HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/ATASCADE.ASC

Text File | 1993-01-14 | 27KB | 614 lines

/* This case was reported in 662 F.Supp 376 (C.D.Cal. 1987) */



Robin THOMAS and Judy Thomas individually as the parents of Ryan
Thomas, and Guardians, Plaintiffs,

v.

ATASCADERO UNIFIED SCHOOL DISTRICT, and Anthony Avina, Kenneth
Beck, Ray King, Carl Brown, Leslie Haynes, Emile LaSalle, Susan
Molle and Jean Thiebaud, in their official capacities,
Defendants.



United States District Court, C.D. California.

Dec. 31, 1986.

Stipulation and Amended Findings

Feb. 19, 1987

Judgment Granting Permanent Injunction

Feb. 20, 1987.

Publication Ordered June 19, 1987.



ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

STOTLER, District Judge.

Plaintiffs' Motion for Preliminary Injunction came on for hearing
on November 17 1986. Upon the consideration of the arguments and
evidence urged in support of, and in opposition to, this Motion,
and of the whole record herein, and based upon the Findings of
Fact and conclusions of law made herewith:

IT IS HEREBY ORDERED that pending trial of this action, each of
the Defendants, his or her successor(s) in office, officers,
agents, servants, employees, attorneys, and all other persons
acting in concert or participating with them, are prohibited and
enjoined from excluding Plaintiffs' son, Ryan Thomas, from
attending the kindergarten class which he attended from September
3 to 8, 1986, in the Atascadero Unified School District, unless
such exclusion is consistent with 29 U.S.C. Section 794 and 45
C.F.R. Section 88.4(b) and occurs in strict compliance with Cal.
Education Code Section 48218 and due process as required by the
United States and California Constitutions. Based on the evidence
presented to the Court, Defendants may not exclude or prevent
Ryan Thomas from attending his kindergarten class on the ground
that he poses a risk of transmission of the AIDS virus to his
classmates or teachers.





STIPULATION REGARDING

(1) AMENDMENT OF PARTIES

(2) SUPPLEMENT TO FINDINGS OF FACT AND CONCLUSIONS OF LAW,

(3) SUPPLEMENT TO ORDER GRANTING PRELIMINARY INJUNCTION, AND

(4) JUDGMENT GRANTING PERMANENT INJUNCTION

The parties, through their respective counsel, stipulate as
follows:

1.   Defendants Anthony Avina, Kenneth Beck, Ray  King,  Carl
Brown,  Leslie Haynes, Emile LaSalle, Susan Molle and Jean
Thiebaud shall be dismissed from this action, without prejudice.
The Board of Trustees, Atascadero Unified School District, shall
be added as a defendant.  Defendant Board of Trustees, Atascadero
Unified School District shall be deemed to have been timely
served, to have appeared, to have answered the complaint on file
in this action, and to be subject to the jurisdiction of the
court.

2.   Defendants request that the Court supplement the Findings of
Fact and Conclusions of Law signed on December 29, 1986, as
indicated below. Defendants submit that the Findings should
reflect the fact that their actions were based upon guidelines
and recommendations concerning the school placement of children
infected with the AIDS virus.  Without such Findings, the record
suggests that the defendants had no rationale for their deci
sions.  Plaintiffs do not object to defendants' making this
request; however, they do not join in the request because they
believe that the requested additional Findings are not necessary
to support the Court's decision. The parties agree to submit this
matter to the Court for determination.

Defendants'  requested  supplementary findings are as follows:

"VI. THE  DISTRICT'S  RELIANCE ON GUIDELINES REGARDING SCHOOL
PLACEMENT  OF  STUDENTS  WITH AIDS.

"24.  In August of 1985, the Centers for Disease Control of the
United States Government (CDC) published information and
recommendations concerning the education of children infected
with the AIDS virus. Among the CDC's recommendations are the
following:

"'1.  Decisions regarding the type of educational and care
setting for HTLV-III/LAV-infected  children  should  be based on
the behavior, neurologic development, and physical condition of
the child and the expected type of interaction with others in
that setting. These decisions are best made using the team ap
proach including the child's physician, public health personnel,
the child's parent or guardian, and personnel associated with the
proposed care or educational setting. In each case, risks and
benefits to both the infected child and to others in the setting
should be weighed.

