Self-Government and
Governmental Reorganization Act, P.L. 93-198 (Home Rule Act),4 which granted the5
District citizens an elected form of government with limited home rule. The Home Rule
Act gave District voters the right to elect a mayor, a city council, and an independent6
Board of Education. It also outlined the powers afforded to the D.C. Council and the
retention of Congress’s constitutional authority to legislate within the District. This7
retention of constitutional authority is recognized in the Home Rule Act and the D.C.
Code, which states
§ 1-206.01 Retention of constitutional authority. Notwithstanding any other
provision of this chapter, the Congress of the United States reserves the right, at any
time, to exercise its constitutional authority as legislature for the District, by enacting
legislation for the District on any subject, whether within or without the scope of
legislative power granted to the council by this chapter, including legislation to amend
or repeal any law in force in the District prior to or after enactment of this chapter and
any act passed by the city council.
2 For the purpose of meeting requirements for federal education assistance, the District is defined
as a state.
3 Art. 1, Sec. 8, clause 17.
4 87 Stat. 774.
5 From 1967 to 1974, the District was governed by a presidentially appointed mayor and council.
6 Voters approved by referendum vote the Home Rule Act on May 7, 1974.
7 87 Stat. 813.
The Proposed Education Reform Act
The proposed Education Reform Act contemplates two concurrent avenues for
achieving a proposed restructuring of the District of Columbia public school system: (1)
passage of legislation by the city council, and (2) congressional amendment of the Home
Rule Act. The majority of the reorganization proposal could be implemented by the city
council acting under its delegated authority to reorganize agencies of the District of
Columbia.8 However, the Education Reform Act also contemplates that the Congress
would pass legislation amending two provisions of the Home Rule Act: (1) the
authorizing language for the D.C. School Board,9 and (2) restrictions on the budgetary
authority of the city council and mayor over the D.C. schools.10
To the extent that Congress sought to legislate beyond the two issues contemplated
in the proposed Education Reform Act, it could pass legislation implementing any or all
other aspects of the proposed act itself. This report does not address the issue of whether
that portion of the Education Reform Act which currently contemplates action by Congress
to implement could be achieved by the city council acting alone. For a discussion of that
question, please see CRS Report RL33912, District of Columbia School Reform Proposal:
Authority of the D.C. Council To Implement, by Kenneth R. Thomas.
Passage of the Provisions of the Education Reform Act. Instead of seeking
passage of the Education Reform Act, the mayor could seek a congressional sponsor to
8 See Education Reform Bill, § 102 (citing the D.C. Council’s authority under § 404(b) of the
Home Rule Act also D.C. Code § 1-204.04(b)). The Home Rule Act provides the Council with
significant authority for governmental reorganization. Specifically, § 404(b) provides that:
the Council shall have authority to create, abolish, or organize any office, agency,
department, or instrumentality of the government of the District and to define the
powers, duties, and responsibilities of any such office, agency, department, or
instrumentality.
9 Home Rule Act § 495 also D.C. Code 1-204.95 (providing that the control of the public schools
is vested in the D.C. Board of Education).
10 Home Rule Act § 452 (codified at D.C. Code § 1-204.52) provides that:
With respect to the annual budget for the Board of Education in the District of
Columbia, the Mayor and the Council may establish the maximum amount of funds
which will be allocated to the Board, but may not specify the purposes for which such
funds may be expended or the amount of such funds which may be expended for the
various programs under the jurisdiction of the Board of Education. . . . .
These provisions would be amended to eliminate this disability. See Education Reform Bill at
§ 202.
introduce legislation that would amend the city’s home rule charter.11 The procedure for
such legislation would be as follows.
Table 1. Council Passage of Education Reform
Step 1Introduction of Legislative Proposal. Mayor finds a congressional sponsor
who submits a proposal.
Step 2Congressional Consideration. Congress, through its normal legislative
process, considers the proposal, amends the District of Columbia Home Rule
Act, and passes the other relevant substantive provisions of the act.
Step 3Enactment. Bill signed by the President and becomes law.
Congress’s Possible Role. A proposal originating in Congress to implement the
Education Reform Act would not necessarily result in an expedited process. The
controversial nature of the proposal could subject it to the regular legislative process,
including hearings, markups, committee reports, House and Senate votes, and a conference
agreement. The approved proposal could look significantly different from the proposal
introduced on behalf of the mayor.
Congress has initiated efforts to implement education reform previously. In 1995,
Congress amended the home rule charter when it passed the District of Columbia School
Reform Act, which was included as Title II of the Omnibus Consolidated Rescissions and
Appropriations Act of 1996, P.L. 104-134. Title II authorized the creation of public
charter schools in the District.12 In 2004, Congress considered and passed legislation
amending the home rule charter when it included the DC School Choice Incentive Act of
Choice Incentive Act created the private school voucher program. It should be noted that
both of these programs were included as titles in District of Columbia appropriations acts.
