Number range CHAPTER IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

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UNITED STATES OF AMERICA, )

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Plaintiff, )

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v\. )

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HAPPY TIME DAY CARE CENTER, ) Case No. 97-C-439-C

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Defendant. )

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KIDDIE RANCH, ) Case No. 97-C-440-C

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Defendant. )

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ABC NURSERY, INC., ) Case No. 97-C-441-C

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Defendant. )

[)]{.underline}

**PLAINTIFF\'S OPPOSITION TO**

**DEFENDANTS\' MOTION FOR SUMMARY JUDGMENT**

Plaintiff, by Peggy A. Lautenschlager, United States Attorney for the
Western District of Wisconsin, and by David E. Jones, Assistant United
States Attorney for that District, submits this opposition to
defendants\' motion for summary judgment.[^1] Defendants essentially
argue that the Americans with Disabilities Act ("ADA") did not prohibit
discrimination against a child named L.W., who is infected with Human
Immunodeficiency Virus ("HIV"). As set forth below, the ADA protects
L.W. from discrimination because his HIV infection is an impairment that
substantially limits the major life activities of procreation, living a
normal life span, growing and thriving, socializing, and caring for
himself by fighting-off infectious and opportunistic diseases.[^2]
Moreover, the record evidence indicates that L.W. was "regarded as"
being disabled by defendants and others, thereby making summary judgment
inappropriate (particularly if defendants dispute this evidence).
Accordingly, plaintiff asks this Court to deny defendants\' motion for
summary judgment and to allow this matter to proceed to trial.

**STATEMENT OF FACTS**

I. [The Characteristics of L.W.\'s HIV Infection]{.underline}

L.W. is an African-American male born on December 27, 1992. Compl. ¶ 5.
He is cared for by his maternal aunt and guardian, Rosetta McNuckle.
Deposition of Rosetta McNuckle p. 5, l. 21-25; p. 6, l. 7-20 (Jun. 19,
1997).

L.W. has been diagnosed since at least 1994 as being infected with HIV,
and according to L.W.\'s treating physician at the University of
Wisconsin Hospital and Clinics, Dr. James Gern, L.W. is still infected
with HIV. Affidavit of James Gern, M.D. ¶¶ 2, 6 (Feb. 19, 1998). Since
January 1995, Dr. Gern has attempted to treat L.W.\'s HIV infection by
prescribing the drugs AZT and TMP-SMX, which is a prophylactic
medication to prevent a type of pneumonia that is a common opportunistic
infection in HIV-positive patients. [Id.]{.underline}

According to the affidavit of Dr. Catherine Wilfert, Professor Emerita
of Pediatric Infectious Diseases at Duke University Medical Center,
L.W.\'s HIV infection is contagious through contact between L.W.\'s
blood and the blood of another person. Affidavit of Catherine Wilfert,
M.D. ¶ 7 (Feb. 17, 1998). Should he reach puberty, L.W.\'s HIV infection
will also be contagious through sexual contact. [Id.]{.underline} ¶ 8.

HIV infection manifests itself by, among other things, impairing the
nervous system and by attacking and destroying CD4+ T cells, which are
lymphocytes (white blood cells produced by bone marrow and maturing in
thymus and lymphoid tissue). Wilfert Aff. ¶ 8. CD4 lymphocytes are
responsible for responding to infectious agents, and as L.W.\'s HIV
causes his T-cell count to diminish, he will become ever more vulnerable
to infections and diseases caused by these organisms. [Id.]{.underline}
¶ 9. Thus, HIV causes physiological disorders of the hemic (blood) and
lymphatic systems. [Id.]{.underline} ¶ 6.

L.W. is enduring the debilitating effects of HIV: in November 1995, L.W.
contracted chicken pox and had to be hospitalized for four days due to
concerns about his HIV infection. Gern Aff. ¶ 3. During his
hospitalization, L.W. was treated intravenously with the antiviral drug
acyclovir, and he was also diagnosed with thrush, which was treated with
nystatin. [Id.]{.underline} In Dr. Gern\'s experience, children without
HIV do not ordinarily have to be hospitalized when they contract chicken
pox, nor do they undergo treatment with acyclovir. [Id.]{.underline} At
the time of L.W.\'s discharge from the hospital, his CD4+ T cell count
had fallen to 330. [Id.]{.underline} A CD4+ T cell count for a child
between the ages of one and five is generally not considered normal
until it registers at or above 1,000. [Id.]{.underline}; [see
also]{.underline} Wilfert Aff. ¶ 19.

This led Dr. Gern to begin a new treatment regime for L.W., consisting
of AZT, TMP-SMX, and DDI. Gern Aff. ¶ 4. In April 1997, Dr. Gern
substituted 3TC for DDI and tried to have L.W. take a protease
inhibitor, but the child could not tolerate the taste so this medication
was stopped. [Id.]{.underline} The dosage and frequency of L.W.\'s
medications have varied, but since March 1996 he has taken AZT three
times a day. He also takes 3TC twice a day and TMP-SMX twice a day three
days a week. He took DDI twice a day and the protease inhibitor three
times a day. [Id.]{.underline} Dr. Gern believes that L.W.\'s treatment
regime of taking AZT in combination with DDI or 3TC has temporarily
stabilized L.W.\'s CD4+ T cell count. [Id.]{.underline} ¶ 6. These drugs
appear to slow the onset of AIDS in persons infected with HIV, and they
may act to reduce the speed by which L.W.\'s T cells are being
destroyed. Wilfert Aff. ¶ 10. Without AZT, DDI, and 3TC, it is likely
that L.W.\'s T-cell count would be lower than it is today, with a
consequent increase in his vulnerability to opportunistic infections.
[Id.]{.underline} ¶ 12.

These drugs, however, can cause gastrointestinal and nutritional
problems through such side effects as loss of appetite, nausea, anemia,
and pancreatitis. Wilfert Aff. ¶ 11. Moreover, L.W. will need to
continue enduring medications, blood tests, and frequent visits to
health care facilities as a result of his HIV infection.
[Id.]{.underline} ¶ 13. And because HIV has an ability to mutate and
become resistant to drugs, rendering them ineffective, it is likely that
L.W. will have to change to other medications that can also have adverse
side effects just as AZT, 3TC, and DDI do. [Id.]{.underline} ¶ 14.

But there is no cure for HIV infection \-- it is, to date, inevitably
fatal. Wilfert Aff. ¶ 15. Consequently, it is statistically certain that
L.W.\'s HIV infection will progress to Acquired Immunodeficiency
Syndrome (AIDS), which will cause profound immunosuppression and will
give rise to L.W. suffering from fatal opportunistic infections and
complications of HIV infection such as pneumonia, intractable diarrhea,
and decline in central nervous system function. [Id.]{.underline} ¶ 16.
The prognosis for L.W. is that he will die as a direct consequence of
his HIV infection, and it is only 50% likely that he will reach his
ninth or tenth birthday. [Id.]{.underline} ¶ 17.

Indeed, the term "asymptomatic HIV infection" is a misnomer that does
not accurately reflect the effects that HIV infection has on L.W.
Wilfert Aff. ¶ 18. In his deposition, Dr. Gern refused to categorize
L.W. as being asymptomatic. Deposition of James Gern p. 43, l. 13-16
(Nov. 26, 1997). As set forth in Ex. A to Dr. Gern\'s affidavit, the
Centers for Disease Control and Prevention have established a diagnostic
chart that allows physicians to categorize a person with HIV depending
on how the infection is manifesting itself in an individual. Gern Aff. ¶
7. Dr. Gern has concluded that L.W.\'s HIV classification has ranged
between B-2 (moderately symptomatic and moderately immunosuppressed) and
C-2 (severely symptomatic and moderately immunosuppressed).
[Id.]{.underline} According to the CDC chart, a child L.W.\'s age in
category B-2 has a mean or average life span of 99 months and a median
life span of 81 months, and in C-2 has an average life span of 34 months
and a median life span of 23 months. Gern Aff. ¶ 7 & Ex. A. The normal
life expectancy of an African-American male is approximately 64 years.
U.S. Bureau of the Census, [Statistical Abstract of the United
States]{.underline} 89 (116th ed. Oct. 1996).

Dr. Gern\'s classification of L.W.\'s HIV infection is based in part on
L.W.\'s CD4+ T cell count, which from December 1995 through July 1996,
ranged from 580 to 520. Gern Aff. ¶ 8. A child with CD4+ T cell levels
in the range exhibited by L.W. has a diminished ability to fight off
diseases compared to children with normal CD4+ T cell ranges. Wilfert
Aff. ¶ 20.

Another physiological effect of L.W.\'s HIV is that it has caused his
growth consistently to fall well below the 5th percentile for height and
weight. Gern Aff. ¶¶ 8-9; Wilfert Aff. ¶ 22. For example, in November
1997, L.W. was 37 inches tall. At that time he was 4 years and 10 months
of age, but he was as tall as an average child at age 2 years and 9
months. Gern Aff. ¶ 8. "AIDS in children is frequently associated with
failure to thrive (FTT), defined as a subnormal rate of growth and
weight gain for age." Louisa Laue & Gordon B. Cutler Jr., [Abnormalities
in Growth and Development]{.underline}, [in]{.underline} [Pediatric
AIDS]{.underline} 575 (P.A. Pizzo & C.M. Wilfert eds. 1994). According
to Dr. Gern, L.W. was diagnosed with FTT in December 1994, and his FTT
was one of the reasons his CDC classification has ranged between B-2 and
C-2. Gern Aff. ¶ 8. Dr. Gern has reviewed standardized growth charts for
healthy children whose parents are the estimated height of L.W.\'s
mother and father and has concluded that L.W. is much smaller than he
should be given the size of his parents. Gern Aff. ¶ 9. L.W. has no
medical conditions other than HIV infection that could account for his
growth delay, and it is Dr. Gern\'s medical opinion that the most likely
cause of L.W.\'s growth delay is HIV infection. [Id.]{.underline} Based
on her clinical experience, Dr. Wilfert believes that L.W. will likely
not recover from his FTT and that this condition will continue to affect
him until his early death. Wilfert Aff. ¶ 22.

