MAJOR BUMPS IN THE ROAD TO ENFORCING THE RIGHTS OF STUDENTS WITH FOOD ALLERGIES

Students with disabilities, like those with life-threatening food allergies, have three avenues of relief if they are being discriminated against or bullied in school or college. Right now, those three avenues of relief are under attack due to changes made by the current administration and cases that are working their way through the court system.

AVENUE 1: Department of Education Office of Civil Rights

          There is a push to eliminate the Department of Education, which would mean eliminating the Office of Civil Rights (“OCR”) which falls under the DOE. OCR accepts complaints from parents and others about students in K-12 being denied a free and public education (“FAPE”). OCR has offices throughout the country, and operates by a series of guidelines regarding how complaints filed with OCR should be handled.

          If DOE is eliminated, then OCR will be eliminated as well. There is some talk about moving OCR and its functions to the Department of Justice. But it is unclear how the Department of Justice would handle such complaints or if the same guidelines will be followed going forward. My sense is that DOJ would be overwhelmed with this influx of new cases, and we would see justice slowed down.

If OCR is gone, states may not be able to pick up the pieces. State boards of education enforce IDEA, NOT ADA and 504. There are some exceptions like the Massachusetts DOE who have taken it upon themselves to enforce ADA and Section 504. Since those with food allergies fall under both the ADA and Section 504, parents will not be able to turn to their state government to enforce these rights.

          But even though OCR is still in place, it has been cut off at the knees. Many of the OCR employees have been let go.[1] The employees who are left have had their hands tied. First, since the inauguration, OCR has only opened 20 new cases, which pales in comparison to the 110 cases opened after the previous inauguration. Employees have been “muzzled” and have been told not to open new cases. OCR’s focus has shifted away from parent complaints to “directed investigations.”  This means the OCR is currently investigating issues that the Trump administration has ordered.[2] Because there was a Truth Social post purportedly by President Trump claiming that peanut bans are “indoctrination” of our youth to accommodate a very small and loud group “who don’t like the beautiful nut,[3]” it is unlikely that protecting students with food allergies will be a focus of any “directed investigations” by OCR[4].

BOTTOM LINE: OCR may disappear. If it does not, it is currently understaffed and limiting the amount and types of complaints it is willing to investigate.

AVENUE 2:  US Department of Justice Civil Rights Division

          The Civil Rights Division of DOJ is tasked with setting the regulations under the ADA and enforcing violations of the ADA. DOJ protects students at college with food allergies. DOJ is responsible for setting the standards that colleges should follow for food allergic students with the landmark Leslie University Settlement Agreement.

          Currently, DOJ’s Civil Rights Division has been told to stop all work and not file any new complaints.[5] So if you are currently at college and have been discriminated against for your food allergy or if you have been denied accommodations in public places because of your food allergy, DOJ can no longer help you. For now, the online form is still available for filing a complaint but with the freeze, it is unlikely that it will be acted upon.

          Harmeet Dhillon[6] has been slated to lead the DOJ Civil Rights Division. It is unclear what DOJ’s policies will be once she is instated.

BOTTOM LINE: You can no longer file a complaint with DOJ due to a current freeze on all new complaints. It is unclear when the ban on new filings will be lifted.

AVENUE 3: Federal Courts

          Students with food allergies have been able to file complaints in federal courts if they are denied reasonable accommodations or have been retaliated against because of their disability. However, getting relief from the federal courts may get more difficult.

          In the case of A.J.T. v. Osseo Area Schools[7], the Eighth Circuit Court of Appeals ruled that when  alleged ADA and Section 504 violations are based on educational services for disabled children, a school district's simple failure to provide a reasonable accommodation is not enough to trigger liability; rather, a plaintiff must prove the school officials acted with either bad faith or gross misjudgment. In other words, merely being denied an accommodation may not be enough – a student may have to show that the denial was done in bad faith or based on gross negligence. This is very difficult to prove as it involves showing that the school had a bad intent when it made the denial. The A.J.T. case is now before the US Supreme Court.

Recently, the Supreme Court held that in employment discrimination cases, an employee does not have to show additional injury other than the discrimination or that the discrimination caused the employee to suffer a
“significant disadvantage” to get relief.[8] It is unclear whether the Supreme Court will apply the same reasoning in the realm of discrimination in the educational context.

There has been much ado about the case of Texas v. Becerra which is now pending in the US District Court in the Northern District of Texas. In that case, Texas and 16 other states challenged the rule that states that receive federal funding may have to consider gender dysphoria to be a disability[9]. The states argued that there receipt of federal funding should not depend on their recognition of gender dysphoria as it would violate the First Amendment and other rights. Instead of limiting their challenge to just the new rules, the plaintiffs have made the broad argument that Section 504 itself is unconstitutional. They are asking that Section 504 be struck down so that whether a state receives federal funding does not depend on the state protecting the rights of the disabled.

Because the current administration has issued an executive order directing that the civil rights laws should not include the rights of transgender people[10], the case is currently on pause. In other words, if the rule they are challenging in the case has already been overturned, then the case might become moot. We will know more when the parties must give the court a status report on February 25, 2025.

It is unclear how the court will decide this case. Section 504 has been upheld numerous times. I am hopeful that if this case gets to SCOTUS, SCOTUS will follow precedent and Section 504 will remain in effect. But we thought that about Roe v. Wade. It is also unclear how quickly this case would get to SCOTUS, although the Texas court originally ordered a quick briefing of the case so that it would move fast.

BOTTOM LINE: Parents can still sue in federal court under the ADA and Section 504. However, courts in the Eighth Circuit (States in the Eighth Circuit are Arkansas, Iowa, Minnesota, Missouri, Nebraska, South Dakota, North Dakota) have made it more difficult. SCOTUS will decide whether the Eighth Circuit is correct.

Texas v. Becerra is in limbo and its outcome is uncertain. It could be dismissed as moot, or the district court and/or the Supreme Court could uphold Section 504. So no need to panic yet but we may want to be proactive to stop it in its tracks. Visit dredf.org/protect-504 for advice. Also, for those in the states that are challenging 504, contact your State Attorney General by email, phone or their website and tell them to drop out of the lawsuit and protect 504.   

Unfortunately, my toolbox is currently limited, but I am hanging in there and will continue to protect the food allergy community. 

[1] https://www.cbsnews.com/news/federal-employee-layoffs-begin-at-department-of-education/

[2] “https://www.msn.com/en-us/news/us/we-ve-been-essentially-muzzled-department-of-education-halts-thousands-of-civil-rights-investigations-under-trump/ar-AA1z1ivV?ocid=BingNewsVerp

[3] Peanuts are legumes, not nuts.

[4] There has been controversy as to whether the Truth Social post was legitimate

[5] DOJ Effectively Pauses Its Civil Rights Division’s Litigation, Which May Impact IER’s Pursuit of New Claims | Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - JDSupra

[6] Trump nominates conservative culture warrior to lead DOJ's civil rights division

[7] A.J.T. v. Osseo Area Schools, Independent School District No. 279, No. 23-1399 (8th Cir. 2024)

[8] Supreme Court Delivers Big Win for Workplace Equality in Muldrow v. City of St. Louis Ruling | American Civil Liberties Union

[9] In a new lawsuit, 17 states sue to do away with 504 protections - The Educators Room

[10] Don’t get me started on this issue. This is an awful decision.