The Associated Press - Tuesday, Jan. 18, 2000
Richard Carelli, Associated Press Writer

The court, without comment, rejected an appeal in which Alabama inmates with the Human Immunodeficiency Virus argued that the state's policy violates federal laws banning discrimination against the disabled.

The justices were told that only Mississippi and South Carolina similarly require such extensive segregation of HIV-positive inmates.

Today's action does not set a legal precedent and does not preclude the possibility the nation's highest court someday may review such a state policy. The denial of review leaves intact a federal appeals court ruling that said Alabama's policy does not run afoul of the federal anti-bias laws.

Lawyers representing inmate Arion Davis and all other HIV-positive Alabama prisoners sued the state 14 years ago over its policy of barring them from participating in various educational, vocational, recreational and religious activities along with non-infected inmates.

The lawsuit said the policy violated the federal Rehabilitation Act. Since then, the Americans with Disabilities Act of 1990 also became law.

After a 1994 trial, a federal judge ruled that HIV-positive inmates were not protected by the federal laws because they were not "otherwise qualified" to participate in such programs.

That ruling was upheld by the 11th U.S. Circuit Court of Appeals last year. The Atlanta-based appeals court, voting 9-3 against the inmates, said the policy was valid because HIV-positive inmates pose a "significant risk" to others.

In the appeal acted on today, lawyers for the Alabama inmates said the lower courts wrongly based such a risk on the "possibility" of someone transmitting the virus. Those courts failed to consider the "probability" of that occurring, the appeal said.

Alabama's lawyers urged the justices to reject the appeal. The federal laws' definition of people with disabilities "does not include an individual who has a currently contagious disease or infection and who ... would constitute a direct threat to the health or safety of other individuals," they said.

Asked by the court for its views, the Clinton administration said the appeal should be denied.

Although Justice Department lawyers said the appeals court may have erred in not more closely examining the risks involved in HIV-positive inmates' participation in specific programs, they said its ruling "does not conflict with any decision of any other court of appeals and does not warrant full review."

The case is Davis vs. Hopper, 98-9663.
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