UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ASSOCIATION OF INDEPENDENT SCHOOLS OF GREATER WASHINGTON, et al.,

Plaintiffs, v. Civil Action No. 16-1778 (JEB) DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION

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,

(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.

1 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.”

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;

2 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

. 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.

§ 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

3 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

4 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

5 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

6 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.,

(D.C. Cir. 2000) (internal quotation

marks and citation omitted); see also Ashcroft v. Iqbal,

(2009). A court need

not accept as true, however, “a legal conclusion couched as a factual allegation,” or an inference

7 unsupported by the facts set forth in the complaint. Trudeau v. FTC,

(D.C.

Cir. 2006) (quoting Papasan v. Allain,

(1986)). Although “detailed factual

allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly,

(2007), “a complaint must contain sufficient factual matter, [if] accepted as

true, to state a claim to relief that is plausible on its face.” Iqbal,

(internal

quotation marks omitted).

B. Motion for Summary Judgment

In addition to opposing Defendants’ Motion to Dismiss, Plaintiffs bring their own Cross-

Motion for Summary Judgment. Summary judgment may only be granted if “the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc.,

(1986); Holcomb v. Powell,

(D.C. Cir. 2006). A fact is “material” if it

is capable of affecting the substantive outcome of the litigation. See Liberty Lobby,

; Holcomb,

. A dispute is “genuine” if the evidence is such that a reasonable

jury could return a verdict for the non-moving party. See Scott v. Harris,

(2007); Holcomb,

. “A party asserting that a fact cannot be or is genuinely

disputed must support the assertion” by “citing to particular parts of materials in the record” or

“showing that the materials cited do not establish the absence or presence of a genuine dispute,

or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

56(c)(1).

When a motion for summary judgment is under consideration, “[t]he evidence of the non-

movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty

Lobby,

; see also Mastro v. PEPCO,

(D.C. Cir. 2006); Aka v.

8 Wash. Hosp. Ctr.,

(D.C. Cir. 1998) (en banc). On a motion for summary

judgment, the Court must “eschew making credibility determinations or weighing the evidence.”

Czekalski v. Peters,

(D.C. Cir. 2007).

III. Analysis

Before turning to the merits of Plaintiffs’ Fourth Amendment claim, the Court looks

briefly at the threshold question of standing. The District asserts that “[b]oth AISGW and The

River School lack standing to assert a claim under the Fourth Amendment.” MTD at 34.

According to Defendants, “Courts have routinely concluded that Fourth Amendment rights are

personal rights,” and thus AISGW and River “improperly seek to assert a Fourth Amendment

claim on behalf of” the employees of child-development facilities. Id. at 35. Asserting that these

Plaintiffs lack third-party standing, the District argues that they should be dismissed as parties.

Id. at 36.

Plaintiffs reply that both AISGW and the River School do in fact have standing to

challenge government-mandated drug testing on behalf of their members and employees. See

MSJ at 33-35. More importantly, however, Plaintiffs correctly note that the Court need not wade

deeply into the waters of Article III, as Defendants do not dispute that the individual Plaintiffs in

this case – Brebbia and Walence – have standing to pursue their own Fourth Amendment claims.

“To proceed to the merits of [a] claim[],” the Court “need only find one party with standing.”

Americans for Safe Access v. Drug Enforcement Admin.,

(D.C. Cir. 2013).

Here, there are two such parties, as both Brebbia and Walence are suffering an injury that is

9 caused by the testing requirements and can be redressed by the Court. See Lujan v. Defs. of

Wildlife,

(1992).

As Plaintiffs may proceed with their claims, the Court will separately examine the merits

of collateral estoppel and the Fourth Amendment allegations below. Because Plaintiffs are

entitled to summary judgment on their constitutional count, the Court need not go on to analyze

their DCAPA claim.

A. Collateral Estoppel

To begin: should the District even be permitted to defend its suspicionless-testing

requirements here or is it barred from doing so under one form of collateral estoppel? According

to Plaintiffs, Defendants are estopped from arguing here that employees of child-development

facilities occupy “safety-sensitive” positions that require them to submit to random, suspicionless

drug testing. This line of argument is based off a May 3, 2016, decision by Administrative Law

Judge Paul B. Handy in St. Paul’s Lutheran Nursery School v. District of Columbia Office of the

State Superintendent of Education, which addressed a different challenge to the OSSE drug

testing. See Chiang Decl., Exh. A, Case No. 2015-OSSE-00011 (D.C. Office of Admin.

Hearings) (May 3, 2016). St. Paul’s Lutheran Nursery School initiated the action before the D.C.

