Déjà vu All Over Again, and Again and Again…

By Catherine Hanssens

Déjà vu All Over Again, and Again and Again…

This may not be news to many, but being a lawyer doesn’t necessarily make you smart about the law, let alone about HIV.

Just last month, the Disability Rights Section of the U.S. Department of Justice’s Civil Rights Division informed the Pea Ridge (Arkansas) School District that it violated Title II of the Americans with Disabilities Act by excluding three students (who happened to be in foster care) until they submitted to HIV testing and demonstrated that they are HIV negative. The school district’s attorney had supported the testing after a memo referencing the HIV status of one of the children’s parents came to light.

Rebecca Bond, Chief of the Disability Rights Section, said in a letter to Pea Ridge School District, “A student’s HIV status, actual or perceived, is not a permissible basis for the exclusion of a student from a public school setting.” The students were allowed to return to school several days later after producing negative HIV test results. The school district explained to the DOJ that their attorney, David Matthews, had stated during a school board meeting that he feared that staff members and other students could be exposed to HIV, which justified requiring the students to be tested. (It seems lots of folks want to play doctor without a degree! A little research on the law, and perhaps even a visit to the CDC’s information on HIV, would have been a better idea.)

In any event, Pea Ridge’s explanation did not satisfy the Department of Justice, which directed the school district to revisit their policies and to:

  • Revise Policy 4.34 (“Communicable Diseases and Parasites”) to make clear HIV isn’t considered to be a condition requiring a student’s exclusion from school under that policy.
  • Adopt and implement a written non-discrimination policy (“ADA/Non-Discrimination Policy”) that documents the requirements of Title II and its implementing regulation.
  • Train and educate all employees, contractors and others providing services to district students on the ADA/Non-Discrimination Policy.
  • Designate an employee to coordinate all of the district’s efforts to comply with and carry out the district’s responsibilities under the ADA.
  • Pay compensatory damages to aggrieved persons for injuries caused by the district’s failure to comply with Title II of the ADA.

Clearly we still need a well-staffed and hard-working Department of Justice and Disabilities Rights Section.