On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-2509-03.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Payne and Miniman.
Plaintiff Dianne Ellison appeals on her own behalf and on behalf of her minor son, Luke, from an order of summary judgment dismissing their claim of discrimination on the basis of disability filed pursuant to the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -45, against defendants the Creative Learning Center (CLC) and its owner, Bonnie Pauska. Plaintiffs' claim arises out of the CLC's alleged decision to exclude Luke from its pre-school program because he utilized an insulin pump as a means of administering treatment for his juvenile diabetes. The CLC and Pauska have cross-appealed from the court's determination that the CLC is a place of public accommodation under N.J.S.A. 10:5-5(1) and that plaintiffs' cause of action was not preempted by the federal Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400 to 1482. We affirm in part and reverse in part.
Luke was born on November 18, 1997, and was diagnosed with Type I (juvenile) diabetes in February 1999. Until July 2002, Luke was administered insulin for the treatment of his condition through hypodermic syringes. In July, Luke was fitted with an insulin pump that delivered a gradual infusion of insulin through a tube implanted under his skin.
During the 2001-2002 school year, Luke had attended St. John's Nursery School, where the teaching staff performed the blood tests required to monitor Luke's glucose levels. In January 2002, Ellison sought admission for Luke at the CLC, where, after an interview and observation, he was accepted for the term commencing in September 2002. It was anticipated that Luke would attend school from 9:00 a.m. to 11:45 a.m. four days a week. The fact that Luke was a diabetic was disclosed at the time of the initial interview, and Ellison demonstrated then how to perform a blood glucose test. Luke was the school's first diabetic student.
In August 2002, Ellison informed Pauska that Luke had been fitted with an insulin pump, and she sought a meeting to explain its use to the school's teachers. The meeting was scheduled for September 5, after the teachers returned from their summer break. On that date, Ellison met with two teachers to explain the pump's operation. She told them, among other things, that if Luke were given a snack or other food at school, he could need an additional boost or bolus of insulin that would be administered through the pump. In order to calculate the amount of the bolus, the teachers would need to estimate the amount of carbohydrates that Luke had eaten and program the pump accordingly. Ellison also testified in her deposition that she "explained to them the importance of balancing insulin and food, and [that] too much insulin whether it's given by needle . . . or pump without the balance of food . . . can have fatal effects." Ellison testified additionally that she had offered to come to school to train the teachers on the proper use of the pump.
According to Ellison, on the day that the meeting had occurred, she was called by Pauska who, after a preliminary conversation in which she asked Ellison to personally monitor Luke's care at school throughout the year, withdrew Luke's acceptance. Pauska has denied doing so, and claims that Ellison withdrew Luke from the school in a fax received on September 6. Pauska has claimed additionally that on September 5, after the meeting between Ellison and the teachers, she called the State and was referred to the Child Care Health Consultant Coordinator for Monmouth County, Patricia Luccarelli, who informed her that any training of school personnel should be done by a medical professional such as Luke's endocrinologist, and that certain authorization forms would have to be executed by Ellison. Luccarelli confirmed the substance of Pauska's statement regarding their communications in deposition testimony, and stated further that she prepared materials for Pauska's use and, with Pauska's agreement, met with her at CLC on the following day to discuss Luke's care. Pauska claims to have called Ellison after speaking to Luccarelli in order to arrange for instruction by Luke's endocrinologist, and to have left a message for her. Ellison denies the call.
Following the September incident, Luke was re-enrolled at St. John's Nursery School, where he remained until entering public school. Fees paid by Ellison to CLC were returned to her at her request, along with a letter dated September 18, 2002 that refers to Luke's condition and the reasons for the termination of his enrollment at the CLC. Suit was filed against the CLC and Pauska on June 9, 2003.
After the period for discovery had ended, the CLC and Pauska moved for summary judgment. In granting that motion, the judge found that the CLC was a place of public accommodation to which the NJLAD applied, and that the NJLAD was not preempted in this case by the federal IDEA. However, the judge found no obligation on the CLC's part to provide reasonable accommodations for Luke's care, and thus granted summary judgment in defendants' favor. Plaintiffs' appeal and defendants' cross-appeal followed.
We affirm the trial court's determination that the CLC, a profit-making entity offering to the public progressive educational programs for children from the age of three through the first grade, was a place of public accommodation subject to the antidiscrimination provisions of the NJLAD. N.J.S.A. 10:5-12f(1) (prohibiting discrimination in places of public accommodation). The statute's definitional section, N.J.S.A. 10:5-5(l), provides that a place of public accommodation shall include, but not be limited to: . . . any kindergarten, primary and secondary school, trade or business school, high school, academy, college and university, or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey. Nothing herein contained shall be construed to include or to apply to any institution, bona fide club, or place of accommodation, which is in its nature distinctly private; . . . nor shall anything herein contained be construed to bar any private secondary or post secondary school from using in good faith criteria other than race, creed, color, national origin, ancestry or affectional or sexual orientation in the admission of students.
The CLC argues that it is not a place of public accommodation because it is a "distinctly private" entity that offers services of an "exclusive nature" to candidates selected through a vetting process that ensures the exclusion of children "who would not benefit from the highly active, non-traditional, open classroom learning environment." It also claims exclusion from the definition of a public accommodation because it operates as a day care center overseen by the Department of Human Services, pursuant to N.J.S.A. 30:5B-4, not the Department of Education, and it asserts that it does not provide the educational services offered by institutions regulated by the Department of Education.
Claims of exemption from the NJLAD on the basis of the private character of the entity "require close scrutiny by . . . the courts," Frank v. Ivy Club, 120 N.J. 73, 102 (1990), cert. denied, 498 U.S. 1073, 111 S.Ct. 799, 112 L.Ed. 2d 860 (1991), so that "[no] device whether innocent or subtly purposeful can be permitted to frustrate the legislative determination to prevent discrimination." Ibid. (quoting Clover Hill Swimming Club v. Goldsboro, 47 N.J. 25, 34 (1966)) (quoting Jones v. Haridor Realty Corp., 37 N.J. 384, ...