"'3.  For the infected preschool-aged child and for some
neurologically handicapped children who lack control of their
body secretions or who display behavior, such as biting, and
those children who have uncoverable, oozing lesions, a more
restricted environment is advisable until more is known about
transmission in these settings.  Children infected with HTLV-
III/LAV should be cared for and educated in settings that
minimize exposure of other children to blood or body fluids.'

"Substantially similar guidelines and recommendations were issued
by the American Academy of Pediatrics (AAP) in March of 1986 and
the California State Department of Education (SDE) in May of
1986.

"25.  The Placement Committee took the recommendations of the CDC
into account in its determinations and recommendations regarding
Ryan Thomas following the biting incident on September 5, 1986.

"26.  Aside from its citation to the recommendations of the CDC,
AAP, and SDE, the School District has presented no medical
evidence to prove that the AIDS virus can be transmitted by human
bites.  The information and recommendations published by the CDC,
AAP, and SDE cite no such medical evidence and do not, of
themselves, prove that transmission by biting is possible."

3.   The Order Granting Motion for Preliminary Injunction signed
by the Court on December 29, 1986, may, subject to the Court's
approval, be amended to insert on page 2 at line 9 after the word
"Constitutions." the following sentence: "Nothing in this order
shall prohibit the defendants from imposing suspension or
expulsion as a means of discipline strictly in accordance with
California Education Code Sections 48900 and following."

4.   The parties further stipulate that no additional evidence
need be presented as to the issues herein considered and that
judgment may be entered in this action in favor of plaintiffs and
against defendants, (1) granting a permanent injunction in the
form of the preliminary injunction previously ordered on December
29, 1986, (2) awarding plaintiffs costs in the amount of
$2,387.50, and (3) awarding plaintiffs attorneys' fees in the
amount of $40,000.00.

In stipulating to entry of judgment, the parties recognize that
defendants claim and reserve the right to move under Federal Rule
of Civil Procedure 60(b), or any other applicable provision, for
relief from the final judgment in the event that the United
States Supreme Court, in the case of Arline v. School Board of
Nassau County, 772 F.2d 759 (11th Cir.1985), (which has been
argued and submitted to that Court), so interprets Section 504 of
the Federal Rehabilitation Act of 1973 as to call into question
this Court's Conclusions of Law regarding Ryan Thomas' status and
defendants' obligations under that statute. The parties further
recognize that defendants claim and reserve the right to request,
as part of such a motion, that attorneys' fees and costs paid in
accordance with the judgment granting permanent injunction be
ordered repaid. The parties further recognize that plaintiffs
claim and reserve the right to oppose any such motion for relief
from final judgment.



ORDER

The foregoing stipulation is hereby incorporated and made the
order of this Court.



AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING
JUDGMENT GRANTING PERMANENT INJUNCTION

FINDINGS OF FACT

I.

PARTIES

1.   Plaintiffs Robin and Judy Thomas are the parents and
guardians of Ryan Thomas and bring this action on his behalf.
Ryan Thomas is a five year old boy eligible under California law
to attend kindergarten in the Atascadero Unified School District

2.   Defendant Atascadero Unified School District ("School
District") is a public entity organized under the laws of the
State of California. The School District is a recipient of
"federal financial assistance" within the meaning of 29 U.S.C.
Section 794.

3.   Defendant Anthony Avina is Superintendent of the School
District.

4.   Defendants  Kenneth  Beck,  Ray King, Carl Brown, Leslie
Haynes, Emile La Salle, Susan Molle and Jean Thiebaud are the
current elected members of the Board of Education of the School
District ("School District"). The School Board is the governing
body of the School District.



II.

JURISDICTION AND VENUE

5.  This Court has jurisdiction over this action under 28 U.S.C.
Section 1331 in that plain-tiffs' claims arise under 29 U.S.C.
Section 794.

