Doe v. County of Centre, PA

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

3-5-2001

Doe v. County of Centre

Precedential or Non-Precedential:

Docket 00-3195

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation

"Doe v. County of Centre" (2001). 2001 Decisions. Paper 40.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/40

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed March 5, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-3195

JOHN DOE; MARY DOE,

Appellants

v.

COUNTY OF CENTRE, PA; CHILDREN & YOUTH

SERVICES OF CENTRE COUNTY; BOARD OF

COMMISSIONERS OF THE COUNTY OF CENTRE; TERRY

WATSON, individually and in his of ficial capacity as the

Director of Centre County Office of Children and Youth

Services; CAROL SMITH, individually and in her of ficial

capacity as the Assistant Director Administrator of the

Centre County Office of Children and Youth Services;

LISA RICE, individually and in her official capacity as a

Foster Home Specialist of the Centre County Of fice of

Children and Youth Services

ON APPEAL FROM THE ORDER OF THE

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Civ. No: 99-cv-00683)

District Court Judge: The Honorable

James F. McClure, Jr.

Argued on September 27, 2000

Before: MANSMANN, ALITO, and FUENTES, Cir cuit Judges

(Opinion Filed: March 5, 2001)

Mathew M. Gutt (argued)

Carl G. Roberts

Ballard Spahr Andrews &

Ingersoll, LLP

1735 Market Street, 51st Floor

Philadelphia, Pennsylvania

19103-7599

Attorneys for Appellants

Stefan Presser

Scott Burris

American Civil Liberties Union

of Pennsylvania

125 South 9th Street, Suit 701

Philadelphia, Pennsylvania 19107

Attorneys for Appellants

Catherine Hanssens

Colleen Sullivan

Lambda Legal Defense and

Education Fund, Inc.

120 Wall Street, Suite 1500

New York, New York 10005-3904

Attorneys for American Public

Health Association, AIDS Alliance

for Children, Youth, and Families,

AIDS Law Project of Pennsylvania,

Alliance for Children's Rights,

Lambda Legal Defense and

Education Fund, Inc., The

Juvenile Law Center, Lawyers for

Children, Inc., Legal Aid for

Children/Pittsburgh, The Legal Aid

Society of New York/Juvenile

Rights Division, The National

Alliance of State and Territorial

AIDS Directors, National Center

for Youth Law, The Support Center

for Child Advocates, The Youth

Law Center, and The Association

of Maternal and Child Health

2

Programs, as Amici Curiae on

behalf of Appellants

Gerard J. Geiger (argued)

Newman, Williams, Mishkin,

Corveleyn, Wolfe & Fareri, P .C.

721 Monroe Street

Stroudsburg, Pennsylvania 18360

Attorney for Appellees

Anthony T. McBeth (argued)

Law Offices of Anthony T. McBeth

407 North Front Street, First Floor

Harrisburg, Pennsylvania 17101

Attorney for The County

Commissioners Association of

Pennsylvania, as Amicus Curiae

on behalf of Appellees

Robert L. Knupp

Knupp, Kodak & Imblum, P.C.

P.O. Box 11848

Harrisburg, Pennsylvania

17101-1848

Attorney for The County

Commissioners Association of

Pennsylvania, as Amicus Curiae

on behalf of Appellees

OPINION OF THE COURT

FUENTES, Circuit Judge:

The primary issue raised by this appeal is whether

Centre County violated the appellants' civil rights by

excluding them from participation in the County's foster

care program because their son has HIV and AIDS, and

because of their race. This case began when appellants

John and Mary Doe, an interracial couple with an HIV -

positive son named Adam,1 appr oached Centre County's

_________________________________________________________________

1. Names have been changed to preserve confidentiality.

3

Foster Child Program, seeking to become foster parents.

County officials responded by adopting a policy providing

that foster families whose members have "serious infectious

diseases" may care only for children with the same disease.

The policy would permit the Does to car e for uninfected

children only if the Does agreed to r elease information

regarding their son and the biological par ents executed a

written consent releasing the County fr om potential

liability. The Does refused to agree to the policy and filed

suit, alleging disability discrimination in violation of, among

other statutes, Title II of the Americans with Disabilities Act

and Section 504 of the Rehabilitation Act, and racial

discrimination in violation of Title VI of the Civil Rights Act

of 1964. The Does sought invalidation of the policy,

approval as foster parents, and compensatory and punitive

damages. The District Court granted summary judgment to

the County on the disability discrimination claims,

reasoning that the policy was justified under the ADA's

direct threat exception since foster children placed with the

Does could sexually assault Adam and contract HIV .

Because we believe that a reasonable fact finder could

find that placement of at least some foster childr en in the

Does' home would not entail a significant risk of harm, we

will reverse. Furthermore, we will r everse the District

Court's judgment that none of the Does' racial

discrimination claims are ripe for adjudication. However, we

will affirm the District Court's decision that the individual

County officials are entitled to qualified immunity. We will

also affirm the District Court's holding that county

government entities are immune fr om punitive damages.

I.

The appellants, John Doe, a 51 year old African-

American man, and Mary Doe, a 52 year old Caucasian

woman, are married, and live in State College, Centre

County, Pennsylvania, with their two adopted sons, Adam,

11 years old, and Steven, 12.

Over the years, Mary has dedicated herself to the care of

foster children with special needs. From 1972 to 1989, she

cared for 8 foster children and eventually adopted 7 of

4

them. Adam and Steven, who came to Mary as infants, were

the last two children she adopted. Adam came to Mary with

HIV and AIDS, which he contracted from his birth mother.

Another of Mary's adopted sons was blind, retar ded and

had cerebral palsy. Others had been physically and

sexually abused. Her efforts have earned her several

awards, including Foster Parent of the Y ear by the New

York State Foster Parents' Association.

Overcoming a troubled youth and time in prison, John

earned a college degree and became active in church and

community affairs. He has served as a pr ogram worker in

residential group homes for persons with mental

retardation and is currently a cab driver. He had no

children of his own, but upon marrying Mary, he accepted

her children, including Adam, into his home.

AIDS (Acquired Immunodeficiency Syndr ome) is the last

stage of progression of the HIV virus (Human

Immunodeficiency Virus). HIV infects and destroys specific

white blood cells, known as T lymphocytes, that support

the body's immune system. As the virus progr esses,

infected persons become more and more susceptible to

opportunistic infections and diseases, and, although

persons with HIV can live for years, the virus has no cure.

See generally Bragdon v. Abbott, 524 U.S. 624, 633-37

(1998) (describing the course of HIV and AIDS in detail,

with references to medical texts and authorities).

Due to the virus, Adam suffers eating and digestion

problems. He receives nourishment thr ough a feeding tube.

He has symptoms of autism and permanent lear ning

deficits, including difficulties speaking and expressing

himself. Unable to care for himself, Adam r elies on his

parents and others to assist him with eating, cleaning, and

personal hygiene.

Prior to 1996, HIV and AIDS severely thr eatened Adam's

health. His eating and digestive problems wer e far more

severe, and he weighed only 37 pounds at the age of six in

March 1996. At that time, doctors began aggr essive drug

therapy that has suppressed Adam's HIV viral load to

undetectable levels.2 Today, despite his physical limitations,

_________________________________________________________________

2. Viral load refers to the level of virus in an HIV-positive person's

blood.

5

Adam has good overall health, and suffers no greater risk

of opportunistic infection than a child without HIV .

Adam attends school classes for children with special

needs. School officials keep his HIV-positive status

confidential and do not require disclosure of that status to

parents of HIV-negative students. Adam has not

transmitted HIV to his brother, Steven, nor to any children

with whom he attends school.

