                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUM B IA

                                                 )
D.C. ASSOCIATION OF CHARTERED                    )
P UBLIC SCHOOLS, et al.,                         )
                                                 )
               P laintiffs,                      )
                                                 )
      v.                                         )        Civil Action No. 14-cv-1293 (TSC)
                                                 )
DISTRICT OF COLUMBIA, et al.,                    )
                                                 )
               Defendants.                       )
                                                 )

                                M EM ORANDUM OPINION

       Plaintiffs bring this action challenging the District of Columbia’s alleged inequitable

funding of Washington, D.C. public charter schools as compared to traditional D.C. public

schools (“DCPS”). Plaintiffs argue that the District is required by the School Reform Act to

fund all D.C. public schools – charter schools and DCPS alike – according to a formula based on

the operating costs of the schools multiplied by the number of students at each charter school and

in DCPS as a whole. Plaintiffs allege that the District has violated the School Reform Act by

routinely funneling money for certain expenses to DCPS outside of the statutory formula,

thereby depriving charter schools of money they would normally receive if these expenses were

included in the formula calculation. Plaintiffs bring three claims: violation of Article I, Section 8

of the United States Constitution and the Home Rule Act (Count I); violation of the Supremacy

Clause of the United States Constitution (Count II); and violation of the School Reform Act

(Count III).

       Defendants filed a motion to dismiss for failure to state a claim upon which relief can be

granted. Defendants argue that where Congress passes a law which applies exclusively to the
District, as both parties agree the School Reform Act does, that law enjoys no superiority over

enactments of the D.C. Council (the “Council”) such as the school funding actions being

challenged here. Therefore, according to Defendants, the District cannot have violated the Home

Rule Act or the School Reform Act because the Council is permitted to amend or repeal the

School Reform Act. Defendants also argue that the School Reform Act is not the supreme law of

the land because Congress, in passing the School Reform Act, was acting as a local legislature

for the District, and therefore Plaintiffs cannot bring a Supremacy Clause claim.

        Because it is not yet clear whether the actions of the Council impermissibly conflict with

the will of Congress as set forth in the Home Rule Act and School Reform Act, Defendants’

motion to dismiss Counts I and III is denied. However, because the court finds that the

Supremacy Clause does not apply to Acts of Congress passed pursuant to Article I, Section 8,

Clause 17 of the Constitution, and which operate exclusively within the District, Defendants’

motion to dismiss Count II is granted.

   I.      BACKGROUND

        In 1996, Congress embedded within its yearly appropriation bill the District of Columbia

School Reform Act of 1995 (the “School Reform Act”), Pub. L. No. 104–134, § 2002, 110 Stat.

1321 (1996) (codified as amended at D.C. Code § 38–1800.02 et seq.), overhauling the District’s

educational system. As the Senate Report to the bill explained, “[d]espite the best efforts of the

Board of Education and the dedication of the superintendent, the D.C. Public Education System

is broken.” S. Rep. No. 104-144, at 6 (1995). The School Reform Act attempted to address this

broken system in myriad ways, including by creating commissions to study and implement

reforms, instructing various stakeholders to create a master plan for moving forward, and setting

out a funding mechanism to address dilapidated facilities. Importantly for this case, the School



                                                 2
Reform Act also established public charter schools in the District. “Unlike traditional public

schools, charter schools operate under charters or contracts with school districts, State education

agencies, or other public institutions. They are designed by groups of parents, teachers, school

administrators, other members of the community, and private corporations and are held

accountable for student performance under the terms of their contracts. Also, charter schools

operate with considerable autonomy from external controls such as district, State, and union

requirements.” Id. at 7.

       Congress designed a formula in the School Reform Act to fund both DCPS and charter

schools. As the House Report explained, “[t]his uniform formula will be used to provide

operating budgets on the basis of enrollment for the school system as a whole and for individual

public charter schools. According to [a] January 1995 report by [the D.C. Committee on Public

Education], ‘[o]f the 40 largest school systems in the country, the District ranked first in per

pupil expenditures.’ In the context of low student academic achievement, this information is

disturbing and as a result the District of Columbia is directed to establish a uniform and efficient

formula for funding public education. The same formula will be used for students enrolled in

individual public charter schools authorized in subtitle B of this agreement and the District of

Columbia Public School System . . . Such a formula will clarify and focus decisions regarding

funding for public education around students’ needs.” H.R. Rep. No. 104-455, at 146 (1996),

http://www.gpo.gov/fdsys/pkg/CRPT-104hrpt455/pdf/CRPT-104hrpt455.pdf (citation omitted).

The formula involves multiplying a uniform dollar amount reflective of school operating

expenses (as calculated by the Mayor and the D.C. Council in consultation with the Board of

Education and the Superintendent) by the number of students in DCPS and each individual

charter school. D.C. Code § 38-1804.01(b).



                                                  3
       Plaintiffs are two charter schools located in the District and an association that represents

39 District charter schools. The crux of this case is Plaintiffs’ allegation that the District has

creatively circumvented the funding formula in order to supplement DCPS’s budget, to the

detriment of charter schools. Plaintiffs identify four broad categories where they allege the

District is violating the School Reform Act’s uniform funding formula provision:

       Enrollment Calculations: Defendants fail to provide D.C. Charter Schools with
       uniform per-student funding when they fund D.C. Charter Schools based on actual,
       audited student enrollment, and reduce funding to D.C. Charter Schools if actual
       enrollment is lower than projected, while funding DCPS based on projected, and
       often inflated, student enrollment . . . ;

       Supplemental Funding: Defendants fail to provide D.C. Charter Schools with
       uniform per-student funding when they fund certain DCPS operating expenses by
       providing supplemental funding outside the uniform per-student funding formula
       without accounting for such funding in calculating the per-student payments made
       to D.C. Charter Schools for their operating expenses. Supplemental Funding
       includes, but is not limited to, enacting legislation to provide supplemental
       appropriations to DCPS but not to D.C. Charter Schools . . . reprogramming and
       transferring to DCPS funds previously appropriated to other D.C. government
       agencies . . . and paying DCPS’s debts directly . . . ;

       Annual Budget Funding: Defendants fail to provide D.C. Charter Schools with
       uniform per-student funding when they fund certain DCPS operating expenses
       through the District’s annual budget process without accounting for such funding
       in calculating the per-student payments made to D.C. Charter Schools for their
       operating expenses. Annual Budget Funding includes, but is not limited to, intra-
       district transfers of funds from other D.C. agencies to DCPS . . . line items in the
       District’s annual budget that are allocated to other D.C. government agencies for
       services those agencies provide to DCPS without charge . . . and funding DCPS
       pension fund payments . . . ; and

       Subsidized Services: Defendants fail to provide D.C. Charter Schools with
       uniform per-student funding when they fund certain DCPS operating expenses
       through subsidies of services provided to DCPS and do not account for those
       subsidies in calculating the per-student payments made to D.C. Charter Schools for
       their operating expenses.




