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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.


Supreme Court limits communities' control over their growth

You've probably heard a lot about the Supreme Court's decisions last week on the Voting Rights Act and same-sex marriage. But the court also decided a case on planning law which could make it more difficult for communities to negotiate public benefits during the process of land development.

Photo by Uncle D on Flickr.

Last Tuesday, the court released its decision in Koontz v. St. Johns River Water Management District, a planning law case from central Florida. The court ruled that two important tests must apply to a common technique called "monetary exactions."

An "exaction" is when a city or county requires a developer provide something of value, generally real estate or money, to mitigate negative impacts of a planned project in return for a permit. For example, a planning agency could require the developer of a residential subdivision to dedicate some land to protect waterways from runoff.

This case concerns whether a particular type of exaction is the same as taking of property, which the Fifth Amendment forbids without "just compensation."

The facts of the case

Koontz purchased 15 acres east of Orlando. Most of the property is wetlands. The St. Johns River Water Management District is responsible for preserving Florida's wetlands in that part of the state.

In the mid-1990s, Koontz applied for a permit to build on 3.7 acres of his property, including some wetlands, but offered to place a permanent conservation easement over the rest. The Water Management District said that wasn't enough. They wanted no net loss of wetlands.

They gave Koontz two options: he could pay to restore wetlands nearby, or he could limit his development to just 1 acre and conserve the remaining 14 acres. Koontz said no to both, and his permit for development was denied. He sued, and the case slowly made its way to the Supreme Court.

Takings and regulatory takings

Most takings involve eminent domain. For example, if the transportation department wanted to build a road across your property, you could sell it to them. If you don't want to sell, however, they can still take your land, but they have to pay you for it.

What if land isn't literally taken from a property owner, but the use is restricted so that the owner is giving up some property rights? That's called a "regulatory taking." It's when a regulation reduces the value of property.

The Supreme Court says that regulations become takings when they involve something physically occupying the property (like Loretto v. Teleprompter Manhattan, about installing wires on a building) or when they "go too far" (Pennsylvania Coal Co. v. Mahon. Unfortunately, it can be difficult to determine what is going too far.


While the court recognizes that some exactions are necessary, sometimes they count as takings. To decide this, the Supreme Court established criteria known as the Nollan and Dolan tests.

In Nollan v. California Coastal Commission (1987), the court ruled that there had to be an "essential nexus" (relationship) between the regulation's intent and the exaction.

The Nollans wanted a permit to build a new beachfront home in Ventura County. The California Coastal Commission required they dedicate a public easement for pedestrian access along the beach portion of their lot as a tradeoff for blocking the view of the water from the street.

The commission claimed that pedestrian access offset the loss of visual access, but because the Commission had an ongoing program to obtain beach easements, the court decided that the required easement did not really mitigate the impact of granting the building permit. Thus, it counted as a taking.

Later, in Dolan v. Tigard (1994), the court introduced a new test, "rough proportionality." Under that test, the exaction required by a regulation needed to be roughly proportional to the impact the regulation was addressing. The government must actually quantify that impact before the exaction, rather than simply make an argument after the fact.

Specifically, Dolan wanted to enlarge her hardware store. The city of Tigard, Oregon required her to dedicate land to build a greenway (for flood control) and a bike path across her property. The court ruled that while it the bike path may indeed offset any increase in traffic, Tigard had not actually done an analysis to show that the requirement was a reasonable way to mitigate the increased traffic.

As with the Nollan case, the court said that if the city were simply requiring Dolan to dedicate the land because the city needed it for the bike path, then the city should pay for the land. Without an analysis, the the city can't know whether the requirement is roughly proportional to the harm it seeks to mitigate.

While the exactions in Nollan and Dolan involved dedicating land for some purpose, exactions can also be monetary: regulations can require land owners to pay for something, rather than giving up land.

An example of a monetary exaction

Since this is fairly complex, let's take a look at an example.

A developer wants to build a 2 million square foot shopping center in an area with no transit. The two roads passing the site are both two lanes wide. In its analysis, the planning department finds that the shopping center will increase car traffic by 40%.

To get the development approved, the planning agency asks the developer to pay for stoplights at each of the shopping center's entrances, add turning lanes from the main road, build sidewalks, and rebuild the intersection, which planners expect will increase road capacity by 35%.

Those exactions pass both tests. There's a relationship between the development's impact (more car trips) and the exaction (more road capacity). And there's proportionality because the traffic is expected to increase by 40% and capacity will increase by 35%.

But if the developer had to dedicate land for a new school, a court could find that an unconstitutional taking because a shopping center doesn't add students, so there's no relationship between it and needing more schools.

