J. Justin Wilson
J. Justin Wilson · December 12, 2022

WASHINGTON—The Constitution protects the right of every American to earn a living in the job of their choice. Caring for children is one of the oldest and most important occupations, but in 2016 regulators in the District of Columbia enacted a rule requiring that day care providers obtain a college degree to care for infants and toddlers. IJ’s new Supreme Court appeal asks whether the right to earn a living caring for children deserves meaningful protection in the courts, and whether administrative agencies can take day care providers’ rights away without being held accountable by the city’s elected representatives.

The case concerns Ilumi Sanchez, who has cared for dozens of children in her home in Northeast D.C. since 2006. Like many of the city’s day care providers, she has neither the time nor the money to go to college to learn something she’s been doing successfully for more than a decade. Instead, she teamed up with the Institute for Justice (IJ) in 2018 to challenge the city’s college requirement in court. Her lawsuit argues that the District’s rules imposed huge costs on day care providers without teaching them anything useful about caring for infants and toddlers.

The regulations, which were initially adopted in 2016, have still not gone into effect; but without the Supreme Court’s intervention, they will soon. D.C. officials responded to Ilumi’s lawsuit by repeatedly delaying the effective date of the new rules and exempting certain categories of workers (including Ilumi) from the requirements entirely. This hasn’t stopped some employers from refusing to hire workers without a college degree, worsening the ongoing shortage of childcare in the city. The regulations still hang over Ilumi, who must re-apply for her waiver every three years. Regulators could decide for any reason to deny her waiver and force her to go to college.

“The District of Columbia is the most expensive place in the country for childcare,” said IJ Senior Attorney Renée Flaherty. “The city needs every provider possible, but instead it is pushing qualified providers out of the field. Courts must hold the government accountable for imposing arbitrary requirements on people who do some of the city’s hardest work.”

In August, the U.S. Court of Appeals for the D.C. Circuit affirmed a lower court’s dismissal of Ilumi’s lawsuit. The court found that it was perfectly rational to require day care providers to take advanced math classes or electives on Shakespeare, even though many of the city’s day care providers are immigrants like Ilumi who cannot afford college and may not speak English as a first language: “A variety of courses outside the early-childhood major, from math and English to art and history, could be beneficial to someone tasked with the educational development of toddlers,” the court’s opinion explained, “as any adult who has been flummoxed by a two-year-old repeatedly asking ‘why’ can attest.”

“If the government can force you to take college classes in anything a two-year-old might ask about before you can take care of toddlers for a living, the government can do just about anything,” said IJ Senior Attorney Bob McNamara. “This case provides an opportunity for the Supreme Court to say ‘no.’”