"The Waiver" , AIDS, and the US Supreme Court

[RACastanet]

To all: Historic news today in favor of 'The Waiver' and the Martial Arts. The U.S. Supreme Court supported a lower court ruling that a MA instructor did not violate the Americans With Disabilities Act by not allowing an HIV positive boy participate in classes with other children.

The boys father had not been honest when filling in the waiver form, neglecting to mention the HIV status of his son. When this was discovered, the instructor offered private lessons but would not allow further participation in group classes. The father then sued, lost, was supported by the ACLU, and appealed all the way to the highest court in the land. To no avail.

Who wins? Not the boy, or the instructor who had to spend thousands of $ to defend himself. However, hopefully this will give opportunists second thoughts before they decide to litigate situations that could be negotiated or otherwise reconciled.

I have been watching this unfold over a two year period as it has taken place in the Richmond area. When the resolution was announced I must admit that I sighed in relief, as eventually this could have been a problem that faced my club.

Any thoughts?

Rich


[This message has been edited by RACastanet (edited 10-04-99).]

[RACastanet]

Here is the story JD.

OCTOBER 04, 10:27 EDT

Court Rules Against Boy With AIDS

By RICHARD CARELLI
Associated Press Writer

WASHINGTON (AP) — A Virginia boy with AIDS who wanted to take ``hard-style''
karate lessons with his friends lost a Supreme Court appeal today.

The justices, without comment, left intact rulings that said Michael Montalvo's
participation in a rough-and-tumble karate school would pose too much of a threat to the
health and safety of other students.

Michael's father, Luciano, had sued the karate school, saying its refusal to let his son
participate in group classes violated a federal anti-discrimination law, the Americans with
Disabilities Act.

Michael was 12 when in 1997 he applied to take karate lessons at U.S.A. Bushidokan, a
karate school in Colonial Heights, Va., run by James Radcliffe II.

After learning that Michael had Acquired Immunodeficiency Syndrome, Radcliffe refused
to let him participate in group classes. His offer to give the boy private lessons was
rejected.

A federal judge threw out the Montalvos' lawsuit last year, ruling that Michael's infectious
HIV-virus posed a direct threat to other students and that the school had reasonably tried
to accommodate his disability.

The 4th U.S. Circuit Court of Appeals upheld the trial judge's ruling in February.

``The type of activity offered at U.S.A. Bushidokan emphasized sparring, attack drills and
continuous body interaction with the result that participants frequently sustained bloody
injuries, such as nose bleeds, cuts inside the mouth and external abrasions,'' the appeals
court said.

``In the context of this hard-style karate, the risk of a student's transmitting HIV to
another student was significant,'' the appeals court said.

Michael was born with the virus. His mother and sister have died from AIDS.

In the appeal acted on today, lawyers for the Montalvos said the decision to exclude
Michael from the karate lessons had been made ``without the benefit of objective medical
opinion,'' and that medical testimony offered by the school ``completely failed to
objectively assess the level of risk.''

The case is Montalvo vs. Radcliffe, 98-1831.

[Gene DeMambro]

There is one important distinction here that needs to be made. The karate instructor did not refuse outright to teach the boy. He offered to give him private lessons. He offered to make "reasonable accomadations" regarding his disability, as the ADA law requires. The court only affirmed (in my view) its current thinking, namely:

(A) HIV infection is a disability
(B) Reasonable accomadations must be made to allow those with disabilities to participate in activities the "rest of us" enjoy.
(C) Those with the disability can reject the offer of reasonable accomadations, but they do so at their own peril.

Also, whether the boy's father told the truth initially, or lied right up until the very end doesn't matter. The dispute involved whether the boy had the right to participate in class with his friends. The court said no. But, the school has to take him in private lessons, if the boy so chooses.

So, you CAN refuse to teach the disabled in the regular classes, but you MUST offer to teach them somehow, even if it means private classes, presumably at the same tuition rate...

I initially was appalled at the court's ruling, but it makes sense to me now.

Any comments?

Gene

[Bill Glasheen]

Ooooops! Double posted.

[This message has been edited by Bill Glasheen (edited 10-05-99).]

[Bill Glasheen]

The "ultimate" result of this case made sense to me a LONG time ago. The only good that has come of all this wasted legal effort is that a precident was set. Now, an innocent dojo owner has to deal with a huge legal bill.

The lawers for the plaintiff in this case were beyond stupid. I'm so micturated, I can't even think of a good pejorative that passes the censor. Help me, J.D.

* The description of the activity clearly stated that participants get bloody.

* The risk to other students is unquantified and probably negligiable, but not zero. In the absense of hard evidence, caution is in order.

* The instructor offered to accomodate with private lessons.

Give me a f****** break! Someone hands you a fantastic alternative and you spit on it? Grrrrr..... In-your-face activism often results in losers all the way around. There are better ways to spend our precious energy on this earth. The "victims" are better served with more adult-like behavior. Unfortunately we have a lot of people with the "E.Q." of children on this earth with adult-powered weapons.

A few words are still in order though. WE ALL should assume that all our students are HIV positive, with Hepatitis, or other blood-borne illness. Time to catch up to the nineties and learn standard precautions. Blood is to ALWAYS be considered a toxic substance. All bleeding participants should IMMEDIATELY be removed from an activity until the wound has been dealt with. That is standard procedure in both NCAA and professional sports.

Reasonable accomodations? When you think about it, we make such on a daily basis in class. We don't ever pair Bruno with Junior in our sparring matches. But don't worry - Junior will get there.

Special, private classes should not be necessary. I'd say that group participation by "infected" individuals in hojoundo, kata, and exercises is very "reasonable". This is a way to mainstream folks without putting anyone at a quantifiable risk. The only risk is the attention such special treatment may garner, which may inadvertently embarrass such participants. But it's a risk they must be willing to take.

- Bill

[This message has been edited by Bill Glasheen (edited 10-05-99).]