ACQUIRED IMMUNE DEFICIENCY SYNDROME

ACQUIRED IMMUNE DEFICIENCY SYNDROME

A disease caused by the human immunodeficiency virus (HIV) that produces disorders and infections that can lead to death.

Acquired immune deficiency syndrome (AIDS), a fatal disease that attacks the body’s immune system making it unable to resist infection, is caused by the human immunodeficiency virus (HIV), which is communicable in some bodily fluids and transmitted primarily through sexual behavior and intravenous drug use.

The United States struggled to cope with AIDS from the early 1980s until the late 1990s, when new drug therapies started to extend the length and quality of life for many people with AIDS. Since the beginning, AIDS and its resulting epidemic in the United States have raised a great number of legal issues, which are made all the more difficult by the nature of the disease.
AIDS is a unique killer, but some of its aspects
are not: epidemics have been seen before; other
sexually transmitted diseases have been fatal.
AIDS is different because it was discovered in—
and in the United States still predominantly
afflicts—unpopular social groups: gay men and drug users. This fact has had a strong impact on the shaping of AIDS law. Law is often shaped by politics, and AIDS is a highly politicized disease. The challenge in facing an epidemic that endangers everyone is complicated by the stigma attached to the people most likely to be killed by it.

Epidemics have no single answer beyond a cure. Since no cure for AIDS existed as of the early 2000s, the law continued to grapple with a vast number of problems. The federal government has addressed AIDS in two broad ways: by spending money on research and treatment of the disease and by prohibiting unfairness to
people with HIV or AIDS. It has funded medical treatment, research, and public education, and it has passed laws prohibiting discrimination against people who are HIV-positive or who have developed AIDS. States and local municipalities have joined in these efforts, sometimes with federal help. In addition, states have criminalized the act of knowingly transmitting the virus through sexual behavior or blood donation. The courts, of course, are the decision makers in AIDS law. They have heard a number of cases in areas that range from employment to education and from crimes to TORTS. Although a body of case law has developed, it remains relatively new with respect to most issues and controversial in all.

AIDS and the Federal Government

Political attitudes toward AIDS have gone through dramatically different phases. In the early 1980s, it was dubbed the gay disease and as such was easy for lawmakers to ignore. No one hurried to fund research into a disease that seemed to be killing only members of a historically unpopular group. When it was not being ignored, some groups dismissed AIDS as a problem that homosexuals deserved, perhaps brought on them by divine intervention. Discriminatory action matched this talk as gay men lost jobs, housing, and medical care. AIDS activists complained bitterly about the failure of most U.S. citizens to be concerned. Public opinion only began to shift in the late 1980s, largely through awareness of highly publicized cases. As soon as AIDS had a familiar or more mainstream face, it became harder to ignore; when it became clear that heterosexuals were also contracting the disease, the epidemic acquired higher priority.

By the late 1980s, much of the harshness in public debate had diminished. Both liberals and conservatives lined up to support legislative solutions. President RONALD REAGAN left office, recommending increases in federal funding for medical research on AIDS. Already the amount spent in this area had risen from $61 million in 1984 to nearly $1.3 billion in 1988. President GEORGE H.W. BUSH took a more active approach, and in 1990 signed two new bills into law. One was the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act (Pub. L. No. 101-381, 104 Stat. 576), which provides muchneeded money for states to spend on treatment.
The other was the ground-breaking Americans with Disabilities Act (ADA) (42 U.S.C.A. §§ 12112–12117), which has proved to be the most effective weapon against the discrimination that individuals with the disease routinely suffer. Bush also hurried approval by the FOOD AND DRUG ADMINISTRATION for AIDS-related drugs. Though he supported Americans with the disease, Bush agreed to a controversial ban by Congress on travel and immigration to the United States for people with HIV.

Like his predecessors, President BILL CLINTON called for fighting the disease, rather than the people afflicted with it. In 1993, he appointed the first federal AIDS policy coordinator. He fully funded the Ryan White Care Act, increasing government support by 83 percent, to $633 million, and also increased funding for AIDS research, prevention, and treatment by 30 percent. These measures met most of his campaign promises on AIDS. He reneged on one: despite vowing to lift the ban on HIV-positive ALIENS, he signed legislation continuing it. In addition, he met a major obstacle on another proposal: Congress failed to pass his HEALTH CARE reform package, which would have provided health coverage to all U.S. citizens with HIV, delivered drug treatment against AIDS on demand to intravenous drug users, and prohibited health plans from providing lower coverage for AIDS than for other life-threatening diseases.