The probability of HIV transmission from Adam to others

is a crucial issue in this case. During proceedings, the

District Court entertained testimony about HIV and AIDS

from two medical experts, Joel H. Hersh, an expert in

Public Health Administration, and Robert M. Swenson,

M.D., a physician and expert in the treatment of infectious

diseases. The following discussion proceeds fr om their

testimony and related affidavits. See generally Doe v.

County of Centre, 60 F. Supp. 2d 417, 419-26 (M.D. Pa.

1999) (summarizing portions of the medical evidence)

[hereinafter Doe I]; Doe v. County of Centre, 80 F. Supp. 2d

437, 441-44 (M.D. Pa. 2000) (same) [hereinafter Doe II].

HIV is transmitted only through absorption of infected

blood or sexual secretions into the bloodstr eam or mucous

membranes of an uninfected person. Bodily fluids such as

sweat, tears, or saliva, while containing minute amounts of

HIV, pose little to no risk of infection, nor does skin contact

with HIV-positive blood, unless the skin is br oken or has

open wounds. Thus, the chance of HIV transmission fr om

casual contact is virtually nonexistent. Nor mal sibling

fighting and roughhousing present negligible risk of

transmission. In fact, Dr. Hersh testified that out of the

21,000 AIDS cases in Pennsylvania, there ar e no reported

cases of virus transmission due to familial contact or

fighting. Even intense physical activities cr eate little risk of

infection. For example, Dr. Swenson noted that a study

involving football players found that the risk of HIV

transmission was one in every 85 million violent contacts.

The two primary modes of infection are thr ough the use

of infected hypodermic needles and thr ough unprotected

sex. According to Dr. Swenson, the pr obability of HIV

transmission through sexual activity varies depending on

6

the activity involved, the specific roles of the infected and

uninfected persons in the sexual activity, and the viral load

of the infected person. Certain generalities apply. For

example, the lower an HIV-positive person's viral load, the

lower the transmission risk. In addition, during sexual

intercourse, HIV is more easily transmitted from an

insertive to a receptive partner than fr om a receptive to an

insertive partner.

Relying on his professional experience and the prevailing

medical research, Dr. Swenson testified as to the

probability of transmission in non-consensual male-to-male

sexual activity. These risk findings rely on medical models

of disease transmission based on observations of patients,

rather than on actual controlled tests. Accor ding to Dr.

Swenson, the probability of transmission to a person with

HIV who performs oral sex on an infected partner is low,

about 1 in 2500 for each occurrence. The pr obability of

transmission from a receptive HIV-positive partner to an

insertive HIV-negative partner in anal sex is about 1 in

1666. However, the probability of transmission from an

insertive HIV-positive partner to a receptive HIV-negative

partner under these circumstances is much higher, about

1 in 120.

The appellees in this case are Centre County, the Office

of Children and Youth Services of Centr e County ("CYS"),

and the Board of Commissioners of Centr e County ("County

Board"), as well as individual CYS officials Terry Watson,

Carol Smith, and Lisa Rice. We will r efer to the appellees

collectively as the "County." Centre County provides a

foster care program for children in need of temporary or

permanent placements outside the homes of their biological

or custodial families. CYS operates the foster car e program

and is obligated to follow all applicable federal and

Pennsylvania laws. In particular, CYS operates under a

statutory duty to investigate foster parent applicants in

order to preserve the physical and emotional health of

foster children. See, e.g., 23 Pa. Cons. Stat. S 6344(d)

(requiring foster programs to investigate prospective foster

parents for criminal activity or child abuse). Both Centre

County and CYS receive federal funds, and the foster care

program receives a portion of these funds.

7

Terry Watson is the Director of CYS, and oversees the

foster care program. Carol Smith is the Assistant Director

of CYS, bearing ultimate responsibility and oversight for the

training of foster parents. Lisa Rice is a foster home

specialist employed by CYS. She helps select and counsel

foster families. Tom Groninger, who is not an appellee in

this case, is an employee of CYS who perfor ms home

studies for prospective foster parents. According to Carol

Smith, there are several steps in a foster parent

application: (1) an initial phone call; (2) a pr eliminary home

study by Groninger; (3) six weeks of pr e-service training for

foster parents; (4) a meeting between the foster parents and

Lisa Rice, and a final assessment; and (5) a meeting

between Rice and Smith to approve or disappr ove the

application.

In January 1998, the Does applied to become foster

parents under the CYS foster care pr ogram. During the

preliminary home study, the Does disclosed to Groninger

that Adam had HIV and AIDS. Prior to the Does'

application, CYS officials had never knowingly placed a

child in a foster home where someone had HIV , and

therefore had no policy to address the limitations, if any,

applying to such a home. The County claims that CYS,

looking for guidance, investigated the policies of other

counties throughout Pennsylvania. CYS officials found

some infectious disease policies in other counties, but claim

that none addressed the specific situation of placing an

HIV-negative child in a foster home wher e HIV is present.

Amici curiae, the American Public Health Association and

others, challenge the County's claims of investigation, citing

numerous policies from other jurisdictions. These policies

generally state that family services agencies should neither

apply blanket prohibitions against placing HIV -positive

foster children with HIV-negative childr en, nor segregate

HIV-positive foster children from HIV-negative children

without analyzing the particular circumstances of each

case. See Dep't of Pub. Welfar e, Commonwealth of Pa.,

Children, Youth and Families Bulletin: HIV/AIDS Policy 9

(1989) (unofficial draft policy) ("HIV positive children should

not be segregated in day care facilities, foster homes, group

homes, residential placements, or institutions based on

8

their HIV status alone"); The Dep't of Servs. for Children,

Youth and their Families, State of Del., Policy and Procedure

Manual: Communicable Diseases S 103 (IV)(F) (1998)

("Except where the presence or risk of[HIV infection from

a foster child] presents specialized car e needs, the presence

or risk of [HIV] should not be the mitigating factor in the

placement decision"); N.J. Div. of Youth and Family Servs.,

Field Operations Casework Policy and Procedur es Manual

S 1502.10 (1999) (when placing HIV-positive foster children,

"[s]iblings and children of any age may be placed together

in the same household, unless a physician advises

otherwise"); Child Welfare League of Am., Meeting the

Challenge of HIV Infection in Family Foster Car e 18-22

(1991); Child Welfare League of Am., Serving HIV-Infected

Children, Youth, and their Families: A Guide for Residential

Group Care Providers 29-33 (1989).

The policies cited are not, however, entirely on point,

since they apply to the placement of HIV-positive foster

children into foster homes rather than the placement of

HIV-negative children into foster homes where HIV is

present. Having reviewed these polices, we conclude that

only the policy of the Philadelphia Department of Human

Services applies to the present situation. That policy

declares that "[t]he Department . . . does not discriminate

in . . . its recruitment or development of kinship caregivers,

foster parents, adoptive parents, and contracted providers

on the basis of . . . [their] living or[being] perceived as living

with HIV/AIDS." See Children and Youth Div., Phila. Dep't

of Human Servs., Policy Manual SS 1010, 5200 (emphasis

added).

After its investigation, CYS officials examined the records

of Centre County's foster care program. They found a

pattern of physical and sexual abuse among foster children:

As of March 31, 1999, CYS had 125 childr en in

placement. Of those children:

(a) 49% (61 children) had behavioral or emotional

problems,

(b) 24% (30 children) had been victims only of sexual

abuse[,]

9

(c) 5% (6 children) were perpetrators only of sexual

abuse[,] and

(d) 7% (9 children) were both victims and perpetrators

of sexual abuse.

