Milton Hershey School Stands Behind Rejection of Student with HIV

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Published: Saturday, December 03, 2011, 12:01 AM

By NICK MALAWSKEY, The Patriot-News

The Milton Hershey School is standing behind a decision to refuse admission to a 13-year-old because he has HIV, the virus that causes AIDS, on the grounds that admitting the teen would pose a direct threat to the school’s 1,800 other students. The stance, which is the subject of a federal civil lawsuit filed Wednesday by the AIDS Law Project in Philadelphia, quickly drew national attention to the private residential school in Derry Township as both sides prepared for a court fight. Specifically, school officials say that while it is not condoned, there is no way to stop their students from having sex with each other. And because students do have sex, admitting a child with HIV would constitute a “direct threat” to other students.

CHRIS KNIGHT, The Patriot-News, 2011

Spartan Commons on the campus of the Milton Hershey School in Derry Township

Under the Americans with Disabilities Act, the school could be allowed to reject the student’s admission on that basis. However HIV and AIDS attorneys reject that argument, pointing to court decisions regarding other institutional settings, like foster care or youth detention facilities — where the possibility of sexual contact also exists — that have determined that merely carrying HIV does not make a person a direct threat to others. “I think case law all points to a direction that this is not a ‘direct threat,’ ” said Scott Schoettes of Lambda Legal, a national civil rights organization.

The school’s attorney, Robert Duston, a partner in the Washington, D.C., office of Saul Ewing, however said that while courts have looked at the direct threat standard to HIV and have discussed sexual conduct in other settings, such as a prison or in foster care, they have not addressed it as it applies to a residential child care facility. “We believe that this is a case of first impression and presents a novel issue on how the ADA applies in this unique setting,” he said, later adding that neither he nor the school are “aware of any court that has addressed the risks of consensual sexual activity between minors in a residential elementary and secondary school setting such as the Milton Hershey School.”

“I want to be very clear about this. We made this decision because we believed it’s the right one,” said Connie McNamara, school spokeswoman. “It’s a difficult decision.”

School officials said they decided to reject the student’s application after reviewing his case on an individual basis, but it is a decision they would make again. “If a student comes to us with an active, chronic communicable disease that we believe under the ADA laws rises to the level that it is a direct threat to the health and safety of the students — if that disease rises to that level, then we will not admit that student,” McNamara said. HIV/AIDS attorneys disagree with that stance.

Bill McColl of AIDS United in Washington, D.C., said he found the situation quite perplexing. “I think it’s quite unusual, actually,” he said, after reviewing the school’s legal documents. “I have to admit, I have never heard of this situation before.” But, he added, that doesn’t mean he believes the school’s arguments hold water. “Most people in the field believe this question has been asked and answered,” he said. Still, cases of this nature do occasionally arise, he said. Last year, the U.S. Department of Justice fined a Puerto Rican cosmetology school that denied admission to a woman with HIV $5,000. The justice department also forced the school to make an offer of enrollment to the complainant and cease requesting applicants’ HIV/AIDS status.

McColl said most cases are driven by a basic misunderstanding of the virus. Transmission is rare. ... It’s not like you ‘just get’ HIV,” he said, adding that even in the highest-transmission risk scenario, there is still only a 1-in-50 chance someone will be infected with HIV. Modern drug therapies are showing evidence of allowing people with HIV to have sex with noninfected individuals without transmitting the virus.

“I suspect this is a combination of fear of a lawsuit and not knowing the facts on HIV,” he said. “It’s a fascinating case ... that I suppose goes to how comfortable we are living with the disease.”

For others, the case doesn’t hold fascination as much as it prods them toward anger.

Phil Goropoulos, president of Alder Health Services in Harrisburg, described the school’s decision as “insane, illegal and inappropriate.” “Discrimination happens all the time ... but usually it’s subtle,” he said. “You would think 31 years later we would be beyond this.” Goropoulos said one of his biggest concerns was the message being sent by the school to the community, which could discourage people from getting tested for HIV/AIDS for fear of discrimination or other consequences. “That’s not what they’re trying to do, but it’s a consequence of their actions,” he said.