AIDS and Public Life

Having HIV is not a sentence to remove oneself from society. It does not limit a person’s physical or mental abilities. Only later, when symptoms develop—as long as ten years from the time of infection—does the disease become increasingly debilitating. In any event, people who are HIV-positive and AIDS-symptomatic
are fully able to work, play, and participate in daily life. Moreover, their rights to do so are the same as anyone else’s. The chief barrier to a productive life often comes less from HIV and AIDS than from the fear, suspicion, and open hostility of others. Because HIV cannot be transmitted through casual contact, U.S. law has moved to defend the CIVIL RIGHTS of those individuals with the disease.

AIDS in the Workplace The workplace is a common battleground.Many people with AIDS have lost their jobs, been denied promotions, or been reassigned to work duties that remove them from public contact. During the 1980s, this discrimination was fought through lawsuits based on older laws designed to protect the disabled.
Plaintiffs primarily used the Rehabilitation
Act of 1973 (29 U.S.C.A. § 701 et seq.), the
earliest law of this type. But the Rehabilitation
Act has a limited scope: it applies only to federally
funded workplaces and institutions; it says
nothing about those that do not receive government
money. Thus, for example, the law was
helpful to a California public school teacher
with AIDS who sued for the right to resume
teaching classes (Chalk v. United States District
Court, 840 F.2d 701 [9th Cir. 1988]), but it
would be of no use to a worker in a private business.
With passage of the ADA in 1990, Congress
gave broad protection to people with AIDS who
work in the private sector. In general, the ADA is
designed to increase access for DISABLED PERSONS,
and it also forbids discrimination in hiring
or promotion in companies with fifteen or
more employees. Specifically, employers may
not discriminate if the person in question is otherwise
qualified for the job.Moreover, they cannot
use tests to screen out disabled persons, and
they must provide reasonable accommodation
for disabled workers. The ADA, which took
effect in 1992, quickly emerged as the primary
means for bringing AIDS-related discrimination
lawsuits. From 1992 to 1993, more than 330
complaints were filed with the U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC), which investigates charges before they can be filed in court. Given the lag time needed for EEOC investigations, those cases started appearing before federal courts in 1994 and 1995.

AIDS and Health Care Closely related to work is the issue of health care. In some cases, the two overlap: HEALTH INSURANCE, SOCIAL SECURITY, and disability benefits for people with AIDS were often hard to obtain during the 1980s. Insurance was particularly difficult because employers feared rising costs, and insurance
companies did not want to pay claims. To avoid the costs of AIDS, insurance companies
used two traditional industry techniques: they
attempted to exclude AIDS coverage from general
policies, and they placed caps (limits on
benefits payments) on AIDS-related coverage.
State regulations largely determine whether
these actions were permissible. In New York, for
example, companies that sell general health
insurance policies are forbidden to exclude coverage
for particular diseases. Caps have hurt
AIDS patients because their treatment can be as
expensive as that for cancer or other life-threatening
illnesses. Insurance benefits can be quickly
exhausted—in fact, AIDS usually bankrupts
people who have the disease. The problem is
compounded when employers serve as their
own health insurers. In McGann v. H&H Music
Co., 946, F.2d 401 (5th Cir. [1991]), a federal court ruled that such employers could legally change their policies to reduce coverage for workers who develop expensive illnesses such as AIDS.

In January 1995, the settlement in a lawsuit brought by a Philadelphia construction worker with AIDS illustrated that the ADA could be used to fight caps on coverage. In 1992, the joint
union-management fund for the Laborers’ District
Council placed a $10,000 limit on AIDS
benefits, in stark contrast to the $100,000
allowed for other catastrophic illnesses. At that
time, the fund said the cap on AIDS benefits was
designed to curb all health costs. In 1993, the
EEOC ruled that the fund violated the ADA,
and, backed by the AIDS Law Project of
Philadelphia, the worker sued. Rather than fight
an expensive lawsuit, the insurance fund settled:
under the agreement, it extended coverage for all
catastrophic illnesses to $100,000. Hailing the
settlement as a major blow against widespread
discrimination in insurance coverage, the law
project’s executive director, Nan Feyler, told the Philadelphia Inquirer, “You can’t single out
someone based on a stereotype.”
In other respects, health care is a distinct
area of concern for AIDS patients and health
professionals alike. Discrimination has often
taken place. State and federal statutes, including
the Rehabilitation Act, guarantee access to
health care for AIDS patients, and courts have
upheld that right. In the 1988 case of Doe v. Centinela
Hospital, 57 U.S.L.W. 2034 (C.D. Cal.), for
example, an HIV-infected person with no symptoms
was excluded from a federally funded hospital
residential program for drug and alcohol
treatment because health care providers feared
exposure to the virus. The case itself exposed the
irrationality of such discrimination. Although
its employees had feared HIV, the hospital
argued in court that the lack of symptoms
meant that the patient was not disabled and thus
not protected by the Rehabilitation Act. A federal
trial court in California rejected this argument,
ruling that a refusal to grant services
based solely on fear of contagion is discrimination
under the Rehabilitation Act.

