Ass'n of Indep. Sch. of Greater Wash. v. Dist. of Columbia
| Decision Date | 26 April 2018 |
| Docket Number | Civil Action No. 16–1778 (JEB) |
| Citation | 311 F.Supp.3d 262 |
| Parties | ASSOCIATION OF INDEPENDENT SCHOOLS OF GREATER WASHINGTON, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Arthur B. Spitzer, American Civil Liberties Union of the District of Columbia, Steven Andrew Engel, Dechert, LLP, Washington, DC, May K. Chiang, Dechert LLP, New York, NY, for Plaintiffs.
Fernando Amarillas, Michael A. Tilghman, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.
The Fourth Amendment's requirement of individualized suspicion stands as a bulwark against impermissible intrusions upon our citizens' persons, places, and effects. In a "closely guarded category" of contexts, however, Chandler v. Miller, 520 U.S. 305, 309, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997), the government may be permitted to circumvent this constraint where its needs outweigh individuals' privacy interests. Here, the Court must determine whether private nursery-school teachers in the District of Columbia fall within the narrow band of those who can be subjected to a random, suspicionless search regime.
In 2004, the District passed the Child and Youth Safety and Health Omnibus Amendment Act and established a series of drug- and alcohol-testing policies for individuals who work with children, including employees of private childcare facilities. Nearly a decade later, in 2013, the office responsible for licensing such facilities announced that it was interpreting the Act so as to require the random, suspicionless testing of their personnel. Under these new rules, nursery schools were required to subject their staff to such testing or face the loss of their licenses.
Plaintiffs in this case—the Association of Independent Schools of Greater Washington, the River School, and two individual teachers—are now challenging that testing policy. They set forth two counts in their Complaint, alleging that the testing requirement violates both the Fourth Amendment and the D.C. Administrative Procedure Act. They additionally contend that the District is bound in this case by the doctrine of collateral estoppel, as an earlier administrative determination prevented the revocation of a nursery school's license for its refusal to impose such testing. The District now moves to dismiss, and Plaintiffs have responded with their own Cross–Motion for Summary Judgment. Finding that the District's random testing runs afoul of the Fourth Amendment, the Court will grant Plaintiffs' Motion.
Because both sides have filed dispositive motions, the facts cannot be set forth in the light most favorable to the non-moving party. Fortunately here the facts that matter are essentially all undisputed.
The context for this case begins over a decade ago, when the city passed the Child and Youth Safety and Health Omnibus Amendment Act of 2004 (CYSHA). The Act was implemented, in part, to address the "tragic effects of drug or alcohol permeating youth group homes" and to prevent "catastrophic consequences" that could result from employees "being under the influence of drugs or alcohol." Council of the District of Columbia, Committee on Human Services, Report on Bill 15–607 (Nov. 12, 2004). To that end, the Act introduced random drug and alcohol testing for those employees in "safety-sensitive positions." Id. CYSHA defines such childcare positions as those in which: (a) the employee has direct contact with children or youth; (b) she is entrusted with the direct care and custody of children or youth; and (c) the performance of her duties in the normal course of employment may affect the health, welfare, or safety of children or youth. See D.C. Code § 7–2031. For these employees, the Act provides for a regime of suspicionless, random urine testing to be "performed by an outside contractor" at a District-certified laboratory. Id., § 1–620.34(a). The statute also requires Act. Id., § 1–620.36.
The relevant entities in this case—viz. , child-development facilities—are licensed by the Office of the State Superintendent of Education (OSSE). Under the Child Development Facilities Regulation Act, OSSE has the authority to license those facilities that are "a center, home, or other structure that provides care and other services, supervision, and guidance for children, infants, and toddlers on a regular basis." Id., § 7–2031(3). Infants are defined as those younger than 12 months, while toddlers are children between 12 and 24 months of age. Id., § 7–2031(4), (8). The Act, however, explicitly does not address "public or private elementary or secondary school[s] engaged in legally required educational and related functions or a pre-kindergarten education program licensed pursuant to the Pre–K Act of 2008." Id., § 7–2031(3). OSSE's licensing authority thus applies only to those facilities serving infants, toddlers, and children that are not public or private pre–K, elementary, or secondary programs.
Nearly a decade after the passage of CYSHA, OSSE first addressed the intersection of the Act and its licensing authority. In April 2013, the Office issued a memorandum to licensed childcare providers requiring them to conduct random drug and alcohol testing of their employees. According to the memo, "[A]ny personnel who work ... in a childcare development facility" were considered "safety sensitive" and thus would be "required to participate in a drug and alcohol testing program that tests applicants before they begin work and employees periodically and randomly." Exh. B (OSSE Memo) at 1. This was followed by subsequent memoranda that provided dates of training sessions regarding compliance and addressed FAQs on the policy, the latter of which stated that "drug/alcohol testing should be conducted during the pre-employment process, randomly, and whenever there is a reasonable suspicion that someone might be using drugs or alcohol." Exh. D (OSSE FAQs).
In issuing these policies, OSSE introduced a testing regime for child-development facilities distinct from that applicable to DCPS and D.C. charter-school employees. Under the governing regulations for those individuals, which are promulgated by the District's Department of Human Resources, employees who "[c]oordinate, develop, or support recreational activities," "[m]anage, plan, direct, or coordinate educational activities, "[p]erform tasks involving individual or group counseling," or "[a]ssess, monitor, or support childcare activities" are considered "protection sensitive," rather than "safety sensitive." 6–B DCMR § 411.2. This means that District public- and charter-school teachers are not subject to random, suspicionless testing. Id., §§ 430.1, 411.
In January 2014, an OSSE employee forwarded an email titled "License Renewal Drug Testing" to Tracy R. Armstrong, the Director of Human Resources at the River School. The School, where individual plaintiffs Katherine Brebbia and Lauren Walence are both employed, is located in Washington, D.C., and educates children from eighteen months to third grade. See Compl., ¶¶ 8, 10–11. The OSSE email informed River that it would be required to implement random drug testing "aligned with CYSHA requirements." ECF No. 2–11 ). According to the Office, that meant that (1) the School must conduct pre-employment testing through an outside vendor; (2) the School must determine the percentage of employees to be tested; (3) the School must submit a list of all employees to an outside vendor for the random selection of employees to be tested; (4) each quarter, the outside vendor must send a list of those employees to be randomly tested to the School; and (5) the School must notify current employees in writing of the testing procedure before it is implemented. Id. at 2.
From April 2014 through June 2015, River objected to the random drug-testing requirements announced by OSSE. In November 2014, it sent a letter to OSSE detailing its refusal to adopt a random, suspicionless testing policy. See May Chiang Decl., Exh. G (Nov. 2014 Letter to OSSE); Nancy Mellon Decl., Exh. 5, ¶¶ 24–25. On June 19, 2015, the D.C. State Superintendent of Education Hanseul Kang provided the School with "an official explanation ... regarding drug testing by private institutions and lay[ing] out the requirements for full licensing." Chiang Decl., Exh. H (June 2015 Kang Letter). This letter clearly stated that child-development facilities must establish pre-employment and random drug testing for all employees, and that enforcement of the testing provisions was "a requirement for licensure" of such facilities. Id.
In June 2015, the Association of Independent Schools of Greater Washington (AISGW) responded to Superintendent Kang with a letter requesting immediate relief from the random-testing requirement for three of its member schools, including the River School. See ECF No. 2–15 (June 2015 AISGW Letter). In August 2015, Kang sent back a letter making clear that the AISGW schools would be required to implement the policy. Although she acknowledged that OSSE has previously and it was the "policy of the District of Columbia that private, licensed child care providers must engage in drug and alcohol testing for employees." ECF No. 2–16 (Aug. 2015 OSSE Letter). Recognizing, however, that it would "take time for certain facilities to comply with the requirements," Kang agreed to extend River's license while it developed "policies and procedures necessary to comply with the legal provisions...
To continue reading
Request your trial
-
Ass'n of Indep. Sch. of Greater Wash. v. Dist. of Columbia, Civil Action No. 16–1778 (JEB)
...policy pertaining to employees of childcare facilities violated the Fourth Amendment. See Ass'n of Indep. Sch. of Greater Washington v. D.C., 311 F.Supp.3d 262, 2018 WL 1972459 (D.D.C. Apr. 26, 2018). The Court determined that the random drug-testing requirements imposed by the District's O......