1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) D.C. ASSOCATION OF CHARTERED ) PUBLIC SCHOOLS, et al. , ) ) Plaintiffs, ) ) v. ) Case No. 14-cv-1293 (TSC) ) DISTRICT OF COLUMBIA, et al. , ) ) Defendants. ) )
MEMORANDUM OPINION Plaintiffs allege that the Distr ict of Columbia has provided in equitable funding to the District’s public charter school s in violation of the School Re form Act and the Home Rule Act. In October 2015, this court grante d in part Defen dants’ motion to dismiss. (ECF No. 31). Plaintiffs have moved for summ ary judgment on their remaining t wo claims, and Defendants cross-moved for summary judgment. (ECF Nos. 43, 46 (“Defs. Mem .”)). For the reasons stated herein, Plaintiffs’ motion is DENI ED and Defendants’ cross-moti on is GRANTED.
I. BACKGROUND A. Statutory Framework and the Di strict’s School Funding Practi ces This case fundamentally involves the sui generis nature of Congress’s and the District’s complex and co-existing authority t o legislate on local issues within the District. Article I, Section 8 of the U.S. Constitution (“the District Clause”) vest s Congress with the authority to “exercise exclusive Legislation i n all Cases whatsoever” over t he District of C olumbia. U.S. Const. art. I, § 8, cl. 17. For mo st of its history, Congress exercised this legisl ative authority and2 governed the District directly. 1 In 1973, in order to “relieve Congress of the burden of legislating upon essentially local District matters,” Congress passed the District of Columbia Self-Government and Governmental R eorganization Act (the “Home Rule Act”), which created the D.C. Council and “delegate[ d] certain legislative powers to the [District].” Pub. L. No. 93- 198, 87 Stat. 774 (1973) (codified as amended at D.C. Code § 1- 201.01 et seq. ). The D.C. Council may act within its delegated legislative autho rity on matters pertaining to the District, and Congress ha s thirty days to review each ac t of the Council, during which time it may disapprove the legislati on by passing a joint resolution . D.C. Code § 1-206.02(c)(1). Congress must also affirmativel y approve or reject the District ’s budget requests. Id. § 1-204.46. The Home Rule Act further provid es that the Council “shall have no authority to . . . [e]nact any act, or enact any act to amend or r epeal any Act of Congress, w hich . . . is not restricted in its application exclusively in or to the District.” Id. § 1-206.02(a)(3). The District argues that this clause means that Congress in f act delegated authority to amend or repeal acts of Congress that
do apply exclusively to the Distri ct. Congress may also “enact[] legislation for the District on any subject, whether within or with out the scope of legislative power granted to the Council by this chapter, including legis lation to amend or repeal any law in force in the District prior to or after enactment of this chap ter and any act passed by the Counc il.” Id. § 1-206.01. This case centers on the D.C . School Reform Act of 1995 (the “S chool Reform Act” or “Act”), which overhauled the Dis trict’s public education system by establishing public charter schools and further requiring the creation of a uniform formula to annually fund both charter schools and D.C. Public Schools (“DCPS”). Pub. L. No. 104–134, 110 Stat. 1321 (1996)

1 For a thorough overview of the hi story of the District’s crea tion and governance, see Adams v. Clinton , 90 F. Supp. 2d 35 (D.D.C. 2000).3 (codified as amended at D.C. Code § 38-1800.01 et seq. ). Section 2401, at issue here, is titled “Annual Budgets for Schools,” and directs that the formula must account for the amount of “[t]he annual payment to the Boa rd of Education for the operati ng expenses of [DCPS]” and “[t]he annual payment to each public charter school for the ope rating expenses of each public charter school.” D.C. Code § 38-1804.01(b)(1)(A)–(B). Congres s left the key term “operating expenses” undefined in the sta tute, and, despite subsequent ame ndments to the Act, has never defined the term. The statute p rovides only that the Mayor and Council, in consultation with the Board of Education and the Superi ntendent, shall establish the formula. Id. § 38-1804.01(b)(1). The District must then calculate the annual formula allotment f or DCPS and each public charter school by multiplying a uniform dollar amount by the number of students within DCPS and for each charter school. Id. § 38-1804.01(b)(2). Pursuant to Congress’s command in t he School Reform Act, the Di strict enacted the Uniform Per Student Funding F ormula (“UPSFF”). D.C. Law 12-207 (1998) (codified at D.C. Code § 38-2901 et seq. ). Under the UPSFF, the formula“appl[ies] only to operating b udget appropriations from the Distric t of Columbia General Fund for D CPS and for Public Charter Schools” and does “not apply to fun ds from federal or other rev enue sources, or to funds appropriated to other agencies and funds of the District govern ment.” D.C. Code § 38-2902(b). For nearly two decades, the UPSFF has used a “foundation level” amount, which is the District’s determination of the cost of provi ding education to each studen t. Id. §§ 38-2903, 38-2901(5). The foundation level is adjuste d based on grade level and other student characteristics, and is multiplied by the number of student s in DCPS or each charter sc hool to determine the total UPSFF appropriation for each year. See id. §§ 38-2902(a), 38-2904, 38-2905, 38-2905.01, 38- 2906(a)–(b).4 Under District law, DCPS is an executive agency. Id. § 38-172. DCPS receives its annual UPSFF appropriation, which accounts for central administ ration and support costs, in a yearly lump sum during the city ’s budget process in October. Id. § 38-2906(a). While a DCPS school’s enrollment may change lat er in the year, the formula a ppropriation amount remains the

