Food Allergies Inject Legal Risk: The Law Is Mostly on the Side of Students Who Have Food Allergies, Compelling Schools and Districts to Keep Them Safe, but the Requirements Are Not Unlimited

Article excerpt

Schools have two key legal obligations to students who suffer from serious allergies, severe asthma, or other life-threatening ailments: Make the young scholar academically strong and keep her physically healthy at school.

Astute teachers and administrators know they must take precautions when dealing with medical conditions that can strike at any moment and lead to death. Courts are stern about the obligation of districts to safeguard the well-being of such vulnerable children.

Make no mistake. This category doesn't include widespread annoyances like viral infections, head lice, or bedbugs. Nor does it include mental or physical impairments that merit special education. Rather, this category includes students with a dire personal health issue marked by sporadic flare-ups.

The classic example is peanut allergies, a condition shared by increasing numbers of children. A widely reported study found that the percentage of children with peanut or tree allergies more than tripled between 1997 and 2008 (Sicherer, Munoz-Furlong, God-bold, & Sampson, 2010). Indeed, the National Institutes of Health (2012) concluded that 5 million Americans, including 5% to 8% of children, suffer from food allergies.

That reality creates legal and logistical hurdles for educators. Most court cases find that one of three federal laws applies: Section 504 of the Rehabilitation Act of 1973, the Individuals with Disabilities Education Act (IDEA), or the Americans with Disabilities Act (ADA).

Building-level employees literally hold a child's life in their hands. An allergic food reaction can provoke anaphylactic shock, a reaction by the immune system that identifies a food as "foreign" and fights it using antibodies. A student can then experience breathing difficulties, a drop in blood pressure, and other harmful effects. Some 90% of allergies are triggered by eight foods: milk, eggs, peanuts, tree nuts (e.g. almonds, walnuts), soy, wheat, fish, and shellfish. That makes breakfast, lunch, sports concession stands, and field trips a hidden maze of legal jeopardy.

Safety first

There should be no doubt that the duty for school leaders is always safety first. Still, two court cases and a settlement agreement with the U.S. Department of Education's Office for Civil Rights drive home the point.

In 2010, Hevel Elementary School in the Romeo Community Schools in Michigan banned all tree and peanut foods due to a single student's severe allergy and Section 504 plan. The Michigan Court of Appeals, upholding the district stance, noted that officials tried less intrusive measures, but those were condemned by the student's doctor. The physician said even airborne exposure to peanut products could trigger trouble.

Hevel parent Kathleen Liebau sued the district, the superintendent, the principal, the school nurse, and "unknown individuals who approved the 504 plan." She asserted that "because she and her daughter are not parties to the 504 plan, she cannot be bound by the nut-ban policy." The July 2013 unpublished decision by a Michigan appeals court said the well-being of every student is the priority. "[T]he school district had the authority to adopt a schoolwide ban on nuts as part of the 504 plan for [the student] given its determination that the ban was necessary," the court said.

A similarly strong lesson was delivered in Iowa. The state's Court of Appeals ruled in January 2013 that a preschool child's tree-nut allergy qualifies under the Americans with Disabilities Act. When Shannon Knudsen's mother attempted to enroll her in school she informed the school of the girl's allergies and suggested an emergency care plan. The school refused. In Knudsen v. Tiger Tots Community Child Care Center, the court cited the ADA as the logic for overturning the school's decision.

Nationally, the Education Department's civil rights office rebuked the Gloucester (Va.) County Public Schools for refusing a Section 504 plan for a student with severe allergies. …


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