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May 4, 1988


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 Amendment.


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 separately.

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 ...

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