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DC Council postpones fixing an injustice to pedestrians and cyclists because Kenyan McDuffie's dog ate his homework

I'm on vacation in Copenhagen, but am writing a post anyway )using a Danish keyboard where the punctuation is all in a different place= because I'm sufficiently annoyed at Councilmember Kenyan McDuffie. He seems to have just read a very important bill to protect people walking and bicycling at the very last minute, then asked for an extension because it didn't say what he thought it did.


DC's contributory negligence debate wouldn't happen here in Copenhagen. Photo by the author.

A quick history here. Bicycle riders have been talking about the unjust "contributory negligence" rule for years. This rule says that if someone is even 1% at fault for a crash, he or she can recover nothing from the insurer of, say, a driver who hits and seriously injures him or her.

Two years ago, Tommy Wells (ward 6) was chairing the committee with jurisdiction to change the rule, and he tried a bill to change to "comparative negligence," where you can recover in proportion to your fault (if you're 25% at fault, you could recover up to 75% of your injuries). But Councilmember Mary Cheh (ward 3) opposed the bill, as did trial lawyers, because it would interfere with another legal doctrine called "joint and several liability." You can learn more about this here.

But suffice to say, there were two possible ways to fix the problem, and the one Wells was promoting didn't have political support. Cheh promised to write a bill that fixed her concern, and she then introduced it the following year, in January 2015, along with Jack Evans (ward 2), David Grosso (at large), Anita Bonds (at large), and Charles Allen (ward 6 and Wells' successor).

Here's a chart by David Cranor explaining the difference between the two bills, in terms of how much a victim can recover based on his or her fault under current law, the 2014 bill, and the current bill.


Here, the X axis is for how much the cyclist was at fault, and the Y is for how much the driver has to pay. The red line shows how the law works today, the green one explains a 2014 bill that didn't pass, and the purple and blue ones show Kenyan McDuffie and Mary Cheh's proposals, respectively. Graph by David Cranor.

Kenyan McDuffie was now chairing the committee with jurisdiction, and nothing happened for over a year. The committee then marked up the bill on April 21, 2016. The committee report endorses the bill, saying:

The Committee finds, based on the testimony, significant risk of injury, and national trend, that the District of Columbia law should institute a modified comparative negligence standard for bicyclists and pedestrians in the District. Therefore, the Committee recommends that the Council enacts Bill 21-0004, the "Motor Vehicle Collision Recovery Act of 2016."
Suddenly, the bill is in crisis

Monday night (Copenhagen time, anyway), Martin Di Caro broke the news that McDuffie was suddenly concerned about the language of the bill. David Cranor breaks down McDuffie's apparent concern, which is that someone 10% at fault might be able to recover more than 90%. McDuffie wants the purple line in the graph above, where the recovery slopes down to 50% and is zero after that.

But the sloped-line approach failed two years ago. Suddenly it seems we're back where we were then, with some councilmembers willing to support one solution, some wanting another, and not enough for a single solution.

The Washington Area Bicyclist Association says it supports either approach, but is insistent that one of them be enacted. I might not be seeing everything, being in Denmark let alone not privy to conversations between McDuffie and Cheh, but it sure seems like McDuffie, after sitting on the bill for 15 months, suddenly read it for the first time very recently, realized it said something different than what his own committee report endorsed, and got cold feet.

The council has now postponed debate on the bill for two weeks, until July 12.


Photo by the author.

McDuffie needs to get this solved in two weeks

One of my elementary school teachers had a sign with the old phrase, "Lack of planning on your part does not constitute an emergency on my part." This is like the student who procrastinates on an assignment until the last minute, then needs an extension. Only McDuffie is a very smart professional legislator with extensive legal experience and staff who also have law degrees.

But fine, McDuffie got his extension. It will mean cyclists and pedestrians are in jeopardy for two months more, because the council can't take a second vote until September thanks to its August recess, but they've been waiting years for a fix.

