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In 2013, the Department of Justice announced a landmark settlement with Lesley University (“Lesley” or the “University”) in Cambridge, MA.  Stemming from complaints about the University’s treatment of students with food allergies and celiac disease, this settlement makes clear that federal authorities will treat these complaints as possible violations of the Americans with Disabilities Act (ADA). Lesley agreed to compensate individual students and will implement broad new policies regarding student dining services.

BACKGROUND LAW

Universities are regulated under Title III of the Americans with Disabilities Act, specifically as public accommodations.  42 U.S.C. § 12181(7)(J) and 28 C.F.R. § 36.104. Even private universities qualify, as the ADA encompasses every nursery, elementary, secondary, undergraduate or postgraduate private school.  Id.  Universities have long endeavored to fully comply with the law and accommodate students with disabilities, but up to this point it has not been clear what schools’ legal obligations are to students with food allergies or other food-related conditions.

A disability, under the ADA, includes “a physical or mental impairment that substantially limits one or more major life activities…”  42 U.S.C. § 12102 (1)(A).  All public accommodations, including universities, are prohibited from discriminating based on a disability, which means specifically that they cannot deny anyone “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(a).

Universities, perhaps more so than any other public accommodation, provide a broad array of goods, services, facilities,privileges, advantages and accommodations, and, therefore, need to pay particular attention to the scope and form of the ADA.

Food allergies may be encompassed by the ADA’s definition of disability.  See 42 U.S.C. § 12102.  Eating is a major life activity which is substantially limited by some severe allergies, and celiac disease can damage the immune, digestive and neurological systems. While previous cases have made clear that schools may not prohibit students from attending based on their allergies, the degree of accommodation necessary had not been established, particularly with respect to universities that often assume responsibility for their students’ nutrition.  The settlement between the government and Lesley offers needed guidance to universities handling this issue.

The terms of the settlement do not constitute the only path for a university to follow in order to comply with the ADA in this regard. However, the settlement is the clearest guidance now available with respect to a university’s obligation to its students with allergies.

SETTLEMENT  TERMS

The settlement is a broad roadmap for Lesley to reform its policies regarding students with allergies. It focuses on three main areas: food services to students with allergies, communications between the University administration and students with allergies or other disabilities, and  training for University personnel to protect students with allergies.

FOOD SERVICE

The key aspect of the settlement is, of course, new policies for providing students with meals that will be reliably free of allergens. Food allergies are particular to each student, and, under the settlement, Lesley has agreed to work cooperatively with students requesting modifications to create an individualized plan. While some students will simply be permitted to opt out from the University’s mandatory meal plans, the school is also committing to provide meals at all of its dining halls without specific allergens. But, as the risk of cross- contamination remains, Lesley will further accommodate students with allergies by giving them the option to pre-order their meals. These meals would be prepared in designated areas in the University’s kitchens to be free of any cross-contamination, and then delivered to Lesley’s dining halls as necessary. Students are required to provide 24 hours’ notice to ensure that the meals can be prepared and delivered as needed.

Additionally, Lesley will provide a dedicated area near its primary dining hall for students to store and prepare their food safely at all hours, as common eating and food storage areas are prone to contamination. The University will also maintain a supply of allergen-free food in this area, to be replenished as necessary and in response to student requests.

COMMUNICATIONS

While some of the food service modifications undertaken by Lesley are accessible to all students, others will only be provided to students who have been specifically identified as allergic. Therefore, Lesley has agreed with the Justice Department to update the avenues of communication between students and University staff, such that students may easily be able to access needed services.

The University has committed to assist students with food allergies who request accommodation.  Upon receiving such a request, the University will arrange an individual meeting to develop a plan to ensure the student’s safety.  Like many accommodations made under the ADA, this will be an interactive process, as both sides work together for the common goal of meeting the student’s needs while keeping him or her integrated into the University at large. The University will then provide each student with a written modification plan, which may be appealed up the chain of command to the school’s dean of student life.

TRAINING

Food allergies are complex, and there are rarely intuitive ways to manage a large number of varying student needs within a system that must feed thousands of people several times per day.  As such, the settlement with Lesley expands the training given to the University’s personnel and its contractors.

This training will be provided, in part, by ServSafe, a program developed by the National Restaurant Association Educational Foundation.  Further, the University will itself ensure training of its staff regarding allergens, cross-contamination and other allergy awareness issues. This training must be provided on a regular basis.

The settlement touches on several other areas as well, including mandatory distribution of the University’s new policies to all students, and regular compliance checks with the Justice Department.  A full copy of the settlement, which includes a copy of Lesley’s new policies, is available at http://www.ada.gov/lesley_university_sa.htm.