Office of Administrative Hearings (OAH) after receiving OSSE’s notice of intent to revoke the

school’s child-development-facility license for failure to implement the random-testing

requirement. See OAH Order at 2, 6. AISGW participated in the case by filing an amicus brief

in support of St. Paul’s and presenting at oral argument. Id. at 3.

After seven months of proceedings and a two-hour administrative hearing on April 22,

2016, ALJ Handy issued a Final Order prohibiting OSSE from revoking St. Paul’s license for

failure to implement suspicionless drug and alcohol testing. The Order concluded that, “in order

10 to avoid an unconstitutional result,” “the CYSHA . . . must be construed in such a manner that

teachers and others who come into contact with children are not considered ‘safety-sensitive’

employees subject to random drug and alcohol testing.” Id. at 9. Three weeks later, OSSE filed

a motion with OAH seeking reconsideration of the Final Order, which was subsequently denied

on July 28, 2016. See MTD, Exh. L (OAH Order Denying Reconsideration). OSSE then had

thirty days to petition for judicial review of that determination in the D.C. Court of Appeals, see

D.C. App. R. 15(a)(2), but the Office did not appeal. Plaintiffs argue that, in light of the final

OAH Order addressing the constitutional implications of the random, suspicionless testing of

child-development-facility employees, Defendants are now estopped from enforcing such a

requirement against AISGW schools.

In asserting such a bar, Plaintiffs ask this Court to apply the doctrine of non-mutual

offensive collateral estoppel, which may be used where “a plaintiff seeks to estop a defendant

from relitigating issues [that] the defendant previously litigated and lost against another

plaintiff.” Ali Baba Co. v. WILCO, Inc.,

(D.C. 1984) (citing Parklane

Hosiery Co. v. Shore,

(1979)). To invoke this oddly titled doctrine, the parties

in the instant action need not be those in the prior suit – i.e., “mutuality is not required.” K.H.,

Sr. v. R.H.,

, 333-34 (D.C. 2007). Instead, it is the issue that must remain the same,

and that issue “must have been raised and litigated, and actually adjuged.” Id. (citation omitted).

Here, Defendants argue both that the St. Paul’s decision does not fulfill the basic

prerequisites for non-mutual collateral estoppel and that the discretionary factors counsel against

applying the doctrine in this case. They additionally assert that, in order to invoke the doctrine

against the District, Plaintiffs must demonstrate “affirmative misconduct by a government

11 agenct.” Def. Reply at 5. As AISGW, unsurprisingly, dissents, the Court looks at each

contention in turn.

1. Issue Previously Litigated

Plaintiffs’ central point is that the issue that was raised, litigated, and actually adjudged in

St. Paul’s was whether “teachers at OSSE licensees are . . . safety-sensitive employees who can

be subjected to random suspicionless drug and alcohol testing under CYSHA.” MSJ at 18. The

ALJ’s decision in the negative, according to AISGW, was “rendered after full adversary

proceedings” that provided the parties with “a full and fair opportunity to litigate” and thus

should be considered “binding on OSSE here.” Id. at 17-18.

The Court begins with the identity of the issues. It is clear that the issue raised and

litigated before ALJ Handy is the same as that before this Court – namely, the constitutional

implications of allowing child-development-facility teachers to be deemed “safety-sensitive” and

thus subject to random drug and alcohol testing. The “dispositive” question articulated in St.

Paul’s was whether OSSE could, pursuant to CYSHA, require “random drug and alcohol testing”

of “teachers and others who come into contact with children.” OAH Order at 89. The issue

before the Court today is precisely that. Given the breadth of the issue identified as conclusive in

the OAH Order, moreover, the age difference between the children enrolled at St. Paul’s and

those at AISGW schools does not matter much in distinguishing between the two cases. The

issue before OAH was not limited to the specific ages of the children at St. Paul’s. Rather, that

school was seeking re-instatement of its OSSE license – a license that is identical to those held

by AISGW schools and that does not distinguish between facilities based on the precise ages of

the children they serve. See Pl. Reply at 4. ALJ Handy’s determination relied in no part upon a

reduced need to protect children a year or two older, nor did it suggest that his analysis might

12 differ for younger age groups. The age difference between the respective schools’ student

populations therefore does not preclude the application of collateral estoppel.

