District of Columbia School Reform Proposal: Authority of the D.C. Council To Implement

District of Columbia School Reform Proposal:
Authority of the D.C. Council To Implement
March 9, 2007
Kenneth R. Thomas
Legislative Attorney
American Law Division



District of Columbia School Reform Proposal:
Authority of the D.C. Council To Implement
Summary
This report addresses the authority of the District of Columbia Council to
implement a proposed reorganization of the District of Columbia Board of Education.
Specifically, the report addresses the authority of the Council to implement the
proposed District of Columbia Public Education Reform Amendment Act of 2007,
a bill currently being considered by Council. The proposed Act would involve
extensive revision of the D.C. Code, including parts of the District of Columbia
Home Rule Act. In addition, the report considers to what extent Congress would be
required to legislate to implement this reorganization.
It would appear likely that the D.C. Council has sufficient authority to
reorganize an independent agency such as the Board of Education, including defining
the Board’s powers, duties, and responsibilities. However, the Council may not have
the necessary budgetary authority to allocate funds to individual schools, nor may it
delegate such authority to the mayor. Thus, although it would appear that the
Council could engage in significant reorganization of the Board under the proposed
bill, congressional implementation would appear to be needed to address the public
school budget restrictions provided for under the Home Rule Act.



Contents
In troduction ......................................................1
Power of D.C. Council Under the Home Rule Act........................1
Background ..................................................1
Authority To Reorganize the School Board..........................2
Authority over Budget for the Public Schools........................7
Conclusion .......................................................8



District of Columbia School Reform
Proposal: Authority of the D.C. Council
To Implement
Introduction
This report addresses the authority of the District of Columbia Council to
implement a proposed reorganization of the District of Columbia Board of Education.
Specifically, the report addresses the authority of the Council to implement the
proposed District of Columbia Public Education Reform Amendment Act of 2007
(hereinafter Education Reform Bill),1 a bill currently being considered by the
Council.2 In addition, the report considers to what extent Congress would be
required to legislate to implement this reorganization.
The Education Reform Bill is a comprehensive proposal to change the
governing structure of the District of Columbia school system and to delegate
significant authority over the public schools to the mayor. It involves extensive
revision of the D.C. Code, including parts of the District of Columbia Home Rule
Act (Home Rule Act).3 Although the Home Rule Act provides the D.C. Council with
extensive legislative authority, it also includes certain limitations. Consequently, the
question arises as to whether these limitations would apply to the Education Reform
Bill, necessitating congressional action to implement the bill.
Power of D.C. Council Under the Home Rule Act
Background
The Home Rule Act provides the D.C. Council with broad power over District
affairs, in that “the legislative power of the District shall extend to all rightful
subjects of legislation within the District consistent with the Constitution of the


1 Available at [http://www.dccouncil.washington.dc.us/images/00001/20070110123820.pdf].
2 Although District of Columbia legislation usually must be submitted to relevant
congressional committees and will not be effective until a 30-day review period has passed,
Congress does not generally need to pass separate legislation for an act passed by the D.C.
Council to take effect. See Self-Government and Governmental Reorganization Act, P.L.

93-198 (1973) (Home Rule Act) at § 602(c) (codified at § 1-206.02(c)).


3 See Home Rule Act, supra, note 1.

United States and the provisions of this chapter....”4 However, this power is subject
to a variety of limitations, and Congress retains ultimate authority to legislate in a
way that may limit this power.5
One of the primary limitations is that the D.C. Council may not amend the
Home Rule Act unless it is pursuant to a power granted elsewhere in that act.6 This
limitation would appear to be the one most significant to the instant legislation.7 As
passed by Congress, the Home Rule Act provided that the Districts of Columbia
public schools were to be controlled by the District of Columbia Board of Education
and that the board was to consist of members elected by the citizens of the District.8
The Education Reform Bill provides that the control of Board of Education over the
District of Columbia public schools would be significantly limited. Thus, the
question arises as to whether the District of Columbia Council has the authority to
amend this portion of the Home Rule Act.
Authority To Reorganize the School Board
The Home Rule Act does provide the Council with significant authority for
governmental reorganization. Specifically, § 404(b) of the Home Rule Act 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.
The Education Reform Bill specifically notes this language as support for the
reorganization of the public schools as a cabinet-level agency:
Pursuant to section 404(b) of the District of Columbia Home Rule Act, approved
December 24, 1973 [cite omitted] the agency now known as the District of
Columbia Public Schools, and as D.C. Public Schools, is established as a


