Food Allergy Bullying as Disability Harassment: Holding Schools Accountable

77 Pages Posted: 17 Apr 2020 Last revised: 29 Oct 2021

Date Written: March 28, 2020

Abstract

Millions of American school children suffer from food allergies, and increasingly, these children are bullied because of their allergies. If the bully exposes the victim to the allergen, food allergy bullying can sicken or kill within minutes. Food allergy bullying is already responsible for many hospitalizations and at least one death. Most food allergy bullying happens at school, and schools play a crucial part in addressing and preventing bullying. All too often, though, schools fail to take appropriate action. Sovereign immunity insulates public schools from liability in many instances, but federal disability law may provide a solution.

This article forges a new path through disability law for schools to be held liable for food allergy bullying under federal disability discrimination laws. It advocates for food allergy being classified as a disability in most instances under these laws, which would then provide the basis for school liability based on a theory of disability harassment. This statutory claim avoids the sovereign immunity hurdle and holds schools accountable for their role in facilitating or refusing to respond appropriately, thereby motivating schools to protect allergic children from bullying.

Keywords: food allergy, disability, bullying, Americans with Disabilities Act, ADA, Rehabilitation Act, immunity, sovereign immunity

Suggested Citation

Shu, D'Andra Millsap, Food Allergy Bullying as Disability Harassment: Holding Schools Accountable (March 28, 2020). 92 University of Colorado Law Review 1 (2021), Available at SSRN: https://ssrn.com/abstract=3563349

D'Andra Millsap Shu (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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