The question of whether OSSE-licensed child-development-facility teachers could be

subject to random drug tests was, moreover, “actually litigated,” as it was “contested by the

parties and submitted for determination by the court.” McLaughlin v. Bradlee,

(D.C. Cir. 1986) (citation omitted). Because the District chose not to appeal, moreover, the

OAH decision was the final judgment on this issue. See K.H., Sr., 935 A.2d at 334–35

(applying offensive collateral estoppel when party did not appeal and thus prior judgment stood

“as final with respect to that party”). Such a final administrative determination can clearly bind

OSSE, as “[t]he proposition that administrative proceedings may collaterally estop relitigation in

courts is . . . well established.” Nasem v. Brown,

(D.C. Cir. 1979). “If the

traditional elements of the doctrine are met” and the “agency is acting in a judicial capacity and

resolves disputed issues . . . properly before it which the parties have had an adequate

opportunity to litigate,” an administrative decision can be given collateral-estoppel effect.

(citation omitted). Here, the OAH was clearly acting in a “judicial capacity,” Oubre v. D.C.

Dep't of Employment Servs.,

(D.C. 1993); see Final Order at 2-3 (discussing

rounds of briefing and motions practice before Administrative Judge), and the Final Order

therefore “meets the criteria for application of collateral estoppel principles.” Oubre,

.

2. Factors

Defendants argue that even if this Court could give collateral-estoppel effect to the OAH

decision, it should nonetheless decline to apply the doctrine here. In particular, the District notes

that estoppel is disfavored when the first action was for a trivial amount and the second is for a

13 larger sum, Ali Baba,

, and asserts that the differences in requested relief

between the OAH hearing and this case should counsel against finding a preclusive resemblance.

Yet while St. Paul’s was a challenge to a specific licensing determination, the relief sought here

is analogous to that case – namely, that AISGW schools be permitted to retain their licenses

without requiring random, suspicionless drug and alcohol testing. It does not seem, therefore,

that the distinction in remedies creates a meaningful gulf between the two cases.

In terms of factors favoring estoppel, Plaintiffs argue that the District had “every

incentive to litigate the St. Paul’s proceeding fully,” particularly given that it could have foreseen

additional litigation. See Pl. Reply at 5 (internal quotation marks and citation omitted). As

AISGW notes, it joined St. Paul’s School as an amicus (over the District’s objections), and when

Defendants filed a motion to reconsider the OAH decision, the River School specifically inquired

as to whether it would be subject to any final administrative decision.

Yet even knowing

that other OSSE-licensed schools also opposed the testing requirement, the District nonetheless

declined to appeal. The Court therefore agrees with Plaintiffs that Defendants were on notice as

to likely future challenges to the testing policy and thus cannot now claim they were unfairly

surprised by the advent of this case.

3. Affirmative Misconduct

The Court additionally rejects Defendants’ argument that AISGW must show affirmative

governmental misconduct in order to justify the use of offensive non-mutual collateral estoppel.

Citing to Leekley v. District of Columbia Dep’t of Emp’t Servs.,

(D.C. 1999), the

District argues that for a Plaintiff to apply collateral estoppel against the government, “a party

must generally make a showing of affirmative misconduct by a government agent.” Def. Reply

at 5. Yet, as Defendants’ parenthetical correctly notes, Leekley addressed the applicability of the

14 “doctrine of equitable estoppel” – not non-mutual collateral estoppel – against the government.

(citing Leekley,

). Indeed, D.C. courts have never held that a showing of

affirmative misconduct is a prerequisite to applying offensive non-mutual collateral estoppel

against a government actor. See D.C. Office of Tax & Revenue v. Exxonmobil Oil Corp.,

(D.C. 2016) (discussing application of offensive non-mutual collateral estoppel

against the government without mention of affirmative-misconduct requirement); Gould, 852

A.2d at 57 (same); see also Stormont-Vail Regional Medical Center v. Bowen,

(D.D.C. 1986) (same).

* * *

All of this notwithstanding, Defendants are correct that there is a high bar when it comes

to applying collateral estoppel against the government. Indeed, “[e]stoppels against the public

are little favored, and they generally cannot be asserted against, and are not applicable to, the

government or governmental entities.” D.C. Office of Tax & Revenue,

(citation omitted). As the court cautioned in D.C. Office of Tax & Revenue, estoppel against a

public actor “should not be invoked except in rare and unusual, or exceptional, circumstances,

and may not be invoked where [it] would operate to defeat the effective operation of a policy

adopted to protect the public.”

(citation omitted). In sum, estoppel should “be applied with

circumspection, restraint, reluctance, and caution” and invoked “only in those special cases

where the interests of justice . . . clearly require it.”

Here, although the St. Paul’s decision

meets the basic thresholds for applying collateral estoppel, it is unclear whether Plaintiffs can

demonstrate “exceptional” circumstances supporting its use against the District.

Given that

they prevail on their constitutional claim, the Court need not resolve the estoppel question and

moves instead to the Fourth Amendment.