L.W.\'s current Head Start teacher, Joelle Henkins, testified in her
deposition that L.W. and one other child are the smallest in his
fifteen-student class (Henkins Dep. p. 24, l. 20-25) and that there is a
"noticeable difference" in size between L.W. and the other students.
[Id.]{.underline} p. 25, l. 1-4. As a result of L.W.\'s small size, the
other children in his class "have a tendency to mother him."
[Id.]{.underline} p. 25, l. 8.

Children with HIV infection, such as L.W., have a near-negligible
opportunity to reproduce as do others without HIV. Wilfert Aff. ¶ 24.
First, L.W. will likely have a delayed onset of puberty, the period in
which persons without HIV develop the physiological capability to
reproduce, and given his life expectancy, L.W. will likely die before
reaching puberty. Wilfert Aff. ¶ 23. Second, even if he were to survive
long enough to reach puberty, L.W. could not reproduce without imposing
a serious risk of spreading his fatal disease to his partner or to his
infant. [Id.]{.underline} ¶ 25.

Due to all these effects, Dr. Wilfert\'s expert medical opinion is that
L.W.\'s HIV infection has substantially limited his ability to live a
normal life span, to grow and thrive at a normal rate, to fight off
diseases, and to procreate. Wilfert. Aff. ¶ 26.

In Rock County, where L.W. resides, persons with HIV may not receive
public assistance unless they have a sufficiently low T-cell count or
other physiological characteristics, and L.W. has received disability
assistance from Rock County Human Services due to his HIV status since
January 1995. Deposition of Pam Casiday p. 9, l. 23-25; p. 10, l. 1-7;
p. 12, l. 17-21 (May 15, 1997).

II\. [L.W.\'s Attempts to Obtain Child Care from Defendants]{.underline}

Rosetta McNuckle is L.W.\'s aunt and has been his guardian since 1993.
McNuckle Dep. p. 5, l. 21-23; p. 6, l. 14-16. Shortly after becoming
L.W.\'s guardian, she learned that L.W. was infected with HIV.
[Id.]{.underline} p. 3, l. 12-15. In addition to L.W., Ms. McNuckle has
four children of her own, ranging in age from 8 to 19. [Id.]{.underline}
p. 4, l. 18.

Ms. McNuckle works at a food processing facility in Beloit, Wisconsin.
McNuckle Dep. p. 8, l. 7-18. She works the third shift, meaning that her
work day begins at 10:00 p.m. and ends at 6:00 a.m. [Id.]{.underline} p.
8, l. 19-25. Since she works the third shift, Ms. McNuckle tries to
sleep in the morning, from about 8:00 a.m. until noon or 1:00 p.m.
[Id.]{.underline} p. 11, l. 18-25; p. 12, l. 1-3. To do this, she seeks
child care for L.W. during the morning period. [Id.]{.underline} p. 12,
l. 12-14. She obtains assistance for L.W. from Rock County Human
Services, and L.W.\'s caseworker since January 1995 has been Pamela
Casiday. Casiday Dep. p. 9, l. 1-13.

A. [Defendant Kiddie Ranch]{.underline}

In February 1996, when L.W. was three years old, Ms. McNuckle obtained
from Ms. Casiday a list of child care centers from Ms. Casiday that had
been previously used by Human Services clients. Casiday Dep. p. 37, l.
22-25; p. 38, l. 3-4. Ms. McNuckle contacted defendant Kiddie Ranch and
initiated the process to get L.W. admitted. McNuckle Dep. p. 61, l.
17-25; p. 62, l. 1-11. Ms. Casiday called Kiddie Ranch on February 23,
1996, to advise them that Human Services would pay L.W.\'s tuition at
the child care center. Casiday Dep. p. 119, l. 13-17. Ms. McNuckle met
with staff from Kiddie Ranch in late February and understood that L.W.
could start at Kiddie Ranch on March 4, 1996. McNuckle Dep. p. 64, l.
1-3. During this meeting, Ms. McNuckle told Kiddie Ranch that L.W. was
HIV positive. [Id.]{.underline} p. 68, l. 1-4. She returned to Kiddie
Ranch on the afternoon of Friday, March 1, 1996, to leave a medical form
required for L.W.\'s admission. [Id.]{.underline} p. 69, l. 11-18.

Later that evening, after she returned home, Ms. McNuckle received a
call from someone at Kiddie Ranch, who said that L.W.\'s spot had been
\"mistakenly\" filled and that there was no longer a vacancy for him.
[Id.]{.underline} p. 70, l. 11-24; p. 71, l. 13-15; p. 73, l. 9-13. Ms.
McNuckle testified that on March 1, Kiddie Ranch did not inform her that
she needed to pay a \$20 registration fee, that she needed to complete a
Registration for Enrollment form, that she needed to submit a Home
Transportation agreement or that she needed to bring in a Rock County
Human Services Day Care Authorization form. [Id.]{.underline} p. 92, l.
4-23; p. 93, l. 1-2.

On the morning of Monday, March 4, 1996, Ms. McNuckle left a message
with Pam Casiday to say that L.W.\'s place had been filled by someone
else. McNuckle Dep. p. 102, l. 4-10; p. 103, l. 3-8. After receiving
this message, Ms. Casiday called Kiddie Ranch on March 4, 1996, to
inquire whether there were any openings for children L.W.\'s age.
Casiday Dep. p. 43, l. 1-4; p. 45, l. 11-13; p. 46 l. 24-25; p. 47,
l. 1. According to a contemporaneous note she kept, Kiddie Ranch told
Ms. Casiday that it had an opening for a three-year old.
[Id.]{.underline} p. 43, l. 1-4; p. 48, l. 7-22.

The owner of Kiddie Ranch, Laura Jo Pearson, stated in response to an
interrogatory that she called Ms. McNuckle on Friday, March 1, 1996, but
only to inform her that she needed to provide certain forms to Kiddie
Ranch. Kiddie Ranch Resp. to Inter. No. 11. In an affidavit filed in
support of defendants\' summary judgment motion, Ms. Pearson states that
she never gave consideration to L.W.\'s physical health. Affidavit of
Laura Jo Pearson ¶ 5 (Jan. 23, 1998). Day Care Licensing Specialist Anne
Carmody testified in her deposition, however, that she received a call
from Ms. Pearson in which she expressed concern "because what if one of
her families found out that this child was HIV positive and would other
families pull their children based on that." Deposition of Anne Carmody
p. 20, l. 24; p. 21, l. 2-7 (Jun. 23, 1997).

B. [Defendant ABC Nursery]{.underline}

Ms. McNuckle then applied to defendant ABC Nursery in March 1996, and
she was told that there were openings for L.W. and that L.W. could start
on or about March 18, 1996. McNuckle Dep. p. 20, l. 1-5; p. 75, l. 3-6;
p. 76, l. 5-12. Ms. McNuckle then visited ABC on or about March 13,
1996, to pick up some registration forms, and at that time she advised
an employee of ABC Nursery that L.W. was infected with HIV.
[Id.]{.underline} p. 78, l. 4-6; p. 79, l. 4-18. When she returned home
to fill out the forms, Ms. McNuckle received a phone call from ABC
Nursery informing her that there was not an opening for L.W.
[Id.]{.underline} p. 80, l. 14-18.

According to the deposition testimony of former ABC Nursery employee
Dora Goldsworthy, an ABC Nursery employee named Bonnie Schill, who was
in charge of enrollment, said that "she \[Schill\] had enrolled a child
who was HIV positive, and she got to get out of it. \*\*\* She said,
\'what I\'ll have to do, Dora, is I won\'t be able to enroll kids for
two or three weeks so that they don\'t catch on or charge me with
discrimination." Deposition of Dora Goldsworthy p. 42, l. 11-19; p. 43,
l. 2-6 (Oct. 2, 1997). Ms.Goldsworthy further testified that Ms. Schill
stated that she was "not going to have any HIV-positive kid working here
with me." [Id.]{.underline} p. 44, l. 13-21.

C. [Defendant Happy Time Day Care Center]{.underline}

Finally, Ms. McNuckle testified that she called Happy Time Day Care
Center in August 1996 to see if they had openings for L.W., and Eula
Buchanan said that Happy Time did have an opening. McNuckle Dep. p. 31,
l. 5-11. In Happy Time\'s discovery responses, Ms. Buchanan attested
that she spoke with Ms. McNuckle on August 19, 1996, and that she met
with Ms. McNuckle on or about August 20, 1996. Happy Time Resp. to
Inter. No. 10. At this meeting, Ms. McNuckle testified that she asked
Ms. Buchanan to enroll L.W. for full days, and then to take him in the
mornings so that he could attend Head Start in the afternoon during the
fall. McNuckle Dep. p. 33, l. 19-24; [see also]{.underline}
[id.]{.underline} p. 34, l. 5-14 ("I specifically told her mornings.").
In the Happy Time discovery responses, defendant denied that Ms.
McNuckle ever requested a full day or a morning slot. Happy Time Resp.
to Req. for Admis. Nos. 1 & 2.

