The U.S. Departments of Education and Justice have filed an amicus brief in support of a former Palo Alto Unified School District family who allege the district violated their son's First Amendment rights to the privacy of his medical and other personal information and the Americans with Disabilities Act (ADA) when a teacher allegedly divulged that their son carries a genetic marker for cystic fibrosis.
The amicus brief, filed in the U.S. Ninth Circuit Court of Appeals on Jan. 21, urges reversal of a court decision that ruled against the parents' lawsuit. In their brief, the federal agencies argue that the parents alleged sufficient facts to claim the school district intentionally discriminated against their son, violating the Americans With Disabilities Act and Section 504 of the Rehabilitation Act. Thus, the agencies assert, the lawsuit is worthy of consideration by the court.
Parents James and Jennifer Chadam filed action seeking damages in September 2013, after their son Colman, who carries the genetic marker for cystic fibrosis (CF) but does not have the disease, had been transferred out of his Palo Alto neighborhood school, according to court documents filed in the U.S. Ninth Circuit Court of Appeals on Jan. 14.
But because Colman carries the genetic marker, and that information was made public to the family of two other students who actively have the disease, the school district forced Colman to leave Jordan Middle School involuntarily after the parents of the other two students complained, according to court records.
The school district claimed it made the decision to send the Chadams' son to Terman Middle School allegedly based on a doctor's recommendation; but that doctor has never examined Colman nor spoken with his parents, according to an appeal the Chadams filed.
The school district removed Colman from Jordan when he was 11 years old in 2012, but he returned to the school after the Chadams sought an injunction in Santa Clara County Superior Court. The Chadams and the school district reached a settlement in that case whereby Colman could return to Jordan, provided that protocols to avoid cross-infection among cystic fibrosis patients were followed.
The Chadams filed a federal lawsuit in September 2013 to recoup their legal fees and for unspecified damages. The ordeal caused the family embarrassment and humiliation and created medical issues and financial costs, according to the lawsuit.
The district moved to dismiss this lawsuit, according to the amicus brief. The court sided with the district, concluding that the district had "alleged sufficient facts to support the inference that defendant 'regarded' C.C. as an 'individual with a disability' and acted on that mistaken belief," the brief reads.
The Chadams then filed an appeal in December 2014, which the amicus brief supports. There are "sufficient facts" to support their claim that by involuntarily transferring Colman from his neighborhood school, the district denied him certain rights to an educational program and discriminated him because of a "perceived disability," the brief reads. The amicus brief also supports the Chadams' claim that the district acted with "discriminatory intent," rendering it liable for monetary damages.
"That is enough to survive a motion to dismiss," the amicus brief states.
"The allegations in this case present a quintessential ADA claim allegations that a child was denied access to his neighborhood school based on prejudice, stereotypes, and unfounded fear," according to the brief. "Here, that fear was that C.C. because of a perceived, but not actual and, hence, misunderstood, medical condition might put the health of two other students at risk.
"But a public entity cannot deny an otherwise qualified individual the benefit of a service, program, or activity based on the possibility that a child's disability might cause a direct threat to others without making an individualized 'direct threat' assessment 'based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence.'"
The district and the defendant also bear the "heavy burden" of demonstrating that Colman posed a direct threat a "significant risk to the healthy and safety of others," the brief states rather than simply a "good faith belief that a risk exists."
This "direct threat" assessment should address the nature, duration and severity of the risk; the probability that any potential injury will actually occur; and whether reasonable modifications to policies, practices or procedures could mitigate the risk, according to the brief.
Palo Alto Unified "had plenty of time to make an informed decision" and took nearly a month to resolve the matter after the parents of the students with cystic fibrosis took them out of school, the brief states, challenging its claim that it had to make an immediate, one-time decision to address the risk.
The district alleges it relied on letters from Carlos Milla, director of the Pediatric Cystic Fibrosis Center at Lucile Packard Children's Hospital Stanford, recommending that Colman be removed from school for the safety of other students with cystic fibrosis, but the Departments of Justice and Education writes that Milla's letters didn't address "the question at issue in this case whether a child with a genetic marker for cystic fibrosis, but not the disease itself, may pose a direct threat to the health of children with cystic fibrosis."
The Chadams repeatedly told school officials their son had the marker but not the disease itself, the brief notes.
According to the Cystic Fibrosis Foundation, there is a critical distinction between a person who is a carrier and has one copy of a defective cystic fibrosis gene and a person who has cystic fibrosis.
Cystic fibrosis is a genetic disease in which a person must have inherited two defective CF genes one from each parent in order to have the disease. As a carrier, Colman does not have the disease and therefore does not pose any cross-infection threat to others with cystic fibrosis, according to the foundation.
The brief questions whether the district used "reasonable judgment" in reaching the conclusion that having the genetic marker for cystic fibrosis but not the disease itself constituted a health risk to other children, requiring Colman's transfer.
These are "fact questions that cannot be resolved in the context of a motion to dismiss," the brief reads, and the "district court's conclusion to the contrary continues legal error."
The Departments of Justice and Education write in the brief that although the Chadams admitted the district's "actions resulted from it belief that student safety was at risk," rather than a decision made in bad faith, a "discriminatory intent standard" does not require they prove any ill will. Simply by showing the district intentionally excluded their son from access to a benefit or service because of a disability qualifies them for damages, according to the brief.
The district said in a statement that it "cares about and is committed to the safety and well-being of its student population.
"That said, the case is on appeal because the Federal District Court found the claims insufficient to allege fault on the part of the District," the statement continues. "PAUSD continues to agree with the ruling of the Federal District Court."