Other actions during the 1990s have relied
upon the ADA. In 1994, the U.S. Justice Department
reached a settlement in a lawsuit with the
city of Philadelphia that ensures that city
employees will treat patients with AIDS. The
first settlement in a health care–related ADA
suit, the case grew out of an incident in 1993:
when an HIV-positive man collapsed on a
Philadelphia street, emergency medical workers
not only refused to touch him but told him to
get on a stretcher by himself. The man sued. In
settling the case, the city agreed to begin an
extensive training program for its 900 emergency
medical technicians and 1,400 firefighters.
In addition, officials paid the man $10,000 in
COMPENSATORY DAMAGES and apologized. The
JUSTICE DEPARTMENT viewed the suit as an
important test of the ADA. Assistant Attorney
General James Turner said the settlement would
“send a clear message to all cities across the
nation that we will not tolerate discrimination
against persons with AIDS.”

Health care professionals are not the only
ones with concerns about HIV transmission.
Patients may legitimately wonder if their doctors
are infected. During the early 1990s, the
medical and legal communities debated whether
HIV-positive doctors have a duty to inform their
patients of the illness. According to the Centers
for Disease Control (CDC), the risk of HIV
transmission from health care workers to
patients is very small when recommended infection-
control procedures are followed, yet this
type of transmission has occurred. The first
cases of patients contracting HIV during a medical
procedure were reported in 1991: Dr. David
J. Acer, a Florida dentist with AIDS, apparently
transmitted HIV to five patients. One was Kimberly
Bergalis, age twenty-three, who died as a
result. Before her death, Bergalis brought a claim
against the dentist’s professional liability insurer,
contending that it should have known that Acer
had AIDS and effectively barred him from operating
by refusing to issue him a MALPRACTICE
insurance policy. Bergalis’s claim was settled for
$1 million. A second claim by Bergalis, against
the insurance company that recommended Acer
to her, was settled for an undisclosed amount.
Since the Bergalis case, many U.S. dentists,
physicians, and surgeons with AIDS have begun
disclosing their status to their patients. Faya v.
Almaraz, 329 Md. 435, 620 A.2d 327 (Md. 1993),
illustrates the consequences of not doing so. In
Faya, the court held that an HIV-positive doctor
has the legal duty to disclose this medical condition
to patients and that a failure to inform can
lead to a NEGLIGENCE action, even if the patients
have not been infected by the virus. The doctor’s
patient did not contract HIV but did suffer
emotionally from a fear of having done so. The
unanimous decision held that patients can be
compensated for their fears. Although this case
dealt specifically with doctor-patient relationships,
others have concerned a variety of relationships
in which the fear of contracting AIDS
can be enough for a plaintiff to recover damages.
Routine HIV-testing in healthcare facilities
also raises legal issues. Most people who are
HIV-positive want this information kept confidential.
Facilities are free to use HIV testing to
control the infection but in most states only
with the patient’s informed consent. Some
states, such as Illinois, require written consent.
The level of protection for medical records
varies from state to state. California, for example,
has broad protections; under its statutes, no
one can be compelled to provide information
that would identify anyone who is the subject of
an HIV test. However, every state requires that
AIDS cases be reported to the CDC, which
tracks statistics on the spread of HIV. Whether
the name of an HIV-infected person is reported
to the CDC depends on state laws and regulations.

AIDS and Education Issues in the field of
education include the rights of HIV-positive
students to attend class and of HIV-positive
teachers to teach, the confidentiality of HIV
records, and how best to teach young people
about AIDS. A few areas have been settled in
court: for instance, the right of students to
attend classes was of greater concern in the early
years of the epidemic and later ceased to be a
matter of dispute.

Certain students with AIDS may assert their
right to public education under the Education
for All Handicapped Children Act of 1975
(EAHCA), but the law is only relevant in cases
involving special education programs. More
commonly, students’ rights are protected by the
Rehabilitation Act. Perhaps the most important
case in this area is Thomas v. Atascadero Unified
School District, 662 F. Supp. 376 (C.D. Cal.
1986), which illustrates how far such protections
go. Thomas involved an elementary school
student with AIDS who had bitten another
youngster in a fight. Based on careful review of
medical evidence, the U.S. District Court for the
Central District of California concluded that
biting was not proved to transmit AIDS, and it
ordered the school district to readmit the girl.
Similarly, schools that excluded teachers with
AIDS have been successfully sued on the
ground that those teachers pose no threat to
their students or others and that their right to
work is protected by the Rehabilitation Act, as
in Chalk.

