WASHINGTON (CN) — An association of 75 private schools sued the District of Columbia for threatening to pull their licenses if they do not subject teachers to “random and suspicionless” drug and alcohol tests.
The Association of Independent Schools of Greater Washington, two teachers and The River School also sued the District’s State Superintendent of Education Hanseul Kang on Tuesday, in D.C. Federal Court.
They say the drug tests are unreasonable searches and seizures and the District’s policy is arbitrary and capricious.
Nine of the association’s schools hold licenses as child development facilities.
The 2004 Child and Youth Safety and Health Act gave the Office of the State Superintendent of Education authority to license child development facilities and required some employees in “safety sensitive” positions to submit to random drug tests.
The D.C. Council committee report on the bill defined “safety sensitive” employees as those who worked in day cares or youth group homes or in roles where an employee under the influence could cause “catastrophic consequences.”
The law exempted elementary and secondary schools from the licensing requirement, according to the complaint. The River School, which enrolls kids as young as 18 months and as old as third grade, originally was not required to test its employees.
But in 2013 the District of Columbia issued a memo extending the required testing to employees at schools such as The River School. Now it will have to perform random drug and alcohol tests on teachers and employees who work in its pre-K program to keep its license.
The association complains of the near-decade gap between the law’s passage and the superintendent’s determination that it applies to preschool employees, as well as the fact that employees at public pre-K programs do not have to face the same tests.
“The District of Columbia Public School System (DCPS) enrolls over 5,000 three-and four-year old children in its public pre-K programs, children who are the same age as many of those enrolled in AISGW member schools,” the complaint states. “But DCPS does not randomly test its teachers and staff for drug and alcohol use.”
Arthur Spitzer, an American Civil Liberties Union attorney for the plaintiffs, could not explain the long delay, but said that even if The River School taught only preschool, its teachers should not have to comply with the drug tests, as they violate the Fourth Amendment.
The River School objected to the new requirement and in November 2014 the association’s predecessor, Independent Education, wrote to Kang on the school’s behalf requesting relief because the schools had been told they were exempt.
Kang rejected the request and threatened in January to revoke The River School’s license, forcing the school to set up a testing program to stay open.
But the battle wasn’t over. In May, St. Paul’s Nursery School won an administrative hearing against the superintendent’s office on the grounds that the licensing requirement “would likely violate the Fourth Amendment rights of affected teachers.”
Thinking the decision mirrored what they had been arguing, the association and The River School asked the superintendent’s office if the schools still had to keep up the drug testing program.
The office said they did and sought reconsideration of the ruling in the St. Paul’s Nursery School case, which was denied.
Joined by the River School and teachers Katherine Brebbia and Lauren Walence, the association now wants the testing requirement declared unconstitutional and enjoined.
They say the cost of random testing is prohibitive and puts the schools at a competitive disadvantage for some positions.
“Employee candidates who join schools for students pre-K and older would not be subject to random testing, while those who join The River School and AISGW member schools might have to undergo testing, depending on the age of the students taught,” the complaint states, abbreviating the name of the association.
The tests have “no useful connection to on the job impairment,” and violate the employees’ rights without good cause, Spitzer said.
While the lawsuit covers only the listed plaintiffs, Spitzer said he hoped a ruling in their favor would spur the superintendent’s office to drop the testing program. If it doesn’t, he expects more schools to sue, Spitzer said.
AISGW executive director Richard Jung declined to comment beyond the allegations of the lawsuit. The Office of the State Superintendent of Education did not respond to an email seeking comment.
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