Vol. XIII No. 30 March, 2006

Sometimes You Feel Like a Nut: Food Allergies in Schools

by Melissa W. O’Shea

Over the past few years, schools have faced a growing problem of severe food allergies among students. With approximately 5 million children affected with food allergies, schools have had to improvise precautions and responses regarding students’ allergies at school.

There is little legal precedent on what schools are required to do for students with allergies. Land v. Baptist Medical Center, 164 F.3d 423 (8^th Cir. 1999) held that a child with peanut allergies was not under a disability for purposes of the Americans with Disabilities Act because it did not substantially limit the child’s major life activities. However, the case left open, and the legal experts seem to agree, that if the allergy was severe enough it would qualify for coverage under the ADA as well as the Rehabilitation Act, requiring schools to provide accommodation. Even more alarming, in Declouet v. Orleans Parish School Bd., 715 So.2d 69 (4^th Cir. La. 1998), the court held that a principal who failed to provide prompt medical attention for a student suffering an allergy attack breached his duty to the student and could be held liable in her death.

The federal government has begun to provide assistance to address the problem. On January 1, 2006, a new federal law took effect that requires clear labeling of the eight major food allergens. Another bill has been introduced in Congress which would call for the federal government to create a national standard that would guide schools in how to educate faculty and staff about food allergy issues.

In the absence of uniform legal authority regarding how to deal with student’s food allergies schools are taking the issue into their own hands, creating policies for addressing student food allergies. Some districts have gone so far as to ban all peanut products (the most common food allergen) from their schools. Others require parents to sign a waiver of liability in case their child suffers an allergic reaction while at school. Most schools, however, have settled somewhere in between these two extremes, adopting variations of the following steps:

1. Parents may be required to complete a form identifying their children’s allergies. In cases of severe allergies, school officials should meet with parents and students and agree upon the best course of action for addressing the allergy at school. Parents can also be asked to provide clear written instructions from the child’s physician on what steps should be taken in case of an attack, typical symptoms of an allergic reaction, and avoidance measures recommended by the physician.

2. Parents may be required to provide the school with the child’s medication – such as an Epi-Pen auto injector – for use in the event of an attack. If the child is old enough, he or she may be allowed to carry the Epi-Pen at all times. Otherwise, the Epi-Pen should be kept within easy access of the location in which the student is most likely to have a reaction, such as the cafeteria.

3. Schools can establish “peanut-free” tables within the cafeteria for students with allergies. The table should be clearly labeled and specially cleaned (with cloths not used on other tables) after each lunch period.

4. If students with allergies intend to buy their lunches at school, copies of the menus and ingredients of the foods being served should be provided to the students and parents in advance, so they may determine what the student can eat safely. Schools should always have alternatives available for students who suffer from food allergies, and should make sure the alternative is prepared in an area where food allergens are not located.

5. Schools can identify students with severe allergies to their teacher and cafeteria workers (if not all school workers), and of the possible symptoms of an attack. School personnel can also be trained in how to deal with an allergy attack, including how to administer the Epi-Pen.

6. Schools can institute rules prohibiting students from trading or sharing food in the cafeteria and classrooms. If classrooms have snack periods, allow students with allergies to provide their own snacks. Prohibit or impose controls regarding bringing food from outside the school to classroom celebrations of any kind.

Attempting to provide a comprehensive plan for students with food allergies is difficult – almost any position the school might take will have opponents. The foregoing suggested measures are relatively easy to implement and relatively unintrusive. If you are uncertain as to how or whether to respond to particular situations, consult with legal counsel.

Do Students Have Constitutional Rights to Cell Phones at School?

by Ramon Vigil, Jr. & Evelyn Peyton

A cell phone rings, or plays the most recent hip-hop song by Fifty Cent, during a class lecture. A teacher looks up from her desk and sees a student using his cell phone to send or receive a text message during a quiz. A coach walks into the locker room and sees a student using her cell phone camera to take digital pictures of her fellow classmates in various stages of dress or undress. These are but a few examples of what schools face regarding the influx of electronic signaling devices such as cell phones, pagers, personal data assistants (PDA’s), miniature cameras, laser pointers or similar devices which can be disruptive in the classroom.

