Carriers of the aids virus and people with the “full blown” disease who do not pose a threat to others cannot be discriminated against in schools receiving federal aid, the Justice Department concludes in a new advisory opinion.
The opinion, which was sought by the White House and released here Oct. 6, marks a major shift in the Reagan Administration’s stance on the legal rights of victims of acquired immune deficiency syndrome and other contagious diseases.
In a brief filed with the U.S. Supreme Court two years ago in School Board of Nassau County v. Arline, a case involving a schoolteacher with tuberculosis, the department argued that “discrimination on the basis of contagiousness is not handicap discrimination within the meaning” of Section 504 of the Rehabilitation Act of 1973. That law prohibits schools and other entities that accept federal funds from discriminating against “otherwise qualified” handicapped persons.
In its brief, the department also contended that the teacher was not protected by the law because “the contagious nature of her tuberculosis rendered her unqualified to continue to teach.”
In a landmark ruling, the Court rejected those arguments, holding that people impaired by contagious diseases such as aids were covered under the law. The Court, however, declined to rule on whether the law protected “asymptomatic” carriers of infectious diseases, such as people with aids-related complex.
In its advisory opinion, the department said that both categories of aids sufferers are covered under the law.
In an accompanying prepared statement, Attorney General Richard Thornburgh said the change in policy was prompted by the Court’s ruling in the Arline case, recent action by the Congress, and the medical views of Surgeon General C. Everett Koop.
“In short, so long as [aids]-infected individuals do not on a case-by-case basis pose ... health and safety dangers or performance problems, they should be treated in the federal workforce and in federally conducted or financed programs and activities like everyone else,” the opinion states.
Mr. Thornburgh noted, however, that the opinion concluded that “if the infection is a direct threat to the health and safety of others or renders the individual unable to perform the duties of the job, the employer is not required to retain or hire that person.” Bus drivers might fit into that category, the opinion said.
The Attorney General suggested that new laws may have to be passed to ensure that “these most unfortunate victims” are “adequately and appropriately serve[d].”
“Those concerns will be discussed with other members of the Administration and Congress who are considering this question.” he said.