Confidentiality relating to HIV is not uniform
in schools. Some school districts require
rather broad dissemination of the information;
others keep it strictly private. In the mid-1980s,
the New York City Board of Education adopted
a policy that nobody in any school would be told
the identities of children with AIDS or HIV
infection; only a few top administrators outside
the school would be informed. The policy
inspired a lawsuit brought by a local school district,
which argued that the identity of a child
was necessary for infection control (District 27
Community School Board v. Board of Education,
130 Misc. 2d 398, 502 N.Y.S.2d 325 [N.Y. Sup.
Ct. 1986]). The trial court rejected the argument
on the basis that numerous children with HIV
infection might be attending school and instead
noted that universal precautions in dealing with
blood incidents at school would be more effective
than the revelation of confidential information.
Schools play a major role in the effort to
educate the public on AIDS. Several states have
mandated AIDS prevention instruction in their
schools. But the subject is controversial: it
evokes personal, political, and moral reactions
to sexuality. Responding to parental sensitivities,
some states have authorized excused absences
from such programs. The New York State Education Department faced a storm of controversy
over its policy of not allowing absences at
parental discretion. Furthermore, at the local
and the federal levels, some conservatives have
opposed certain kinds of AIDS education. During
the 1980s, those who often criticized liberal
approaches to sex education argued that AIDS
materials should not be explicit, encourage sexuality,
promote the use of contraceptives, or
favorably portray gays and lesbians. In Congress,
lawmakers attached amendments to appropriations
measures (bills that authorize the spending
of federal tax dollars) that mandate that no federal
funds may be used to “promote homosexuality.”
In response, the CDC adopted regulations
that prohibit spending federal funds on AIDS
education materials that might be found offensive
by some members of certain communities.
Despite the controversy, some communities
have taken radical steps to halt the spread of
AIDS. In 1991 and 1992, the school boards of
New York City, San Francisco, Seattle, and Los
Angeles voted to make condoms available to students
in their public high school systems.

AIDS and Private Life

Although epidemics are public crises, they
begin with individuals. The rights of people who
have AIDS and those who do not are often in
contention and seldom more so than in private
life. It is no surprise that people with HIV continue
having sex, nor is it a surprise that this
behavior is, usually, legal. Unfortunately, some
do so without knowing they have the virus. Even
more unfortunately, others do so in full knowledge
that they are HIV-positive but without
informing their partners. This dangerous behavior
has opened one area of AIDS law that affects
individuals: the legal duty to warn a partner
before engaging in behavior that can transmit
the infection. A similar duty was recognized by
courts long before AIDS ever appeared, with
regard to other sexually transmitted diseases.
A failure to inform in AIDS cases has given
rise to both civil and criminal lawsuits. One such
case was brought by Mark Christian, the lover of
actor Rock Hudson, against Hudson’s estate.
Christian won his suit on the ground that Hudson
concealed his condition and continued their
relationship, and the jury returned a multimillion-
dollar verdict despite the fact that there was
no evidence that Christian had been infected.
Another case was brought in Oregon in 1991,
when criminal charges were filed against Alberto
Gonzalez for knowingly spreading HIV by having
sex with his girlfriend. After Gonzalez
pleaded no contest to third-degree assault (a
felony) and to two charges of recklessly endangering
others, he received an unusual sentence:
the court ordered him to abstain from sex for five
years and placed him under house arrest for six
months. Although such convictions are increasingly
common, courts have also recognized that
not knowing one has HIV can be a valid defense.
In C. A. U. v. R. L., 438 N.W.2d 441 (1989), for
example, the Minnesota Court of Appeals
affirmed a trial court’s finding that the plaintiff
could not recover damages from her former
fiancé, who had unknowingly given her the virus.
State Legislation and the Courts To stem
transmission of HIV, states have adopted several
legal measures. Two states attempted to head off
the virus at the pass: Illinois and Louisiana at
one point required HIV blood testing as a prerequisite
to getting a marriage license. Both
states ultimately repealed these statutes because
they were difficult to enforce; couples simply
crossed state lines to be married in neighboring
states. Several states have taken a less stringent
approach, requiring only that applicants for a
marriage license must be informed of the availability—
and advisability—of HIV tests. More
commonly, states criminalize sexual behavior
that can spread AIDS. Michigan law makes it a
felony for an HIV- or AIDS-infected person to
engage in sex without first informing a partner
of the infection. Florida law provides for the
prosecution of any HIV-positive person committing
prostitution, and it permits rape victims
to demand that their attackers undergo testing.
Indiana imposes penalties on persons who recklessly
or knowingly donate blood or semen with
the knowledge that they are HIV-infected.
Older state laws have also been applied to
AIDS. Several states have statutes that make it a
criminal offense for a person with a contagious
disease—including a sexually transmitted disease—
to willfully or knowingly expose another
person to it, and some have amended these laws
specifically to include AIDS. In addition, in
many states, it has long been a crime to participate
in an act of SODOMY. The argument that
punishing sodomy can stem HIV transmission
was made in a case involving a Missouri sodomy
statute specifically limited to homosexual conduct.
In State v. Walsh, 713 S.W.2d 508 (1986),
the Missouri Supreme Court upheld the statute
after finding that it was rationally related to the
state’s legitimate interest in protecting public health. Other AIDS-related laws have been invalidated
in court challenges: for instance, in 1993,
a U.S. district judge struck down a 1987 Utah
statute that invalidated the marriages of people
with AIDS, ruling that it violated the ADA and
the Rehabilitation Act.