                                                   4
(Compl. ¶ 5). Plaintiffs seek a declaration that these actions violate the School Reform Act and

an injunction requiring the District to uniformly fund DCPS and charter schools pursuant to the

funding formula provision of the School Reform Act.

    II.       LEGAL STANDARD

           “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (internal quotation marks and citation omitted). “The plausibility standard

is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id. (citation omitted). Although a plaintiff may survive a Rule

12(b)(6) motion even where “recovery is very remote and unlikely,” the facts alleged in the

complaint “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555, 56 (2007) (internal quotation marks and citation omitted).

Moreover, a pleading must offer more than “labels and conclusions” or a “formulaic recitation of

the elements of a cause of action.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

    III.      ANALYSIS

              a. The District Clause and the Home Rule Act

           The District of Columbia is “an exceptional community . . . established under the

Constitution as the seat of the National Government.” District of Columbia v. Murphy, 314 U.S.

441, 452 (1941). Article I, Section 8, Clause 17 of the United States Constitution grants

Congress plenary authority over the District. See U.S. Const. art. I, § 8, cl. 17 (“The Congress

shall have the power . . . [t]o 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 . . .”) (the



                                                   5
“District Clause”). For most of its history, Congress exercised this legislative authority and

governed the District directly. 1 In 1973, Congress delegated its legislative authority to the

D.C. Council in the District of Columbia Self–Government and Governmental Reorganization

Act, Pub. L. No. 93–198, 87 Stat. 774 (1973) (the “Home Rule Act”). As Congress explained in

the Statement of Purposes to the Home Rule Act:

        Subject to the retention by Congress of the ultimate legislative authority over the
        Nation’s Capital granted by article I, section 8, of the Constitution, the intent of
        Congress is to delegate certain legislative powers to the government of the District
        of Columbia; authorize the election of certain local officials by the registered
        qualified electors in the District of Columbia; grant to the inhabitants of the District
        of Columbia powers of local self-government; to modernize, reorganize, and
        otherwise improve the governmental structure of the District of Columbia; and, to
        the greatest extent possible, consistent with the constitutional mandate, relieve
        Congress of the burden of legislating upon essentially local District matters.

Id. at § 102.

        Count I of Plaintiffs’ Complaint turns on the tension between Congress relieving itself of

the “burden of legislating upon essentially local District matters,” and its retention of “ultimate

legislative authority” over the District pursuant to the District Clause. Id. The parties vigorously

dispute the interplay between the District Clause and the Home Rule Act, and differ significantly

in their respective interpretations of the relationship between Congress and the D.C. Council

with respect to local legislation.

        Defendants argue that under the Home Rule Act, the Council has the authority to amend

or repeal any Act of Congress that applies exclusively to the District unless the Home Rule Act

specifically forbids it. This is in some contrast to Defendants’ position at oral argument, where

Defendants appeared to retreat from that position and chose not to opine on the Council’s




1For a thorough overview of the history of the District’s creation and governance, see generally
Adams v. Clinton, 90 F. Supp. 2d. 35 (D.D.C. 2000).

                                                   6
broader authority, instead arguing only that the School Reform Act does not limit the Council’s

authority to fund schools in the manner challenged here.

       Plaintiffs argue that once Congress legislates for the District, the Council is powerless to

amend or contradict Congress’ will absent specific congressional authorization. Therefore, since

Congress passed the School Reform Act and required the District to use the uniform funding

formula, and because Congress has not specifically delegated to the Council the authority to

amend or repeal the School Reform Act, the District’s actions ignoring or conflicting with the

formula are unlawful.

       The parties’ arguments can be stated as two sides of the same coin: Defendants argue that

the Council is permitted to take any action that is not specifically prohibited, while Plaintiffs

argue that the Council is prohibited from taking any action that is not specifically permitted. The

issue for this court to decide, therefore, is the extent of the Council’s authority once Congress has

passed a law that applies exclusively to the District.

               i.   The Case Law

       Defendants cite a handful of cases in which courts have held that the Council has the

power to amend or repeal Acts of Congress that apply exclusively to the District. If the Council

has such authority, Defendants argue, then the District cannot have violated the Home Rule Act

or the School Reform Act when it passed laws related to school funding, because the Council can

amend or repeal the School Reform Act as it pleases. For example, in District of Columbia v.

Greater Washington Central Labor Council, AFL-CIO, 442 A.2d 110, 115 (D.C. 1982), the D.C.

Court of Appeals held that the Council did not contravene the Home Rule Act when it passed a

worker’s compensation law in 1980 that repealed a preexisting congressional enactment

originally passed in 1928. The D.C. Court of Appeals affirmed this understanding in McConnell



                                                  7
v. United States, 537 A.2d 211 (D.C. 1988), explaining that in Greater Washington, “we made

clear that, although the Council, under § 1–233(a)(3), may repeal a congressionally-enacted

statute limited in application to the District of Columbia, the Council may not repeal a federal

statute of broader application.” Id. at 215 (holding that because Council-enacted legislation

conflicted with nationally-applicable federal legislation, the Council had no authority to repeal

the federal law); see also Brizill v. D.C. Bd. of Elections & Ethics, 911 A.2d 1212, 1216 (D.C.

2006) (“Because section 1175 does not apply exclusively to the District, neither the Council nor

the voters through initiative may amend or repeal this Congressional prohibition on using and

possessing gambling devices within the District of Columbia.”).

       Defendants also cite federal cases concurring with the United States Court of Appeals for

the District of Columbia Circuit’s interpretation of the Council’s authority to repeal Acts of

Congress. In a case (similar to Greater Washington) regarding the relationship between federal

and D.C. worker’s compensation laws, the D.C. Circuit agreed with the D.C. Court of Appeals

that the Council had repealed a Congressional enactment “in a valid exercise of its powers under

the [Home Rule Act], and as to which Congress declined to exercise its reserved right of veto.”

Keener v. Washington Metro. Area Transit Auth., 800 F.2d 1173, 1179 (D.C. Cir. 1986). In

addition, at least one court in this district (in denying a motion for a temporary restraining order

and preliminary injunction) has held, relying in part on McConnell, that

       [t]he Home Rule Act—a statute duly enacted by Congress—in fact authorizes the
       Council to repeal statutes previously enacted by Congress restricted in their
       application exclusively to or in the District of Columbia. . . . The Transportation
       Infrastructure Emergency Amendment Act of 2010 implicitly repealed a statute
       applicable only to the District of Columbia. The act was . . . transmitted to both
       houses of Congress for review. Congress did not object to the act, and it went into
       effect[.] . . . Congress retains the authority to repeal the 2010 Act in the future, but
       at this time the 2010 Act effectively repealed the 1888 prohibition.




                                                  8
Kingman Park Civic Ass’n v. Gray, 956 F. Supp. 2d 230, 246 (D.D.C. 2013). Defendants argue

that application of these cases here mandates dismissal of Count I because the cases establish

that the Council has the authority to amend or repeal the School Reform Act, including the

funding formula.

