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Our daughter is allergic to dairy milk. We provide her almond milk at home, however our school has told us we cannot bring in almond milk due to concerns about nut allergies, and that we should provide soy milk instead. We do not want our daughter drinking soy milk and feel that the school's policy is discriminatory due to the fact that both soy and dairy are potential allergens and they are allowing those, while banning nuts. Therefore they are providing preferential treatment for children with one medical condition while not providing the same considerations/protections for children with another medical condition.

Are we correct in our assessment that this is a discriminatory practice?

We are willing to work with the school to develop sane practices based on CDC recommendations, such as allergy-free tables in the lunchroom, etc.

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  • My daughter can't do dairy either. Have you considered coconut milk?
    – Kevin
    Aug 5, 2015 at 20:24
  • We have considered coconut milk, which the school allows. The FDA considers coconut milk a trigger for nut allergies though, which shows how absurd the school's policy is. We don't want to put any kids in danger, but the school's policy goes against every recommendation from government and allergy research groups.
    – drz
    Aug 6, 2015 at 12:55
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    Accoriding to the American College of Allergy, Asthma & Immunology, "Coconut is not a botanical nut; it is classified as a fruit, even though the Food and Drug Administration recognizes coconut as a tree nut. While allergic reactions to coconut have been documented, most people who are allergic to tree nuts can safely eat coconut. If you are allergic to tree nuts, talk to your allergist before adding coconut to your diet."
    – Kevin
    Aug 6, 2015 at 15:59
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    It could be that peanut particles can be airborne and inhaled, but dairy is much less likely to be breathed in since its a liquid.
    – Andy
    Aug 31, 2015 at 0:59
  • Do I understand it correctly that the school may restrict what kind of drinks pupils are allowed to bring from home and drink in school (e.g., in breaks between lessons)? Or is this about some other situation in school, e.g., when eating together in a lunchroom and having bottles on the table for all pupils to use?
    – unor
    Oct 16, 2015 at 2:10

3 Answers 3

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It may be discrimination; not all discrimination is illegal.

Details vary by jurisdiction, for example discrimination on the following bases is illegal in Australia:

  • race
  • colour
  • sex
  • sexual preference
  • age
  • physical or mental disability
  • marital status
  • family or carer’s responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin

A medical condition like an allergy is not necessarily a physical disability.

The school is arguably fulfilling its obligations under WHS legislation by banning nut products if that is what a risk assessment indicates. It may also be necessary to ban milk products if that is required for your daughter's safety. If (and I do not know) nuts pose a greater risk than milk then banning the former and not the latter may be perfectly justified. Ask to see the risk assessment.

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    Thanks for your answer. The issue is occurring in the United States. The CDC and other major US medical groups recommend against an outright ban and in favor of "allergy-free" zones for schools, although these are guidelines, not laws. There no hard laws at a federal level, and our state does not have any specific laws concerning food in schools.
    – drz
    Aug 5, 2015 at 13:02
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US law requires that all students with disabilities be granted accommodations. This includes food allergies, and there is no special provision regarding nuts versus milk. In the context of only one student with an allergy (milk), the most reasonable accommodation would be allowing that student to drink any substitute beverage. Because of the nature of nut allergies, a student with a nut allergy could either result in a ban of nuts, or the establishment of a separate eating facility (I don't know if that would be sufficient given current medical knowledge). "Separate but equal" seems contrary to the requirement of providing an equal opportunity to participate in a school's program, but it might be deemed a reasonable accommodation. The problem is that there is not a vast body of case law on food allergies and disability law, so while it is clear that an accommodation is necessary, it's not clear what is "legally reasonable".

However, the schools proposal (soy milk) is reasonable. If there were additionally a soy-allergic child and if soy allergy is similar to nut allergy, then the school must also accommodate the soy-allergic child. Your position that you don't want your daughter drinking soy isn't legally relevant (I can't use an objection to organic produce as a basis for banning the use of organic produce in schools).

Again, US law requires that all students with disabilities be granted reasonable accommodations. This is a fact-intensive inquiry.

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If the school was banning a hazard to others, but allowing something that's a hazard to your daughter—or if they were providing something of benefit to others, which your daughter couldn't use—then you might have a supportable claim of discrimination, or at least of inequity.

But that's not at all what's happening here. The absence of almond milk is not a hazard to your daughter, in way the presence of it is a risk to others. It isn't something she absolutely needs; it's your strongly preferred drink given your constraints, much as a vegan family might rely heavily on nuts for their preferred nutrition.

But it's not a need. There's lots of choices for lunch drinks; they don't even have to be milk substitutes. You may well have a strong desire, for whatever reason, to avoid soy products; perhaps likewise juices, sports drinks, pop. But strong desire is trumped by a real health hazard to others.

Also, it's worth being mindful of the principle, legal and ethical, of minimizing damages. If someone's actions (or requirements, or omissions) damage us (cause us a cost, or an inconvenience, or a loss) then we should be choosing the next-best reasonable alternative. If we can't get the best parking spot at the restaurant, do we turn around and go home and skip dinner that night? Or do we maybe park where we can, and walk? Or choose a less busy restaurant? This may be an opportunity for your daughter to see that she can accommodate the (very valid) needs of others, with minimal pain to herself.

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