The number of students with allergies is increasing every year, with an estimated 3 million children under the age of 18 having a reported food allergy, according to the National Center for Health Statistics in 2008. Throughout the school day, these students are exposed to food they are allergic to during meals, snack time, class celebrations, and field trips. They also risk exposure to harmful allergens during classroom lessons (like an egg drop) or in certain courses like art or family and consumer science. In addition to food allergies, students who are allergic to bee stings and service dogs face a variety of issues while attending school as well. School leaders must ensure staff are trained and aware of the legal ramifications surrounding allergies.
Section 504, the ADA, and IDEA
Many people may not consider students with allergies to be disabled; however, these students often meet the definition of disability as outlined by two federal disability laws. Both Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA) prohibit disability-based discrimination. Under Section 504 and the ADA, a disability is defined as “a physical or mental impairment that substantially limits one or more major life activities; a record of impairment; or is regarded as having an impairment.” Thus, students who meet this definition of disability cannot be “excluded from the participation in or be denied the benefits of classroom activities, or be subjected to discrimination.”
In response to the growing number of students with allergies, Congress enacted the FDA Food Safety Modernization Act in 2011. This law mandated the Centers for Disease Control and Prevention (CDC) to issue voluntary guidelines on how to protect students with food allergies in schools. In the guidance, the CDC explained how students with allergies could be defined as having a disability because they “may be substantially limited in major life functions such as eating, breathing, or the operation of major bodily function such as the respiratory or gastrointestinal system.”
If it is suspected that a student with an allergy may fit the legal definition of a person with a disability under Section 504/ADA, then the school must begin the evaluation process for this student. After determining the student is eligible, the school must design and implement an individualized plan (typically termed a 504 Plan) to provide that student with a Free Appropriate Public Education (FAPE). One example of an accommodation that may be found in a student’s 504 Plan is permitting parents of a student with a food allergy to prepare the student’s meals to decrease the chance of an allergic reaction.
In addition to Section 504 and the ADA, students with allergies may be entitled to protections under the Individual with Disabilities Education Act (IDEA) if the allergy adversely affects the student’s educational performance and the student requires special education and related services because of the allergy. If the student meets this requirement, an Individualized Education Program (IEP) must be developed for the student. Determining that a student’s allergy adversely affects his or her educational performance is a higher barrier to meet than the requirements for Section 504. Therefore, it is more common for 504 Plans to document accommodations for students with allergies.
Legal issues related to students’ allergies have arisen in several different contexts. For example, in Tennessee, parents filed a lawsuit against school officials and alleged that their son’s allergies were not being accommodated as required by the ADA. In North Carolina, parents filed a lawsuit after their son, who suffered from a severe tree-nut allergy, was bullied in school. Students in the school threatened to bring nuts to school to harass him. There have also been issues that have arisen around allergies related to service dogs.
Federal circuit courts have recently addressed accommodating students with allergies. In both cases discussed below, the parents had placed their students in a private school when they believed public school officials did not accommodate their children’s allergies—and the courts did not reimburse them for the private school expenses.
In Pennsylvania, parents alleged that the school district had violated Section 504 when it discriminated against their son and failed to provide him with a FAPE. Their son suffered from a severe tree-nut allergy that could cause anaphylaxis—a life-threatening allergic reaction. In an unpublished opinion, the 3rd Circuit Court of Appeals (Delaware, New Jersey, and Pennsylvania) affirmed summary judgment in favor of the school district because school officials had offered the student reasonable accommodations. For example, school officials revised the student’s 504 Plan throughout the school year as needed, and they were not deliberately indifferent toward the student’s rights.
In another 3rd Circuit case, the parents argued that school officials did not follow the service plan that was created for their daughter. For example, during a “Clifford the Dog” celebration, her classmates were given brownies and juice while she was given a frozen cupcake from the nurse’s freezer. The parents also complained that their daughter’s allergies made it difficult to comply with the school’s dress code. They also argued, as a result of her allergies, she was excluded from some classroom activities. The court found no Section 504 violation when the student was given a different daily routine because of her allergies and other disabilities. Specifically, the court reasoned that the student had not been denied meaningful participation in food-related activities and the district took reasonable steps to include her in class activities.
Allergy Plan Guidance
Schools should work with families to develop a plan to reduce the possibility of a reaction and provide an environment that lowers the student’s anxiety. As mentioned, federal law could require that a 504 Plan or IEP is developed; however, schools should develop an Individual Health Plan (IHP) for students with allergies who are ineligible under Section 504 or IDEA. IHPs are formal agreements between families and schools about steps that will be taken to develop a plan to meet the individual health needs of the student. Allergy plans should:
- Identify specific ways to keep the student safe. This may mean the school must administer epinephrine according to the doctor’s orders or allow students to carry their own medication. If the student has a food allergy, the plan should specify whether it is safe for the student to eat at a regular table with peers, at a separate table free of allergens, or in a separate room.
- Outline how teachers will address allergy issues in the classroom. For example, teachers can communicate with parents that birthday celebrations do not include food. Teachers can also eliminate the inclusion of food in lessons and, when needed, stipulate that their classrooms be “nut-free zones.” Teachers should also be careful not to exclude students who have allergies.
Janet R. Decker, PhD, JD, is an assistant professor at Indiana University. Timothy Dowling is the principal of Marlin Elementary School in Bloomington, IN, and an EdD student in Educational Leadership at Indiana University. Suzanne E. Eckes, PhD, JD, is a professor at Indiana University and has been published widely on school legal matters, including co-editing The Principal’s Legal Handbook.