Three kids from Arkansas have been excluded from school until they take HIV tests, a move that rights groups are calling blatantly illegal.
News of this case emerged last week after the Disability Rights Center of Arkansas, Inc. (DRC) issued a statement claiming that officials at Pea Ridge Public School District have excluded three siblings from school, two of whom have disabilities, until their foster parents have the children tested for HIV and can produce test results that say the children are HIV negative.
The children reportedly have varying levels of involvement in school life, with one of the siblings only being in school for two hours a day under the care of special service providers who can manage his needs.
The DRC claims this case came about after the school district conducted a thorough review of its records over the summer and found what is termed an “evaluation” of one of the boys. That form indicated that they siblings’ birth mother and one of the siblings could be HIV positive, but it was not clear which child that might be.
The DRC goes on to claim that a meeting was called on September 9, 2013, whereby the district administration decided that all three children could not be allowed to attend school until the district was provided with the aforementioned test results.
The kids’ foster parents reportedly sent the children to school the next day anyway. The children were isolated until their foster parents could come and pick them up.
In making this decision, the school district reportedly cited, at least in part, section 4.34 of the Arkansas Model Policy, the most recent version being one issued in January 2013. This a section relating to Communicable Diseases and Parasites. It states in part:
Students with communicable diseases or with human host parasites that are transmittable in a school environment shall demonstrate respect for other students by not attending school while they are capable of transmitting their condition to others. Students whom the school nurse determines are unwell or unfit for school attendance or who are believed to have a communicable disease or condition will be required to be picked up by their parent or guardian. Specific examples include, but are not limited to: chicken pox, measles, scabies, conjunctivitis (Pink Eye), impetigo/MRSA (Methicillin-resistant Staphylococcus aureus), streptococcal and staphylococcal infections, ringworm, mononucleosis, Hepatitis A, B, or C, mumps, vomiting, diarrhea, and fever (100.4 F when taken orally).
In some instances, a letter from a health care provider may be required prior to the student being readmitted to the school.
To help control the possible spread of communicable diseases, school personnel shall follow the District’s exposure control plan when dealing with any bloodborne, foodborne, and airborne pathogens exposures. Standard precautions shall be followed relating to the handling, disposal, and cleanup of blood and other potentially infectious materials such as all body fluids, secretions and excretions (except sweat).
At no point in 4.34 is there mention of HIV.
It has been firmly established under federal law, and for the most part routinely upheld by the Supreme Court of the United States, that it is illegal to deny people public services and opportunities on grounds of HIV status.
In particular, Pennsylvania recently saw a case where it was affirmed it is illegal to deny a child a place in school on grounds of their HIV status as HIV is distinct in nature from other diseases and therefore should not be viewed as invoking communicable disease isolation provisions. It is also illegal to require HIV disclosure in most areas of everyday life outside of the realm of sexual relationships.
“The fact that the foster families have to provide documentation that the children are HIV negative before entering the school is unlawful and immoral,” the DRC said in a statement. “It stigmatizes individuals with disabilities — or their ‘perceived’ disabilities, as there is no indication these individuals have HIV. There is only an unlawful fear that they do.”
The school at first declined to comment on the matter but did indicate it sought legal advice before issuing the notice.
In the wake of a slew of criticism and probably having detected the pungent aroma of lawsuit talk, the district has now decided to engage on the matter and seemingly confirmed that they did take this action as reported, but they claim to have certain reasons for doing so:
“The Pea Ridge School District is dedicated to providing a safe environment for our students, teachers and staff.
“As reported in the media, the district has recently required some students to provide test results regarding their HIV status in order to formulate a safe and appropriate education plan for those children. This rare requirement is due to certain actions and behaviors that place students and staff at risk. The district respects the privacy and confidentiality of all students. It is very unfortunate that information regarding this situation is being released by outside organizations.
“Our goal is to provide the best education for every student, including those in questions, in a responsible, respectful and confidential manner.”
While we note that the “rare requirement” seems to have been precipitated by some “actions and behaviors that place students and staff at risk,” and also the swipe at The Disability Rights Center Arkansas, the administration seems to have missed the point here.
Even if the school felt justified in asking for knowledge of a child’s HIV status, and depending on the facts of this particular case — for instance if the child’s disabilities include behavioral challenges that mean they frequently engage in conduct such as self harm where school staff may have to take particular precautions — this may have been a reasonable request but never a lawful requirement, it was and still is illegal to exclude the children from school on this basis.
As touched on above, it appears that a lawsuit in this case is now sadly inevitable unless there is a sudden and drastic climb-down by the school district’s administration.
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