Sex is only one kind of behavior that has
prompted criminal prosecution related to AIDS.
Commonly, defendants in AIDS cases have been
prosecuted for assault. In United States v. Moor,
846 F.2d 1163 (8th Cir., 1988), the Eighth Circuit
upheld the conviction of an HIV-infected prisoner
found guilty of assault with a deadly
weapon—his teeth—for biting two prison
guards during a struggle. Teeth were also on trial
in Brock v. State, 555 So. 2d 285 (1989), but the
Alabama Court of Criminal Appeals refused to
regard them as a dangerous weapon. In State v.
Haines, 545 N.E.2d 834 (2d Dist. 1989), the
Indiana Court of Appeals affirmed a conviction
of attempted murder against a man with AIDS
who had slashed his wrists to commit suicide;
when police officers and paramedics refused to
let him die, he began to spit, bite, scratch, and
throw blood.

Civil Litigation TORT LAW has seen an
explosion of AIDS-related suits. This area of law
is used to discourage individuals from subjecting
others to unreasonable risks and to compensate
those who have been injured by
unreasonably risky behavior. The greatest number
of AIDS-related liability lawsuits has
involved the receipt of HIV-infected blood and
blood products. A second group has concerned
the sexual transmission of HIV. A third group
involves AIDS-related psychic distress. In these
cases, plaintiffs have successfully sued and
recovered damages for their fear of having contracted
HIV.

Advances in Treatment Though the search
for an AIDS vaccine has consumed many
researchers, by 2003 no breakthroughs had
appeared. However, other researchers have concentrated
on ways of controlling AIDS through
drug treatment regimens that require individuals
to consume many different types of medications
at the same time. These anti-AIDS
“cocktails” undergo constant study and modification
as researchers learn more about the working
of HIV. The medications are from a family of
drugs called protease inhibitors.

Survival rates have dramatically improved
for those individuals using protease inhibitors,
but other problems have also arisen. Some persons
do not respond to these medications or the
side effects from taking the drugs diminish the
quality of life. Protease inhibitors, for many people,
are intolerable because of nausea, diarrhea,
vomiting, headache, kidney stones, and serious
drug interactions with other medications. By
2003 researchers had found that serious side
effects include increased risk of heart attack,
abnormalities in fat distribution, an increased
propensity toward diabetes, and abnormalities
in cholesterol metabolism.

Cost is another concern associated with protease
inhibitors. To be effective, protease
inhibitors must be used in combination with at
least two other anti-HIV drugs. Annual costs for
this treatment ranges between $12,000-$15,000
per person. Those persons without private
health insurance must rely on public programs
such as the AIDS Drug Assistance Program
(ADAP), a federally funded initiative to provide
AIDS-related drugs to people with HIV. Most
ADAP programs, which are administered by states, have lacked the funding to enroll everyone
in need.

International Issues By 2003 the international
AIDS problem had become a crisis in
Africa and parts of Asia. The UNITED NATIONS
(UN) and the World Health Organization
(WHO) have worked together to address the
issues of prevention and treatment, but the statistics
reveal grim conditions. In December 2002
a joint UN-WHO report disclosed that 42 million
people in the world are living with HIV and
AIDS. In 2002 five million people contracted
HIV and over three million people died of AIDS.
The situation is gravest in sub-Saharan Africa,
where over 29 million adults and children are
living with HIV and AIDS, contracted mainly
through heterosexual contact. These figures
stand in stark contrast to North America, where
less than one million people are living with HIV
and AIDS.