same. Id. §§ 38-2906(a), 38-1804.03. The Distric t points out that “[t]h e DCPS operating budget is, however, subject to reprogram ming, the same as all other Di strict agencies [and] likewise, Anti-Deficiency Act requirement s prohibit DCPS from carrying ov er operating funds from year to year.” (Defs. Mem. at 15 ( citing D.C. Code §§ 47-365, 1-204 .46)). “Public charter schools are not subject to th ese constraints.” ( Id. at 15 n.22). While traditi onal D.C. public schools receive an annual payment, the D istrict pays public charter sch ools their UPSFF appropriations quarterly, in July, October, Ja nuary, and April. D.C. Code §§ 38-2906.02, 38-1804.03. The first payment is based on each school’s projected enrollment, while t he second and third are based on the school’s October enrollment report, and the final payment i s based on the results of the annual enrollment audit. Id. § 38-2906.02(b)(1)–(4). S eparate from these payments, charter schools may receive supplemental a llocations if they enroll or identify students entitled to special education or English language learner services after the audit. Id. § 38-2906.02(d)(1)(A). According to the District, such a djustments are not available t o DCPS. ( See Defs. Mem. at 16). The District also regularly pa ys out supplemental and/or non-fo rmula appropriations to DCPS and public charter schools, r elated to increases or decrea ses in grant funding or other budgetary needs. In 2012, for examp le, the District enacted a supplemental appropriations bill that provided over $27 million to DCPS to cover budget shortfal ls. (ECF No. 43-2 (Plaintiffs’ Statement of Material Undisput ed Facts (“PSMF”)) ¶¶ 77–80; Pls. Ex. 11 at D-2; Pls. Ex. 3 at D19; Pls. Ex. 5 at 2). In 2014, DCPS received a supplemental ap propriation of nearly $10 million,5 and in 2015 it received nearly $7 million. (PSMF ¶¶ 81–86; Pls . Ex. 11 at D-22; Pls. Ex. 21 at D-28; Pls. Ex. 15 at E-1; Pls. Ex. 26 at D-14). The District’s 2013 revised budget request increased funding to charter sc hools and DCPS by $2 million, wi th the funding to public charter schools being distributed “equa lly” instead of under the UPSFF. See D.C. Law 20-14, § 2. The District also provided several e xamples of non-formula appropri ations to individual charter schools between 2011 and 2015. ( See Defs. Mem. at 17–18 (listi ng appropriations)). The District also submitted examp les of non-formula expenditure s and services provided to DCPS and charter schools, i ncluding on-site school nurses up on request from the D.C. Department of Health, crossing gua rds provided by the D.C. Depa rtment of Transportation near DCPS and charter schools, secu rity officers provided by the Metropolitan Police Department, and mental health services thr ough the D.C. Department of Behav ioral Health. (Defs. Mem. at 18–19). Plaintiffs do not challenge any of these non-formula e xpenditures. The District divides facilities maintenance costs be tween DCPS, which pays for custo dial teams to perform routine maintenance out of its formula appropriation, and the D.C. Depa rtment of General Services (“DGS”), which provides repair a nd maintenance services for all District-owned properties, including those used by DCPS, t hrough appropriations not includ ed in the formula calculation. ( See Defs. Ex. 10; D.C. Code § 10-551.02(4)). Plaintiffs challenge these appropriations to DGS. The District also pays each c harter school $3,100 per student annually for facilities expenses, apart from the formula appropr iation, D.C. Code § 38-2908(b-2)( 2), and Plaintiffs do not challenge these non-formul a appropriations. Finally, the District c ontributes to the DC PS Teachers’ Retirem ent Fund, as first required by Congress in the D.C. Retirement Reform Act of 1979. Pub. L. No. 96-122, § 123, 93 Stat. 866, 872–75. Since 1997, the District ha s paid the entirety of these funds to the Retirement Fund6 as part of its annual budget proce ss, which is separate from th e formula calculations. See D.C. Law 12-152 (1998); D.C. Code § 1- 901.01; Balanced Budget Act of 1997, Pub. L. No. 105-33, § 11002, 111 Stat. 251, 715–16. B. Procedural History Plaintiffs—two District charte r schools and an a ssociation that represents 39 District charter schools—brought suit in July 2014, alleging that the Di strict has creatively circumvented the funding formula described a bove in order to supplement DCPS ’s budget, to the detriment of charter schools. On October 1, 2015, in a written Opinion, thi s court granted Defendants’ motion to dismiss Plaintiffs’ S upremacy Clause claim and denied the motion with respect to the Home Rule Act and School Reform Act claims.
II. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate where there is no genuine dispu te of any material fact and the movant is entitled to j udgment as a matter of law. Fed . R. Civ. P. 56(a); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322–23 (1986); George v. Leavitt , 407 F.3d 405, 410 (D.C. Cir. 2005). In determining whether a genu ine issue of material fact exists, the court must view all facts in the light most fa vorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587–88 (1986) (citing United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962)). The movant must re ly on materials in the rec ord to demonstrate the absence of any genuinely disputed issues of material fact. Fed. R. Civ. P . 56(c); Celotex Corp. , 477 U.S. at 323. The nonmoving party, in response , must present evidence b eyond the pleadings of specific facts showing that there is a genuine issue for trial. Celotex Corp. , 477 U.S. at 324. A fact is material if “a dispute over it might affect the outcome of a su it,” and an issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”7 Holcomb v. Powell , 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby,
Inc. , 477 U.S. 242, 248 (1986)) (internal quotation marks omitted). The non-movant is “required to provide evidence that would pe rmit a reasonable jury to find ” in his or her favor. Laningham v. U.S. Navy , 813 F.2d 1236, 1242 (D.C. Cir. 1987) (citations omitted).
III. DISCUSSION Plaintiffs challenge the Dist rict’s educational funding on two grounds. First, in Count I of their Complaint, they allege t hat the District has exceeded its authority under the Home Rule Act by enacting legislation and making budgetary appropriations that conflict with and contravene the School Reform Ac t. (ECF No. 1 (“Compl.”) ¶¶ 79– 84). Second, in Count III, Plaintiffs allege that the Dis trict’s funding enactments and pr actices violate the School Reform Act’s requirement to apply a uniform funding formula. ( Id. ¶¶ 90–92). The parties have filed cross-motions for summary judgm ent on both of these claims, and neither party ha s identified genuine disputes regarding any mat erial fact. As this court no ted in its prior Opinion, the two claims rise and fall together, a nd there are two issues that wo uld aid the court’s analysis: first, whether “Congress left the Counc il with the dis cretion to take actions in additi on to or outside of the funding formula” such that the District’s actions do not vi olate the School Reform Act; and second, whether relevant provision s of the Act “ha[ve] been ame nded or repealed by Council enactments (through Congressional a cquiescence or otherwise).” (ECF No. 32 (“MTD Op.”) at 22–23). A. Compliance with the School Reform Act The court first considers whether the District’s practices conf lict with the text of the School Reform Act—i.e., whether t he Act restricts the District’ s ability to pr ovide any funding, either directly or indirectl y, to DCPS outside of the funding f ormula. In its prior Opinion, this8 court concluded that “[a] facial reading of the text of the Sch ool Reform Act . . . leaves little room to doubt that Congress intende d for the District to use th e uniform funding formula, and did not anticipate th e Council amending or repealing it.” ( Id. at 17). However, this court also noted that “Congress thus did not i ntend to take over the D.C. public school system or withdraw the authority of local official s to run that system,” but inste ad “set up the foundation of a system which it hoped the District c ould then build upon to improve ou tcomes in local public education.” ( Id. at 22). The court now attempts to reconcile these conclusions and determine whether the Distri ct has built on the f oundation Congress creat ed, or discarded it. Plaintiffs allege that the Distr ict’s budget appropriations to charter schools and DCPS are not based on an equal funding formu la in violatio n of section 2 401 of the School Reform Act. More specifically, Plaintiffs tak e issue with three non-formula sources of funds for DCPS— (1) the District’s provision of supplemental appropriations to cover budget shortfalls, (2) the District’s contributions to the Teachers’ Retirement Fund, and (3) the District’s appropriations to DGS. Plaintiffs also take issue with the methodology used to c ount students when calculating formula payments. The District does not dispute that it provid es funding in these ways, but argues that the funding does not viol ate the School Reform Act. 1. Non-Formula Budget Appropriations Plaintiffs first argue that th e District’s appropriations to DG S and the Teachers’ Retirement Fund, and any supplemental appropriations made direc tly to DCPS, violate the School Reform Act by circumventi ng the formula calculation. Pl aintiffs’ interpretation of the School Reform Act appears to be qu ite narrow; they contend (1) that the Act provides the exclusive means of funding all costs associated with both DCPS and charter schools; (2) that the District may not spend funds on public schools or charter schoo ls apart from the annual formula9 calculation; and (3) that once the annual formula payment is ca lculated, no other payments can be made (apart from certain lim ited exceptions) to charter scho ols or DCPS, regardless of the need or circumstance. The Distri ct argues that the School Refo rm Act requires the use of a formula to set a certain bas eline per-pupil budget, but that no thing in the text or legislative history prohibits other funds f rom being spent on education. In light of Congress’s goal of cre ating the Home Rule Act to “r elieve Congress of the burden of legislating upon essentia lly local District matters,” Pub. L. No. 93-198, § 102, 87 Stat. 774 at 777, Plaintiffs’ interpreta tion would be a rather extrem e restriction of the District’s ability to manage its budget process withrespect to any and all educat ional spending. 2