        Plaintiffs disagree, relying on a key distinction between the cases cited by Defendants

and the facts here. This distinction arises out of Section 717(b) of the Home Rule Act, which

states that

        [n]o law or regulation which is in force on [January 2, 1975] shall be deemed
        amended or repealed by this act except to the extent specifically provided herein or
        to the extent that such law or regulation is inconsistent with this act, but any such
        law or regulation may be amended or repealed by act or resolution as authorized in
        this chapter, or by Act of Congress.

Pub. L. No. 93-198, 87 Stat. 774, § 717(b) (1973); see also D.C. Code §§ 1-207.17(b),

1-207.61(b). 2 Plaintiffs argue that all of the cases relied on by Defendants involve the Council’s

repeal of Congressional enactments passed before 1975, meaning that the Home Rule Act

specifically authorized the Council to effect such repeals. By contrast, the School Reform Act

was enacted after January 2, 1975, meaning that Section 717(b) does not give the Council the

authority to repeal the Act. Defendants have cited no case where a court has upheld the D.C.

Council’s amendment or repeal of an Act of Congress passed after January 2, 1975.

        While Plaintiffs accurately note that all the Acts of Congress involved in Greater

Washington, Kingman, etc. predated home rule, Plaintiffs fail to recognize that the courts in

those cases did not cite or rely on Section 717(b) in their respective analyses. Instead, those

courts relied on an entirely different provision of the Home Rule Act to find that the Council had




2It is not apparent on the face of the Home Rule Act why this provision is repeated in two
sections of the Act.

                                                 9
the authority to repeal the Congressional enactments at issue. Specifically, the courts reasoned

that, because Congress in the Home Rule Act explicitly provided that “[t]he Council shall have

no authority to . . . [e]nact any act, or enact any act to amend or repeal any Act of Congress . . .

which is not restricted in its application exclusively in or to the District,” D.C. Code § 1-206.02,

by implication the Council did have the authority to amend or repeal Acts of Congress which

were restricted in their application exclusively in or to the District. Section 717(b), and the fact

that the Acts of Congress at issue predated home rule, simply did not enter the analytical

framework in those cases.

       The fact that the Acts of Congress repealed in Greater Washington and Kingman were

enacted before 1975 makes a difference, but not because of Section 717(b), which neither of

those courts discussed or identified. The salient difference between the facts there and the facts

here is that in those cases, there was no need to analyze Congressional intent regarding the D.C.

Council’s delegated authority. Before 1975, the D.C. Council (as a semi-independent, popularly

elected legislative body) did not exist. Therefore, save for brief periods of time from 1871 to

1874 and from 1967 to 1973 in which the District had its own local legislature or presidentially

appointed council, whenever Congress passed legislation before 1975, it would not have

considered whether it intended to withdraw delegated authority from the local District legislature

on a particular issue, because no local legislature would have existed. 3 Because there was no



3 “[F]or most of its history, the District of Columbia has had nothing that could even roughly be
characterized as a legislature for the entire District.” Adams, 90 F. Supp. 2d at 47. Notably,
however, “Congress established a territorial form of government for the District” in 1871. Id. at
47 n.19 (citing An Act to Provide a Government for the District of Columbia, 16 Stat. 419, ch.
62 (1871)); see also Metro. R. Co. v. District of Columbia, 132 U.S. 1, 7 (1889) (“In 1871 an
important modification was made in the form of the District government. A legislature was
established, with all the apparatus of a distinct government.”). In 1874, this government,
including the local legislature, was abolished and “replaced by a commission system.” Adams,
90 F. Supp. 2d at 47 n.19 (citing An Act for the Government of the District of Columbia, and for
                                                  10
other body which shared legislative authority with Congress for most of the District’s history,

there would have been no reason for Congress to contemplate whether it intended to have the

“final word”—its word was final by default. For example, the 1928 Congress that passed the

worker’s compensation law at issue in Greater Washington would not have considered whether

it intended for the local legislature to have the ability to repeal that law, because only Congress

exercised legislative authority at that time, as “the District’s governing body was a three-person

commission appointed by the President,” Adams, 90 F.Supp.2d at 47 n.19, without “[l]egislative

powers” and “confined to mere administration.” Metro. R. Co., 132 U.S. at 21, 22. By contrast,

after 1975 Congress would have been aware that it had granted legislative authority to the D.C.

Council, and would likely have considered what role the Council should play going forward in

any area in which Congress chose to legislate.

       Thus, while the cases cited by Defendants no doubt suggest that the Council has broad

authority, ultimately those courts did not wrestle with the precise facts at issue here—post-Home




Other Purposes, 18 Stat. 116, ch. 337 (1874)); see also Metro. R. Co., 132 U.S. at 6-7 (noting
that the local government established in 1871 “lasted until June 20, 1874, when an act was
passed” by which “the government established by the act of 1871 was abolished”). The
commission system established in 1874 was “modified in 1878” so that “the District’s governing
body [became] a three-person commission appointed by the President.” Adams, 90 F. Supp. 2d
at 47 n.19 (citing An Act Providing a Permanent Form of Government for the District of
Columbia, 20 Stat. 102, ch. 180 (1878)). This new commission, like the one established in 1874,
was without legislative power. See Metro. R. Co., 132 U.S. at 21-22 (noting that, with the 1874
and 1878 Acts, “[l]egislative powers [had] ceased, and the municipal government [became]
confined to mere administration”). “The commission system was replaced in 1967 by a mayor-
commissioner and council form of government, the members of which were appointed by the
President,” thereby returning some semblance of a local legislature to the District for the first
time since the early 1870s. Adams, 90 F. Supp. 2d at 47 n.19 (citing Reorganization Plan No. 3
of 1967, Pub. L. No. 90–623, 81 Stat. 948 (1967)). This form of government lasted until 1973,
when the Home Rule Act “creat[ed] a mayor” and replaced the presidentially appointed council
with a “council elected by the citizens of the District, . . . granting them certain executive and
legislative authority” while “reserv[ing] ultimate authority over District governance to
Congress.” Id. (citing the Home Rule Act).

                                                 11
Rule Act legislation—and given the impact of the Home Rule Act on the governance of the

District and the role of Congress, that difference renders those cases persuasive, but not

dispositive.

               ii.     Statutory Interpretation

        Defendants also argue (at least in their briefing) that certain provisions of the Home Rule

Act make clear that the Council has the authority to repeal Acts of Congress that apply

exclusively to the District. Section 302 of the Home Rule act provides that, subject to certain

exceptions, “the legislative power of the District shall extend to all rightful subjects of legislation

within the District consistent with the Constitution of the United States and the provisions of this

chapter.” D.C. Code § 1-203.02. Section 404(a) vests this power in the D.C. Council. Id. at

§ 1-204.04(a). The Council is therefore delegated all legislative power within the District unless

specifically limited. Section 602(a)(3) of the Home Rule Act, the provision relied on in Greater

Washington and Kingman, is such a specific limitation—it prohibits the Council from amending

or repealing any law not exclusive to the District. Id. at § 1-206.02(a)(3). This exception,

according to Defendants, proves the rule: because the Council is given all the legislative power

within the District, and that power extends to all subjects unless specifically limited, when

Congress specifically limited the Council’s power with respect to laws applicable outside the

District, the legislative power remained for laws applicable only inside the District.