6.   Venue is proper in this court under 28 U.S.C. Section
1891(b).



III.

RYAN THOMAS' CONDITION

7.   Acquired Immune Deficiency Syndrome (AIDS) is the clinical
manifestation of a dysfunction of the human immune system caused
by a recently discovered virus. The AIDS virus has received
several names:  Human  T-Lymphotropic  Virus Type III (HTLV-III);
Lymphadenopathy Associated Virus (LAV); AIDS-Associated
Retrovirus (ARV); and, most recently, Human Immunodeficiency
Virus (HIV).

8.   To date, there is no vaccine against or cure for AIDS.  A
range of symptoms may result from infection with the AIDS virus
which have been classified by the Centers for Disease Control
("CDC") into four groups of symptoms: (I) early acute, though
transient, signs of the disease; (II) asymptomatic infection;
(III) persistent swollen lymph-nodes; and (IV) presence of
opportunistic disease and/or rare types of cancer, including one
known as Kaposi's Sarcoma.

9.   Individuals in all four of the CDC classifications suffer
from impairments to their physical systems.  Persons infected
with the AIDS virus suffer significant impairments of their major
life activities. People infected with the AIDS virus may have
difficulty caring for themselves, per. forming manual tasks,
walking, seeing, hearing, speaking, breathing, learning and
working, among other life functions. Even those who are
asymptomatic have abnormalities in their hemic and reproductive
systems making procreation and childbirth dangerous to themselves
and others.

10.  Ryan Thomas is infected with the AIDS virus.  He became
infected with the AIDS virus as an infant as the result of a
contaminated blood transfusion received at Oakland's Children's
Hospital where he was being treated for complications arising out
of his premature birth.  He suffers from significant impairment
of his major life activities.

11.  Ryan was diagnosed as being infected with the AIDS virus in
early 1985. During the first four years of his life, Ryan Thomas
had frequent pulmonary and middle ear problems as well as chronic
lymphadenopathy. These difficulties are attributable to his
infection with the AIDS virus.

12.  For over a year, since the diagnosis that he was infected
with the AIDS virus and since his treatment for this condition
began Ryan's medical condition has improved.  He has had no
recent ear problems.  He continues to receive regular treatments
from his pediatrician and from AIDS specialists in Los Angeles to
bolster his immune system and prevent other symptoms of AIDS from
developing.  At this point it is unclear what course his medical
condition will take.  Both of Ryan's treating physicians, Dr.
Fields and Dr. Church, have written to the School District
indicating that there is no medical reason why Ryan cannot attend
regular kindergarten classes.



IV.

RISK OF TRANSMISSION OF THE AIDS VIRUS

13.  The best available medical evidence shows that the AIDS
virus is not spread in the air by infected droplets as are the
common cold, influenza and tuberculosis. The virus is fragile and
is killed by most household disinfectants.  The virus is
transmitted from one person to another only by infected blood,
semen or vaginal fluids (and, possibly, mother's milk).
Transmission by either semen or blood accounts for virtually all
reported cases.

14.  There are no reported cases of the transmission of the AIDS
virus in a school setting. The CDC has stated that "[n]one of the
identified cases of HTLV-III/LAV infection in the United States
are known to have been transmitted in the school, day-care, or
fostercare setting or through casual person-to-person contact."

15.  The overwhelming weight of medical evidence is that the AIDS
virus is not transmitted by human bites, even bites that break
the skin. Based upon the abundant medical and scientific evidence
before the Court, Ryan poses no risk of harm to his classmates
and teachers. Any theoretical risk of transmission of the AIDS
virus Ryan in connection with his attendance regular kindergarten
class is so remote that it cannot form the basis for any exclu
sionary action by the School District.



V.

RYAN THOMAS' EXCLUSION FROM CLASS

16.  In May, 1986, the School District adopted a policy
concerning the admission of students infected with "communicable
diseases" including the "HTLV-III (AIDS)" virus.  Pursuant to
this policy a Placement Committee was created, including health
professionals, parents, school officials and San Luis Obispo
Couty's Public Health Officer, to advise the School Board on the
placement of children covered by the Policy.

