(Please note, I do not have the resourses for this article. It is something I came across many years ago. I do get a lot of students writing papers on this subject looking for the resource, and I do apologize for not having it available. I do refer students writing about Discrimination in the public schools in the early stages of the epidemic to research the case of Ryan White. )
In the early 1980's, a new and lethal disease began to take the United States by storm. Doctors did not know anything about the nature of the illness or how it was spread, however it quickly became obvious that the disease posed a clear threat to the American society. As an alarming number of people in the U.S.A. were ailed and killed by the affliction, a wave of panic swept across the nation, and the entire world took notice. After years of research and observation, the disease was recognized as a virus that was carried by blood, and its primary route of transmission was sexual contact. Today this epidemic is known to be caused by the human immunodeficiency virus (HIV), the virus that causes AIDS, the acquired immunodeficiency virus.
People's fear of this debilitating disease has caused them to make irrational judgments and uneducated choices. "The AIDS epidemic has spawned complex issues that arise when a society's cultural and moral values are challenged by a new, powerful, and highly lethal biological force."1 One such issue is AIDS discrimination. People who are HIV positive are discriminated against in the labor force, in hospitals, and in many public places. An area of deep concern is the discrimination against school aged children who have the right to an education, but have been deprived of that right because they have HIV. AIDS discrimination against children who attend school is unethical, immoral, and above all, it is illegal. Discriminating against any child who has AIDS is a violation of that child's civil rights guaranteed to him in the United States Constitution. When HIV infected children are discriminated against, it is the responsibility of state governments to enforce their civil rights, and to make sure that such discrimination does not occur.
The enforcement of a child's federal civil rights are carried out by the states. States reserve certain rights, and a major right that they have reserved is the power to enact policies that interpret federal law. For example, "the right to attend school can be overridden if there is evidence that the exercise of those rights would materially threaten the health and safety of the school community."3 However, medical evidence has supported the fact that HIV is not spread through ordinary, casual contact of school children.4 Thus, any attempt by a school district to enforce a policy that discriminates children with AIDS is an unlawful violation of that child's civil rights. In 1986, most states decided that an HIV infected child would be permitted to attend school unless he was no longer able to do so because of deteriorated health. The majority of states decided then that AIDS was more of a social issue than a medical issue.5 Instances of AIDS discrimination that followed supported this early conclusion
Fears and Reactions
One reason that AIDS became a social issue is that many parents are ignorant of the facts pertaining to AIDS. Even when many of these individuals are informed about how the virus is spread, they do not believe what they have been told. Often, uniformed persons make blind, unguided decisions that amplify problems of the AIDS crisis. However, it is not only the uneducated individuals who discriminate against HIV positive children. There are many members of society who are both educated about AIDS and understand the principles involved with the disease yet nonetheless panic when either they or their children come in contact with HIV-infected individuals. These people become overwhelmed by a sense of fear and panic when they are near people with HIV. Despite the fact that they are aware that HIV-infected classmates or teachers pose no threat to their children, they are influenced subconsciously by premonitions of the worst possible scenarios.
The widespread fear of AIDS has led many adults to take extreme measures in an effort to prevent HIV positive children from attending school. One such instance of protest came in a Chicago public school area. Many parents in the Pulaski Academy school district received anonymous fliers regarding a local child with the HIV virus. The flier was a hand-written Xeroxed notice that started by saying, "I'd Rather Be Safe Than Sorry!!" and goes on to say that, "I am taking my children out of this school now," and urged other parents to, "take action, and do something."6 This example of discrimination that took place at the Pulaski Academy was created by uneducated adults outside of the school system. However, the root of the bias towards HIV positive youngsters is not always planted outside of the school but rather within the administration itself.
Administrators at the Moody Church in downtown Chicago "banned a five-year-old boy infected with the AIDS virus from attending its Bible classes." The news reports stated that church officials were afraid of "unanswered questions about AIDS and the propensity its pre-school children have for putting toys in their mouths."7 A reverend decided that the church needed time to consider its options before it admitted the child into its Sunday school classes. However, once news of the church's reluctance to admit the boy hit the headlines, church officials became more than receptive to the idea of reenrolling the boy. At the time of the incident, AIDS officials believed that "had this episode occurred five years ago or so, we would have been less surprised at the church's reluctance. We know more about AIDS now and how sometimes the fear of AIDS can be as much of a problem as the disease itself."8 The irony of this story is that the Moody Church is a pro-life church. "Its leaders probably would have rallied to save their unnamed AIDS-infected child when he was still an unborn fetus. Yet they hesitate to embrace him fully now that he is a born child."9
The attitude of many school boards, such as the two mentioned above, is that getting rid of a problem is better than dealing with it. When this attitude leads to a child being discriminated against, on the basis of AIDS, the state courts become involved. Most of the time, parents file suit against the school board or the school administration in order to get their child back in school. Usually, such suits are not tried in federal courts. Disputes between parents and a school board as well as other cases dealing with AIDS discrimination in schools are contested in state courts which enforce federal policies and civil rights on a localized scale.10
Resolutions
In the California court case of District 27 Community School Board v. Board of Education in 1986, the court ruled that, "Firstly, the exclusion of children from school was detrimental to their psychological, social, and intellectual well being. Secondly, AIDS-infected children were able to function adequately in school without risking damage to themselves. Finally, the administrators at the school had ignored a basic medical fact: AIDS cannot be transmitted by casual contact, and therefore there was minimal or no societal risk of transmitting the disease to others."11 The court also ruled that several constitutional rights had been violated.