The growth of AIDS in Africa and Asia has
raised worries about global political and economic
stability. Governments in these ravaged
countries have not been able to afford the antiviral
drugs. In 2002 pharmaceutical companies
agreed to sell these drugs to these countries as
generic drugs, dropping the cost from $12,000
to $300 a year per patient; yet even at these
prices many governments would be hard pressed
to purchase them.

In 2003, President GEORGE W. BUSH proposed
spending $15 billion over five years to
support international AIDS prevention and the
purchase of anti-viral drugs. The largest share of
the money would be contributed directly by the
United States to other countries, such as
through programs sponsored by the U.S. Agency
for International Development. The proposal
would account for almost half the money in a
global fund committed to fight HIV and AIDS.

FURTHER READINGS
ACLU. 1996. The Rights of People Who Are HIV Positive. Carbondale:
Southern Illinois Univ. Press.
—. 1995a. AIDS and Civil Liberties. Briefing paper no.
13.
—. 1995b. Lesbian and Gay Rights. Briefing paper no.
18.
—. 1994. ACLU Wins Precedent-Setting Claim in AIDS
Case; Federal Court Rules That ADA Covers AIDS Discrimination.
Press release, November 21.
—. 1993. ACLU Files AIDS Discrimination Suit; Challenges
South Carolina Insurance Risk Pool. Press release,
April 6.
“Fighting Aids.” February 10, 2003. PBS News Hour. Available
online at (accessed May 29, 2003).
Health and Human Services Department. Social Security
Administration. 1991. A Guide to Social Security and SSI
Disability Benefits for People with HIV Infection. Pub.
no. 05-10020, September.
Jarvis, Robert M., et al., eds. 1996. AIDS Law in a Nutshell. 2d
ed.Minneapolis,Minn.:West.
Rollins, Joe. 2002. “AIDS, Law, and the Rhetoric of Sexuality.”
Law & Society Review 36 (April).
White House. Office of the Press Secretary. 1994. Proclamation
for World AIDS Day, November 30, 1994. Press
release.

CROSS-REFERENCES
Disability Discrimination; Discrimination; Food and Drug
Administration; Gay and Lesbian Rights; Health Care Law;
Patients’ Rights; Physicians and Surgeons; Privacy.