        Defendants also contend that Congress can, and has, specifically limited the Council’s

authority to amend or repeal Acts of Congress, meaning that their failure to do so in the School

Reform Act is indicative of their intent not to limit the Council here. For example, in 1995

Congress passed the District of Columbia Financial Responsibility and Management Assistance

Act of 1995, Pub. L. No. 104–8, 109 Stat. 97, 98 (1995) (the “FRMAA”), which, among other



                                                  12
things created what is colloquially known as the Control Board, which was authorized to take

over a number of financial and other duties from local D.C. government agencies. Congress

amended the Home Rule Act to add to the “Limitations on the Council” in Section 602, and

specifically prohibited the Council from “[e]nact[ing] any act, resolution, or rule with respect to

the District of Columbia Financial Responsibility and Management Assistance Authority

established under § 47-391.01(a).” D.C. Code § 1-206.02(a)(10). According to Defendants,

because a similar limitation was not added to the School Reform Act, this indicates that Congress

did not intend to limit the Council here as it did in the FRMAA.

       Plaintiffs take a different view. They argue that the Home Rule Act makes clear that the

Council does not have the authority to amend or repeal Acts of Congress. First, Plaintiffs cite

Section 717(b) of the Home Rule Act, which grants the Council the authority to amend or repeal

laws or regulations in force before 1975. Plaintiffs argue that if the Council were authorized to

repeal any Act of Congress, before or after 1975, this section would be wholly unnecessary.

According to Plaintiffs, the fact that the Council was authorized to repeal pre-1975 laws shows

that it was not authorized to repeal post-1975 laws.

       Plaintiffs also argue that Section 601 of the Home Rule Act supports their interpretation

that once Congress legislates for the District, the Council loses its authority to do so in that same

area. Section 601 states that

       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 Council.

D.C. Code § 1-206.01. Plaintiffs argue that Section 601—which is explicitly referenced as a

limitation on the Council’s power in Sections 302 and 404(a) of the Home Rule Act (the sections


                                                  13
delegating legislative authority to the District and the Council, respectively)—reserves to

Congress its constitutional role as legislature, meaning that when Congress chooses to legislate

for the District, delegation to the Council is withdrawn. 4

       Plaintiffs cite in support of their argument the D.C. Circuit’s opinion in Shook v. D.C.

Financial Responsibility & Management Assistance Authority, 132 F.3d 775, 780 (D.C. Cir.

1998), where the Court held that the District Charter “is simply an Act of Congress which can be

modified either expressly or impliedly by Congress as it wishes,” and notes that Section 601 of

the Home Rule Act “specifically reserves that power.” While Shook is instructive because it

makes clear that Congress can impliedly modify the District’s authority, ultimately the actual

holding in Shook is inapposite here because in that case, the modifications were explicit. Shook

involved the authority of the Control Board vis-à-vis the Board of Education (not, as here, the

authority of Congress vis-à-vis the Council), after Congress passed the FRMAA. The Court

found that “the FRMAA is replete with modifications of the Charter,” and relied on these explicit

modifications to hold that the Control Board assumed ultimate authority over the Board of

Education. Id. Therefore, Shook is of limited relevance in determining when Congress

impliedly modifies the Home Rule Act to strip the Council of legislative authority.

       Plaintiffs’ reliance on Marijuana Policy Project v. United States, 304 F.3d 82 (D.C. Cir.

2002), is similarly misplaced. In that case, Congress had passed the Barr Amendment, a rider to

a D.C. appropriations act which specifically mandated that “[n]one of the funds contained in this



4 Plaintiffs analogize Congress’ relationship with the District to Congress’ relationship with
territories, or to states’ relationship with municipalities, citing cases like Murphy v. Utter, 186
U.S. 95 (1902). However, as the Supreme Court has noted, “[u]nlike either the States or
Territories, the District is truly sui generis in our governmental structure.” District of Columbia
v. Carter, 409 U.S. 418, 432 (1973). Given the unique nature of the Home Rule Act and its
interplay with the Constitution, the court finds these analogies helpful but not persuasive.

                                                 14
Act may be used to enact . . . any law . . . to legalize or otherwise reduce penalties associated

with” marijuana. Id. at 84 (internal quotation marks and citation omitted). The D.C. Circuit held

that because the “Amendment says only that Congress, not the D.C. Council, may reduce

marijuana penalties,” it “add[ed] another item to this list of matters that, in the words of the

Home Rule Act, are not ‘rightful subjects of legislation.’” Id. (citation omitted)

       Unlike Shook or Marijuana Policy Project, Congress has not explicitly withdrawn the

Council’s authority to legislate in the School Reform Act. Neither side here alleges that

Congress expressly added District public school funding to the list of exceptions to the Council’s

power, as was the case in Shook, or explicitly prohibited the Council from passing legislation in

that area, as in Marijuana Policy Project. These cases are therefore of limited relevance in

determining whether and to what extent Congress intended to limit the Council’s authority in the

School Reform Act.

       While none of the cases cited by either side is directly on point, when taken together, they

lead to the conclusion that the truth, as it so often does, lies somewhere in between. Defendants

are likely mistaken in their assertion that the only way Congress can withdraw the Council’s

authority is to amend the Home Rule Act and add to the list of enumerated exceptions. As Shook

and other cases make clear, Congress may impliedly—as well as expressly—withdraw the

Council’s delegated authority. On the other hand, Plaintiffs cannot be correct that once Congress

legislates, the Council is forever excluded from legislating in that area. This conclusion would

run contrary to the very purpose of the Home Rule Act, which was to unburden Congress from

running the District’s affairs. If it was the case that any time Congress acted with regard to the

District, it necessarily withdrew the Council’s legislative authority entirely, over time this would




                                                 15
likely eviscerate the Home Rule Act and return Congress to the unwanted position of acting as a

local legislature for the District.

        The question thus becomes how to tell the difference between when Congress acts in

tandem with the Council, and when it has the final word. That question, like any question

concerning Congress’ legislation for the District, has “a central focus: the intent of Congress.”

District of Columbia v. Washington Home Ownership Council, Inc., 415 A.2d 1349, 1351 (D.C.

1980) (en banc). The court notes that it will not decide this issue as a general proposition

because Defendants apparently no longer rest their motion on the argument that the Council has

the authority to repeal any Act of Congress that applies exclusively to the District. The court

will instead focus on Defendants’ pared-back argument: that nothing in the School Reform Act

prevents the Council from amending or repealing that Act.