15 B. Fourth Amendment

Turning to the Fourth Amendment count, the Court next considers whether Plaintiffs are

entitled to judgment as a matter of law on this constitutional claim. As Defendants do not

dispute, the District’s random, suspicionless testing constitutes a “search” and thus implicates the

Fourth Amendment, which protects the “right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures.” This is so even when, as here,

the “search” is conducted by a private employer at the government’s behest. See Skinner v. Ry.

Labor Executives' Ass'n,

, 614–15 (1989); Bluestein v. Skinner,

(9th Cir. 1990) (“[d]rug testing performed by private employers under compulsion of

government regulations constitutes governmental action subject to constitutional restrictions”).

As this Court recently noted, random, suspicionless drug tests are “inherently suspect.”

Lewis v. Gov't of D.C.,

(D.D.C. 2017) (citing Knox Cty. Educ. Ass'n v.

Knox Cty. Bd. of Educ.,

(6th Cir. 1998)). When such searches “serve[ ]

special government needs, beyond the normal need for law enforcement, it is necessary to

balance the individual's privacy expectations against the Government's interests to determine”

whether they are reasonable. See Nat'l Treasury Emps. Union v. Von Raab,

(1989); Lewis,

(court must balance government need for search against

individuals’ privacy interests). That analysis requires courts to “undertake a context-specific

inquiry, examining closely the competing private and public interests advanced by the parties.”

Chandler,

. Here, as both sides agree that the policy falls outside the “normal

need for law enforcement,” the Court must assess the private and government interests at stake

and then determine the balance.

16 1. Individual Interests

Evaluating the individual interests at stake in a “special needs” search takes into account

two factors: (1) the nature of the privacy interest allegedly compromised and (2) the character of

the intrusion imposed. See Board of Educ. of Independent School District No. 92 of

Pottawatomie Cty. v. Earls,

(2002). The Court discusses each in turn.

a. Nature of Privacy Interest

The Court starts from the premise that employees subject to government-mandated drug-

testing regimes generally have a robust interest in their personal privacy. See Lewis,

. The question, therefore, is whether there is any reason to conclude that such

interest is lessened in the specific context of this case. The District lobs a series of volleys in

favor of such a finding.

First, Defendants assert that these privacy interests for such teachers are reduced because

the facilities are heavily regulated to ensure child safety. See Def. Reply at 8-9. The Supreme

Court has held that, in certain contexts, the pervasive regulation of a field may result in a

diminished expectation of privacy for those operating under such constraints. In Skinner, for

instance, it found that the privacy expectations of railroad workers were reduced “by reason of

their participation in an industry that is regulated pervasively to ensure safety.” 489 U.S. at 627.

The inspection of railroad personnel, the Court found, “ha[s] long been a principal focus of

regulatory concern,” a factor that counseled against finding a robust expectation of privacy. Id.

at 628.

Here, Defendants argue that the regulation of child-development facilities should

similarly be found to reduce the teachers’ expectation of privacy. As the District notes, such

facilities must maintain certain classroom ratios and sizes, satisfy healthy and safety standards,

17 and ensure that their staff meet specified professional-development and training requirements.

The employees are additionally subject to background checks, fingerprinting, medical

examinations, and drug testing prior to employment and must show that they are physically

capable of caring for children. See MTD at 13-15. Such regulations, Defendants contend, result

in a diminished privacy interest. Plaintiffs rejoin that the regulations governing child-

development facilities are a far cry from those previously found to reduce privacy interests in the

Fourth Amendment context. AISGW argues that these regulations are analogous to those

imposed on D.C. public-school teachers and are “standard for educators,” and that Defendants

cannot show that they “constitute heavy regulation in the same manner as that faced by railway

employees.” Pl. Reply at 7-8 (internal quotation marks and footnote omitted) (citing D.C.

regulations for public-school teachers at 6-B DCMR §§ 400, 402, 411.1).

On this point, Plaintiffs have the better position. Although “heavy regulation” may

counsel in favor of finding a reduced privacy interest in sectors involving “the operation of

heavy machinery or means of mass transit,” Am. Fed'n of State, Cty. & Mun. Employees

Council 79 v. Scott,

(11th Cir. 2013), Defendants fail to show that this

premise extends to the supervision of educators or childcare providers. Cf. Patchogue–Medford

Congress of Teachers v. Bd. of Educ.,

, (N.Y. App. Div. 1986), aff'd,

(1987) (finding that teachers are not pervasively regulated). Given the ubiquity of

regulation across industries, the Court is mindful that government oversight, in and of itself,

cannot per se diminish employees’ Fourth Amendment protection. To hold otherwise risks

“permit[ting] what has always been a narrow exception to swallow the rule.” City of Los

Angeles v. Patel,

(2015).

