On appeal from and certification to the Superior Court, Appellate Division.
For modification and affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, J.
[105 NJ Page 589] Acquired Immune Deficiency (AIDS) is a disease that disables the body from fighting infection. The cause of the disease is infection by the Human T-Lymphotropic Virus, Type III (HLTV-III, also known as Human Immunodeficiency Virus (HIV)). Three categories of outcomes result from infection by HTLV-III. The first, AIDS, is the most severe form of the infection; and most victims of the disease die within two years. The second possible form of infection is AIDS-Related Complex (ARC), a milder degree of immunodeficiency. The third and most common form of infection is asymptomatic, resulting in no abnormal infections.*fn1
On August 30, 1985, the State Commissioners of Health and Education jointly announced the adoption of policy guidelines for the admission to schools of children with AIDS, ARC, or HTLV-III antibody. These guidelines were promulgated by a representative of the Commissioner of Education (Commissioner) to county school superintendents on September 3, 1985.
According to the Commissioner, these policy guidelines were based upon epidemiological studies indicating "that AIDS is not transmitted through casual contact as would be present in the school environment." Pursuant to these guidelines, children with AIDS/ARC or HTLV-III antibody were required to be admitted to regular school attendance, unless the following exceptional conditions were evident:
a. The student is not toilet-trained or is incontinent, or otherwise is unable to control drooling.
b. The student is unusually physically aggressive with a documented history of biting or harming others.
The guidelines also established a Medical Advisory Panel (MAP or Panel), comprised of independent medical experts appointed by the Board of Health, to review local school board decisions to exclude a child. In reaching its decision, the Panel was empowered to consider written statements of reasons as well as other "written documentation submitted by the local district and/or such personal testimony as may be necessary." The Panel was required to render a written recommendation to the Commissioner of Education "as to whether the district has met its burden of proof to deny admission of the child."
The present case results from the efforts of two local school boards to exclude students with AIDS or ARC from the classroom. On September 3, 1985, the Plainfield Board of Education excluded from its preschool program a female child named "I.C." The child was diagnosed as having AIDS and was living in foster care under the guardianship of the Division of Youth and Family Services (DYFS).
The Plainfield Board initially sought the opinion of James M. Oleskie, M.D., the Director of the Division of Allergy, Immunology, and Infectious Diseases at the University of Medicine and Dentistry of New Jersey, who served as I.C.'s treating physician. On receiving Dr. Oleskie's recommendation that I.C. be admitted to the classroom, the School Board sought a second opinion, this time of Lawrence F. Frenkel, M.D., a professor of Clinical Pediatrics and Director of the Division of Immunology, Allergy and Infectious Diseases at Rutgers Medical School. Dr. Frenkel's report concluded, "it is my strong opinion that the students should not be kept out of schools and do not seem to pose a risk to other children in their environment." Notwithstanding these reports, the school board continued to exclude I.C. from its pre-school program.
The Plainfield Board next assembled a "Child Study Team" comprised of a psychologist, a learning disability consultant, a speech therapist, a school worker, and a physician, to ascertain whether I.C. should be eligible for special education. Pending
completion of the Study Team's report, I.C. was excluded from regular kindergarten education and received two hours of home instruction per day. DYFS filed a petition with the Commissioner of Education for declaratory judgment to determine the validity of the Commissioner's action.
The exclusion was reviewed by the Medical Advisory Panel, which had been constituted under the Commissioner's guidelines. The Panel considered letters and evaluations submitted by I.C.'s and the school's doctor, as well as written psychological evaluations from two other doctors. In addition, the school's physician personally appeared before the Panel. Dr. Oleskie, I.C.'s treating physician, recommended the admission of I.C., concluding that the student did not pose a risk of transmission to others in the school environment. Dr. John E. Hampton, the school's medical inspector, recommended that I.C. be excluded as a result of her reduced immunity to infection. The Plainfied Board had no contact with the panel throughout its deliberation process.
On October 2, 1985, the Panel concluded that the data that it considered "describe no tendencies toward behavior which could possibly be related to spread of infection." The Panel then issued a decision directing that the Plainfield Board "immediately admit I.C. to regular classroom attendance in the same manner and on the same basis as [it] would admit any other child eligible for school attendance." Although I.C. was neurologically impaired and thus being evaluated for possible classification as educationally handicapped, the Commissioner ordered the board not to use this as an excuse "for not placing I.C. in a regular classroom environment."
The Plainfield Board responded by requesting an additional 30 days to determine the appropriate placement of the child. Notwithstanding this request, on October 10 the Division of Youth and Family Services brought an action in Superior Court, Chancery Division, to enforce compliance with the ...