LESSONS LEARNED: THE PEA RIDGE SCHOOL DISTRICT'S DISCRIMINATION AGAINST STUDENTS WITH HIV/AIDS HAS REKINDLED DIFFICULT ISSUES.

• Author: Tupman, Nicole Oelrich

1. INTRODUCTION

   Imagine you are in elementary or middle school again. Try to recall the school environment, the bullying, and the physical and emotional changes that you experienced. Now imagine that you are also in foster care and, even though your foster family is kind and loving, they are not your forever family. Your classmates likely know about your family situation, just as the school and your teachers certainly know. Every day you must combat the negative stereotypes attached to the foster care system, and you may experience your own internal struggles because of your status as a foster child. Now, imagine you also need special education services for both learning and emotional disabilities. Your disabilities are so severe that you must be educated for part of the day--isolated from your peers without disabilities.

   With all of these factors weighing against you, school is already difficult. Then imagine that one day the school demands that you provide certification that you are HIV-negative. Only you and your two other siblings, who are also in foster care, are forced to provide this private information to the school. When your foster family rightly refuses to provide the information and attempts to bring you to school, the school administration bars you from attending class at your local public school.

   This true story did not occur in the 1980s during the height of the AIDS epidemic, at the peak of discrimination against people with HIV/AIDS. Instead, this incident occurred in 2013 when the Pea Ridge School District ("the District") in Arkansas forced three foster children to provide certification that they were HIV-negative before they were allowed to attend public school. The Pea Ridge School District's action eventually resulted in a settlement agreement with the Department of Justice ("DOJ"), where the District admitted that it violated the Americans with Disabilities Act ("ADA").

   While medicine has made many advances in treating people with HIV/AIDS since the AIDS epidemic began in the 1980s, recent statistics show that HIV/AIDS infections may be underreported, especially for adolescents. Schools have been sensitive to these reports and some, such as the Pea Ridge School District, have required students to provide private health information to show that they do not have HIV/AIDS. The District's requirement garnered public attention in 2013.

   The Pea Ridge School District used a district policy to single out three siblings and required that they provide highly sensitive health information to the school. The District's actions were arguably unconstitutional and admittedly illegal under the ADA, and possibly other federal laws such as the Health Insurance Portability and Accountability Act ("HIPAA"), and Section 504 of the Rehabilitation Act of 1973. The District's actions also raise general concerns about how schools should handle issues that involve students who may have HIV/AIDS.

   Section I of this article provides background on the situation school districts currently face. Section II examines the constitutional and statutory rights of public school students to keep their HIV/AIDS status private. Section III discusses the Pea Ridge School District incident in detail as a case study for privacy laws. The article then provides a short conclusion in Section IV that outlines some suggestions for schools and districts in educating students with HIV/AIDS.

2. THE PROBLEM CURRENTLY FACING SCHOOL DISTRICTS

   1. A BRIEF HISTORY OF HIV/AIDS AND DISCRIMINATION

      HIV/AIDS was first recognized in 1979 but was not classified as a separate disease until 1981. (1) In 1981, the United States Centers for Disease Control and Prevention ("CDC"), in its weekly Morbidity and Mortality Report, described the death of two homosexual men who died of Pneumocystis Carinii, a rare form of pneumonia which affects individuals with suppressed immune systems. (2) This routine Morbidity and Mortality Weekly Report marked the first official government reports of what became known as the AIDS epidemic. (3)

      HIV/AIDS is transmitted in three main ways: (1) sexual contact without adequate protection, such as a condom, with an infected person; (2) invasive exposure to contaminated blood, such as through a blood transfusion, organ transplant (rarely), or through intravenous drug use; and (3) through mother-child connection in pregnancy, childbirth, and breastfeeding. (4)

      Given the limited means through which HIV/AIDS is transmitted, the United States Surgeon General publicly stated that in the overwhelming majority of daily life situations, there is essentially no risk of transmission. (5) As examples, the Surgeon General explained that no risk of transmission exists when family members share food, razors, eating utensils, or even kiss one another. (6) Although the Surgeon General attempted to educate the public and dispel fear, the DOJ issued a memorandum stating that an employer could terminate an employee with HIV/AIDS as long as such termination was based on the employer's fear of contagion. (7) Thus, our government sanctioned discrimination against and fear of people with HIV/AIDS, which led private employers and governmental agencies to discriminate against people with HIV/AIDS. (8)

