According to FARE, an estimated 5.6 million children under age 18 are coping with food allergies. That’s one in 13 kids or roughly two in every classroom.
Many of those kids will be bullied because of their allergies and may suffer reactions or life-threatening anaphylaxis requiring hospitalization if exposed to their allergen as a result.
One such child, thirteen-year-old Karanbir Cheema, suffered an anaphylactic reaction when a classmate who knew he was allergic to milk flicked a piece of cheese at him that hit his neck and fell into his shirt. After he began exhibiting symptoms, Karan was rushed to the hospital and died ten days later when he was removed from life support.
Most food allergy bullying takes place at school, where the school administration has an opportunity and responsibility to address the bullying. Sometimes, they fail to take appropriate action.
Holding schools accountable in those circumstances is difficult due to a judicial doctrine known as sovereign immunity. Sovereign immunity immunizes the government and its departments and agencies from being sued without its consent.
A paper by D’Andra Millsap Shu soon to be published in the University of Colorado Law Review forges a novel legal path for schools to be held liable for food allergy bullying under federal disability discrimination laws. It advocates for the food allergy being classified as a disability, 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.
Click here to download the paper which provides fascinating insight into this novel legal strategy.
- Facts and Statistics — Food Allergy Research and Education
- Food Allergy Bullying as Disability Harassment: Holding Schools Accountable — SSRN