For-Profit Schools Sue for Equal Lunch for Kids

NEWARK (CN) - A class action challenges the state and federal governments' decision to bar disabled students who attend for-profit schools from a federal school meals program.

Poor, disabled children who attend for-profit private schools deserve equal protection and access, the Deron School claims in Federal Court. If the students attended public schools or nonprofit private schools, they would be eligible for the meals program, says the Deron School, which operates two co-plaintiff schools.

The plaintiffs operate four schools serving children with disabilities in Union and Fairfield, N.J. They demand an injunction prohibiting the state and federal Departments of Agriculture from excluding their students from the meals program again.

For nearly 30 years before the USDA action - a decision rendered in a 2002, but not disclosed to the schools until 5 years later - the four named plaintiffs - Deron School of New Jersey, ELO Inc., KDDS and KDDSIII - participated in the meals program and planned their budgets and services accordingly.

As a rule, for-profit schools are not allowed to participate directly in the National School Lunch and Breakfast Meals Program; but in the plaintiffs' cases, the students were allowed to participate "indirectly" through the use of a "workaround," sponsorship by the New Jersey Board of Education.

By common agreement, the schools handle the paperwork, the local school board administered the program, and the students, almost all of whom have behavioral disabilities, got the federally subsidized meals.

The state school board approved the workaround in 1984, finding that excluding the students from the meals program would violate federal disability laws.

Over the years, responsibility for the meals program shifted from the state board of education to the New Jersey Department of Agriculture, under a contract with the U.S. Department of Education.

In 2002, a USDA memo prohibited for-profit schools from the program, rending the New Jersey workaround null and void.

At no time were the schools given notice or an explanation of the change in policy, nor an opportunity to comment, the complaint states. Nor were they told why such an action was considered discriminatory in 1984, but is not discriminatory now.

Nor was it explained why it took until 2007 to inform the schools of the new policy.

Since the termination of the workaround, the plaintiff schools have continued to feed students, which has forced them to increase tuition, and the cost is borne by the students' public school districts, according to the complaint.

"Unless food costs decline or the workaround is reinstated, the schools will have no choice but to stop providing free and subsidized meals to students," the complaint states.

In 2008, the Mercer County Superior Court dismissed a state court action filed by the plaintiffs, finding they had failed to exhaust administrative remedies. But Superior Court Judge Linda Feinberg acknowledged that significant public policy issues were at stake, the schools say.

The plaintiffs are represented by Kenneth Van Deventer with Riker, Danzig & Scherer of Morristown.

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