17.  On August 28, 1986, the Placement Committee met to make a
recommendation concerning Ryan's placement.  At this meeting  the
Committee  recommended Ryan's admission to kindergarten.  This
recommendation  was  accepted  by  the School Board on September
2, 1986.  No other kindergarten student had his place ment
considered in this manner. The standard procedure in the District
is for a child's parents to decide whether a child of
kindergarten age will attend regular kindergarten classes.

18.  Ryan attended kindergarten without incident from September 3
to 5, 1986. On September 8, 1986, Ryan was involved in an
incident in which another child and Ryan got into a skirmish and
Ryan bit the other child's pants leg. No skin was broken.

19.  Defendant Avina instructed Plaintiffs to keep Ryan at home
after the incident so that the Placement Committee could
reconsider its August 28th recommendation in light of this
incident and determine "whether or not Ryan's potential for again
biting another student poses any danger to the health of others
in the class." On September 12, 1986, the Placement Committee
recommended that Ryan be evaluated by a psychologist. This recom
mendation was accepted by the School Board.  No similar action
was taken concerning the other child involved in this incident.

20.  In late September, Dr. Marcus Shira, a psychologist employed
by the San Luis Obispo County Board of Education, conducted a
"psycho-educational study" of Ryan.  Dr. Shira prepared a report
dated September 30, 1986, in which he concluded that Ryan would
behave "aggressively" in a kindergarten setting because his level
of social and language skills and maturity was below those of his
classmates.  Dr. Shira could not predict what form such
"aggressive" behavior might take. Specifically, he did not
predict that Ryan would "bite again."

21.  Based upon Dr. Shira's study, on October 2, 1986, the
Placement Committee recommended that Ryan be kept out of class
and in "home tutoring" for the rest of the academic year.  The
County Public Health Officer, Dr. Rowland, abstained from this
decision. On October 6, 1986, the School Board voted to exclude
Ryan from his class until January, 1987, and to have Ryan
evaluated before the decision to exclude him would be
reconsidered.

22.  Ryan suffered injury because of his exclusion from his
kindergarten class after September 8, 1986, even though his
injuries were not as great as they would have been if he was an
older child.

23.  In taking the actions outlined above, the School District
acted cautiously and reasonably in attempting to balance all of
the interests involved and to address the fear of AIDS which
exists within the Atascadero community.



VI.

THE DISTRICT'S RELIANCE ON GUIDELINES REGARDING SCHOOL  PLACEMENT
OF  STUDENTS WITH AIDS

24.  In August of 1985, the Centers for Disease Control of the
United States Government (CDC) published information and
recommendations concerning the education of children infected
with the AIDS virus. Among the CDC's recommendations are the
following:

"'1.  Decisions regarding the type of educational and care
setting for HTLV-III/LAV-infected  children  should  be based on
the behavior, neurologic development, and physical condition of
the child and the expected type of interaction with others in
that setting. These decisions are best made using the team ap
proach including the child's physician, public health personnel,
the child's parent or guardian, and personnel associated with the
proposed care or educational setting. In each case, risks and
benefits to both the infected child and to others in the setting
should be weighed."'

"'3.  For the infected preschool-aged child and for some
neurologically handicapped children who lack control of their
body secretions or who display behavior, such as biting, and
those children who have uncoverable, oozing lesions, a more
restricted environment is advisable until more is known about
transmission in these settings.  Children infected with HTLV-
III/LAV should be cared for and educated in settings that
minimize exposure of other children to blood or body fluids.'"

Substantially similar guidelines and recommendations were issued
by the American Academy of Pediatrics (AAP) in March of 1986 and
the California State Department of Education (SDE) in May of
1986.

25. The Placement Committee took the recommendations of the CDC
into account in its determinations and recommendations regarding
Ryan Thomas following the biting incident on September 5, 1986.

