USDA Civil Rights and Child Nutrition Programs Jennie Lusk Jennie.lusk@state.nm.us With thanks to bgraham@bruman.com Brustein & Manasevit, PLLC

Introduction Civil Rights Regulations are intended to assure that benefits of Child Nutrition Programs are made available to all eligible people in a non-discriminatory manner. All sponsors receiving Federal $$ must implement Civil Rights requirements to be eligible for the program. Civil Rights regulations prohibit discrimination, defined as different treatment which makes a distinction of one person or a group of persons from others; either intentionally, by neglect or by the actions or lack of actions based on the protected classes.

Civil rights legislation Title VI of Civil Rights Act of 1964 Americans with Disabilities Act (ADA) Section 504 of the Rehabilitation Act of 1973 Title IX of Education Amendments of 1972 Age Discrimination Act of 1975 USDA Regulation 7 CFR Part 16 (religious access) FNS Instruction 113-1 FNS provides children and low-income people access to food, a healthful diet, and nutrition education. FNS Instruction 113 is the Federal guidance to State agencies, local agencies and sub-recipients to insure nondiscrimination in all FNS funded or assisted programs.

Race Color National origin Age Sex Disability Protected Classes Race Color National origin Age Sex Disability

nslp requirements FOR sfaS FOR PURPOSES OF CIVIL RIGHTS 7 CFR§210.15   Reporting and recordkeeping. Reporting summary. . . . (6) Information on civil rights complaints, if any, and their resolution FNS INSTRUCTION 113-1

Collecting and reporting participation data Civil Rights Collecting and reporting participation data SFAs are required to keep records that include civil rights complaints. 7 CFR§210.15:   Reporting and recordkeeping.--Reporting summary. . . . (6) Information on civil rights complaints, if any, and their resolution Also, they must maintain a data system that collects racial and ethnic makeup data Potentially eligible persons Program applicants Participants (number of students, by racial / ethnic categories, that have been approved OR denied) Collect data each year Maintain on file for five years The method used to collect this information may include data observed by a school or school official, voluntary self-identification on the application form, or an estimate by a school official based on his/her knowledge of the ethnic breakdown of the students enrolled in the school.

Race and Ethnic Categories Two Question Format Civil Rights Race and Ethnic Categories Two Question Format Ethnicity: Hispanic or Latino Not Hispanic or Latino Race: (Select one or more) - American Indian or Alaskan Native - Asian - Black or African American - Native Hawaiian or Other Pacific Islander - White State agency may have categories for race in addition to the ones required by FNS: However, the additional categories must be mapped and extracted to the required categories Program applicants may not be required to furnish race or ethnicity. Identification must be voluntary. Visual observation will be used when the applicant does not self-identify.

PUBLIC NOTIFICATION All FNS assistance programs must include a public notification system. The purpose of this system is to inform applicants, participants, and potentially eligible persons of: Program availability, Program rights and responsibilities, Policy of nondiscrimination, and Procedure for filing a complaint.

THIS MEANS YOU MUST Let students know their rights (2) Let students know how to file a discrimination complaint (3) Post the nondiscrimination statement and the “And Justice for All” poster Keep these in your serving area so students & staff can see them

Nondiscrimination Statement Post the full nondiscrimination statement below: “In accordance with Federal law and U. S. Department of Agriculture policy, this institution is prohibited from discriminating on the basis of race, color, national origin, sex, age, religion, political beliefs, or disability. To file a complaint of discrimination, write USDA, Director, Office of Civil Rights, 1400 Independence Avenue, S. W., Washington, D. C. 20250-9410 or call (800) 795-3272 (voice) or (202) 720-6382 (TTY). USDA is an equal opportunity provider and employer.”

Nondiscrimination Statement (con’t) Civil Rights Nondiscrimination Statement (con’t) If material is too small to permit full statement, the material will at a minimum include the statement, in print size no smaller than the text, that: “This institution is an equal opportunity provider.” Imprinted on items such as cups, buttons, pens, and so forth. Read in entirety when used in public service announcement on the radio, internet, TV, and so forth. Mentioning that the specific program is an equal opportunity provider is sufficient.