        The text, context, and history of the School Reform Act show that while Congress did not

intend on the Council treating the funding formula as optional, it is too early to determine

whether the District’s actions contravene Congress’ intent or whether Congress has acquiesced in

the District’s actions.

                iii.      The Funding Formula

        On its face, the text of the School Reform Act’s uniform funding formula provision is

clear. It provides that “[t]he Mayor and the District of Columbia Council, in consultation with

the Board of Education and the Superintendent, shall establish . . . a formula to determine the

amount of” the annual payment to DCPS and charter schools, and that the amount of this annual

payment “shall be calculated by multiplying a uniform dollar amount used in the formula

established under such paragraph by” the number of students in DCPS and each individual

charter school. D.C. Code § 38-1804.01(b)(1)-(2) (emphasis added). The Supreme Court has



                                                 16
often stated “that when a statute uses the word ‘shall,’ Congress has imposed a mandatory duty

upon the subject of the command.” Forest Guardians v. Babbitt, 174 F.3d 1178, 1187 (10th Cir.

1999) (citing United States v. Monsanto, 491 U.S. 600, 607 (1989)) (“by using ‘shall’ in civil

forfeiture statute, ‘Congress could not have chosen stronger words to express its intent that

forfeiture be mandatory in cases where the statute applied’”); see also Pierce v. Underwood, 487

U.S. 552, 569–70 (1988) (Congress’ use of “shall” in a housing subsidy statute constitutes

“mandatory language”); Black’s Law Dictionary 1585 (10th ed. 2014) (“Has a duty to; more

broadly, is required to . . . This is the mandatory sense that drafters typically intend and that

courts typically uphold.”). A facial reading of the text of the School Reform Act therefore leaves

little room to doubt that Congress intended for the District to use the uniform funding formula,

and did not anticipate the Council amending or repealing it.

       Defendants maintain that the use of the term “shall” in the School Reform Act was

merely customary drafting verbiage, and that Congress (like any legislature) could not have

drafted the statute any other way. However, the School Reform Act itself provides many

examples of how Congress can and does draft statutes with varying levels of obligation. For

example, in the subpart immediately following the formula calculation, Congress provided

exceptions to the formula, explaining that “the Mayor and the District of Columbia Council, in

consultation with the Board of Education and the Superintendent, may adjust the formula to

increase or decrease the amount of the annual payment to the District of Columbia public schools

or each public charter school” based on the number of students and cost of each grade level.

D.C. Code § 38-1804.01(3)(A) (emphasis added). In a section regarding parent-teacher

conferences, Congress stated that “the Mayor is authorized to develop and implement a policy

encouraging” attendance at such conferences. D.C. Code § 38-1809.01 (emphasis added). In a



                                                  17
section creating a private, nonprofit corporation to study and institute certain educational

reforms, Congress dictated that while federal support for that entity would cease in 1999, “[i]t

[was] the sense of the Congress that . . . [t]he activities of the private, nonprofit corporation . . .

should continue to be carried out after October 1, 1999, with resources made available from the

private sector.” D.C. Code § 38-1806.09(b) (emphasis added). Thus, Congress clearly knew

how to make some sections of the School Reform Act mandatory and others not, and “when the

legislature uses certain language in one part of the statute and different language in another, the

court assumes different meanings were intended.” Sosa v. Alvarez-Machain, 542 U.S. 692,

712 n.9 (2004) (internal quotation marks and citation omitted).

        Once again, however, this seemingly straightforward analysis is thrown off-kilter by the

sui generis nature of the District. Most cases analyzing Congress’ use of the word “shall”

involve Acts of Congress instructing administrative agencies or courts. They do not consider

circumstances where the presumptively mandatory instruction is directed at another legislature,

which arguably shares dual authority with Congress and may be able to amend or repeal

Congressional enactments. That these unusual circumstances may alter the equation is

evidenced by the numerous actions taken by the Council since the enactment of the Home Rule

Act in which the Council has amended or repealed parts of or entire Acts of Congress, including

provisions with mandatory “shall” language.

        For example, the Council appears to have repealed or amended two sections in the School

Reform Act which required federal involvement in local D.C. schools. In the original School

Reform Act, Congress created a Public Charter School Board, whose members were appointed

by the Mayor from a list provided by the U.S. Secretary of Education. In 2010, the D.C.

Council, in a budget act not vetoed by Congress, removed the Secretary of Education’s



                                                   18
involvement. Fiscal Year 2011 Budget Support Act of 2010, 2010 District of Columbia Laws

18-223. In the School Modernization Financing Act of 2006 (which Congress also did not veto),

the Council repealed section 2551 of the School Reform Act which required the Superintendent

and the Administrator of the General Services Administration to enter into a memorandum of

agreement regarding school facilities management. School Modernization Financing Act of

2006, 2006 District of Columbia Laws 16-123.

        In addition to these examples from the School Reform Act itself, Defendants provided

numerous examples where, after passage of the Home Rule Act, the District and Congress have

gone back and forth amending various D.C. laws. Plaintiffs correctly point out, however, that

several of these examples relate to litigation where the Council’s legislative power derived from

a specific grant of authority to the Council in the Home Rule Act to amend, repeal or supersede

Congressional legislation enacted after 1975, and that several other examples involve Acts of

Congress that were enacted prior to 1975. Plaintiffs also correctly point out that none of the

examples cited by Defendants involve any court holding that the D.C. Council has the authority

to amend or repeal a law enacted by Congress after 1975 absent specific authority to do so.

These examples are therefore less than persuasive.

        In any event, all of the foregoing suggests that the mandatory language in the funding

formula may not be dispositive, given the unique legislative relationship between the District and

Congress—i.e., if the District can (and has) repealed Acts of Congress that used the term “shall,”

then that term alone cannot necessarily delineate Congress’ intent with respect to the Council’s

authority.

        Assuming that the School Reform Act itself is ambiguous (not on its terms, but because

of the unusual nature of the District), the court looks to its legislative history. See BedRoc Ltd.,



                                                 19
LLC v. United States, 541 U.S. 176, 186 (2004). The School Reform Act was passed not long

after the FRMAA, under which Congress took over the District’s finances and slashed its budget.

Congress described the FRMAA as “the most sweeping Federal involvement in local affairs

since Home Rule began and a reflection of members’ profound doubts about the District’s ability

to manage itself.” H.R. Rep. No. 104-294, at 6 (1995). After addressing the District’s finances,

Congress turned its attention to local public education. The Senate explained in its Report that

“the D.C. Public Education System [was] broken” and “characterized by competition rather than

cooperation; by distrust, of new ideas and Congress, rather than compromise; by self-interest,

rather than the interests of the school children. It is among the national leaders in expenditures

per student and near the bottom in results for that investment.” S. Rep. No. 104-144, at 6. That

same Report set forth Congress’ understanding of its role in D.C. public education: “Needed

changes in the D.C. Public School System will not be imposed from the Congress. Those

changes must come from the local community, with every part, including 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. The accompanying bill includes three provisions which

attempt to create that structure.” Id.