26.  Aside from its citation to the recommendations of the CDC,
AAP, and SDE, the School District has presented no medical
evidence to prove that the AIDS virus can be transmitted by human
bites.  The information and recommendations published by the CDC,
AAP, and SDE cite no such medical evidence and do not, of
themselves, prove that transmission by biting is possible.



CONCLUSIONS OF LAW

1.   The Defendant School District is a recipient of federal
funds within the meaning of 29 U.S.C. Section 794, Section 504 of
the Federal Rehabilitation Act of 1978.

[1] 2.  Ryan Thomas is a "handicapped person" within the meaning
of Section 504 of the Rehabilitation Act of 1973.  See 45 C.F.R.
84.3(j)(2)(ii). District 27 School Board v. Board of Education,
130 Misc.2d 398, 502 N.Y.S.2d 825 (1986).

[2] 8.  Ryan  Thomas  is  "otherwise qualified" to attend a
regular kindergarten class within the meaning of  Section 504 of
the Rehabilitation Act of 1973.  Defendants have failed to meet
their burden of demonstrating that Ryan is not "otherwise
qualified" to attend kindergarten. New York  State Association
for Retarded Children v. Carey, 612 F.2d 644 (2d Cir.1979);
Pushkin v. Regents of University of Colorado, 658 F.2d 1372, 1387
(10th Cir.1981). There is no evidence that Ryan Thomas poses a
significant risk of harm to his kindergarten classmates or
teachers.

4.  Ryan Thomas has been subjected to different treatment from
the treatment received by other kindergarten students in the
District and excluded from his kindergarten class because of his
"handicap."

5.  Defendants have not complied with the requirements of 45
C.F.R. Section 88.4(b). In particular, Defendants have not
complied with the requirement that "[a] recipient shall place a
handicapped person in the regular educational environment created
by the recipient unless it is demonstrated by the recipient that
the education of the person in the regular environment with the
use of supplementary aids and services cannot be achieved
satisfactorily."

6.  Based on the foregoing, Plaintiffs are likely to succeed on
the merits.  Ryan Thomas has suffered irreparable injury b& cause
of his exclusion from class.  There are serious questions
presented by Plaintiff's Motion and the balance of hardships tips
in Plaintiffs favor. Plaintiffs are entitled to the issuance of a
preliminary injunction under the standards applied in this
Circuit. Los Angeles Memorial Coliseum Com'n v. Nat '1 Football
League, 634 F.2d 1197, 1200-01 (9th Cir.1980).  See also Martin
v. International Olympic Committee, 740 F.2d 670, 674-75 (9th
Cir. 1984); Lopez v. Heckler, 725 F.2d 1489, 1494 n. 2 (9th
Cir.1984).

7.  The Court does not reach the other claims made by Plaintiffs.



JUDGMENT GRANTING PERMANENT INJUNCTION

Based upon all of the evidence filed in connection with
Plaintiffs Motion for a Preliminary Injunction and upon the
stipulation regarding (1) amendment of parties; (2) supplement to
findings of fact and conclusions of law; (3) supplement to order
granting permanent injunction:

IT IS HEREBY ORDERED that each of the Defendants, his or her
successor(s) in office, officers, agents, servants, employees,
attorneys, and all other persons acting in concert or
participating with them, are prohibited and enjoined from
excluding Plaintiffs' son, Ryan Thomas, from attending the
kindergarten class which he attended from September 3 to 8, 1986,
in the Atascadero Unified School District, unless such exclusion
is consistent with 29 U.S.C. Section 794 and 45 C.F.R. Section
88.4(b) and occurs in strict compliance with Cal. Education Code
Section 48213 and due process as required by the United States
and California. Constitutions. Nothing in this Order shall
prohibit the defendants from imposing suspension or expulsion as
a means of discipline strictly in accordance with California
Education Code Sections 48900 and following. Eased on the
evidence presented to the Court, Defendants may not exclude or
prevent Ryan Thomas from attending his kindergarten class on the
ground that he poses a risk of transmission of the AIDS virus to
his classmates or teachers.

Plaintiffs are, awarded the amount of $40,000.00 in attorneys
fees and $2,387.50 in costs.



