Jeffrey S. by Ernest S. v. State Bd. of Educ. of State of Ga., 89-8784

Decision Date13 March 1990
Docket NumberNo. 89-8784,89-8784
Citation896 F.2d 507
Parties58 Ed. Law Rep. 1101 JEFFREY S., a minor, by ERNEST S., his father and next friend, Plaintiff-Appellee, v. STATE BOARD OF EDUCATION OF STATE OF GEORGIA; Dr. Werner Rogers, in his official capacity as Superintendent of the State Board of Education, Defendants, Bryan County School District; Dr. Sallie Brewer, in her official capacity as Superintendent of the Bryan County School District, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Gerald M. Edenfield, Susan Cox, Becky J. Dasher, Statesboro, Ga., and M. Tyus Butler, Jr., Savannah, Ga., for defendants-appellants.

Torin D. Togut, Phyllis J. Holmen, Georgia Legal Services Program, Atlanta, Ga., and Murphy A. Cooper, III, Georgia Legal Services Program, Savannah, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before TJOFLAT, Chief Judge, and JOHNSON and ANDERSON, Circuit Judges.

PER CURIAM:

Bryan County School District ("Bryan County") appeals from a preliminary injunction ordering Bryan County to allow Jeffrey S. to remain in a class of moderately mentally handicapped students in the Bryan County school system. The injunction has been stayed pending the outcome of this appeal; Jeffrey S.'s emergency motion to vacate the stay of injunction is also presented on this appeal.

I. STATEMENT OF THE CASE
A. Background

Jeffrey S. ("Jeffrey") 1 is a 15-year-old boy with an I.Q. of less than 50. He is classified as mildly to moderately mentally handicapped. As a result of a condition known as posterior ureteral valves, Jeffrey's kidneys have failed and he is in end-stage renal disease. 2 He must use a ureterostomy, which drains his urine through a tube outside his abdomen and into an ileostomy bag. Jeffrey requires three hours of dialysis twice a week. As a result of his renal failure, Jeffrey suffers from metabolic bone disease, a degenerative bone condition which causes softening of the bone tissue; he has had hip surgery and wears leg braces due to this condition. He is also a carrier of hepatitis B, an infectious virus which is carried in blood serum, or "plasma."

Jeffrey lives with his father, his stepmother, and several siblings in a mobile home. In 1981, Jeffrey began to attend public school. He was placed in a special class at Lanier Elementary School and taught under an Individualized Education Program ("I.E.P."); he received approximately 26 hours of instruction per week. Part of his school day was spent in a self-contained classroom with other special children; he received individual instruction for the rest of the day. He ate and played with the other children. In May 1986, a social worker from the hospital where Jeffrey undergoes dialysis told Jeffrey's teacher that Jeffrey was a hepatitis B carrier. This information eventually reached the superintendent of the Bryan County School District. At the superintendent's instruction, the special education director sent a letter to Jeffrey's father informing him that Jeffrey could not attend school in the Bryan County system until he was no longer contagious. 3 Jeffrey was kept out of school entirely until October or November 1986. At this time, Jeffrey was placed in a Hospital/Homebound program 4 at Black Creek Elementary for about three hours a week. 5

Jeffrey was unhappy at being separated from the other children. His father sought an administrative due process hearing in an attempt to get Jeffrey back in the handicapped class. The school provided a due process hearing on January 29, 1987 before the regional hearing officer. The regional hearing officer ordered Jeffrey to continue homebound instruction, noting that his educational level seemed to have improved in that setting and that "[t]he social justice of integrating Jeffrey S. into a classroom is far outweighed by the social injustice of one person getting Hepatitis B virus as a result of an incorrect decision...." 6 The state hearing officer affirmed this decision.

B. Proceedings Below

On January 4, 1988, Jeffrey filed suit through his father for violation of his civil rights pursuant to 42 U.S.C.A. Sec. 1983. The complaint named the Georgia State Board of Education, the state superintendent, the Bryan County school district, and the local superintendent as defendants. The complaint alleged six causes of action for injunctive and declaratory relief and damages under the Education for All Handicapped Children Act, 20 U.S.C.A. Sec. 1400, et seq. (EAHCA), section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. Sec. 794 ("section 504"), the Fourteenth Amendment, and state law. During discovery, the magistrate ordered an independent medical evaluation of Jeffrey by an infectious disease expert, Dr. Paul Jurgensen. Although he stated that the risk of transmission was low, Dr. Jurgensen recommended that Jeffrey not be allowed to enter a conventional classroom.

