Child care operators weigh lawsuit, media campaign over new regulations

Preschool providers protest outside the Wilson Building on June 5. (Mark Lieberman/The Current/June 2017)

Protesters outside the Wilson Building have drawn citywide attention in the past month to controversial new regulations that have many operators of early childhood centers worried. But the road ahead for tackling those regulations remains uncertain — especially since some stakeholders disagree over the best path forward.

These challenges were on display last Thursday in the Thurgood Marshall Center at 1816 12th St. NW, where more than 20 current operators and teachers met with attorneys and communication specialists from the nonprofit activism organization Institute for Justice. The group became aware of the cause after seeing the protests, and now hopes to partner with child care operators on a broader activism effort that could culminate in a lawsuit against the city.

Following a 2014 federal mandate for more stringent standards nationwide, late last year the D.C. Office of the State Superintendent of Education modified regulations for the city’s more than 400 early childhood facilities serving children ages 3 and under. Under the new rules, all child care program directors must have a bachelor’s degree, and every child care employee must have an associate degree; current staff without those degrees need to secure them within a few years.

Other major changes include a higher upfront cost for a preschool license; more detailed requirements for establishing emergency procedures and contingency locations; and highly specific safety provisions, including a ban on children using cups during water play and mandatory helmet use on any wheeled equipment, including a tricycle.

Operators have raised concerns about the regulations at numerous community meetings this year, with many arguing that they’ll struggle to stay afloat given the new financial burdens. Some say they don’t have enough money to match salary expectations for degree-holding applicants, while others expect that parents will balk at sending children to programs where fewer activities can take place.

Thus far, city officials haven’t wavered in the face of protest. Deputy Mayor for Education Jennie Niles has met on several occasions with frustrated operators, but the regulations remain in place. Some operators now hope they’ll have more success with backing from the Arlington-based Institute for Justice, a libertarian civil liberties organization formed in 1991 with the help of seed funding from billionaire political donor and philanthropist Charles Koch.

At this point, the organization is still in early talks with operators, but hopes discussion can coalesce around the most effective solutions.

“We fight against regulations that make it difficult for people like yourselves to earn an honest living,” Brooke Fallon, the institute’s assistant director of activism, told operators last week.

Institute for Justice attorney Renee Flaherty told operators the organization is particularly concerned about the provision mandating college degrees for child care staffers.

“We agree that early childhood education is really important. … There’s research that shows that good teaching matters,” Flaherty said at the meeting. “But there’s no research that shows that getting an associate’s degree leads to good teaching. That’s the leap that D.C. has taken that doesn’t quite make sense.”

The meeting offered operators the opportunity to share their thoughts on how to raise awareness of their concerns. Ideas included a social media blitz and an informative one-page document summarizing the issues. But some said that, while they oppose the new regulations, they aren’t yet comfortable with possible litigation, and a few said they’re inclined to support the regulations and find the degree of backlash troubling.

Among those defenders is Carrie Thornhill, president of the DC Early Learning Collaborative, an advocacy alliance of more than 100 early childhood educators. Her group believes requiring more experienced child care workers will help students in the long run. Several operators at Thursday’s meeting echoed those sentiments. Having “High Quality/Highly Compensated Teachers is the first building block toward high-quality programs,” Thornhill wrote in a statement.

If the institute decides to initiate a lawsuit, it would seek three to five operators to serve as plaintiffs in the case, Flaherty said at the meeting. The organization would provide pro bono legal services and publicize the case to national media. But no action is imminent; the institute’s board of directors hasn’t yet approved a lawsuit, Flaherty told The Current.

A few operators said they’re worried about what will happen if the organization’s activism is unsuccessful. Institute representatives expressed confidence in their approach.

“It’s tough when you’re in the reactive position; it’s already been passed,” Fallon said. “We fight those fights all the time, and they’re definitely winnable.”

Five of the institute’s cases have gone before the Supreme Court — most recently in 2011, when the organization helped strike down a campaign finance law in Arizona that provided additional public funding to candidates based on the amount of spending by their opponents.