A settlement quietly reached between Lesley University in Massachusetts and the Department of Justice in December 2012 was big news, with monumental implications. The agreement has laid the foundation for establishing the rights of Americans with food allergy and celiac disease.
Here’s how the settlement came about. A number of students initiated a lawsuit against Lesley University because its mandatory meal plan did not accommodate their medically required food restrictions. Using the guidance of the Americans with Disabilities Act (ADA), the Justice Department sided with the students – a stance that could serve as a precedent for food allergy policies in other institutions.
Rather than face a trial, Lesley University agreed to settle the case with a slew of concessions. The university will:
- Provide gluten-free and allergen-free food options in its dining halls;
- Allow students with known allergies or celiac disease to pre-order safe meals;
- Display notices about food allergies and identify foods with allergens or gluten;
- Train food service and university staff about allergy-related issues;
- Provide a dedicated space for affected students to prepare allergen-free foods; and
- Endeavor to find vendors that offer food without allergens.
Eve Hill, senior counsel to the Assistant Attorney General for the Civil Rights Division of the Department of Justice, told me in an interview in early 2013 that “many aspects of the agreement will serve as a model for other schools.” She says that “each school should evaluate its food service plan to assess whether reasonable modifications for its students with disabilities are necessary to avoid discrimination.”
Many legal experts have questioned whether food allergies are a legitimate disability, but the ADA Amendments Act (ADAAA), which took effect in 2009, added clarity by broadening the definition of disability.
Hill, who oversees all ADA compliance cases, explains that “a disability, as defined by the ADA, is a mental or physical impairment which substantially limits a major life activity, such as eating. Major life activities also include major bodily functions, such as those of the immune and gastrointestinal systems. This would include individuals with celiac disease and others who have serious immune responses to certain foods, the symptoms of which may include difficulty swallowing and breathing, asthma or anaphylactic shock.”
Some experts on disability issues and the ADA say the amendment removed any lingering doubt that severe food allergies and celiac disease fall under the disability act, and that the Lesley University agreement provides further validation.
“This agreement is one of the most significant things I’ve seen since the passage of the ADAAA toward recognizing food allergies as a disability,” said attorney Tess O’Brien-Heinzen, an expert on 504 plans and issues under the ADA, ADAAA and the Rehabilitation Act. In her view: “It is very clear that severe food allergies constitute a disability under the law.”
“It doesn’t matter that a food allergy sufferer has an EpiPen or can take Benadryl,” O’Brien-Heinzen continues. “Under the amended law, the question of whether the impairment can be mitigated with medication is irrelevant to the determination of whether an impairment is a disability.”
Some parents may resist having their child labeled as “disabled”, but I would encourage you to get past the discomfort. This tiny word might be the key that opens the door to safe accommodations for our children in schools, colleges, and beyond.
The Lesley University agreement is not only good news; it is a wakeup call to institutions and parents: learn your child’s rights. Section 504 in public schools and the ADA in places of public accommodation are laws that afford access to our children. We don’t have to change the laws. The laws are already on our side. We need only take advantage of them.
O’Brien-Heinzen thinks the extent of the Lesley University accommodations reveal what the Justice Department thinks about food allergies – “that these are significant impairments affecting people’s lives in a major way, and that a university must accommodate these students.”
To many parents, the Lesley University concessions would be like a dream come true. Imagine if we could get these accommodations for our children! I would even argue that schools and universities are only the beginning. Case by case, parents can let schools, colleges, PTOs, museums, and camps know that they must find ways to safely include our children.
Nonetheless, there are still thousands of elementary schools, high schools and universities across the United States that have yet to recognize food allergies or celiac disease as disabling conditions and, because of that, students are denied the safety and inclusion to which they are entitled.
I hope the Lesley settlement will inspire all of us to insist on more for our kids. Safe food and justice for all!
Allergic Living columnist Gina Clowes is a certified master life coach who specializes in the needs of parents of children with food allergies. She is founder of the online support group AllergyMoms.com, serving thousands worldwide.