18 The requirement that child-development-facility employees are subject to background

checks does not alter this analysis. There is no suggestion that such inquiries are equivalent to

those previously found to reduce privacy interests, such as “routine personal searches when [U.S.

Mint employees] leave work every day” or “intrusive inquiries into . . . physical fitness for

[military or intelligence] positions.” Vilsack, 681 F. 3d at 492 (quoting Von Raab,

). Indeed, this Circuit has been clear that such “operational realities” are “not characteristic

of . . . employment,” and that the ordinary realities of government work will only “rarely affect

an employee’s expectations of privacy in the workplace with respect to searches of his person.”

Id. at 492-93 (internal citation omitted). The precedent does not support putting nursery-school

teachers into this rarified bracket on the basis of their professional environment. See Scott,

(noting that Court has upheld suspicionless drug testing for limited set of highly

regulated “job categories” such as “those directly involved in drug interdiction[,] . . . those who

carried firearms[,] and . . . those who handled classified material”).

Nor do Defendants succeed with their argument that the teachers’ privacy interests here

are significantly diminished because they are subject to pre-employment drug testing. See Pl.

Reply at 7-8. As Plaintiffs made explicit during oral argument on the Motions, they are not

contesting the District’s imposition of pre-employment testing. They instead are challenging

only the random, suspicionless testing of their schools’ incumbent teachers. Such testing, courts

have repeatedly held, presents a unique risk to personal privacy. “Unlike pre-employment

testing, the individuals who will be tested are not applicants for jobs, but are employees, whose

privacy interests are greater than applicants.” Transportation Inst. v. U.S. Coast Guard,

, 655–56 (D.D.C. 1989). In arguing that the pre-employment testing policy

“function[s] to minimize caregivers’ privacy interests,” Def. Reply at 10, the District ignores that

19 “random testing is more intrusive on the individual’s privacy interest than with any other

category of testing.” Transportation Inst.,

.

The random nature of the current OSSE search regime also distinguishes the privacy

interest at stake in this case from Jones v. McKenzie,

(D.C. Cir. 1987), cert.

granted, judgment vacated on other grounds sub nom. Jenkins v. Jones,

(1989),

amended sub nom. Jones v. Jenkins,

(D.C. Cir. 1989), upon which Defendants

rely. In Jones, this Circuit concluded that the D.C. school system’s suspicionless drug testing of

its transportation-branch employees as part of a “routine, reasonably required[,]” and

“employment-related medical examination” did not violate the Fourth Amendment. Id. at 341,

339. The Court went on, however, to “make clear the narrow focus of [its] inquiry” – namely,

that it was not addressing whether the school could “require drug testing absent individualized

suspicion” outside of the context of a medical examination. Id. at 339. As the opinion explicitly

stated, the court in Jones was not resolving “what level of suspicion might be required for

random or individualized testing.” Id.

So, too, when it comes to the Sixth Circuit’s decision in Knox Cty. Educ. Ass'n v. Knox

Cty. Bd. of Educ.,

(6th Cir. 1998), upholding the suspicionless drug and alcohol

testing of school teachers. Unlike in this case, the testing policy at issue in Knox Cty. affected

only those individuals who “appl[ied] for, transfer[ed] to, or [were] promoted” to teaching

positions.

. The tests, therefore, were not random searches of incumbent employees.

Again, this distinction between limited, anticipated drug testing and random urinalysis matters

when it comes to evaluating Plaintiffs’ expectations of privacy. As this Circuit has held,

“Random drug testing represents a greater threat to an employee's privacy interest than does

mandatory testing because of the unsettling show of authority that may be associated with

20 unexpected intrusions on privacy.” Nat'l Treasury Emps. Union v. U.S. Customs Serv.,

(D.C. Cir. 1994) (internal quotation marks omitted); see Vilsack, 681 F.3d at 486

(finding as relevant that “random drug testing policy applie[d] not only to applicants for certain

positions or promotions, but also to incumbent employees”); cf. Von Raab,

n.2

(noting that testing procedures at issue “minimize the program’s intrusion on privacy interests”

in part because “[o]nly employees who have been tentatively accepted for promotion or transfer

to . . . covered positions are tested . . . [and] [e]mployees are notified in advance of the scheduled

sample collection”).

The District contends that the testing in this case is less “unsettling” because “receipt of

CYSHA’s random testing requirement,” which AISGW schools provide to their employees,

results in a diminished expectation of privacy. See MTD at 16. Such notice of the testing,

Defendants assert, rebuts the concern that suspicionless search regimes impose an impermissible

“show of authority.”

