Important note: Information in this article was accurate in 1986. The state of the art may have changed since the publication date.
Associated Press - December 3, 1986
"This cannot be what Congress had in mind," Charles Fried, Solicitor General of the United States, said in urging the Court to rule that people with contagious illnesses were not covered by the 1973 anti-bias law.
With a nationwide debate over AIDS discrimination as a backdrop, the Court faces a decision on whether all recipients of Federal aid, including virtually all public schools, are barred from discriminating against people with contagious diseases.
Advocates of homosexual rights say the decision may affect the national debate on AIDS even though the case does not involve a victim of acquired immune deficiency syndrome.
Public Fear Over AIDS
The Public Health Service says there are no known cases of anyone getting AIDS through casual contact. But there is a great deal of public fear about how contagious it might be, and there have been efforts to bar AIDs carriers from schools and the workplace. In today's 60-minute argument session, however, AIDS was mentioned only once.
George Rahdert, an attorney for a third-grade teacher dismissed after she was diagnosed as having tuberculosis, argued that a Justice Department memorandum on AIDS wrongly suggested that an employer could legally dismiss people based on an irrational fear that they may spread the disease.
The teacher, Gene H. Arline, sued the school board in Florida's Nassau County after she was dismissed because she had tuberculosis, an infectious respiratory disease.
Brian Hayes, the school board's attorney, told the Court that Mrs. Arline was dismissed after being found to be "an unacceptable risk" to children's health.
Appeals Court Backed Teacher
A Federal appeals court, ruling that contagious disease was a disability covered by the 1973 law, said Mrs. Arline could sue the school board.
The law says, "No otherwise qualified handicapped individual shall, solely because of his handicap, be subjected to discrimination under any program or activity receiving Federal financial assistance."
Conceding that Mrs. Arline was "plainly a handicapped person," the Solicitor General said she had been dismissed not because of her impairment but because of her contagiousness.
Associate Justice Antonin Scalia appeared to agree with Mr. Fried, suggesting that school officials could not dismiss Mrs. Arline because of her impairment but perhaps could dismiss her because of contagion.
Mr. Rahdert disagreed, saying: "There's no such thing in the real world. The fearful response to contagion is the fearful response to the underlying impairment."
Decision Likely by July
The Solicitor General also argued that Mrs. Arline could not be deemed an "otherwise qualified person" under the law. "How can she be qualified as an elementary school teacher if she can't bend down over Johnny's desk and help him with his penmanship?" he asked.
The High Court, which is expected to announce its decision in the case by July, may leave it to a lower court to decide whether Mrs. Arline was "otherwise qualified" if it decides that she was discriminated against because of her disability.
The Justice Department's Office of Legal Counsel, in a highly publicized memorandum, has said employers do not violate the 1973 law if they dismiss employees based solely on a fear that they may spread a disease.
Cases of discrimination against AIDS victims in employment, housing, insurance, health care and child custody have sprung up in recent years.
AIDS is a viral disease that kills its victims by destroying the immune system and leaving them vulnerable to other illnesses. The AIDS virus can be transmitted by sexual contact, transfusion of blood or blood products or infections from mother to child.
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