4 Home Rule Act, § 301 (codified at D.C. Code § 1-203.02).
5 Id. at § 602 (codified at D.C. Code § 1-206.02(a)).
6 Id. at § 602(a) (codified at D.C. Code § 1-206.02(a)(“The Council shall have no authority
to pass any act contrary to the provisions of this chapter except as specifically provided in
this chapter....”) .
7 Other major limitations prohibit the Council from legislating to impose tax on property of
the United States or any states, id. at § 602(a)(1), amend an Act of Congress regarding
United States property, id. at § 602(a)(3), or amend an Act of Congress which has effect
outside the District, id. There are also various limitations relating to public credit, id. at §
602(a)(2), the D.C. courts, id. at § 602(a)(4), commuter taxes, id. at § 602(a)(5), building
heights, id. at § 602(a)(6), the Mental Health Commission, id. at § 602(a)(7), federal courts.,
id. at § 602(a)(8), and various federal entities, id. at § 602(b).
8 Id. at § 495. The makeup of the Board has since been modified. See supra note 14.

separate cabinet-level agency, subordinate to the Mayor, to be known as the9
District of Columbia Public Schools.
It should be noted that § 404(b) does not specifically grant the District of
Columbia Council authority over the Board of Education, or over “boards” generally.
The District of Columbia Board of Education, however, is characterized in the Home
Rule Act as an “independent” agency.10 Thus, the question arises as to whether an
independent agency in the District of Columbia is an “office, agency, department, or
instrumentality of the government,” and is thus amenable to such reorganization.
The District of Columbia Board of Education was created by Congress in 1906,
and its nine members were appointed by the judges of the Supreme Court of the
District of Columbia. The Board of Education was given “control,” including
determination of general educational policy, appointment of teachers, and selection
and supervision of the Superintendent.11 In 1968, Congress changed the method of
selecting the Board of Education to election by District citizens; five years later, the
Home Rule Act established the Board of Education as one of five independent
agencies operating independently of the executive or legislative branches of the
District government.12 Under the Home Rule Act, the Board of Education retained
all authority previously granted to it by Congress, including “control of the public
schools.”
More recently, however, the Board of Education has undergone significant
reorganization. In 2000, the D.C. Council passed the School Governance Charter
Amendment Act of 2000.13 This Act authorized a referendum in the District of
Columbia as to whether to change the current size and authority of the Board of
Education by amending the District of Columbia Home Rule Act.14 The referendum15
was authorized under the Charter amendment process, an alternative to directly
amending the Home Rule Act, which authorizes the Council to provide for16
referendums to amend any part of Title IV of the Home Rule Act, such as the
organization of the Board of Education.


9 Education Reform Bill, § 102.
10 Title IV, Part F of Home Rule Act establishes “Independent Agencies.” The Board of
Education is established as one of these entities. Id at § 495.
11 See Shook v. District of Columbia Financial Responsibility and Management Assistance
Authority, 132 F.3d 775, 777 (D.C. Cir. 1998).
12 Home Rule Act § 495. The other agencies were the Board of Elections, id. at § 491, the
Zoning Commission, id. § 492, the Public Service Commission, id. at § 493, and the Armory
Board, id. at § 494.
13 D.C. Law 13-159 (2000).
14 Rather than an all-elected board, the reorganized Board of Education consists of nine
members, four of whom are appointed by the mayor and five of whom are elected. D.C.
Code § 1-204.95 (2006).
15 Home Rule Act, §§ 301- 303.
16 Id. at §§ 401- 495.

