The boy was diagnosed after he was accepted to the Washington Market preschool in Tribeca.
This may be the first case of its kind in the country, a federal discrimination lawsuit claiming that a private pre-school violated the Americans with Disabilities Act.
The family was stunned that the school rejected their son Owen, without ever even meeting him.
"The point is you can't discriminate and get away with it," said Jennifer Sample, a Soho mother, who claims the pre-school did just that, accepting her 3-year-old Owen earlier this year, and then rescinding the offer after learning the child had been diagnosed with autism.
("You did not tell them he had autism when you applied?", we asked) "He did not have the diagnosis at the time," she said.
Sample claims that she and her husband had visited the school without Owen because it doesn't interview children for admission.
They were accepted. It was after that, Sample says, that she received Owen's diagnosis from an autism expert. She called the school.
"I said I was thrilled to be accepted and for full transparency that my son had autism. And we would be providing a one-to-one- paraprofessional and we were willing to pay for full tuition even if he had an abbreviated schedule," said Sample.
("What did they tell you?") "That they would not allow him in," she said.
She says the school told her it would not be a good fit and too rigorous for the child.
"And they did say that without meeting him. And that's discrimination. They have to do due diligence with a child, with children with disabilities. And they did not want to do that," said Sample.
("You don't think they have the right to just say, no you can't come?")
"I think they do if they evaluate the child and the child exhibits behavior that would not provide a meaningful experience for that child or for the other children in the school," Sample said. "That is not the case with our son."
Sample reached out to Noted Autism rights attorney Gary Mayerson, who has now filed a federal civil rights lawsuit against the school for violation of the Americans with Disabilities Act.
'They didn't discriminate on the basis of some legitimate reason such as the child has aggressive behavior, or the child is doing something that will change the fundamental character of the school. They didn't even care to see the child. They rejected him and rejected him sight unseen because of the autism label," said Mayerson. "I think that a number of pre-schools have been doing it for many, many years. I just don't think you have a fact pattern that's this evident, that cries out for relief. It sometimes is very hard to prove discrimination. But sometimes a fact pattern comes along and I think this is the one."
Sample says she and her husband could have just not said anything about Owen's diagnosis, and believes a lot of parents do just that, out of fear.
"They told me very specifically that the parents with children in the program did not disclose their child's diagnosis and that no child in the school had an official diagnosis," she said.
The suit asks for mandatory training of the school staff and the administration of a federal monitor to ensure compliance with the Americans with Disabilities Act.
We left repeated messages for administrators at the Washington Market pre-school, and did not hear back from anyone. They will, at some point, have to answer the lawsuit.