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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 Comments on "3rd Circuit Will Hear Food Allergy Discrimination Case"


Janet
07/16/2014

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.

Susan
06/06/2014

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-

PortlandAllergyMom
06/06/2014

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