Ms. McNuckle further testified that during her visit she told Ms.
Buchanan that L.W. was HIV positive. [Id.]{.underline} p. 39, l. 14-18.
Ms. Casiday testified that she had a telephone conversation with Ms.
Buchanan on or about August 20, 1996, and that Ms. Buchanan seemed
\"very concerned\" about taking a child infected with HIV. Casiday Dep.
p. 79, l. 16-25; p. 82, l. 9-12. Ms. Casiday also related that as of
August 20, L.W. was scheduled to begin attending Happy Time on August
27. [Id.]{.underline} p. 79, l. 25.

On August 21, 1996, Ms. Buchanan called Rock County Health Services to
express her concern about accepting a child infected with HIV. Affidavit
of Maureen Churchill ¶ 2 (Feb. 18, 1998). Ms. Churchill visited Ms.
Buchanan the same day, and Ms. Buchanan stated that she was having
second thoughts about admitting L.W. [Id.]{.underline} ¶ 3. Ms. Buchanan
also said that staff had threatened to quit if she took the child and
that she was worried that parents might take their children out of the
child care center. [Id.]{.underline} Ms. Churchill advised Ms. Buchanan
about the risks of transmission and about the importance of using
universal precautions. [Id.]{.underline} ¶ 4. At the end of Ms.
Churchill\'s visit, Ms. Buchanan indicated that she was still confused
about whether she should admit L.W. [Id.]{.underline} ¶ 5. In her
affidavit in support of defendants\' motion for summary judgment,
however, Ms. Buchanan states that she did not "formulate any impressions
or even think about L.W.\'s physical, mental, or emotional health."
Affidavit of Eula Buchanan ¶ 5 (Jan. 27, 1998).

On or about August 22, 1996, Ms. Buchanan called Ms. McNuckle to say
that two of her staff members were going to quit if she accepted L.W.
and that she would be unable to accept him in that case due to under
staffing. McNuckle Dep. p. 43, l. 8-15; p. 44, l. 2-5, l. 13-18. Ms.
Casiday\'s testimony echoed this account, as an August 22, 1996, entry
in her notes indicates that Ms. McNuckle called her to explain that
Happy Time \"was probably canceling because staff will quit because of
L.W.\'s health condition.\" Casiday Dep. p. 84, l. 8-19. Sometime after
the August 22nd call, Ms. Buchanan called Ms. McNuckle again to retract
the previous arrangement and to offer L.W. only an afternoon vacancy,
despite Ms. McNuckle\'s specific request for a morning slot so that L.W.
could attend Head Start in the afternoon. McNuckle Dep. p. 33, l. 19-24;
p. 45, l. 10-18. This was unacceptable to Ms. McNuckle.
[Id.]{.underline} p. 46, l. 15.

**STANDARD OF REVIEW**

When reviewing a motion for summary judgment, courts "review the record,
and all reasonable inferences which can be drawn from it, in the light
most favorable to \[plaintiff\], the non-moving party." [DeLuca v. Winer
Indus. Inc.]{.underline}, 53 F.3d 793, 796 (7th Cir. 1995). Courts have
recognized that the summary judgment standards are applied with added
rigor in suits alleging discrimination, "where intent and credibility
are crucial issues." [Robinson v. PPG Indus., Inc.]{.underline}, 23 F.3d
1159, 1162 (7th Cir. 1994); [see also]{.underline} [Huff v. Uarc,
Inc.]{.underline}, 122 F.3d 374, 388-89 (7th Cir. 1997) (explaining in
employment discrimination case under the ADA that "\[e\]mployers who
engage in discriminatory conduct rarely expressly reveal their
discriminatory intent, and these cases are especially difficult to
prove."). This is so because courts "will not resolve factual disputes
or weigh conflicting evidence." [Bombard v. Fort Wayne Newspapers,
Inc.]{.underline}, 92 F.3d 560, 562 (7th Cir. 1996). Only when the
record demonstrates that no issue of material fact exists will summary
judgment be deemed appropriate. [DeLuca]{.underline}, 53 F.3d at 796-97.

**ARGUMENT**

In 1990, Congress enacted the Americans with Disabilities Act, 42 U.S.C.
§§ 12101-12213, "to provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with
disabilities." 42 U.S.C. § 12101(b)(1). The Act contains three
subchapters, or titles, which prohibit discrimination in employment
(Title I, 42 U.S.C. §§ 12111-12117), public services (Title II, 42
U.S.C. §§ 12131-12165), and public accommodations (Title III, 42 U.S.C.
§§ 12181-12189). This action has been brought by the United States under
Title III against three child care centers, which are undisputedly
public accommodations, as part of the ADA mandate "to ensure that the
Federal Government plays a central role in enforcing the standards
established in this chapter on behalf of individuals with disabilities."
42 U.S.C. § 12101(b)(3); [see also]{.underline} [id.]{.underline} §
12188 (providing that the Attorney General of the United States is
empowered to enforce Title III of the ADA when she has "reasonable cause
to believe" that an individual has been discriminated against).

The ADA extends its protection to individuals with a "disability," which
is defined in the statute to mean (1) "a physical or mental impairment
that substantially limits one or more of the major life activities of
such individual"; or (2) "a record of such an impairment \[that
substantially limits one or more of the major life activities\]"; or (3)
"being regarded as having such an impairment." 42 U.S.C. § 12102(2).
Defendants\' summary judgment motion is limited to the issue of whether
a young child with HIV has a "disability." Since defendants have not
sought summary judgment on the merits of plaintiff\'s claims or
otherwise contested whether plaintiff can satisfy the prima facie case,
the ramifications of defendants\' motion are narrow but significant. If
the motion is granted, then a precedent will be established making it
very difficult for numerous HIV-positive individuals, especially
children, to obtain protection under the ADA, whereas a finding for the
United States simply allows this matter to proceed to trial where the
ultimate issue of liability will be determined by a jury.

At the outset, defendants\' brief appears predicated on their mistaken
belief that L.W. has asymptomatic HIV, but L.W. is not asymptomatic \--
L.W.\'s treating physician and an outside expert have both concluded
that L.W.\'s HIV infection is symptomatic. Gern Aff. ¶ 7; Wilfert Aff. ¶
18. As a consequence of this mistake, defendants have erroneously
characterized the issue before the Court as whether asymptomatic HIV
infection is a per se disability under the ADA. Given the facts of this
case, however, the issue before the Court is whether L.W. falls within
the protection of the ADA due to his HIV infection. Below, the United
States explains that L.W. satisfies the first two prongs of the
disability definition because the record evidence shows that his HIV
infection is an impairment that substantially limits at least one major
life activity. It will also become clear that infection with HIV, like
blindness or paraplegia, causes a set of limitations on major life
activities that will inevitably qualify someone like L.W. for protection
under the ADA. Finally, plaintiff shows that L.W. satisfies the third
prong of the definition because defendants and others regarded him as
having a contagious impairment that substantially limits major life
activities.

I. Congress Understood the Term Disability as Covering Individuals with
[Asymptomatic or Symptomatic
HIV                                                       ]{.underline}

When enacting the ADA in 1990, Congress borrowed the definition of the
term "handicapped persons" found in Section 504 of the Rehabilitation
Act Amendments of 1974 to define the ADA term "disability."[^3] As
explained in the ADA Committee Reports,

"\[n\]o change in definition or substance is intended nor should be
attributed to the change in phraseology \[from the term \'handicap\' to
\'disability\'\]." H.R. Rep. No. 101-485, pt. 2, at 51, [reprinted
in]{.underline} 1990 U.S.C.C.A.N. 332. To ensure that the ADA would be
interpreted as providing the same scope of protection as the
Rehabilitation Act, Congress included within the ADA a provision
requiring that "\[n\]othing in the ADA shall be construed to provide a
lesser standard than the standard applied under Title V of the
Rehabilitation Act." 42 U.S.C. § 12201(a). This Court too has confirmed
that "\[i\]n drafting the ADA, Congress drew upon and incorporated
standards developed under the Rehabilitation Act. Therefore, the ADA is
to be interpreted consistently with the Rehabilitation Act." [Vande
Zande v. Wisconsin Dep\'t of Administration]{.underline}, 851 F. Supp.
353, 359 (W.D. Wis. 1994), [aff\'d]{.underline}, 44 F.3d 538 (7th Cir.
1995); [see also]{.underline} [Crawford v. Indiana Dep\'t of
Corrections]{.underline}, 115 F.3d 481, 484 (7th Cir. 1997) ("Congress
did not attempt, by altering the language that it was borrowing from the
old statute as the template for the new one, to prevent the new one from
being interpreted the same way the old one had been interpreted, nor did
it amend the Rehabilitation Act to extinguish the old interpretation.").