       One of those three provisions was the creation of public charter schools. According to

the Senate Report, “[c]harter schools offer great promise in reforming public education because

they link the important factors of school-site autonomy, parental choice, regulatory flexibility,

private sector initiative, accountability for student outcomes, and community participation.” Id.

at 7. The House Report echoed this same support, and explained that

       [a]ccording to [a] January 1995 report by [the D.C. Committee on Public
       Education], “[o]f the 40 largest school systems in the country, the District ranked
       first in per pupil expenditures.” In the context of low student academic
       achievement, this information is disturbing and as a result the District of Columbia


                                                 20
       is directed to establish a uniform and efficient formula for funding public education.
       The same formula will be used for students enrolled in individual public charter
       schools authorized in subtitle B of this agreement and the District of Columbia
       Public School System. The formula may take into account such variations as
       students at different grade levels and students with special needs. Such a formula
       will clarify and focus decisions regarding funding for public education around
       students’ needs.

H.R. Rep. No.104-455 at 146.

       The year after the School Reform Act was passed, Congress further commented on the

funding formula. In its Report to the 1997 D.C. appropriations bill, the House explained that

       Section 2401 of the [School Reform Act], mandated in relevant part that “the
       Mayor and the District of Columbia Council, in consultation with the Board of
       Education and the Superintendent, shall establish not later than 90 days after the
       enactment of this Act, a formula to determine” . . . the annual payment . . . “(f)or
       fiscal year 1997 and for each subsequent year” . . . for public schools under the
       control of the Board of Education and for each public charter school, with such
       annual payments to be . . . “calculated by multiplying a uniform dollar amount . . .
       by the number of students” in specified grade levels. [The School Reform Act]
       became effective on April 26, 1996, and thus the uniform per student funding
       formula had to be established by the Mayor and Council by no later than July 25,
       1996. After a series of meetings involving members of the Board of Education,
       Board staff, school system officials and representatives of the Superintendent of
       Schools, Council Committee on Education and Libraries staff, representatives of
       the Mayor, staff of the Control Board, and community representatives, agreement
       was reached on a weighted funding formula. . . . The Committee notes that for
       Fiscal Year 1998 and subsequent years, the funding formula and annual payments
       derived from per pupil allocations to both public charter schools and public schools
       under the control of the Board of Education must include the total costs of the
       operations of the Board of Education itself, all central administration 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 other direct or indirect costs normally
       incurred by, or allocated to, schools under the control of the Board of Education
       and the overall public school system.

H.R. Rep. No. 104-689, at 49 (emphasis added).

       This legislative history suggests that Congress did not consider charter schools, or the

formula to fund them, optional. Rather, Congress stepped into what it considered a dire

situation, and set up structures to try to solve the District’s public education crisis. One of these


                                                 21
structures was charter schools, and the mechanism to fund them was the uniform formula. On

the other hand, Congress’ overall intention was for its role in D.C. public education to be limited.

As Congress made clear both in the text of the School Reform Act (which directs virtually all

actions to be taken by local District officials) and in its legislative history, “[n]eeded changes in

the D.C. Public School System will not be imposed from the Congress.” S. Rep. No. 104-144,

at 6. Congress thus did not intend to take over the D.C. public school system or withdraw the

authority of local officials to run that system. Instead, the legislative history indicates that

Congress stepped in to set up the foundation of a system which it hoped the District could then

build upon to improve outcomes in local public education. It clearly did not intend on taking

over local education in the District; otherwise, it would not have put local officials in charge. It

did, however, intend on those officials building on the structures it created, not discarding them.

       The question remains whether the actions taken by the Council at issue in this case built

on those structures, or undermined them. It may be that Congress left the Council with the

discretion to take actions in addition to or outside of the funding formula, meaning that the

District did not violate the Home Rule Act or Congress’ constitutional prerogative over the

District. It appears that some (if not all) of the challenged Council actions were at least passively

approved by Congress, although it is unclear exactly how much information Congress was

provided during the Congressional review period for those actions. It may also be that Congress

did not intend on the Council funding DCPS in certain ways, meaning the challenged actions

impermissibly conflict with the School Reform Act’s implied withdrawal of the Council’s

delegated authority. Those lines are not yet drawn, and the court will not speculate on what

exactly the School Reform Act (through its implied effect on the Home Rule Act) does or does

not allow in a vacuum. As it stands, the uniform funding formula is on the books, and it is not



                                                  22
clear whether it has been violated, whether it has been amended or repealed by Council

enactments (through Congressional acquiescence or otherwise), or whether the challenged

actions do not implicate or conflict with the funding formula at all. At this stage of the

proceedings, it is enough to find that Plaintiffs have alleged facts which, if true, raise their right

to relief above the level of mere speculation. Defendants’ motion to dismiss Count I is therefore

denied.

             b. Supremacy Clause

          The Supremacy Clause to the United States Constitution states that “[t]his Constitution,

and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties

made, or which shall be made, under the Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.

Defendants’ motion to dismiss Count II turns on a deceptively simple question: whether the

Supremacy Clause applies to Acts of Congress that apply only within the District of Columbia.

Both sides marshal cases that come close to answering the question, but are ultimately

distinguishable on one ground or another. However, after careful review, this court concludes

that the Supremacy Clause does not apply in these circumstances.

          As a threshold matter, the parties do not appear to dispute that the School Reform Act is

an Act of Congress that applies only within the District. As the court in McKinney-Byrd Acad.

Pub. Charter Sch. v. District of Columbia explained, “on its face, the School Reform Act makes

clear that it is applicable only to the District of Columbia and is tailored to address the specific

needs of the District of Columbia.” McKinney-Byrd Acad. Pub. Charter Sch. v. D.C., No. 4-

02230, 2005 WL 1902873, at *2-3 (D.D.C. July 21, 2005), case dismissed sub nom. McKinney-



                                                  23
Byrd Acad. Pub. Charter Sch. v. Gov’t of District of Columbia, No. 05-7115, 2005 WL 3789050

(D.C. Cir. Oct. 31, 2005). This court agrees with the analysis in McKinney-Byrd and finds that

the School Reform Act applies exclusively within the District.

       Assuming the local nature of the School Reform Act, Defendants argue that the

Supremacy Clause claim is an open-and-shut issue based on the D.C. Circuit’s holding in Dist.

Properties Assocs. v. District of Columbia, 743 F.2d 21 (D.C. Cir. 1984). In that case, the D.C.

Circuit analyzed whether the District of Columbia Administrative Procedure Act (“DC APA”),

enacted by Congress, precluded a federal Section 1983 claim. Id. at 27. The district court held

that the DC APA provided an exclusive remedy and precluded a federal claim. Id. The D.C.

