Yes, The Healthy Schools Act Isn’t Enforced: Food and Water Edition

For the Post, apparently, the title above is news, at least as it relates to physical education at one DC public school.

For many of us with kids in DC public schools, it’s not news at all.

Here’s a quick test:

Does your child’s DC public school have healthy food? Does your elementary age child have 150 minutes of PE each week (that’s 30 minutes every day)? Does your middle schooler have 225 minutes a week (that’s 45 minutes every day)? Does your child spend at least half of that PE time in “actual physical activity,” much of it “moderate-to-vigorous”?

Responding “no” to any of those questions indicates a violation of the Healthy Schools Act.

Passed into law in 2010, the Healthy Schools Act is a marvelous piece of legislation that calls for healthy food, school gardens, lots of exercise, lead in water testing, and a host of other things that promise healthier, happier kids in our public schools.

Whether it’s enforceable is a good question–as the comments of public officials quoted in that Post story suggested.

But there is no question that it is often not enforced in any meaningful way. Just look at school food.

The act, for instance, calls for DCPS to get feedback from students, teachers, and parents on food that students find appealing. That did not happen at all (or very much) with the new DCPS food contracts (for Sodexo and DC Central Kitchen), according to testimony during the July 6 council hearing on those contracts.

The council then voted on July 12 to approve the contracts for school year 2016-17.

To be sure, that vote wasn’t unanimous: Mary Cheh, Ward 3 councilmember and the creator of the Healthy Schools Act; Elissa Silverman, at large councilmember; and Charles Allen, Ward 6 councilmember, all voted “no.”

Nonetheless, on July 26, one of the contract bidders, Genuine Foods, filed a protest with the DC contract appeals board (search for case P-1017) of Sodexo’s award of the food contract for 101 of 113 DCPS schools. The protest is available only in a redacted form, due to a protective order. (NB: Technically the protest is available online by searching at the link above, but I was unable to access it there–but was handed all 400-some pages of it in person, when I was also unable to receive it via email.)

The bid protest is based on a number of issues, including how the bids were scored and the fact that after being told (weeks late) it did not win the award, Genuine Foods was then told the non-award was rescinded, after the DC attorney general reviewed the contracts.

(That issue with rescinding the non-award went down just over a week before the council hearing on the food contracts on July 6–a hearing that school food activists worked hard to get on the council calendar, after pushing the council to extend time for review of the contracts.)

Ironically, one of the concerns about approving the food contracts in such a rush in July, after the (still-unexplained) delay from DCPS in getting the contracts out for council review in the first place, was to not leave schools in the lurch in August, when school started. Until Genuine’s protest is resolved or a judge rules in favor of city’s motion to have the contract go forth anyway, Sodexo cannot supply food to DCPS; instead, its subcontractor, Revolution Foods, is apparently doing so.

(So, kids are managing to eat without Sodexo! Well, maybe not some at Janney.)

But the ghosts of past DCPS food services are still with us:

Food activists protested the award to Sodexo, because of the company’s track record of labor violations and processed food. Moreover, its award to provide meals to 101 of DCPS’s 113 schools goes against the city’s promise to ensure one large vendor does not have control of most school meals, a la Chartwells, DCPS’s prior vendor.

The city’s history with Chartwells is by now well-known: As director of DCPS’s food services from 2010 to early 2013, Jeff Mills–who runs Genuine Foods and brought this bid protest–noted to his higher-ups at DCPS that Chartwells was not doing a good job providing healthy meals to DC students. He was fired.

Shortly thereafter, Mills brought, and settled, a wrongful termination lawsuit–and brought, and settled, a lawsuit against Chartwells. The latter lawsuit alleged the company mismanaged millions and provided spoiled food. As a result of that whistleblower action, the city received $19 million in settlement money.

Almost $14 million of that settlement has now gone directly to DCPS and will be spent in FY17. As shown on the spreadsheet that DCPS provided for the U.S. Department of Agriculture, the settlement money is slated for some kitchen equipment and program support (including schools gardens, something emphasized in the Healthy Schools Act).

But how the embedded questions in that spreadsheet are resolved remains unknown—including how those expenditures help (or not) with Healthy Schools Act compliance. This is especially important in light of the DC auditor’s February 2016 report on DCPS kitchens, which showed many without necessary or functioning equipment–despite prior promises by DCPS to have more meals prepared in-house, something that the Healthy Schools Act encourages.

In fact, one could argue that violations of the Healthy Schools Act regarding food have been almost inevitable since 2008, when all meal services in DCPS were contracted out into a small, but well-funded, corporate world of food service providers.

For instance, Genuine Foods’ bid protest alleges that personal bias against Mills was at issue–especially the relationship between Mills, the former head of DCPS food services, and the current head of DCPS food services, Robert Jaber. After being a Chartwells employee, Jaber then worked on contract compliance for DCPS food services–under Mills–with direct oversight of Chartwells’ performance in DCPS.

As shown in the bid protest, in 2012 Mills wrote a 7-page, single-spaced memo to Anthony deGuzman, then COO of DCPS, asking that Jaber be fired for poor performance in overseeing Chartwells, including Jaber’s apparent incorrect reporting that food was on time or fully available at a variety of schools and not following through with Healthy Schools Act compliance.

Shortly after, Mills was fired.

Earlier this year, the AP revealed that DCPS chancellor Kaya Henderson solicited donations for a gala from Chartwells not long after Mills’ whistleblower lawsuit had been filed against the company. Almost $20 million in Chartwells settlement money later, one has to ask about the ethics of Henderson’s solicitation, particularly in light of the fact that she also solicited the current food services contractor, Sodexo, for a donation to the same annual event.

With so much mystery surrounding basic issues of health and safety that the Healthy Schools Act was meant to address, it isn’t exactly surprising that the current DCPS contract with Sodexo remains publicly unavailable in its complete form. Last week, I filed a FOIA request for an unredacted version, after finding no one in the city government willing to share it with me.

(Well, not without someone first asking me why I wanted it–an admittedly charming question, since I had assumed it only natural for taxpayers to want to know how their public money ($35 million, in Sodexo’s case, for school year 2016-17) is used for feeding kids in public schools.)

But the deep shadows over the Healthy Schools Act don’t seem to end with food:

The day after Mills’ bid protest was filed, the Healthy Youth and Schools Commission met. As established by the Healthy Schools Act, the commission is a body of 13 members appointed by the mayor to advise on issues of health, wellness, and nutrition.

That day, the commission voted to pay the DC Public Charter School Board $100,000 to cover lead in water testing in charter schools in the spring. In testimony in June before the council, the board expressed concern about the cost of that lead testing in its schools–and apparently requested reimbursement from the commission, with the money coming from the Healthy Schools Act Fund.

However laudable this reimbursement is, it appears to be yet another violation of the Healthy Schools Act.

The Healthy Schools Act Fund is set aside to provide money for school meals without processed food and with locally sourced products, and to provide grants for school gardens. It says nothing (as far as I could see, anyway) about reimbursing agencies for lead in water testing–nor is it clear that the commission itself has such authority to determine Healthy Schools Act Fund expenditures.

That decision by the commission also sets a potentially strange precedent, in that the Healthy Schools Act doesn’t appear to speak at all about testing for lead in water in charter schools (or its reimbursement)–it only mentions testing of lead in water in DCPS.

Sooo, maybe what is news is when the Healthy Schools Act IS enforced.

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