Judicial interpretations of the term "handicapped" will therefore
provide an unerring guide to understanding the scope of the term
"disability" under the ADA. Providing a general interpretative rule, the
Supreme Court held in 1987 that the term "handicapped" under the
Rehabilitation Act must be given a "broad" definition. [School Board of
Nassau v. Arline]{.underline}, 480 U.S. 273, 285 (1987). The case
involved a school teacher with the contagious disease tuberculosis and
her school board\'s attempt to remove her from classroom duties. The
Court found that the contagiousness of the teacher\'s disease rendered
her handicapped, and that Congress intended to prohibit discrimination
against people who may not have any reduced physical capability, but who
are nonetheless substantially limited in their life activities due to
the negative attitudes of others toward their impairment.
[Id.]{.underline} at 282-84.[^4]

Before enactment of the ADA, courts unanimously used a broad definition
of "handicapped" to hold that individuals with HIV were protected by the
Rehabilitation Act. [See]{.underline} [Chalk v. United States District
Court]{.underline}, 840 F.2d 701, 705-06 (9th Cir. 1988) (holding that a
teacher with HIV was protected by the Rehabilitation Act and noting that
"\[i\]ndividuals who become infected with HIV may remain without
symptoms for an extended period of time"). And in a series of pre-ADA
decisions, courts held that school children with HIV were covered by the
Rehabilitation Act and could not be excluded from educational programs
on the basis of their disease alone. [See, e.g.]{.underline}, [Doe v.
Dolton Elementary School Dist. No. 1]{.underline}, 694 F. Supp. 440,
444-45 (N.D. Ill. 1988) (holding that an elementary school student with
HIV was likely handicapped under the Rehabilitation Act because he was
substantially limited in the major activity of reproduction due to
impairments to his "hemic, lymphatic and reproductive systems"); [Thomas
v. Atascadero Unified School Dist.]{.underline}, 662 F. Supp. 376, 379
(C.D. Cal. 1987) (concluding that a kindergarten student was likely
handicapped under the Rehabilitation Act after finding that "\[e\]ven
those who are asymptomatic have abnormalities in their hemic and
reproductive systems making procreation and childbirth dangerous to
themselves and others"); [Ray v. School Dist. of DeSoto
County]{.underline}, 666 F. Supp. 1524, 1533, 1536 (M.D. Fla. 1987)
(holding that three asymptomatic HIV-positive school children were
entitled to an injunction under the Rehabilitation Act to prohibit
discrimination at school). In fact, plaintiff is unaware of any case
prior to the enactment of the ADA holding that persons infected with HIV
did not fall within the definition of handicapped under the
Rehabilitation Act.

Of course, it is well-established that when Congress enacts a new law
incorporating sections of a prior law, Congress is presumed to be aware
of prior judicial interpretations and to adopt them in the re-enacted
statutory language. [Lorillard v. Pons]{.underline}, 434 U.S. 575,
580-81 (1978); [see also]{.underline} [Keene Corp. v. United
States]{.underline}, 508 U.S. 200, 212-13 (1993) (observing that
Congressional re-enactment of a statute that had been given a consistent
judicial interpretation generally includes that interpretation). The
idea that the definition of disability should receive a broad reading
has certainly been carried forward from the Rehabilitation Act to the
ADA. [Vande Zande v. Wisconsin Dep\'t of Administration]{.underline}, 44
F.3d 538, 541 (7th Cir. 1995) ("\'Disability\' is broadly defined.").
Accordingly, defendants must concede that Congress understood that HIV
infection, even when asymptomatic (which it is not with L.W.) and even
when infecting children, would be included as a disability under the ADA
because of its debilitating effects on the hemic, lymphatic, and
reproductive systems.

The United States does not, however, rely solely on clearly established
judicial interpretations and canons of statutory construction to
determine Congressional will, for compelling legislative history also
leads to the conclusion that the ADA was intended to protect individuals
with HIV infection, whether asymptomatic or symptomatic.[^5] First, a
memorandum prepared in 1988 by the Office of Legal Counsel of the United
States Justice Department concluded that the Rehabilitation Act protects
individuals with both symptomatic and asymptomatic HIV.
[See]{.underline} Memorandum from Douglas W. Kmiec, Acting Assistant
Attorney General, Office of Legal Counsel, to Arthur B. Culvahouse, Jr.,
Counsel to the President 9-11 (Sept. 27, 1988), [reprinted
in]{.underline} [Americans with Disabilities Act of 1989: Hearings
Before the Senate Comm. on Labor and Human Resources]{.underline}, 101st
Cong., 1st Sess., 346-348 (1989) (hereafter "Kmiec Memo"). Congress
specifically endorsed this conclusion in a section of the House Report
entitled "Explanation of the Legislation \-- Definition of the Term
Disability," which states that "\[a\]s noted by the U.S. Department of
Justice, \*\*\* a person infected with \[HIV\] is covered under the
first prong of the definition of the term \'disability\' because of a
substantial limitation to procreation and intimate sexual relations."
H.R. Rep. No. 101-485, pt. 2, at 52, [reprinted in]{.underline} 1990
U.S.C.C.A.N. 334 (citing Kmiec Memo); [see also]{.underline} H.R. Rep.
No. 101-485, pt. 3, at 28 n.18, [reprinted in]{.underline} 1990
U.S.C.C.A.N. 451 (citing Kmiec Memorandum with approval). The official
Senate Report also embraced the conclusions of the Kmiec Memo. S. Rep.
No. 101-116, at 22.

Second, Congress endorsed the recommendation of a Presidential
Commission which concluded that persons with HIV needed protection under
federal anti-discrimination laws. "All persons with symptomatic or
asymptomatic HIV infections should be clearly included as persons with
disabilities who are covered by the anti-discrimination protections of
this \[the ADA\] legislation." H.R. Rep. No. 101-485, pt. 2, at 31, 48,
[reprinted in]{.underline} 1990 U.S.C.C.A.N. 313, 330 (citing [Report of
the Presidential Comm. on the Human Immunodeficiency
Epidemic]{.underline} 123 (Jun. 1988)).

Finally, floor statements of those favoring passage of the ADA and of
those opposed to passage all demonstrate that Congress was of one mind
that individuals with HIV, whether symptomatic or asymptomatic, would be
protected under the ADA: "People with HIV disease are individuals who
have any condition along the full spectrum of HIV infection \--
asymptomatic HIV infection, symptomatic HIV infection or full-blown
AIDS. These individuals are covered under the first prong of the
definition of disability in the ADA \*\*\*." 136 Cong. Rec. S9696 (daily
ed. July 13, 1990) (statement of Senator Kennedy).[^6] "I do not
understand why, for example, you went down the road of including in your
definitions people who are HIV positive, because 85 percent or more of
the HIV positive people in this country are known to be drug users or
homosexual or both." 135 Cong. Rec. S10768 (daily ed. Sept. 7, 1989)
(statement of Senator Helms).[^7]

\* \* \*

Plaintiff relates this legislative history not in an effort to confuse
what defendants contend is a plain meaning of the ADA, but to give
historical context to the specific language used by Congress. Defendants
would certainly agree that legislation cannot be interpreted in a
vacuum. Defs.\' Br. 13 ("The Court has \'\[o\]ver and over \*\*\*
stressed that in expounding a statute, we must not be guided by a single
sentence or member of a sentence, but look to the provisions of the
whole law, and to its object and policy." (quoting [United States Nat\'l
Bank v. Independent Ins. Agents of N. America]{.underline}, 508 U.S.
439, 455 (1993)). This common sense notion is particularly apt when the
statutory language at issue had an established judicial meaning at the
time Congress enacted it: Congress was not using a dictionary when it
defined disability, it was carrying forward a preestablished definition
with a preestablished meaning. Accordingly, the policy of the ADA
unambiguously favors including persons infected with HIV as disabled
because HIV, like blindness, has irreparable effects on major life
activities. Defendants can really divine no countervailing policy, and
their effort to create a tension in the legislative history where one
does not exist simply underscores their failure.[^8]

II\. L.W.\'s HIV Infection Is An Impairment That Substantially Limits
Major

[Life
Activities                                                                                         ]{.underline}

Under the first prong of the statutory definition of a disability,
plaintiff must show that L.W. has (1) a physical or mental impairment
that (2) substantially limits one or more major life activities. 42
U.S.C. § 12102(2)(A). Significantly, the terms used by Congress in this
prong are broad. Impair means "to decrease in strength, value, amount or
quality." [Webster\'s Third New International Dictionary of the English
Language]{.underline} (1994). Similarly, the "plain meaning of the word
\'major\' denotes comparative importance" or "significance" and that the
term "life" is "notable for its breadth." [Abbott v.
Bragdon]{.underline}, 107 F.3d 934, 939-40 (1st Cir. 1997), [cert.
granted]{.underline}, 118 S. Ct. 554 (1997); [see also]{.underline} [Doe
v. Kohn, Nast & Graf]{.underline}, 862 F. Supp. 1310,1320 (E.D. Pa.
1994) (holding that "the term \'major life activities\' \*\*\*
encompasses a lot \[and includes\] the various major activities embraced
within the full scope of one\'s life").

In the regulations implementing Title III of the ADA, the phrase "major
life activities" is given an open-ended definition with a list of
illustrative, but not exclusive, examples. 28 C.F.R. § 36.104 ("major
life activities means functions such as caring for one\'s self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working."). The Preamble to this regulation explains that
a substantial limitation occurs "when the individual\'s important life
activities are restricted as to the conditions, manner, or duration
under which they can be performed in comparison to most people." 28
C.F.R. Pt. 36, App. B, 600-601 (1997). This is consistent with the
hallmark of the terms used by Congress, which is their flexibility to
adapt to different understandings about what conditions might constitute
a disability, while at the same time excluding trivial conditions by
requiring a plaintiff to show a substantial limitation (though not
preclusion) of a comparatively important life function.

