Accusations of Anti-Gay Discrimination and Retaliation Against Pennsauken (NJ) School District in Federal Lawsuit

U.S. District Court for the District of New Jersey, Camden Vicinage
D.V., et al. v. Pennsauken School District, et al.
C.A. No. 1:12-cv-07646-JEI-JS
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Sept 18, 2013, Philadelphia, PA /LGBT News/ For most families, back to school is a time of anticipation and excitement.  But for the Vandergrift family, discussions about school trigger a groundswell of emotion and a wide variety of difficult memories.  Since the 2010-11 school year, the Vandergrifts have worked tirelessly to secure an appropriate education for the youngest member of the family, DV, a child with autism and generalized anxiety disorder. 

As a result of their efforts advocating for DV, the Vandergrifts have been in dispute with the Pennsauken School District in Southern New Jersey.  The Vandergrift family allegedly encountered a pattern of resistance, which grew increasingly contentious as the issues DV faced in his educational environment became more problematic. 

According to the lawsuit, while the Vandergrifts continued to work on DV’s behalf, representatives of the Pennsauken School District allegedly subjected members of the family to several incidents of retaliation for advocating for a disabled individual, as well as anti-gay discrimination. The lawsuit alleges that these tactics were intended to intimidate the Vandergrift family so they would stop advocating for DV.

The Vandergrift family subsequently filed a complaint in Federal Court alleging retaliation and discrimination.

What follows here is a narrative summary of the information alleged in the complaint filed by Amelia Carolla, Esq., on behalf of members of the Vandergrift (Plaintiffs)

DV is a child with autism and generalized anxiety disorder.  As a result, he has severe deficits in socialization, communication and motor skills.  DV also suffers from general learning disabilities.  He had a tumultuous childhood with his parents, resulting in DV residing with his paternal grandmother, Betty Vandergrift (Betty), who is his legal guardian.

As DV’s legal guardian, Betty is the person who initiated legal action on behalf of members of the Vandergrift family.  Thomas Vandergrift (Thomas) is DV’s Uncle.

Betty asked Thomas to assist her in advocating for DV’s educational rights.  Thomas is openly gay, and at the time was employed as a teacher in a New Jersey public school.  Throughout the interactions with the Vandergrift family, Pennsauken School District representatives were aware of Thomas’s sexual orientation. 

Because of his disabilities, DV is entitled to a Free and Appropriate Education (FAPE) under the Americans with Disabilities Act (ADA), as well as under the Individuals with Disabilities Education Act (IDEA).

Beginning during the 2010-11 school year and extending through 2011-12, DV attended academic programs in the Pennsauken School District.  During that time, representatives from the District classified DV as having a specific learning disability in the area of math. 

In January of 2011, Betty obtained an evaluation indicating that DV is autistic.  Two additional evaluations, conducted in March and June 2012, respectively, confirmed DV’s autism diagnosis. Despite receiving three opinions from accredited medical experts confirming a diagnosis of autism, the Pennsauken School District refused to accept DV’s diagnosis.  Consequently, they neglected to provide him with an appropriate education guaranteed to students with autism.

Betty started administrative proceedings related to the School District’s failure to provide DV with a FAPE during the 2010-11 and 2011-12 academic years.  As DV’s guardian, Betty’s intent when commencing the administrative process was simple and straightforward – assure that the School District would provide a program to meet DV’s needs as a student with autism, in addition to his general learning disabilities.

To meet this end, Betty and Thomas met with the School District’s child study team on August 18, 2011 with the specific request that they revise DV’s Individualized Education Program (IEP) and provide him with additional services for the 2011-12 school year. 

At this meeting, Betty and Thomas explained several of DV’s behaviors and deficits that concerned them.  Representatives of the School District insisted they had not noticed this type of behavior at school, and also disputed DV’s diagnosis of autism.  The only behavior noted by the child study team was related to DV’s personal hygiene, to which Betty and Thomas responded by relating DV’s challenges with self-grooming – a common characteristic of children with autism. 

