An association of private schools alleges that the D.C. government is illegally subjecting preschool teachers to random drug and alcohol testing, arguing in a lawsuit that the policy is a violation of the employees’ constitutional right to privacy.
The Association of Independent Schools of Greater Washington — a nonprofit group of 75 regional private schools — filed suit Tuesday in the U.S. District Court for the District of Columbia, alleging that the drug tests unfairly single out preschool teachers at the city’s private schools. The River School in Northwest Washington and two of its teachers also are plaintiffs in the case against the city and the D.C. Office of the State Superintendent of Education (OSSE), which licenses childhood-development facilities. The association represents nine private childhood-development facilities in the District that fall under OSSE’s drug-testing policy.
OSSE acknowledges that its policies do call for randomly drug testing preschool teachers at private schools, saying it is merely enforcing city policies meant to protect young children.
City law — the Child and Youth, Safety and Health Omnibus Amendment Act of 2004 (CYSHA) — requires private organizations licensed by the District government to establish mandatory drug- and alcohol-testing procedures for employees working in “safety-sensitive positions.” Those “entrusted with the direct care and custody of children or youth” are considered to be in “safety-sensitive positions,” according to the law.
The question is: Do preschool teachers fall in this category? OSSE says yes, but those challenging OSSE — and past rulings — suggest that the interpretation isn’t so simple. A ruling in a similar administrative case found OSSE’s drug-testing policy problematic, and this latest lawsuit contends that the agency has not changed its policies since that ruling.
The tests screen for alcohol and illegal drugs in urine samples. Even though consumption of marijuana is legal in the District, the city’s Department of Human Resources says employers, including the city government, can prohibit marijuana use.
Arthur Spitzer, legal director for the American Civil Liberties Union of the Nation’s Capital, which is helping to represent the plaintiffs in the current case, said policies that call for testing of preschool teachers are an unnecessary overreach.
“In every classroom there are two adults,” Spitzer said. “This is not a situation where a teacher can be impaired at work without other adults knowing about it right away.”
And there are consequences for schools that won’t do the drug testing. If a school does not follow the policies, OSSE can revoke its license to operate.
“While the Office of the State Superintendent of Education cannot comment on pending litigation, we are always committed to ensuring the health, safety and welfare of all the children in the District,” OSSE spokeswoman Patience Peabody said in a statement. “OSSE will use every available tool to ensure the safety of children in child development facilities, including full compliance with the relevant statutes of the District of Columbia.”
The District government does not require traditional public school or charter schoolteachers to submit to random drug and alcohol testing.
In May, another private preschool filed a claim challenging OSSE’s policy. The judge ruled in the school’s favor, finding that D.C. law is unclear and that OSSE cannot revoke the school’s license for not complying with drug tests. The ruling did not force OSSE to change its policy but suggested that it find consistency with rules that apply to employees at public schools.
The River School says OSSE is still conducting drug tests and has threatened to revoke the school’s license if it fails to comply.