      Public fear about AIDS in the 1980s was so extreme that some polls showed 48% of Americans believed people with AIDS should be treated as Jews in Hitler's Germany and be forced to carry identification cards. (9) Further, 15% of Americans believed people with AIDS should be tattooed to indicate that they had been diagnosed with AIDS, and 51% of people favored banning people diagnosed with AIDS from engaging in sexual relationships. (10) Finally, 17% of the population believed that people living with AIDS should be treated as those with leprosy once were, by sending those individuals to an isolated island. (11)

      After AIDS emerged in our world, the public quickly labeled it as "one of the deadliest and most frightening communicable diseases" the world had ever known. (12) AIDS increased pre-existing discrimination and prejudice against certain groups, some of which the government approved. This resulted in an environment of hysteria where people failed to act rationally. (13) It is against this historical backdrop that the platform advancing to prohibit discrimination and raise public awareness about AIDS, including the risk that children with HIV/AIDS pose to others in the school environment, must be based.

   2. HIV/AIDS HAS RESURFACED AS A NATIONAL CONCERN, ESPECIALLY AMONG YOUTH

      After the initial hysteria over AIDS retreated and the medical community had an opportunity to study the disease, the public learned that the HIV/AIDS virus is not airborne like colds or the flu, nor is it carried by insects like malaria. (14) Instead, the virus is transmitted between people through blood or contaminated semen. (15)

      HIV/AIDS, however, continues to be a serious world health problem. Since the beginning of the AIDS epidemic, more than 35 million people have died from the disease. (16) Currently 25.6 million people are living with HIV/AIDS, including 1.1 million in the United States. (17) Moreover, the ratio of incidence of infection among youth is on the rise.

      1. Infections for Youth Are on the Rise

         In the beginning of the AIDS epidemic, adolescents were not recognized by the public as being "at risk" for contracting HIV/AIDS. (18) After the public realized the underreporting of HIV/AIDS infection rates among youths, concern for youth infected with HIV/AIDS increased and more and more youth were diagnosed with HIV/AIDS. (19) Currently, the HIV/AIDS infection rates for youth aged thirteen to twenty-four is on the rise; (20) one out of every four new infections is for youth in this age group. (21)

         Not only are youth at a high risk for contracting HIV/AIDS, but a 2008 study by the Center for Disease Control & Prevention ("CDC") and the Journal of the American Medical Association also found that the annual HIV infection rate in the United States is 40% higher than was reported. (22) Thus, more people, including youth, may be infected than the number currently reports.

         Youths contract HIV/AIDS in various ways. Over 85% of pediatric AIDS cases are attributed to perinatal transmission, with the majority of these transmissions involving intravenous drug use by the child's mother and/or her sexual partner. (23) In addition to perinatal transmission, youth, especially adolescents, are at risk for contracting HIV/AIDS as they begin to engage in sexual activity. (24) Youth ages thirteen to twenty-four are more likely to have an increase in HIV/AIDS infections for various factors, including the lack of reliable access to adequate protection, such as condoms. Additionally, youth are less likely to get tested because they have a lack of privacy in health care; in some states, a positive HIV test may be disclosed to the parents. (25) Even if youths do get tested, they are not as likely as adults to disclose their HIV/AIDS status for fear of the consequences of disclosure, such as bullying. Although medical science has made many breakthroughs in understanding HIV/AIDS and creating various effective treatment regimes, HIV/AIDS infection rates among youth continue to rise.

      2. Government Agencies Have Increased Their Prevention Efforts for Youths

         Public and government agencies, including the CDC, have responded to the data discussed above by calling for increased efforts to prevent HIV/AIDS and urge more testing of school-aged children:

         In light of these national data, the spread of HIV/AIDS remains a serious and potentially increasing, rather than diminishing, concern because so many school-aged individuals are infected with these communicable diseases. Accordingly, it is incumbent on educational leaders, in consultation with their attorneys and public health officials, to develop guidelines to stem, if not eliminate, the spread of HIV/AIDS in schools. (26) This current call to...