Or, if the shopping center is on a parcel where the master plan showed an interchange, and the agency requires the developer to build the interchange without any analysis of its effect on traffic, the court would conclude that the city is requiring the interchange because of the master plan, not to mitigate the traffic from the shopping center.

What does Koontz mean for communities?

The court made two key rulings in Koontz. First, the Nollan and Dolan tests apply to monetary exactions just like they apply to land dedications. Secondly, the Nollan/Dolan tests apply even when the permit is denied (and therefore there is no taking).

The court did not actually rule on the merits of the case. Koontz's case will have to wend its way through a few more courtrooms before he can determine whether he deserves compensation from the Water Management District.

Since there is no longer any doubt that the Nollan/Dolan tests apply to monetary exactions, courts will have to consider whether there is a nexus between requiring Koontz to pay for offsetting his destruction of wetlands and the Water Management District's goal of protecting wetlands. There also has to be proportionality. Koontz was proposing to destroy about 2.7 acres of wetland. How many acres of wetland restoration would his exaction have funded?

More importantly, what does this ruling mean for other planning agencies and property owners? Justice Samuel Alito says it prevents local governments from overstepping their bounds:

By conditioning a building permit on the owner's deeding over a public right-of-way, for example, the government can pressure an owner into voluntarily giving up property for which the Fifth Amendment would otherwise require just compensation. So long as the building permit is more valuable than any just compensation the owner could hope to receive for the right-of-way, the owner is likely to accede to the government's demand, no matter how unreasonable. Extortionate demands of this sort frustrate the Fifth Amendment right to just compensation, and the unconstitutional conditions doctrine prohibits them.
Some in the planning community believe the Koontz decision will hamstring planners. Reading the excerpt above, it looks like if a planning agency demands an exaction that might not meet the tests even in the opening round of a negotiation, the agency could be opening itself up to litigation.

Because monetary exactions have not always been viewed through the perspective of Nollan and Dolan, some jurisdictions may have regarded them as a way to negotiate for improvements. Under Koontz, courts may regard some attempts to bargain with developers as asking too much.

What can local governments ask for? Could growth management programs, like those that require developers to pay to help preserve agricultural land, be at risk? Will Virginia's system of proffers, where developers offer dedications as part of the rezoning process, stand up to legal challenges?

The American Planning Association worries that this decision will make some agencies afraid to even propose exactions. The decision does not make it clear what kinds of exactions meet the Nollan and Dolan standard, or which payments might be grounds for takings lawsuits.

And what if permits are denied? Do local governments have to pay for exactions they never actually received? For takings that never occurred?

This decision does not do much to clear the waters. In fact, it has clouded them up significantly. Only time will tell whether this ruling opens local governments up to more litigation or whether it stops them from trying to regulate certain types of impacts altogether.


Judge denies injunction against closing schools

A federal judge has decided not to block DC from closing 15 public schools for next year. Yesterday, he denied a motion from grassroots organization Empower DC to grant a preliminary injunction against the closures.

Still closed River Terrace School surrounded by a tall fence.

Last week Empower DC and the plaintiffs, 3 parents with children enrolled in schools slated for closure and 2 ANC commissioners in the affected areas, argued before US District Judge James Boasberg that the closings discriminated racially, they discriminated against special needs students, and DCPS did not follow proper procedures in the decision process.

An injunction, which would block the government from moving forward with its plans, sets high standards before a judge will grant it. Boaseberg ultimately decided the case did not meet this bar. Despite losing the injunction, the lawsuit itself may continue to trial, but DCPS can go ahead with its school closures in the meantime.

Boasberg wrote,

The public-education landscape in the District of Columbia has changed. The advent of public charter schools, coupled with demographic shifts, has resulted in substantially decreased enrollment in certain neighborhoods over the last fifteen years.

Few topics, understandably, incite our passions more than the education of our children. Toss into the mix the future of neighborhood institutions, whose familiarity and history may resonate deeply, and quite a volatile brew emerges. It is thus hardly surprising that assorted constituencies may possess varied opinions on the wisdom and necessity of the Plan and Schools Chancellor Kaya Henderson's strategy.

In the case plaintiffs brought 2 claims. The ANC Commissioners assert process-related claims, while the guardians of children attending the closing schools submit civil-rights claims. They argue that the closings have a "disparate impact" on minorities and students with disabilities, and thus violate under Title VI, IDEA, the Americans with Disabilities Act, and the DC Human Rights Act.

