A bill introduced in the California assembly would have banned the use of the
most highly toxic pesticides in schools, including many that have been linked to
asthma, such as pyrethroids, carbamates, and organophosphates. However, the bill
died in the 2003–2004 session and has not been reintroduced.
Legal Aspects of Asthma at School
Students suffering from asthma triggered by pesticides or uncontrolled pest popu-
lations may be able to use the Americans With Disabilities Act (ADA) of 1990 to
require schools to provide non-toxic, effective pest management. Fortunately, the use
of the ADA as a remedy for environmental disabilities does not conflict with FIFRA.
Furthermore, reduction in asthma attacks would increase school attendance rates and
prevent what is essentially the denial of a vital public service—education.
The rights of students with disabilities are defined under three federal laws: the
Individuals Education Act (IDEA), Section 504 of the Rehabilitation Act of
1973, and the ADA. These rights are also covered under certain state statutes and
regulations. Federal rulings on specific cases continue to clarify what these laws
mean for students with asthma. A child does not have to be classified as ‘‘special
needs’’ to qualify for accommodation or special planning, such as an individua-
lized health plan. The ADA incorporates and extends the rights and responsibi-
lities of Section 504 of the Rehabilitation Act of 1973 to include public services
and places of public accommodation, such as preschools, daycare centers, and pri-
vate schools.
Asthma is a condition that is considered a disability under the ADA. A disability is
an impairment which affects a person’s respiratory system and which substantially
limits one or more of his or her major life activities. If a person has a record of that
impairment, he or she is regarded as having that impairment. Asthma is a physical
impairment that impairs what Department of Justice regulations consider to be a
‘‘major life activity,’’ including breathing.^72
InAlvarez v. Fountainhead, Inc.,the plaintiff was a student at a private Montessori
school who used Title III of the ADA to obtain a reasonable accommodation to con-
trol his asthma.^73 Title III prohibits a place of public accommodation from discrimi-
nating against an individual on the basis of a disability (public schools fall under
Title II) and entitles a disabled person to the protections of Title III of the ADA.^74
Under Title III, similar to Title II, ‘‘disability means, with respect to an individual, a
physical or mental impairment that substantially limits one or more of the major life
activities of such individual.’’^75 The court found that the plaintiff, who suffered from
asthma, was a ‘‘person with a disability’’ and was entitled to the protections of Title
III.^76 Discrimination is defined under Title III to include a denial of the opportunity
to participate in, or benefit from, a public accommodation’s goods and services.^77
Title III requires a public accommodation to make ‘‘reasonable modifications in poli-
cies, practices, or procedures’’ when such modifications are necessary ‘‘to ensure full
and equal enjoyment of its services by individual with disabilities.’’^78
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