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, 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.
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.” 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;
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 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
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., 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
7 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 Atl. Corp. v. Twombly,
550 U.S. 544, 555 (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, 556 U.S. at 678 (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., 477 U.S. 242,
247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it
is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at
248; Holcomb, 433 F.3d at 895. 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, 550 U.S. 372, 380
(2007); Holcomb, 433 F.3d at 895. “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, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v.
8 Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (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, 475 F.3d 360, 363 (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., 706 F.3d 438, 443 (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, 504 U.S. 555, 560 (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., 482 A.2d 418, 421-22 (D.C. 1984) (citing Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 329 (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., 935 A.2d 328, 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, 803 F.2d 1197,
1201 (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, 595 F.2d 801, 806 (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. Id.
(citation omitted). Here, the OAH was clearly acting in a “judicial capacity,” Oubre v. D.C.
Dep't of Employment Servs., 630 A.2d 699, 703 (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, 630 A.2d
at 703.
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, 482 A.2d at 423, 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. Id. 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., 726 A. 2d 678 (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.
Id. (citing Leekley, 726 A.2d at 680). 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., 141
A.3d 1088, 1091 (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, 645 F. Supp.
1182 (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, 141 A.3d at 1092
(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.” Id. (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.” Id. 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. Id. 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, 489 U.S. 602, 614–15 (1989); Bluestein v. Skinner, 908 F.2d 451, 455
(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., 282 F. Supp. 3d 169, 184 (D.D.C. 2017) (citing Knox Cty. Educ. Ass'n v.
Knox Cty. Bd. of Educ., 158 F.3d 361, 373 (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, 489 U.S. 656, 665
(1989); Lewis, 282 F. Supp. 3d at 184 (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, 520 U.S. at 314. 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, 536 U.S. 822, 830-34 (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, 282 F.
Supp. 3d at 184. 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, 717 F.3d 851, 867 (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., 119 A.D. 2d 35, 38-39, (N.Y. App. Div. 1986), aff'd, 70
N.Y. 2d 57 (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, 135 S. Ct. 2443, 2455 (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, 489 U.S. at
671). 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, 717
F.3d at 867 (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, 727 F.
Supp. 648, 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., 727 F. Supp. at 656.
The random nature of the current OSSE search regime also distinguishes the privacy
interest at stake in this case from Jones v. McKenzie, 833 F.2d 335 (D.C. Cir. 1987), cert.
granted, judgment vacated on other grounds sub nom. Jenkins v. Jones, 490 U.S. 1001 (1989),
amended sub nom. Jones v. Jenkins, 878 F.2d 1476 (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., 158 F.3d 361 (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. Id. at 363. 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., 27 F.3d
623, 629 (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, 489 U.S. at 672 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.” Id. 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.,
380 F.3d 349, 354 (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, 489 U.S. at 614-17 (“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, 520 U.S. at 319. 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, 489 U.S. at 620-21; Von Raab, 489 U.S. at 670-71) (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.” 833 F.2d at 340. “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, 489 U.S. at 669 (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, 520 U.S. at 319; Am. Fed'n of Teachers-West Virginia, AFL-CIO v. Kanawha
25 Cty. Bd. of Educ., 592 F. Supp. 2d 883, 902 (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, 884 F.2d 603, 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, 312 F.R.D. 678, 683 (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, 592 F. Supp. 2d at 904 (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,
705 F. Supp. 643, 655 (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, 520 U.S. at 309.
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