Millions of American schoolchildren of all ages suffer from food allergies, and increasingly, bullies target these children because of their allergies. If a bully exposes a victim to an 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 and other obstacles insulate public schools from liability in many instances, but federal disability law may provide a solution. This Article forges a new path in disability law for schools to be held liable for food allergy bullying under existing federal disability discrimination laws. It argues that food allergy can, in most instances, constitute a disability under these laws and thus can 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 children with food allergies from bullying.
D'Andra Millsap Shu,
Food Allergy Bullying as Disability Harassment: Holding Schools Accountable,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol92/iss1/2