Equal opportunities: protecting the rights of AIDS-linked children in the classroom

• Published in: American journal of law & medicine Vol. 14; no. 4; pp. 377 - 430
• Main Author: MacFarlane, M A
• Format: Journal Article
• Language: English
• Published: United States American Society of Law, Medicine & Ethics 1989; American Society of Law and Medicine
• Subjects: Acquired Immunodeficiency Syndrome; Adolescent; AIDS (Disease) in children; AIDS/HIV; Child; Disease Outbreaks - prevention & control; Humans; Laws, regulations and rules; Patient Advocacy; Pediatric AIDS (Disease); Physically disabled children; Prejudice; Risk Factors; Schools - standards; Sick children; United States; United States
• ISSN: 0098-8588; 2375-835X
• DOI: 10.1017/S0098858800007668

Within the past few years a number of children have been excluded from attending public school because they are linked to AIDS. School boards have justified their decisions to exclude these children on the basis that protecting the public's health, safety and welfare outweighs the rights of these children. Most courts have rejected this justification and have held that either under the equal protection clause of the Constitution or section 504 of the Rehabilitation Act of 1973, children cannot be excluded from the classroom solely because they are linked to AIDS. This Note discusses both section 504 and equal protection analyses used by the courts. When analyzing a school board's decision to exclude an AIDS-linked child from the classroom, most courts have used a higher level of scrutiny and individualized inquiry in order to ensure that the rights of both the AIDS-linked child and his or her uninfected classmates and teachers are protected. After applying these analyses to a hypothetical case, this Note concludes that both section 504 and the equal protection clause ensure that AIDS-linked children will not be barred from the classroom unless the presence of additional factors increases the risk of these children transmitting the virus to others.