The power to amend the Home Rule Act by referendum is subject to the same
limitations as the power of the D.C. Council.17 It should also be noted that although
Congress did pass legislation regarding the School Governance Charter Amendment
Act of 2000, the legislation merely addressed the implementation date and did not
purport to authorize the reorganization.18 Thus, with the tacit approval of Congress,
the current procedures used to elect and appoint the Board of Education follow the
referendum-adopted School Governance Charter Amendment Act of 2000, not the
original procedure set out in the Home Rule Act. Thus, to the extent that the current
reorganization of the Board of Education is legally valid, it would appear that future
reorganizations, such as under the Education Reform Bill, would also be valid.
Although there does not appear to be case law addressing the issue of whether
the D.C. Council has the authority to reorganize the Board of Education under §
404(b) of the Home Rule Act, there is related case law that may be relevant to this
discussion. In Shook v. District of Columbia Financial Responsibility and
Management Assistance Authority,19 the United States Court of Appeals for the
District of Columbia considered whether the District of Columbia Financial
Responsibility and Management Assistance Authority (the Control Board), which
temporarily controlled the governance of the District of Columbia, had the authority
to significantly reduce the authority of the Board of Education.
In 1995, Congress found that the District government was in the midst of a
“fiscal emergency.” In response, it passed the District of Columbia Financial
Responsibility and Management Assistance Act of 1995 (FRMAA),20 which
established a five-member Control Board with wide-ranging powers to improve the
District government’s operations. In 1996, Congress amended the Act so that the
Control Board could issue
such orders, rules, or regulations as it considers appropriate to carry out the
purposes of this Act and the amendments made by this Act, to the extent that the
issuance of such an order, rule, or regulation is within the authority of the Mayor
or the head of any department or agency of the District government, and any such
order, rule, or regulation shall be legally binding to the same extent as if issued21
by the Mayor or the head of any such department or agency.
Under this section, the Control Board issued an order reorganizing
administration of the District’s public schools. They established a nine-member
Emergency Transitional Education Board of Trustees to assume responsibility for the
operation and management of the District of Columbia public school system, and


17 Id. at 303(d)(codified at § 1-203.03) (“The amending procedure provided in this section
may not be used to enact any law or affect any law with respect to which the Council may
not enact any act, resolution, or rule under the limitations specified in §§ 1-206.01 to

1-206.03”).


18 P.L. 106-226 (2000). See H.R. Rep. 106-664 (2000).
19 132 F.3d 775 (D.C. Cir. 1998).
20 P.L. 104-8 (1995)(hereinafter FRMAA).
21 FRMAA, 207(d).

delegated “all the authority, powers, functions, duties, responsibilities, exemptions,
and immunities of the Board of Education.” The Board of Education was left with
the authority only to license charter schools and to provide advice to the Board of
Trustees, although its President was made a member of the Board of Trustees.22
This order by the Control Board was challenged by school board members, who
argued, among other things, that the Board’s power to issue “legally binding” orders
“to the same extent as if issued by the Mayor or the head of any such department or
agency” did not apply to the Board of Education, because the Board was designated
under the Home Rule Act as an “independent” agency. Just as the question can be
posed whether the D.C. Council’s authority to “create, abolish, or organize” any
“agency” includes the Board of Education, so the question was posed whether the
Control Board’s power over agencies extended to the Board. Thus, the resolution of
the Shook case may inform the instant question.
In the Shook case, the school board members noted that in other places in the
FRMAA, Congress differentiated between agencies and independent agencies.23 The
Control Board, on the other hand, argued that the plain meaning of “any agency”
would include “any independent agency,” because the greater includes the lesser.24
The Control Board also noted places in FRMAA, such as provisions regarding the
D.C. budget, where the single word “agency” was understood to include the Board
of Education.25 The D.C. Circuit, in turn, noted that the preamble to the FRMAA
suggested a broader interpretation of the term “agency,” as it included a finding that
“the District of Columbia government fails to provide its citizens with effective and
efficient services in areas such as education.”26 Finally, the court noted that the
legislative history did not indicate that Congress intended to exclude independent
agencies, like the Board of Education, from the Control Boards’ power under the Act.
Ultimately, the court concluded that the term “agency,” as used in the relevant
portion of the FRMAA, should include independent agencies.27
Although this statutory interpretation was done in the context of the FRMAA,
not the Home Rule Act, there are certain parallels to the instant question. For
instance, as with FRMAA, the Home Rule Act uses the term “agency” in other
places, such as in provisions regarding the budget, and the term in those places