The relevant section of the School Reform Act provides in part:
SEC. 2401. ANNUAL BUDG ETS FOR SCHOOLS. (a) In General. For fiscal year 1997 and for each subsequent fiscal year, the Mayor shall make annual payments from the general fund of the Distric t of Columbia in accordance with the formula est ablished under subsection (b). (b) Formula. (1) In General. The Mayor and the District of Columbia Counci l, in consultation with the Board of Education and the Superintendent , shall establish not later than 90 days after enactment of this Act, a formula to determine the amount of— (A) the annual payment to the Board of Education for the operat ing expenses of the District of Col umbia public schools, which for purposes of this paragraph includes the opera ting expenses of the Board of Education and the Office of the S uperintendent; and (B) the annual payment to each public charter school for the op erating

2 Plaintiffs undermine their own argument regarding the rigidit y of the formula calculation. They argue that the statute’s us e of the words “the annual paym ent” mandates a singular formula calculation, and Plaintiffs’ couns el stated at oral argument th at “Congress intended there should be no other” exceptions beyond the two expressly referenced in the Act. However, when asked by the court about unexpected or emergency budget needs, Plaint iffs appeared to invent a new exception in the statute, respondi ng that the District could si mply make supplemental payments apart from “the annual payment” and “simply follow the formula. ” (ECF No. 56 (“Tr.”) at 6:21– 7:3). Counsel did not provide the a uthority for this new excep tion, and the court is not aware of any. Instead, it appears that P laintiffs partially conceded th at the Act must provide some flexibility for the District t o sufficiently manage and fund it s educational system.10 expenses of each public charter school. (2) Formula calculation. Except as provided in paragraph (3), the amount of the annual payment under paragra ph (1) shall be calculated by m ultiplying a uniform dollar amount used in the formula established under suc h paragraph by— (A) the number of students calc ulated under section 2402 that a re enrolled at District of Columbia public schools, in the case of the paym ent under paragraph (1)(A); or (B) the number of students calc ulated under section 2402 that a re enrolled at each public charter school, in the case of a payment under p aragraph (1)(B). Pub. L. No. 104–134, § 2401(a)–(b), 110 Stat. 1321 at 136–37; see also D.C. Code § 38- 1804.01(a)–(b). The text references “annual payments” that are “in accordance with the formula.” The statute does not , however, contain language indi cating that these payments must be the only payments made to DCPS or chart er schools. Nonetheless, Plaint iffs argue that Congress’s intent to restrict th e District’s ability to issue n on-formula appropriations can be implied from the language of the statute. The School Reform Ac t requires the Mayor and Council to establish a formula to determine “ the annual payment” to the B oard of Education and for each public charter school “for the operating expenses” of DCPS and the charter schools. Plaintiffs argue that Congress’s use of the definite article “the” before the words “annual payment” and “operating expenses ” must be interpreted to be lim iting and singular, such that the District may only make one annual formula appropriation to DCPS and each charter school, which must cover all expenses a ssociated with operating the sch ools. (ECF No. 43-1 (“Pls. Mem.”) at 20–21 (citing Noel Canning v. NLRB , 705 F.3d 490, 500 (D.C. Cir. 2013) and Am.
Bus. Ass’n v. Slater , 231 F.3d 1, 4–5 (D.C. Cir. 2000))). In the court’s view, Congress’s choice of the article “the” can not bear the weight of so much meaning. Section 2401(a) of t he School Reform Act clearlyprovides that the District must make “annual payments from the general fund.” Defendants argue that Congress’s references to11 “ the annual payment” in the followi ng subsection, section 2401(b), simply refer to the annual payments referenced in the preceding section of the statute, se ction 2401(a), instead of operating substantively as a limitati on on funding. Defendants’ construc tion appears to be the better reading of the statutory langua ge. Nowhere in the School Refor m Act did Congress specify that the annual formula payment must be the only appropriation made, nor does the language even suggest that other payments may not be made as necessary. The court agrees with the District that nothing more can or should be read into the choice to use “the” before “annual payment” in sections 2401(b)(1)(A) and (B) of the School Reform Act, other than that the formula provided for in section 2401(b) is to be used to calculate the “annual p ayments” referenced in section 2401(a). Plaintiffs additionally point out that section 2401(b)(3) provi des for two “exceptions,” and specifies that the “annual payment” may be adjusted based o n the students’ g rade levels and the costs of serving students w ith special needs or those who h ave not met certain literacy standards. Pub. L. No. 104–134, § 2401( b)(3), 110 Stat. 1321 a t 137. Plaintiffs contend that these exceptions are the only devi ations from the normal formul a that the District is permitted to make under the statute. But th is reading constrains the plain text. As provided in section 2401(b)(2), the formula is t o be based on a “uniform dollar amo unt” per student. Pub. L. No. 104–134, § 2401(b)(2), 110 Stat. 13 21 at 137. When section 240 1(b)(3) is read in the context of this requirement—as it must be , given that the subsection begin s with “[n]otwithstanding [section 2401(b)(2)]”—the fact tha t the Act provides for the ab ility to modify the per-student dollar amount based on individual student characteristics, suchas