preschool Photo by Sergey Novikov/Shutterstock.com

A preschool operator that had been accused by the U.S. Department of Justice of violating the Americans With Disabilities Act has lost a motion to dismiss or stay its case.

Nobel Learning Communities, which runs as part of its Chesterbrook Academy schools a preschool in Moorestown, New Jersey, allegedly expelled a 3-year-old with Down syndrome in April 2016 because she was not toilet-trained.  After her third birthday, company policy dictated that the child, M.M., be moved into a class with older students who were toilet-trained, according to court documents. But her parents gave the school a note from M.M.’s pediatrician, saying that the child would not be toilet-trained until age 5 or later because of her Down syndrome. The state Division of Civil Rights sued the school over the incident in October 2016, and the Department of Justice filed a separate suit in January of this year.

 U.S. District Judge Noel Hillman U.S. District Judge Noel Hillman. Photo by Diego M. Radzinschi

Nobel moved in March to stay the federal case pending resolution of the state case, or to dismiss the federal suit’s claims for injunctive relief and for compensatory damages for the child’s parents. On Thursday, U.S. District Judge Noel Hillman of the District of New Jersey denied both motions, finding that the federal and state suits aren’t parallel proceedings. The plaintiff in the federal case is the United States, while the plaintiff in the state case is Craig Sashihara, director of the state Division on Civil Rights, Hillman noted. The federal case was filed on behalf of the United States of America, not on behalf of M.M. or her parents, Hillman said. Furthermore, the federal case is brought under the ADA while the state case is brought under the New Jersey Law Against Discrimination, he said.

Nobel also sought to dismiss the DOJ’s  associational discrimination claims on behalf of M.M.’s parents on collateral estoppel grounds, citing rulings from 2009 and 2011 in a separate case brought against it by the Department of Justice in the Eastern District of Pennsylvania.

In that case, where the DOJ accused West Chester, Pennsylvania-based Nobel of discriminating against disabled children, the Eastern District granted a motion to dismiss claims for associational discrimination suffered by families of disabled children, finding in 2009 that the ADA did not allow a family to recover for indirect consequences of a child’s exclusion from Nobel’s school. And in 2010, when the DOJ sought to amend its complaint to include new factual allegations about the parents, the Eastern District denied the motion, finding that an amended complaint would be futile.

The Department of Justice argued that collateral estoppel did not apply because the 2009 and 2010 decisions were not firm enough to have preclusive effect. Hillman agreed, finding that the rulings in question were not final judgments. “Standing alone, they are not sufficiently firm to allow for collateral estoppel,” Hillman said.

The government also asserted that its settlement in the Eastern District of Pennsylvania case expressly allowed the government to bring subsequent ADA suits against Nobel. Hillman found that a two-year moratorium on suits against Nobel in the 2011 settlement had run out.

Nobel operates 180 schools in 19 states. The Eastern District of Pennsylvania suit was not the first time it was sued for disability discrimination. In 2006 the Division on Civil Rights sued it for failing to enroll a child with spina bifida at its Chesterbrook Academy location in Glassboro, according to the state’s complaint in the M.M. case. That suit was settled with an agreement calling for employees to undergo training on accommodation of disabilities. And in 2009 the Department of Justice sued Nobel in the Eastern District of Pennsylvania for refusing to enroll children with disabilities, including Down syndrome, from its schools in 15 states.

The DOJ and Nobel reached a settlement agreement in the Eastern District of Pennsylvania case in January 2011, proving that the school would enact a nondiscrimination policy, provide training to staff and pay $215,000 to the individual plaintiffs.

Hillman also denied Nobel’s motion to dismiss the associational discrimination claim on its own merits. The judge accepted Nobel’s assertion that the parents must suffer a separate, cognizable injury but he said the loss of day care services is as much of an injury to the parent as it is to the child.

The government was represented in the case by assistant U.S. attorneys Jordan Anger and David Simunovich. A spokesman for the U.S. Attorney’s Office for the District of New Jersey, Matt Reilly, said the office would not comment on the ruling.

Bonnie Hoffman of Hangley, Aronchick, Segal, Pudlin & Schiller in Philadelphia, who represented Nobel, did not return a call about the case.