Discrimination?

Pastor Michael Hirsch believed God was calling his church to reach out to Fredericksburg's mentally and emotionally disabled children.

So he and the congregation at Calvary Christian Center moved forward with plans to merge with Fairwinds Day School.

The city planning commission voted unanimously in September to approve the plans and recommended that the Fredericksburg City Council do likewise.

But the council rejected the church's plans, citing safety concerns for non-disabled children that attend the church's already existing before-and-after-school program. However, the day school and the daycare programs would operate at different times and in separate parts of the church's 14,088-square-foot building. The church has sued the city for unjustly discriminating against the disabled and violating the First Amendment.

"Churches shouldn't be singled out for discrimination, especially when attempting to expand their ministries to safely serve the needs of the community - in this case, disabled children," said Erik Stanley, Senior Legal Counsel of the Alliance Defense Fund, which is representing Calvary Christian Center in the lawsuit against Fredericksburg.

Discrimination?

The city of Fredericksburg claims other reasons contributed to the Calvary Christian Center's denied request.

In a statement published on Insidenova.com, the Fredericksburg attorney's office stated that the lawsuit "selectively samples the public meeting record to paint an unfair and erroneous picture of discrimination."

"Councilors were concerned about Fairwinds' history of zoning violations-- it had recently operated at two locations in College Heights without obtaining zoning approval for either location-- and the potential conflicts and safety issues that could arise from locating the special day school in the same facility as a before-and-after-school day care for 32 children ages six through 12," the statement reads.

"No disabled students would even be on campus at the same time as other students, and the church has the approval of planning officials because it has met all zoning requirements to run such a facility," Stanley said. "There's no legitimate reason for a denial, so the city's stated reasons only serve to feed old stereotypes about the disabled."

Stanley said the Fairwinds Day School had operated in a different church the year before and were under the impression that the church had met all the zoning requirements. However, halfway through the year, the city informed them they were operating without proper zoning. That's why Fairwinds sought to move to Calvary Christian Center and apply for a new special use permit.

"It wasn't that the day school was flouting the zoning laws," Stanley said. "That led to them looking for another place to go, because obviously they didn't want to stay somewhere that they didn't have the proper approval."

Both Councilor Devine and Councilor Ellis cited a "concern over the number of group homes and special schools that are currently located in the City," according to hearing minutes from Oct 26. The lawsuit quotes Councilman Bradford Ellis as saying, "Kids from these backgrounds can have significant outbursts that can greatly disturb or even harm the young children in the daycare setting."

The council debated the motion for three meetings on Oct. 26, Nov. 9 and Nov. 23, before the measure was finally voted down by a 3-3 tie, with Councilors Tomzak, Paolucci and Solley voting yes and Councilors Greenlaw, Devine and Ellis voting against the measure.

At the Oct. 26 meeting, Councilor Fred Howe also disclosed that he owns property adjoining the church. He recused himself from voting on the issue based on counsel from City Attorney Kathleen Dooley. In a telephone interview Jun. 14, Stanley told WORLD Virginia that Howe's vote would have favored the church's project.

"He [Howe] put on the record that he was in favor of the day school. He had no problems with it," Stanley said. "If he had not recused himself and voted instead, the day school would have been allowed to move forward."

School goals

According to Calvary Christian Center, the school aims to transition students ages 8 to 15 with mental and emotional disabilities back into a regular school setting. The school would begin with 18 students and cap enrollment at 32 students. Additionally, the school submitted pages detailing how Fairwinds' licensed special education teachers would escort children from the drop-off point at the front of the church to the classroom. The children each have an Individual Education Plan that states they would academically succeed in the environment of a private day school.

Although the church has claimed that there would be "little to no interaction" between the two groups of students, they have stated, "However, we will not discriminate against disabled children who are enrolled in the day school and may also require accommodations of their need in our day care."

Ellis said in a written statement that an unidentified teacher and licensed social worker he had spoken with were both concerned about the church's plans for safety. He also claimed that he spoke with parents of children in the day care who "felt their children could be in jeopardy in this kind of situation."

"The possibility that a Special Day School student could cause harm to a child in Day Care was a constant concern with each parent I spoke with," Ellis wrote.

During the hearings, the council received a number of positive comments from the Calvary congregation and not a single negative comment.

"I feel it [the day school] will be a very important and great addition to the city," read a comment from a woman named Doneta Sporney. "It has been something that a lot of parents would like to see in this area."

ADF attorneys argue that the city council's denial is a violation of the federal Religious Land Use and Institutionalized Persons Act, which prevents zoning officials from singling out churches for discriminatory treatment. The lawsuit also contends that the city council has violated the Americans with Disabilities Act, which prohibits the government from unlawfully discriminating against children because of their disabilities.

"This facility is safe," Hirsch wrote in response to the council's concerns. "I rest assured none of these delays have been to the pleasure of anyone's purposes of seeking the furtherance of personal political interests."

Follow us on Facebook and Twitter today!