A. [L.W.\'s HIV Infection Is a Physical Impairment]{.underline}

Defendants agree that L.W. is infected with HIV (Defs.\' Proposed
Finding of Fact No. 3), and they appear to concede that L.W.\'s HIV
infection constitutes a physical or mental impairment. Defs.\' Proposed
Finding of Fact No. 40. They do not, at least, argue to the contrary.

To the extent this issue remains open, the record evidence related above
in the Statement of Facts shows that L.W.\'s HIV infection has been
evaluated by Dr. Catherine Wilfert, who is the Scientific Director of
the Pediatric AIDS Foundation and is a Professor Emerita of Pediatrics
and the former Chief of the Division of Infectious Diseases at Duke
University Medical Center in Durham, North Carolina. Dr. Wilfert
explains that HIV infection "causes a physiological disorder of the
hemic (blood) and lymphoid systems." Wilfert Aff. ¶ 6. HIV infection
manifests itself by "impairing the nervous system and by attacking and
destroying CD4+ T cells, which are lymphocytes (white blood cells
produced by bone marrow and maturing in the thymus or lymphoid tissue).
CD4 lymphocytes are responsible for responding to infectious diseases,
and as L.W.\'s HIV infection causes his T-cell count to diminish, he
will become ever more vulnerable to opportunistic infections and the
diseases caused by the organism." [Id.]{.underline} ¶¶ 11-12.

From December 1995 through July 1996 (the period when L.W. was denied
admission by defendants), L.W.\'s CD4+ T cell count ranged from 580 to
520. Gern Aff. ¶ 8. Dr. Wilfert testified that L.W.\'s CD4+ T cell count
has caused him to suffer moderate immunodepression, and that a child
without HIV will have a T cell count of at least greater than 1,000. As
a result of his immunodepression, Dr. Wilfert notes that L.W.\'s bout
with Chicken Pox required special medication and hospitalization due to
his HIV infection. Wilfert Aff. ¶ 12. Moreover, L.W. has been diagnosed
with Failure to Thrive ("FTT"), which means that L.W.\'s HIV infection
has caused a physiological impairment of his ability to grow in height
and weight in a manner consonant with other children his age. Gern Aff.
¶ 8. L.W.\'s height and weight have consistently been well below the 5th
percentile for his age group. [Id.]{.underline}; Wilfert Aff. ¶ 22. Both
Dr. Gern and Dr. Wilfert have concluded that L.W.\'s HIV infection is
symptomatic. Gern Aff. ¶¶ 7, 9; Wilfert Aff. ¶¶ 18, 20.

The regulations implementing Title III of the ADA provide that a
physical or mental impairment means "\[a\]ny physiological disorder or
condition \*\*\* affecting one or more of the following body systems:
\*\*\* hemic and lymphatic." 28 C.F.R. § 36.104. The regulations also
specifically include "HIV (whether symptomatic or asymptomatic)" within
the definition of impairment. [Id.]{.underline} The case law agrees that
the effect of HIV infection on the hemic and lymphatic systems results
in a physical impairment, [see]{.underline} [Cain v. Hyatt]{.underline},
734 F. Supp. 671, 679 (E.D. Pa. 1990) (citing [Doe v. Dolton Elementary
School Dist. No. 1]{.underline}, 694 F. Supp. 440, 444 (N.D. Ill.
1988)), and defendants are not alone in conceding this portion of the
test. [Hernandez v. The Prudential Insur. Co.]{.underline}, 977 F. Supp.
1160, 1163 & n.1 (M.D. Fla. 1997) (noting that defendant had conceded
that an HIV-positive person had a physical impairment).[^9] Thus,
L.W.\'s HIV infection has resulted in a physical or mental
impairment.[^10]

B. [L.W.\'s Physical Impairment Substantially Limits Major Life
Activities]{.underline}

Defendants argue that the only possible major life activity affected by
L.W.\'s HIV infection is his ability to reproduce, and they further
contend that reproduction is not a major life activity, especially for a
three-year old boy. Defs.\' Br. 12-20. As a threshold matter,
defendants\' analysis suffers from misplaced focus, for they insist that
an activity such as reproduction cannot be one of life\'s major
activities because Congress was not concerned about discrimination
against people with reproductive problems. Defs.\' Br. 16. This argument
is nonsensical. Nothing in the ADA suggests that the phrase "major life
activities" encompasses only those activities that, when lost, could
lead to discrimination, and nothing in the policy animating the statute
would lead to such a result.

To the contrary, the ADA was enacted with a keen recognition of the
Supreme Court\'s holding in [Arline]{.underline}, which specifically
rejected the argument that "the contagious effects of a disease can be
meaningfully distinguished from the diseases\'s physical effects on a
claimant. \*\*\* \[Respondent\'s\] contagiousness and her physical
impairment each resulted from the same underlying condition." 480 U.S.
at 282; [see]{.underline} H.R. Rep. No. 101-485, pt. 2, at 53 (citing
[Arline]{.underline} with approval), [reprinted in]{.underline} 1990
U.S.C.C.A.N. at 336; S. Rep. No. 101-116, at 24 (same). Relying on this
passage from [Arline]{.underline}, the Ninth Circuit in [Gates v.
Rowland]{.underline}, 39 F.3d 1439, 1446 (9th Cir. 1994), maintained
that "there is no distinction to be drawn, for purposes of the Act,
between those persons in whom the HIV virus has developed into AIDS and
those persons who have remained asymptomatic." [Id.]{.underline} The
court concluded that "\[i\]t is the possible transmission of the virus
to others that is the basis of the individual\'s disability under the
provision of the Act." [Id.]{.underline} In the same way, it is the fear
in others that they might "catch" HIV, with its host of incurable
consequences, through contact with L.W. that brings him squarely within
the policy and purpose of the ADA as a person with a disability.

1\. L.W.\'s HIV Infection Has Substantially Limited the Major Life
Activity of\
[Procreation                                                                                              ]{.underline}

It is undisputed that L.W.\'s HIV infection has substantially limited,
and likely precluded, his ability to procreate. Dr. Wilfert\'s affidavit
sets forth the facts that L.W.\'s HIV infection will likely result in
delayed puberty, that he will likely not live long enough to reach
puberty, and that even if he does, he risks infecting his infant and his
infant\'s mother if he engages in procreative sexual intercourse.
Wilfert Aff. ¶¶ 23-25. Defendants suggest that a three-year old boy
cannot have a substantial limitation of his procreative activities
because he cannot yet procreate. This subjective approach has no case
law or statutory support. Even the Fourth Circuit\'s
[Runnebaum]{.underline} decision recognizes that "courts need only
consider whether the impairment at issue substantially limits the
plaintiff\'s ability to perform one of the major life activities
contemplated by the ADA, not whether the particular activity that is
substantially limited is important to him." 123 F.3d at 170 (citing with
approval [Abbott]{.underline}, 107 F.3d at 941, for the proposition that
"whether a particular activity is one of the major life activities under
the statute is not a subjective inquiry").

Moreover, prior to enactment of the ADA, courts concurred that HIV
infection in children constituted a handicap under the Rehabilitation
Act because of the infection\'s effect on procreation. [See]{.underline}
[Dolton]{.underline}, 694 F. Supp. at 444-45 (holding that an elementary
school student with HIV was likely handicapped because his infection
caused an impairment to his reproductive system); [Thomas]{.underline},
662 F. Supp. at 379 (C.D. Cal. 1987) (concluding that a kindergarten
student was likely handicapped because of HIV\'s effect on the
reproductive system). This only makes sense, for otherwise, a person
with a physical impairment having fluctuating effects (such as HIV or
epilepsy) would only qualify as being disable intermittently depending
on their daily symptomatic condition. Therefore, the proper question is
whether procreation is a major life activity for individuals generally,
not whether L.W. has a present desire to be a father.[^11]

Procreation, the life activity that creates life itself, is plainly a
major life activity. [See]{.underline} [Abbott]{.underline}, 107 F.3d at
939 ("\[R\]eproduction, which is both the source of all life and one of
life\'s most important activities, easily qualifies \[as a major life
activity.\]"); [see also]{.underline} [McWright v.
Alexander,]{.underline} 982 F.2d 222, 226-27 (7th Cir. 1992) (assuming
that reproduction is a major life activity under the Rehabilitation
Act). Indeed, two district courts from this Circuit have agreed that
procreation is a major life activity, expressly rejecting a contrary
holding issued by a federal district court in Louisiana.
[See]{.underline} [Pacourek v. Inland Steel Co.]{.underline}, 916 F.
Supp. 797, 801-02 (N.D. Ill. 1996) (finding unpersuasive the reasoning
used in [Zatarain v. WDSU-Television, Inc.]{.underline}, 881 F. Supp.
240 (E.D. La. 1995)); and [Erickson v. Northeastern Illinois
Univ.]{.underline}, 911 F. Supp. 316, 322 (N.D. Ill. 1995) (same).[^12]

The understanding that procreation is one of the most important and
cherished activities in which people engage has long been a foundation
of American jurisprudence. [See, e.g.]{.underline}, [Planned Parenthood
of Southeastern Pa. v. Casey]{.underline}, 505 U.S. 833, 849 (1992)
(recognizing that the ability to make decisions about family and
parenthood is a fundamental liberty); [Skinner v. Oklahoma]{.underline},
316 U.S. 535, 541 (1942) (recognizing that procreation is "fundamental
to the very existence and survival of the race."). Naturally, a life
activity does not need to claim constitutionally-protected status before
it can be considered "major," but the traditional importance attaching
to procreation compels the conclusion that it falls within the category
of major life activities. This conclusion is buttressed by the House
Report to the ADA, which listed procreation and sexual relations as
among the category of "major life activities." H.R. Rep. No. 101-485,
pt. 2, at 52.[^13]