Doe II, 80 F. Supp. 2d at 441 (inter nal quotations and

citation omitted). According to CYS officials, a "perpetrator,"

as used in (c), is a child who has assaulted another child

sexually, but CYS's definition of "assault" includes such

activities as fondling and disrobing others.

CYS officials further concluded that, given the emergency

nature of foster child placement, there was inadequate time

to assess each foster child for behavioral or emotional

problems prior to placement. While able to identify some

sexual perpetrators, CYS officials found that a number of

foster children were not identified as sexual perpetrators

until after foster placement. Especially disturbing were

documented instances of sexual assault by foster children

on other children in foster homes.

Motivated by the concern that a foster child might

sexually assault Adam, and thereby contract HIV , CYS

Director Watson developed the following policy regarding

the placement of children when infectious diseases are

present:

C) Placement Of Children With Ser ious Infectious

Diseases

. . . If a child with a serious infectious disease is placed

in a foster home, or if there is a family member of the

foster family who has a serious infectious disease, only

children with the same serious infectious disease will

be considered for placement in that home. The only

exception to this policy would be for a parent/guardian

of a child in the care and custody of C&YS to sign an

informed consent for the placement of their non-

infected child in such a home. . . . For this exception

to occur, the foster parents would have to voluntarily

agree to release information to the child's parents that

a member of the foster family has been diagnosed with

a specific serious infectious disease.

10

The County Board adopted this policy and dir ected CYS to

carry out its terms.3

Meanwhile, Lisa Rice informed the Does that Adam's HIV

might present a problem for foster par ent approval.

According to plaintiffs' version of events, Rice also alluded

to racial considerations, telling Yolanda Lollis of the AIDS

Law Project in Pennsylvania,4 as well as Mary Doe, that the

HIV issue was irrelevant since CYS did not have any

African-American foster children to place with the Does.

During later proceedings, Rice explained that CYS uses

race as a factor in placing children because it tries to

replicate a foster child's original home envir onment. Racial

continuity minimizes disruption and change in the child's

life. Rice also acknowledged the possibility of racial

animosity between the interracial foster par ents and

Caucasian biological or custodial parents.

Given the HIV controversy, the Does' application stalled

without a formal evaluation of their fitness as foster

parents. After delay and mutual recriminations, CYS

officials sent the Does a formal letter on December 18,

1998 stating that:

we are prepared to consider appr oval of you as

available foster parents for any HIV-infected child. If

you would like to be approved for other childr en, per

our policy, you would need to sign a consent allowing

CYS to disclose to any child's parents that a member

of your family/household is HIV-infected. In turn, the

parent must sign an informed consent allowing their

child to be placed in your home.

The Does refused to consent to this arrangement.

On April 28, 1999, the Does sued Centre County, CYS,

and the County Board, as well as CYS officials Watson,

Smith, and Rice, individually and in their official capacities.

The Does charged the County with disability discrimination

_________________________________________________________________

3. The quoted passage is actually provision IV.C in a policy containing

numerous provisions. Nevertheless, for ease we will refer to this

provision as the County's policy.

4. Lollis had provided legal advice to the Does in connection with this

case.

11

in violation of Title II of the Americans with Disabilities Act,

42 U.S.C. SS 12131-34 [hereinafter"Title II of the ADA"],

and Section 504 of the Rehabilitation Act, 29 U.S.C.S 794;

racial discrimination in violation of Title VI of the Civil

Rights Act of 1964, 42 U.S.C. S 2000d-1-7; and racial and

disability discrimination in violation of the equal protection

guarantees under the United States Constitution, pursuant

to 42 U.S.C. S 1983. They also filed a motion for injunctive

relief. With respect to remedies, the Does sought

invalidation of the County's infectious disease policy, their

approval as foster parents, and compensatory and punitive

damages.

On June 22, 1999, the District Court held a one-day

hearing on the Does' preliminary injunction motion. It was

during this hearing that nearly all of the r ecord in this case

was developed.

On July 12, 1999, the County moved to dismiss the Does'

complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to

state a claim, arguing that: (a) the Policy was valid since

Adam's AIDS posed a direct and significant threat to foster

children; (b) the Does' racial discrimination claims were

unripe; (c) the individual defendants were entitled to

qualified immunity; and (d) punitive damages wer e

unavailable. Within its motion, the County r eferred to

matters outside of the complaint, specifically r elying on

evidence from the June 22, 1999 preliminary injunction

hearing.

The District Court dealt with the preliminary injunction

motion and the 12(b)(6) motion in several related steps. By

order dated August 30, 1999, the District Court denied the

preliminary injunction motion, finding that the Does failed

to prove a reasonable likelihood of success on the merits.

Doe I, 60 F. Supp. 2d at 426. By or der dated October 13,

1999, the District Court, believing that the evidence from

the hearing sufficed to resolve the case, accepted and

considered the County's proffer ed extrinsic evidence.

Following Fed. R. Civ. P. 12(b), the Court r easoned that the

inclusion of extrinsic evidence mandated the conversion of

the motion to dismiss into a motion for summary judgment.

See generally Hilfirty v. Shipman, 91 F .3d 573, 578 (3d Cir.

1996) (outlining procedure for conversion). The Court

12

therefore gave the parties 16 days tofile briefs, affidavits,

and other materials that might be relevant. The Does

objected to conversion, arguing that discovery had been

inadequate. They also argued that, in any case, the Court

should deny summary judgment on the available r ecord.

On February 1, 2000, the District Court granted

summary judgment to the County on all claims. Doe II, 80

F. Supp. 2d 437. It held that Adam's HIV posed a

significant risk to foster children who might sexually

assault Adam, and that therefore, the dir ect threat

exception to the ADA and Rehabilitation Act applied,

justifying discrimination via the infectious disease policy.

The District Court also held that the individual CYS officials

were entitled to qualified immunity because any right the

Does had was not clearly established, and, further , that

County government entities were immune fr om punitive

damages. Lastly, the Court found that the Does' racial

discrimination claims were unripe. The Does appealed the

order granting summary judgment for the County, 5 and we

have jurisdiction under 28 U.S.C. S 1291.

II.

We exercise plenary review over the District Court's grant

of summary judgment, Dowling v. City of Philadelphia, 855

F.2d 136, 141 (3d Cir. 1988), and we independently apply

the same standard applicable to district courts, Olson v.

Gen. Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996)

(citations omitted). Federal Rule of Civil Pr ocedure 56(c)

directs that summary judgment is appropriate "if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter

of law." In following this directive, a court must take the

facts in the light most favorable to the nonmoving party,

the Does, and draw all reasonable infer ences in their favor.

McCarthy v. Recordex Serv., Inc., 80 F .3d 842, 847 (3d Cir.

1996).

_________________________________________________________________

5. The Does have not contested the denial of their motion for a

preliminary injunction.

13

III.

We first consider the Does' contention that the District

Court erred in dismissing their disability discrimination

claims brought under Title II of the ADA and Section 504

of the Rehabilitation Act. As a starting point, the

protections found in the ADA and in the Rehabilitation Act

are interpreted similarly, and, in this case, are identical.

See Bragdon, 524 U.S. at 632 (using statutory construction

to conclude that the Court should "construe the ADA to

grant at least as much protection as pr ovided by the

regulations implementing the Rehabilitation Act").

Therefore, except where necessary, we refer only to Title II

of the ADA, with the understanding that both statutes are

implicated.

Title II of the ADA provides, in pertinent part, that:

no qualified individual with a disability shall, by reason

of such disability, be excluded from participation in or

be denied the benefits of the services, pr ograms, or

activities of a public entity, or be subjected to

discrimination by any such entity.