Reading, Writing, and AIDS

Teaching young people about AIDS is
an enormously popular idea. Since
the late 1980s, Gallup Polls have revealed
that over 90 percent of respondents think
public schools should do so. Agreement
ends there, however. In the 1990s, more
angry debate focused on AIDS education
than on any issue facing schools since
court-ordered busing in the 1970s. The
core question of the debate is simple:
What is the best way to equip students to
protect themselves from this fatal disease?
The answers may be miles apart. For one
side, “equipping” means advocating the
only sure means of protection, sexual and
drug abstinence. For the other,
it means supporting abstinence
along with knowledge of sexual
practices, the use of clean drug
needles, and the use of prophylactics
(condoms), which are
distributed in some schools.
Between these positions lie a
great many issues of disagreement that
have bitterly divided school districts, provoked
lawsuits, and cost high-ranking
Washington, D.C., officials their jobs.
Sex is an old battleground in public
education. Liberals and conservatives
argued over it in the decade following the
sexual revolution of the 1960s, initially
over whether sexual issues should be discussed
in schools. After all, earlier generations
who went to public schools
learned mainly about reproductive
organs. As new classes began appearing
in the late 1970s, children learned about
the sexual choices people make. If liberals
appeared to win the “sex ed.” debate,
growing social problems helped: rises in
teen pregnancies and sexually transmitted
diseases secured a place for more
explicit school health classes. The much
greater threat of AIDS pushed state legislatures
into action. By the mid-1990s,
AIDS prevention classes had been mandated
in at least 34 states and recommended
in 14. But the appearance of
even more explicit teaching has reinvigorated
the sex ed. debate.
Supporters of a comprehensive
approach say AIDS demands frankness.
Originating in comprehensive sex ed.
theory, their ideas also came from pacesetting
health authorities such
as former surgeon general C.
EVERETT KOOP. Arguing in
the mid-1980s that AIDS
classes should be specific and
detailed and taught as early as
kindergarten, Koop countered
conservative arguments by saying,
“Those who say ‘I don’t want my
child sexually educated’ are hiding their
heads in the sand.” This position holds
that educators are obligated to teach kids
everything that can stop the spread of the
disease. “What is the moral responsibility?”
Jerald Newberry, a health coordinator
of Virginia schools, asked the
Washington Times in 1992. “I think it’s
gigantic.” Abstinence is a part of this
approach, but expecting teens to refrain
from having sex was considered by many
to be unrealistic given some studies that
show that nearly three out of four high
school students have had sex before graduation.
Thus, the comprehensive curriculum
might well include explaining the
proper use of condoms, discussing
homosexual practices, describing the
sterilization of drug needles, and so on.
Abstinence-only adherents think
being less frank is being more responsible.
They view sexuality as a moral issue
properly left for parents to discuss with
their children and one that lies beyond
the responsibilities of schools. The conservative
columnist Cal Thomas spoke
for this viewpoint when he argued that
parents “have lost a significant right to
rear their children according to their own
moral standards.” Other objections come
from religious conservatives who oppose
any neutral or positive discussion of
homosexuality. Koop, for example, was
blasted for allegedly “sponsoring homosexually
oriented curricula” and “teaching
buggery in the 3rd grade.” In addition
to voicing moral objections, critics say
comprehensive sex ed. is generally a failure
because it encourages a false sense of
security among teens that leads to experimentation
with sex or drugs. “We have
given children more information presumably
because we think it will change
their behavior, and yet the behavior has
gotten worse, not better,” said Gary
Bauer, president of the Family Research
Council.
Each side accuses the other of deepening
the crisis. Comprehensive
approach supporters think abstinenceonly
backers are moral censors, indifferent
to pragmatic solutions. The liberal
People for the American Way attacked “a
growing wave of CENSORSHIP ravaging sexuality education” that promotes only
“narrow” curricula. It mocked such abstinence-
only programs as Teen Aid and Sex
Respect, both of which have brought
threats of legal action from the AMERICAN
CIVIL LIBERTIES UNION and
Planned Parenthood. The conservative
American Enterprise Institute asserted
that liberal programs only prod students
toward bad choices: “There has been a
transition from protection to preparation.”
Neither side can agree on any data,
other than to point out that the problems
of AIDS and teen sexuality have appeared
to worsen.
Nowhere are the two sides more split
than on the issue of condoms. Schools in
at least 23 cities sought to distribute condoms
during the mid- to late-1990s. The
assumption was that since students will
have sex anyway—despite warnings not
to—they had better be protected. Conservatives
see this position as a cop-out in
two ways: it sells values short and it
undermines parental authority. In 1992,
in Washington, D.C., critics erupted over
a decision by the Public Health Commission
to hand out condoms in junior and
senior high schools without parental consent.
William Brown, president of the
D.C. Congress of Parents and Teachers,
complained: “We are looking to build and
reinforce and establish family values
where they have been lost, and here we
have an agency of our government that
totally ignores those things we are working
for.” Dr. Mary Ellen Bradshaw, the
commission’s chief, replied: “Our whole
focus is to save the lives of these children,
stressing abstinence as the only sure way
to avoid [AIDS] and making condoms
available only after intensive education.”
In other cities, upset parents simply sued.
By 1992, CLASS ACTION lawsuits had been
brought against school districts in New
York City, Seattle, and Falmouth, Massachusetts,
arguing that condom distribution
violated parents’ right to privacy.
AIDS education in schools is not
merely a local issue.While most decisions
are made by states and school boards the
federal government plays two important
roles. First, it funds AIDS prevention
programs: abstinence-based programs
receive funding under the Adolescent
Family Life Act of 1981, and programs
that promote contraceptive use among
teenagers are supported through the
Family Planning Act of 1970. How these
funds are spent is a matter of local control,
but conservatives have sought to put
limits on program content. During the
early 1990s, Senator JESSE HELMS
(R-NC) twice tried to ban funding for
programs that were perceived to promote
homosexuality or that did not continuously
teach abstinence as the only effective
protection against AIDS. In response,
one federal agency, the Center for Disease
Control, adopted regulations that prohibited
the use of funds on any materials
that are found offensive by some members
of communities.
The second role of the federal government
is largely symbolic but no less
controversial. It is to guide school efforts
through advice, sponsorship, and public
speeches, and primarily involves the
offices of the surgeon general and of the
federal AIDS policy coordinator. Koop,
who was a Reagan appointee, roused a
fair degree of controversy, yet it was
nothing compared to the upheaval that
greeted statements by appointees of the
Clinton administration. AIDS policy czar
Kristine Gebbie and surgeon general M.
Joycelyn Elders were forced from their
posts after making statements that conservatives
found appalling—Gebbie promoting
attitudes toward pleasurable sex
and Elders indicating a willingness to
have schools talk about masturbation.
Thereafter, the administration frequently
stressed abstinence as its top priority for
school AIDS programs.
Problems surrounding AIDS education
are unlikely to go away. Communities
frequently disagree on sex education
itself, and compromise is often difficult
on such a divisive issue of values. As the
experience of the Clinton administration
suggested,Washington, D.C., could easily
exacerbate an already contentious area,
with policy coordinators becoming lightning
rods for criticism. On the matter of
what to say to kids about AIDS, poll data
have been misleading. U.S. citizens are of
three minds: say a lot, say a little, and do
not say what the other side thinks.
FURTHER READINGS
Kelly, Pat. 1998. Coping When Your Friend Is
HIV-Positive. New York: Rosen Publishing
Group.
National Commission on Acquired Immune
Deficiency Syndrome. 1993. National
Commission on AIDS: An Expanding Tragedy:
The Final Report of the National Commission
on AIDS. Washington, D.C.:
National Commission on Acquired
Immune Deficiency Syndrome.
World Health Organization. 1989. Legislative
Responses to AIDS. Boston: Martinus
Nijhoff Publishers.
CROSS-REFERENCES
Civil Rights Acts; Schools and School Districts.

