The opinion of the court was delivered by: Foreman, Chief Judge:
This matter is before the Court on plaintiff Robertson's
Motion for Temporary Restraining
Order and Preliminary Injunction (Documents No. 2 and 9).*fn1
By agreement of the parties, the case has been submitted to
the Court for decision upon documentary evidence and
affidavits, however, because a dispute exists over the
application of the law to otherwise substantially undisputed
facts, the Court has entertained and heard oral argument by
counsel for the parties on these points.*fn2
Plaintiff Jason Robertson is a seven year old boy who was
born with a severe case of hemophilia B. Apparently, during
the course of the therapy administered for this disorder, he
was exposed to the Human Immunodeficiency Virus (HIV) through
contaminated blood products, resulting in him being diagnosed
as having AIDS-related complex (ARC) in March of 1986.
In August of 1986, immediately prior to the time Jason would
ordinarily have been enrolled in public kindergarten his
mother apparently requested home instruction for him from the
defendant District, believing that his physical and resultant
psychological conditions were such that normal mainstream
placement would be inappropriate. It then appears that the
District initiated a full-scale home instruction evaluation
and concluded that home instruction was warranted, whereupon
an individual educational program (I.E.P.) was developed for
Jason. The I.E.P. was formulated in conformance with the
Illinois Department of Education guidelines promulgated in
accordance with The Education for All Handicapped Children Act
(EAHCA), 20 U.S.C. § 1400 et seq.
At the end of the 1986-1987 school year, it seems that
Jason's mother desired that Jason not be homebound and after
discussions with the school board (Board), he was placed on
campus at Prather Elementary School in a separate "modular"
classroom where he was and still is the only student.
Subsequent to that placement and the return to a normal
classroom environment of a child with AIDS in Belleville, Ms.
Robertson requested that the Board place Jason back in a
normal first grade classroom. The Board, on March 22, 1988,
refused her request, and thereafter on April 25, 1988, she
filed the instant suit on behalf of Jason seeking declaratory
and injunctive relief, alleging that the Board's decision was
violative of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et
seq. and the equal protection clause of the Fourteenth
This case presents to the Court for the second time in six
months the question of whether or not to order a local school
board to place back in a normal classroom setting an
elementary school aged child having an AIDS related condition.
As it noted in the prior case, Doe v. Belleville Public School
Dist. No. 118, 672 F. Supp. 342 (S.D.Ill. 1987), given the
almost epidemic proportions of the AIDS crisis, it is
predictable that the number of such cases will rise
dramatically in the coming years. While the Court fully
appreciates the legitimate concerns of the citizens of this
District regarding the placement of their children with
children having an AIDS related condition, it must be
remembered that it is the duty of this Court to decide these
cases under the law and current medical knowledge as it relates
to the transmission of the disease, as opposed to its personal
views or the apprehensions of others. It is only in the
exercise of this type judicial authority that the rights of the
true victims, the children, will be vindicated.
For a plaintiff to be entitled to a preliminary injunction,
he must show five things: (1) that he has no adequate remedy
at law, (2) that he will suffer irreparable harm if
the injunction is denied, (3) that the harm potentially
suffered by the plaintiff if the injunction is not issued is
greater than the harm the defendant will suffer if the
injunction is granted, (4) that the plaintiff has a reasonable
likelihood of success on the merits, and (5) that the
injunction will not harm the public interest. Roland Machinery
Co. v. Dresser Industries, 749 F.2d 380, 382-83 (7th Cir.
1984), see also American Hospital Supply Corp. v. Hospital
Products, Ltd., 780 F.2d 589, 593-94 (7th Cir. 1986). For
purposes of clarity, the Court will address each of these areas
Lack of Adequate Remedy at Law
The defendants urge the Court to find that because they have
developed an I.E.P. for Jason, his case is covered by EAHCA
and, therefore, he has an administrative remedy for his claim.
Similarly, defendants argue that because EAHCA applies,
exhaustion of this administrative remedy is required before
this Court acquires jurisdiction to grant the relief
requested. See Timms v. Metro Sch. Dist. of Wabash County,
Ind., 722 F.2d 1310 (7th Cir. 1983), 20 U.S.C. § 1415(e)(2).
This Court has recently addressed what is necessary for an
individual to be covered under that statute. In Doe v.
Belleville Independent School Dist. No. 118, 672 F. Supp. 342
(S.D. Ill. 1987) the Court held that EAHCA applies to AIDS
victims only if their physical condition is such that it
adversely affects their educational performance; i.e., their
ability to learn and to do the required classroom work. Doe,
supra, 672 F. Supp. at 345. Here, the report of the I.E.P.
committee concludes that Jason's learning and behavioral
problems are not the result of his ARC or hemophilia. That
being the case, as in Doe, the Court concludes that EAHCA is
not applicable to the plaintiff at this time.
While the Court respects defendants' attempts to provide an
individually tailored program of instruction for Jason, it is
clear that he is not "handicapped" within the meaning of EAHCA
because his learning and behavioral problems, by the
defendants' own admission, are not a result of his health
condition. This conclusion is further buttressed by the
affidavits of plaintiff concerning his medical condition as it
relates to his educability. While plaintiff may well be
currently in some sort of "special education" program, as a
matter of law it cannot be pursuant to EAHCA for the reasons
previously stated. That being the case, it is clear that Jason
has no adequate ...