Preliminary injunction requires meeting a high bar

A preliminary injunction, Boasberg wrote, is:

an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. A plaintiff seeking a preliminary injunction must establish:
  • he is likely to succeed on the merits
  • he is likely to suffer irreparable harm in the absence of preliminary relief,
  • the balance of equities tips in his favor
  • an injunction is in the public interest.
Boasberg said that even if letting the schools close would qualify as irreparable harm, that is not sufficient on its own. He found that the plaintiff "has failed to show a likelihood of success on the merits," and thus denied the motion "without analyzing the remaining factors."

ANC commissioners' claim fails on standing

Another obstacle was "standing," the legal principle that only someone harmed in certain ways can legally sue to block a change. Boasberg found standing to be "an insurmountable hurdle for the ANC Commissioners." ANC Commissioners, he found, only have legal standing in their capacity as private citizens, or to bring claims that the residents inside the ANC would also be legally allowed to bring.

Furthermore, he said, "an ANC or its Commissioners cannot simply rush to court every time they do not receive notice." As private citizens, the judge determined that they would personally suffer no detrimental effect since neither had children attending the affected schools, and thus did not have standing.

Parents get standing, but civil rights claims don't hold up

The plaintiffs who are parents did qualify for standing. Even though they only would be personally harmed by having their own children's schools closed, they allege in their civil rights claims that the whole school closing plan—beyond just any individual school closure—is discriminatory. Since DCPS gives the same rationale for closing all of the schools on the list, the parents therefore can challenge the plan in its entirety.

One of their civil rights claims is that the plan violates the 14th Amendment's Equal Protection clause. But, Boasberg said, just because the closings disproportionately impact African-American students does not create a civil rights violation without proof of intentional racial discrimination.

The Court acknowledges that, "On its face, the impact of the proposed closings treat students of color, those with disabilities and those who live in low income neighborhoods disproportionately and disparately." However, Boasberg points out, the District's under enrolled schools are in sections of the city that are almost exclusively African-American and Hispanic, school populations have decreased, and charters have thrived.

Therefore, "these patterns are "clearly explainable on grounds other than race. Indeed, it is explained by the single, race-neutral justification for the school closings that DCPS has offered throughout: closing under-enrolled schools will save resources that can then be spread throughout the school district."

Ultimately, according to Judge Boasberg, "this goal easily provides a rational basis for the school-closure decision." The judge applied a similar argument to the alleged ADA and IDEA violations for students with disabilities. As a result, the court concluded that the civil rights claims did not meet the standard of being likely to succeed on the merits.

DCPS pleased, while Empower DC will keep fighting

In an email to members following the decision, Empower DC Organizer Daneil Del Pielago wrote:

While Judge Boasberg ruled against the injunction to stop school closures this afternoon, our case is still alive and we will continue to fight. The Judge was wrong—there is significant racial bias in the school closings decision. We are fighting not only to have equal access to neighborhood public schools but to save the fabric of our communities that is threatened by displacement and gentrification. This is as much about who gets to live in DC ten years from now as it is about our schools.
On Saturday, May 25th, Empower DC will hold an "Education Campaign Meeting—Next Steps for Saving Our Schools" from 12-2 pm at First Rock Baptist Church, located on 4630 Alabama Avenue SE.

In a statement Chancellor Henderson said, "Judge Boasberg's opinion today allows DCPS to move forward with our critical work to improve all our schools and provide more resources across the District."


A copy of DC's laws is now free and open

After open data advocates pointed out how ridiculous it is that private companies have a copyright on the only publicly-available versions of DC's laws, DC Council General Counsel David Zvenyach helped make a public domain version and posted it online.

Photo from BoingBoing.

Tom MacWright explained the problem last month. DC, like many governments, contracts with a company (in this case LexisNexis) to compile all of the laws and keep them updated as they change. They post the laws online, but with licenses that restrict your rights to reuse the information, even though it's the public law.

Rather than ignoring the problem or issuing silly legal threats against people who were digitizing the code without permission, Zvenyach worked with the advocates to create a version of the code free of these restrictions.

Mike Masnick writes at TechDirt:

Part of the issue was that the only digital copy of the code that they had was the one given to them by West, and it contained a variety of extraneous information that was West's IP, including West logos on each section of the law (representing many thousands of copies). Zvenyach had Joshua Tauberer come by and spend a day removing every bit of West IP from the document and quickly releasing a downloadable copy of the DC Code with a CC0 public domain license.
Tom MacWright notes that this is just one step:
There are a few things that this isn't: it isn't the official copy of the code, and lawyers would be ill-advised to cite it alone. It isn't up-to-date—the council is fast-moving and this is just a snapshot. In time we'll fix these problems too.
What can people do with an open source set of DC laws? We can think of a lot of things, but the best part is when people do things we don't think of. Some commenters on MacWright's post wondered why this matters; can't you just find the code on the existing website? Yes, you can't link directly to a part of the code, and can only download pieces in Microsoft Word, but so what?

