In the News
Free School Lunch Isn’t Cool, So Some
Students Go Hungry
New York Times,
March 1, 2008, page A1 continuing on A14
by Carol Pogash
http://www.nytimes.com/2008/03/01/education/01lunch.html?pagewanted=1&_r=1&hp
Reporter Carol
Pogash does an excellent job of telling the private story of the humiliation
low income students feel when their classmates know they are poor enough to be
eligible for a free school lunch. She
also reveals the public story of how many school districts across the country
have inadvertently set up a system in their cafeterias that makes it obvious
they are poor. To receive the free meals
to which they are entitled, low income students in many school districts must
go through a separate line and sometimes even dine in different rooms than
their classmates. In addition,
frequently they are offered different, less appealing, food.
To help remedy this
situation in San Francisco, in 2005 Colleen Kavanagh, CBN’s founder, wrote a
grant for SFUSD to implement a Point of Sale system that would have replaced
cash payments at the school sites. A POS
system is an important factor in eliminating the problem of overt
identification in any district and are used already in many school
districts. POS replaces cash payment
systems in the cafeteria by giving students swipe cards or PIN numbers. In 2007, after receiving word that that grant
was denied, CBN and other partners encouraged the SFUSD Board of Education and the Proposition H
Commission to fund POS from Proposition H funds. Though these funds were supported by the
superintendent, commission, and the school board, the superintendent and school
board froze their usage in light of the state fiscal crisis and impending
budget cuts.
CBN, however, saw
this issue not just as a moral imperative but also as a potential legal
liability for SFUSD. CBN’s founder
started her career as a legislative assistant for Congressman
George Miller,
now chair of the committee with jurisdiction over school meals. She was very familiar with the federal
statute and regulations forbidding any “overt identification” of the income
status of students through their participation in the school lunch program. In fall of 2007, CBN worked with several
partners to visit numerous middle and high schools in SFUSD, documenting the
overt identification problems observed at those schools. Based on those observations, CBN requested
that Public Advocates, a public interest law firm in San Francisco, provide a legal opinion on the
situation. Public Advocates’s research cited federal and
state statutes and regulations as well as case law that explicitly forbid this
type of overt identification.
- 42 U.S.C. § 1758(b)(10)
(“No physical segregation of or other discrimination against any
child eligible for a free lunch or a reduced price lunch . . . . shall be
made by the school nor shall there [be] any overt identification of
any child by special tokens or tickets, announced or published lists of
names, or by other means.”) (emphasis added);
- 42 U.S.C. § 1758(b)(11)
and 42 U.S.C. § 1759a(e) (similarly
prohibiting physical segregation and overt identification);
- 7 C.F.R. § 245.8
(establishing as a nondiscrimination requirement that School Food
Authorities and LEAs participating in the NSLP “take all actions that are
necessary” to ensure that there is “no overt identification of any of the
[participating] children by the use of special tokens or tickets or by any
other means” and that participating “children shall not be required to use
a separate dining area, go through a separate serving line, enter the
dining area through a separate entrance or consume their meals or milk at
a different time”);
- CAL. EDUC. CODE §
49557(b)(2) and (4) (emphasis added); see also id. at (a)(2). (California
Education Code section 49557 provides that local school boards and county
superintendents of schools “shall ensure” that children eligible for free
and reduced price lunch not be subject to “overt identification. . . by
the use of special tokens or tickets or by any other means” and
“not be required to use a separate dining area, go through a separate
serving line, enter the dining area through a separate entrance, or consume
their meals or milk at a different time.”);
- Justice v. Board of
Education, 351 F.Supp 1252 (S.D.N.Y. 1972) (equating the use of meal cards
to overt identification even if a small number of paying students also use
meal cards); and
- 42 U.S.C. § 1766(g)(2))
and state law (CAL. EDUC. CODE § 49557(c)) (requiring that program
participants receive the same meal choices as paying students).
CBN has met with
the superintendent’s office in SFUSD and is encouraged by his focus on the
issue and commitment to its resolution. As
he told the NYT, “we have a problem here, . . . and we need to fix it.” CBN looks forward to continuing our work to
assist SFUSD in developing an affordable, effective, and timely resolution to
the problem.
USDA’s
Undersecretary for Food Nutrition and Consumer Services Nancy Montanez Johner,
however, reveals a disappointing and incomprehensible reading of the law and
regulations in this matter. In the NYT
article, she is quoted as finding the legal claims “unfounded.”
The undersecretary asserted to the NYT that “there was “no overt
identification” because students were allowed to use any line they pleased and
the schools did not post signs identifying the lines as free or paying.”
Kids, however, are
smarter than that. They know which line
is which, whether USDA recognizes it or not.
And, so do the
courts. In addressing a similar situation
relating to special tickets required to purchase “mainline” meals (those
offered for free to low income students), in Justice v. Board of Education, the court says that, “The fact that
some may “choose” to purchase tickets ought to be too patently trivial to
mention. That some may prefer the back
of the bus or the balcony has not seemed relevant for at least the last
generation or so.”
According to Public
Advocates,
Like the special tickets in Justice,
“mainlines” in SFUSD are primarily used by (low income) students--despite the
fact that they are, in theory, available to all students. . . . (The)
practice of using separate lunch lines results in NSLP participants’ “identification
to everyone as recipients of public largesse, contrary to the command of the
federal statute forbidding such stigmatization.” Id. at 1254.
Instead of
defending a morally and legally questionable practice, the undersecretary would
serve the schools and students better if she offered meaningful assistance and
guidance to help districts remedy the problem.
For more
information, please contact Colleen
Kavanagh at colleenk@california.com or
415.706.8094.
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