Basketball Camp's Exclusion of HIV-Positive Boy Ruled Discrimination

Mark Hamblett

New York Law Journal

January 22, 2010

An HIV-positive 10-year-old boy was discriminated against when he was denied admission to a Rockland County, N.Y. basketball camp, a federal judge has ruled.

Judge Donald C. Pogue granted a motion for declaratory relief on the boy's behalf against the Deer Mountain Day Camp, finding that the camp had violated the Americans with Disabilities Act (ADA).

"The court agrees that defendants were obligated to protect other campers from a very serious, life-threatening viral infection," Pogue said. "But this obligation does not excuse defendants' actions when based on unsubstantiated fears."

Pogue, a judge on the Court of International Trade who was sitting by designation in the Southern District of New York, made his ruling in Doe v. Deer Mountain Day Camp, 07 Civ. 5495.

Until Jane Doe applied for her son, Adam Doe, in 2004 to participate in the Deer Mountain Basketball Academy, the academy had never denied admission to a child because of a medical condition.

The camp had used, and trained staff in, what are called "universal precautions," safety measures for handling bodily fluids, such as the wearing of gloves, gowns, aprons, masks or protective eyewear to reduce exposure. The camp also keeps its swimming pool properly chlorinated.

Adam Doe, who contracted HIV at birth due to a perinatal infection, takes antiretroviral medications and, until the controversy over his admission to the camp, his condition had been kept confidential.

On Aug. 17 or 18, 2004, a doctor who is Adam's primary physician informed camp owners Roberta and Carol Katz that Adam was HIV-positive.

Roberta Katz later said in depositions that she felt suspicious because Jane Doe had not disclosed her son's illness and the camp was left with little time to research his medications and to learn about the possibility of side effects and/or gastrointestinal upsets, which according to the camp nurse, might make the virus transmittable in the camp swimming pool.

"They were concerned about their inability, as they saw it, to account for the risks associated with Adam's participation in the Deer Mountain Basketball Academy, such as providing him with a separate pool or toilet as allegedly recommended" by another physician, Judge Pogue said.

But the judge said neither the Katzes nor the camp nurse followed up by telephoning Jane Doe or Adam Doe's HIV specialist.

The next contact came, he said, when Roberta Katz called Jane Doe and said Adam could not attend the camp. In a deposition, Jane Doe said Ms. Katz had told her during the call that a doctor had advised the academy that Adam could potentially transmit HIV through blood in his urine or stool.

After ruling that Adam had a disability under the ADA, Judge Pogue found the Deer Mountain Day Camp and the Deer Mountain Basketball Academy were "public accommodations" within the meaning of 42 U.S.C. §§12101-213 and that "Adam's HIV-seropositivity played a motivating part" in the camp's decision to deny him admission.

The judge then turned to the "direct threat defense" under 12182(b)(3), under which a public accommodation is not required to allow someone to use its goods, services or facilities "where such individuals pose a direct threat to the health or safety of others."

But here, he said, the defendants provided the court with no "objective, medical evidence to support their threat determination."

The deposition of the camp nurse that HIV in a stool can survive in swimming pool water and that HIV can be transmitted by blood on a toilet seat did not match the "prevailing medical consensus," a departure from which can only be justified through "a credible scientific basis from the accepted norm," the judge said.

The case was handled for the Does by the Legal Action Center, Howard Sherwin of the Legal Aid Society of Rockland County and, on a pro bono basis, Lewis Liman of Cleary Gottlieb Steen & Hamilton.

Sally Friedman, legal director for the Legal Action Center, said there was a wave of cases involving HIV and children and schools during the height of the AIDS epidemic, but this is the first case she is aware of concerning a camp.

"This [decision] makes it crystal clear that if you run an extracurricular program for children you have to take universal precautions and you have to understand that HIV cannot be transmitted through casual contact or sports -- and people are charged with that knowledge," Friedman said. "Still, there is an enormous amount of ignorance about HIV transmission in this country and one of the reasons this is so significant is that the law does not sanction ignorance when it comes to people with disabilities."

Rodney Gould and Robert Mueller of Rubin, Hay & Gould in Framingham, Mass., represented the camp. Gould said the judge would now proceed to try the issue of damages and any appeal would come later.

"We're disappointed and we think he's wrong," Gould said.