United States District Court, Southern District of Illinois, East St. Louis Division
May 4, 1988
JASON ROBERTSON, A MINOR, BY HIS MOTHER AND NEXT FRIEND, MS. TAMMIE ROBERTSON, PLAINTIFFS,
GRANITE CITY COMMUNITY UNIT SCHOOL DISTRICT NO. 9 AND THE BOARD OF EDUCATION OF GRANITE CITY COMMUNITY UNIT SCHOOL DISTRICT NO. 9, DEFENDANTS.
The opinion of the court was delivered by: Foreman, Chief Judge:
MEMORANDUM AND ORDER
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 remedy at law because there currently exists
no procedural vehicle by which he can force the school
district and its Board to return him to a normal classroom
As a threshold matter, it is difficult for the Court to
imagine anything more traumatic for a child than going to
school and being placed in a classroom by himself, not being
allowed to play with other children, and not even allowed to
eat with his classmates. The affidavit of Dr. Shopper
concludes that the current isolation and segregation of Jason
has caused "demonstrable psychological and emotional harm" to
him. Declaration of Moisy Shopper, p. 5. Furthermore, after
conducting a three week clinical study of the plaintiff, Dr.
"He [Jason] is acutely aware of his isolation
and is presently suffering from overwhelming
feelings of loneliness and exclusion. Failure to
alleviate the developmental deprivation
immediately will result in marked and adverse
deviations in personality growth."
When this harm is added to the fact of his almost certain
limited lifespan, this Court cannot help but conclude that
Jason will suffer irreparable harm if the preliminary junction
does not issue. Furthermore, the defendants have submitted no
evidence which would refute either Dr. Shopper's or the
Court's conclusions. For these reasons, the Court finds that
plaintiff will suffer irreparable harm if the preliminary
injunction is not issued.
Harm Suffered by the Defendants
The Court finds that analysis of this element of the
Roland Machinery test is fairly easy. It must balance the
of a seven year old child suffering from severe isolation and
loneliness against those of the Board and District in
maintaining appropriate placement of him. Much of the argument
made by the defendants surrounds what type "regular" classroom
Jason should be placed in. However, that is really not the
issue. The true issue is whether or not isolating and
segregating him is consistent with the learning and behavioral
disorders he is alleged to have.
Upon consideration, the Court concludes the harm to
defendants in requiring that Jason be "mainstreamed" is
minimal at best. No additional requirements will be necessary
to accommodate him other than those already in place and,
furthermore, issuance of the injunction may in fact help the
defendants inasmuch as they will not have to take
responsibility for unilaterally placing Jason back in
school.*fn3 Thus, the Court concludes that the harm in
sanctioning the continued isolation of Jason clearly outweighs
any harm to the defendants if a preliminary injunction issues.
Likelihood of Success on the Merits
Having concluded that EAHCA is not applicable to this case,
the sole issue to be decided on the merits will be if Jason's
segregation is violative of the Rehabilitation Act. Defendants
have conceded at oral argument that Jason is "handicapped"
within the meaning of that Act, and the Court has already
observed from the bench that the question of "otherwise
qualified" really centers around his medical qualifications to
be in the same classroom with other children. While the Court
does not wish to go far into the merits at this point, it can
candidly state that at this juncture the record shows that
Jason is "otherwise qualified" to attend school in a normal
setting.*fn4 For these reasons, the Court concludes that the
plaintiff has more than a reasonable likelihood of success on
the merits as the record now exists and, therefore, this part
of the Roland test has been met.
The Public Interest
Finally, addressing the public interest, the Court finds
that enjoining the defendants from excluding Jason from a
normal classroom setting will mete little if any harm to the
public interest. To the contrary, given the likelihood of this
situation recurring, it may in fact advance the public
interest. Based on the Court's prior experience with children
with AIDS in the public schools and the evidence in this case,
it is manifest that Jason poses no significant health threat
to his peers, or, they to him. The overwhelming weight of
medical authority (including that of the A.M.A. and the
National Center for Disease Control) supports this conclusion.
In fact, given the volatility of the issue, it would seem that
returning Jason to a normal classroom setting would
demonstrate to the public that this problem must be dealt with
in a rational fashion, and our collective knowledge, based on
reasonable medical certainty, indicates that a child in
Jason's condition poses no significant threat to his
classmates. Furthermore, it is clear that this controversy has
evoked unrest in the Granite City Community and placing Jason
back in a regular classroom will, at least temporarily, end
this controversy. Hopefully, in the time between issuance of
this injunction and a trial on the merits, the District and
the Board can continue with their previous efforts at
educating the public and allaying any unfounded or misguided
fears they may have. Therefore, the Court finds that the
public interest will not be harmed by issuance of an
In light of the foregoing, and pursuant to Rule 52(a),
F.R.Civ.P., the Court makes the following findings of fact and
conclusions of law:
Findings of Fact
1. Plaintiff Jason Robertson is a seven year old
male child suffering from severe hemophilia B
and is diagnosed as having AIDS-related
2. Plaintiff's ARC is a physical impairment
which substantially limits his major life
3. Plaintiff has a record of such impairments.
4. Plaintiff's alleged learning and behavioral
disabilities are not the result of any of his
5. Plaintiff's isolation and segregation
incident to defendants' current placement of
him presently causes irreparable harm to his
emotional and social development.
6. Failure to grant a preliminary injunction
will cause continued irreparable harm to the
7. Granting of a preliminary injunction will not
harm defendants or the public interest.
Conclusions of Law
1. Plaintiff is not a handicapped individual
within the meaning of The Education for All
Handicapped Children Act (EAHCA).
2. Plaintiff is handicapped within the meaning
of the Rehabilitation Act of 1973 and at this
point is otherwise qualified under the Act.
3. Plaintiff has a reasonable chance of success
on the merits of his claims.
4. Plaintiff has no adequate remedy at law.
5. That plaintiff will suffer irreparable harm
if an injunction does not issue.
For the foregoing reasons, plaintiff's Motion for Temporary
Restraining Order and Preliminary Injunction (Documents No. 2
and 9) are hereby GRANTED.
IT IS, THEREFORE, ORDERED that:
1. Effective the beginning of the school day
Monday, May 9, 1988, the Granite City Unit
School District No. 9 and the Board of
Education of Granite City Community Unit
School District No. 9, return plaintiff JASON
ROBERTSON to a regular classroom setting at
Prather Elementary School.
2. That on or before said date the plaintiff
JASON ROBERTSON be removed from his present
segregated placement and that said defendants
treat and provide him with all those
educational services which would be provided
to him if he did not have the HIV infection.
3. The Court deems security for costs
unnecessary in this case because of the
strong likelihood that plaintiff will succeed
on the merits. Therefore, the security
required by Rule 65(c), F.R.Civ.P. is hereby
4. This preliminary injunction is being issued
to stop the immediate and demonstrable
irreparable harm to plaintiff's emotional and
social well-being occasioned by defendants'
excluding him from a normal classroom setting
where he otherwise would be educated with his
5. This preliminary injunction shall remain in
effect until such time as this Court renders
a decision on the merits of this case.
IT IS SO ORDERED.