WA lifetime ban on childcare work held unconstitutional
On February 21, 2019, the Washington State Supreme Court declared that a state regulation imposing a lifetime ban from ever obtaining a childcare license, or having unsupervised access to children in childcare, is unconstitutional as applied to Chrystal Fields. The lifetime ban was triggered by Ms. Fields’ 1988 attempted second degree robbery conviction for trying to grab a woman’s purse in front of a drugstore. (The licensing agency has a list of 50 permanently disqualifying convictions, one of which is robbery; an attempted offense is treated the same as a completed offense.) The court held that the licensing agency’s failure to conduct an individualized determination of Ms. Fields’ qualifications violated her federal right to due process. Fields v. Dep’t of Early Learning, No. 95024-5 (Wash. Feb. 21, 2019). The full decision is available here. A brief discussion of the case follows.
The state agency in question, the Department of Early Learning, as part of administering licensing for childcare facilities, was tasked by the legislature with running background checks on anyone wishing to work in a childcare facility, to determine whether the “individual is of appropriate character, suitability, and competence to provide child care and early learning services to children.” Former RCW 43.215.215(1) (2011).
Despite the legislature’s seeming intention that the Department conduct individual evaluations of character, suitability, and competence, the Department adopted regulations pursuant to its rule-making authority that permanently disqualify people who have certain prior convictions: “[a] subject individual who has a background containing any of the permanent convictions on the director’s list…will be permanently disqualified from providing licensed child care, caring for children or having unsupervised access to children in child care.” Former WAC 170-06-0070(1), recodified as WAC 110-06-0070. The “director’s list” includes 50 types of permanently disqualifying convictions, one of which is “[r]obbery.” Former WAC 170-06-0120, recodified as WAC 110-06-0120. (For purposes of the director’s list, Ms. Fields’s conviction for attempted second degree robbery is treated the same as a completed offense. Former WAC 170-06-0050(l)(c) (2015), recodified as WAC 110-06-0050.) A person with a permanently disqualifying conviction has no administrative recourse.
After being disqualified in the administrative process, Ms. Fields petitioned for review in superior court, arguing that the disqualification violates her state and federal rights to procedural and substantive due process, facially and as applied. The superior court dismissed the petition for review, holding that she had not demonstrated that the regulations are unconstitutional. The Court of Appeals affirmed and the Supreme Court granted review.
A four-justice plurality of the Washington high court held that the lifetime ban violates Ms. Field’s federal right to procedural due process by depriving her of a protected interest in pursuing “the lawful career of her choice without arbitrary interference.” Specifically, the plurality held that an individualized administrative determination was required in Ms. Field’s case for a number of reasons, including:
- her conviction was over 30 years ago;
- she was 22 years old at the time and addicted to drugs, in domestic violence relationships, and in and out of homelessness, challenges she has since overcome;
- the facts of the 1988 attempted purse grab do not indicate that she was likely to pose a danger to children for the rest of her life; and
- a similar field, foster care, does not impose a lifetime ban for the same conviction.
Therefore, “using Fields’s 1988 attempted second degree robbery conviction as the sole basis for her permanent disqualification with no opportunity for an individualized determination presents an unusually high risk of arbitrary, erroneous deprivation.” However, the plurality opinion declined to reach her facial challenge to the permanent disqualification, and explicitly stated that its holding does not require that every person with a “permanently disqualifying conviction must be given an individualized hearing,” but only that the facts of Ms. Fields’ circumstances required one.
One justice concurred in the result—providing the key fifth vote for Ms. Fields—but not in the lead opinion’s procedural due process reasoning, agreeing instead with the dissent that “[p]rocedural due process guarantees only that individuals have notice and the opportunity to be heard to contest whether the rule does apply to them, not whether it should.” Rather, the concurring justice concluded that the permanent disqualification violates substantive due process as applied to Ms. Fields because under the facts of this case it is not rationally related to any legitimate state interest.
Four justices dissented, finding that the procedural due process claim failed because Ms. Fields had a meaningful opportunity to bring a constitutional challenge in court to the rule’s application to her, even if she had no such right in the administrative process, so that her procedural rights were satisfied. As to substantive due process, the dissent found that “she has failed to meet the heavy burden of showing that the decision to permanently disqualify her from providing childcare services based on her conviction for the violent crime of attempted robbery is not rationally related to the legitimate government interest in protecting children.” The dissenters also expressed concern about the burden on the State of now having to decide whether or not to grant individualized hearings for people with a disqualification conviction—and on the courts, to determine whether or not litigants denied individualized hearings are “in the same situation as Fields, or a sufficiently similar situation, to demand the same relief.”
The Washington regulation, declared invalid as applied to Ms. Fields, is similar to a Pennsylvania law invalidated on its face several years ago—insofar as it imposed a lifetime employment ban on working with vulnerable populations, for anyone with a listed conviction for offenses ranging from misdemeanor theft to murder. In Peake v. Commonwealth, a unanimous 7-judge appeals court struck down provisions of the Pennsylvania Older Adults Protective Services Act barring people with listed convictions from employment in long-term health care facilities such as nursing homes and home health care agencies. 132 A.3d 506 (Pa. Commw. Ct. 2015). The court declared the law facially unconstitutional for being overbroad in violation of substantive due process because it: (1) grandfathered in individuals employed in a facility for at least a year; and (2) established an impermissible irrebuttable presumption of unfitness for employment. In prior posts, we discussed the facts of this case and the decision in more detail.
One may fairly assume that the broad holding in Peake, and the state’s decision not to appeal, was related to the history of that law—Pennsylvania courts had previously held it unconstitutional as applied to individual plaintiffs. See Nixon v. Commonwealth, 789 A.2d 376 (Pa. Commw. 2001), aff’d 839 A.2d 277 (Pa. 2003). In contrast, the Washington Fields decision is not as broad as Peake, as it only applies to the plaintiff. But Fields may be a harbinger of things to come, as plaintiffs are likely to increasingly challenge blanket prohibitions on licensing and employment purely based on a prior conviction.
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