PENNSYLVANIA RECORD

The mother of a young teenager from Delaware County, Pa. who alleges his HIV-positive status prevented him from being accepted into a Pennsylvania boarding school, filed a federal lawsuit against the institution last week, contending her son's civil rights were violated in his application denial.

The woman, identified only as “Mother Smith,” filed the lawsuit Nov. 30 at the federal court in Philadelphia on behalf of her 13-year-old son, identified in the lawsuit as “Abraham Smith,” a pseudonym.

The defendant named in the lawsuit is the Milton Hershey School, a private, co-ed home and school for pre-kindergarten through 12^th-grade students who come from low-income families and are in need of socialization.

The school is operated by the Hershey family, the same people behind the Pennsylvania-based chocolate company of the same name.

According to the lawsuit, “Abraham,” currently an eighth grade honors student and avid athlete at a middle school in Delaware County, had applied for enrollment at the Milton Hershey School back in February.

The following month, school officials contacted his mother to say the school “did not take kids like that,” an apparent reference to Abraham’s status as a youngster with HIV, the virus that causes AIDS, according to the complaint, which was filed by Ronda B. Goldfein, a lawyer with the AIDS Law Project of Pennsylvania.

Nevertheless, Abraham’s mother continued with the application process, sending her son’s academic records to the school and pursuing her son’s desire to attend the institution, the suit states.

In late June, the school sent the woman a letter stating that Abraham’s “application will not be considered for possible enrollment” because “it has been determined that [his] documented needs are beyond the scope of the Milton Hershey School programs. Specifically, we are unable to meet his needs in our residential setting.”

According to the lawsuit, Abraham ingests five medications per day, plus one vitamin, to control his HIV.

The lawsuit claims that the boy’s medications “do not impact his school schedule,” and that he only sees his doctor at the Children’s Hospital of Philadelphia about three times per year.

The complaint alleges that the school has “no medical, scientific or rational basis to deny Abraham admission to the Milton Hershey School,” especially in light of the fact that federal health officials have stated that HIV cannot be transferred through acts such as hugging, touching, shaking hands or using the same drinking fountains and toilet seats.

“Defendant knew or should have known that Abraham’s HIV-positive status did not pose a risk to the health or safety of Abraham or others at the Milton Hershey School,” the lawsuit states. “Defendant knew or should have known that Abraham did not have any documented needs that would impair his ability to participate fully at the Milton Hershey School.”

The suit claims that this summer, the AIDS Law Project of Pennsylvania reached out to the school to see if it would reverse its decision not to allow Abraham to board there.

The institution didn’t relent.

“Despite receipt of the Centers for Disease Control and Prevention information that HIV is not transmitted through casual contact, and that there was no medical reason to exclude Abraham from the school on the basis of his HIV status, Defendant intentionally and recklessly continued to refuse to consider Abraham for enrollment,” the lawsuit states.

In a statement posted to its website, the school defended its decision not to accept Abraham.

“Unlike public schools, the Milton Hershey School is not required to accept every student. We can lawfully exclude students who do not meet our eligibility criteria or where we cannot meet the needs of the student in our unique environment,” the statement reads. “Under the ADA [Americans with Disabilities Act], we are not required to admit any student who would pose a direct threat to the health and safety of others that cannot be avoided by reasonable modifications of the School’s policies and procedures. This is the same legal standard that applies to students with active communicable diseases in public schools; the difference is our unique environment.”

The statement goes on to say that the school’s decision not to admit Abraham was not based on “bias or ignorance,” but rather was arrived at based on factors relating to Abraham’s HIV-positive status.

Because the institution is a boarding school, officials stated that they had concerns about the potential for sexual activity between the students.

“We systematically encourage abstinence, and we educate our children on sexual health issues,” the statement says. “But, as special as they are, 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. Given our residential setting, when they do, they will be doing so on our watch.”

The school said while it acknowledges this is a “very difficult situation,” it believes it made the right decision in rejecting Abraham’s application.

“We look forward to the opportunity to put all of the relevant information in front of the court so that we can get a determination under the law as it applies to these unique circumstances,” the statement read.

The lawsuit accuses the school of violating the federal Americans with Disabilities Act. It seeks to have Abraham admitted to the school, and also seeks unspecified compensatory and punitive damages. A jury trial is being demanded.

The federal case number is 2:11-cv-07391-CDJ.