The state of California decided that when a child is prevented from attending school solely because that child is HIV positive, the school is blatantly breaking the laws provided for the people by the Constitution of the United States of America. The court cited Amendment fourteen which states that, "No... State... shall...deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."12 The outcome of the State Court of California's decision back in 1986 has encouraged parents, students, and administrators to search for new policies in an effort to deal with the AIDS pandemic.
Outside of California, there have been many cases heard in state courts dealing with HIV discrimination. The basis on which most of these cases have been examined is through Section 504 of the Rehabilitation Act of 1973 which reads, "No otherwise qualified individual with handicaps...shall solely by reason of his handicap be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."13 State courts use this policy, established by the U.S. Supreme Court, to protect the rights of HIV infected children.
AIDS victims were declared "handicapped" in the case of the School Board of Nassau County (Florida) v. Arline, tried in the U.S. Supreme Court. The school board of Nassau County argued that HIV infected individuals could not be considered handicapped. However, in 1974, Congress ruled that a person could be considered handicapped if he was falsely perceived as being so.14 Based on this, the Supreme Court ruled in favor of Arline (HIV infected children) stating that if discrimination based on any physical impairment were permitted, section 504 would be without purpose. The Supreme Court explained further that section 504 exists to stop discrimination of HIV infected individuals based on the prejudices of ignorant human beings.15
In 1988, a report from the Presidential Commission stated, "Persons with HIV infection must be clearly and definitively guaranteed their civil rights and be protected against discrimination just as persons with other disabilities are."16 The 101st Congress enacted the Americans with Disabilities Act in 1990. A portion of this law prohibits anyone with a disability (including HIV infection) from being discriminated against by any service provided by state and local governments including public school.17
Establishing Policy
In 1988, the federal government enacted laws that clearly, firmly and officially distinguished what being handicapped entailed. "Under the civil rights statute, a 'handicap' can fall under one of three categories: actual handicap; a history of handicap or, the most relevant category when dealing with AIDS, perceived handicap (if the person is seen by others as impaired)."24 Handicap-based discrimination in any public facility, such as schools, is strictly prohibited by federal law. The Civil Rights Restoration Act has provisions that help to enforce the law which states that, "for any part of a [state] institution to receive Federal funding, the entire institution must follow Federal regulations."25 Even institutions that are privately owned must follow the federal laws that forbid discrimination against all handicapped human beings, including HIV positive individuals. American civil rights laws against discrimination are provided so that all Americans, both adults and children, are treated as equals.
States can not survive without federal funding. Thus, states are more than willing to comply with federal standards on what is considered handicapped.26 While members of any given state Supreme Court may disagree with the rulings of the U.S. Supreme Court, the potential to lose federal funding through non-compliance is unthinkable. For this reason, states have created laws that clarify and protect the rights of AIDS victims.
Because of state and federal laws, many school boards have been forced to make concerted efforts to improve the manner in which they handle the HIV crisis. The Pulaski Academy in Chicago is utilizing education as a means of attacking the problem. The school is now providing health and AIDS education courses to its students. Pulaski Academy is also offering programs to interested parents about how to talk to their kids about sex and AIDS.27 Aside from the Pulaski Academy that has installed programs because it has experienced the AIDS dilemma first hand, other institutions are creating policies to deal with HIV before they are struck by a problem.
The Rocklin Unified School District in California adopted a policy stating that "HIV-infected students and employees cannot be kept out of school."28 Although schools in the district have never knowingly enrolled an HIV infected student, they chose to incorporate the policy, which is not required by law. Superintendent John Anderson stated, "If you don't have a policy in place before there's a need, then you don't know what to do when it occurs."29 The position of the school district was that it was best to be prepared for a possible AIDS situation beforehand so that if the problem ever were to arise, it could be dealt with in an ethical, efficient manner. People who live in areas that have not yet implemented policies are concerned about what may happen if an HIV-related situation were to arise.
Individuals across the nation have voiced their concerns about the gray areas that surround AIDS-related policies. Students at Northwestern University have requested that the administration tighten its policies that prohibit discrimination against HIV positive students and faculty. The students felt that while schools in the Big Ten and the Ivy League had solid policies that prevent AIDS discrimination, the policies at Northwestern were not up to par.30 The opinion of society has turned into a feeling that it is necessary to create policies that deal with the AIDS crisis to ensure that the civil rights of every individual are preserved.