Circuit, in discussing how to analyze the relationship between the DC APA and Section 1983,

explained that “[w]hen Congress acts as the local legislature for the District of Columbia and

enacts legislation applicable only to the District of Columbia and tailored to meet specifically

local needs, its enactments should—absent evidence of contrary congressional intent—be treated

as local law, interacting with federal law as would the laws of the several states.” (Def.’s Mot. at

18) (citing Dist. Properties Assocs., 743 F.2d at 27). Because ordinarily, a state statute which

provides a remedy to a Section 1983 plaintiff does not preclude a concurrent federal claim, the

Court held that the DC APA did not preclude a Section 1983 claim. Dist. Properties Assocs.,

743 F.2d at 27.

       Defendants argue that under District Properties Associates, because Congress was acting

as a local legislature for the District when it passed the School Reform Act, and because there is

no congressional intent to the contrary, the School Reform Act should “be treated as local law,

interacting with federal law as would the laws of the several states.” Id. It follows that if the




                                                 24
School Reform Act is treated as local law, it is not the supreme law of the land under the

Supremacy Clause, and Count II must be dismissed.

       The analysis is not that simple, however. In District Properties Associates, the Court

specifically relied on Section 1983 in its analysis. Section 1983 includes a provision that “[f]or

the purposes of this section, any Act of Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the District of Columbia.” Dist. Properties

Assocs., 743 F.2d at 27) (internal quotation marks and citation omitted). Thus, while Congress

identified the treatment that D.C.-specific laws were to receive under Section 1983, Congress’

choice of how to treat D.C.-specific laws in a particular statute is not dispositive with respect to

the status of such laws under the Constitution.

       The decision in McKinney-Byrd similarly appears at first blush to answer the question,

but falls short in the same way as District Property Associates. In McKinney-Byrd, the court

held that because the School Reform Act should be treated as a local law, it was not a “law[] . . .

of the United States” sufficient to confer federal question jurisdiction pursuant to 28 U.S.C.

§ 1331. 2005 WL 1902873, at *2. Under that logic, the School Reform Act would also not be a

“Law[] of the United States” under the Supremacy Clause. However, for purposes of federal

question jurisdiction, Congress has determined how to treat District law, specifically explaining

that “references to laws of the United States or Acts of Congress do not include laws applicable

exclusively to the District of Columbia.” 28 U.S.C. § 1366. Congress thus specifically carved

out Acts of Congress that apply exclusively to the District from the “laws of the United States”

sufficient to confer jurisdiction on the federal courts. Neither McKinney-Byrd nor District




                                                  25
Property Associates considered the Supremacy Clause at all, and their analysis of D.C. law in the

context of specific statutory frameworks is of limited use here. 5

       The cases cited by Plaintiffs also do not squarely answer the question. Plaintiffs cite

cases where courts, including the D.C. Circuit, have applied the preemption doctrine to

Congressional legislation applicable only within the District. 6 Plaintiffs argue that because

courts have applied the preemption doctrine to laws applicable only within the District, this

shows that the Supremacy Clause applies to these laws, because the preemption doctrine arises

out of the Supremacy Clause. However, the cases Plaintiffs cite have either specifically avoided

the question of whether they were invoking the Supremacy Clause, or have stated that while they

applied preemption analysis, that analysis was not grounded in the Supremacy Clause. For

example, the D.C. Circuit in Don’t Tear It Down, Inc. v. Pennsylvania Ave. Dev. Corp. suggested

that preemption doctrine flows from the Supremacy Clause, and engaged in a preemption

analysis, but also made clear that “[w]e need not undertake precise definition of the

governmental status of the District of Columbia, for surely the preemption doctrine effects


5 The court in McKinney-Byrd does not cite 28 U.S.C. § 1366, and the court in District Property
Associates only obliquely references the text of Section 1983 as the basis for its decision. While
it may therefore be unclear to what extent those courts relied on these statutes in their analysis, it
is clear that neither court raised or discussed the Supremacy Clause, and this court does not find
those cases dispositive with respect to the Supremacy Clause question here.
6 Plaintiffs cite Cohens v. Virginia, 19 U.S. 264 (1821), where Chief Justice Marshall held that
“Congress is not a local legislature, but exercises this particular power, like all its other powers,
in its high character, as the legislature of the Union.” Id. at 429. In that section of the opinion,
the Supreme Court was considering its federal question jurisdiction—that is, whether the District
of Columbia law at issue was considered a law of the United States sufficient to confer
jurisdiction on the federal courts. As has been discussed, later courts have held, contrary to
Cohens, that such laws are not laws of the United States, and in any event Congress has
withdrawn any such jurisdiction in 28 U.S.C. § 1366. On the merits, the Cohens court also
seemed to change course, explaining that the law in question applied only within the District,
meaning Congress could not have meant it to affect any laws outside the District, including a
contradictory law in Virginia. Given the uncertainty of the court’s treatment of the law at issue,
and given that Cohens does not discuss the Supremacy Clause, it is of limited usefulness here.

                                                  26
District of Columbia legislation no less than state enactments.” 642 F.2d 527, 534 n.65 (D.C.

Cir. 1980). Likewise, the D.C. Circuit undertook a preemption analysis in Firemen’s Ins. Co. of

Washington, D. C. v. Washington, 483 F.2d 1323 (D.C. Cir. 1973), but did not reference the

Supremacy Clause.

        The seeming inconsistency between applying the preemption doctrine but not invoking

the Supremacy Clause on which it is based is explained in Maryland & D.C. Rifle & Pistol

Ass’n, Inc. v. Washington, 442 F.2d 123 (D.C. Cir. 1971) and Biotechnology Indus. Org. v.

District of Columbia, 496 F.3d 1362 (Fed. Cir. 2007).

        In Rifle & Pistol Ass’n, the D.C. Circuit considered whether the District had authority to

issue gun control regulations, or whether Congress had reserved the field of weapons control

solely to itself. The appellant argued that because Congress had passed a gun control law for the

District, the District could not pass its own gun control regulations. The D.C. Circuit explained

that the inquiry was “whether Congress, by enacting the 1932 gun control law, preempted the

field so as to thereafter preclude the regulation of firearms by the District,” or more importantly,

“whether in [entering the same field] they have clashed.” Rifle & Pistol Ass’n, 442 F.2d at 130.

These are questions of field and conflict preemption—normally doctrines grounded in the

Supremacy Clause. However, the D.C. Circuit explained that it was the relationship between the

District and Congress as set out in the District Clause—not the Supremacy Clause—which drove

the analysis:

        While the District is invested with broad authority to prescribe local regulations,
        the ultimate power to legislate for the District resides solely in Congress. . . .
        Congressional enactments prevail over local regulations in conflict with them, of
        course, and Congress may at any time withdraw authority previously delegated to
        the District, and any regulations dependent on the delegation then lapse. But, just
        as clearly, Congress may indulge the District in the exercise of regulatory powers,
        enabling it to provide for its needs as deemed necessary or desirable.