If McDuffie decides to go along with Cheh's approach, great. If he can convince her and a majority of the council to go with another solution palatable to WABA, that's also fine. But what won't be fine is if two weeks pass (during which time there's a holiday, by the way) and then the council is still not ready to move forward. Two years ago, the bill got delayed two weeks also, and instead of then passing, it was delayed more and more and ultimately almost two years.

If that happens because McDuffie wasn't paying attention, this will all be on him, under the "you break it, you buy it" doctrine. It would reflect very poorly on him. Fortunately, he has several ways out of looking bad—just get some dmn bill passed )where the heck is the asterisk on this keyboard=, either Cheh's version or something else that has seven votes.

To stay up to date on how this unfolds, fill out the form below. Meanwhile, I'll go back to walking the streets of Copenhagen, where Danish law places the presumption of fault on the driver in any crash. Hey, how about amending the bill to say THAT instead?



Development


A court ruling on a Brookland development could imperil future housing near Metro stations

DC's Court of Appeals has overturned approvals for a six-story apartment building across the street from the Brookland Metro station. The decision could give opponents in many parts of DC new ammunition to try to block new housing in their neighborhoods.


Rendering of the proposed 901 Monroe project. Image from the Menkiti Group.

Welcome to Brookland, a major front in development wars

Walk out the Brookland Metro station on the neighborhood side, turn right, and after walking along the loop with bus stops you will reach Monroe Street. On the other side is a large parcel where the Colonel Brooks' Tavern and some houses used to sit.

Now, that property, 901 Monroe Street NE, is empty. Neighbors have three times appealed, successfully, a decision by the DC Zoning Commission to allow a building with six floors, five stores, and 212 apartments.

In a nutshell, a panel of judges for DC's Court of Appeals looked a map in DC's Comprehensive Plan, called the Future Land Use Map (FLUM). The map shows this area in shades of orange, signifying that it is "moderate density." The definitions for the categories say that moderate density areas are generally ones with 2-4 story buildings.

This is not 2-4 stories. Therefore, the court said, it's not reasonable to allow a taller building. For a number of reasons, the legal issue is much more complicated, but here's the rub: There are a lot of places in the city that are orange on this map, and a lot of them have, or could soon have, buildings like this one.

Unless this ruling means that now, they may not be able to.

Once upon a time, some people wanted to build housing near Metro...

In 2010, the owners of 901 Monroe, a partnership between the Menkiti Group, Horning Brothers, and Jim Steigman, applied for a kind of zoning permission called a "Planned Unit Development." A PUD lets a building exceed the zoning for an area in exchange for a high-quality project that provides public benefits. DC's Zoning Commission, the hybrid federal-local board with final authority over zoning, reviews and decides on PUDs.

In 2012, the Zoning Commission approved the project. Neighbors appealed. A three-judge panel found that most of the approval was reasonable, but found some holes in the commission's findings, which it asked the commission to fill in. The commission did so, but by copying verbatim some suggested text from the developer, and in a second appeal, a different panel of judges said that was not okay, as well as identifying some other problems with the order.

The Zoning Commission approved the project a third time, and neighbors appealed a third time. This time, the judges said the commission's approval was not a reasonable interpretation of DC's Comprehensive Plan at all, and overturned the zoning approvals entirely.


Image from the DC Comprehensive Plan.

How comprehensive is the Comprehensive Plan?

DC's Comprehensive Plan, or "Comp Plan," is a document written by DC's Office of Planning and approved by the DC Council. By law, zoning decisions must be consistent with the Comp Plan.

Unfortunately, the Comp Plan is not all that consistent with itself. It contains long lists of policy statements, many vague and many pointing in different directions. It talks about the need to add housing near Metro stations but also the value of preserving single-family home neighborhoods. But what about when low-density houses surround Metro stations? The plan doesn't say how to reconcile these conflicts.

The Zoning Commission does that. In its PUDs and other processes, it considers the various Comp Plan provisions and strikes a balance (for better or worse). Courts in DC, following a widespread legal doctrine called "deference," generally avoid second-guessing Zoning Commission and other agency decisions if they are "not arbitrary and capricious."

In the first of the three appeals (which is referred to as Durant I because it's the first case brought by lead plaintiff and project neighbor Guy Durant), the court generally found the commission's balance-striking to be acceptable.