42 U.S.C. S 12132; see also 29 U.S.C.S 794(a) (Section 504

of the Rehabilitation Act) (prohibition on disability

discrimination in federal programs). The ADA describes a

disability as "a physical or mental impair ment that

substantially limits one or more of the major life activities

of [an] individual." 42 U.S.C. S 12102(2); see also 29 U.S.C.

705(20)(B) (same under the Rehabilitation Act). Adam's HIV

clearly constitutes a disability since it is a physical

impairment, 28 C.F.R. S 35.104 (defining "physical

impairment"), that substantially limits several of Adam's

major life activities, such as talking, walking, and digestion,

28 C.F.R. S 35.104 (defining "major life activities"). See also

45 C.F.R. S 84.3(j) (defining physical impairment and major

life activities under the Rehabilitation Act); Bragdon, 524

U.S. at 637, 641 (holding that HIV, even in the so-called

asymptomatic phase, is an impairment which substantially

limits the major life activity of reproduction).

The protections of the ADA extend to "qualified

individuals" who are discriminated against because of their

relationship or association with individuals who have a

14

known disability. 28 C.F.R. 35.130(g); compare 42 U.S.C.

S 12112(b)(4) (Title I of ADA); H.R. Rep. No. 101-485(III), at

38 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 461 (Title I

of ADA) (the ADA "protects persons who associate with

persons with disabilities and who are discriminated against

because of that association. This may include family,

friends, and persons who provide care for persons with

disabilities."). As the adoptive parents of Adam, John and

Mary Doe have a close relationship entitling them to

protection under the ADA.

CYS's policy requires notification of and consent from the

biological or custodial parents of HIV-negative foster

children when placing those children in homes with HIV-

positive individuals. The policy therefor e treats John and

Mary Doe differently during the foster parent application

process solely on the basis of Adam's HIV and AIDS. As a

facial matter, then, the policy constitutes disability

discrimination against the Does under the ADA.

Nevertheless, the ADA allows disparate treatment in

certain cases. In particular, the ADA r ecognizes that the

goal of ending disability discrimination must be balanced

against the health and safety risks that disabilities

sometimes pose to others. See Bragdon, 524 U.S. at 648-

49. Thus, the ADA contains a direct thr eat exception, which

allows discrimination if a disability "poses a direct threat to

the health or safety of others." 28 C.F.R. Part 35, App. A at

483; compare 42 U.S.C. S 12182(b)(3) (Title III of ADA); see

also 29 U.S.C. S 705(20)(D) (Rehabilitation Act). A "direct

threat" exists when there is a "significant risk to the health

or safety of others that cannot be eliminated by a

modification of polices, practices, or procedures or by the

provision of auxiliary aids or services." 42 U.S.C.

S 12182(b)(3) (emphasis added).6 As the Supreme Court has

stated, the exception can only be invoked wher e a risk is

significant: "[b]ecause few, if any, activities in life are risk

_________________________________________________________________

6. The direct threat exception was a judicially created doctrine first

announced in School Board of Nassau County v. Arline, 480 U.S. 273,

287 n.16 (1987). Following that case, Congress amended the disability

discrimination statutes to include the Court's dir ect threat language.

See

Bragdon, 524 U.S. at 649.

15

free . . . the ADA do[es] not ask whether a risk exists, but

whether it is significant." Bragdon, 524 U.S. at 649. Thus,

courts and entities deciding whether to exclude the

disabled must rely on evidence that "assess[es] the level of

risk" for the "question under the statute is one of statistical

likelihood." Id. at 652.

To determine the existence of a significant risk, the

Supreme Court in School Board of Nassau County v. Arline

directed courts to make factual findings concerning the

following four factors:

(a) the nature of the risk (how the disease is

transmitted), (b) the duration of the risk (how long is

the carrier infectious), (c) the severity of the risk (what

is the potential harm to third parties) and (d) the

probabilities the disease will be transmitted and will

cause varying degrees of harm.

480 U.S. 273, 288 (1987) (internal quotations and citation

omitted). These findings must be based on "medical or

other objective evidence," with special defer ence to the

views of public health authorities. Bragdon, 524 U.S. at

649.

In the leading Supreme Court case, Bragdon v. Abbott, a

dentist refused to treat a patient with HIV, believing the

patient might infect him. Addressing the dentist's

invocation of the ADA's direct threat exception, the Court

conducted a rigorous and individualized inquiry into the

risk of HIV transmission from patient to dentist. Id. at 650-

54 (scrutinizing the details of studies and other cited

authorities). Despite the existence of a theor etically possible

means of transmission from patient to dentist, the Court

remanded the case to "permit a full exploration of the

issue" of risk of transmission given the Court's"analysis of

some of the studies cited by the parties." Id. at 655 (dentist

argued that he might be infected by HIV -positive patient

through airborne blood vapors or thr ough an accidental

cut). In doing so, the Court did "not for eclose the possibility

that the Court of Appeals [might] reach the same

conclusion it did earlier" in holding that ther e was no

significant risk to the dentist. Id.; see Abbott v. Bragdon,

163 F.3d 87, 90 (1st Cir. 1998) (finding no significant risk

on remand), cert. denied, 526 U.S. 1131 (1999).

16

The disposition in Bragdon follows fr om Congress' intent

that the ADA's prohibitions on disability discrimination

require an individualized determination as to the

significance of risk underlying the direct threat exception,

both by entities evaluating disabilities and by courts

judging the actions of those entities:

A person with a disability must not be excluded . . .

based on stereotypes or fear. Nor may a decision be

based on speculation about the risk or harm to others.

Decisions are not permitted to be based on

generalizations about the disability but rather must be

based on the facts of an individual case. . . The purpose

of creating the `direct thr eat' standard is to eliminate

exclusions which are not based on objective evidence

about the individual involved.

H.R. Rep. No. 101-485(III), at 45 (1990), r eprinted in 1990

U.S.C.C.A.N. 445, 468 (emphasis added); see also Holiday

v. City of Chattanooga, 206 F.3d 637, 643 (6th Cir. 2000)

(holding that a district court erred in accepting a

physician's report about the abilities of an HIV-positive

police officer applicant where "ther e [was] no indication that

the physician conducted the individualized inquiry

mandated by the ADA"); Taylor v. Pathmark Stores, Inc.,

177 F.3d 180, 192-93 (3d Cir. 1999) (employers must make

individualized determinations about the disabilities of

employees); Doe v. Dekalb County Sch. Dist., 145 F.3d

1441, 1446 (11th Cir. 1998) (the Supr eme Court "insist[s]

that district courts undertake `individualized inquiry' in

each case" regarding the significance of risk).

In ruling against the Does' disability discrimination

claims, the District Court accepted the County's ar gument

that Adam's HIV posed a significant risk to foster children

placed in the Does' home. The direct thr eat exception

therefore applied, justifying the County's policy. While

acknowledging that the probability of transmission might

be low during a specific sexual act, the Court stated that it

was "unaware of any way of assuring that contact between

[Adam and a foster child] will be indeed casual," and that

if not casual, there would be a chance that HIV -

transmitting sexual intercourse might take place. Doe II, 80

17

F. Supp. 2d at 443 (internal quotations and citation

omitted).

In an effort to follow Arline and Bragdon, the District

Court based its significance of risk conclusion on four

findings of fact. As to the nature of the risk, it found that

"the HIV virus has been proven to be transmitted through

sexual intercourse (homosexual or heter osexual),

intravenous drug use, and transfusion of blood and blood

products." Doe I, 60 F. Supp. 2d at 428. As to the duration

of the risk, it found that "AIDS is a ter minal disease for

which there is no cure. . . . [T]he risk [is] present until the

carrier succumbs to the disease." Id. W ith respect to the

severity of the risk, it found that "[t]he harm to third

parties is life-threatening." Id. W e agree that there is no

genuine dispute regarding these findings.

