Doe v. County of Centre

Appellants, the Does, an interracial couple with an HIV-positive foster son (Adam), approached the Respondents, Centre County (the County), seeking to adopt another child through the County’s foster care program.

The County had a statutory duty to investigate foster parent applications in order to preserve the physical and emotional health of foster children. The Does disclosed their child’s HIV status to a County employee during the preliminary home study. Prior to the Does application, County officials had never knowingly placed a child in a foster home where someone was living with HIV. Therefore no policy existed to address any limitations that may apply to such a home.

County officials were concerned that a foster child might sexually assault Adam and thereby contract HIV. The County adopted a policy that stipulated that foster families whose members had “serious infectious diseases” could only care for children with the same diseases. However, the policy permitted the Does to care for uninfected children if they agreed to release information regarding their son’s HIV status and if the biological parents of the prospective foster child executed a written consent releasing the County from potential liability.

The Does rejected the policy and brought an action against the County, alleging discrimination based on a disability in violation of Title II of the Americans with Disabilities Act of 1990 (ADA) and § 504 of the Rehabilitation Act of 1973.

Title II of the ADA provides:

No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities or a public entity, or be subjected to discrimination by any such entity.

The Does also brought an action alleging racial discrimination in violation of Title VI of the Civil Rights Act of 1964 and an action alleging racial and disability discrimination under the equal protection clause of the Fourteenth Amendment to the Constitution, pursuant to 42 U.S.C. § 1983. They sought invalidation of the policy, approval as foster parents, and compensatory and punitive damages.

The District Court held that Adam’s HIV status “posed a significant risk to foster children who might sexually assault [him], and that therefore, the direct threat exception to the [ADA] and Rehabilitation Act applied, justifying discrimination via the infectious disease policy.” The District Court also held that the Does’ racial discrimination claims were not ripe. The Does appealed.

The court held that the County’s policy stipulating that foster families whose members had “serious infectious diseases” could only care for children with the same diseases was in violation of Title II of the ADA and § 504 of the Rehabilitation Act.

The ADA defines disability as “a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual.” The court held that Adam’s HIV status “clearly constitute[ed] a disability as it [was] a physical impairment that substantially limited several of Adam’s major life activities such as walking, talking and digestion.” The court also stated, citing Bragdon v. Abbott, 524 U.S. 624 (1994), that even in the “asymptomatic phase,” HIV falls within the definition.

The protections of the ADA extend to “qualified individuals who are discriminated against because of their relationship or association with individuals who have a known disability.” The court held that, as the adoptive parents of Adam, the Does had a close relationship entitling them to protection.

The court explained that the “direct threat exception” under the ADA allowed discrimination if a disability posed “a direct threat to the health or safety of others.” As defined in the ADA, a “direct threat” existed when there was a "significant risk to the health or safety of others that [could not] be eliminated by a modification of polices, practices, or procedures or by the provision of auxiliary aids or services."

The court held that the District Court erred in concluding “there was a high probability that HIV [would] be transmitted through sexual contact to children placed in foster care with the Does.” The court stated that this conclusion “relied on a bland and generalized set of statistics, lacking in individual specificity.” The statistics relied upon broadly defined “sexual abuse” to include activities that carried no risk of transmitting HIV. Furthermore, the Does had stated a preference for foster children under the age of 12, an age group “extremely unlikely to commit forcible sexual intercourse leading to transmission of HIV.” The court also discussed the negligible risk of transmission through casual contact, rough play, or fighting. It concluded that a reasonable jury could find that the risk of another foster child contracting HIV from Adam was insufficient to fall within the direct threat exception.

The County argued that a more stringent standard should be used to determine a direct threat in situations concerning placement in a private home, as opposed to inclusion in a public sphere. The court held that such an argument did not justify the type of blanket policy implemented by the County, and that the distinction between the public sphere and a private home had no material effect on the significance of risk analysis in this case. The County further argued that the policy was permissible because it was based on the principle of informed consent by providing parents of a foster child with additional information. The court noted that no provision of the ADA incorporates the concept of informed consent. Finally, the County contended that the policy was justified by the limited time and resources available to the County in making a foster care placement, and that psychological damage could occur should a child need to be moved at a later time due to their sexual development. The court held that this argument ignored the principle of individualized evaluation.

The court additionally held that the Does’ racial discrimination claims were ripe under Title IV of the Civil Rights Act and 42 U.S.C. §1983. The District Court had erroneously focused on the alleged denial of placement as the Does’ sole claim. The court held that the Does’ discrimination claims were ripe because withholding judicial consideration would cause “an immediate and significant hardship on the Does, who [would] be deprived of their right to present their federal statutory and constitutional claims for redress.”

The court reversed and remanded the District Court’s grant of summary judgment against the Does, but affirmed the District Court’s determination that the County’s officials were entitled to qualified immunity and that punitive damages were unavailable against the County entities.

“Even if we accept the less than obvious proposition that a young child or infant could physically assault Adam, a reasonable factfinder could find, based on the objective medical evidence in the record, that the risk of HIV transmission from casual contact, even intense physical contact, is negligible.” 242 F.3d, p. 451.

“To the extent the County enacts a policy based on the belief that HIV, as a general matter, causes instability, it again controverts the ADA-mandate of individualized determination. The instability argument further rings hollow given that the County does not require disclosure of other stability threatening conditions, such as cancer or neurological problems.” 242 F.3d, p. 452.