Yeah, working on that ever since I found the relevant DOJ and HHS/OCR (Dept of Ed) federal regs. Unfortunately I need to hit a law library with valid GPO copies which is nearly impossible given time constraints. I need to verify findings in preparation to cite sources before posting anything that would turn over any apple carts.
Gail, a couple of questions if you'll bear with me.
1. This is a state government site and cites state government codes (RSMo). It (the abstract prefacing the document you linked to) cites its DHSS Department of Health and Senior Services, (Misssouri) Department of Elementary and Secondary Education. Please note that the state DHSS is
not the federal HHS, Housing and Human Services.
Consider two things here.
A. The USDA has its own internal Office of Civil Rights that has the following mission statement front and center.
Civil Rights at USDA:
A Backgrounder on Efforts by the Obama Administration
For decades, the United States Department of Agriculture had an unfortunate and checkered history with regards to civil rights. Reports going as far back as the 1960’s have found discrimination at USDA in both program delivery and the treatment of employees, and we are the subject of a number of lawsuits brought by minority farmers and ranchers alleging discrimination. This reputation is so pervasive that USDA has been called “the last plantation.” The bottom of this document addresses this history in more detail in a section entitled “A Brief History of Discrimination at USDA.”
President Obama and Secretary Vilsack have made civil rights a top priority for the Department, and USDA is working to turn the page to move into a new era for civil rights. We are correcting past errors, learning from mistakes, and taking definitive action to ensure that there is no disparity in program benefits based on race, color, sex, age, sexual orientation or disability. It is Secretary Vilsack’s goal that the USDA achieves Abraham Lincoln’s vision of “the people’s department” where each employee and customer is treated fairly and equitably.
B. The recent opinion of Maryland Court of Appeals found that the state including the USDA at state level did not have any responsibility to an individual student's food allergy.
Given all this I have to put it to the regional USDA
Do you have jurisdiction to do this?There's a couple of outcropping issues I see conflating their supposition of authority and compliance here.
Evelyn McGregor has a title of Civil Rights, I believe this is USDA internal Civil Rights,
not the Housing and Human Services Office of Civil Rights that oversees Section 504 under the federal Department of Education.
There is a passing statement that this policy meets compliance with Section 504 by not excluding children. Really? Show me, Ms. McGregor. Show me where federal HHS, Dept of Ed, Dept of Justice and OCR signed off on this for every child with a 504.
Then there is the question I put to USDA regarding nutrition itself: I would like the authors of the memo to put in excruciatingly explicit detail
how many treats should go in the treatbox,
what the portion size should be,
how often these treats should be eaten, the
complete nutitional value of all these treats including
total calorie count, sugar in grams, fat, refined carbs and show how that fits in with the nutritional goals of the USDA's programs.
If they want to define a treat box why not totally define it and if they have a LIMIT on how much sugar, carbs, calories and fat they are allowed to define for students as treats within a given timeframe I'd like to hear that, too.
Notice also in their
pursuant to (regulations) they cite only Section 504 and USDA, nowhere in there is there anything from the Department of Justice which does have jurisdiction over exclusion from activities with special note that nothing under ADA limits or overwrites where 504 or other regulations have greater or equal protection of disability rights.
So, 28 CFR 36.202 (DOJ Title III ADA). Note that this is not even government institutions but public accommodations. I haven't gone through Part 35 yet for activities but Title II has this specific language
Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, to all activities of State and local governments regardless of whether these entities receive Federal financial assistance. There can be no exclusion of ADA if it offers more and greater protections than Section 504 alone and the state government must be compliant with ADA. The only named exemptions are Department of Transportation.
PART 36: NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES
Subpart B: General Requirements
36.202 - Activities.
(a) Denial of participation. A public accommodation shall not subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.
(b) Participation in unequal benefit. A public accommodation shall not afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.
(c) Separate benefit. A public accommodation shall not provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.
Again, does Evelyn McGregor have the authority to suggest parents pay for a treat box? Must a parent pay for a separate benefit offered to unaffected individuals in order to be included at an activity? How is that ADA compliant? If ADA and 504 offer greater and/or more protections how does USDA feel it can suggest limiting participation or put that burden on the disabled student's family? If compliance means a separate treat must be provided at no cost to the affected student of equal benefit and value whose budget does USDA suggest this come from? Is USDA suggesting a LIMITLESS calorie, sugar count and LIMITLESS budget for this treat box? If not, what treat calorie count is the USDA limit for the health of students? What nutritional value does USDA suggest for these treats that are equal in benefit and value?
There's a few ways to dig in to this it's going to be about how you want to challenge it. Me, I'd first stop at Department of Justice to see if a child with a 504 must pay to be included in an activity he would otherwise be excluded from based on his disability alone. Then I'd put that same question to the OCR. After that I'd go to someone not from that USDA office and ask if an agent of USDA acting in their behalf suggests a child eat junk food as a class activity in order to not be excluded from the activity, how much is the upper limit the USDA is suggesting? Knowing it must be of equal benefit and value, what do they suggest filling a treat box with? What portion size? Calorie count and nutritional value per week? Month? Year? Or, is this something completely outside of what the USDA is allowed to do. If it is, they need to say how much.
Good case in hand hopefully with clear direction, strong citation of relevant federal regulations and laws with enforceable jurisdiction I'd force a challenge on the policy stated in the memo.
Remember
DOJ is 28 CFR with Parts 35 and 36 as Title II and Title III ADA respectively
Dept of Ed is 34 CFR with Part 104 Section 504... you know
USDA is 7 CFR
Disability law is rather well spelled out to extend rather than limit when policies and departments overlap. I'll definitely keep the door open on this one with you.
Topic: USDA Mountain Plains Regional Office Memo (Read 5445 times)