So what is all the ways someone could build better tools to make it easier to find the laws. Someone already made a tool that's for some purposes better than the official site. Or people could write automated programs to compare the laws on some topics, like yielding to pedestrians, to those in other states. (Hey, that would be a great idea! Has someone done that yet?)

Do you have ideas or want to implement some? MacWright is organizing a hackathon on Sunday. If you build something neat with the code, let us know and we'll show it off here.


Can the Anacostia Playhouse escape from zoning hell?

Some District leaders are discovering that there really is a serious cost to having an outdated zoning code. The Anacostia Playhouse might face up to 6 months of delays because of silly parking regulations, and there's not much the DC Council can rightfully do about it.

Image from the Anacostia Playhouse.

The City Paper reported last week that the playhouse, which expected to open in April, suddenly discovered its parking didn't count toward its parking requirement. That's because the parking is across an alley from the theater but the law says that required parking spaces have to be on the same lot as the building.

This is a stupid rule, and the Board of Zoning Adjustment will almost certainly grant an exception. But that takes months, and meanwhile a number of productions have already contracted to use the playhouse.

Councilmembers Marion Barry and Tommy Wells introduced emergency legislation to help the Playhouse move forward. It's a worthy impulse, but the council doesn't have power over zoning, and finding a way to grant an exception in this one case could set a dangerous precedent for others.

DC needs to fix parking minimums, and quick

First of all, this clearly shows why we need to reform the zoning code. It also shows the consequences of overly restrictive rules.

Many people like rules that force almost any development to request zoning relief, because it gives residents a chance to speak up at a hearing or for neighborhood groups to ask for changes or concessions. However, such a process also forces property owners to hire lawyers and spend months to get through these hearings.

Perversely, that is a lot easier for the big project which will have a greater impact on the neighborhood than for a smaller property owner, or in this case, a nonprofit opening with city financial assistance in an area which has struggled to attract many types of businesses.

The council can't, and shouldn't, override

Okay, but until we fix zoning, does the Playhouse have to suffer? Wells (ward 6) and Barry (ward 8) introduced emergency legislation to let the project move ahead, but as the City Paper also reports, Council Chairman Phil Mendelson refused to put it on the calendar. Is Mendelson being a scrooge? Not really.

That's because the DC Council does not have power over zoning. Before Home Rule in 1974, the federal government controlled all zoning. Congress didn't entirely trust DC's elected representatives to make land use choices, so it gave that power to the Zoning Commission, a 5-member board with 3 people appointed by the mayor and confirmed by the council, and 2 federal representatives.

The DC Council passes plans, like the Comprehensive Plan and individual Small Area Plans, which the Zoning Commission is supposed to follow. But the Zoning Commission actually decides whether to rezone any property or change the regulations. The BZA is a second hybrid federal-local board which rules on individual variances and exceptions based on the zoning code.

The pending zoning update doesn't need any approval from the council—just the Zoning Commission. While some councilmembers (like Muriel Bowser) have nonetheless been catering to residents who oppose the update, wiser councilmembers have been staying out of this contentious issue.

Barry's and Wells' original bill would allow DC's Department of Consumer and Regulatory Affairs (DCRA) to give the Playhouse permits to move ahead, but only temporarily. If the Playhouse then gets the zoning relief it needs, it can keep moving ahead; if for some reason it doesn't, it would have wasted a lot of time. But since the ANC, the Office of Planning, and basically everyone else supports the Playhouse's petition, they'd probably be okay.

Override this time, and what's next?

Still, the bill flirts with a dangerous precedent: directing DC agencies to partly disregard zoning. The Zoning Commission has no police force to enforce its orders. It relies on DCRA to deny permits that don't have zoning relief. We don't want to go down a slippery slope where the Council passes laws telling DCRA to grant permits for projects that violate zoning.

It could work the other way as well. Residents angry about a proposed apartment building at Connecticut and Military asked Councilmember Mary Cheh (ward 3) to intervene and even pass an emergency law directing DCRA to block the project, at least temporarily, until there can be more community meetings. Cheh rightly pointed out that she doesn't have that power.

In one of her responses to neighbors, Cheh wrote,

The Council has no authority over the zoning code: the Home Rule Act defined the Council's legislative authority, but made it clear that the Zoning Commission has full authority over zoning matters. The issue was addressed directly by the Court of Appeals of the District of Columbia, who concluded that "the Zoning Commission is the exclusive agency vested with power to enact zoning regulations." ...