In its report, OP [the DC Office of Planning] indicated that in its view, the developer's proposal struck an appropriate balance between competing Plan policies, some of which encouraged new development around Metro stations, while others favored the preservation of existing neighborhoods.

[In a second, later report,] OP noted that "[t]here are elements ... that support development of the site as an important link between the new commercial uses that will be developed at [a recently-approved PUD project on Catholic University's campus] and the existing commercial uses on 12th Street. It also pointed to the existence of other, competing policies, which stressed conserving the local neighborhood's residential character. Ultimately, OP reiterated its conclusion that the developer's proposal struck an appropriate balance between these competing policies.

The Zoning Commission ultimately agreed, and the court in Durant I supported that approach, pointing out that:
Even if a proposal conflicts with one or more individual policies associated with the Comprehensive Plan, this does not, in and of itself, preclude the Commission from concluding that the action would be consistent with the Comprehensive Plan as a whole. The Plan is not a code of prohibitions; it is an interpretive guide, which the Commission must consider holistically. [Internal quotations omitted]
However, neighbors claimed the DC Office of Planning had misrepresented what the Future Land Use Map really said. OP's report said that the orange striped area in the map below made up about 50% of the proposed project, while neighbors argued it was 37.5%.

The Durant I court did agree that it wasn't clear that OP's 50% figure was right. Maybe the Zoning Commission had been misled by OP's report, and if so, maybe it would have made a different decision. The court couldn't presume it would have still approved the project, so it asked the Zoning Commission to take another look. "We conclude that the Commission must explicitly resolve the FLUM designation dispute and explain whether, and how, its resolution of the issue affects its ultimate decision."

What's "moderate"? It's a question that applies to more than politics

The Zoning Commission didn't think the 37.5% versus 50% was an issue, nor were any of the other deficiencies the court had identified in Durant I. It issued a new order confirming the approval.

Neighbors appealed again. Some of the second case revolved around whether it was okay for the Zoning Commission to copy, verbatim, suggested text from the developer. But the real relevant question was whether this project qualifies as "moderate density."

In many places in the Comprehensive Plan (including the striped area above) and a 2009 neighborhood specific plan called the Brookland Small Area Plan, the text talks about encouraging "moderate-density mixed use" or otherwise refers to allowed density as "moderate."

Moderate density is everything that's orange on the FLUM. The Comp Plan says moderate density areas are "characterized by a mix of single family homes, 2-4 unit buildings, row houses, and low-rise apartment buildings," while medium density areas are "neighborhoods or areas where mid-rise (4-7 story) apartment buildings are the predominant use."

The Brookland Small Area Plan also says that PUDs are acceptable up to a height of 50 feet in this area.

In Durant II, the court asked the Zoning Commission to better articulate why this 6-story building was "moderate density." It did, noting among other things that the building has setbacks above 50 feet and is set away from the street in a way that would make the overall look and feel of the building fit in with a moderate-density area.

But in the third and final appeal, Durant III, the judges said, "Although those considerations are potentially relevant to other issues, they do not support a conclusion that the proposed building constitutes a moderate-density use under the FLUM, because the FLUM's definitions of "moderate density" and "medium density" focus on buildings' actual physical characteristics, such as the number of stories or units in a building, rather than on how the building would look to an observer."

The opinion says that maybe the Zoning Commission could simply decide that medium density is also okay here, but since neither side asked for it to go back again for a fourth time, the court simply overturned the PUD approval. Bo Menkiti, owner of the Menkiti Group, says he and the other partners in the project are "still committed" to the project and are considering their options.

This case is making planners far more conservative

Meanwhile, however, this case has already reverberated in other proposals. Just south of Rhode Island Avenue from here, there's a proposal to redevelop the Brookland Manor garden apartment complex into a mixed-use village with larger buildings. But the whole neighborhood is colored orange on the FLUM. The DC Office of Planning has worried that some of the buildings didn't seem to fit with the "moderate" density label.