What happens when such devices are confiscated by school officials? Many students and their parents have asserted violations of their constitutional rights, such as freedom of speech (First Amendment), unreasonable search and seizure (Fourth Amendment), and the taking of property without due process of law (Fifth and Fourteen Amendment). Do school officials really violate a student’s constitutional rights when they take a student’s cell phone or other electronic device?

I. Authority and Background for Policies Regulating Cell Phones

The Public Education Department (PED) sets forth regulations applicable to public schools and public school students with respect to student rights and responsibilities. Under these regulations, local school boards have discretion to develop rules of conduct governing all areas of student and school activity. 6.11.2.9 NMAC. In all New Mexico public schools, disruptive conduct is prohibited for students whenever they are subject to school control. 6.11.2.9(A)(4) NMAC. “Disruptive conduct” is defined as willful conduct that either:

(1) Materially and in fact disrupts or interferes with the operation of the public schools or the orderly conduct of any public school activity, including individual classes; or

(2) Leads an administrative authority reasonably to forecast that such disruption or interference is likely to occur unless preventive action is taken.

6.11.2.7(F) NMAC. Items that are used to disrupt or interfere with the educational process may be seized by persons authorized to act in matters involving school discipline or the maintenance of order. 6.11.2.7(A) and 6.11.2.10(B)(5) NMAC. Under these regulations, such seized items shall be released to appropriate authorities or a student’s parent or returned to the student when and if the administrative authority deems appropriate. 6.11.2.10(B)(5) NMAC. Furthermore, the PED regulations provide that students may be disciplined by administrative authorities for committing acts prohibited by the regulation governing student rights and responsibilities, when the student knew or should have known that the conduct was prohibited. 6.11.2.10(C)(3) NMAC.

Electronic signaling devices such as cell phones, pagers, personal data assistants (PDAs), miniature cameras, hand-held scanners, and laser pointers or similar devices are extremely disruptive in the classroom. Students at many schools have used such devices to cheat on exams and to send messages that harass, threaten, ridicule, and intimidate fellow students. Even if students merely send innocent text messages to one another during class time, this type of communication distracts them from teachers’ instructions and interferes with the educational process. Furthermore, the use of camera phones to invade others’ privacy rights has given rise to litigation against schools in several instances. Consequently, school boards may, and should, adopt policies which prohibit or regulate the use of electronic signaling devices on high school grounds and/or during class time each school day. If students violate the policy, the disruptive devices may be confiscated. These confiscations can be progressive, so repeat offenses are punished more seriously than the first offense.

II. First Amendment Claims – Freedom of Speech

Schools policies which regulate the use of cell phones do not regulate, or seek to regulate, any type of speech by students or parents. Instead, such a policy regulates a particulate type of conduct – the possession or use of electronic signaling devices in schools and in classrooms. Thus, such policies do not prohibit the ideological content of any speech.

Even assuming, for the sake of argument, that such a policy and its enforcement implicated free speech rights, the policy would be a content-neutral restriction on the time, place, and manner of such speech. Content-neutral restrictions on the time, place, and manner of speech are routinely upheld. Regulation of speech is content-neutral if it is “justified without reference to the content of the regulated speech.” Hill v. Colorado, 530 U.S. 703, 720, 120 S.Ct. 2480 (2000). The United States Supreme Court has upheld content-neutral ordinances prohibiting noises or diversions that tend to disrupt the peace or good order of a school, finding that there is a compelling governmental interest in having an undisturbed school session conducive to the students’ learning. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 119, 92 S.Ct. 2294 (1972). Here, as in Grayned, the school policy and its enforcement are aimed at serving the compelling governmental interest in having an undisturbed school session conducive to student learning. Accordingly, the policy and its enforcement do not violate the First Amendment.