Most of the tension in this case, however, surrounds the

fourth and final factor -- the probability of transmission. As

to this factor, the District Court agr eed with the County,

and found "a high probability that [HIV] will be transmitted

[through sexual contact] to childr en placed in foster care

with the Does." Id. at 428. With r espect to this factor, we

cannot agree with the District Court because we conclude

that there is definitely a genuine dispute of fact. It is

obvious from the record that Adam's physical limitations

prevent him from being a sexual aggr essor. The District

Court must have derived its conclusion regar ding the

probability of transmission from the possibility of a sexual

misdeed by a foster child, reasoning that: (1) given the data

provided by CYS officials, CYS foster childr en have a high

propensity to sexually abuse other childr en, see Doe II, 80

F. Supp. 2d at 441; and (2) according to testimony by Carol

Smith, "CYS cannot identify with any certainty at the time

of placement which of its foster children will engage in

assaultive behavior or those children who will be sexual

perpetrators," id. at 442 (internal quotations and citation

omitted).

We believe that the reasoning the County and the District

Court employed is contrary to Congress' intent that

analysis of the ADA's direct threat exception should involve

an individualized inquiry into the significance of the threat

posed. See Bragdon, 524 U.S. at 649. In concluding that

18

CYS foster children have a high propensity for sexual

abuse, the District Court relied on a bland and generalized

set of statistics, lacking in individual specificity. These

statistics reveal that 12% of the foster childr en have had

histories of perpetrating some form of "sexual abuse," but

the statistics broadly define "sexual abuse" to include

activities such as fondling and disrobing that carry no risk

of transmitting HIV. Does II, 80 F . Supp. 2d at 441. More

important, the statistics do not indicate how many children

can be readily identified as being unable or unlikely to

engage in high-risk behavior.

The following example illustrates this point. The Does

have stated a preference for foster childr en under the age of

12. Foster children of tender age -- i.e., infants and

children who have not reached puberty-- are extremely

unlikely to commit forcible sexual inter course leading to the

transmission of HIV.7 Mor eover, as noted there is no

evidence indicating that Adam is at all likely to commit

such an assault, and much evidence suggesting that this is

most unlikely. Thus, we believe that the probability of HIV

transmission from Adam to a tender-aged child placed in

the Does' home appears to be insignificant. Mor eover,

contrary to Carol Smith's testimony, such children are

precisely the type of children whom CYS can identify as

unlikely perpetrators of HIV-transmitting sexual assault.

The County argues that even though the pr obability of

_________________________________________________________________

7. We use "tender age" only as helpful terminology for defining a range

of sexual development. In doing so, we are not drawing on any legal

definition of tender years or age, but rather on the practical physical

limits of pre-pubescent children. In fact, we note that the definition of

the phrase "children of tender years" has varied in social and legal

contexts, with little direct connection to sexual development. See, e.g.,

Black's Law Dictionary 1480 (7th ed. 1999) (in family law, the tender

years doctrine provides "that custody of very young children (usu[ally]

five years of age and younger) should generally be awarded to the mother

in a divorce unless she is found to be unfit"); Robert G. Marks, Note,

Should We Believe the People Who Believe the Children?: The Need for a

New Sexual Abuse Tender Years Hearsay Exception Statute, 32 Harv. J.

on Legis. 207, 245-46 (1995) (noting that all states limit their tender

years statutes to children below a certain age, and arguing that some of

the age limits are too low).

19

transmission is negligible, a generalized policy is justified

where a disability, such as HIV, is deadly and has no cure,

because the loss of even one life is too great a cost in

pursuit of the ADA's honorable goals. Admittedly, when

facing the life-threatening consequences of HIV , some

federal appellate courts have held that any amount of risk

through a "specific and theoretically sound means of

transmission" constitutes a significant risk, allowing

invocation of the direct threat exception. Onishea v. Hopper,

171 F.3d 1289, 1297-99 (11th Cir. 1999) (allowing

segregation of HIV-positive prisoners), cert. denied, 528 U.S.

1114 (2000); see also Estate of Mauro v. Borgess Med. Ctr.,

137 F.3d 398, 405, 407 (6th Cir. 1998) (affirming summary

judgment against HIV-positive surgical technician even

though Centers for Disease Control calculated odds of

transmission during a surgery as between 1 in 42,000 and

1 in 420,000); Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d

1261, 1265-66 (4th Cir. 1995) (affir ming summary

judgment against HIV-positive physician wher e the risk of

transmission was "minimal but nevertheless

ascertainable"); Bradley v. Univ. of T ex. M.D. Anderson

Cancer Ctr., 3 F.3d 922, 924 (5th Cir. 1993) (per curiam)

(affirming summary judgment in favor of hospital that

refused to permit an HIV-positive surgical assistant to

assist surgeries, even though risk was "small").

Other appellate courts have endorsed a more exacting

standard, requiring some actual risk of transmission

including documented cases. See Abbott, 163 F.3d at 90

(finding that plaintiff HIV-positive dental patient produced

sufficient evidence that there would be no significant threat

to dentist from treatment); Chalk v. United States Dist.

Court Cent. Dist. of Cal., 840 F.2d 701, 707-09, 712 (9th

Cir. 1988) (directing entry of pr eliminary injunction

prohibiting school from transferring teacher with HIV from

classroom because uncertain and theoretical possibility of

HIV transmission to students did not present significant

risk, despite district court's characterization of the potential

harm as "catastrophic").

We need not decide the merits of these two positions

since, even under the more cautious rule, a r easonable fact

finder could find that there is no "specific and theoretically

20

sound means of [HIV] . . . transmission" fr om Adam to a

tender-aged foster child. Onishea, 171 F.3d at 1297. In

light of the objective medical evidence in the r ecord, a

reasonable fact finder could easily find that the risk of a

little boy or girl contracting HIV from Adam by forcing him

to engage in high-risk behavior is the type of r emote and

speculative risk that is insufficient for a finding of

significant risk, and insufficient for the invocation of the

direct threat exception. See Bragdon , 524 U.S. at 649 (in

assessing whether patient with HIV presented a significant

risk to dentist, "Arline and the ADA do not ask whether a

risk exists, but [rather] whether it is significant"); see also

H.R. Rep. No. 101-485(II), at 56 (1990), r eprinted in 1990

U.S.C.C.A.N. 303, 338 (Title I of ADA) (noting that a

"speculative or remote risk" is insufficient to support a

finding of a "significant risk"), H.R. Rep. No. 101-485(III), at

46 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 469 (Title I

of ADA) ("The plaintiff is not requir ed to prove that he or

she poses no risk").

Its original sexual assault justification faltering, the

County turns to another, contending that physical

roughhousing or fighting between Adam and a foster child

of tender age could still lead to the transmission of HIV. We

reject this contention. Even if we accept the less than

obvious proposition that a young child or infant could

physically assault Adam, a reasonable factfinder could

find, based on the objective medical evidence in the record,

that the risk of HIV transmission from casual contact, even

intense physical contact, is negligible.

Furthermore, the County's sexual assault and physical

violence arguments lose all force in the case of a foster

child who is so disabled that he or she is simply incapable

of committing sexual or physical assault.8 In such a

situation, the County's blanket policy discriminates against

the Does because of Adam's HIV positive status even

though the probability of HIV transmission, and

consequently the risk, is next to zero.

_________________________________________________________________

8. We believe there are such handicapped foster children. After all, the

record demonstrates that Adam himself was a physically disabled foster

child before being adopted by the Does.

