D.C. Attorney General Irvin B. Nathan has rejected arguments from charter school advocates that city funds must be distributed to charters and DCPS on a uniform per-student basis.

Nathan’s letter to Robert Cane, executive director of FOCUS, is a bit of a slog, but it seems to come down to three points. First, Nathan finds that there’s nothing in the D.C. School Reform Act of 1995 (SRA)--the law passed by Congress that launched the charter movement here--that prevents the city from treating the Uniform Per Student Funding Formula as a legal minimum. Second, the mayor, the D.C. Council and the old D.C. Board of Education have all established precedent over the years by giving extra money to DCPS. Third, Congress could have objected, but it hasn’t.

FOCUS and the city have been arguing about this for years. Nathan’s analysis is essentially a reprise of a 2007 opinion issued on former city attorney general Peter Nickles’s watch. It became an issue again last month when Mayor Vincent C. Gray announced that he would ask the D.C. Council to steer $21.4 million in unanticipated revenue to DCPS to cover cost overruns. In an e-mail accompanying Nathan’s letter, Deputy Mayor for Education De’Shawn Wright said that DCPS’ budget had to be kept in balance “to avoid raising the specter of the Control Board.”

“We will continue working with both DCPS and the CFO to control unexpected costs, and are taking aggressive action to ensure DCPS remains within its approved budget,” Wright said. “The Mayor has been, and continues to be, a passionate advocate for charter schools in the District.”

In his opinion, Nathan said that the language of the SRA “is not so specific as to preclude a reasonable interpretation that the District may use the statutory formula to set a minimum baseline budget for funding DCPS and public charter schools without dictating what money, above that minimum level, may be allocated either.”

Nathan also noted that past actions of the mayor, D.C. Council and the old Board of Education, the players involved in implementing the SRA and the 1999 law creating the uniform funding formula, all approved expenditures outside the formula. “Thus their interpretations of those acts are entitled to deference,” Nathan wrote.

Nathan also noted that the D.C. Council is free to amend Congressional legislation aimed specifically at the District, as long as there are clear indications that Congress didn’t want that to happen. If that were the case, he said, Congress would have pushed back when the Council amended the SRA to say that it was not obligated to provide extra money.

Cane called Nathan’s analysis “completely wrong” and said it undermines the notion of uniform funding built into the SRA by Congress.

“There’s plenty in the School Reform Act that makes it totally clear that Congress wanted uniform operating funding for all D.C. kids,” Cane said. “The legislative history confirms this.”

Cane said Gray, who campaigned in 2010 on the issue of funding equity for charters, needed to be called to account. “Where’s the Vince Gray who campaigned on the basis of uniformity of funding? Where is he?”