Wednesday, December 21, 2016

Justice Department finds violation in Pea Ridge schools effort to require HIV tests

Posted By on Wed, Dec 21, 2016 at 3:00 PM

HOW IT STARTED: This notice triggered an investigation that has resulted in a finding that the Pea Ridge School District failed to follow law on serving students with disabilities.
  • HOW IT STARTED: This notice triggered an investigation that has resulted in a finding that the Pea Ridge School District failed to follow law on serving students with disabilities.
The U.S. Justice Department has concluded that the Pea Ridge School District failed to comply with the law when it refused to allow three children to attend school unless they could provide documentation that they were not HIV positive.

The case drew worldwide attention in 2013.  The three siblings were in foster care through the state and two were disabled. Federal law won't allow schools to bar students even if they ARE HIV-positive. The situation was complicated by indications that the tests were done and the results might have been provided to the school district. The children were readmitted to school.

The handling of the children drew a complaint from Disability Rights Arkansas, which announced and praised the Justice Department findings today, including remedial measures for violating Title II, which prohibits discrimination against people with disabilities.

Said the organization:

“The actions taken by the U.S. Department of Justice against the Pea Ridge School District and the work conducted by Disability Rights Arkansas (DRA) will hopefully prevent this type of discrimination from happening again in the Pea Ridge School District and across the state,” says Tom Masseau, executive director of DRA. “The fact that the individuals had to endure such scrutiny from the school district, as well as the community, is outrageous. This type of discrimination not only violates the law but unjustly perpetuates stigma and fear against people with disabilities.”

The Justice Department asked for this remediation:

* Revise school policies stating the school does not discriminate on the basis of disability, including HIV.

* Prohibit requests for HIV status or test results of any prospective student as a condition to receive services, programs, or activities through the school district.

* Require training of employees on the policy.

* Pay compensatory damages to the family for injuries caused by the school district’s failure to comply with Title II.

My reporting at the time indicated that behavioral issues with some students might have heightened district concerns, though Masseau said this was irrelevant to application of the law.

The Justice Department letter, address to the district's attorney, Marshall Ney of Rogers, said it hoped the district would co-operate in the resolution and to notify Justice by Monday if they would do so. Otherwise, a lawsuit could be possible, the letter said.

My calls to Ney and Superintendent Rick Neal have thus far not been returned. Masseau said he also had not heard whether the district planned to cooperate. He said they'd been resistant in the initial stages of the controversy. I also couldn't reach anyone at the Justice Department.

Here's the Justice Department finding to Pea Ridge.
UPDATE: I received this e-mail from Rick Neal:

All actions taken by the District were on the advice of the District’s attorney at the time. The DOJ’s findings and the attorney’s advice are not consistent. That said, we intend to work with the DOJ to put this matter behind us.
(Note: Ney was not the district's representative at the time of the controversy in 2013.)

UPDATE II: Said Ney in an e-mail:

I did not read the letter to require a substantive response – just a response – so my effort has been to schedule a call with DOJ to discuss. I expect a call to occur in the near future, but it has not been scheduled yet.

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