dissenting: I agree with the court that the petitioner’s asthma “could constitute a record of impairment of a major life activity ...” and that the burden is upon the petitioner to demonstrate that “whatever present impairment may exist [, if any], it is not performance-related.” But, as the court recognizes, this determination requires facts to support these arguments, and these facts are best handled by the tribunal whose function includes finding the facts based upon the application of the correct legal standards.
The court, today, announces legal standards under New Hampshire’s handicap discrimination laws for the first time. The State Board of Education, in considering the petitioner’s claim, has never had the opportunity to develop or consider the facts relevant to the court’s newly announced standards. Because, on an appeal based upon a writ of certiorari, we apply a deferential standard of review to the State Board of Education’s factual determinations, see Petition of Bagley, 128 N.H. 275, 282, 513 A.2d 331, 336 (1986), I would remand the case to the State Board to allow it to consider the petitioner’s claim in light of the standards announced today by the court.