grade level, appears to indicate nothing at all as to whether the f ormula appropriation must be the exclusive means of funding the District’s educational system.12 Plaintiffs further assert that “[h]ad Congress intended to allo w Defendants to fund some operating expenses through the funding formula and others outsi de the formula, it could have left the term ‘operating expenses’ unqualified and open to interpret ation.” (Pls. Mem. at 21). However, the Act does leave the term undefined, indicati ng that this was Congress’s i ntent. The court therefore agrees with the D istrict that the School Reform Act’s express language does not require a single exclusive appr opriation to either DCPS or charter schools based on the formula. The court now turns to the leg islative history to discern wheth er Congress intended the funding formula to be the exclusi ve mechanism for funding DCPS and charter schools. The Senate Report accompanying the S chool Reform Act explained that “changes [to the District’s schools] must come from the local community, with every part, i ncluding the Congress, pitching in. What the Congress can do, and has a responsibility to do, is to create a structure within which change and reform will take place.” S. Rep. No. 104-144, at 6 (1995); see also H.R. Rep. No. 104-455, at 146 (1996) (restating is sues addressed by the Schoo l Reform Act). The House Report accompanying the District of Columbia Appropriations Bil l of 1997 explained what costs it envisioned including in the f unding formula. H.R. Rep. No. 104-689, at 50 (1996). 3 Congress wrote that “the funding formula. . . must include the total co sts of the operations of the Board of Education itself, all central adm inistration and central office costs, including those applicable to the Superintendent of Schools , all facilities operating costs, including utilities, all local education agency evaluation, assessment , and monitoring costs, and any ot her direct or indirect costs normally incurred by, or allocated to, schools under the contro l of the Board of Education and

3 Defendants argue that the court should not consider this Hous e Report because it was issued after the School Reform Act wa s passed, and thus is not a part of the Act’s “legi slative history.” However, the House Report wa s written by the same 104th Congres s that passed the School Reform Act and is otherwise relevant, as it accompanies the D.C . Appropriations Bill approving the District’s funding formula.13 the overall public school system.” Id . As with the Senate and House Reports accompanying the School Reform Act itself, this H ouse Report did not specify whe ther the funding formula is to be the exclusive means of funding DCPS or charter s chools or what the full scop e of the “operating expenses” that must be incl uded in the funding formula should b e. Both parties cherry pick and choos e stray language from this le gislative history to support their position. For example, Plaintiffs note that the 1996 House Report stated that “the funding formula . . . must include . . . all facilities operating costs . . . and any other direct or indirect costs,” id. , which could suggest that th e budget allocations to DGS and to the Teachers’ Retirement Fund should be included in the funding formula calculation. However, this same paragraph describes these requ irements as applying to the “annual payments derived from per pupil allocations to both public charter schools and public schools,” id. (emphasis added), which may a lso plausibly suggest that Congress envisioned other, non-pe r pupil allocations, and was d istinguishing from those. Similarly, Congress appeared to sug gest that contributions to t he Teachers’ Retirement Funds and allocations spent on “school repairs” are distinct from the funding formula, as the House Report li sted the total “operating expens es” for the “Board of Education (Public Schools)” on a separate line from “Schools Re pairs” and “Teachers’ Retirement System” allocations. Id. at 48. That Congress separated these line items from DCPS operating expenses in the Hou se Report offers some supportfor the District’s practice of allocating those funds outside of the formula. The District also offers statuto ry and historical context for t hese non-formula appropriations. First, the Dist rict notes that its separate ap propriations to DGS for facilities maintenance and repai r of DCPS buildings stem from t he School Reform Act14 itself, which required that DCPS contract with the federal Gove rnment Services Administration for “technical a ssistance and related services” in the “repair and improvement” of DCPS school buildings. Within twelve months af ter the date of the enactment of the Act, DCPS was t o create or designate another a gency or entity to “assume authority and responsibilit y for the repair and improve ment, and maintenance and management, of [DCPS buildings].” Pub. L. No. 104-134, § 2 550–52, 110 Stat. 1321 at 141–43. These facilities costs de scribed in the School Refo rm Act are different from day-to-day maintenance of DCPS fa cilities, which the District c onsiders to be operating expenses within the meaning of t he Act and which are included i n the funding formula. (Defs. Ex. 10 ¶¶ 4–6); see also DCPS School Budget Guide, Custodial Guidance. 4 The District thus argues that Congr ess intended the annual amounts allocated to DGS to fall outside of the funding formula cal culation and to be separate f rom DCPS’s “operating expenses.” With respect to the non-formula c ontributions to the Teachers’ Retirement Fund, the District argues that it has ma de such contributions to the reti rement fund outside of direct budget allocations to DCPS for decades, see Pub. L. No. 96-122, § 123, 93 Stat. 866, 872–75 (1997) (establishing D.C. Teachers’ Ret irement Fund), and that at the time the School Reform Act was passed, such contributions were made to and managed by the D.C. Retirement Board. (ECF No. 45 (“Council Amicus Br.”) at 16–17) . There is little evidence that Congress intended for the District to alter its budget prac tices and re-route these funds through the funding formula, especially given that the Hous e Report to the D.C. Appropriatio ns Bill of 1997, which approved