You ask that I petition the Mayor to direct the agencies not to issue any more permits until the concerns are addressed. Again, because there is no discretion in the issuance of permits, an intentional delay could open the District up to liability for takings and discrimination. The law simply does not allow the remedy that you seek.

If the council had passed Wells' and Barry's Anacostia Playhouse bill and someone had wanted to sue, there's a good chance the DC Court of Appeals would have struck it down. If they found a reason to uphold it, that would be even worse, because then it would create an opportunity for council meddling in zoning cases in the future.

This bill is probably safe because it doesn't seem like anyone actually has a problem with the project, but it's not a good idea to possibly set a dangerous precedent just because this specific case is uncontroversial.

There might be other fixes

This case does point to a flaw in the zoning process, in addition to the silly parking rules. Perhaps there should be a way for a property owner to petition for an expedited hearing when a longer delay would cause some hardship. Other processes include such shortcuts.

In fact, the zoning update doesn't do that, but it does allow the BZA to add a "consent calendar" where they can move through uncontroversial matters much more quickly. Perhaps that can help as well for the next Anacostia Playhouse.

And we need to get rid of parking minimums. This case shows how, while stricter rules can sometimes prevent bad projects, they also can at times interfere with good ones. Zoning restrictions have a cost.

As for the Playhouse, apparently the problem is that the building and its parking aren't on the same tax lot. A public alley separates the two. The DC Council does have complete control over tax lots and public alleys, unlike with zoning. Perhaps an emergency bill could temporarily close the alley, transfer the alley property to the Playhouse with a permanent public easement to let the public continue to cross it, join the two into one tax lot, then specify that everything goes back to the status quo ante, say, one year from now? Then DCRA can declare that the property meets current zoning and grant permits without messing with zoning at all.

That's still messy and an awkward thing to do by emergency legislation, but to me it's less dangerous than having DCRA issue a permit for a property that doesn't meet zoning. Or perhaps the clever attorneys in the council and DCRA could come up with another way to make the property conform to zoning while we wait for the slower process of making zoning conform to common sense and the needs of our city today.


DC's laws aren't yours

There's a deep, persistent, and crippling problem with the laws of DC: you can't download a copy.

Photo by on Flickr.

Due to a weak contract and a variety of legal techniques, it's not possible to create better ways to read the law or download it for offline access, or even to try to do better than the crummy online portal that serves as its official source.

It also means that it's hard to discuss legal matters online, since you can't link to specific laws—this article about David Gregory has had a broken link to the law in question since 40 minutes after it was posted, months ago.

How the law became scarce

How did this happen? It's a tricky answer of access, ownership, and contracts.

The DC Council writes and publishes bills, which are additions and subtractions to the law itself. The law is compiled by a contractorpreviously WestLaw, now LexisNexis. So the contractor holds a complete copy of the law.

The contractor publishes a few different versions of the "compiled law," each of which with restrictions:

Unfortunately, courts have upheld these types of restrictions in the CD and website Terms of Service. They get further support from the wire fraud statute, which prosecutors used in the Aaron Swartz case to escalate charges to felonies. And in all of these versions, the contractor tries to claim copyright through compilation copyright and additional content like citations and prefaces.

In the face of these strong guards against freeing the law, the most reasonable avenue for creating a freely-accessible copy is buying and scanning the printed copies, which is exactly what some citizens are starting to do.

Why this matters

This has effects in many places. Advocacy organizations pushing for changes can't reference laws by linking to them, so they have to copy & paste relevant sections and hope that people trust their versions. Of course, when laws go out of date, these copy and pasted guides stop working.

The goal of better educating the police about laws (like the rules of the road for bicyclists) is harder. Police can't have an offline copy of the law for quick access in the field, and the online version is near-useless on smartphones.

It's also locking the DC Council into using a contractor for this purpose. DC's contracts with WestLaw and LexisNexis aren't strong enough to force the contractors to provide them with a copyright-cleaned version, so the council itself doesn't have a compiled copy of the law that they can publish by themselves if they want to take this in-house.

What's Next

This is a hard problem to unwrap and fix, and there are multiple efforts afoot.

Waldo Jaquith is building The State Decoded, an open-source system for storing and displaying state codes. It's already deployed with Virginia's laws. Public is working on the long task of scanning and digitizing the print edition. And a group of residents are encouraging the council to write a better contract than the current one with LexisNexis, which doesn't provide for copyright-free copies.

Meanwhile, it'll be months or years until it's possible to download DC's laws onto your iPhone and clarify whether it is, indeed, legal to bike on a sidewalk (sometimes) or drink in public space (never).

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