The magistrate conducted a hearing beginning April 18, 1989. Bryan County objected to the magistrate's exercise of jurisdiction over the case; apparently this objection was overruled. On August 3, 1989, the magistrate issued his proposed findings of fact and conclusions of law. 7 The magistrate found that Jeffrey was a handicapped child and a carrier of the hepatitis B virus. He found that the virus primarily affects the liver and is found in plasma. Approximately 200,000 cases of acute hepatitis are reported each year, less than 10% of which become chronically infectious. The disease can be fatal, but less than 1% of those infected die. Clinical manifestations of the disease appear 45 to 160 days following exposure. In its acute stages the disease usually causes a yellow pallor in the skin, nausea, and vomiting. The disease is transmitted primarily through plasma; sharing of needles, sexual contact, blood transfusions, or a mutual accident resulting in the mixing of bloods pose high risks of infection. Transmission through other bodily fluids, such as saliva, urine, or tears, is theoretically possible if there is some plasma in those fluids. There is no evidence that the disease is transmitted through other forms of contact.

The magistrate found that Jeffrey's ileostomy bag had suffered leakage in the past, but that new bags had virtually eliminated this problem. 8 Jeffrey had had blood in his urine only once as the result of a kidney infection. Although Jeffrey does sometimes mouth objects, the potential risk of transmission due to such behavior is minimal, as there must be blood in the saliva to cause transmission. Jeffrey is in the classroom less than other children because of his dialysis. Additionally, Jeffrey has negative surface antigens which render him a less infectious carrier. 9 The magistrate found that numerous protective measures could be taken to decrease Jeffrey's transmission risk even further, such as immunizing students and staff, having Jeffrey's ileostomy bag drained each day before he comes to school, and restricting Jeffrey from participating in sports and contact games.

Finally, the magistrate found that Jeffrey was excluded from school solely because of his handicap (hepatitis B carrier), that this exclusion was not based on credible medical evidence, and that Bryan County excluded Jeffrey arbitrarily, without a hearing, without a showing that he presented a danger to others, and without further medical consultation or examination. 10

The magistrate concluded as a matter of law that hepatitis B constitutes a handicap under section 504. 11 He found Jeffrey was an "otherwise qualified" handicapped person because the risk of transmission is low and hepatitis B is fatal in only 1% of cases. Finally, the magistrate concluded that Jeffrey had been discriminated against solely because of his handicap. In recommending a preliminary injunction, the magistrate found that Jeffrey had a substantial likelihood of prevailing on the merits of his case, that Jeffrey would be substantially injured emotionally and educationally by being kept from school, and that the injunction would not disserve the public interest because school attendance would make Jeffrey a more productive, fulfilled child.

The magistrate recommended that the preliminary injunction be granted on the condition that: (1) Jeffrey not be allowed to engage in any physical, contact sports; (2) the school district follow all precautions recommended by the Center for Disease Control and report any lesions on Jeffrey or instances of possible transmission; (3) the school train the staff and personnel on hepatitis B; (4) Jeffrey's status be kept confidential; (5) the school make it known that a hepatitis vaccine is available and educate the students about it; and (6) the court make copies of the order available to teachers and staff. Bryan County filed 60 pages of objections to the magistrate's report. After four days, the district court adopted the magistrate's recommendation in full, except the recommendation that Jeffrey's identity be kept confidential.

On September 22, 1989, Bryan County filed a notice of appeal from the grant of preliminary injunction with this Court, along with a brief arguing that the Court should suspend the injunction pending appeal. 12 The district court stayed the injunction pending appeal. On October 13, 1989, Jeffrey S. filed with this Court an emergency motion to vacate the stay of injunction. A panel of this Court ordered a limited remand with directions that the district court make findings with respect to the balance of harms from granting or denying the stay. The panel deferred action pending those findings. The panel also ordered the appeal to be expedited to the next available panel for oral argument.

On limited remand, the district judge stated the following:

In this matter I have adopted the report and recommendation of the United States magistrate with one exception. While I disagreed with the magistrate in his direction that the...

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