The family of a 13-year-old girl with cerebral palsy is suing two private schools in New Orleans, for discrimination for allegedly refusing to admit her because of her disability or accommodate her needs. Though the religious schools typically enjoy some level of protection from such suits, both schools recently accepted federal pandemic aid: forgivable loans issued under the Paycheck Protection Program. And the family’s lawyer says that means they have to abide by federal anti-discrimination laws.
Attorney Chris Edmunds is representing the girl’s mother in suits against Mount Carmel Academy and Cabrini High School. The 13-year-old uses a wheelchair to get around and an aide assisted her at her elementary school. The girl and her mother are not named in the suits. They are identified only by initials.
At Mount Carmel, Edmunds argues that administrators had no grounds for suggesting the school’s “academic program would be substantially difficult for” the girl, whom Edmunds says has received high marks at her school.
“The type of discrimination and the way it manifested is very different. The case against Mount Carmel the discrimination is much more open and obvious … I say because she basically left a voicemail saying in so many words … we can’t have a child in a wheelchair here,” he said.
Cabrini was different, Edmunds said. The school didn’t deny her entry because she was in a wheelchair. Instead, according to the lawsuit, a Cabrini administrator initially told the family that the girl would not be allowed to bring an aide to school, which she requires. When her mother tried to push back, school administrators “stonewalled” her, ignoring her follow-up calls.
Edmunds argues both cases are clear cut examples of discrimination based on ability.
“The aide helps her carry her books to and from classes, helps her carry her lunch tray. My client has some limited coordination in one hand so she’s sometimes not able to cut her food, say if it’s chicken.”
“My client is not independently able to use the bathroom. She helps her in the bathroom,” he said. “One of the really troubling things about Cabrini was they suggested her inability to use the bathroom independently would affect her chances at admission.”
While religious organizations often enjoy an exemption to anti-discrimination laws based on disability status, Edmunds argues they don’t enjoy that exemption at the moment. New guidance from the Small Business Administration, which administered the Payroll Protection Program, clarifies that such loans through SBA “carries with it the application of certain nondiscrimination obligations.”
“They’ve accepted between $1 and $2 million dollars from PPP that means they are absolutely 100 percent subject to the Rehabilitation Act … which prohibits discriminiation on the basis of disability,” Edmunds said of Mount Carmel. “So we feel this is a pretty open and shut case.”
Edmunds said that the girl has not had similar problems with other private schools.
“Mount Carmel and Cabrini are the outliers here,” Edmunds said. “My client reached out to a number of schools and pretty much all of them were more than happy to accommodate her and her need for an aide.”
Neither school responded to a request for comment.
Mount Carmel
The girl, who’s currently in seventh grade, and her mother began visiting and applying to several local private high schools over the summer. Many Catholic high schools in New Orleans start in 8th grade and the application process occurs the year prior.
After the girl’s mother inquired about the girl bringing a friend to help push her wheelchair at an open house at Mount Carmel, Sister Camille Anne Campbell, the president of the Lakeview high school, left a voicemail on the mother’s phone, according to the complaint.
“I do want to tell you that we do not have the capabilities of accepting your child. She is just precious — perhaps one day I will meet her,” she said in the recording. “However, we don’t have the accommodations, and I do think our academic program would be substantially difficult for her.”
Campbell was the principal at Mount Carmel when the mother attended, according to Edmunds. Edmunds said his client was taken aback by the message.
“She was shocked and so hurt by it that she hasn’t even listened to it other than the time she first received it,” Edmunds said. “And did not listen to it again until it aired on the news.”
Further, Edmunds said, the school is wheelchair accessible.
“They have elevators. They do have the capability of accepting a child in a wheelchair,” he said. “It really is just almost out of spite or complete ignorance of her disability that they would say this to my client.”
He also thinks the academic claim was unfounded, noting his client has good grades and other academic distinctions at her previous school.
“Accordingly, Sister Camille Anne’s comment that Mount Carmel Academy’s “academic program would be substantially difficult for” Plaintiff was based purely on discriminatory animus and/or negative stereotypes about people with disabilities,” the filing states.
