http://articles.philly.com/2012-02-08/news/31038138_1_hiv-positive-safety-of-other-students-admission

The above link involves the AIDS Law Project of Pennsylvania filing a suit in Philadelphia in December arguing that a boarding school discriminated against an HIV-positive teenager who applied to a school that served low-income families. The school is a residential boarding school. The teenager appeared to meet the initial minimum qualification for admission. After the school learned the teenager was HIV-positive it discontinued processing the application, which led to the lawsuit. The school claims that their denial is justified because the teenager poses a direct threat. However, the AIDS Law Project of Pennsylvania says that the school failed to make an individualized assessment as to whether the teenager was a direct threat.

The first question is whether the school is subject to the Americans With Disabilities Act at all. Clearly, it is as places of education are places of public accommodation under title III of the Americans With Disabilities Act.

In dealing with this case, what kind of things will the court need to be thinking about? First, they are going to have to think about the concept of direct threat. Direct threat comes from the Supreme Court case of School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987). That case considered whether a teacher with tuberculosis was a direct threat to the kids she taught. The Supreme Court said that whether a person is a direct threat depends upon: the nature of the risk; the duration of the risk; the severity of the risk; and the probability the disease will be transmitted and will cause varying degrees of harm. Id. at 288. In Chevron USA Inc. v. Echazabal 536 U.S. 73 (2002) the Supreme Court extended this concept to being a direct threat to self. In Chevron, the United States Supreme Court noted that where a direct threat defense is claimed, you have to meet a fairly compelling standard. Id. at 85-86. That is, the direct threat defense must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Id. at 86. Furthermore, the assessment of direct threat must be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions of the job ( Chevron was an employment case). Id. The Department of Justice is responsible for enforcing title III of the Americans With Disabilities Act and their regulation is very similar to what is described here. In particular, in determining direct threat, one must look to the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. The direct threat assessment must be based upon reasonable judgment relying on current medical knowledge from the best available objective evidence and must be based on an individualized assessment. 28 C.F.R. 36.208.

It is very hard to say how this case is going to work out. On the one hand, you have to be sympathetic to the school’s concerns. For example, the school would be prohibited by HIV confidentiality laws from disclosing the teenager’s disability to others. On the other hand, in the United States, there are people with HIV who don’t even know they have it and the school is probably not screening all of its students for HIV. Also, a person with HIV even prior to the ADAAA, and certainly now, is a person with a disability. Finally, what is very curious about the facts described in the link above is the allegations that an individualized assessment was not made. While Chevron was an employment case, there is no reason to believe that even in the title III context an individualized assessment would not be required, certainly the Department of Justice, no doubt basing its view on the Supreme Court decisions mentioned above, believes so.

Therefore, what can we expect going forward. It wouldn’t be surprising if an individualized assessment was ordered in light of the Supreme Court decisions and the Department of Justice regulations. Even so, once that assessment is ordered, assuming it is, the party could well be in the same exact place that they are now with the plaintiff alleging discrimination and the school alleging direct threat that cannot be mitigated with reasonable modifications of policies, practices, or procedures of the school. This case bears closely following in the future.