In 2016, the District of Columbia’s Office of the State Superintendent of Education (“OSSE”) enacted regulations requiring many of the city’s day care providers to go to college or lose their jobs. These disastrous regulations will have career-ending consequences for Altagracia Yluminada (“Ilumi”) Sanchez, who runs a day care in her home in Northeast D.C. OSSE’s new regulations require Ilumi and others like her to get an associate’s degree in an early-childhood field by the end of 2019. Ilumi has worked with children since she came to the U.S. from the Dominican Republic in 1995. Although she has a Child Development Associate credential (“CDA”) and was trained as a lawyer in her home country, Ilumi does not have the associate’s degree now required under OSSE’s new regulations.

But she does not need that degree: Nine sets of parents already trust Ilumi to care for their children, despite the fact that she has not studied Shakespeare or learned calculus. There simply are not enough hours in the day for Ilumi to go back to school. She is also worried about her English fluency—she can speak and understand well, but she cannot read and write at a college level.

Ilumi is only one of hundreds of day care providers in homes and in centers who stand to lose their livelihood.

With No Oversight or Accountability, OSSE Decided to Force Day care Providers to Obtain College Degrees

In December 2016, OSSE issued an administrative rulemaking that overhauled D.C.’s day care licensing regulations.^[1]Slipped in among the extensive changes to D.C.’s day care-licensing regime was the new college requirements for day care staff.^[2]OSSE now requires all large home day care providers like Ilumi to obtain an associate’s degree with a major in an early childhood field by December 2, 2019,^[3]and all lead teachers in day care centers must obtain an associate’s degree with a major in or at least 24 credit hours in an early childhood field by December 2, 2020.^[4]

On November 17, 2017, OSSE proposed some modifications to these timelines. The agency did this through yet another administrative rulemaking,^[5]and the public outcry during the notice and comment period was emphatic. OSSE received over 400 comments from the public. Over 350 of these comments came from concerned parents, citizens, and day care providers who spoke out against the degree requirement. OSSE had nothing to say to the public in response.

After over five months of silence, OSSE’s November 17, 2017 rulemaking is still pending. That has left many providers hanging, including some who need to obtain their credentials by the end of the year. If the rulemaking does pass, lead caregivers in larger home day cares and lead teachers in day care centers could see their deadlines extended to December 2, 2023.

Ultimately, it does not matter how long day care staff have to get their degrees, because the requirement is illegal and unnecessary.

OSSE enacted its new day care regulations with no oversight from the D.C. city council. In fact, in June 2017, the city council acknowledged that OSSE had run amok when the council imposed a 30-day review period on all of the agency’s future rulemakings regarding day cares.^[6]The city council also ordered OSSE to conduct a study about the costs of the college requirement.^[7]These measures are too little too late because the prospective review period and study do nothing to address the fact that OSSE’s December 2016 rulemaking will put hundreds of people out of a job.

D.C.’s College Requirement Is a Disaster for Families and Day care Providers

Day care providers like Ilumi worry about the time and money needed to obtain a college education while working full time.Many are older women who have years of experience caring for children but no experience writing a term paper on Moby Dick. Younger people may have their own families to take care of. Since it will be impossible for many providers to meet the new requirements, they will put hundreds out of work and create a shortage of day care staff in an already strained childcare market.

Moreover, OSSE has completely disregarded many hardworking immigrants who face a near-insurmountable language barrier to getting a college degree. There is no reason an immigrant should have to learn English well enough to write a college term paper, when all she wants is to care for young children.

There are no local associate’s degree programs in Spanish, so immigrants will have to learn college-level English before they can even begin to start school. Many D.C. parents send their children to language-immersion day cares becausethe staff do not speak English. But under OSSE’s new rules, non-English-speaking day care providers have no choice but to find a different career.

Many day cares are also nonprofits, and for-profit day cares’ margins are razor thin. D.C.’s universal pre-K means that more expensive infant care cannot be made up for by care for four-year-olds, which is a common business model elsewhere. D.C.’s strict staff-to-child ratios, high rents and inflexible zoning rules make it tough for centers to open and stay operational.

On top of all of this, the college requirement risks creating a shortage of qualified staff. Staff with college degrees may justifiably wish to go into other, better paying jobs, like teaching at schools.