4 Custodial Guidance , DCPS FY2017 School Budget Guide, http://www.dcpsschoolbudgetguide .com/changes/custodial.html.15 the District’s first funding for mula, listed Teachers’ Retireme nt Fund contributions separately from the DCPS operating costs. M oreover, the House Report stat ed that the funding formula must contain “any other di rect or indirect costs normally incurred by, or allocated to ” DCPS, H.R. Rep. No. 104-689, at 50 (emphasis added), which further su ggests that Congress did not intend to alter the District’s p ractice of allocating funds to the Teachers’ Retirement Fund separately from DCPS. Plainti ffs attempt to draw a distinctionbetween retirement contributions for teachers currently teaching at DCPS as part of their compen sation benefits and contributions for teachers who have already retired. However, there appears to be little basis for the court to conclude that Congress intende d such a distinction, as the textand legislative history are wholly silent on this issue. Finally, on the question of wheth er the District may make suppl emental appropriations as necessary to DCPS as a local gove rnment agency, the District no tes that the federal AntiDeficiency Act (31 U.S.C. § 1341 et seq .) (“ADA”) and anti-deficien cy provisions in the Home Rule Act prohibit DCPS from overs pending its allocated budget. The District contends that, as a result, in the event of a budget shortfall, it has no choice but to issue a supplemental appropriation because DCPS may no t otherwise spend money it has not been appropriated. Given the strict overspending pr ohibition in the ADA, without s uch a supplemental appropriation, DCPS might be for ced to curtail or cease operati ons in the event of such an unexpected shortfall. The court agrees with Plaintiffs that th e ADA is not meant to facilitate overspending, but rather to req uire agencies to stick to a budg et. However, the application of the ADA to District agencies such as DCPS and the general availabil ity of supplemental appropriations to cover shortfal ls for other agencies provide h elpful context when considering whether Congress intended to limit the District to one annual b udget appropriation without the16 possibility of supplemental appr opriations. Given the legislat ive history discussed above, the answer to that ques tion appears to be no. There is simply no clear language i n the statute or the legisla tive history to support the conclusion that the formula was required to be the exclusive fu nding mechanism for the District’s educational system , and as a result, the court finds that there is no basis for concluding that the District’s approp riations are unlawful. The parties also disagree on whe ther this court should defer at all to the District’s interpretation and implementati on of the School Reform Act. Pl aintiffs argue that the text of the Act is clear and therefore the District has no discretion to in terpret the term “operating expenses.” They further contend t hat “[t]he SRA is neither sil ent nor ambiguous with respect to the requirement that Defendant s fund all of DCPS’ and D.C. Char ter Schools’ operating expenses through the UPSFF.” (ECF No. 53 (“Pls. Rep.”) at 26 n. 29). The court disagrees. The
Act is in fact silent as to which costs are inc luded in the term “operating ex penses.” Moreover, Congress required the Distri ct to weigh in by expressly delegat ing the creation of the formula itself to local officials. In t he court’s view, some degree ofdeference for the District’s longstanding interpretation of the Ac t’s requirements is therefore appropriate. Were the court reviewing a de legation to an agency, as opposed to the District, Congress’s directive to create a nd implement a formula that inc ludes “operating expenses” while leaving the term undefined would be an appropriate case for Chevron deference, since Congress would have explicitly left one ga p to fill (the formula itself) and impliedly left another (the scope of “operating expenses”). See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837 (1984). This court would then assess whether the agency’s interpretation was reasonable or permissible. See id. at 842–43.17 Alternatively, a court may give le sser deference to an agency’s interpretation if there is no express delegation of authority t o interpret a statute, but the agency’s decisions still have the “power to persuade.” Skidmore v. Swift & Co. , 323 U.S. 134, 140 (1944). Such deference is appropriate where the agency “ca n bring the benefit of speciali zed experience to bear on the subtle questions in th[e] case.” United States v. Mead Corp. , 533 U.S. 218, 235 (2001). Under this framework, courts are likel y to defer to an a gency’s inter pretation (1) if it is longstanding and parties have come to rely on it; (2) if it was adopted soon after the enactment of the relevant statute, especially if the agen cy itself was involved in the le gislative drafting process; and (3) if the agency has demonstrated the requisite degree of care and fo rmality. See id. at 228 (“The fair measure of deference to an agenc y administering its own statute has been understood to vary with circumstances, and cour ts have looked to the degree of the agency’s care, its consistency, formality, and relative expertne ss, and to the persuasiveness o f the agency’s position.”). All of these circumstances are present here. Plaintiffs argue that because the District is not an agency, Chevron review is inappropriate, as it is limited to the decisions and actions of federal administrative agencies acting under authority delegate d by Congress. The court agrees . The District’s sui generis nature as a municipality that ha s Congressional oversight sugge sts that, at most, both Chevron and Skidmore should be persuasive. However, t wo prior decisions of this Cir cuit regarding preemption suggest that the District may still regulate “inters titially” around Congressional statutes, and may also be entitle d to some degree of deference when doing so. First, in Maryland & District of Columbia Rifle & Pistol Ass’n v. Washington , the Circuit stat ed that it could not “agree that municipal regulation is precluded simply because th e legislature has taken some action in reference to the same subject.” 