III. Fourth Amendment Claims – Search & Seizure

By its terms, the Fourth Amendment protects people against unreasonable searches and seizures. Assuming a school office must search a student for a disruptive cell phone, the United States Supreme Court has held that school officials acting within a school setting have the authority to conduct warrantless searches in order to maintain an environment in which learning can take place. New Jersey v. TLO, 469 U.S. 325, 340, 105 S.Ct. 733 (1985). In such instances, the school official need only have an individualized, reasonable suspicion that a crime or other breach of disciplinary rules is occurring or has occurred. Id., see also 6.11.2.10(B)(3). As to the seizure of the cell phone, no warrant is required in order for a school official to confiscate a disruptive item that is in plain view and surrendered with student consent. Even if the phone had been concealed, however, school officials have authority to search for and seize prohibited items on the basis of reasonable suspicion without a warrant. The ringing of a student’s phone would provide the necessary predicate for a search without a warrant even if the phone is not surrendered voluntarily. Given New Mexico’s regulations prohibiting disruptive conduct in schools and permitting authorized persons to seize items used to disrupt or interfere with the educational process, a school official’s confiscation of a cell phone that rings during class cannot be considered an unreasonable seizure.

IV. Fifth and Fourteenth Amendment Claims – Deprivation of Property without Due Process

In analyzing due process issues, two questions must be addressed. The first deals with substantive due process; that is, has the complaining party been deprived of constitutionally protected life, liberty, or property interest? The second deals with procedural due process; that is, if a constitutionally protected interest is implicated, what process is due?

As to the substantive due process question, the Due Process Clauses of these Amendments apply only to constitutionally protected interests of life, liberty, and property. There is no constitutionally protected property interest in using disruptive items during class time in violation of District policy and state regulations.

With respect to the procedural due process question, the process that is due is clearly spelled out in the state regulations and should likewise be clearly outlined in any school policy regulating the use of cell phones and other electronic signaling devices. As discussed above, the applicable state regulation provides that school authorities may seize items that are used to disrupt or interfere with the educational process, and that these items will be released to appropriate authorities or a student’s parent or returned to the student when and if the administrative authority deems appropriate. 6.11.2.10(B)(5) NMAC, emphasis added.

Any school policy adopted which could result in cell phones and other signaling devices being seized by school officials should provide for due process in the form of (1) notice and (2) an informal opportunity for the student to be heard. Thus, be sure that such a policy is well publicized and distributed to students and parents whether in student handbooks, on the website, etc. Parents and student should have adequate notice about how cell phones and other signaling devices will be regulated and what steps will be taken by the school administration when students violate the policy. Additionally, a student charged with violation of the policy and the student’s cell phone will be or has been seized, must be given an opportunity to give his or her side of the story, similar to a short-term suspension situation, to a school official regarding the alleged violation.

The process due, of course, depends upon the degree of seizure; seizures until the end of the day or the end of the week require significantly less formality than seizures of 30 days. Thus, a simple seizure of a student cell phone until the end of the school day or until the next day when a parent is required to pick up the phone, may simply require the school official tell the student that his or cell phone will be confiscated and allow the student to give his or her version of what happened. On the other hand, if the phone is to be kept for a 30 day period, the principal or assistant principal should hold a meeting with the student and his or her parents in the office in a more formal setting. Again, the administrator can state the violation and the evidence against the student and give the student an opportunity to state his or her side of the story and present any evidence he or she might have in his or her support.

Understanding that schools have a right to control disruptive devices, and developing policies which give students notice and an informal opportunity to be heard when their cell phones are seized, will help place school officials in a defensible position when the inevitable cell phone lawsuit is filed.

The Education Law Quarterly provides general information of interest to our clients and should not be used or taken as legal advice for specific situations, which depend on evaluation of precise factual circumstances.