Annual Survey of American Law
The American public largely has responded with fear and hostility rather than with knowledge and compassion to the presence of Acquired Immune Deficiency Syndrome ("AIDS") in society. Although our reactions are changing as we learn more about the syndrome and its causitive virus, some people continue to characterize AIDS as a well-deserved punishment of those groups most often afflicted with AIDS: gay men and intravenous drug users. Many people also persist in their erroneous beliefs that AIDS can be spread through casual contact. Although much remains to be learned about AIDS, there already exists an abundance of information upon which intelligent and compassionate policies and legal decisions can be based. This article will discuss how courts and policy-makers develop and examine the different school and prison policies about AIDS. Part I summarizes the medical findings on AIDS and the human immunodeficiency virus ("HIV"), which is the causative agent of most AIDS cases. Part II examines judicial decisions and school board policies that protect a seropositive6 child's right to remain in the classroom. Across the country, parents have fought to exclude seropositive children from the classroom.8 Generally, however, courts and school boards have refused to exclude such children, basing their decisions on the extraordinary unlikelihood that HIV will be transmitted in a school setting. Part III reveals that courts generally will defer to the decisions of prison administrators, whether they favor or oppose the testing and subsequent segregation of prisoners with indications of HIV infection. Therefore, it is the responsibility of prison officials and legislators to establish humane guidelines, based on medical evidence, that presumptively preclude the unwarranted testing and segregation of seropositive inmates.
1987 Ann. Surv. Am. L. 117 (1987)