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3rd Circuit Will Hear Food Allergy Discrimination Case

06/05/14
by Wrightslaw

A case involving a kindergarten student with a tree nut allergy has the potential to set a precedent for food-allergy-related accommodations in a federal appellate court.

Food Allergy Research and Education (FARE), joined by the Council of Parent Attorneys and Advocates (COPAA) filed an amicus (friend of the court) brief Friday in the civil rights case, T.F. vs. Fox Chapel Area School District, in the Third U.S. Circuit Court of Appeals, one step below the U.S. Supreme Court.

A federal judge previously ruled that:

  • the school district did not discriminate against the child in violation of Section 504 of the Rehabilitation Act,
  • the school offered reasonable accommodations
  • the school did not retaliate against the child’s parents when it filed a truancy petition against the parents after they withdrew their child from school

One accommodation offered by the school was “special lunch seating at a nut-free table” that was actually a single desk in the cafeteria.

The amicus brief outlines the need for school-wide food allergy management policies, and detailed individualized student accommodation plans that not only note policies, but specifically explain how they will be carried out and by whom.

We will keep you posted on the outcome of this case.

Posted May 7, 2014 on the FARE Blog at

http://blog.foodallergy.org/2014/05/07/fare-files-amicus-brief-in-food-allergy-discrimination-case/

The argument in the brief:

  • details the importance of protecting students with the hidden disability of a severe food allergy
  • states the requirements for schools to provide FAPE under Section 504
  • notes the statutory and regulatory provisions
  • cites caselaw

To ensure a FAPE for a student with the hidden disability of a severe food allergy,  schools must provide an individualized §504 Plan to ensure both meaningful participation in and meaningful access to educational benefits.

Students who require special education and related services require an Individualized Education Plan to meet these needs; a generic school-wide plan does not suffice.

See Bd. of Educ. of Hendrick Central Sch. Dist., 458 U.S. 176,181–182 (1982)(citing
20 U.S.C.§ 1401(18)).

http://www.wrightslaw.com/law/caselaw/ussupct.rowley.htm

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8 responses so far ↓

  • 1 Janet 07/16/14 at 7:51 am

    I am currently awaiting a ruling from the Third Circuit in our almost three year old case, Batchelor vs.Rose Tree Media SD, in Pa. Oral arguments were held in January. This involves intentional and malicious retaliation by Administrators and one special education teacher against my ADHD child and myself for advocating for his educational rights. Our attorney is cautiously optimistic the ruling will be in our favor and if so, it will set a precedent. A ruling is expected any day now.

    The third circuit seems more inclined to rule against the all powerful public schools in Pa. these days so hopefully this tree nut allergy issue will get the attention it deserves.

  • 2 Susan 06/06/14 at 8:47 pm

    I am a parent of a child on the spectrum and a teacher. There are children with nut allergies at tables with children their own age. I understand isolation, but what solution do these parents propose?
    Ban all food with nuts for the rest of the class?
    Many kids on the spectrum cannot handle the noise in a cafeteria and go somewhere else to eat lunch that is quieter. We do not ask that a cafeteria be kept silent so our kids can eat there-

  • 3 PortlandAllergyMom 06/06/14 at 7:52 pm

    As a mother of a child that has a life threatening food allergy (and has 40 reported absence related to denied accommodations (that have approved and afforded on her IEP), we are super excited for this case. There are so many very important things at stake in this case (for food allergies and 504′s in general)! We have been following this case on their support page, I Support TF V FOX CHAPEL SCHOOL DISTRICT. https://www.facebook.com/anonomousmoms

  • 4 ConcernedParent 06/06/14 at 3:11 pm

    I have a child on the other end. With autism and significant limits in what she’s willing to eat, eggs and nuts are one of the only sources of protein she’ll consume. For a school to tell me she’s not allowed to ever bring one of the few foods she’ll eat because one child in the school has an allergy and might touch the table she ate at is wrong. There has to be a solution that doesn’t infringe on the rights of all the other children. I don’t agree with isolating the child with the allergy, either. I just don’t think my vastly underweight child should have to starve all day. It’s not so simple for many students to “bring something else.” many won’t eat anything else. They have rights too.

  • 5 AllergyMom 06/06/14 at 9:26 am

    Truancy because the SCHOOL could not provide a safe environment for a 5yo child with severe food allergies? Obviously the school had time to retaliate in this way, but could not even provide simple accomodations to ensure the safety and inclusion of the child? Hopefully this case is crystal clear and sets precedent so that school stop abusing their power against small children. When my child was in Kindergarten and 1st grade, it was similar….the “nut free table” was full of 5th graders. My 1st grader was not comfortable there. There were numerous parties with unsafe food, and the teacher and other moms would tell my child the food was safe for him! (it wasn’t!). It wasn’t until he had 2 reactions at school (!!!) that they agreed to accomodations. It should NOT come to that. The key to safety and inclusion is being proactive.

  • 6 Momhere 06/06/14 at 9:22 am

    Good luck! It is disgusting that the school did not provide a safe environment for a KINDERGARTNER who relies on the teachers/staff to keep safe. A child this age cannot judge foods on his own for safety, evaluate cross contamination, or read labels. And isolating and excluding him/her during the school day is unacceptable and discriminatory and violates the right to FAPE in the least restrictive manner. We are all behind you! Hope the lawyers in support of this family knock it out of the park!

  • 7 Jessica 06/05/14 at 8:29 pm

    As a parent of two children with life threatening food allergies who has been battling in my school district for a safe environment for my children and protection under section 504, every cell in my body is praying for the courts to find in favor of this family. If they prevail, we all will!

  • 8 Carol 06/05/14 at 7:27 pm

    Reasonable accomodations???????? Isn’t that for employees? How about necessary accomodations? How can a school not provide for a student with food allergies? Children should not be excluded due to their disability. Since when are schools allowed to rate the importance of a disability? Is it because food allergies are so inconvenient to non allergic students? All children have a right to FAPE. Disgusting that we have to fight to keep our kids safe and included. The CDC guidelines should be made mandatory for all public schools!