22 132 F.3d at 777.
23 See, e.g., FRMAA § 207(a)(3) (empowering the Control Board to make recommendations
relating to “the structural relationship of departments, agencies, and independent agencies”).
24 See Acron Inv. v. Federal Sav. & Loan Ins. Corp., 363 F.2d 236, 239 (9th Cir. 1966) (“An
‘independent agency’ is no less an ‘agency’ in the ordinary sense of the word....”).
25 See FRMAA § 301(a)(1)(c) the District’s “budget” is defined to include “appropriations
or loan or spending authority for all activities of all departments or agencies of the District
of Columbia”); Id at. § 302(c)(11) (the Chief Financial Officer is assigned the duty of
“maintaining custody of all public funds ... of the District government (or any department
or agency of the District government)”).
26 FRMAA § 2(a)(2).
27 132 F.3d at 779-781.

appears to include independent agencies.28 Further, there is no indication in the
Home Rule Act that the term “agency” does not include “independent agencies,” and
some indication that such distinctions as do occur between independent agencies and
other agencies would be made by using other terminology.29 Finally, the term
“agency” is used in other places in the District of Columbia Code to include
independent agencies.30
In some ways, a Council argument that the Board of Education is amenable to
its power may be even stronger than it was for the Control Board. Although the
Control Board’s power was limited to “department[s] or agenc[ies],” the D.C.
Council’s power extends to any “office, agency, department, or instrumentality of the
government,” which appears to be a broad and potentially comprehensive phrase.
Further, the legislative history for the Home Rule Act appears to specifically consider
independent agencies as amenable to the authority of the District of Columbia
Council.
The Senate Report for the Home Rule Act provides that
[t]he functions now vested in the District Public Service Commission, Zoning
Commission, Zoning Advisory Council, Board of Zoning Adjustment, Office of
the Recorder of Deeds, and Armory Board may be transferred to the new
Council; however, these boards and commission shall continue to function until
such time as the Council shall make such changes in function as it deems31
appropriate.
Thus, three of the five independent agencies established by the Home Rule Act
(the Public Service Commission, the Zoning Commission, and the Armory Board)
were specifically noted as agencies that the D.C. Council would have reorganization


28 For instance, the term “budget” under the Home Rule Act is broadly defined to mean “the
entire request for appropriations and loan or spending authority for all activities of all
agencies of the District financed from all existing or proposed resources and shall include
both operating and capital expenditures.” Home Rule Act, § 103(15). (emphasis added).
Other provisions of the Home Rule Act appear to confirm that the Board of Education, while
maintaining some budget autonomy, was intended to be a part of the District of Columbia
“budget.” “With respect to the annual budget for the Board of Education in the District of
Columbia, the Mayor and the Council may establish the minimum amount of funds which
will be allocated to the Board, but may not specify the purposes for which such funds may
expended....” Home Rule Act, § 452 (D.C. Code § 1-204.52 ). See generally Barry v. Bush,

581 A.2d 308 (1990)


29 While independent agencies appear to be “agencies” of the District, they are presumed to
have some level of autonomy from the mayor. See Hazel v. Barry, 580 A.2d 110, 114
(1990) (D.C. Public Library is independent of the mayor in terms of policy choices,
personnel choices, and other areas). Arguably, this is indicated not by excluding them from
the term “agency,” but by otherwise distinguishing them. See, e.g., Home Rule Act, § 422
(the mayor’s power to reorganize “offices, agencies, and other entities” is limited to those
entities “within the executive branch of the government of the District.”)
30 “The term ‘agency’ includes both subordinate agency and independent agency.” D.C. §

1-1502.