“Plaintiff’s mother did not even have the opportunity to request a reasonable accommodation for her daughter in the form an aide, because Mount Carmel Academy dissuaded her from applying in the first place, based solely on her disability,” Edmunds argues in the filing.
Cabrini
At Cabrini, the lawsuit goes one step further as Edmunds argues the school refused to make a “reasonable accommodation” for the daughter. In elementary school, the daughter has had an aide to assist with class transitions and carrying books. Edmunds argues Cabrini took months to respond, and thereby “categorically denied” the mother’s request to allow a family-provided aide to help her daughter after “stonewalling” her for months.
“Cabrini is more nuanced discrimination,” Edmunds said. “They apparently didn’t have an issue with my client being a wheelchair user; the issue came up with my client needing an aide.”
“Under the law the school has an obligation. They can’t just summarily deny an accommodation. The only way they can deny an accommodation is if it’s unreasonable,” Edmunds said.
For example, Edmunds said, if the school was uncomfortable with the girl’s aide they could hire their own staff member to help her. But before saying no, they must try to meet in the middle, he said.
“They basically said ‘because we said so’ and that’s not a reason, therefore it’s not reasonable,” he said.
He also said the school was hesitant about the fact that the girl’s aide assists her in the bathroom.
“You can’t say we’re going to accommodate wheelchair users with bathroom independence but not those who do not,” Edmunds said.
Federal data shows the two schools were approved for PPP loans in April. Edmunds believes many schools may have applied for and received the loans without realizing the requirements tied to federal money.
Dozens of area private schools received PPP
Civil rights attorney Garret DeReus said while these particular cases may be rooted in a new federal aid program, similar requirements apply to religious institutions that take other types of federal aid. For example, he said, private hospitals are often subject to similar anti-discrimination laws because they accept Medicare and Medicaid.
“The argument of the Rehabilitation Act being applicable because they received PPP money, that very specific argument is new because there hasn’t been PPP money before but that approach of looking to see whether an entity has received federal financial assistance in some regard is very well developed,” he said.
An SBA database on PPP recipients shows that Cabrini received between $350,000 and $1,000,000 from the pandemic stimulus program.
Asked whether this could have implications for other entities, Edmunds said he thinks that’s a possibility.
“If you take a look at some of the databases you’ll see that basically every Catholic school and most, if not all, private schools in the New Orleans area have accepted PPP money,” he said.
According to SBA data, about 75 private schools in Louisiana’s First and Second Congressional Districts, which include New Orleans, were approved for PPP loans of at least $150,000. (The government has released data on businesses approved for smaller loans, but it does not provide their names.) Many local charter schools received the loans too, which was a somewhat controversial as traditional public schools weren’t eligible for the holdover funding. Louisiana charter schools, however, already are required to comply with the Rehabilitation Act.
Isidore Newman School and Jesuit High School were the largest recipients, each getting between $2 and $5 million. Eleven schools, including Mount Carmel, received between $1 million and $2 million. Of the remaining schools, Cabrini, along with 35 other schools, received between $350,000 and $1 million. And 26 schools received between $150,000 and $350,000.
“I don’t know how many of the school administrators talked to their lawyers about what goes along with accepting the money but it’ll be interesting to see how many of these will take section 504 liability before they paid off these loans,” Edmunds said.
Section 504 is the specific part of the Rehabilitation Act that covers education.
“Unfortunately what you see a lot of times in the education sector is folks who are, perhaps in some circumstances, trying their best but don’t necessarily look up the rules and requirements,” DeReus said. “They might end up violating federal civil rights law because they don’t know what the rules were.”
DeReus said it’s important for parents to advocate for themselves.
“I think something that is important for the general public to know is parents do have rights and children do have rights and that’s why it’s important for parents and children to continue to advocate for their rights,” he said. “It’s easier for educators to bluster or make statements … but making blustery statements does not preempt federal civil rights law.”