Milton and Catherine Hershey had a vision. Their vision was realized in the Milton Hershey School, to “nurture and educate children in social and financial need to lead fulfilling and productive lives.“ To that end, the Milton Hershey School in Pennsylvania has provided thousands of under-served and underprivileged children a stellar education free of charge since 1909.
Today, that image and vision has been tarnished.
The Milton Hershey School has denied admission to a “Abraham Smith” (pseudonym), a 13-year-old ambitious, but economically disadvantaged, honor student, solely based on the fact that he has HIV. In Abraham’s own words, he says what started as hope for admission and the future, ” has turned into fear, anger, confusion and tears.”
No child should have to face that type of discrimination and confusion. In fact, Ryan White, a middle school student expelled from school in the mid-1980’s because he had HIV, paved the way so that no other child would have to face such discrimination.
So, how can the Milton Hershey School justify its action to deny this student admission to their institution? They do this by stating that they feel that “Abraham Smith” poses a “direct threat” to the health and well-being of the other students they serve.
A direct threat.
The statement goes on to say that the main reason that they denied him was that their school is a “unique” institution, in that, the children live in houses of 10 to 12 students with a married couple serving as house parents. Their reasoning is that “ our teenagers are the same as teens all across the country. Despite our best efforts, some of our students will engage in sexual activity with one another.”
It is enough to make you wonder what kind of control they have after hours in their own boarding houses.
By their own admission, the administrators at the Milton Hershey School denied “Abraham Smith” on the speculation that he may have sex while at the school. In addition, they assume that the sex that he may or may not have may be unprotected sex. Finally, they know, by their own admission, that while “Abraham Smith” is on medication, the chance of him passing HIV to another student, assuming that he has unprotected sex, is as little as a 4% chance of infection.
A direct threat?
The law is very clear on this situation. According to the Americans with Disabilities Act (ADA) file on HIV/AIDS, those with HIV have a covered disability. Furthermore, public accommodations, which covers private entities such as private schools, cannot claim that they are refusing to provide accommodations because that person allegedly poses a direct threat to others. Specifically, when asked if a public accommodation can exclude a person with HIV under the assumption that the person poses a direct threat, the ADA responds, ” In almost every instance, the answer to this question is no. Persons with HIV/AIDS will rarely, if ever, pose a direct threat in the public accommodations context.”
Additionally, the ADA statement on HIV goes on to include scenarios where public accommodations cannot be denied to those with the HIV virus:
“A public accommodation may exclude an individual with a
disability from participation in an activity, if that
individual’s participation would result in a direct threat to the
health or safety of others. “Direct threat,” however, is defined
as a “significant risk to the health or safety of others” that
cannot be eliminated or reduced to an acceptable level by
reasonable modifications to the public accommodation s policies,
practices, or procedures, or by the provision of appropriate
auxiliary aids or services. The determination that a person
poses a direct threat to the health or safety of others may not
be based on generalizations or stereotypes about the effects of a
particular disability; it must be based on an individual
assessment that considers the particular activity and the actual
abilities and disabilities of the individual. The individual
assessment must be based on reasonable judgment that relies on
current medical evidence.
…… A day care center’s refusal to admit a child who is
HIV-positive, because of the fear that the child might bite and
might therefore transmit HIV to other children, is also a
violation. It is incorrect to assume that all young children bite.”
Consequently, how is this day care situation provided by the ADA any different than the situation with “Abraham Smith”? We cannot assume that “Abraham Smith” will have unprotected sex while attending the Milton Hershey school, therefore the school cannot discriminate because their fear that he may engage in unprotected sex. Furthermore, we cannot assume that all teens make the poor decision to have unprotected sex, just like we cannot assume that all young children bite. In their own statement, Milton Hershey School states that SOME of the students may have unprotected sex with each other. It is under this “fact” they felt denying “Abraham Smith” admission was justified.
Unfortunately, “Abraham Smith”, a child, is now a happenstance participant in the next civil rights fight concerning those with HIV. The AIDS Project of Pennsylvania has filed a suit against the school on behalf of “Smith.” Despite their best efforts, however, “Smith’s” life will never be the same. The discrimination he has faced at the hands of the Milton Hershey School has no doubt caused significant damage to his feeling of self-worth.
And for that alone, the Milton Hershey School should be ashamed.