School employees who have been significantly impaired by infectious diseases are entitled to protection under the federal law barring discrimination against the handicapped, the U.S. Supreme Court ruled last week.
In a decision seen as having implications for sufferers of acquired immune deficiency syndrome, the Court ruled 7 to 2 that school boards cannot cite fear of contagion as a reason for dismissing employees whose diseases have progressed to a stage where one or more “major life activities’’ have been affected.
The Court, however, stopped short of extending the anti-discrimination law’s protections to persons who have tested positive for a disease such as AIDS but suffer no outward symptoms. It indicated that it would wait for another case to decide whether otherwise healthy carriers of contagious diseases can be considered handicapped solely on the basis of their contagiousness, and thus gain protection under Section 504 of the Rehabilitation Act of 1973.
The Justices’ decision in School Board of Nassau County, Fla. v. Arline (Case No. 85-1277) was hailed as a major victory, albeit a limited one, for homosexual-rights advocates and others concerned about discrimination against sufferers of AIDS. According to the Federal Centers for Disease Control, there have been a total of 31,036 confirmed cases of the incurable and inevitably fatal disease in the United States as of March 2. Of that group, 586 are children and teen-agers under age 20.
The case decided by the Court involves Gene H. Arline, a Jacksonville, Fla., elementary-school teacher who was fired in 1979 after school officials discovered that she had a chronic susceptibility to tuberculosis.
Ms. Arline contracted the disease in 1957, but it went into remission for more than 20 years. She suffered three relapses in 1977 and 1978 that were severe enough to require hospitalization, but there is no evidence that she caused any of her students to become ill.
After she unsuccessfully challenged her dismissal in state administrative hearings, Ms. Arline filed suit in federal district court, charging that the school board violated her rights as a handicapped person under Section 504.
The law bars discrimination solely on the basis of handicap against an “otherwise qualified individual’’ in federally funded programs. It defines a handicapped person as someone who actually suffers, or is regarded as suffering from, an impairment that limits a “major life activity,’' including learning and working.
Lower Court Rulings
A federal district judge ruled that although there was “no question’’ that Ms. Arline’s disease disabled her, she was not a handicapped person under the terms of Section 504. In addition, the judge held, even if the Congress intended to include contagious diseases within the ambit of the law, the risk of infecting schoolchildren precluded Ms. Arline from being “otherwise qualified’’ for the job of elementary-school teacher.
A federal appeals court overturned the lower court’s ruling in 1985. It noted that although Section 504 does not specify that infectious diseases are handicapping conditions, it also does not exclude them from such coverage.
To create an exemption for such diseases, the appeals panel said, would free federally funded employers “from any duty even to consider whether reasonable accommodations could be made for those with infectious diseases,’' and would be contrary to the Congress’s intent to protect the disabled against prejudice.
In arguments before the Court, the Nassau County school board said that tuberculosis could be considered a handicap, but only to the extent that it debilitates its victims. Ms. Arline’s firing was permissible, it continued, because it was based on board members’ reluctance to expose employees and students to the disease, not on the teacher’s diminished physical capabilities. The Reagan Administration adopted a similar position in a friend-of-the-court brief filed in the case.
The school board also argued that, even if tuberculosis were considered a handicap, Ms. Arline was not qualified to teach elementary grades because of the risk that she poses to students. It added that Section 504 does not require it to find her a different job within the school system.
Ms. Arline, meanwhile, argued that her disease was a handicap within the meaning of Section 504. In addition, she said that the board would be required under the law to offer her a teaching position at a higher grade level if medical experts decided that she posed too extreme a risk to elementary-school children.
Majority Opinion
Writing for the majority, Associate Justice William J. Brennan held that Ms. Arline’s history of hospitalization for the disease was “more than sufficient to establish’’ that she was a handicapped person under the law’s definition.
He rejected the school board’s position that this point was irrelevant because its underlying reason for dismissing Ms. Arline was her threat to the health of others and not her diminished physical capabilities.
“The contagious effects of a disease [cannot] be meaningfully distinguished from the disease’s physical effects,’' he wrote, noting that Ms. Arline’s contagiousness and impairment both resulted “from the same underlying condition, tuberculosis.’'
“It would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment,’' Justice Brennan wrote.
“Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness,’' he continued. Denying the law’s protections to a person whose disease makes him both impaired and contagious would render the person “vulnerable to discrimination on the basis of mythology--precisely the type of injury Congress sought to prevent.’'
Disease Carriers
In a footnote, Justice Brennan acknowledged that it is possible for persons to be carriers of diseases such as AIDS without suffering any apparent impairment.
“From this premise, the [Reagan Administration] concludes that discrimination solely on the basis of contagiousness is never discrimination on the basis of a handicap,’' the Justice wrote.
“The argument is misplaced in this case,’' he continued, “because the handicap here, tuberculosis, gave rise to both a physical impairment andto contagiousness. This case does not present, and we therefore do not reach, the questions whether a carrier of a contagious disease such as AIDS could be considered to have a physical impairment, or whether such a person could be considered, solely on the basis of contagiousness, a handicapped person as defined by [Section 504].’'
Justice Brennan said it would be up to the federal district judge to decide whether Ms. Arline’s condition disqualifies her for a teaching position. He noted that the judge should defer to “the reasonable medical judgments of public-health officials’’ in reaching that decision.
In the fall of 1985, the U.S. Public Health Service issued guidelines for such officials in reference to AIDS, noting that most students and teachers afflicted with the disease pose “no known risk’’ to other students and employees. (See Education Week, Sept. 11 and Nov. 20, 1985.)
Dissenting Opinion
Chief Justice William H. Rehnquist wrote a dissenting opinion that was joined by Associate Justice Antonin Scalia.
Justice Rehnquist wrote that prior decisions by the Court require the Congress to “unambiguously express’’ the conditions it imposes on recipients of federal funds. Because the Congress did not clearly state that infectious diseases were covered under the law, he said, its silence on the issue “compel[s] the conclusion that contagiousness is not a handicap’’ within the meaning of the law.
"[T]he Court points to nothing ... suggesting that Congress contemplated that a person with a condition posing a threat to the health of others may be considered handicapped under the act,’' he concluded.
