Association of Independent Schools of Greater Washington v. District of Columbia

          MEMORANDUM OPINION

          JAMES E. BOASBERG United States District Judge

         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 (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.

         I. Background

         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.

         A. Factual History

         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 “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.

         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 (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.

         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 “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.

         Five 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.

         B. Procedural History

         On 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.

         In 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 CYSHA.

         Over a 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.

         II. Standard of Review

         Defendants 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.

         A. Motion to Dismiss

         Under 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 ...