There is no basis in statutory language, policy or history to support
defendants\' claim that reproduction is not a major life activity.
Standing off by themselves, some courts have advanced defendants\'
argument, primarily the plurality opinion in [Runnebaum v. NationsBank
of Maryland]{.underline}, 123 F.3d 156 (4th Cir. 1997) (en banc). There,
the court mused that while "procreation is a fundamental activity,
\[we\] are not certain that it is one of the major life activities
contemplated by the ADA." [Id.]{.underline} at 170.[^14] The court did
not explain why there should be a distinction between concededly
"fundamental activities" and "major life activities contemplated by the
ADA." If anything, the language and history of the Act conflict with the
view that there is a finite set of "major life activities" recognized by
the ADA that is distinct from a common understanding of the term.
[Abbott]{.underline}, 107 F.3d at 939 ("Because the term \"major life
activities\" is not defined in the enactment, we are obliged to construe
it in accordance with its natural (that is, ordinary) meaning.").
Ultimately, the Fourth Circuit quickly moved on to assume for purposes
of the opinion that procreation was a major life activity, so its doubts
are dicta. [Id.]{.underline} at 171.

Perhaps the best insight into this issue can be gained by a brief moment
of introspection, setting aside judicial opinions and committee reports
and concentrating on what individuals believe to be among their core
life activities. One conclusion will emerge: procreation is in the
highest tier of life\'s major activities. In the end, there is no basis
in logic, in law or in life-experience for excluding procreation from
the group of major life activities encompassed by the ADA.

2\. L.W.\'s HIV Infection Has Substantially Limited the Major Life
Activities of

[Living, Growing, Socializing, and Caring for
Himself                                 ]{.underline}

In addition to its effect on L.W.\'s ability to procreate, L.W.\'s HIV
infection has resulted in a substantial reduction in his life span. An
African-American male in the United States can be expected to live for
approximately 64 years. Due to his incurable HIV and based on his
symptomatic condition, L.W.\'s median life span is at most 99 months and
his median life span is at most 81 months. Gern Aff. Ex. ¶ 7 & Ex. A.
After reviewing his medical history, Dr. Wilfert concluded that it is
only 50% likely that L.W. will see his ninth or tenth birthday. Wilfert
Aff. ¶ 17. It is nearly certain, therefore, that L.W. will die at a very
young age as a direct consequence of his HIV infection.
[Id.]{.underline} That early death will completely deprive him of all
the major life activities that one might expect to enjoy after the age
of 10, such as learning and working. Since learning and working are
unquestionably major life activities (28 C.F.R. § 36.104), then a 70%
reduction in the life span during which these activities might have been
enjoyed must constitute a substantial limitation.

In addition, L.W.\'s HIV infection has likely resulted in a severe
stunting of his normal growth in height and weight. Dr. Wilfert points
out that this condition, known as Failure to Thrive ("FTT") is a common
characteristic of childhood HIV, and one that L.W. is not likely to
recover from before his death. Wilfert. Aff ¶¶ 21-22. L.W. has
consistently fallen well below the 5th percentile of his age group in
height and weight. [Id.]{.underline} ¶ 22; Gern Aff. ¶ 8. For example,
in November 1997, L.W. was 4 years and 10 months old, but he was only as
tall as an average 2 year and 9 month old child. Gern Aff. ¶ 8. Dr. Gern
has concluded that the most likely cause of L.W.\'s growth delay is HIV
infection. Gern Aff. ¶ 9.

The inability to grow not only delays the onset of certain biological
milestones, such as puberty, but it also deprives L.W. of certain
"normal" socialization experiences. Henkins Dep. p. 25, l. 8-10
(observing that the other students in L.W.\'s class have a tendency to
"mother him" due to his small size); Gern Dep. p. 28, l. 11-16; p. 30,
l. 1-6 (noting that L.W. will be at a physical disadvantage in normal
playground activities due to his diminished size and strength). It also
appears axiomatic that, like living a normal life span, thriving and
growing normally are major life activities that have been substantially
limited by L.W.\'s HIV infection.

Finally, L.W.\'s HIV infection has substantially limited his ability to
care for himself by reducing his capacity for overcoming infections and
opportunistic diseases.[^15] Dr. Wilfert explains that a "child with
CD4+ T cell levels in the range exhibited by L.W. has a diminished
ability to fight off diseases compared to children with normal CD4+ T
cell ranges." Wilfert Aff. ¶ 20; [see also]{.underline} Gern Aff. ¶ 7
(explaining that L.W.\'s CDC classification has ranged between B-2 and
C-2). To combat these effects on his immune system, L.W. must take a
variety of drugs, such as AZT, DDI, or 3TC. Wilfert Aff. ¶ 10. This drug
therapy comes at a price, for it can cause gastrointestinal and
nutrition problems through such side effects as nausea, loss of
appetite, and pancreatitis. [Id.]{.underline} ¶ 11. L.W. must also
endure invasive blood tests and frequent visits to health care
facilities as a result of his HIV infection that children without HIV do
not ordinarily have to undergo. [Id.]{.underline} ¶ 13. Without his drug
therapy, "it is likely that L.W.\'s T-cell count would be lower than it
is today, with a consequent increase in his vulnerability to
opportunistic infections. [Id.]{.underline} ¶ 12.[^16]

All this leads to the conclusion that L.W.\'s ability to care for
himself by fighting off diseases has been substantially limited by his
HIV infection. In this regard, this Court\'s discussion of the Seventh
Circuit\'s decision in [Vande Zande v. Wisconsin Dep\'t of
Administration]{.underline}, 44 F.3d 538 (7th Cir. 1995) is instructive:

> The court focused on the fact that many diseases, such as the AIDS
> virus, may create intermittent problems that might not be considered a
> disability under the act if view in isolation, but would show a
> substantial limitation of a major life activity if viewed over an
> extended period of time. Put another way, the court concluded that
> when an impairment creates smaller intermittent impairments, the
> disability focus should be on the effects of the overall impairment.
> Such a focus allows the court to expand the scope of the disability
> inquiry, which is appropriate in a situation in which the overall
> disability creates sporadic impairments that may create a substantial
> limitation when viewed cumulatively.

[Schluter]{.underline}, 928 F. Supp. at 1446. Under an appropriately
expanded view, therefore, the intermittent, long-term cumulative effects
of L.W.\'s HIV infection on his ability to care for himself assuredly
results in a substantial limitation.

III\. Defendants and Others Regard L.W.\'s HIV Infection as an
Impairment that

[Substantially Limits His Major Life Activities]{.underline}

Even If this Court concludes that L.W. cannot satisfy the first two
prongs of the definition of disability, then L.W. is still protected by
the ADA because his HIV infection causes him to be "regarded as" having
a disability. [See]{.underline} 42 U.S.C. § 12102(2)(C). This third
prong of the disability definition is satisfied where, as here, a person
has an impairment that substantially limits major life activities only
\"as a result of the attitudes of others toward such impairment.\" 28
C.F.R. § 36.104 subpart (4)(ii). Additionally, the third prong may be
satisfied when a person has a physical impairment "that does not
substantially limit major life activities but that is treated by a
private entity as constituting such a limitation." [Id.]{.underline} §
36.104 subpart (4)(i). Under these tests, it is immaterial whether the
impairment in fact limits an infected person\'s major life activities.
[See]{.underline} [Holihan v. Lucky Stores, Inc.]{.underline}, 87 F.3d
362, 366 (9th Cir. 1996) (affirming dismissal of claim based on failure
to satisfy first prong of disability definition but reversing dismissal
of "regarded as" claim because evidence would support finding that
employer believed plaintiff to have a disabling impairment).

As Congress explained, the \"rationale for \[the \"regarded as\" test\]
was clearly articulated\" by the Supreme Court in [School Board of
Nassau County v. Arline]{.underline}, 480 U.S. 273 (1987), where the
Court addressed the similar provision of the Rehabilitation Act in the
context of a contagious disease. S. Rep. No. 101- 116, at 23. The Court
stated that under the \"regarded as\" test, \"an impairment might not
diminish a person\'s physical or mental capabilities, but could
nevertheless substantially limit that person\'s ability to work as a
result of the negative reactions of others to the impairment.\" 480 U.S.
at 283. The Court explained that

> \[b\]y amending the definition of \"handicapped individual\" to
> include not only those who are actually physically impaired, but also
> those who are regarded as impaired and who, as a result, are
> substantially limited in a major life activity, Congress acknowledged
> that society\'s accumulated myths and fears about disability and
> disease are as handicapping as are the physical limitations that flow
> from the impairment. Few aspects of a handicap give rise to the same
> level of public fear and misapprehension as contagiousness. Even those
> who suffer or have recovered from such noninfectious diseases as
> epilepsy or cancer have faced discrimination based on the irrational
> fear that they might be contagious.