Childcare costs in D.C. are already out of control, costing more than in any of the 50 states. In D.C., annual costs at a day care center average $23,089 ($1,924 per month) for an infant.^[8]Costs in Virginia and Maryland are $12,792 and $14,726 per year for an infant, respectively, although those living closer to D.C. can expect to pay more.^[9]To compare another major city, the average annual cost for infant care in a day care center in New York City is $16,250.^[10]High day care costs are often cited as a major factor driving people out of D.C.^[11]

High costs are not the only obstacle D.C. parents face when searching for childcare. Waitlists can run well over a year. Parents who get on a waitlist as soon as they are pregnant can still find themselves without a spot when the baby is born. In 2015, licensed day care providers had roughly 7,610 slots for the 22,000 children under age three in D.C.^[12]Many parents are forced to put their children in unlicensed care or to leave the workforce to take care of them. Nannies cost between $37,000 and $41,600 per year.^[13]

There Is No Proof That a College Requirement for Day care Staff Will Help Kids 

For all their costs, the new rules will not help children. OSSE already requires 15 to 21 hours of ongoing professional development per year, pre-service training and orientation training for its day care staff.^[14]OSSE has not cited a reason why this training, in addition to the CDA credential now required for most day care staff, is inadequate.

D.C.’s college requirement, like many other occupational-licensing requirements, is credentialism run wild. Everyone from the Obama Administration^[15]to the Heritage Foundation^[16]has criticized burdensome occupational-licensing laws, but by 2020, 76 percent of all jobs in D.C. are projected to require a license with a college-education mandate.^[17]Incredibly, OSSE has cited this statistic—and little else—to justify its new rules.^[18]

When they passed the rule, the OSSE did not cite any specific research to support its college requirement, but an OSSE official stated that the regulations were inspired by a 2015 report by the National Academies (the “NAS report”).^[19]

That report states that there is noempirical support for requiring day care providers to get college degrees and that there are many negative consequences to doing so. “Existing research on the relationship between the education level of educators and the quality of instruction or children’s learning and development is inconclusive,” the NAS report states.^[20]“The available studies alone are insufficient to enable conclusions as to whether a bachelor’s degree improves the quality and effectiveness of educators, whether for early childhood settings or for K-12 schools,” the report continues.^[21]

Its authors repeatedly caution that the report does not address the manypotential costs involved in imposing a degree requirement:^[22]the money required to get the degree, the time required to get the degree while working full time, “workforce shortages, reduced diversity in the professions, increased disparities among current and future professionals, upward pressure on out-of-pocket costs to families, and disruptions to the sustainability of operating in the for-profit and not-for-profit care and education market.”^[23]

Indeed, an editor of the report openly doubts D.C.’s new regulations, stating that the report’s important caveats were included because the authors looked at the question of requiring degrees for day care staff “more as an academic question than an economic or policy one.”^[24]

The Plaintiffs

The three Plaintiffs in the Institute for Justice’s constitutional challenge are diverse and hardworking people directly affected by OSSE’s new rules for day careproviders.

Ilumi Sanchez, introduced above, is challenging OSSE’s regulations because they threaten her family’s livelihood. Ilumi is trying to help her son pay for college, and she should not be forced to shell out tuition for herself to keep a job she has done with excellence and passion for twelve years.

Likewise, Dale Sorcher has cared for infants and toddlers at a Jewish day care on and off since 1996. She could probably teach the classes she will be forced to take to keep her job. Dale holds two masters degrees, one in social work and one in expressive therapy. Unfortunately, this educational pedigree and her years of experience with children do not qualify her to keep her job. As Dale nears retirement, she does not want to go back to school on top of her work at the day care, her job as a counselor and her continuing education requirements for both jobs.

Finally, Jill Homan lives in Petworth with her family and sends her one-year-old daughter to a day carecenter in Northeast D.C. Jill’s family, like many others, spent a lot of time researching and coming up with a plan for childcare. She does not appreciate being told by OSSE that the women she has chosen to care for her daughter are unqualified for their jobs. Jill is also worried that care for her daughter will become more expensive because of the college requirement. Jill wants to stand up for day careproviders’ right to earn a living and for her own right to choose her child’s caretakers.

The Legal Argument

D.C.’s college requirement for day care providers is not just bad policy—it is unconstitutional.

First, the college requirement violates day care providers’ right to earn an honest living guaranteed by the Due Process Clause of the 5th Amendment to the U.S. Constitution.^[25]While the regulations have many costs, requiring an associate’s degree for day care staff will not increase the quality of day care in D.C. Requiring licenses for day care centers and training for day care providers makes sense, but requiring college training that has been shown not to provide the skills those workers need^[26]makes no sense.

Second, OSSE’s college requirement is unconstitutional because it makes irrational distinctions among childcare providers. The U.S. Constitution forbids government from treating similarly situated people unequally, but D.C.’s regulations consistently make arbitrary distinctions based on the environment people work in or even their previous unrelated educational experiences. Even if someone believes that a college degree makes day care staff better at their jobs—and, as discussed above, there is no reason to—the haphazard and unequal way D.C. has done this makes clear that these particular regulations do nothing to achieve that goal.

Third, OSSE lacks the power to make a rule like this. The U.S. Constitution limits D.C.’s power to legislate,^[27]and Congress delegated someof that power to D.C.’s city council through a law called the D.C. Home Rule Act.^[28]The D.C. city council has the power to make its own laws within certain bounds laid out in the Home Rule Act,^[29]but OSSE overstepped these boundaries because the agency’s actions were not subject to sufficient oversight from the D.C. city council or the courts.

