Federal probe said to target Hershey School over disabled students

An off-campus suicide in 2013 has triggered a federal civil rights probe into the $12 billion Hershey School - the second in four years by the Justice Department - for possibly violating the federal disabilities act, according to a half-dozen people who say they were contacted by the government.

Investigators are looking into whether the scandal-plagued school fails to enroll physically disabled children and expels students with mental-health problems.

Those who have spoken with federal attorneys say they were told not to speak about the case publicly. A seventh person close to the Hershey School confirmed the probe, which has been ongoing for more than a year.

The Americans With Disabilities Act provides that private schools and other public places cannot simply bar those with physical or mental-health disabilities but must make accommodations for them.

The Hershey School released a statement Wednesday saying that "the substantial majority of our students have one or more disabilities - both physical and psychological - and qualify for accommodations" under the law.

The school added that "our number one priority is to ensure we are providing a nurturing environment where every child can overcome the struggles of poverty and reach his or her full potential."

The Hershey School also noted that it has had regular communication with the Justice Department since 2012, "when we began reporting our continuing efforts to serve even more children with disabilities."

In 2012, the school signed a settlement agreement with the department after the government found that it had discriminated against a Philadelphia-area boy with HIV when it rejected him for admission.

As part of that agreement, the school agreed to report a number of measures to the department, such as listing when an HIV student applies to the school.

The Hershey School on Wednesday blamed a "zealous antagonist" - an apparent reference to Ric Fouad, an alum who has been highly critical of the school - for soliciting the Justice Department to pursue claims against it.

"I'm stunned that anyone thinks that I can pressure the Justice Department to investigate anything, let alone a $12 billion charity," said Fouad, a lawyer in private practice in New York City.

Fouad declined to comment on whether he spoke with the Justice Department. He was not among the six sources who told the Inquirer they had spoken with department lawyers.

Justice Department spokeswoman Dena Iverson declined comment.

A team of three Justice Department attorneys in Washington and Pennsylvania is conducting the investigation, sources said.

The federal probe adds to the scandal and legal woes at the fabulously rich 2,000-student Hershey School, which is free to students with family income under $25,000 a year.

Infighting among board members has cost the charity at least $3.6 million in legal fees since last summer and the institution has retained the crisis public relations firm APCO to respond to media inquiries.

In February, the head of the charities section at the Pennsylvania Office of Attorney General, Mark Pacella, called for Hershey Trust Co. board members - who are also directors of the Hershey School - to reimburse the education charity part of the legal costs for the internal probes.

Pacella also has called for the ouster of board chairwoman Velma Redmond, vice chairman Joseph Senser, and former chairman Bob Cavanaugh.

Separately, one of the charity's new directors, Stephanie Bell-Rose, voluntarily quit the Hershey School board in late March, after three months in the position. Drexel University president John Fry also quit, after three years on the board.

Historically, the Hershey School rejected physically disabled children based on restrictions in Milton and Kitty Hershey's 1909 deed that created the orphanage and school for healthy white orphan boys.

The school abandoned the whites-only racial line in the late 1960s after Girard College in Philadelphia opened its doors to blacks, and it ditched the males-only restriction in the mid-1970s as it sought to boost enrollment with girls.

The precipitating tragedy for the current Justice Department investigation was the death of Abbie Bartels, a 13-year-old student suffering from severe depression who hanged herself in her home in Newport, Pa., after she was told she could not return to the Hershey School in June 2013. The school has said it did all it could for her.

Fouad's nonprofit, Protect the Hersheys' Children Inc., brought attention to the case in November 2014 and provided the Justice Department with a letter listing the names of about a dozen additional former students who may have been expelled because of mental-health issues, mostly depression. Fouad also posted the letter on his website, www.protecthersheychildren.org.

As it progressed, the federal probe widened to other compliance issues involving the disabilities act, sources say.

Former houseparents say they observed no wheelchairs on the campus or students with physical disabilities. Impoverished students live on the school's vast property in more than 150 school-owned homes, staffed by houseparents.

The Hershey School owns a controlling interest in the publicly traded chocolate company and Hersheypark.

"I don't know that there was ever a disabled student admitted to [the Hershey School] while we were houseparents," Gary Aichele, who worked with his wife, Wendy, as a houseparent between April 2009 and 2013.

A houseparent who left the school job two years ago said, "I never saw a wheelchair on that campus."

He and his wife signed a non-disparagement agreement with the school and could not be quoted by name. He said he spoke with a Justice Department lawyer over the civil rights investigation.

Curt Decker, executive director of the National Disability Rights Network, a group that provides legal services to people with disabilities, said that federal law trumped private covenants such as the one in the Hersheys' 1909 deed on admitting only healthy children.

"Now, in modern times, we don't consider kids with disabilities as unhealthy," Decker said.

Marc Dubin, executive director of ADA Expertise Consulting and a former senior trial attorney in the Justice Department's Disability Rights Section, said that government investigators would be looking for a "pattern or practice of discrimination" or disability-related discrimination that "raises an issue of general public importance."

Dubin, who is based in Florida, has no special knowledge of the Hershey School case but believed the investigation would take time.

"They are looking at everything they can get their hands on without the power of subpoena," he said.

Going forward, Dubin said, the Justice Department could close the investigation or file a lawsuit to compel compliance.

bfernandez@phillynews.com

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