OP hasn't said so outright, but there's reason to believe this issue also was behind their refusal to allow a hearing on Georgetown Day School's proposal for an 80-foot building in an area that's—you guessed it—moderate density orange (and low density commercial pink) on the map.

Opponents of the proposed development at the former McMillan sand filtration plant are challenging that project in court, saying it doesn't fit with the FLUM's classification for the property.

It's not uncommon for opponents of a project to bring a lawsuit, but most of them, such as the ones recently for the Hine School by Eastern Market Metro or the West End library and fire station, don't succeeed. But Hine is seven stories at its highest point (more than 901 Monroe), yet its area on the map is orange.

It's not a log flume, but it's making a big splash

There is a lot of "moderate density" orange on the FLUM, including in many areas with some large apartment buildings. My block is orange, for instance, but behind my house is a large 9-story building; on the end of the block is one that's seven stories.

Heck, the Cairo apartment building, DC's tallest residential building, is 164 feet tall and in an orange zone on the FLUM. It sits among an area of mostly row houses, sure, but it's sure not moderate density.

Meanwhile, on many commercial corridors, the FLUM is a patchwork of color changes from one block to the next based on the prevailing land use right now. Again just in my neighborhood, one block of 17th Street which happens to have residential buildings (and tall ones) is colored residential and not commercial. Yet if they were ever redeveloped, ground-floor retail would be a sensible element to include, since there is retail across the street.

The same principles apply across DC. The FLUM is not really a vision for what neighborhoods could become; it's more a description of what they are now or how planners already anticipated they would change in 2006, when the map was made.

Paul Tummonds, an attorney for Goulston & Storrs which represents 901 Monroe, said, "The problem with the FLUM is that in large swaths, there was no forethought of future land use. It's more, 'This is what's there now.' I don't think there was a real planning perspective of what should be there in the future; it was a recitation of existing conditions."

If courts start taking the FLUM's "this broad area will probably be moderate density" as a stricter dictate that medium-density buildings are verboten, and if OP applies that to other proposals (as it may already be doing), that'd mean a big change for the ability to add housing on major corridors and near Metro stations, housing DC desperately needs.

Development


Prince George's is way behind on smart growth. Courts are helping it catch up.

For decades, Prince George's County has seen less commercial and high-density residential development than its peers in Montgomery, Arlington, and Fairfax, particularly around its 15 Metro stations. That could begin to change now that Maryland's highest court has smoothed the path for new development there.


Maryland court image from Shutterstock.

In a game-changing decision last month, the Maryland Court of Appeals ruled that the Prince George's County Council cannot deny approval of new development projects after the county's planning board approves them, except in extreme circumstances.

Previously, the council's ability to overrule planning board decisions made it nearly impossible to predict which developments might ultimately win approval, and which might never see the light of day.

With such uncertainty hanging over every proposal, developers stayed away. Now, with much less threat of a last-minute council veto, developers may become more likely to build quality projects in Prince George's.

Details of the court case

The court ruling states the council cannot overrule decisions of the planning board in development review matters unless those decisions lacked supporting evidence or were otherwise arbitrary, capricious, or illegal.

Maryland law gives the Prince George's County Planning Board broad authority to review and either approve or deny development proposals.

The county council, on the other hand, has more discrete, but nevertheless significant, powers under state law when it comes to development. It appoints members of the planning board, sets zoning, and rules on appeals from the planning board. But the council cannot, according to this court ruling, overrule the board's decisions on individual development cases, unless the board committed some sort of legal error.

Before this decision, the county council always purported to exercise "original jurisdiction" when it reviewed the planning board's decisions. This allowed the council to decide cases however it wanted, as long as there was evidence to support their decision.

The court, however, said that approach was incorrect. The county council does not have original jurisdiction. Rather, like an appeals court, the county council only has "appellate jurisdiction," meaning it has to assume the planning board's decision was correct, unless the board's decision was legally wrong or wholly lacked evidence.

In other words, the council can no longer simply take development review into its own hands and overrule the planning board's judgment whenever it wants.

