Federal court upholds pointless requirements for daycare workers

Federal court upholds pointless requirements for daycare workers
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You shouldn’t need a college degree to change a diaper or show a child how to tie their shoelaces. But that’s what you need in Washington, DC to do those things as a daycare provider. And on August 12, a federal appeals court ruled that requirement was just fine, even though it will cost daycare workers and customers a lot of money. This pointless requirement is an example of occupational licensing. The percentage of Americans required to have licenses to work has expanded from 5 percent in the 1950s to 30 percent today. A license to work in an occupation is conditioned on requirements that can be very expensive, such as obtaining thousands of hours in training that is often largely irrelevant, or paying hundreds or even thousands of dollars in fees to obtain a license.

The Institute for Justice describes how a court just rubber-stamped this requirement on Friday, rejecting constitutional separation-of-powers and due-process challenges to the requirement being imposed by unelected bureaucrats:

the U.S. Circuit Court of Appeals for the District of Columbia dismissed a lawsuit challenging an Office of the State Superintendent of Education (OSSE) requirement that day care providers obtain a college degree before taking care of kids.

Ilumi Sanchez, a D.C. day care provider who has cared for dozens of children since 1995, challenged the requirement in 2018, along with a parent and another provider. Their lawsuit, in which they are represented by the Institute for Justice (IJ), alleged that the college-degree requirement imposed huge costs on day care workers without teaching them anything useful about caring for infants and toddlers. Initially adopted in 2016, the regulations still have not gone into effect, as D.C. officials have responded to the lawsuit by repeatedly delaying the effective date of the new rules and exempting certain sorts of workers (including Ilumi) from the requirements entirely.

“The fact that D.C. officials have spent the past half-decade slowly retreating from their disastrous rulemaking is pretty good evidence that the college-degree requirement was a bad idea in the first place,” concluded IJ Attorney Renée Flaherty. “But today’s ruling clears the way for D.C. officials to go forward with their initial plan to throw countless loving, experienced childcare providers out of work because they don’t have the right piece of paper to change a child’s diapers.”

The college-degree requirement would 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 who cannot afford college and may not speak English as a first language. But the court’s opinion found that was perfectly rational: “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.”

D.C. is already the nation’s most expensive market for childcare, a problem that will only be made worse by requiring workers to get college credits in “math and English [or] art and history.” But under the terms of the District’s latest rulemaking, day care workers without an associate degree will be out of a job by 2023.

“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. “The question for D.C. regulators—and for D.C. parents—is why in the world they would want to.”

“Today’s opinion treats the right to earn an honest living as something government regulators can grant or take away based on their slightest whim,” concluded Scott Bullock, IJ’s president and general counsel. “But fundamental to the American Dream is the right to choose how you provide for your family—including when you choose to do so by caring for other people’s families. IJ will continue the fight until courts nationwide treat that right with the respect it deserves.”

While Washington, D.C. is imposing more pointless requirements like this, a few other states have rolled back some unnecessary occupational licensing restrictions in the last few years. As Reason noted,  “Kentucky and Mississippi have enacted major licensing reforms …. and several other states are considering similar action.”

It is especially stupid for states to require licenses for jobs that do not require a high intelligence or lots of specialized skills. That increases the crime rate, because licenses tend to be denied ex-cons, leaving them with fewer job options and thus more temptation to return to a life of crime. A recent study found that “formerly incarcerated residents are more likely to commit a new crime within three years of being released from prison if they live in a state where they’re prohibited from getting a license solely for having a criminal record.”

Many occupations that are now licensed do not need to be licensed to protect anyone. And the few that do, tend to have excessive requirements for getting a license. As Reason magazine reported:

“Licensing is a barrier to entry for all Americans looking for work in certain professions, but it’s particularly pernicious for those on the lower end of the economic ladder. For example, getting a license to cut hair can require more than a year of expensive schooling in some states, while becoming an interior designer in places like Florida requires more than 2,000 days (yes, days!) of training. There’s little evidence that licensing those professions does much of anything to protect public health and safety.

“Once you have a license, you might be stuck in the state where you earned it. A 2015 study by the Brookings Institution found that licensed workers were less likely to migrate between states, but not necessarily because people are happy in those places. Instead, researchers say workers feel locked in place because most state-issued professional licenses are not transferable, so moving out-of-state means you’d be out of business unless you can obtain a new license in your new home.”

The harm from occupational licensing regulations is so obvious that even the Obama administration, which was usually pro-regulation, recognized it. As Reason reported, “During the Obama administration, the Department of Labor and the White House Council of Economic Advisers published a lengthy report on licensing laws, and called for states to take action to remove unnecessary barriers to work. ‘Licensing restrictions cost millions of jobs nationwide and raise consumer expenses by over one hundred billion dollars,’ it concluded.”

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.” Contact him at hfb138@yahoo.com


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