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Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

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Publication Date

Winter 1989




Hofstra University




Section 504 of the Rehabilitation Act of 1973 provides that ‘[n]o otherwise qualified individual with handicaps shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under [any federal or federally funded program].’1 In School Board v. Arline,2 the Supreme Court held that a school teacher with a history of infectious tuberculosis was an ‘individual with handicaps' protected by section 504,3 and that the determination of whether she was ‘otherwise qualified’ to teach elementary school required a sound medical assessment of the risks of contagion posed by her condition.4 Had the case arisen a decade ago, it likely would have attracted little attention *238 or comment. In 1987, however, a spectre haunted Arline—the spectre of AIDS.

5 Several of the amicus curiae briefs filed on both sides in Arline specifically discussed the case's possible implications for future claims under section 504 alleging discrimination against persons with AIDS or AIDS-Related Complex (ARC),6 carriers of the Human Immunodeficiency Virus (HIV) responsibile for AIDS,7 *239 or persons wrongly regarded as having AIDS or harboring the virus.8 The Solicitor General shared argument time with the petitioning school board, urging a construction of section 504 first advanced in 1986 by the Justice Department's Office of Legal Counsel (OLC) in an opinion by Assistant Attorney General Charles J. Cooper dealing specifically with AIDS-related discrimination.9 When Justice Brennan announced the opinion of the Court, he took the unusual step of cautioning those present in the courtroom that the case was not about AIDS. Nonetheless, the Washington Post, no doubt reflecting the prevailing understanding of the case, ran a front-page story on the Arline decision with the headline, ‘AIDS Ruled a Protected ‘Handicap.”10

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