                                                 27
Id. at 129-30. Thus, it was the withdrawal of delegated authority pursuant to the District Clause

which formed the basis of the preemption analysis in Rifle & Pistol Ass’n, not Congress’

enactment of the supreme law of the land. The test the Court applied was whether Congress

permitted concurrent authority or withdrew it, and “[t]he test of concurrent authority, this court

indicated many years ago, is the absence of conflict with the legislative will. As the court

declared in French v. District of Columbia, where ‘the subject (is) peculiarly within the scope of

the (expressly delegated) police powers of the municipality, the exercise of authority ought not to

be questioned unless clearly inconsistent with the expressed will of Congress.’” Id. at 130-31

(quoting French v. District of Columbia, 32 App. D.C. 106, 108 (D.C. Cir. 1908)).

       The Federal Circuit succinctly described this relationship as follows:

       The plaintiffs argue that the Act cannot stand because it is preempted by superior
       federal law. While this case implicates supremacy principles, we note that it does
       not deal with an alleged conflict between a state regulation and a federal law
       requiring the application of the Constitution’s Supremacy Clause. The District of
       Columbia is federal territory whose self-governance is authorized by Congress, so
       the [local legislation] is in some sense a form of federal regulation. Nevertheless,
       as between District statutes and superior enactments by Congress, the general
       principles of preemption from Supremacy Clause law apply.

Biotechnology Indus. Org., 496 F.3d at 1371 (internal citation omitted). Therefore, while the

analysis has all the trappings of the Supremacy Clause, the Supremacy Clause itself does not

apply. Acts of Congress applicable exclusively to the District do not preempt local legislation

because they are the supreme law of the land under the Supremacy Clause, but instead because

they are the “supreme” law of the District under the District Clause. 7 However, Supremacy

Clause-like preemption doctrine is important in such cases because the analysis is essentially the

same, with the question being whether Congress intended its enactment to be superior or not.


7This assumes, of course, that Acts of Congress are in fact superior to local laws, as discussed
above.

                                                 28
The upshot for Plaintiffs is that while their claim will receive similar analysis either way, that

analysis is only appropriate pursuant to the District Clause under Count I. Count II must be

dismissed because the Supremacy Clause does not apply here.

       This result is appropriate for a number of reasons. The first is that the text of the

Supremacy Clause itself opens by stating that “[t]his Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made,

under the Authority of the United States, shall be the supreme Law of the Land.” U.S. Const.,

art. VI, cl. 2. For the Supremacy Clause to apply, laws that apply exclusively within the District

would need to be considered “Laws of the United States.” The measure of “[w]hether the

District of Columbia constitutes a ‘State or Territory’ within the meaning of any particular . . .

constitutional provision depends upon the character and aim of the specific provision involved.”

District of Columbia v. Carter, 409 U.S. 418, 420 (1973). As discussed above, numerous cases

have held that laws that apply exclusively to the District are not laws of the United States for

Section 1983 or federal question jurisdiction purposes,8 and Congress has exempted D.C.

legislation as “laws of the United States” for federal question purposes. This distinction is

sensible when considering the difference between normal Acts of Congress and enactments for

the District. Given the failures of the Articles of Confederation in resolving differences between

the states and the federal government, the Constitution made supreme those laws passed in

Congress’ customary role as national legislature to effectuate our federal system of government

and make clear that the states could not override the will of the federal government. Laws that


8 See also Key v. Doyle, 434 U.S. 59, 68 n.13 (1977) (“It is more the nature of the D.C. Code
than its limited geographical impact that distinguishes it from other federal statutes. Unlike most
congressional enactments, the Code is a comprehensive set of laws equivalent to those enacted
by state and local governments having plenary power to legislate for the general welfare of their
citizens.”).

                                                 29
apply exclusively within the District, by contrast, have no effect outside the District, and can

never truly conflict with other Congressional enactments (as state laws might) because Congress

always has final authority within the District.

       The second clause of the Supremacy Clause states that “the Judges in every State shall be

bound [by the supreme law of the land], any Thing in the Constitution or Laws of any State to

the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2. While sometimes treated as one for

limited purposes, ultimately the District is not a state. See Palmore v. United States, 411 U.S.

389, 395 (1973). Therefore, it is questionable whether there are any state judges in the District

bound by the Clause, or whether there is a state constitution or state laws that could ever be in

conflict with the supreme law of the land. Indeed, given that at the time the Constitution was

enacted there was no District legislature to pass laws that could conflict with Congress, see

Marijuana Policy Project, 304 F.3d at 83 (“For most of the first 171 years following the District

of Columbia’s 1802 incorporation, Congress exercised ‘exclusive’ authority over the District

through direct legislation and appointment of local governors with no input from residents.”), it

is hard to fathom that the Founding Fathers intended the Supremacy Clause to apply to the

District where the only District laws that could exist were Congress’ own laws passed pursuant

to the District Clause.

       Application of the Supremacy Clause is further complicated by the fact that Congress

must approve, albeit passively, D.C. Council legislation. Under the Home Rule Act, Congress

has thirty days to veto Council legislation before it automatically becomes law. As other courts

have noted, there is inherent difficulty in assuming that the Supremacy Clause applies to Acts of




                                                  30
Congress vis-à-vis other Acts of Congress,9 or that a law that Congress approves, even passively,

can be superseded by a different Congressional law pursuant to the Supremacy Clause. 10 See

Barnes v. District of Columbia, 611 F. Supp. 130, 134-35 (D.D.C. 1985) (“It is difficult to

reconcile this control exercised by Congress and its implicit approval of the legislation with the

concept that a law subject to the 30-day review period violates the Supremacy Clause.”).

       For all these reasons, the court finds that the Supremacy Clause does not apply to Acts of

Congress applicable exclusively to the District. Defendants’ motion to dismiss Count II is

therefore granted.

           c. School Reform Act

       The parties agree that Count III, alleging violation of the School Reform Act, rises and

falls with Counts I and II. Defendants argue that because the District has authority to amend or

repeal the School Reform Act, the District cannot have violated it. Because the court finds that

Count I survives because Plaintiffs have pled a plausible claim for relief, and because the exact

boundaries of the District’s actions under the School Reform Act and whether they are

permissible under the Home Rule Act remain unclear, the court similarly finds that Plaintiffs

have pled a violation of the School Reform Act sufficient to survive a motion to dismiss.




9 See Calloway v. District of Columbia, 216 F.3d 1, 5-6 (D.C. Cir. 2000) (“Even assuming the
Supremacy Clause applies to Congress when it legislates for the District under Article I, section
8 of the Constitution—a proposition for which we have found no persuasive support—the
families’ argument suffers from a fatal weakness: it requires us to believe that Congress enacted
section 130 for the purpose of having it instantaneously preempted by a statute enacted over a
decade earlier.”).
10The court will not opine on the applicability of the Supremacy Clause as between District laws
and federal legislation. It is enough to say that under these circumstances—a purported conflict
between an Act of Congress that applies solely to the District and D.C. Council legislation—the
Supremacy Clause does not apply.

                                                31
   IV.      CONCLUSION

         For the foregoing reasons, Defendants’ motion to dismiss is granted with respect to Count

II and denied with respect to Counts I and III. An appropriate Order accompanies this

Memorandum Opinion.



Date: September 30, 2015


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




                                                32