Civil Rights “And Justice For All” Poster must be placed in a prominent area such as a visible, high-traffic area

Verbal In Writing Observed Complaint procedures Civil Rights Complaint procedures Any person alleging discrimination based on race, color, national origin, sex, age or disability has a right to file a complaint within 180 days of the alleged discriminatory action. Verbal In Writing Observed Verbal Complaints. In the event that a complaint is made verbally, the person receiving the allegation will write up the complaint to include as much of the following information as possible: Name, address, and telephone number or other means of contacting the complainant. The specific location and name of the entity delivering the program service or benefit. The nature of the incident(s) or action(s) that led the complaint to be filed. The basis on which the complainant feels discrimination has occurred, i.e., race, color, national origin, sex, age or disability. The names, telephone numbers, titles and addresses of persons who may have knowledge of the discriminatory action(s). The date(s) during which the alleged discriminatory action(s) occurred or, if continuing, the duration of such action(s).

Complaint procedures Sponsors are required to develop and implement a written procedure to handle any discrimination complaint that may be received. Right to file How to file Investigation Decision

Where are complaints filed? Complainants may choose to directly contact USDA with their complaint, or they may notify the sponsor of their complaint. The sponsor must promptly forward all discrimination complaints received regarding Child Nutrition to New Mexico Student Nutrition Bureau.

Investigation process Contact with the complainant or authorized representative to review his/her case file; Review of a representative sample of case files of similarly situated program participants/applicants; Contact with the state or local agency for a response to the allegations set forth in the complaint.

How to Handle a Complaint Use the Complaint Form Enter the Complaint on the Log Refer the complaint to the Civil Rights official in the school district or facility Report the complaint to the Student Nutrition Bureau-c/o Mike Chavez

Accommodation of persons with disabilities Civil Rights Accommodation of persons with disabilities ‘Child with a disability’ defined as having a physical or mental impairment that substantially limits one or more major life activities. Also includes children recognized as having a disability under IDEA. Substitutions for children with disabilities must be supported by written statement from a physician attesting to the need for substitution and recommending alternate foods. Assistance with feeding is LEA responsibility (not food service department).

Substitutions for medical or special dietary reasons Case-by-case basis. Supported by a statement signed by a recognized medical authority: Doctors, osteopathic doctors, physician assistants, nurse practitioners, registered dietitians, licensed nutritionists

Limited English proficiency access Civil Rights Limited English proficiency access Must take “reasonable steps” to ensure meaningful access to their programs and activities by persons with Limited English Proficiency Number and proportion of LEP persons served or encountered in eligible population The greater the number, the higher the need Frequency with which LEP individuals come in contact with program Nature and importance of program, activity, or service Will denial of service cause a serious or life-threatening implication for potential participants? Resources available to the recipient and costs Accessibility of a translator for applications, etc. Availability of materials in various languages Language Translations for Program Materials Make Child Nutrition Program information available to all persons in their language Provide informational materials in the appropriate translation concerning the availability and nutritional benefits of the meal programs English, Spanish, and [other] versions of household applications are available on PED’s website [link]

Compliance reviews A Civil Rights compliance worksheet should be completed every year for each school in the LEA. Please retain in your files; do not forward a copy to the SNB. An LEA’s compliance with Civil Rights regulations and other program regulations will be verified during on-site administrative monitoring reviews.    Staff must be trained annually on Civil Rights.

Customer service There must not be any discrimination against children receiving free or reduced price meal benefits. The names of children must not be published, posted or announced in any manner. The children must not be required to work for their meals. The children must not be required to use a separate dining room, separate serving line, entrance or separate serving time. The children must not be offered a different meal. There must not be any overt identification of any of the children by use of special tokens or tickets. The LEA must use the collection procedure(s) approved as part of the free and reduced price meal policy statement. There must not be any discrimination on the basis of race, color, national origin, age, sex, or disability in the application approval process or in the selection of applications for verification.

QUESTIONS?

This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client-lawyer relationship with the Public Education Department, or with Brustein & Manasevit. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances. Contact information: Jennie Lusk, Asst.General Counsel, PED 300 Don Gaspar, Santa Fe NM 87501 Jennie.lusk@state.nm.us