Student Sues College, Claiming Discrimination Over Dairy Allergy

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in Food Allergy, Milk & Egg, News
Published: January 31, 2020
Photo: Getty

A high-achieving student is taking legal action against the college of her dreams, charging that she has been discriminated against because of her severe allergy to dairy.

The 20-year-old from Pennsylvania, who’s called Jane in court documents for privacy, has launched a lawsuit against the University of Kentucky.

The college gave assurances that her need to completely avoid dairy in her diet could be met. However, Jane alleges that’s not so, and that the University of Kentucky (UK) has failed to provide adequate accommodations to allow her to attend and eat safely. 

Jane is a National Merit Scholar, and in November 2018, UK offered her a full scholarship. It included full payment of tuition and fees for four years and a stipend for room and board.

“I was very excited about starting college, a new chapter in my life, with a prestigious scholarship in hand at a school that ticked all my boxes,” Jane told Allergic Living. She turned down similar scholarships from other schools and accepted UK’s offer. 

In her lawsuit, the student contends she has faced discrimination based on disability under the Americans With Disabilities Act (ADA). She further claims the college has violated Section 504 of the Rehabilitation Act, which requires publicly funded educational institutions to allow students with disability to participate in the same fashion as other students.  

The university counters that the accommodations it proposed to Jane do comply with the law. The discussions around Jane, her allergies, the availability of safe food, and her scholarship would cover turned into a protracted, stressful dispute. And now, a lawsuit.

Not So “Worry-Free”  

Jane and her family first toured the campus in March 2018, during which staff said the school did not have formal food allergy policies. However, on the tour, the lawsuit says Jane and her family were told about food-service pickup windows called “Worry-Free Zones.” They were told the designated windows served meals that were free of top allergens, which would include dairy. 

Through her own research, Jane later learned that the Zones accommodated those with peanut, tree nut and seafood allergies and gluten intolerance. The lawsuit says the Zones were also only available at two dining halls – the campus covers 800 acres.

In addition, Jane and her mother contend that only one meal option is offered daily, the ingredients are not listed, and cheese sauce is often used. In discussions, Jane’s mother says other UK representatives would repeatedly suggest the Worry-Free Zones served dairy-free food.

By April 2018, the university’s dietitian got involved. She wrote to Jane that: “Meat prepared without sauces or seasoning as well as plain cooked vegetables can be prepared in our allergen sensitive kitchen called the Worry Free Zone.”  

There were several exchanges with the dietitian, who said non-dairy breakfast foods wouldn’t be available and that “you can purchase dairy-free snacks in our campus Wildcat Pantry.” But when the family contacted the convenience store, it had no dairy-free foods available.

After much correspondence, Jane and her family found the accommodations proposed unacceptable. They filed a complaint in May 2018 with the Department of Education’s Office for Civil Rights.

“Jane and her family were unable to get past the fact that the university’s response to each of their inquiries was to be a moving target with regard to which meals they were able to or not able to provide. This raised red flags,” said Laurel Francoeur, the disability rights attorney representing Jane in the lawsuit.  

In previous college special diet accommodations decisions, “disability” has been defined as impairment that limits a major life activity, including eating and breathing. Food allergies can affect both activities. 

New Offer on Table  

In meetings with the Department of Education, Jane’s mother and the university, the lawsuit says UK’s attorney admitted the the Worry-Free Zones were not dairy-free. The suit also quotes him as saying Jane should just “prepare her food like other students in a communal kitchen.” 

The suit stresses that the attorney kept asking Jane’s mother what she was going to do to provide food for her daughter. “In doing so, he illegally shifted the burden of making accommodations onto the plaintiff and her family rather than the university,” the legal action says. 

In July 2018, KU sent Jane a letter, which outlined the updated accommodations that would be offered. 

Jane could opt out of the meal plan for breakfast and lunch, a full-size refrigerator would be provided along with a microwave, and her mother would provide several recipes for dinner that would be prepared for her to pick up at a main campus restaurant. UK would not cover transportation expenses if Jane wished to pick up her own groceries, and grocery deliveries would be at her expense. 

Jane and her family found the accommodations unacceptable. “We don’t typically find all the foods she needs at one grocery store, so that would be multiple food trips and a lot of time,” said her mother. As for the microwave, “there’s no way she could cook from scratch in a microwave, which is what we have to do for her given her allergy.”  

Dinner pickup was also an issue: “She would be a science student with late labs, and I was really concerned about the limitations of only one location,” said Jane’s mother. “It’s a very large campus and it often takes 30 minutes of walking from one side to another.”  

University officials see it differently. Jonathan Blanton, a spokesperson for UK, told Allergic Living the institution offered accommodations that went beyond its legal obligations.

“The U.S. Department of Education implicitly agreed,” he said. “Our communications with the Department indicate that the Department agreed with us that the accommodation we were offering complied with the law.” Francoeur, however, says the department did not make a decision, and the dispute turned into a lawsuit.

Sad and Stressed  

As they wait to see if the suit goes to trial, Francoeur says it is unclear if the scholarship offer is still available to Jane. The student loved the courses being offered at UK, and would still like to attend. 

“I am angry, sad and stressed out that the university thinks so little of students like me that it repeatedly lied and threatened me with the loss of my scholarship,” Jane told Allergic Living. Then, “at one time or another they shifted all the burden of reasonable accommodations I need onto me and my family,” she said. “I would not wish it on anyone.” 

By June 2018, with the start of the school year quickly approaching and no resolution, Jane enrolled at a local college. “We knew our daughter desperately wanted to go to this school [UK], but we knew we were a long ways off from reasonable accommodations,” Jane’s mother said. 

A few UK students with food allergies are also expressing concern about accommodations on this campus. They started a website and their mission includes to start “a conversation about these issues and hold campus dining accountable for mislabeled foods which could prove dangerous to students with food allergies.”

Francoeur urges the university to “rethink their food allergy policy.” She says she and Jane’s family “hope that the school will do the right thing and agree to make small changes that would help everybody, not just my client.” 

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