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A group of charter schools claims the DC government spends about $2,000 less per student on the charter sector than on DC Public Schools each year, in violation of federal law. Opponents say that requiring strict equality in funding between the sectors makes no sense.

But if a federal court buys the charters’ legal argument, its decision could have far-reaching implications not only for education in DC but also for the issue of home rule in general.

The DC Association of Chartered Public Schools, which represents 39 charter schools, filed a complaint in federal court in July along with two individual charters, Eagle Academy and Washington Latin. The schools say the District has shortchanged the charter sector by more than $770 million over the past eight years.



The group is not seeking to recover that amount, but it does want the court to order DC to fund the two sectors equally in the future. The group claims the DC School Reform Act, which was enacted by Congress in 1996, required the DC Council to create a per-pupil funding formula that is the same for both DCPS and charters, and not to supplement that amount with any additional funds for DCPS.


"Nobody really wants to sue,” says Robert Cane, executive director of a charter advocacy organization called FOCUS. But, he says, the charter community has been trying to negotiate with DC on the funding issue for many years, without success.

Last week, the DC Office of the Attorney General (OAG) asked the court to throw out the lawsuit, arguing that even if the funding is unequal—something DC isn’t conceding—the DC Council had the right to amend the federal statute under the Home Rule Act.

Legal issues and home rule

Everyone agrees that under the Home Rule Act, passed in 1973, Congress delegated legislative control to the DC Council over local matters like education. All legislation in these areas passed by the Council goes to Congress for a 30-day review period, but if Congress doesn’t act, the legislation goes into effect.

But the charters argue that when Congress passed the School Reform Act 23 years later, it was reclaiming the legislative authority over DC granted to it by the US Constitution. That means, they say, that the DC Council has no authority to change fundamental provisions of the Act. The District says this argument is a “novel” one that has no basis in the law. The charter group will file its response to DC’s legal arguments in November.

Some observers argue that the charter group’s interpretation of the law would be unworkable. Under their view, says Matt Frumin, a DC education activist, “in order for the District to make any significant modifications to education, we would need to have a law passed by two houses of Congress and signed by the President.”

Cane counters that congressional action is only needed for “substantive changes that violate the letter of the law or the intent of Congress,” not for “technical fixes.” But Frumin responds that that the School Reform Act doesn’t make that distinction. Nor, he says, is it clear who would decide what is “substantive” and what is merely “technical.”

Different sectors have different costs

Aside from the legal issues, some say there are policy reasons to treat charters and DCPS differently. A DC-commissioned study released last year found that it was impossible to compare costs in the two sectors accurately. Each charter school has its own accounting system, and DCPS has yet a different one.

While the study acknowledged that DCPS gets more funding per pupil, it also concluded that DCPS’s per pupil costs are much higher. Not only does DCPS, unlike the charter sector, need to pay union wages, it also has to maintain a lot of unused space because it’s required to serve all grade levels in every neighborhood. The study estimated that DCPS needs only about 70% of the space it’s currently maintaining.

DCPS schools also include facilities like pools and auditoriums that serve other community purposes. And DCPS buildings also tend to be older than those used by charters and more expensive to maintain.

Given the sectors’ different cost structures, Frumin argues that charter advocates “are saying either give DCPS less than it needs to succeed, or give charters more, in the name of mathematical parity.” Instead, he says, schools should be funded on the basis of what they actually need to educate children well.

Robert Cane of FOCUS responds that DCPS hasn’t been forthcoming about its true operational expenses, and that the numbers the school system puts out have varied wildly. “This is all made up after the fact,” he says.

Cane acknowledges that the per-pupil allotment for charters in DC is generous compared to what charters get in many other jurisdictions, but he says that’s not the issue.

"It’s very expensive to educate these kids,” he says. “We have more poor and minority kids than DCPS has. If we have more of these kids, why should we have less money?”


The implications of the lawsuit

But the federal district court isn’t considering these policy questions. It’s only concerned with the law. If the court sides with the charter group and requires strict equality in funding, the result will be either that DCPS funding goes down or charter funding goes up.

If DCPS loses funding, it will have an even tougher time competing with the charter sector. If charter funding goes above its current relatively generous level, even more charter operators may be drawn to the District, and the charter sector’s share of students could grow well above the 44% it stands at now.

Beyond that, the charter group’s interpretation of the law of home rule would significantly limit DC’s autonomy. If the courts accept the charters’ argument, any time Congress passes legislation specifically directed at the District, DC authorities will lose their ability to change that law and then interpret congressional silence as acquiescence.

DC’s charter sector has some legitimate grievances, especially when it comes to the difficulty of finding suitable space for schools. And no doubt charters here could find good uses for additional funds.

But it’s far from clear they need more money to do a good job of educating their students. DC’s charter sector was recently declared the best in the nation by the National Alliance for Public Charter Schools.  And most charters here have a comfortable financial cushion, with the sector as a whole listing $283 million in assets at the end of fiscal year 2013.

Given those circumstances, it’s difficult to see why they would choose to jeopardize DC’s hard-won legislative autonomy in a bid for more funding.

Natalie Wexler is a DC education journalist and blogger. She chairs the board of The Writing Revolution and serves on the Urban Teachers DC Regional Leadership Council, and she has been a volunteer reading and writing tutor in high-poverty DC Public Schools.