What Causes AIDS—and What Does Not?

Since the first case was identified in 1981,
acquired immune deficiency syndrome (AIDS)
has grown into an epidemic that has taken approximately
500,000 lives in the United States alone. The
Joint UNITED NATIONS Programme on HIV/AIDS estimates
that at the end of 2002 there were 42 million
people living with HIV/AIDS worldwide. During 2002,
AIDS caused the deaths of an estimated 3.1 million
people. At this time, women were increasingly
affected by AIDS; it was estimated that women
comprised approximately 50 percent or 19.2 million
of the 38.6 million adults living with HIV or AIDS
worldwide. No cure has been found, although existing
treatment employing multiple drugs has made
some gains in prolonging life and reducing pain.
Despite the limits of medical science, however,
much is known about the disease. It is caused by the
human immunodeficiency virus (HIV). Transmitted
by bodily fluids from person to person, HIV invades
certain key blood cells that are needed to fight off
infections. HIV replicates, spreads, and destroys
these host cells. When the body’s immune system
becomes deficient, the person becomes AIDSsymptomatic,
which means the person develops
infections that the body can no longer ward off. Ultimately,
a person with AIDS dies from diseases
caused by other infections. The leading killer is a
form of pneumonia.
Most of the fear surrounding AIDS has to do with
its most common form of transmission: sexual behavior.
The virus can be passed through any behavior
that involves the exchange of blood, semen, or vaginal
secretions. Anal intercourse is the highest-risk
activity, but oral or vaginal intercourse is dangerous
too. Thus, federal health authorities recommend
using a condom—yet they caution that condoms are
not 100 percent effective; condoms can leak, and
they can break. Highly accurate HIV testing is widely
available, and often advisable, since infected people
can feel perfectly healthy. Although the virus can be
contracted immediately upon exposure to it, symptoms
of full-blown AIDS may take up to ten years to
appear.
In addition to sexual behavior, only a few other
means of HIV transmission exist. Sharing unsterilized
needles used in drug injections is one way, owing to
the exchange of blood on the needle, and thus intravenous
drug users are an extremely high-risk group.
Several cities have experimented with programs that
offer free, clean needles. These programs have seen
up to a 75 percent reduction in new HIV cases.
Receipt of donations of blood, semen, organs, and
other human tissue can also transmit HIV, although
here, at least, screening methods have proved
largely successful. Childbirth and breast feeding are
also avenues of transmission, and thus children of
HIV-positive mothers may be at risk.
The medical facts about HIV and AIDS are especially
relevant to the law. Unless exposed in one of a
few very specific ways, most people have nothing to
fear. Casual contact with people who are infected is
safe. Current medical knowledge is quite strong on
this point: no one is known to have caught the virus by
sitting next to, shaking the hand of, or breathing the
same air as an infected person. For this reason, U.S.
law has moved to protect the CIVIL RIGHTS of HIVpositive
and AIDS-symptomatic persons. Section 504
of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994)
prohibits discrimination against otherwise qualified
disabled individuals, including individuals with a contagious
disease or an infection such as HIV or AIDS.
The AIDS quilt, on display in Washington, D.C., has
become a well-known symbol of support for victims
of AIDS and their families. Families and supporters of
victims of AIDS create a panel to commemorate that
person’s life and that panel is joined with others from
around the country to create the quilt.
FURTHER READINGS
Barnett, Tony, and Alan Whiteside. 2003. AIDS in the Twenty-
First Century. New York: Palgrave Macmillan.
Farmer, Paul. 2003. Pathologies of Power: Health, Human
Rights, and the New War on the Poor. Berkeley: Univ. of
California Press.
CROSS-REFERENCES
Discrimination.