Importantly, the court's decision does not eliminate public input from the process. The public still has a full right to argue before the planning board, and can still appeal to the council and then to the courts if they are aggrieved by the board's decision. However, appeals must be based on a legal error, not simple opposition to the project.

The CVS that started it all

This lawsuit arose out of a nearly 10-year effort to build a CVS in Adelphi.


A CVS. Not the one in Adelphi. Photo by Mike Mozart on Flickr.

The case began in 2004, when the county rezoned the property to allow retail. In 2011, a developer submitted a site plan for the CVS. The planning board approved the site plan, saying it met the rules of the retail zone.

No one appealed the planning board's decision, so everything seemed a go. Until the county council called up the case. They wanted changes, so they sent it back to the planning board with instructions to reconsider a few issues.

In 2012, the planning board approved the site plan again, this time with a few modifications in response to the council's requests. Again, no one appealed.

But once again, the council called up the case for review. This time, they denied the application altogether, after the council member in whose district the property lay spoke against it.

The council listed 14 reasons for its denial, none of which related to the original issues the council had first raised in its 2011 call up.

The developer sued, and three successive courts found the county council in the wrong.

A win for smart growth

A suburban-style CVS in Adelphi may not be the kind of development smart growth advocates usually hope for. But this case will ultimately make approval of genuine smart growth projects easier, by reducing the role of politics in development review.

Bottom line: No longer will developers have to work for years on a seemingly-approvable project, only to have the council yank the floor out from beneath them at the eleventh hour. Rather than leaving development up to the political whims of the county council, this court decision will hopefully allow objective law to rule Prince George's County development review.

A version of this post appeared on Prince George's Urbanist.

Public Safety


Mary Cheh wants to change the definition of assaulting a police officer. Here's why that's important.

On Tuesday, Ward 3 DC Councilmember Mary Cheh introduced a bill to reform some elements of criminal justice procedure. It would change the law around "assaulting a police officer," strengthen prosecutors' duty to turn over evidence to defendants, and other things. Why does Cheh feel these laws need reforming, and what will her bill do?


Image by chriswhite313 on YouTube.

First, a quick quiz: Which of the following would be considered "assaulting a police officer"?

  1. Punching a police officer in the face.
  2. Standing behind a gate holding it closed while an officer tries to push it open.
  3. Sitting in your car grabbing the steering wheel while an officer tries to drag you out of your car.
  4. Standing at a Metro station with your hands in your pockets, refusing to take them out of your pockets when an officer commands you to.
  5. Being a Metro passenger and having transit police drag you from your wheelchair and smash your face into the ground.

If you guessed just #1, you are wrong.

All of these are cases which happened in recent years and where people were charged with Assaulting a Police Officer (APO). The DC Court of Appeals upheld APO convictions in #1, #2, and #3. The US Attorney argued #4 was APO, but the appeals court said no. In #5, charges were dropped after the incident was caught on video.

This post revises and expands on one from 2011 on this issue, when incident #5, above, was in the news.

When assault means assault

#1 is obvious. If you do that you can be charged with a felony APO. DC law § 22-405, "Assault on member of police force, campus or university special police, or fire department," reads:

(c) A person who violates subsection (b) of this section and causes significant bodily injury to the law enforcement officer, or commits a violent act that creates a grave risk of causing significant bodily injury to the officer, shall be guilty of a felony and, upon conviction, shall be imprisoned not more than 10 years or fined not more than $10,000, or both.
But the law contains another kind of APO, a misdemeanor, which most of us would probably not consider "assaulting" a police officer. It's more like what we think of as "resisting arrest."
(b) Whoever without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer on account of, or while that law enforcement officer is engaged in the performance of his or her official duties shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned not more than 180 days or fined not more than $1,000, or both.
To be guilty of misdemeanor APO, someone might need to only "oppose" a law enforcement officer without cause. Courts have drawn a distinction between "passive" resistance, like slumping to the ground when being arrested in a protest, versus "active" resistance against the officer's actions. That's why the court overturned a conviction in Ava Howard v. United States (#4 in the quiz), where a trial court only found Howard guilty of refusing to sit down and take her hands out of her pockets.