This line of argument holds little water, as a constitutionally infirm

search regime cannot be rehabilitated via notice. See Doe ex rel. Doe v. Little Rock Sch. Dist.,

(8th Cir. 2004) (stating that the government “may not deprive its citizens of

privacy expectations protected by the Fourth Amendment simply by announcing that the

expectations will no longer be honored”). The fact that educators received a copy of the testing

requirements does “not render minimal the overall intrusion” on their privacy. See MTD at 16.

Although the overall regulation of child-development facilities and the requirement that

employees be subject to background checks may slightly diminish caregivers’ privacy interest,

the Court finds that such providers nonetheless retain a robust expectation of personal privacy.

See Vilsack, 681 F.3d at 494 (noting that expectation of privacy may be diminished “somewhat”

by background checks but nonetheless “remain[ed] more robust” than in cases allowing for

21 random, suspicionless testing). At bottom, the operational realities of nursery schools are not of

the type to vitiate the protections of the Fourth Amendment against suspicionless intrusion.

b. Intrusion Imposed

The Court looks next to the nature of the intrusion imposed by the OSSE policy. Neither

side devotes significant time to this issue, and this Court will keep its analysis correspondingly

brief. It will, however, note its skepticism regarding Defendants’ position that the random drug

and alcohol testing is “noninvasive,” as it does not “require observation or a physically invasive

procedure,” is done by a third-party contractor, and is kept confidential. See MTD at 17 (quoting

Vilsack, 681 F.3d at 501). The Supreme Court has held that government-ordered “collection and

testing of urine intrudes upon expectations of privacy that society has long recognized as

reasonable.” Skinner,

(“There are few activities in our society more personal

or private than the passing of urine. Most people describe it by euphemisms if they talk about it

at all. It is a function traditionally performed without public observation; indeed, its performance

in public is generally prohibited by law as well as social custom.”) (citation omitted). Although

it has also suggested that the intrusion of urinalysis may be less acute with respect to certain

classes of individuals or circumstances, the Court has never held that such testing does not

implicate privacy concerns. See Vernonia, 515 U.S. at 658 (finding that urine testing of

schoolchildren with minimal observation presents reduced intrusion on privacy interests). The

methods of testing at issue in this case may not be on the extreme end of the intrusion scale, but

the Court concludes that they nonetheless do interfere with Plaintiffs’ reasonable expectation of

privacy.

22 2. Government Interests

In assessing the government’s need for a given suspicionless search regime, courts are

instructed to examine (1) the nature and immediacy of the government concerns and (2) the

efficacy of a random-testing requirement. This Circuit has made clear that a generalized

compelling government interest, without more, does not suffice to justify random, suspicionless

searches. That is, “even where the government asserts important interests, it must still

demonstrate an immediate threat to those interests that could not practically be addressed

through a suspicion-based approach in order to justify” a suspicionless policy. See Vilsack, 681

F.3d at 490. The question here, therefore, is whether the District has shown such an immediate

and practicable need for their current testing regime.

a. Nature of Government Concern

As a preliminary matter, neither Plaintiffs nor this Court doubts that the asserted

government interest in infant and toddler safety is one of great importance. See Pl. Reply at 10.

Indeed, this Court certainly appreciates the District’s efforts to protect young children from

potential harm. Yet, as discussed above, a compelling interest is not – standing alone – sufficient

to impose a random, suspicionless search regime. The inquiry must be into not only the sincerity

of the concern, but also its “immediacy or gravity.” Transportation Inst., 727 F. Supp. 2d at 657.

Plaintiffs assert that Defendants have not demonstrated such urgency or specificity with

respect to their alleged safety interest. AISGW’s argument on this point is premised in large part

upon the District’s failure to present evidence that any child at any licensed child-development

facility has been harmed or even endangered because of drug or alcohol use. See Pl. Reply at 10.

In response, the District states that “[d]ecreased awareness and poor judgment at a child

development facility could prove fatal to child safety.” MTD at 21 (emphasis added). Yet, in

23 support of this position, Defendants can muster only nationwide statistics and nebulous

assertions of risk. See MTD at 20, 27. Unable to show evidence of substance abuse among

childcare providers, the District simply states that “[i]t is well-documented that drug use has

increased in the United States” and that “[u]ndoubtedly, drug use may lead to decreased

awareness and poor judgment.” MTD at 20. Such generalized statements do not a concrete

government interest make. The Court does not dispute – nor could anyone – the premise that

drug use may cause impairment, but it finds thoroughly unconvincing the relevance of such a

broad, commonsense proposition to the facts of this case.

