District of Columbia School Reform Proposals: Congress’s Possible Role in the Legislative Process
Released: 2007-03-13T00:00:00

On January 5, 2007, Adrian Fenty, the mayor of the District Columbia, released a detailed legislative proposal that would transfer administrative, policy making, and budgetary authority for the District of Columbia's public schools from the District of Columbia Board of Education to the mayor. The proposal, "The District of Columbia Public Education Reform Amendment Act of 2007" (Education Reform Act), was introduced one day after the mayor was sworn in. Key elements of the proposal would

create a new cabinet-level department for public school education to be managed by a "Chancellor of the District of Columbia Public Schools," appointed by the mayor with the advice and consent of the city council; reduce the authority and power of the Board of Education from an independent governing and policymaking entity to an advisory body to the mayor; and transfer the current Board of Education charter-school authority to the State Education Office. transfer the authority to set the budget for the District of Columbia schools to the mayor.

Home Rule Congressional Authority

Congress's authority to review, amend, and approve or disapprove the mayor's education proposal is derived from the "District Clause" of the Constitution, which states that Congress has the power

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States.

In 1973, Congress passed the District of Columbia Self-Government and Governmental Reorganization Act, P.L. 93-198 (Home Rule Act), which granted the District citizens an elected form of government with limited home rule. The Home Rule Act gave District voters the right to elect a mayor, a city council, and an independent Board of Education. It also outlined the powers afforded to the D.C. Council and the retention of Congress's constitutional authority to legislate within the District. This retention of constitutional authority is recognized in the Home Rule Act and the D.C. Code, which states

Â§ 1-206.01 Retention of constitutional authority. Notwithstanding any other provision of this chapter, the Congress of the United States reserves the right, at any time, to exercise its constitutional authority as legislature for the District, by enacting legislation for the District on any subject, whether within or without the scope of legislative power granted to the council by this chapter, including legislation to amend or repeal any law in force in the District prior to or after enactment of this chapter and any act passed by the city council.

The Proposed Education Reform Act

The proposed Education Reform Act contemplates two concurrent avenues for achieving a proposed restructuring of the District of Columbia public school system: (1) passage of legislation by the city council, and (2) congressional amendment of the Home Rule Act. The majority of the reorganization proposal could be implemented by the city council acting under its delegated authority to reorganize agencies of the District of Columbia. However, the Education Reform Act also contemplates that the Congress would pass legislation amending two provisions of the Home Rule Act: (1) the authorizing language for the D.C. School Board, and (2) restrictions on the budgetary authority of the city council and mayor over the D.C. schools.

To the extent that Congress sought to legislate beyond the two issues contemplated in the proposed Education Reform Act, it could pass legislation implementing any or all other aspects of the proposed act itself. This report does not address the issue of whether that portion of the Education Reform Act which currently contemplates action by Congress to implement could be achieved by the city council acting alone. For a discussion of that question, please see CRS Report RL33912, District of Columbia School Reform Proposal: Authority of the D.C. Council To Implement , by [author name scrubbed].

Passage of the Provisions of the Education Reform Act

Instead of seeking passage of the Education Reform Act, the mayor could seek a congressional sponsor to introduce legislation that would amend the city's home rule charter. The procedure for such legislation would be as follows.

Congress's Possible Role

A proposal originating in Congress to implement the Education Reform Act would not necessarily result in an expedited process. The controversial nature of the proposal could subject it to the regular legislative process, including hearings, markups, committee reports, House and Senate votes, and a conference agreement. The approved proposal could look significantly different from the proposal introduced on behalf of the mayor.

Congress has initiated efforts to implement education reform previously. In 1995, Congress amended the home rule charter when it passed the District of Columbia School Reform Act, which was included as Title II of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, P.L. 104-134 . Title II authorized the creation of public charter schools in the District. In 2004, Congress considered and passed legislation amending the home rule charter when it included the DC School Choice Incentive Act of 2003 in the Consolidated Appropriations Act of 2004, P.L. 108-199 . The DC School Choice Incentive Act created the private school voucher program. It should be noted that both of these programs were included as titles in District of Columbia appropriations acts.

The District's Alternative Charter Amendment Process

Although the city council may possess the authority to substantially reorganize public education in the District on its own, and Congress may also pass legislation without mayoral or city council review or approval, it is worth noting that the District's home rule charter includes provisions that would allow elements of the proposal that would amendment the District's home rule charter to be subject to a referendum vote. The Education Reform Act does not contemplate the use of the referendum process to ratify the proposed changes to the home rule charter. During community meetings held throughout the city to explain the proposal, a number of District residents voiced concern that the proposal was not being put to a referendum vote.

Charter Amendment by Referendum

Table 2, Charter Amendment by Referendum, outlines the legislative process to be followed when seeking to amend the Home Rule Act by referendum. This process would require the approval of the city council, ratification by the voters, and congressional review.

Congress's Possible Role

The mayor's Education Reform Act does not contemplate the use of the referendum process. If the charter amendment by referendum process was used, the Home Rule Act would require city council and voter approval of the proposal and would allow a period for congressional review and consideration. Congress would have four options:

It could pass a resolution of disapproval within 35 legislative days of the Board of Election and Ethics certifying that the proposed charter amendment had been approved by a majority of the voting electorate. Such a resolution would have the effect of voiding the outcome of the referendum and could be considered by some observers as an affront to home rule, while others could point out that it is within Congress's constitutional authority. It might do nothing, allowing the 35 legislative days to pass. By its inaction, Congress would allow the outcome of the referendum to take effect. It could pass legislation waiving the 35 legislative days review period, thus expediting the effective date of the charter amendment. Congress passed such a waiver in 2000, after voters approved, by referendum, an amendment to the home rule charter governing the composition of the Board of Education. It could use the appropriations process to demonstrate its opposition to measures approved by the city council and the citizens of the District if it were unable to pass a resolution of disapproval during the 35-day congressional review period. For instance, Congress has included in general provisions sections of past District of Columbia appropriation acts language preventing the District from implementing a voter-approved medical marijuana initiative.