The New Jersey Attorney General’s office is suing a private preschool for discrimination, alleging that school administrators expelled a 3-year-old girl with Down syndrome because she was not yet potty trained.

The lawsuit, filed Wednesday, claims that Chesterbrook Academy, which is part of Nobel Learning Communities Inc., violated a state anti-discrimination law last year that requires New Jersey schools to provide reasonable accommodations for people with disabilities. The lawsuit argues that the preschool unfairly imposed a strict deadline for the child to be potty trained and then, despite her disabilities, disenrolled her when she did not meet it.

“This is not the first time we have made allegations against Chesterbrook,” New Jersey Attorney General Christopher Porrino said in a statement. “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.”

Nobel Learning Communities spokeswoman Kerry Owens said preschool officials are unable to discuss details of the discrimination allegations because they are subject to pending litigation.

“Our schools are dedicated to serving the needs of a diverse student population, including many with disabilities,” Owens said in a statement to The Washington Post. “We are proud of our comprehensive policies and procedures to ensure compliance with state and federal laws governing the rights of all students.”

Potty training remains a common and constant struggle between parents and preschools that need to set goals on toddlers’ unpredictable timelines. In New Jersey, however, the recent lawsuit extends beyond the bathroom — highlighting a larger argument about whether one preschool’s failure to bend the rules for a special-needs child is deemed discrimination under state law.

In January 2015, a Chesterbrook Academy school in Moorestown, N.J., moved the toddler, without her parents’ agreement, from a beginner classroom to an intermediate classroom, which did not provide diaper-changing services, according to the lawsuit. The preschool said at the time that children in the intermediate classroom had to be toilet trained.

On Jan. 21, 2015, the acting principal sent an email to the girl’s parents, seeking their assistance in potty training the girl, who is identified in court documents only as “Jane.”

The email stated:

I just wanted to follow up to our conversation about [Jane]’s potty training. We are really going to work on getting her potty trained here at school! We need to partner with you on this. Is there anything in particular that you do at home? Any info would be great so I can share it with her teachers. Since she is in a non-diapering classroom we need to set a time frame for her potty training. I was thinking April 1st? Since it is a corporate policy I have to set a time frame to get her potty trained. I’m confident that if we all work together we can get her potty trained. Please let me know if you have any questions.

Jane’s parents said they thought April 1 was meant to be a goal, not a deadline, according to the lawsuit.

Jane’s doctor at the Children’s Hospital of Philadelphia wrote a letter March 23, 2015, noting that due to her Down syndrome, she “developmentally delayed and will not be able to fully potty train until age 5 or older,” according to the lawsuit.

Her parents submitted the note to Chesterbrook. Two days later, the principal told them that their daughter would be disenrolled unless she was potty trained within the week.

The parents requested that their toddler be moved back to the beginner classroom, where she was not required to be toilet trained, but Chesterbrook declined to do it or to extend the deadline, according to the lawsuit.

“Chesterbrook failed to engage in any discussion regarding Jane’s ability to remain enrolled and did not engage in any interactive process” with Jane’s parents “to discuss reasonable accommodations for Jane,” according to the lawsuit.

Nobel Learning Communities’ executive director told the parents in an email that the decision was “not made lightly” and that it came after consulting Nobel’s American with Disabilities Act compliance officer, according to the documents.

On April 1, 2015, Jane was expelled.

“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,'” Craig Sashihara, director of the Division on Civil Rights for the New Jersey attorney general, said in a statement.

“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.”

Chesterbrook Academy is part of Nobel Learning Communities, “a network of more than 180 private schools in 19 states and the District of Columbia, with a commitment to outstanding preschools and K-12 schools,” according to its website. Chesterbrook Academy has schools in Maryland and Virginia. It states that its preschools “provide the developmentally appropriate balance of learning and play to prepare children for kindergarten and beyond.”

During an investigation in 2006, the New Jersey Division on Civil Rights found probable cause against a Chesterbrook location in Glassboro, N.J., when it allegedly turned away a child with spina bifida because the child required diaper services in a toilet-trained classroom, according to the lawsuit filed Wednesday. As part of a settlement, Chesterbrook agreed to provide training on disability discrimination to staff members, among other things, according to the court documents.

Then in 2009, the U.S. Department of Justice sued Nobel Learning Communities for allegedly excluding disabled children from its programs based in 15 states, including New Jersey, according to the lawsuit.

In that case, Nobel Learning Communities agreed to a settlement that included implementing a disability nondiscrimination policy and appointing an American with Disabilities Act compliance officer, according to the lawsuit.

Even private child care centers are required to abide by Title III of the American with Disabilities Act, which provides civil rights protections for people with disabilities, according to an explainer from the Justice Department.

“Privately-run child care centers — like other public accommodations such as private schools, recreation centers, restaurants, hotels, movie theaters, and banks — must comply with title III of the ADA,” according to the Justice Department.

Almost all child care providers, regardless of size or number of employees, must comply with title III of the ADA. Even small, home-based centers that may not have to follow some State laws are covered by title III.
The exception is child care centers that are actually run by religious entities such as churches, mosques, or synagogues. Activities controlled by religious organizations are not covered by title III.
Private child care centers that are operating on the premises of a religious organization, however, are generally not exempt from title III. Where such areas are leased by a child care program not controlled or operated by the religious organization, title III applies to the child care program but not the religious organization. For example, if a private child care program is operated out of a church, pays rent to the church, and has no other connection to the church, the program has to comply with title III but the church does not.

The New Jersey Law Against Discrimination (LAD) also bars schools and educational centers from discriminating based on disabilities, the only exception being schools or educational institutions run by religious organizations.

The New Jersey Department of Human Services says that educational institutions must provide “reasonable accommodations” for disabled students.

“In many circumstances, a school or child care center must change or waive a rule or policy to enable a child or student with a disability to enroll,” according to a department handout on LAD compliance. “For example, this may include waiving a requirement that children be toilet-trained in order to enroll in a particular class (especially if the school also enrolls younger children who receive toileting services).”

In the recent case involving Nobel Learning Communities, Leland Moore, spokesman for the New Jersey Attorney General’s Office and Division on Civil Rights, told The Post that “the focus is on whether the facility solicits and accepts students from the public, which it does.”

“Private preschools are not somehow exempt from anti-discrimination laws,” he said in an email.

On April 24, 2015, Jane’s parents filed a complaint against the Chesterbrook Academy in Moorestown, claiming the preschool discriminated against a toddler with disabilities when it declined to provide the reasonable accommodations that the parents had requested for their child, according to the finding of probable cause.

During the state investigation, Nobel Learning Communities claimed there other factors leading up to the toddler’s expulsion — that she had shown behavioral problems while still in the beginner classroom, according to the finding of probable cause.

The state claims that the preschool was able to document only two such incidents and that no other educators outside the preschool has observed such behavioral issues, according to the lawsuit.

In the lawsuit, the state is seeking compensation and punitive damages as well as a court order requiring Chesterbrook to undergo training and monitoring by the civil rights division for five years.

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