Riot image from 1000 Words / Shutterstock.com.

When it's really just resisting arrest

But in other cases, the Court of Appeals has upheld APO convictions even without evidence of actions that the average person might consider "assault." In Dolson v. United States, Dolson ran from police and went to his own house, where he went inside a chain link fence. Dolson pushed the gate closed while the officer tried to push it open. The Court of Appeals upheld Dolson's conviction just based on this action, finding it constituted misdemeanor APO.

In Coghill v. United States, the court upheld a conviction for misdemeanor APO. Coghill was stopped by police while driving a car and refused to let police search it. He got out of the car at their instruction, but at some point got back in. Officers tried to drag him out of the car, but he braced himself against the floorboards and gripped the steering wheel.

The court held that it counts as "assaulting a police officer" just to be "actively interposing some obstacle that precluded the officer from questioning him or attempting to arrest him" and upheld Coghill's conviction.

Why does this matter?

If someone is convicted of misdemeanor APO, a future employer might look at their record and think they're quite a violent person if they assaulted a police officer. But they might have just panicked and resisted, without even touching or hitting an officer.

If the police respond to someone resisting arrest by savagely beating him or her on the ground, as has happened in some places, it can be very difficult to file a civil rights lawsuit with a conviction for "assaulting a police officer," even if it's again not really what most people consider "assaulting."

In one incident, New Jersey police beat a Rutgers student who was lying on the ground, all the while yelling "stop resisting." And in 2011, a shocking video showed transit police roughly dragging Dwight Harris, a homeless man in a wheelchair, out of his chair. They charged him with APO, but dropped the charges after the video surfaced.

It's important to keep in mind that some people really do hit police officers, and many who do should be prosecuted. Legally, "assault" also covers more than just physically punching; it includes spitting on someone or threatening to cause physical injury, for example.

Dolson, for instance, did end up hitting an officer in the face and breaking his nose later on, after the chain link fence shoving match. Neighbors say this was self-defense and the officer was choking Dolson. Without video, we can't really know.

If there hadn't been video of Dwight Harris, the charges might have stuck, too. This is the same pattern we've been seeing in high-profile cases around the country, where the presence of bystanders with camera phones belies a police claim of why they had to hit, shoot, or even kill someone.

(Disclosure: My wife works for the DC Public Defender Service. She did not work on any of the cases listed in this article, and nothing here represents the official opinion of the Public Defender Service.)

Cheh's bill makes APO into two offenses

Among other changes, Mary Cheh's bill deletes the "assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer" language. Instead, it creates two, separate misdemeanor offenses, both punishable to the same degree (up to $1,000 or six months in prison).

One, Assaulting a Police Officer, would get narrower. Instead of "assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer..." the law would read just "knowingly assaults a law enforcement officer." Someone accused of this would also have the right to a jury trial.

But the bill also adds language saying, "A person may not intentionally resist a lawful arrest; or prevent an individual who the person has reason to know is a law enforcement officer from making or attempting to make a lawful arrest or detention of another person."

It'd still be illegal, and a misdemeanor, to resist arrest. However, this would only apply while an officer is trying to make a "lawful arrest," not at any time whatsoever as under current law.

That's not all

APO and resisting arrest represent just one of the sections of the bill. Another would codify and expand prosecutors' duty to turn over evidence, especially evidence that could help the defendant. One section would make more information available to the Office of Police Complaints, which handles—you guessed it—complaints against police.

Another would set stricter standards for how police get eyewitnesses to make identifications, ensuring that if the witness is looking at a set of photos, for instance, the process doesn't unfairly bias the witness toward picking out the person the police have in mind.

This bill is just one of many that councilmembers introduced at the latest legislative session. Kenyan McDuffie (Ward 5) now chairs the judiciary committee and will decide whether to hold a hearing on the bill. If he does (and he ought to), prosecutors and/or police may oppose some provisions, and the legislative process will determine what, if anything, becomes law.

Education


Charter schools sue for more funding, and the result could be a setback for home rule

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.


Photo of judge with scale from Shutterstock.

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.

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