21

In sum, the record is insufficient to support the grant of

summary judgment in favor of the County, because a

reasonable fact finder could not find, based on the

summary judgment record, that an individual with HIV

would always pose a significant risk to a foster child placed

by the County in that individual's home. This generalization

fails to address, for example, the placement of tender-aged

and disabled foster children. The County ther efore failed to

conduct the ADA-mandated individualized deter mination,

and the District Court erred in concluding that the ADA's

direct threat exception applied.

In addition to its significance of risk ar guments under

Arline and Bragdon, the County has pr esented several other

justifications for the policy. First, and most persuasively,

the County argues that the direct thr eat test in Arline and

Bragdon developed in the context of HIV-positive persons

rightfully demanding inclusion into the public spher e and

into public life. See, e.g., Abbott, 163 F.3d at 90 (holding

that HIV-positive dental patient was entitled to dental

treatment); Chalk, 840 F.2d at 708-09, 712 (9th Cir. 1988)

(holding that school could not transfer teacher with HIV

from classroom). The present case, by contrast, involves an

HIV-positive family requesting the placement of a non-HIV

positive child into their private home. The County argues

that this is a novel situation, demanding mor e stringent

standards since the threat posed in a private home is much

greater.

We have found no authority on this issue. W e

acknowledge the intuitive difference between inclusion into

the public sphere and placement in a private home. A

private home is much more difficult to monitor and involves

more intimate contact than would ordinarily take place in

the public sphere, such as at a school or within a hospital.

Further, as compared to the HIV-positive person seeking

inclusion, the HIV-negative child and his or her guardians

lack choice in the foster placement process. In addition,

entities responsible for foster placement, such as the

County, normally have an independent statutory directive

to ensure that the placement of children is safe. See, e.g.,

23 Pa. Cons. Stat. S 6344. Nevertheless, the differences

suggested, while possibly significant in some cases, cannot

22

justify the type of blanket policy implemented her e. Simply

put, the distinction between the public spher e and a private

home, which relates primarily to monitoring and intimacy,

has no material effect on the significance of risk analysis

for tender-aged and disabled foster childr en who, by their

inherent physical limitations, face negligible risk from an

HIV-positive child such as Adam, whether in the public

sphere or private home.

Second, the County argues that its policy is analogous to

the legal concept of informed consent, which r equires that

physicians, before performing any medical procedure,

provide patients with information about the potential risks

of the procedure to the health and safety of the patient. Doe

I, 60 F. Supp. 2d at 429-30 (employing this argument). The

analogy is inappropriate here. No pr ovision of the ADA

incorporates the concept of informed consent, and we see

no basis for engrafting that concept onto the statutory

scheme.

Third, the County argues that the particular

circumstances of the Does' family situation would compel

CYS to deny foster placement anyway, even in the absence

of the policy. In particular, the County is concerned with

family instability if Adam is hospitalized or has increased

needs, an event that might reduce the level of care to a

foster child. The problem with this argument is that the

County, by virtue of its application of the policy to the

Does, never reached this evaluative stage. Mor eover, the

record contradicts the County's assertions. Adam's

condition is stable. He has good health and faces no greater

risk of infection than a child without HIV. T o the extent the

County enacts a policy based on the belief that HIV , as a

general matter, causes instability, it again controverts the

ADA-mandate of individualized determination. The

instability argument further rings hollow given that the

County does not require disclosure of other stability

threatening conditions, such as cancer or neur ological

problems.

Finally, the County argues that making accommodations

for the Does will be difficult and resour ce-intensive given

the realities of foster care. Specifically, the County contends

that placements are often made under emer gency time

23

constraints with inadequate time for evaluation. Placing

young children with the Does, according to the County,

could also be psychologically damaging if those children

need to be moved at a later time due to their sexual

development. This argument, however, again ignores the

principle of individualized evaluation. After all, not every

placement will be an emergency, and not every child will

need to be moved.

For the reasons stated, we will reverse its grant of

summary judgment on the Does' claims of disability

discrimination. We emphasize that, while we have used

tender-aged and disabled foster childr en to illustrate the

shortcomings of the County's policy, our holding does not

foreclose the possibility of placing other foster children with

the Does, so long as there is no significant risk.

Given our decision, we need not consider the Does'

further arguments that the District Court impr operly

converted the County's motion to dismiss and that it erred

in not deferring summary judgment pursuant to Fed. R.

Civ. P. 56(f) until the completion of discovery. See Fed. R.

Civ. P. 12(b) (on conversion, "all parties shall be given

reasonable opportunity to present all material made

pertinent to such a motion by Rule 56"); Fed. R. Civ. Pro.

56(f); Ford Motor Co. v. Summit Motor Pr ods., Inc., 930 F.2d

277, 284 (3d Cir. 1991).

IV.

With respect to the Does' claims of racial discrimination

under Title VI of the Civil Rights Act of 1964 and 42 U.S.C.

S 1983, the District Court granted summary judgment to

the County. Reasoning that the Does' foster par ent

application had not yet been approved and that CYS had

not yet denied referral of a foster child to the Does on any

grounds, the District Court concluded that the Does' racial

discrimination claims were not ripe. See Doe II, 80 F. Supp.

2d at 446. On appeal, the Does argue that the District

Court erred. We exercise plenary r eview over whether a

cause of action is ripe. Felmeister v. Office of Attorney

Ethics, 856 F.2d 529, 535 n.8 (3d Cir . 1988). Upon review,

we conclude that the District Court's ripeness

determination was incorrect.

24

The ripeness doctrine helps determine whether a dispute

or claim has matured to a point warranting judicial

intervention. 13A Charles Alan Wright, Arthur R. Miller, &

Edward H. Cooper, Federal Practice and Procedure S 3532

(2d ed. 1984). The doctrine exists "to pr event the courts,

through avoidance of premature adjudication, from

entangling themselves in abstract disagreements over

administrative policies, and also to protect . . . agencies

from judicial interference until an administrative decision

has been formalized and its effects felt in a concrete way by

the challenging parties." Abbott Laboratories v. Gardner,

387 U.S. 136, 148-149 (1967), overruled on other grounds,

Califano v. Sanders, 430 U.S. 99, 105 (1977). T o evaluate

ripeness, we must look at the "fitness of the issues for

judicial decision and the hardship to the parties of

withholding court consideration." Id. at 149. "A claim is not

ripe for adjudication if it rests upon contingent future

events that may not occur as anticipated, or indeed may

not occur at all." Texas v. United States, 523 U.S. 296, 300

(1998) (internal quotations and citation omitted).

Here, the record shows ripe claims. The County enacted

the infectious disease policy, and, on December 18, 1998,

sent a letter informing the Does that they would not be

approved as foster parents without disclosure of Adam's

HIV status and without consent of the parents of any

prospective foster child. During the application process,

CYS officials allegedly made statements that might support

an inference of underlying racial motivations-- in

particular, Rice allegedly stated that the HIV issue was to

some degree irrelevant given the lack of racially suitable

foster children.

The District Court erroneously focused on the alleged

denial of placement as the Does' sole claim. Besides

alleging an improper denial, the Does alleged that the

County imposed discriminatory restrictions on the process

itself, in part because of racism engendered by the Does'

interracial relationship. This allegation, while disputed by

the County, does not constitute an "abstract

disagreement[ ]" incapable of judicial resolution. See, e.g.,

Abbott Laboratories, 387 U.S. at 148. Withholding judicial

consideration causes an immediate and significant

25

hardship on the Does, who will be deprived of their right to

present their federal statutory and constitutional claims for

redress. Therefore, we hold that the racial discrimination

claims are ripe.9 Accor dingly, we will reverse summary

judgment, and remand the case to the District Court for

further consideration.