The District’s Alternative Charter Amendment Process
Although the city council may possess the authority to substantially reorganize public
education in the District on its own, and Congress may also pass legislation without
mayoral or city council review or approval, it is worth noting that the District’s home rule
charter includes provisions that would allow elements of the proposal that would
11 Should the mayor pursue this option in an effort to expedite the process, he would risk
criticism for shortchanging the principle of home rule, since neither District residents nor the
District’s legislative body, the city council, would have a vote in the final decision. Some
observers have commented that such an exclusion of the city council and District voters in
deciding the future of a critical public service — public education — might prove awkward for
the Fenty administration as it pressed Congress on other home rule issues, such as budget
autonomy, voting rights, and the elimination of social riders from the District’s appropriations
bills.
12 110 Stat. 1321-107.
13 118 Stat. 126.
amendment the District’s home rule charter to be subject to a referendum vote.14 The
Education Reform Act does not contemplate the use of the referendum process to ratify
the proposed changes to the home rule charter. During community meetings held
throughout the city to explain the proposal, a number of District residents voiced concern
that the proposal was not being put to a referendum vote.
Charter Amendment by Referendum. Table 2, Charter Amendment by
Referendum, outlines the legislative process to be followed when seeking to amend the
Home Rule Act by referendum. This process would require the approval of the city
council, ratification by the voters, and congressional review.
Table 2. Charter Amendment by Referendum
Step 1Introduction of the Proposal. The mayor’s proposal is introduced, by
request, by a member of the city council.15
Step 2City Council Consideration. The city council may consider, amend, and
pass the bill, or it may reject the proposal.
Step 3Voter Referendum. If the bill is approved by the council and signed by the
mayor, the Board of Elections and Ethics is required to prepare a referendum
ballot to be put before the voters of the District. The charter-amending
referendum must be approved by a majority of the voting electorate.
Step 4Certification of Referendum Vote. The results of the referendum must be
certified by the Board of Elections and Ethics within 30 days of the
referendum. The certification is to be made to the President of the United
States, the Secretary of the Senate, and the Clerk of the House of
Representatives. The chair of the council is to submit charter amending acts
certified by the board to the Speaker of the House and President of the
Senate on the day of certification.
Step 5Congressional Review. Upon receipt of the certification from the Board of
Elections and Ethics that the referendum has been approved, Congress has
35 legislative days (days when either House or Senate is in session) or until
the date prescribed by the proposed charter amendment to pass a joint
resolution of disapproval. The absence of such a resolution may be
interpreted as congressional approval of the charter amendment.16
Alternatively, Congress may waive the congressional review period.
Congress’s Possible Role. The mayor’s Education Reform Act does not
contemplate the use of the referendum process. If the charter amendment by referendum
process was used, the Home Rule Act would require city council and voter approval of the
14 87 Stat. 784.
15 The bill was introduced by the Chair of the City Council, Vincent Gray, by request of the
mayor, and was designated B17-0001.
16 Congress still may amend or prevent implementation of the charter amendment after the 35-day
review period by attaching a provision to the District’s annual appropriations act.
proposal and would allow a period for congressional review and consideration. Congress
would have four options:
!It could pass a resolution of disapproval within 35 legislative days of the
Board of Election and Ethics certifying that the proposed charter
amendment had been approved by a majority of the voting electorate.
Such a resolution would have the effect of voiding the outcome of the
referendum and could be considered by some observers as an affront to
home rule, while others could point out that it is within Congress’s
constitutional authority.
!It might do nothing, allowing the 35 legislative days to pass. By its
inaction, Congress would allow the outcome of the referendum to take
effect.
!It could pass legislation waiving the 35 legislative days review period,
thus expediting the effective date of the charter amendment. Congress
passed such a waiver in 2000, after voters approved, by referendum, an
amendment to the home rule charter governing the composition of the
Board of Education.17
!It could use the appropriations process to demonstrate its opposition to
measures approved by the city council and the citizens of the District if
it were unable to pass a resolution of disapproval during the 35-day
congressional review period. For instance, Congress has included in
general provisions sections of past District of Columbia appropriation acts
language preventing the District from implementing a voter-approved
medical marijuana initiative.18
17 The School Governance Charter Amendment Act of 2000, D.C. Law 13-159, was adopted by
the city council on February 17, 2000; signed by the mayor on March 1, 2000; and approved by
District voters in a referendum ballot on June 27, 2000. The results were certified by the Board
of Elections and Ethics on July 7, 2000. Congress waived its 35 legislative days review period
when it passed the Congressional Waiver of the School Governance Charter Amendment Act of
18 119 Stat. 2521.