Court Help Asked: Can AIDS Patient Teach in County?

In a case said to be the first of its kind in the state, the Orange County Department of Education is seeking court advice on how to deal with a teacher with AIDS who insists that he is prepared to return to the classroom.

The department filed papers in Orange County Superior Court on Thursday, asking for a judge’s advice--called a “declaratory judgment”--on whether the teacher has the right to return to work.

The department also wants to know whether it has “a duty to disclose to parents, students, employees and other co-workers the identity” of the unnamed teacher.

While teachers elsewhere in the state have contracted acquired immune deficiency syndrome, the Orange County case appears to be the first in which a teacher is asserting a legal right to continue teaching, according to Deputy Atty. Gen. Anne Jennings of the state attorney general’s AIDS Task Force, and other legal and education officials.

Identified as ‘John Doe’

The instructor, identified only as “John Doe” in court papers, is one of about 200 teachers on the payroll of the county education department. Department teachers work in special schools throughout the county, instructing handicapped children and juveniles under detention for various crimes.

The teacher’s assigned school and teaching specialty were not disclosed by the department, which cited state laws governing confidentiality.

Fred Koch, the county’s deputy superintendent, said officials learned the teacher was suffering from AIDS when he asked in May about possible disability benefits. “It’s a very sad situation,” Koch added.

But Koch said the department also needs guidance from the court. “We really felt the most prudent course to take was to seek court advice in this matter.”

Orange County Health Care Agency officials stressed that AIDS is not spread by casual contact and that the incurable disease can’t be caught by being in the same room with an ill person.

“AIDS is spread only by sexual exchange of bodily fluids, use of a contaminated needle or contaminated blood products,” said a county Health Care Agency AIDS worker. She asked not to be identified on the ground that to be named would hamper her daily work with AIDS patients.

“AIDS is hard to get,” she said. “It’s a fragile virus. You don’t get it by being in contact with a victim. I should know. I’ve worked with AIDS victims five years. I hug them. You don’t get AIDS that way.”

Susie Lange, a spokeswoman for the state Department of Education, said that agency’s policy on students with AIDS “is that they should be allowed to be in class if they pose no danger to themselves or others. That policy would be the same for teaching personnel.”

Jennings, who is in the attorney general’s civil rights division in San Francisco, said recent court cases indicate that the Orange County teacher has the right to go back to his classroom “unless it is shown that he’s not capable or qualified to do the job.”

She said the state’s Fair Employment and Housing Commission has ruled that AIDS is a handicap and is thus covered by state laws forbidding discrimination against the handicapped.

Moreover, Jennings said, the U.S. Supreme Court ruled last spring that a person with a communicable disease comes under the federal rehabilitation law protecting rights of the handicapped. Jennings said the gist of state and federal laws protecting the handicapped “is that you can’t exclude people just because having them around makes you uncomfortable. . . . You don’t exclude a person with a cosmetic disfigurement just because you don’t like how they look.”

Other Infections Feared

One of the items on which the county Department of Education is seeking a court judgment is “whether defendant (the teacher) has an infectious or communicable disease which would prevent defendant from returning to work.”

Ronald D. Wenkart, attorney for the county education department, said one concern of the department is that the teacher with AIDS may inadvertently spread other diseases that can be caught by casual contact.

“An AIDS victim is subject to many other opportunistic infections,” Wenkart said. “There’s a concern that other infections may be spread.”

When the department first learned about the teacher’s illness, Wenkart said, “we were discussing with him other assignments, such as work he could do at home.”

When the teacher insisted that he was capable of returning to his classroom in September, Wenkart said, the department decided it was necessary to seek a declaratory judgment from the court.

“We think this is the first case of its kind, not only in the state but also in the nation,” Wenkart said.

“There are no legal precedents involving teachers, and, therefore, we feel that declaratory relief action requesting that the court declare the respective legal rights of the parties is appropriate.”