V.

In this action, the Does sued CYS officials W atson, Smith,

and Rice in their individual capacities, seeking to impose

liability and personal damages. The officials claimed

qualified immunity from suit. The District Court agreed,

holding that qualified immunity applied because the Does

failed to show that the individual officials' conduct violated

rights clearly established at the time the conduct occurred.

Doe II, 80 F. Supp. 2d at 445. The Does appeal this

determination, and we have plenary review. Elder v.

Holloway, 510 U.S. 510, 516 (1994). We agree with the

District Court.

The doctrine of qualified immunity "hold[s] that

government officials performing discretionary functions

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established

statutory or constitutional rights of which a r easonable

person would have known." Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). The doctrine recognizes "the need to

protect officials who are requir ed to exercise their discretion

and the related public interest in encouraging the vigorous

exercise of official authority." Id. at 807 (internal quotations

and citation omitted).

In determining whether the individual CYS officials are

entitled to claim qualified immunity, we engage in a three-

part inquiry: (1) whether the plaintiffs alleged a violation of

their statutory or constitutional rights; (2) whether the right

alleged to have been violated was clearly established in the

_________________________________________________________________

9. We express no view as to whether there is sufficient evidence in the

summary judgment record to support a claim that the defendants were

motivated by racial considerations or that any such considerations had

any determinative effect on the proceedings concerning the plaintiffs.

26

existing law at the time of the violation; and (3) whether a

reasonable official should have known that the alleged

action violated the plaintiffs' rights. Rouse v. Plantier, 182

F.3d 192, 196-97 (3d Cir. 1999). Under the first part of the

inquiry, the Does allege a violation of their federal statutory

and constitutional rights. The second and thir d parts are

related, and involve an inquiry into the "objective legal

reasonableness" of an official's action, assessed in light of

legal rules that were "clearly established" at the time the

officials took the action. Anderson v. Cr eighton, 483 U.S.

635, 639 (1987) (internal quotations and citation omitted).

Rights may be clearly established even though the pr ecise

conduct at issue has not yet been declared unlawful. See

id. at 640. Throughout the inquiry, the officials' subjective

intent is irrelevant. See id. at 639.

The Supreme Court has directed that the right in

question should be defined in a particularized and relevant

manner, rather than abstractly. See id. at 640. Therefore,

we define the right in question as the right of HIV-positive

individuals and related persons to be fr ee from generalized

discrimination when public agencies place HIV -negative

individuals into their HIV-positive private homes. To defeat

qualified immunity, this right must have been sufficiently

clear such that a reasonable official would have known that

enacting and applying the County's policy would have

violated the right. See id. at 640.

To the contrary, however, the placement of HIV-negative

children into HIV-positive private homes presents a novel

legal issue. As we noted earlier, federal cases involving HIV

and disability discrimination nearly universally deal with

access to the public sphere, rather than placement into

private contexts, such as homes or residences. Of the

Pennsylvania county policies we have reviewed in this case,

only one directly applies to the right in question, and then

only in general terms. Children and Y outh Div., Phila. Dep't

of Human Servs., Policy Manual SS 1010, 5200.

In addition to the novelty of the issue, CYS officials had

a separate legal duty to protect the health of foster

children. See, e.g., 23 Pa. Cons. Stat.S 6344. As a legal

matter, the interplay between this duty and the ADA's

prohibition of generalized determinations under the direct

27

threat exception was unclear when the policy was drafted.

This is especially true given that there exists authority

supporting the proposition that HIV-positive individuals

may be segregated from HIV-negative individuals under the

direct threat exception even where the possibility of

transmission is low. See, e.g., Onishea , 171 F.3d 1289

(segregation of HIV-positive prisoners in the prison context);

Estate of Mauro, 137 F.3d 398 (limiting activities of HIV-

positive surgical technician); Univ. of Md. Med. Sys. Corp.,

50 F.3d 1261 (limiting activities of an HIV -positive

physician); Bradley, 3 F.3d 922 (limiting activities of a HIV-

positive surgical assistant). For these r easons, we conclude

that the right in question was not clearly established such

that a reasonable official would have known that the policy

violated the ADA, and we will therefore affirm the District

Court's holding that the CYS officials had qualified

immunity from suit.

VI.

The Does' final argument on appeal is that the District

Court erred in holding that the County gover nment entities

-- Centre County, CYS, and the County Boar d -- are

immune from punitive damages in suits under T itle II of the

ADA and Section 504 of the Rehabilitation Act.10 We

exercise plenary review over this legal issue.

The Does seek punitive damages from the County

government entities under Title II of the ADA, Section 504

of the Rehabilitation Act, and 42 U.S.C. S 1983. As to

S 1983, City of Newport v. Fact Concerts, Inc., stands for the

proposition that municipalities, and mor e broadly, state

and local governments entities, are immune from punitive

damages under that statute. 453 U.S. 247, 271 (1981). The

issue presented here is whether the District Court correctly

extended the holding of City of Newport, to suits brought

under Title II of the ADA and Section 504 of the

Rehabilitation Act.

_________________________________________________________________

10. In order to address the Does' ar guments, we must depart from

previous practice in this opinion and r efer separately to Title II of the

ADA and Section 504 of the Rehabilitation Act.

28

We have not found any federal appellate court opinions

that have addressed this issue. The district courts that

have addressed it are divided, some holding that punitive

damages are available against municipalities under Title II

and Section 504, and some holding that they ar e not.

Compare, e.g., Dadian v. Village of Wilmette, No. 98-C-3731,

1999 U.S. Dist. LEXIS 6846, at *9-10 (N.D. Ill. May 4,

1999) (punitive damages available); Purcell v. Pennsylvania

Dep't of Corr., No. 95-6720, 1998 U.S. Dist. LEXIS 105, at

*34-39 (E.D. Pa. Jan. 9, 1998) (same); DeLeo v. City of

Stamford, 919 F. Supp. 70, 74 (D. Conn. 1995) (same);

Penney v. Town of Middleton, 888 F . Supp. 332, 342

(D.N.H. 1994) (refusing to dismiss S 504 punitive damages

claim but not definitively deciding the issue); with Adelman

v. Dunmire, No. 95-4039, 1996 WL 107853, at *4 (E.D. Pa.

Mar. 12, 1996) (punitive damages unavailable).

Our analysis begins with City of Newport. In holding that

a municipality is immune from punitive damages under 42

U.S.C. S 1983, the Supreme Court r easoned that, at the

time Congress enacted the statute that is nowS 1983, it

was generally understood in common law that a

municipality "was to be treated as a natural person subject

to suit for a wide range of tortious activity, but this

understanding did not extend to the award of punitive or

exemplary damages." City of Newport, 453 U.S. at 259-60

(footnote omitted). The common law rule developed fr om a

reluctance to punish innocent taxpayers and bankrupt

local governments because of the actions of a few miscreant

public officials. Id. at 266. ReviewingS 1983, the Court

found no indications, in the common law or legislative

history, that Congress intended to abolish the doctrine of

municipal immunity from punitive damages. Id. at 259-66.

The Supreme Court also looked to public policy. It

reasoned that the rationales underlying punitive damages

did not support exposing a municipality to such damages

for the bad faith actions of its officials. First, since

municipal officials, rather than municipalities, were the

wrongdoers, sanctioning municipalities would not advance

the retributive purpose of S 1983. Id. at 267-68. Second,

the Court believed that it was unlikely that municipal

officials would be deterred from wr ongdoing by large

29

punitive damages awarded against municipalities. And, in

any case, a more effective deterr ent existed in the

possibility of awarding punitive damages dir ectly against

officials and their personal finances. Id. at 269-70.