31 H.R. Rep. No. 93-219 (1973).

authority over. Why the Board of Education, already in existence at the time of the
Home Rule Act,32 and the Election Board are not mentioned in this sentence is not
clear. There does not, however, appear to be an obvious distinction between the
Board of Education and these other independent entities so as to suggest that
Congress intended to exclude the Board of Education from this Council authority.
Authority over Budget for the Public Schools
There does appear, however, to be a provision of the Education Reform Bill that
may require congressional action.33 Title II of the Education Reform Bill provides
for the amendment of the budget authority for the District of Columbia schools.
Specifically, it would amend the provision of the Home Rule Act that provides the
following:
Role of Mayor and Council. — 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 the34
jurisdiction of the Board of Education....
As noted above, the D.C. Council has been granted the power to reorganize
independent agencies, arguably including the Board of Education. So the question
arises as to whether the apparent disability imposed on the Council (and the mayor)
to direct how Board of Education funds are used could be evaded by such
reorganization, or whether, as contemplated by the Education Reform Bill, the above
disability must be removed by Congress. One might make the argument that the D.C.
Council could limit the powers of the Board of Education, while still submitting a
separate budget request for that entity. Under this theory, as long as the Council did
not specify how the funds allocated to the newly organized Board of Education were
spent, then the proposed reorganization could go forward without Congress removing
the budgetary restrictions imposed on the Council (and the mayor).
There is, however, a further provision of the Home Rule Act that implies that
this budgetary restriction could not be evaded at the same time that the day-to-day
supervision of the individual public schools is delegated to an entity besides the
School Board. This provision provides that
[t]he [Board of Education budget] plan submitted under this subsection shall
include a detailed presentation of how much money will be allocated to each
school, including — (A) A specific description of the amount of funds available
to the school for which spending decisions are under the control of the school;


32 Home Rule Act, § 719 (providing for the continuation of the Board of Education).
33 See Education Reform Bill, §§ 203-204. The Bill provides that amendments to the Home
Rule Act regarding the function of the school board and the D.C. Council’s budget authority
will only become applicable upon the passage of legislation by Congress.
34 D.C. Code § 1-204.52(a). These provisions would be amended to eliminate this disability.
See Education Reform Bill at § 202.

and (B) A specific description of other responsibility center funds which will be
spent in a manner directly benefitting the school, including funds which will be
spent for personnel, equipment and supplies, property maintenance, and student35
services.
This quoted language would indicate that the Congress clearly intended that
neither the D.C. Council nor the mayor would have the authority to direct the
allocation of funds to individual public schools. As noted earlier, the Council’s
authority to reorganize agencies would appear to apply even to entities that were
established under the Home Rule, such as the School Board. However, because
Congress has imposed a specific disability on the D.C. Council’s ability to direct how
funds are to be allocated among the different schools, this language appears to be an
exception to those powers to reorganize. Further, it is unlikely that the Council could
delegate such authority to the mayor, because he is similarly precluded by the quoted
language from allocating these funds.
Conclusion
In conclusion, it would appear likely that the D.C. Council has sufficient
authority to “create, abolish, or organize” or “define the powers, duties, and
responsibilities” of independent “agencies,” including the Board of Education.
However, the Council may not have the necessary budgetary authority to allocate
funds to individual schools, nor may it delegate such authority to the mayor. Thus,
although it would appear that the Council could engage in significant reorganization
of the Board under the Education Reform Bill, congressional implementation would
appear to be needed to address the public schools budget restrictions provided for
under the Home Rule Act.


35 Home Rule Act, § 452 (D.C. Code § 1-204.52(b)(2)).