The drama over whether California is disqualified from competing for a share of the $4.35 billion Race to the Top Fund may end up before the singular Jerry Brown, the state’s attorney general and a candidate for governor in 2010. Mr. Brown (a former two-term governor, first elected in 1974) has apparently been tasked with parsing a section of the state education code that the Obama Administration has said prohibits the use of student achievement data to appraise the effectiveness of teachers.

Yesterday, at a Washington gathering of education bigwigs involved with the Strategic Management of Human Capital project, there was lots of talk about the Race to the Top competition and the prospect that California, with an eye-popping 7 million public school students, would be shut out of getting any of that money because of its so called data “fire wall.” Linking student data and teacher evaluations is proposed to be a non-negotiable requirement for states to be eligible for the money.

Last week, California’s schools chief Jack O’Connell came out publicly to say that state law doesn’t keep local school districts from using student data in that very way and pointed to Long Beach Unified as an example, albeit a rare one.

So whose interpretation is right and how do we know that the former Gov. Moonbeam must weigh in on this matter?

Yvonne Chan, the principal at Vaughn Next Century Learning Center in Los Angeles, and a member of California’s state board of education, took advantage of a moment of face-to-face access to Education Secretary Arne Duncan at the SMHC meeting to inquire. Ms. Chan told us that Sec. Duncan said that “it’s up to Jerry Brown” to interpret what the law really allows for. That was news to her, so she headed off to make some calls back home to share that tidbit.

We got no such candor from the secretary when we asked about the California situation. “They can put their best foot forward and apply,” is all he told us before adding, “just use my quotes from before on California.” Thanks, Mr. Secretary.

In any case, putting the matter in Jerry Brown’s hands should prove interesting. He is the top legal counsel to state officers, state agencies, boards and commissions, so it certainly seems within his job description to review this matter. And the proposed Race to the Top rules require that attorney generals sign off on any state statutes presented as evidence of eligibility. But the politics could get dicey for Brown. As a Democratic candidate for governor next year, he may be reluctant to tick off the powerful 340,000-member California Teachers Association, which has been steadfastly opposed to linking student achievement data to teacher evaluations. On the other hand, as mayor of Oakland, he founded two charter schools, one of them military-themed, and otherwise showed an independent streak when it came to education issues.

On a totally unrelated but irresistible Jerry Brown side note...check out his gubernatorial portrait, the coolest of the lot of them hanging around the Capitol building in Sacramento.