The Supreme Court of Cassation in United Sections, on July 30, 19, denied the right of students to consume food other than that offered by the cafeteria itself on school premises during mealtimes. (1) No to the gamella brought to school from home or the sandwich bought nearby, in short. Behind a seemingly straightforward pronouncement lies a complex affair that deserves further study and reflection.
Turin, the cafeteria objectors
The affair began in November 2014, with the City of Turin and the Ministry of Education (MIUR) being sued by 38 parents of elementary and middle municipal school pupils. Who sought the adjudication of their right to choose, for their children, between school cafeteria food and other foods to be consumed, moreover, on the same premises. A kind of ‘conscientious objection,’ which the plaintiffs claimed to be recognized as a perfect subjective right.
The ‘objectors’ then asked the Savoy Court to order the Ministry to issue appropriate orders to school administrators so that schoolchildren could use school canteens as ‘service rooms’ where they could feed themselves freely with meals brought from home or purchased elsewhere. The municipality in turn should have refrained from placing limits and prohibitions that would impede the exercise of this alleged right.
Tribunal and Court of Appeals, the vexata quaestio
The Turin court had rejected the claims on the grounds that there is no ‘neither a right to the provision of canteen service in ways other than those provided for by the regulations in force, or of an alternative in-school service for those who wish to eat their meals at home, nor a right to the institution of canteen service itself, families being free to opt for the `module´ (the so-called `short time´) or for the full-time or extended time that provide for canteen service‘.
The Court of Appeals upheld the parents-objectors’ appeal in part, declaring the ‘right of parents to choose for their children between school meals and home meals to be eaten in individual schools and during the time allocated for school meals.’ (2) Schooling, especially in elementary and middle school, indeed includes teaching and educational activities, including meal delivery. Ensuring that all children are able to stay together at mealtimes would therefore only be important a perfect subjective right under Art. 34 of the Constitution.
However, the most critical aspect of the issue-from the point of view of food safety , with administrative and criminal as well as civil law implications-has escaped the scrutiny of the lower courts. How can the cafeteria operator allow food from outside to enter, having no way to assess its food safety? How, then, can theoperator in charge of catering ensure that any physical (e.g., allergens), chemical, and microbiological (e.g., allergens) contamination (e.g., allergens, allergens, allergens, allergens, allergens, allergens, allergens, allergens, etc.) will be avoided? E. Coli and STEC, salmonella) of foods brought in from outside do not harm the health of schoolchildren and the hygiene of the premises?
Last but not least, what services and in what capacity should the provider precisely offer, in addition to those precisely described in appropriate contracts (which do not include ‘bivouac assistance’ on the premises operated under its own responsibility)? And who would take on the not insignificant costs that would result, for adjusting self-control plans (procedures and premises), insurance of additional risks? Perhaps the school, or the parent-objectors?
The arguments of parent-objectors
The right to bring lunch from home and consume it on school time and premises, in the parent-objector argument, would constitute an expression of the right to equality understood as ‘equal opportunity.’ Which would be undermined where the option to opt out of an optional service such as the cafeteria was precluded. It would therefore be a ‘personal freedom’ of the individual (Constitution of the Italian Republic, Articles 2, 3 and 13). More specifically, of an expression of pupils’ and families’ right to self-determination, health and dignity in food matters (Constitution, Articles 2, 30 and 32). As well as the principles on compulsory and free lower education, which would be undermined if an optional service became mandatory and conditioned pupils’ participation in educational segments.
This argument would find endorsement in a precedent of the Council of State, which annulled the resolution of the Municipality of Benevento where it forbade preschool and elementary school students equipped with food brought from home or purchased independently to stay on school premises. The prohibition on eating meals other than those provided by the service contractor would not be compatible, according to the administrative judges, would conflict with a freedom that ‘takesplace both within the home and outside of it: in other people’s places, in places open to the public, in public places.’ (3)
On closer inspection, this jubilation of individual freedoms could also be extended to textbook choice or other behaviors, such as the use of smartphones in the classroom and who knows what else. Effectively destroying the basis of teaching and the responsibilities of school site managers. Instead, who resist-perhaps not wrongly-subjecting students to collective rules. Whenever possible shared with parent and student representatives, who in turn thus have an opportunity to learn about participation in decision-making processes, according to objective rules. Civic education.
Resolutive Cassation
As supported by parents, the ‘canteen time‘ should indeed be considered to be included in the ‘school time‘, in line with the educational purposes that are inherent in the school educational project. (4) There is added a social function that is typical of conviviality, the eating of the meal ‘together,’ that is, in community. ‘Not a casual gathering of food consumers, but of socializing and sharing (including food), on equal terms, as part of a common educational project‘.
Free education for the rest, according to constitutional jurisprudence, does not in itself imply the complete gratuity of all benefits that may come associated with the right to study. And in any case, school lunch costs should be calculated after identifying income brackets, where appropriate up to free. Educational institutions – as part of the organizational, as well as educational, autonomy conferred on them by law – may establish canteen service. Which qualifies as a public service on individual demand, provided for the benefit of pupils who have opted for “full time” and “extended time” and, therefore, accept the educational offer including canteen.
‘School education is not a place where the individual rights of pupils are freely exercised (…) but rather is a place where the development of the personality of individual pupils and the enhancement of individual diversity must be realized within the limits of compatibility with the interests of other pupils and the community, as interpreted by the educational institution through binding rules of behavior, taking into account the fulfillment of duties to which pupils are bound, of mutual respect, sharing and tolerance‘.
No discrimination then. More simply a choice, of the public institution, which implies the possibility of deciding how to manage the canteen service. And so the identification of the supplier company and the food offered. Not forgetting, we add, the Minimum Environmental Criteria (CAM) to be met in public procurement (so-called green procurement). Nor neglect nutrition education and health equity, on which the State-Regions Conference recently intervened.
Dario Dongo and Giulia Torre
Notes
(1) Cass. Civil, Joint Sections, Judgment 30.7.19 no.20504
(2) Turin Court of Appeals, judgment 21.6.16
(3) Council of State, Sec. V, ruling 5156/2018
(4) Cf. d.lgs. 63/17 (art. 6), d.lgs. 297/94 (Art. 130.2), Presidential Decree 89/09 (Art. 5), Interministerial Decree 6.7.10 no. 55
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
Graduated in law, master in European Food Law, she deals with agro-food, veterinary and agricultural legislation. She is a PhD in agrisystem.
