FARE has joined the fight in what could be a significant and precedent-setting food allergy civil rights case.
The case involves a Pennsylvania kindergarten student referred to only as T.F., whose parents felt the school wasn’t taking adequate measures to accommodate T.F’s tree nut allergy, and further subjected him to ridicule by seating him in an isolated spot in the cafeteria. After an initial hearing and lawsuit both ruled in favor of the school district, an appeal was filed. FARE has submitted a document to the court in support of the appeal.
“FARE, joined by the Council of Parent Attorneys and Advocates, filed an amicus brief, or friend of court brief, to help educate the court about food allergies as it considers the family’s appeal,” John Lehr, CEO of FARE, told Allergic Living. “We were able to provide broad information with respect to severe food allergies that we hope the court will consider carefully as it makes a decision about the appeal.”
The lawsuit and subsequent appeal arose after disagreements on accommodations, including the implementation of a 504 plan  and concerns surrounding isolation in the cafeteria.
T.F.’s parents and the school did meet to create a 504 plan before school started, but even after several revisions they were unable to come to an agreement – especially in relation to including measures for identifying and treating anaphylaxis.
The plan contained some risk-reduction measures, but no specifics on emergency measures such as: who would be trained on recognizing anaphylaxis, which symptoms would prompt epinephrine administration, who would be responsible for injecting, and where the epinephrine was stored.
T.F.’s parents were shocked to discover that the “nut-free table” they had been told about was actually a single desk separated from the normal cafeteria tables by empty chairs. This type of social isolation was not acceptable to them, and also reportedly resulted in T.F. being harassed by other students.
T.F. also experienced reactions at school multiple times, prompting his parents to pull him out, enroll him in a private school, and begin the legal process.
After an initial Due Process Hearing ruled in favor of the school district, a lawsuit was filed. In the suit, known as T.F. vs Fox Chapel Area School District, Judge Arthur J. Schwab also ruled in favor of the school district, upholding the original decision.
“While this Court is not unsympathetic to the fears and emotionality of plaintiffs, and recognizes the serious nature of T.F.’s allergic reaction, the Court finds that the actions of Fox Chapel are nowhere close to establishing the level of required deliberate indifference in order to successfully sustain a claim under Section 504,” wrote Judge Schwab in his decision.
“On the contrary, the factual allegations support the conclusion that Fox Chapel was working diligently, although perhaps imperfectly, in attempting to accommodate T.F.’s disability.”
Now, the parents have filed an appeal of this decision in the Third U.S. Circuit Court of Appeals, one level below the Supreme Court. The appeal argues that “The District Court erred in granting summary judgment to Fox Chapel when the undisputed evidence proved that Fox Chapel discriminated against T.F. and his parents and denied them FAPE [free and appropriate public education].”
It notes that the school never was able to create a satisfactory 504 plan, creating an unsafe environment for T.F., and that it responded to the parents’ requests with deliberate indifference.
“The food allergy community is following this case closely, as it has the potential to set precedent for accommodations for students with severe food allergies,” notes Lehr, who hopes the amicus brief will help families in similar situations. “Ultimately, we hope the court will rule in such a way that will emphasize that key steps must be taken to ensure the safety of students with food allergies.”