[Id.]{.underline} at 284 (footnote omitted). The Court therefore
concluded that \"\[a\]llowing discrimination based on the contagious
effects of a physical impairment would be inconsistent with the basic
purpose of \[the Rehabilitation Act\], which is to ensure that
handicapped individuals are not denied jobs or other benefits because of
the prejudiced attitudes or the ignorance of others.\" [Id.]{.underline}

The Court in [Arline]{.underline} left open whether a carrier of a
contagious disease could be considered a handicapped person under the
Act solely on the basis of contagiousness, 480 U.S. at 282 n.7,[^17] but
with HIV the answer is clearly yes. Fear of contagion, based upon the
invariably fatal nature of AIDS, has resulted in widespread
discrimination and fear toward those infected with HIV. [Cain v.
Hyatt]{.underline}, 734 F. Supp. 671, 678 (E.D. Pa. 1990) ("HIV-positive
individuals are unjustifiably and \'widely stereotyped as indelibly
miasmic, untouchable, physically and morally polluted."). Such fears
have been especially acute concerning HIV-infected children in school
settings. [Dolton]{.underline}, 694 F. Supp. at 444-45 (rejecting school
district\'s effort to discriminate against HIV-infected elementary
school student and observing that "\[s\]urely no physical problem has
created greater public fear and misapprehension than AIDS.");
[Ray]{.underline}, 666 F. Supp. at 1533, 1536 (same); [see
also]{.underline} Debra Jensen De Hart, [Suit Brings AIDS Issue to
Beloit]{.underline}, Beloit Daily News, Mar. 8, 1997, at 1 (quoting a
mother whose child attended defendant Kiddie Ranch as saying that "I\'m
very fearful of it \[HIV infection\], I hear the chances would be
minimal, but I don\'t know. \*\*\* It is a scary thing.") Centers for
Disease Control, [Education and Foster Care of Children Infected with
HIV]{.underline}, 34 Morbidity & Mortality Wkly. Rep. 517, 517 (Aug. 30,
1985) ("The diagnosis of AIDS or associated illnesses evokes much fear
from others in contact with the patient \*\*\*. Parents of
\[HIV\]-infected children should be aware of the potential for social
isolation should the child\'s condition become known to others in the
care or educational setting.")

It is the contagious nature of HIV, therefore, that has the effect of
substantially limiting an infected person\'s major life activities \"as
a result of the attitudes of others toward \[the\] impairment.\" 28
C.F.R. 36.104 (subpart (4)(ii)). As noted above, Congress found that
\"discrimination against individuals with HIV infection is widespread
and has serious repercussions for both the individual who experiences it
and for this nation\'s efforts to control the epidemic.\" H.R. Rep. No.
101-485, pt. 2, at 31. More specifically, committee hearings and floor
debates were replete with references to children with HIV such as Ryan
White, who was barred from school due to fears about his HIV
infection.[^18] Thus, the \"regarded as\" doctrine appropriately
recognizes that where individuals with a particular condition, such as
HIV infection, face such persistent discrimination and exclusion, that
fact itself warrants legal protection. [See generally]{.underline}
[Gates v. Rowland]{.underline}, 39 F.3d 1439, 1446 (9th Cir. 1994) (\"It
is the possible transmission of the \[HIV\] virus to others that is the
basis of the individual\'s disability under the provisions of the
\[Rehabilitation\] Act.\"); [Harris v. Thigpen]{.underline}, 941 F.2d
1495, 1522-1524 (11th Cir. 1991) (holding that HIV-infected inmates were
\"handicapped individuals\" under the Rehabilitation Act because the
correctional system treated them as being unable to engage in major life
activities relative to the rest of the inmate population).

The conclusion that HIV is a disability as a result of the attitudes of
others toward the impairment is reflected in Department of Justice
regulations. Citing [Arline]{.underline}, the regulations state that \"a
person who is not allowed into a public accommodation because of the
myths, fears, and stereotypes associated with their disabilities would
be covered under this \*\*\* test,\" even if the person\'s physical
condition would not otherwise be considered a disability under the Act.
[Id.]{.underline} With HIV, it is precisely the reactions of others
toward the impairment that substantially limits a broad array of the
infected person\'s major life activities. [See]{.underline} U.S. Dep\'t
of Justice, [The Americans with Disabilities Act Title III Technical
Assistance Manual]{.underline} 12 (Nov. 1993) (providing as an
illustration of a "regarded as" disability a "three-year old child born
with a prominent facial disfigurement \[who\] has been refused
admittance to a private day care program on the grounds that her
presence in the program might upset the other children"). Moreover, the
Preamble to the Title III regulations counsels that "\[a\] person would
be covered under \[the regarded as\] test if a restaurant refused to
serve that person because of a fear of \'negative reactions\' of others
to that person." 28 C.F.R. Pt. 36, App. B, at 612 (1997).[^19]

In this case, the reactions of defendants and others such as parents and
teachers demonstrate that they regarded him as having a disability. As
to defendant Kiddie Ranch, the record evidence shows that Ms. McNuckle
was initially told that L.W. could start on March 4, 1996, but was then
told that there was no room for L.W. after Kiddie Ranch learned that he
was HIV positive. The pretextual nature of L.W.\'s denial was exposed
when L.W.\'s social worker, Pamela Casiday called Kiddie Ranch the next
business day, March 4th, and was told that Kiddie Ranch had room for a
child L.W.\'s age. The record evidence also shows, through the testimony
of Anne Carmody, that Kiddie Ranch\'s owner was concerned about whether
admitting an HIV positive child would result in a loss of business.[^20]

As to defendant ABC Nursery, the record evidence shows that L.W. was
initially accepted for entry into the child care center, but was then
told that there was no room for him after Ms. McNuckle revealed that
L.W. was infected with HIV. The inference to be drawn from these facts
is that the no-vacancy excuse was pretextual. This inference is
solidified by the testimony of Dora Goldsworthy, who was told by ABC
Nursery\'s director of enrollment that she was going to get out of
having to take an HIV infected child.[^21]

Finally, as to defendant Happy Time Day Care Center, the record evidence
shows that facility owner Eula Buchanan said on August 19, 1996, that
L.W. could attend Happy Time. After she learned on August 20 that L.W.
was infected with HIV, however, Ms. Buchanan expressed concerns to Ms.
McNuckle, to Pam Casiday, and to Maureen Churchill about accepting the
child. Ms. Churchill attests that Ms. Buchanan was having second
thoughts about accepting L.W. and that she was concerned about losing
staff and business. The evidence also shows that Ms. McNuckle
specifically asked for a full-time slot and then a half-time slot in the
mornings so that L.W. could attend Head Start in the afternoons in the
fall. On August 22nd, Ms. Buchanan called Ms. McNuckle to say that two
staff members would likely quit if she admitted L.W. and that he would
therefore be unable to attend Happy Time due to staff shortages.
Sometime later, Ms. Buchanan called again to say there was only an
afternoon vacancy available. This offer was effectively a denial, since
Ms. McNuckle had specifically requested mornings, not afternoons, so
that L.W. could attend Head Start. And the excuse that there was
suddenly no longer a vacancy for L.W., coming on the heels of Ms.
Buchanan\'s repeated concerns about admitting a child with HIV, rings of
pretext.[^22]

Not surprisingly, none of the three defendants admits violating the law.
When the inferences are drawn in plaintiff\'s favor, however, the
circumstances surrounding each of their reactions to L.W.\'s HIV
infection indicate that defendants regarded L.W. as disabled. At a
minimum, there are numerous disputes of material fact that cannot be
resolved through summary judgment, as highlighted above in footnotes 20,
21 & 22. Therefore, this matter should proceed to trial where the
critical issues of intent and credibility can be resolved in an open
forum.

**CONCLUSION**

For the reasons stated above, plaintiff asks this Court to deny
defendants\' motion for summary judgment and to allow this matter to
proceed to trial.

Dated this day of February, 1998.

Respectfully submitted,

PEGGY A. LAUTENSCHLAGER

United States Attorney

By:

DAVID E. JONES

Assistant U.S. Attorney

Western District of Wisconsin

660 W. Washington Avenue

P.O. Box 1585

Madison, WI 53701-1585

\(608\) 264-5158

[^1]: [?]{.underline}/ Counsel for the United States gratefully
    acknowledges the assistance of Paralegal Alice Green and Intern Amy
    Dixon in preparing this brief.

[^2]: [?]{.underline}/ Plaintiff advises the Court that the issue of
    whether procreation is a major life activity is before the United
    States Supreme Court. [Bragdon v. Abbott]{.underline}, No. 97-156.

[^3]: [?]{.underline}/ [See]{.underline} Rehabilitation Act Amendments
    of 1974, Pub. L. No. 93-516, § 111, 88 Stat. 1617, 1619 (1974),
    [codified at]{.underline} 29 U.S.C. § 706(8)(B). As amended in 1974,
    the Rehabilitation Act protects "handicapped individuals" from
    discrimination by entities receiving Federal financial assistance.
    29 U.S.C. § 794. In 1992, the Rehabilitation Act was amended to
    change the term "handicapped individuals" to "individuals with a
    disability," thereby creating symmetry with the ADA.

[^4]: [?]{.underline}/ The [Arline]{.underline} Court expressly declined
    to consider whether persons infected with HIV would fall within the
    Rehabilitation Act. 480 U.S. at 282 n.7.

[^5]: [?]{.underline}/ Justice Stephen Breyer has acknowledged the
    utility of legislative history to explain "specialized meanings of
    terms or phrases in a statute which were previously understood by
    the community of specialists (or others) particularly interested in
    a statute\'s enactment." Breyer, [On the Uses of Legislative History
    in Interpreting Statutes]{.underline}, 65 S. Cal. L. Rev. 845, 853
    (1992).