442 F.2d 123, 130 (D .C. Cir. 1971). Next, in Firemen’s18 Ins. Co. of Washington v. Washington , the Circuit wrote: Given the potentially greater r esponsiveness of local governmen t to local problems and the recognition that Congre ss cannot realistically be expec ted to deal with every aspect of a local problem, the court [in Pistol Association ] determined that the municipality should be given the benefit of that reasonable dou bt and upheld the local regulation. Here there is at least a r easonable doubt wh ether Congress meant to totally pre-empt the field of insurance regulation by enactm ent of the Insurance Code. We therefore conclude tha t the local government may legi slate interstitially—to fill the gaps in the statutory scheme. 483 F.2d 1323, 1329 (D.C. Cir. 1973). The court finds the Firemen’s Insurance framework of determining whether t here is “reasonable doubt” ab out a statute’s reach and then determining whether to “give the benefit of that reasonabl e doubt” to the District’s interpretation to be an appropria te approach here. Given the a mbiguity in the text and legislative history of the School Reform Act, the court finds t hat there is a reasonable doubt as to whether Congress intend ed to strip the District of the power to determine which expenses are included in the formula. As in Firemen’s Insurance , the court finds that such reasonable doubt means that the District may legislat e interstitially, where necessary, around the School Reform Act. Consequently, the Dis trict may make determinations and legislate about what costs are included with in the term “operating expenses.” Having decided that the District ha s the ability to legislate i nterstitially here, the court must still decide whether to afford the District any defe rence for its legislative decisions. Here, the court finds the Skidmore framework to be an appropriate guide. Because there is significant pers uasive authority in the Distri ct’s decades-long, consistent interpretation and implementa tion of the funding formula, and b ecause the statutory text and legislative history are not cl ear, the court agrees that th e District’s practice of making non-formula supplemental budget appropriations and non-formula budget allocations to19 DGS and to the Teachers’ Retirem ent Fund does not clearly viola te the School Reform
Act. What is apparent from the text of the statute and from the legi slative history cited by both parties, and what this court al ready concluded in its earlier O pinion, is that Congr ess intended for the District to use a formula to fairly fund education in the c ity. Since the court finds that it is unclear from the text of the statute whether Congress meant for this formula to be the exclusive, as opposed to primary, means of fu nding education, the court ca nnot conclude that the District’s funding scheme clearly violates th e School Reform Act’s formularequirement. Therefore, the court will GRANT the District’s motion for summary judgment wit h respect to these appropriations. 2. Calculation of Enrolled Stude nts at DCPS and Charter Schools Plaintiffs also allege that the f act that the District uses dif ferent methods to calculate student enrollment at DCPS and c harter schools violates the Sch ool Reform Act and results in inequitable and unlawful a dditional funding to DCPS. DCPS receives an annual formula appropriation in a lump sum in October of each year based on “the total estimated cos ts for the number of resident students projected to be enrolled in DCPS during the fiscal year .” D.C. Code § 38-2906(a). This pr ojection is based on “the audited enrollment for the school year p receding the fiscal year for wh ich the appropriation is made.” Id. Charter schools receive formula payments on a quarterly basis. The first payment is based on projected enrollment, the sec ond and third are based on actual reported enrollment, and the fourth is based on audited enrol lment, and may be adjusted up o r down to reflect changes in the charter school’s student population. D.C. Code § 38-2906.02(b) . Plaintiffs assert that by using actual, audited enrollment for charter schools and using projec ted enrollment for DCPS, the20 District is violating the Sc hool Reform Act by applying differe nt methodologies to public and charter schools. While Plain tiffs do not allege that the use o f audited enrollment results in underfunding of charter schools, t hey argue that the overfundin g that results if DCPS has fewer students than projected violates their right to a uniform fundi ng formula. The District first argues that Plaintiffs lack standing to chal lenge the calculation methodologies because charter sc hools suffer no alleged injury in fact, noting that “an unlawful windfall to DCPS, even if pr oved, does not adversely affect [ch arter schools] in any ‘concrete’ way.” (Defs. Mem. at 39). This court agrees. To have standing to bring a partic ular claim, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairl y traceable to the challenged conduct of the defe ndant, and (3) that is likely to be redr essed by a favorable j udicial decision.” Spokeo, Inc. v. Robins , 136 S. Ct. 