Faced with a dearth of actual evidence, Defendants fall back on the position that they

need not make any such showing. According to the District, “[A] particularized or pervasive

drug problem” is not required for the government to be “allow[ed] . . . to conduct suspicionless

drug testing.” MTD at 25. Indeed, Defendants are correct that the Supreme Court has stated that

“[a] demonstrated problem of drug abuse” is “not in all cases necessary to the validity of a

testing regime.” Chandler,

. Yet the cases finding an immediate interest in

random drug testing have also made clear that the government must provide some basis for its

assertions of risk. As this Circuit noted in Vilsack, “The Supreme Court has found[,] . . . in view

of documented problems,” a variety of safety concerns to justify suspicionless searches. See 681

F.3d at 490 (citing Skinner,

; Von Raab,

) (emphasis

added). Indeed, in Vilsack the court found compelling the “absence of a documented problem”

when rejecting the “conclusion that there is so serious a staff drug problem . . . as to present

‘special needs’ requiring suspicionless intrusion on all employees’ Fourth Amendment rights.”

681 F.3d at 497.

24 In determining whether Defendants sufficiently justify their asserted need, the Court is

guided by the precedent with facts most resembling the instant case – Jones, upon which

Defendants rely in briefing and at argument. In determining that the District had demonstrated

“serious safety concerns” regarding the use of illicit drugs by its transportation employees, this

Circuit held that it was “noteworthy that the safety concern in this case was prompted not only

by the nature of [transportation] jobs . . . but also by the strong evidence of a veritable ‘drug

culture’ among Transportation Branch employees.”

. “It would have been

patently irresponsible,” the court concluded, “for school officials to have ignored this situation.”

Id.; see Vernonia, 515 U.S. at 661-62 (upholding policy requiring random drug testing of student

athletes after demonstrated problem of drug and alcohol use and local “drug culture” reaching

“epidemic proportions”); Von Raab,

(upholding suspicionless search of Customs

Service employees and noting that they “are often exposed to this criminal element and to the

controlled substances it seeks to smuggle into the country” and citing evidence that “officers

have been the targets of bribery by drug smugglers on numerous occasions, and several have

been removed from the Service for accepting bribes and for other integrity violations”); Vilsack,

681 F.3d at 491 (discussing Supreme Court’s reliance on “specific evidence of drug use” in

upholding suspicionless search regime of students participating in extracurricular activities).

Here, Defendants have offered no evidence of any drug use by any nursery-school

teachers, let alone shown an indication of any pervasive “drug culture” among those individuals.

In light of the language in Jones and the weight of precedent referencing evidence of substance

abuse, this Court concludes that the District has not made the requisite showing to “clarify – and

to substantiate – the precise hazards” that it claims must be addressed by random drug testing.

See Chandler,

; Am. Fed'n of Teachers-West Virginia, AFL-CIO v. Kanawha

25 Cty. Bd. of Educ.,

(S.D. W.Va. 2009) (rejecting suspicionless searches

of teachers when court was provided “with no evidence that moves the risk of the alleged harm

from the realm of speculation into reality”).

In addition to pointing to the lack of evidence of any drug or alcohol problem among

childcare providers, Plaintiffs also contest the gravity of the governmental need by noting that

Defendants made no effort to apply CYSHA’s drug-and-alcohol-testing policies to child-

development-facility teachers from 2004-13. According to Plaintiffs, this delay in

implementation indicates that there was no “immediate threat” motivating the random testing. If

the risk to children in these facilities is as compelling and urgent as Defendants maintain,

Plaintiffs argue, then why did they not implement testing as soon as the statute was passed?

According to Defendants, the answer is that “[t]he timing of OSSE’s enforcement of CYSHA’s

random testing requirement does not negate the need for random testing.” MTD at 25. That may

be so, but such a substantial delay certainly does not support the District’s position that nursery-

school teachers pose a grave and immediate threat to the children in their care. As this Circuit

held in Vilsack, “[T]he [agency’s] long-delayed action . . . belie[s] the conclusion that there is so

serious a staff drug problem . . . as to present ‘special needs’ requiring suspicionless intrusion on

all employees.” 681 F.3d at 497.

Finally, Plaintiffs note that Defendants declined to appeal the decision in St. Paul’s. See

Reply at 12. As discussed above, the OAH Final Order in St. Paul’s resulted in the reinstatement

of that nursery school’s license, without random and suspicionless drug and alcohol testing. The

fact that the District decided not to appeal that determination, according to AISGW, is yet

another indicator that teachers do not pose “an imminent threat to children enrolled at nursery

schools licensed by OSSE.” Reply at 11. St. Paul’s is licensed under the same provisions as the

26 Plaintiffs’ institutions, and it is certainly germane that Defendants declined to appeal the OAH

decision allowing that school to care for infants and toddlers without random, suspicionless

testing.

