What Is Your School’s Obligation to Protect Children From Eating Foods They Are Allergic To?

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[author: Cynthia Augello]

The National School Lunch Act, 42 U.S.C. §§ 1751-1769 (“NSLA”), created a federal program aimed at providing free or low-cost nutritious meals to the nation’s school children in an effort to combat hunger and malnutrition in the classroom. Under the guidelines of this program, children who do not bring a packed lunch or do not have sufficient funds to buy lunch from the school cafeteria are entitled to receive either a bologna or peanut butter sandwich. However, today researches believe that the frequency of fatal and near fatal peanut allergies has significantly increased since the time this legislation was enacted in 1946, and that these numbers will continue to increase in the future. As a result of this rise in students with peanut allergies, one question being asked today is “do school officials have an obligation under the NSLA to provide additional care to students who have serious peanut allergies and to make sure that they are not given peanut butter sandwiches?”

A recent case out of Maryland provides some guidance on this issue. In Pace v State, Case No. 132 (MD Ct. App., Feb. 22, 2012), Liana Pace went to school without a packed lunch or sufficient funds to buy lunch from the school cafeteria. In accordance with the school’s policy under the NSLA, a school worker gave the elementary school student a peanut butter sandwich to eat for lunch. Liana resisted eating the sandwich and informed the school worker she was not allowed to have peanut butter. However, the cafeteria worker misunderstood the student’s opposition for misconduct and ordered her to eat the sandwich anyway. Within seconds Liana went into anaphylactic shock, her airways and eye lids began to swell, and the school nurse administered a dose of epinephrine before rushing her to the hospital.

After this traumatic experience, Liana’s mother brought suit against the State, the Maryland State Department of Education, the State Superintendent of Schools, as well as county-level education agencies, officials, and three unnamed cafeteria workers. She alleged that there is a “statutory duty imposed on schools to ensure that children with food allergies are not served lunches that contain allergens.” In support of her argument, she noted that while the larger policy goal of the NSLA is to provide for the general welfare of America’s school age children, NSLA was also intended “to protect children with special dietary needs and that the harm Liana suffered was of the type the statute was designed to prevent.” Ms. Pace argued that the school had a duty to make sure that her daughter, who was deathly allergic to peanuts, was not given the peanut butter sandwich option, a duty which it breached on the day in question.

The Supreme Court of Maryland disagreed, and held that while the NSLA establishes a subsidized lunch program for the benefit of all children attending schools, it does not impose a specific statutory duty of care toward children with food allergies. The Court found that there was a “lack of congressional intent for the State to be responsible for the individual dietary needs of the students the NSLA services.” As a result of this lack of Congressional intent present in the statutory language of the NSLA, today Maryland schools officials are not required to ensure that school cafeteria workers do not serve potentially lethal foods to students with food allergies.

Although the mother’s claims were dismissed, school districts should think that they are immune from liability under the NSLA, as different state courts may very well rule in the other direction on this issue. For instance, some courts may find that if a school is put on notice about the student’s allergies before a potentially fatal incident occurs, that the school can be held liable under NSLA. School districts need to have guidelines and procedures in place to minimize risks and provide a safe educational environment for students with peanut allergies. If your institution has questions or concerns about this topic and you would like further information, please email Cynthia Augello at caugello@cullenanddykman.com or call her at (516) 357 – 3753. **A special thanks to Hayley Dryer, a third-year law student at Benjamin N. Cardozo School of Law, for helping with this post.