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Sashihara v. Nobel Learning Communities, Inc.

Superior Court of New Jersey, Appellate Division

October 16, 2019

CRAIG SASHIHARA, Director of the New Jersey Division on Civil Rights, Plaintiff-Appellant,

          Argued September 17, 2019

          On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2227-16.

          James 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).

          Bonnie M. Hoffman argued the cause for respondent (Hangley Aronchick Segal Pudlin & Schiller, attorneys; Bonnie M. Hoffman and Andrew M. Erdlen, on the briefs).

          Before Judges Yannotti, Hoffman and Currier.


          HOFFMAN, J.A.D.

         In this 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)[1]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.


         Defendant, 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.

         M.M. (Jane), [2] 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.

         When Jane turned three, she entered the "Intermediate" program, which did not provide diapering services.[3] 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."

         Between 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.

         On 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.

         The 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.

         In 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 arguments.

         Defendant 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 ...

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