[^6]: [?]{.underline}/ [Accord]{.underline} 136 Cong. Rec. H4623 (daily
    ed. July 12, 1990) (statement of Rep. Owens); [id.]{.underline}
    H4624 (statement of Rep. Edwards); [id.]{.underline} H4626
    (statement of Rep. Waxman).

[^7]: [?]{.underline}/ Senator Harkin responded to this query by
    explaining to Senator Helms that "\[t\]hey are covered on the basis
    of their HIV infection but not on the basis of being current drug
    users." 135 Cong. Rec. S10768 (daily ed. Sept. 7, 1989).

[^8]: [?]{.underline}/ Defendants contend that the implementing
    regulations for the Fair Housing Act include asymptomatic or
    symptomatic HIV in the illustrative list of physical impairments,
    but do not expressly define HIV as a handicap. Since the Senate
    Report endorses the analysis of the term handicap in the Fair
    Housing Act regulations, defendants reason that the Senate must have
    believed that HIV infection was an impairment, but not always a
    disability. Defs.\' Br. 9-10. This claim is unfounded. The
    regulations under the Fair Housing Act, the Rehabilitation Act, and
    the ADA all include illustrative examples of physical impairments,
    but not one of these regulations identifies any specific
    disabilities. Therefore, the inference that defendants draw from the
    regulatory silence does not follow. Indeed, the preamble to the Fair
    Housing Act regulations explains that HIV was included in the list
    of physical impairments because "the legislative history of the Act
    contains numerous statement that HIV infected individuals [are
    covered by the Act]{.underline}." 54 Fed. Reg. 3232, 3245 (Jan. 23,
    1989) (emphasis added). The preamble to the ADA regulations
    promulgated by the Justice Department is in accord.
    [See]{.underline} 28 C.F.R. Pt. 36, App. B, at 610 (1997) (citing
    Kmiec Memorandum for the proposition that symptomatic and
    asymptomatic HIV infection would be covered by the ADA).

[^9]: [?]{.underline}/ The only court of which plaintiff is aware
    suggesting that even asymptomatic HIV is not a physical impairment
    is [Runnebaum v. NationsBank of Maryland, N.A.]{.underline}, 123
    F.3d 166, 167-69 (4th Cir. 1997) (en banc). There, without benefit
    of record development, the Fourth Circuit concluded that because
    asymptomatic HIV has no symptoms, it perforce must exert no
    impairment. [Id.]{.underline} at 168. The Fourth Circuit did nothing
    more than rely on a dictionary to rebut the phalanx of judicial and
    regulatory pronouncements contradicting its reasoning. Regardless,
    plaintiff asserts that the factual record in this case, which shows
    that L.W.\'s HIV infection is symptomatic, does not allow the Fourth
    Circuit\'s reasoning to find purchase here.

[^10]: [?]{.underline}/ The physical effects of L.W.\'s HIV infection
    discussed above also constitute a "record of impairment," which
    would satisfy the second prong of the disability definition. 42
    U.S.C. § 12102(2)(B). The effects of this record of impairment on
    L.W.\'s major life activities are addressed below in Section II.B.

[^11]: [?]{.underline}/ Defendants\' subjective test would create an
    evidentiary nightmare for children that they likely did not
    consider. Applying their subjective test, children would need to
    provide deposition or affidavit testimony saying that they would
    like to become fathers or mothers someday. The emotional trauma
    inflicted by such a requirement would only get worse if children
    were also required to testify that they hoped to live long enough to
    go to high school and learn, or grow and thrive like other children,
    or have a normal immune system that would allow them to care for
    themselves by fighting off diseases.

[^12]: [?]{.underline}/ According to the court in [Hernandez v. The
    Prudential Insur. Co.]{.underline}, 977 F. Supp. 1160 (M.D. Fla.
    1997), the majority of courts have concluded that HIV substantially
    limits the major life activity of procreation. [Id.]{.underline} at
    1164 (collecting cases).

[^13]: [?]{.underline}/ The ADA Title III regulations further support
    the conclusion that procreation is a major life activity. The
    regulations define the term "physical impairment" to include
    physiological disorders affecting the reproductive system. 28 C.F.R.
    § 36.104. This indicates that the ADA\'s "drafters considered
    reproduction to be a major life activity \-- otherwise, including
    reproductive disorders among the regulation\'s roster of physical
    impairments would not have made much sense." [Abbott]{.underline},
    107 F.3d at 940.

[^14]: [?]{.underline}/ As support for its doubts, the Fourth Circuit
    relied on [Krauel v. Iowa Methodist Med. Center]{.underline}, 95
    F.3d 674 (8th Cir. 1996), which inexplicably construed the
    illustrative list of major life activities found in the regulation
    as exclusive, leading it to find that procreation\'s absence from
    the list disqualified it as a major life activity. The Eighth
    Circuit\'s approach was flatly rejected in [Abbott]{.underline}, 107
    F.3d at 940.

[^15]: [?]{.underline}/ The ADA regulations specifically include "caring
    for one\'s self" as a major life activity. 28 C.F.R. § 36.104.

[^16]: [?]{.underline}/ Plaintiff understands that this Court has
    previously rejected the argument that a person\'s disability should
    be considered without regard to mitigating measures they are taking.
    [Schluter v. Industrial Coils, Inc.]{.underline}, 928 F. Supp. 1437,
    1445 (W.D. Wis. 1996). Nevertheless, plaintiff notes for the record
    its assertion that L.W.\'s HIV condition should be considered
    without regard to the mitigating effects of his drug therapy.
    [See]{.underline} [Doane v. City of Omaha]{.underline}, 115 F.3d
    624, 627 (8th Cir. 1997) ("\[O\]ur analysis of whether \[a person\]
    is disabled does not include consideration of mitigating
    measures."); [Hendler v. Intelecom USA, Inc.]{.underline}, 963 F.
    Supp. 200, 206 (E.D.N.Y. 1997) ("\[T\]he impact of the impairment
    without considering mitigating measures is but one of several
    factors in determining whether it is substantially limiting."); [but
    see]{.underline} [Sutton v United Air Lines, Inc.]{.underline}, 130
    F.3d 893, 901 & nn. 7, 8 (10th Cir. 1997) (holding that mitigating
    measures should be considered when assessing whether a disability
    exists and collecting cases on both sides of the issue).

[^17]: [?]{.underline}/ The narrow holding in [Arline]{.underline} on
    this point was that \"the fact that a person with a record of a
    physical impairment is also contagious does not suffice to remove
    that person from coverage under Section 504 \[of the Rehabilitation
    Act\].\" 480 U.S. at 286.

[^18]: [?]{.underline}/ [See, e.g.]{.underline}, [Hearings Before the
    Comm. on Labor and Human Resources on S. 933]{.underline}, 101st
    Cong., 1st Sess., 102 (1989); [Hearings Before the Subcomm. on Civil
    and Constitutional Rights of the House Comm. on the Judiciary on
    H.R. 2273]{.underline}, 101st Cong., 1st Sess., 171 (1989); 136
    Cong. Rec. H2479-81 (daily ed. May 17, 1990) (statements of Reps.
    McCloskey, McDermott & Jontz); [Id.]{.underline} S7438 (daily ed.
    Jun. 6, 1990) (statement of Sen. Harkin).

[^19]: [?]{.underline}/ The Justice Department regulations as well as
    the preamble and technical assistance manuals interpreting those
    regulations "are entitled to controlling weight unless they are
    plainly erroneous or inconsistent with the regulations." [Innovative
    Health Systems, Inc. v. City of White Plains]{.underline}, 931 F.
    Supp. 222, 232 n.3, 233 n.4 (S.D.N.Y. 1996) (quotation omitted).

[^20]: [?]{.underline}/ In the face of this evidence, Ms. Pearson states
    in her affidavit in support of defendants\' summary judgment motion
    that she never gave consideration to L.W.\'s physical condition.
    Pearson Aff. ¶ 5. In another apparent dispute of facts, Ms. Pearson
    stated in response to an interrogatory that she called Ms. McNuckle
    on Friday, March 1, 1996, only to inform her that she to pay a
    registration fee and that she needed to provide a Registration for
    Enrollment form, a Home Transportation agreement and a Rock County
    Human Services Day Care Authorization form to Kiddie Ranch. Kiddie
    Ranch Resp. to Inter. No. 10. This testimony is directly
    contradicted by Ms. McNuckle. McNuckle Dep. p. 70, l. 11-24; p. 71,
    l. 13-15; p. 17, l. 9-13; p. 92, l. 4-23; p. 93, l. 1-2.

[^21]: [?]{.underline}/ In an apparent factual dispute, ABC Nursery
    denied that it had scheduled L.W. to begin attending the center (ABC
    Resp. to Req. for Admis. No 2), and it denied that L.W.\'s
    "nonadmission was in any way related to L.W.\'s alleged HIV-positive
    condition." ABC Resp. to Req. for Admis. No. 5.

[^22]: [?]{.underline}/ In an apparent factual dispute, the Happy Time
    discovery responses deny that Ms. McNuckle ever requested a full day
    or a morning slot. Happy Time Resp. to Req. for Admis. Nos. 1 & 2.
    Moreover, in her affidavit in support of defendants\' motion for
    summary judgment, Ms. Buchanan states that she did not "formulate
    any impressions or even think about L.W.\'s physical, mental, or
    emotional health." Affidavit of Eula Buchanan ¶ 5 (Jan. 27, 1998).