Furthermore, the Supreme Court noted the high costs of

expanded damages remedies under federal statutory and

constitutional law, costs that might threaten the financial

integrity of local governments. Id. at 270. Since City of

Newport, the principle that municipalities ar e immune to

punitive damages under S 1983 has been extended to other

government entities. See, e.g., Bolden v. Southeastern Pa.

Transp. Auth., 953 F.2d 807, 830 (3d Cir. 1991) (extending

the rule to regional authorities).

The principles derived from City of Newport are directly

applicable to the present case. When Congr ess enacted Title

II of the ADA and Section 504 of the Rehabilitation Act, it

knew of the common law rule precluding punitive damages

against municipalities. Therefore, under the City of Newport

framework, the question is whether Congress intended to

disturb that settled common-law immunity.

To be sure, an opposing principle exists. Namely, the

Supreme Court in Franklin v. Gwinnett County Public

Schools directed courts to "presume the availability of all

appropriate remedies [for a federal right of action] unless

Congress has expressly indicated otherwise." 503 U.S. 60,

66 (1992). For example, relying on the Franklin

presumption of remedies and the lack of congressional

expression to the contrary, the Fourth Cir cuit held in

Pandazides v. Virginia Board of Education, an employment

case in which the sole defendant was a state boar d of

education, that the plaintiff could seek punitive damages

under Section 504. 13 F.3d 823, 830-32 (4th Cir. 1994) (full

panoply of legal remedies available, including punitive

damages in suit against employer); see also Pur cell, 1998

U.S. Dist. LEXIS 105, at *34-39 (following similar

reasoning); cf. Schultz v. Young Men's Christian Ass'n of the

United States, 139 F.3d 286, 291 (1st Cir. 1998) (suggesting

that, in a suit under Section 504, "damages for emotional

distress [might] be justified to punish patent misbehavior or

the deliberate infliction of humiliation"); but see Moreno v.

Consol. Rail Corp., 99 F.3d 782, 790-92 (6th Cir. 1996) (en

30

banc) (holding that, based on the lack of congressional

intent to override existing punitive damage norms, Section

504 does not allow punitive damages).

We believe, however, that the analysis underlying

Franklin, and employed in Pandazides, does not control in

this case. The Franklin presumption is rooted in the

common law principle, recognized by the Supr eme Court as

early as Marbury v. Madison, that a right without a remedy

is not a right at all. See 503 U.S. at 66-67 (citing numerous

authorities). Prior to Franklin, some courts had held that

monetary damages were unavailable in suits br ought under

Title IX of the Education Amendments of 1972. See 503

U.S. at 64-65. The Franklin Court settled this dispute,

holding that monetary damages were available. In the

present case, the principle of Franklin has limited

applicability since, irrespective of the availability of punitive

damages against municipalities, several other monetary

remedies are available to enforce the rights in Title II and

Section 504. Limiting punitive damages will not r ender

those rights meaningless. Moreover, insofar as the rules of

Franklin and City of Newport conflict, the reasonable way to

reconcile them is to give effect to the narrower rule in the

latter. Cf. Morales v. Trans W orld Airlines, Inc., 504 U.S.

374, 384 (1992) (in statutory construction, "the specific

governs the general"). After all, the issue here is not the

general availability of damage remedies, but rather the

specific availability of punitive damages against

municipalities. In these circumstances, City of Newport tells

us to assume that Congress intended to r etain common law

immunity, unless there is a clear expression of

congressional intent to the contrary. See 453 U.S. at 263-

64.

Title II and Section 504 incorporate by r eference the

enforcement scheme found in Title VI of the Civil Rights Act

of 1964. See 42 U.S.C. S 12133 (T itle II incorporates

enforcement scheme in Section 505 of the Rehabilitation

Act); 29 U.S.C. S 794a(a)(2) (Section 504 and 505 of the

Rehabilitation Act adopt the remedies available under Title

VI of the Civil Rights Act of 1964). Therefor e, we may look

for congressional intent in Title II and Section 504, as well

as in Title VI. On their face, however , neither Title II nor

31

Section 504 indicate a congressional intent to override

municipal immunity to punitive damages. Likewise, support

for the availability of punitive damages against

municipalities cannot come from Title VI since the general

view is that punitive damages are not available, in any

form, under that statute. Moreno , 99 F.3d at 790 (citing

numerous cases).

Nevertheless, the Does argue that the Rehabilitation Act

Amendments of 1986, Pub. L. No. 99-506, 100 Stat. 1807

(1986), demonstrate Congress' intent to eliminate municipal

immunity from punitive damages in suits under T itle II and

Section 504. Title X, section 1003, of the Rehabilitation Act

Amendments of 1986, entitled "Civil Rights Remedies

Equalization," abrogates the states' Eleventh Amendment

immunity from, among other things, suits under Section

504 of the Rehabilitation Act and Title VI of the Civil Rights

Act of 1964. See 42 U.S.C. S 2000d-7. In particular, the

Civil Rights Remedies Equalization provision states that,

"[i]n a suit against a State for a violation of [these statutes]

. . . remedies (including remedies both at law and in equity)

are available . . . to the same extent as such remedies are

available for such a violation in the suit against any public

or private entity other than a State." 42 U.S.C.S 2000d-

7(a)(2). The Does construe the Equalization pr ovision as a

broad grant of remedies, evidencing Congr ess' intent that

punitive damages should be available against

municipalities. We disagree with the Does' interpretation.

The provision only states that the remedies available

against a state government would be the same as those

already available against an entity other than a state. It

says nothing more about punitive damages.

Another argument suggested by the Does hinges on the

Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.

1071 (1991). That act expressly amended T itle I of the ADA

(employment discrimination) to allow awards of punitive

damages against individuals and private entities, but not

against municipalities and government entities. 42 U.S.C.

S 1981a(b)(1). The act did not amend T itle II. One district

court has reasoned that the amendment of T itle I, without

change to Title II, shows that Congress intended not only to

prohibit punitive damages against municipalities in the

32

employment context under Title I, but also to allow punitive

damages against municipalities under Title II. See generally

Purcell, 1998 U.S. Dist. LEXIS 105, at *34-39. We decline to

draw such a broad inference of congr essional intent,

especially where numerous explanations for the lack of

amendment to Title II are possible. Compare, e.g., id. at

*36-38 (lack of amendment to Title II indicates availability

of punitive damages); with Harrelson v. Elmore County, 859

F. Supp. 1465, 1468-69 (M.D. Ala. 1994) (lack of

amendment to Title II "counsels against a statutory

construction that punitive damages are available").

In summary, we find that Title II of the ADA and Section

504 of the Rehabilitation Act lack any indicia of Congress'

intent to override the settled common law immunity of

municipalities from punitive damages. In addition, just as

in the S 1983 context, notions of retribution and deterrence

provide weak support for awarding punitive damages

against dispassionate municipal government entities, rather

than offending officials. See City of Newport, 453 U.S. at

267-70. Awarding such damages also thr eatens the

financial integrity of local governments. Id. at 270. Given

these considerations, we believe that City of Newport should

apply with equal force to suits under T itle II of the ADA and

under Section 504 of the Rehabilitation Act. Consequently,

the Does may not recover punitive damages fr om the

County government entities.

VII.

For all these reasons, we will reverse the District Court's

grant of summary judgment against the Does on their

claims of disability discrimination and remand for further

discovery and factual findings. We will also reverse the

District Court's grant of summary judgment in favor of the

County on the Does' racial discrimination claims and

remand for further proceedings. Lastly, we will affirm the

District Court's conclusions that the CYS officials are

entitled to qualified immunity and that punitive damages

are unavailable against the County entities.

33

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

34