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January 8, 2013

Food Allergy Discrimination Fight - Justice Department Says Set my Gluten Free

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Back in the 1960s, there was real discrimination in American colleges. At places like the University of Mississippi, students were threatened, assaulted, and arrested for demanding equal rights. The U.S. Justice Department (with just a handful of lawyers) fought hard, serious battles to stop these civil rights abuses.

Today, with a staff of 800 and a 2012 appropriation of $145 million, the Justice Department’s Civil Rights Division is suing universities over the food they do, and do not, serve in student cafeterias. I kid you not.

Spearheading the drive against dietary “discrimination” is Thomas Perez, the Obama-appointed head of the Civil Rights Division. He recently settled a claim against Lesley University in Massachusetts, which had allegedly violated the Americans with Disabilities Act by not adequately accommodating students with food allergies. Mind you, the school was not accused of offering students only foods that might cause allergic reactions. The dispute was whether the university had enough gluten and allergy free “hot and cold” options in each of its cafeterias where the students eat on any given day.

In the view of the Obama Civil Rights Division, Lesley University was guilty of discrimination because it was preventing students from equally enjoying “the privileges, advantages, and accommodations of its food service and meal plan system.” So according to the Obama administration, what a university chooses to put on (or especially leave off) its menus could violate federal law and subject it to prosecution by the chief law enforcement agency of the United States government.

Anxious to avoid a lengthy, expensive lawsuit, Lesley University agreed to settle this case on December 20. Perez must be pleased that the university caved to his legal intimidation, because the claim that the type of food you provide in a cafeteria violates the ADA would be a loser in court.

Title III of the ADA prohibits discrimination in “any place of public accommodation” on the basis of disability. A disability is defined as a “physical or mental impairment that substantially limits one or more major life activities of such individual.” It would cover, for example, a university barring paralyzed individuals in wheelchairs from attending classes or not reasonably accommodating their needs. But the food claim that Perez asserted against Lesley University stretches the law far outside its boundaries. In fact, the Eighth Circuit Court of Appeals specifically held in Land v. Baptist Medical Center—a case involving a day care center student—that a food allergy is not a disability under the ADA since it does not substantially limit a student’s ability to engage in activity.

The settlement agreement between DoJ and Lesley University actually defines what type of food its dining halls will serve. It requires the university to prepare each day meals that do not contain “egg, wheat, shellfish, fish, soy, peanut, treenut products, and other potential allergens”—in whatever quantities students request. The university also will have to allow students to “pre-order their meals.” I’ve looked all through the federal code where the ADA is located and can’t find a single “food pre-order” requirement.

DoJ is also apparently now in the business of regulating food preparation facilities. The agreement requires Lesley to “prepare all meals without specific allergens…in a designated area within the University’s cooking and food preparation areas.” In fact, these legally-required meals have to be prepared at the “White Hall Dining Hall” and transported to other dining halls if students “request that the University deliver their meals.” So federal law apparently requires food delivery services, too.

Oh, and DOJ is requiring that Lesley provide allergy-“disabled” students with a “restricted room” in the dining hall to which only they have access. The room must have cabinet space, a toaster, a microwave, a food warmer, a refrigerator, a freezer, and a sink and counter area. Apparently, the ADA has federal kitchen hardware requirements. Who knew?

Lesley agreed to pay $50,000 to settle DoJ’s spurious claim, which is probably a cheap buy-off of DoJ given the cost of litigation. But the students who attend the university will be paying for this extortion through their tuition, so they ought to be upset at this waste of their (and their parents’) funds.

This is not to minimize the problems that some students may have with food allergies. Universities should work with families to accommodate such problems when they can. But the idea that this is a federal issue, or that the Justice Department should burn its resources investigating food preparation in university dining halls is a complete absurdity.

Perez’ dish-hunt at Lesley exemplifies mindless mission creep and the bloated expansion of the federal nanny state. It’s quite a comedown for a department that, 45 years ago, fought serious battles to stop real discrimination, bigotry and violence.

Hans von Spakovsky is a senior fellow in The Heritage Foundation’s Center for Legal and Judicial Studies.

First appeared in FoxNews.com.

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