The Litigation Team

IJ Attorney Renée Flaherty and Senior Attorney Robert McNamara represent the Plaintiffs.

About the Institute for Justice

The Institute for Justice is the national law firm for liberty and has represented African hair braiders, casket-making Catholic monks, rideshare drivers and other entrepreneurs in state and federal lawsuits nationwide. For more on the Institute for Justice and its work, visit www.ij.org.

^[1]5-A D.C.M.R. §§ 100–199, https://osse.dc.gov/sites/default/files/dc/sites/osse/publication/attachments/‌Final%20Rulemaking%20for%20the%20Licensing%20of%20Child%20Development%20Facilities_0.pdf.

^[2]According to OSSE’s new rules, day care-center directors must earn a bachelor’s degree, and small-home-day care providers (caring for six or fewer children) and assistants at day care centers must earn a Child Development Associate (“CDA”) credential.See 5-A D.C.M.R. §§ 164.1, 166.1, 168.1. A CDA is a certificate overseen by the Council for Professional Recognition. It costs about $425, and applicants must complete 120 hours of professional education. Council for Professional Recognition, About the CDA Credential, http://www.cdacouncil.org/about/cda-credential. Most day care staff in D.C. already have at least a CDA or are in the process of obtaining one. The Plaintiffs in this lawsuit are not challenging the education requirements for center directors, small-home-day care providers or day care-center assistants.

^[3]5-A D.C.M.R.§ 170.2.

^[4]Id. at § 165.1.

^[5]https://www.dcregs.dc.gov/Common/NoticeDetail.aspx?NoticeId=N0066246.

^[6]D.C. Act 22-71, Child Development Facilities Regulation Act of 2017; D.C. Code § 7-2036(a)(2).

^[7]D.C. Act 22-72, Child Care Study Act of 2017.

^[8]Child Care Aware of America, Parents and the High Cost of Child Care: 2017, https://usa.childcareaware.org/advocacy-public-policy/resources/research/costofcare/, at District of Columbia.

^[9]Id.at Virginia and Maryland.

^[10]NY Daily News, Average Cost of Day carein NYC Tops $16G, Leaving Many Families Struggling to Provide Care for Kids, http://www.nydailynews.com/new-york/average-cost-day care-nyc-tops-16k-article-1.2428709.

^[11]SeeThe Atlantic,D.C.’s Misguided Attempt to Regulate Day care, July 11, 2017,https://www.theatlantic.com/business/‌‌archive/2017/07/dc-day care-regulations-credentialism/532449/.

^[12]DC Appleseed, Solid Footing: Reinforcing the Early Care and Education Economy for Infants and Toddlers in DC, http://www.dcappleseed.com/wp-content/uploads/2016/03/Solid-Footing_Cost-of-ECE-Report_March-2016.pdf.

^[13]WTOP, Child Care Shortage: Baby Boom, Operating Costs Lead to Waiting Lists, http://wtop.com/parenting/2017/02/child-care-shortage-baby-boom-operating-costs-lead-to-waiting-lists/.

^[14]See5-A D.C.M.R. § 139.

^[15]The White House, Occupational Licensing: A Framework for Policymakers, July 2015, https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf.

^[16]Paul Larkin, A Brief History of Occupational Licensing, http://www.heritage.org/government-regulation/report/brief-history-occupational-licensing-0.

^[17]Georgetown Center on Education and the Workforce, Recovery: Job Growth and Education Requirements Through 2020, at 3, https://cew.georgetown.edu/wp-content/uploads/2014/11/‌Recovery2020.‌SR_.Web_.pdf.

^[18]The Washington Free Beacon, Report That Says DC Requiring Child-Care Workers to Get College Degrees Triggers Backlash, http://freebeacon.com/issues/report-d-c-requiring-child-care-workers-get-college-degrees-triggers-backlash/.

^[19]National Academies Press, Transforming the Workforce for Children Birth Through Age 8: A Unifying Foundation, http://www.nationalacademies.org/hmd/Reports/2015/Birth-To-Eight.aspx.

^[20]Id.at 434.

^[21]Id.at 438.

^[22]Id.at 8; 23; 438; 492(footnote 1); 518.

^[23]Id.at 8; 438.

^[24]SeeThe Atlantic,D.C.’s Misguided Attempt to Regulate Day care, July 11, 2017,https://www.theatlantic.com/business/‌‌archive/2017/07/dc-day care-regulations-credentialism/532449/.

^[25]SeeU.S. Const. amend. V.

^[26]SeeNAS report at 436, 438, 520, 522, 525.

^[27]U.S. Const. art. I, § 8, cl. 17.

^[28]D.C. Code §§ 1-201.01 et seq.

^[29]Id.at § 1-206.