The Palo Alto school district has fired back in response to an amicus brief the U.S. Departments of Education and Justice filed 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.
Attorney Rodney Levin of McArthur & Levin, LLP filed a response brief on March 1 on behalf of the district, supporting a federal district court's decision to dismiss the family's federal lawsuit. The response brief calls the case "nothing more than a garden-variety ADA/Section 504 claim" and defends the "obligation of school officials to maintain the health/safety of all of their students and the freedom to discharge that duty."
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 "top" Stanford University doctor's recommendation; but that doctor has never examined Colman nor spoken with his parents, according to an appeal the Chadams filed.
The response brief states that the school district received information in September 2012 from Carlos Milla, director of the Pediatric Cystic Fibrosis Center at Lucile Packard Children's Hospital Stanford, that "students suffering from cystic fibrosis should not attend the same school for safety reasons" and "must not be in the same school together." The brief says the district also received a letter from Colman's previous physician, who "admitted that he was concerned enough about C.C.'s condition that he examined him 'on a regular basis to check that there is no sign of CF disease.'"
The Departments of Justice and Education argued in their amicus brief that Milla's communication to the district 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 amicus 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.
In September 2013, the Chadams filed a federal lawsuit 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 eventually 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 amicus brief reads.
This action was "absolutely correct," Levin wrote in PAUSD's response brief, and the court's decision should be upheld.
The response brief argues that "the inquiry is not whether a direct threat actually existed (i.e., cystic fibrosis vs. genetic marker), but rather whether district staff believed there was a significant health/safety risk."
"This case in part illustrates the heavy burden of student health/safety that school administrators bear," the response brief reads. District officials "considered" the risks at hand and "understood (them) to be substantial and real," the brief continues.
Levin compares the case to Lockett v. Catalina Channel Exp., Inc, in which a ferry operator excluded a passenger with a service animal from a lounge area based on the fact that that area had been designated as a "dander free" area, and not because the operator knew that any passenger in the lounge that day was allergic to animal dander. Ultimately, a court ruled that that particular exclusion to be a reasonable judgment, the brief states.
"Here, the threat was not one of a pet dander allergy, but of a severe medical calamity enough to prompt a doctor to state that the students 'must not' be within the same school environment," the response brief continues. "The potential threat was not speculative as in Lockett, where there may/may not have been an allergic passenger on board with a equally unknown allergy severity. Rather, there were in fact students suffering from cystic fibrosis at the school. Our case does not involve adult customers of a business as in Lockett, but rather involves minor children entrusted to the care of school officials in a confined school environment."
The school district's response brief also rejects the Chadams' claim that by involuntarily transferring Colman from his neighborhood school, the district denied him certain rights to an educational program.
"While it may be true that there is a general right to an education, there is no right to be educated at a particular school within a district," the response brief states.
The case has also generated national interest as an example of genetic discrimination. The Chadams' lawyer, Stephen Jaffe, called it the "test case" for the issue in a February Wired Magazine article.
PAUSD's lawyers, however, argue that the case is not about the "sinister use of genetics."
"Rather, the holding of the district court and the meat of the dispute have everything to do with the obligation of school officials to maintain the health/safety of all of their students and the freedom to discharge that duty," the response brief states. "For the safety of all children, district staff need to be able to make such critical decisions without the fear of reprisal and liability.
"Contrary to appellants' assertion, public policy dictates that the decisions of school officials, and the decision of the district court, be upheld."