Thomas specifically stated to the child study team that several family members, including himself, Betty and DV’s grandfather, all tried to teach DV how to wash himself in the shower.

The next day (Aug 19, 2011), investigators from the New Jersey Division of Youth and Family Services (DYFS) visited DV at home.  DYFS reported that members of the child study team called their offices multiple times over the preceding 24 hours to report that DV was the victim of inappropriate / sexual touching by his openly gay Uncle, Thomas Vandergrift.  DYFS conducted an investigation, including interviews with DV and his sister, as well as an evaluation of DV’s body.  DYFS found all allegations to be unsubstantiated, but the process was very upsetting and disruptive for the entire family.

Though not disclosed at the time of the home visit, the names of the child study team members who contacted DYFS about Thomas Vandergrift were released when the federal court judge signed an order permitting their review.  The child study team members, now specifically named in the federal lawsuit, were Chris Lavell (Case Manager), Marty DeLape (Director of Special Education) and Holly Taylor (Social Worker).

When the allegations were made, members of the child study team had no specific facts to support allegations of any inappropriate acts or behavior involving DV or Thomas.  Undeterred by the truth, Chris Lavell, Marty DeLape and Holly Taylor contacted DYFS and proceeded to level false allegations against Thomas.  Notably, no one from the School District reported that either of DV’s grandparents had inappropriately touched him.  They selected Thomas as their target because he is gay and because he was advocating on behalf of a disabled student.  This was a clear instance of retaliation by discrimination that was intended to intimidate the Vandergrift family so they would stop advocating for DV.

Due to Thomas’s employment as a public school educator, he must report any and all allegations of child abuse to his current Superintendent and disclose that information when applying for future teaching positions – no matter how unfounded the allegations may be.  Even a baseless claim of child abuse could cost Thomas a job, his reputation and minimize future opportunities for growth and advancement in the field.

As the 2011-12 school year commenced, Betty chose to hire a psychotherapist to work with DV who had no affiliation with the school district – as opposed to working with the school’s guidance counselor as indicated in DV’s IEP.  Betty took this step and absorbed the expense because the family feared further retaliatory action.

In January 2012, DV reported to his private therapist, Dr. Bruce Banford, the first in a long list of incidents of physical abuse, taunting and bullying suffered at the hands of other students. 

The School District was given actual notice of every incident of bullying and harassment – and the staff repeatedly minimized the severity of each incident, and neglected to intervene on DV’s behalf to guarantee his safety. 

After several months of back-and-forth, Betty was finally able to secure a meeting with School District representatives on May 16 and 17, 2012.  On these dates, Betty, Thomas, DV’s grandfather and Dr. Banford, expressed their concerns regarding the bullying, focusing on other students repeatedly calling DV “gay.”  Several staff members were present, including the Superintendent and a school psychologist employed by the School District, Billie Berenbaum. 

Shockingly, Berenbaum acknowledged that it was commonplace for students to call one another “gay” in DV’s class – and that DV should not get upset about it because it was not a “big deal.”  Her dismissive attitude toward the derogatory use of the word was so cavalier that the Superintendent ordered her out of the room halfway through the meeting.  Unfortunately, the end result of the meeting was that the School District opted not to take action to provide a safe educational environment for DV.

After DV was out of school for several months with no communication from the School District, it became clear that they did not conduct a timely bullying investigation as required under the School District’s own anti-bullying policy or New Jersey’s Anti-Bullying law (N.J.A.C. 18A:37-14 et. al.).  In August 2012, Betty and the School District came to an agreement to resolve the question of DV’s placement at a private special education school.  Despite substantial setbacks since first engaging with the School District, this action began to address the family’s concern about whether DV would have access to a FAPE to continue his formal education.

At issue in the complaint filed in Federal Court are alleged retaliatory and discriminatory tactics executed by the School District to intimidate the Vandergrift family.  A trial date has yet to be scheduled.

Please direct legal questions to:
Amelia Carolla
Reisman Carolla Gran, LLP
19 Chestnut Street
Haddonfield, NJ 08033

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