Private School Expels Child With Type 1

Parents file a lawsuit that may test the reach of disabilities law in the private school setting.



Recently, a parent revolt at a private church-affiliated school in Charlotte, North Carolina has morphed into a lawsuit under that state’s disability discrimination law. It’s alleged that two children, one diagnosed with a chronic abdominal migraine disorder and one with Type 1 diabetes, had been expelled from the Calvary Church private school in Charlotte because of their conditions.

Calvary Church officials have not commented on the lawsuit, but based on information provided by the parents it appears that the school’s position is that daily care for two students places an unreasonable burden on school resources. The school does not employ a full-time nurse, and it’s alleged that a teacher threatened to resign if the parent of the child with diabetes would come into the classroom to assist with care. The school’s parent handbook, obtainable online, stated that the school would administer all prescription medication, if under orders from physicians and with parental authorization.

North Carolina statute law recognizes an obligation, at least on the part of public schools, to offer care for children with diabetes, providing that “[i]t is within the scope of duty of teachers, including substitute teachers, teacher assistants, student teachers, or any other public school employee when authorized by the board of education or its designee, (i) to administer any drugs or medication prescribed by a doctor upon written request of the parents …” The statute also provides a training requirement and a “Good Samaritan” shield from liability in administration of care. North Carolina is listed in the American Diabetes Association’s digest of state school diabetes care laws as one permitting unlicensed, but trained and authorized, personnel or volunteers to administer insulin and perform related care tasks, even though the statute does not specifically address diabetes care.

The lawsuit filed by the parents cites North Carolina’s Persons With Disabilities Act, which mirrors the Americans with Disabilities Act in providing protection to individuals with some medical conditions in employment, in access to public accommodations, and in access to government-sponsored services and benefits. The federal law does reach to schools, but includes certain exemptions for private and religious organizations. The North Carolina lawsuit highlights the part of the state law which outlaws discrimination by places of public accommodation, which is defined to include any facility or other establishment “which solicits or accepts the patronage or trade of any person.” So, one question to be decided in this complaint will be whether a private school for 800 toddlers and kindergartners is a business which offers its services and benefits to the public.

In a telephone interview, Josh Van Kampen, a lawyer who represents the parents of the two children who were expelled from school, said that the state law “fills a void left by the federal [Americans with Disabilities] law.”

The complaint alleges that the school, which claims immunity under the federal law, performs a service which “the overwhelming majority of comparable schools” in the city, and subject to the federal anti-discrimination requirements, perform. Further, the complaint states, the school “could voluntarily abide by these laws that protect disabled children … [i]t could add disability to its non-discrimination policy; it hasn’t. Accordingly, these families turn to North Carolina law and this Court for recourse.”

The attorney for the school has declined to comment to Insulin Nation and other news organizations on the lawsuit, citing his preference not to discuss a matter in litigation. At publication time, the deadline for the school to answer the complaint had not come.

The North Carolina suit will test the reach of that state’s education and anti-discrimination law into the private school setting. And, as we’ve mentioned in earlier installments of our series on diabetes care in schools, the reach of federal law into private schools will likely remain unsettled for some time to come.

UPDATE – 2/3/2016 – The two families have started a Change.org petition calling for the school to not discriminate. You can sign it here.

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Jim Cahill is a senior writer for Insulin Nation and Type 2 Nation. Before turning to writing, he was a lawyer in government and private practice who focused on consumer protection and regulatory law. He can be contacted at jcahill@epscomm.com.