CRAIG SASHIHARA, Director of the New Jersey Division on Civil Rights, Plaintiff-Appellant,
NOBEL LEARNING COMMUNITIES, INC., d/b/a CHESTERBROOK ACADEMY, Defendant-Respondent.
September 17, 2019
appeal from the Superior Court of New Jersey, Law Division,
Burlington County, Docket No. L-2227-16.
R. Michael, Deputy Attorney General, argued the cause for
appellant (Gurbir S. Grewal, Attorney General, attorney;
Jason Wade Rockwell, Assistant Attorney General, of counsel;
James R. Michael and Farng-Yi D. Foo, Deputy Attorneys
General, on the briefs).
M. Hoffman argued the cause for respondent (Hangley Aronchick
Segal Pudlin & Schiller, attorneys; Bonnie M. Hoffman and
Andrew M. Erdlen, on the briefs).
Judges Yannotti, Hoffman and Currier.
appeal, we consider whether the Director of the Division of
Civil Rights (the Director) has general authority to sue in
Superior Court, whether the Superior Court may grant
permanent injunctive relief on the Director's complaint,
and whether the New Jersey Law Against Discrimination
(LAD)recognizes a claim for failure to contract
with parents of a disabled child. Deciding each issue in the
negative, the Law Division dismissed the Director's
complaint. We affirm.
a private, for-profit corporation, describes itself as
"a network of more than 180 private schools in 19 states
and the District of Columbia." Defendant owns and
operates facilities at four different locations in New
Jersey, under the trade name of Chesterbrook Academy. These
facilities admit children from the age of six weeks through
six years in a day program, "before and after
care," and summer camp.
(Jane),  the child at the heart of this dispute,
was born in July 2011, with Down Syndrome. In January 2012,
Jane's parents enrolled her at defendant's center in
Moorestown, as part of its "Infant" program, for
children up to twelve months old. Jane eventually progressed
to the "Beginner B" program, for children between
two and a half and three years old.
Jane turned three, she entered the "Intermediate"
program, which did not provide diapering
services. Defendant advised Jane's mother in
January 2015 of an April 1 deadline for Jane to be toilet
trained. However, Jane's pediatrician advised that, due
to her developmental delays, Jane "will not be able to
fully potty train until age [five] or older." According
to Jane's mother, on March 25, 2015, defendant's
principal informed her that Jane "would be dis-enrolled
if not toilet trained by April 1."
January 26, 2015 and March 26, 2015, defendant's
employees changed Jane's diaper twenty-two times.
Jane's parents requested defendant reassign Jane back to
the Beginner B program; however, defendant declined this
request, and ultimately dis-enrolled Jane when she was not
potty-trained by defendant's April 1 deadline.
April 26, 2015, Jane's parents filed an administrative
complaint with the Division of Civil Rights (DCR) on behalf
of Jane. The complaint alleged defendant discriminated
against Jane based on her Down Syndrome. After substantiating
the charges, the Director filed a complaint against defendant
in the Law Division. Jane's parents did not join in the
complaint nor were they named as parties.
Director's three-count complaint alleged defendant failed
to provide reasonable accommodations, subjected Jane to
differential treatment, and failed to contract with
Jane's parents "because of Jane's
disability." The complaint demanded injunctive relief
ordering defendant: 1) to modify its policies and procedures;
2) to cease and desist its discriminatory practices and
policies; and 3) to undergo training and monitoring for a
period of five years. In addition, the complaint demanded
compensatory damages for Jane and her parents, punitive
damages for the Director, civil penalties, fees and costs.
December 2016, defendant filed a motion for partial dismissal
for failure to state a claim based on three grounds: 1) the
Director lacked authority to file an action in Superior Court
for compensatory damages for non-party private citizens,
punitive damages for himself, or penalties; 2) Jane's
parents are not "aggrieved" persons under the LAD;
and 3) the LAD does not recognize claims of discrimination
arising from refusing to do business with a person on the
basis of the person's child's disability. The motion
judge granted the motion, based on the first and third
later filed a motion for summary judgment on the injunctive
relief claims, which the motion judge granted. The judge held
that under the LAD, the Superior Court cannot issue permanent
injunctive relief; instead, N.J.S.A. 10:5-14.1 "only
allows [the Director] to seek temporary injunctive relief
that preserves the status quo pending the outcome of an
administrative hearing." Because the Director chose to
pursue an action in Superior Court rather than an
administrative action, and because "the circumstances
that potentially warranted an injunction against