1540, 1547 (2016) (citations omitted). The injury in fact requ irement “is a constitutional requirement, and ‘[i]t is settle d that Congress cannot erase Ar ticle III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.’” Id. at 1547–48 (quoting Raines v. Byrd , 521 U.S. 811, 820 n.3 (1997)). Plaintiffs must show that the District’s calculation methodol ogy for DCPS enrollment caused them to “suffer[] ‘an invasion of a legally protected interest’ tha t is ‘concrete and particulari zed.’” Id. at 1548 (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992)). The primary issue here appears t o be whether Plaintiffs’ allege d injury is “concrete.” The District argues that it is not, because Plaintiffs do not alleg e (1) that a different methodology should be used to calculate the num ber of students enrolled in charter schools; (2) that they are being underfunded by the District’s method of calculating DCPS enrollment; or (3) that success on this claim would result inany change in funding to charter schools. Plaintiffs argue that the21 School Reform Act “gives D.C. Cha rter Schools the right to rece ive operating expense funding based on the same formula that is used to calculate DCPS’ opera ting expense funding,” and that the District’s calculation m ethodology “injures Plaintiffs by s etting up an unequal playing field in the D.C. public education syste m.” (Pls. Rep. at 46 (emphas is in original)). A “concrete” injury is one that is “real, and not abstract,” th ough it may also be “intangible.” Spokeo , 136 S.Ct. at 1548–49 (internal quo tation marks and citations omitted). Plaintiffs argue that the Dist rict’s alleged violation of the S chool Reform Act violates their statutory right. It is true th at “Congress may create a statut ory right or entitle ment the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury i n the absence of statute.” Warth v. Seldin , 422 U.S. 490, 514 (1975). Court-recognize d statutory rights include, for example , the right to receive information under the Freedom of Information Act, 5 U.S.C. § 552. See Zivotofsky ex rel. Ari Z. v. Sec’y of
State , 444 F.3d 614, 617–18 (D.C. Cir. 2006) (“T he requester is inju red-in-fact for standing purposes because he did not get what the statute entitled him t o receive.”). However, violations of statutory rights must still be coupled with a concrete injury, as “some statutory violations could ‘result in no harm,’ even i f they involved [conduct] thatviolated the law.” Hancock v. Urban Outfitters, Inc. , 830 F.3d 511, 514 (D.C. Cir. 2016) (quoting Spokeo , 136 S. Ct. at 1550). As the Court stated in Spokeo , a plaintiff “[can] not . . . alleg e a bare procedural violati on, divorced from any concrete harm.” 136 S. Ct. at 1549; see also Summers v. Earth Island Inst. , 555 U.S. 488, 496 (2009) (“[D]eprivati on of a procedural right without some concrete interest that is affected by the depriva tion . . . is insufficient to cr eate Article III standing.”). Here, nothing in the Act appears t o create a statutory right to the same calculation methodology. Instead, the Act requ ires only the use of the sam e formula dollar amount22 multiplied by the number of student s. With respect to their cl aims involving the three aboveanalyzed, non-formula funding prac tices, Plaintiffs have standi ng because they allege statutory and concrete injuries: They alleg e that the District violated their right to the same dollar amount per student and that they are be ing deprived of actual funding because, absent the non-formula funding practices, they would recei ve more formula funds. Howe ver, with respect to the student calculation methodology claim, the court can identify no possib le statutory injury because, as stated above, the School Reform Act does not appear to create a ny right to the same calculation methodology. Additionally, because Plaintiffs do not allege th at they are being underfunded as a result of the District’s methodol ogy or that a change in that c alculation methodology would result in additional funds for charter schools, there appears t o be no concrete injury. As a result, Plaintiffs have not established the requisite elements of stand ing to bring this final claim. Accordingly, because Plaintiffs lack Article III standing, the court has no jurisdi ction to consider the merits of whether the Dis trict’s methodology for calculatin g student enrollment at DCPS violates the School Reform Act , as the court cannot “step[] whe re the Constitution forbade it to tread.” Hancock , 830 F.3d at 513. The court will therefore GRANT the District ’s motion on Plaintiffs’ claims involving t he enrollment calculation. B. The District’s Authority to Amend the School Reform Act The District argues that eve n if its funding and enrollment cal culation policies violate the School Reform Act as enacted, the D.C. Council has the power, u nder the Home Rule Act, to amend or repeal certain provision s of the Act, with the practic al implication being that the District cannot be i n violation of the Act since it has the pow er to change it, and has done so. This issue was the primary focus of this court’s previous Opini on and consumed much of the parties’ briefing. However, ha ving found that the District is correct as a matter of law that its23 funding practices do not violate the School Reform Act, and tha t the Plaintiffs have no standing to challenge the District’s en rollment calculation method for D CPS, this court will not wade into the complex waters of defining t he scope of the D.C. Council’s legislative authority with respect to amending or repealing Acts of C ongress that apply only to th e District.
IV. CONCLUSION For the foregoing reasons, Plain tiffs’ motion for summary judgm ent is DENIED and Defendants’ cross-motion for s ummary judgment is GRANTED.

Date: September 30, 2017 

## Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge