United States District Court, District of Columbia
ASSOCIATION OF INDEPENDENT SCHOOLS OF GREATER WASHINGTON, et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants.
E. BOASBERG United States District Judge
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 (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.
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.
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'
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
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 “private entit[ies] licensed by the
District government [with] employees who work in
safety-sensitive positions [to] establish mandatory drug and
alcohol testing policies and procedures that are consistent
with the” Act. Id., § 1-620.36.
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.
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).
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.
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 (OSSE Email, Jan. 14.
2014). 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.
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.
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
“made certain allowances and granted licenses in a
manner inconsistent with the law[, ]. . . [t]his approach is
not endorsed by OSSE's current leadership, ” 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 around drug and
alcohol testing.” Id.
months later, on January 11, 2016, the River School received
a Notice of Intent to Revoke its child-development-center
license. See ECF No. 2-17 (Notice of Revocation).
According to the notice, the School's license would be
revoked by February 24, 2016, for failure to “establish
mandatory drug and alcohol testing policies and procedures
that are consistent with the requirements of District law for
safety-sensitive employees.” Id. at 2. Faced
with this penalty, the School “adopted a drug and
alcohol testing policy that included random testing, ”
as did the other eight AISGW member schools that hold OSSE
licenses as child-development facilities. See
Compl., ¶¶ 35, 7.
September 6, 2016, Plaintiffs filed the instant suit. Their
Complaint alleges that requiring child-development facilities
such as the River School to implement a random drug- and
alcohol-testing policy is a violation of (1) the Fourth
Amendment and (2) the District of Columbia's
Administrative Procedure Act. See Compl.,
¶¶ 52-56. The following month, Defendants requested
a 90-day stay of proceedings pending legislative review by
the D.C. Council. See ECF No. 12. Plaintiffs agreed
to the stay and to withdraw their motion for a preliminary
injunction based on the condition that OSSE would not enforce
the random-testing requirement during the course of
litigation. See ECF No. 20 (Joint Stipulation and
Request for Briefing Schedule). In total, Defendants
successfully requested three additional stays of proceedings.
See Minute Orders of Jan. 25, 2017, Apr. 25, 2017,
July 24, 2017.
December 2016, while this case was stayed, OSSE published
rules implementing CYSHA - including regulations addressing
mandatory drug and alcohol testing for licensed
child-development facilities. See 5-A DCMR §
136. These regulations require testing of employees prior to
employment, upon reasonable suspicion, and post-accident, but
do not address random, suspicionless testing. Id.,
§ 136.3. OSSE, nonetheless, continues to require such
testing pursuant to its authority to interpret and implement
year after this case was first filed, Defendants notified
Plaintiffs that there had been no legislative development
regarding CYSHA. On December 1, 2017, Defendants thus filed
their Motion to Dismiss. See ECF No. 22. On January
15, 2018, Plaintiffs filed their Opposition and a
Cross-Motion for Summary Judgment. See ECF No.
23-24. These are now ripe.
Standard of Review
bring their Motion to Dismiss pursuant to both Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6), alleging that this
Court lacks subject-matter jurisdiction over Plaintiffs'
DCAPA claim and that their Fourth Amendment count fails to
state a claim upon which relief can be granted. Because the
Court does not address the DCAPA claims, it sets out only the
12(b)(6) standard below.
Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6), a court must
dismiss a suit when the complaint “fail[s] to state a
claim upon which relief can be granted.” In evaluating
a motion to dismiss under Rule 12(b)(6), a court must
“treat the complaint's factual allegations as true
and must grant plaintiff the benefit of all inferences that
can be derived from the facts alleged.” Sparrow v.
United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.
2000) (internal quotation marks and citation omitted);
see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A court need not accept as true, however, “a
legal conclusion couched as a factual allegation, ” or
an inference unsupported by the facts set forth in the
complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C.
Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265,
286 (1986)). Although “detailed factual
allegations” are not necessary to withstand a Rule
12(b)(6) motion, Bell ...