ORDER DIRECTING PUBLICATION OF

(1)  ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION;

(2)  STIPULATION REGARDING

   1)     AMENDMENT OF PARTIES,

   2)     SUPPLEMENT TO FINDINGS OF FACT AND CONCLUSIONS OF LAW,

   3) SUPPLEMENT TO ORDER GRANTING PRELIMINARY INJUNCTION, AND

   4)     JUDGMENT GRANTING PERMANENT INJUNCTION;

(3)  AMENDED  FINDINGS  OF  FACT AND CONCLUSIONS OF LAW REGARDING
JUDGMENT GRANTING PERMANENT INJUNCTION; AND

(4)  JUDGMENT GRANTING PERMANENT INJUNCTION

On December 29, 1986, the Court issued its Order Granting
Plaintiffs' Motion for Preliminary Injunction in this action and
the Findings of Fact and Conclusions of Law relevant thereto. The
Court enjoined all defendants from excluding plaintiffs' son from
attending his kindergarten class on the ground that he posed a
risk of transmission of the AIDS virus to his classmates or
teachers.  The Court declined to rule on numerous constitutional
and state-based claims, electing to address plaintiffs'
contention that their son was handicapped within the broad
definition furnished by federal statute.

Under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
Section 794 (1986), a handicapped person is one who has a
physical or mental impairment which substantially limits one or
more of his major life activities, as well as any person with a
record of, or who is regarded as having, such an impairment. The
terms "physical impairment" and "major life activities" are
further defined by regulations.  Under those regulations, a
physical impairment includes "any physic logical disorder or
condition, cosmetic disfigurement, or anatomical loss affecting
one or more of the following body systems: neurological;
musculoskeletal; special sense organs; respiratory, including
speech organs; cardiovascular; reproductive, digestive,
genitourinary; hemic and lymphatic; skin; and endocrine; ..." 45
C.F.R. Section 84.3(j)(2)(i)(A) (1985).

The minor child's impairments described in the factual findings
were attributable to his infection with the AIDS virus.  The
inevitable conclusion was that the Rehabilitation Act conferred
statutory protections on plaintiffs' son.

Subsequently, the parties submitted for the Court's consideration
a stipulation agreeing to 1) the entry of judgment in favor of
plaintiffs, granting a permanent injunction providing the same
relief and in the form of the preliminary injunction previously
ordered on December 29, 1986, and awarding plaintiffs costs and
attorneys' fees, 2) the supplementation of the Findings of Fact
and Conclusions of Law issued in conjunction with the Order
Granting Preliminary Injunction, and 3) the dismissal of the
individual defendants from this action without prejudice and the
addition of the Board of Trustees, Atascadero Unified School
District as a defendant. On February 19, 1987 the Court endorsed
this stipulation and filed Amended Findings of Fact and
Conclusions of Law Regarding Judgment Granting Permanent
Injunction. The Court  formally  entered  the  Judgment Granting
Permanent Injunction on February 20, 1987.

Concerned with the need for the litigants and their community at
large to return to as peaceful a status quo as possible, the
Court did not envision a published account of the case.  Because
of the repeated expression of public interest in the facts of
this case and this Court's interpretation of Section 504 of the
Federal Rehabilitation Act of 1973 as applied to those facts, the
Court hereby authorizes publication of pertinent portions of the
record. [footnote]  The following pleadings shall be published in
the order stated: (1) Order Granting Motion for Preliminary
Injunction; (2) Stipulation Regarding 1) Amendment of Parties, 2)
Supplement to Findings of Fact and Conclusions of Law, 3)
Supplement to Order Granting Preliminary Injunction, and 4)
Judgment Granting Permanent Injunction; (3)  Amended Findings of
Fact and Conclusions of Law Regarding Judgment Granting Permanent
Injunction;  and  (4)  Judgment Granting Permanent Injunction.



FOOTNOTE:

* For accuracy's sake, the Court notes that all references to 45
C.F.R. Section 88.4(b) should be replaced with 45 C.F.R. Section
84.34(a).