In sum, the Court finds that although the desire to protect the District’s youngest citizens

is certainly a sincere and serious government interest, “[t]he lack of evidence . . . coupled with

the speculative nature of the risk” means that Defendants do not demonstrate a level of

immediacy or concreteness so as to tip the scale sharply in their favor. See Vilsack, 681 F.3d at

498.

b. Practicability

As to the practicability prong, Plaintiffs assert that Defendants cannot show that

“adherence to the requirement of individualized suspicion is impractical.” Id. at 496. In

evaluating the practicability of a suspicion-based regime, courts have often looked to whether it

would be “feasible to subject [employees] or their work-product to the kind of day-to-day

scrutiny that would appear necessary in order for their supervisory observation to be effective.”

Nat'l Fed'n of Fed. Employees v. Cheney,

, 611 (D.C. Cir. 1989). Here, AISGW

asserts that its teachers are subject to such observation, particularly when the District’s

regulations require that nursery-school teachers work in close proximity and under supervision.

See Pl. Reply at 12. Defendants respond that, although the regulations may require such levels

of interaction among colleagues and supervisors, they do not know that such environments are

actually in place at AISGW schools. See ECF No. 25-2, ¶ 4.

In doing so, the District attempts to create a disputed issue of fact, alleging that it needs

further information in order to assess the opportunities for observation in AISGW-school

classrooms. Yet speculation as to the schools’ non-compliance with District regulations does not

27 protect Defendants from summary judgment here. Indeed, the District appears to rely upon the

existence of and compliance with these precise regulations earlier in its briefing, when it argues

that nursery-school teachers have a diminished expectation of privacy in part because “child

development facilities are heavily regulated,” including the requirement “that they maintain

specific adult-to-child ratios and group sizes . . . and ensure that [] staff satisfy specified

professional development and training requirements on safety.” MTD at 14. To cast such

regulations as, on one hand, sufficient to reduce teachers’ expectations of privacy but, on the

other, irrelevant to the practicalities of their working conditions seems somewhat disingenuous.

The Court notes, moreover, that OSSE has the capacity to verify compliance with its own

regulations. See 5-A DCMR §§ 111.1, 111.5, 111.6. The District cannot, therefore, now

“profess[] ignorance” as to whether AISGW schools follow such restrictions in order to create a

genuine issue of material fact. See Serv. Employees Int'l Union Nat'l Indus. Pension Fund v.

Castle Hill Health Care Providers, LLC,

(D.D.C. 2015).

Similarly unavailing is Defendants’ position that “[p]eer-to-peer supervision would be

inadequate given that caregivers would be unable to properly observe one another while, at the

same time, supervising infants and toddlers.” MTD at 23. This line of argument is somewhat

odd, given that neither side disputes that child-development-facility staff are able to monitor the

children in their classroom. There would seem to be minimal, if any, added burden in observing

an adult co-worker if one is able to supervise multiple toddlers. The Court therefore concludes

that it would, in fact, be feasible to subject nursery-school teachers to a level of observation

consistent with a suspicion-based search regime. See Am. Fed'n of Teachers-West Virginia,

AFL-CIO,

(finding that teachers “do not hold positions for which

observation would not detect the relevant impairment”).

28 * * *

Having assessed the competing privacy interests and government interests at stake, the

Court must now determine which way the scale tips. As to the former, it concludes that

employees of child-development facilities have a significant expectation of privacy. As to the

latter, it finds that the District’s interest does not rise to the level of immediacy or concreteness

needed to justify the random, suspicionless testing of nursery-school teachers. While it does not

doubt that Defendants’ policy is a sincere attempt to protect infants and toddlers cared for in the

District, the Court’s holding reflects the principle that preventing the invasion of personal-

privacy rights is “among the highest responsibilities of the federal judiciary.” Bangert v. Hodel,

(D.D.C. 1989). Charged with this duty, the Court determines that nursery-

school teachers such as Plaintiffs cannot be subjected to random, suspicionless searches as a

condition of their employment. The Court therefore holds as a matter of law that OSSE’s testing

requirement “does not fit within the closely guarded category of constitutionally permissible

suspicionless searches,” and it will thus grant Plaintiffs’ Motion. Chandler,

.

IV. Conclusion

For the reasons set forth above, the Court will deny Defendants’ Motion to Dismiss and

grant Plaintiffs’ Cross-Motion for Summary Judgment. A contemporaneous Order so stating

will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: April 26, 2018

29