Friday, December 02, 2011

More on the Hershey School HIV Suit

See this from Businessweek, and this from DigitalJournal.

A couple of points. First of all, the school's direct threat defense is extremely weak under the governing law. The school seems to be saying that any 13-year-old with HIV is inherently risky in a boarding-school environment, because you never can tell whether a kid is going to do something irresponsible. But the law, as articulated by the Supreme Court in the Arline, Bragdon, and Echazabal cases, and as articulated by many lower federal courts, requires an individualized and objective analysis of the risk based on the best available professional evidence. The law does not permit the defendant to rely on what the Echazabal court called "untested and pretextual stereotypes."  There were actually a lot of kid-with-HIV-in-school cases under the Rehabilitation Act in the 1980s, at the height of the fear of AIDS, and they typically ruled in favor of the kids and prohibited school districts from excluding or segregating them.

Second, this statement by the school seems to me the height of arrogance:
School officials said they were preparing seek a declaratory judgment from the U.S. District Court for the Middle District of Pennsylvania on legal issues surrounding the case when the AIDS Law Project "took the adversarial action of filing a lawsuit."
So let me get this straight: You were preparing to file a lawsuit against the kid whom you admittedly discriminated against, but he got to court first, so he's the one being adversarial?

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