Filed in Superior Court in Burlington County, the complaint alleges that Chesterbrook Academy in Moorestown discriminated on the basis of disability in 2015 when it expelled the girl – who the school chose to advance to an Intermediate class without the full support of her parents – because she was not yet toilet trained.

The complaint alleges that Chesterbrook failed to provide a reasonable accommodation for the girl’s disability as required under the Law Against Discrimination (LAD). The complaint also charges that Chesterbrook subjected her to differential treatment by expelling her when other, non-disabled Intermediate students were allowed to remain despite needing changing assistance in connection with toileting.

The State’s three-count complaint includes reference to a note from a physician at Children’s Hospital in Philadelphia explaining that, owing to her Down syndrome, the girl could not be expected to be toilet-trained “until age 5 or older.“

 According to the complaint, Chesterbrook officials were not persuaded by the letter, nor by a request from the girls’ parents that she return to the “Beginner B” class --where she’d have access to diapering services not available in the Intermediate program. Instead, Chesterbrook expelled the girl in early April 2015 after she failed to meet a corporately-imposed “deadline” for becoming toilet trained. The State’s complaint also notes that the school’s decision to expel the three-year-old girl effectively left her parents without childcare for two children (the three-year-old’s younger sister also was enrolled at Chesterbrook.

As a result, the complaint notes, they were forced to expend time, money and other resources to find a day care provider that had two available spots, and could accommodate two young children.

“This is not the first time we have made allegations against Chesterbrook,” said Attorney General Porrino. “The State’s position is that Chesterbrook had a duty under the law to accommodate this three-year-old girl – who had been enrolled there since infancy – and that doing so would not have been significantly burdensome or fundamentally disruptive to its services and programs. The company’s hardline corporate decision has harmed this child and her entire family.”

The State’s complaint details not only current allegations against Chesterbrook Academy of Moorestown, but references prior accusations of similar discriminatory conduct at other Chesterbrook Academy facilities in New Jersey -- and across the country -- going back 10 years. For example, the complaint notes, in 2006 the Division on Civil Rights issued a Finding of Probable Cause against a Chesterbrook location in Glassboro, Gloucester County, for refusing to enroll a child with a spina-bifida-related disability. A settlement of that case included, among other things, training for Chesterbrook staff on disability discrimination, as well as on the interactive process required to respond to requests for accommodations under the LAD.

In 2009, the U.S. Department of Justice filed a lawsuit against parent company Nobel Learning Centers for excluding children with disabilities -- including Down syndrome – from its programs in 15 states, including New Jersey. The parties settled that case in 2011, with Nobel Learning Centers agreeing, among other things, to implement a disability non-discrimination policy, implement a policy to address reasonable modification requests, appoint an Americans with Disabilities Act (ADA) compliance officer and arrange for staff training.

“This case is particularly troubling because Chesterbrook and its parent company have faced similar allegations in the past despite holding themselves out as the ‘gold standard for ADA classroom compliance,’ ” said Division on Civil Rights Director Craig T. Sashihara. “Given their past assurances to comply with the law and to train their staff on the governing legal standards for dealing with young children with disabilities, we expected better -- more compliance, more sensitivity, and less intractability -- when responding to the needs of a three year old girl with Down syndrome.”

The State’s complaint against Chesterbrook in Moorestown notes that the girl with Down syndrome – to protect her privacy, she is referred to in the complaint by the fictitious name “Jane” – turned three years old in July 2014.

In January 2015, the school told the parents that it had decided to advance her to an Intermediate. Her parents did not request that she be moved up. Soon after Jane was advanced, the newly-appointed acting principal at Chesterbrook sent her parents an e-mail citing “a corporate policy” that required Jane to be toilet-trained -- because there was no diapering at the Intermediate level -- and suggesting a deadline of April 1, 2015.

In response, the child’s parents forwarded a note from Jane’s physician at Children’s Hospital stating: “Due to her Down syndrome, (Jane) is developmentally delayed and will not be able to fully potty train until age 5 or older.” Despite that March 23, 2015 note, the parents received notice two days later – again, from Chesterbrook’s new principal -- that Jane would be disenrolled if not toilet-trained within seven days (by April 1, 2015.) When the April 1 deadline arrived and Jane still was not toilet trained, Chesterbrook officials made good on their warning and expelled her.

During the Division’s subsequent investigation, Chesterbrook offered new rationale for Jane’s removal – rationale that had not been articulated at the time Jane was expelled. Specifically, Chesterbrook claimed that Jane had exhibited disruptive behavior prior to making the transition from the Beginner B program level to Intermediate.

However, during the Division’s investigation, Chesterbrook officials were only able to document two examples of such behavior. Both of those occurred after Jane had been moved – without her parents’ requesting it -- to the Intermediate program, and both occurred as the April 1 deadline for her expulsion drew near. The Division’s investigation also determined that, outside of Chesterbrook, no educators who encountered Jane had a problem with her behavior. To the contrary, reports on the girl’s conduct and ability to get along were positive.

In a Finding of Probable Cause (FPC) issued at the completion of its investigation, the Division noted that Jane had begun attending another day care facility in Moorestown – Puddle Jumpers -- following her expulsion from Chesterbrook. According to the FPC, the director at Puddle Jumpers described Jane as having “no aggression issues” and said she was a “loving” child who fit comfortably into her environment and “gets along well with the other children.” The FPC also noted that the Principal at South Valley Elementary School in Moorestown, where Jane was enrolled in a three-hour daily program, told Division investigators that there had been no reports of Jane exhibiting inappropriate or disruptive behavior.

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