IMAGE: The Milton Hershey Schoold

BY LAUREN ZIMA

The Milton Hershey School in Pennsylvania takes students in need and gives them free education -- but it rejected one 13-year-old boy in need because he has HIV. Now, the boy and his parents are suing.

The Americans With Disabilities Act protects those with HIV from discrimination, but Milton Hershey says that because its students live at the school year-round, this boy, whose name is being withheld because of his age, poses a direct physical threat to other students. Now, the AIDS Law Project has filed a suit on his behalf. Fox affiliate WPMT got the school’s take from its spokesperson.

Connie McNamara: “We have to balance our desire to help the individual student against our obligation to protect the health and safety of the 1,850 students already on our campus. We encourage abstinence on campus, but there is no child that can be assumed always to make the right and responsible decision to protect other children.”

But CNN’s Anderson Cooper says the school’s cautionary outlook includes a lot of assumptions about the boy.

ANDERSON COOPER: “That presumes an awful lot. It presumes that a 13-year-old would even have sex, and then it presumes that sex would be unprotected, and then it presumes this unprotected sex would result in the transmission of the virus even though the drugs that he’s taking makes that more than 95 percent impossible.”

And in a passionate essay for MSNBC, bioethicist Arthur Caplan points out that this case came, ironically, close to World AIDS Day.

“Shame on the Milton Hershey School for discriminating against a young man who could bring much to their community.  Shame on the Milton Hershey School for invoking a rationale for discrimination that only resurrects the bigotry and fear that it has taken decades to get rid of.”

Still, the school points out that it did intend to submit a document to a judge asking if its decision was within the bounds of the law, but was sued before it could. PennLive evaluates both sides of the legal argument that the boy poses a risk to other students.

“ … HIV and AIDS attorneys reject that argument, pointing to court decisions regarding other institutional settings, like foster care … where the possibility of sexual contact also exists — that have determined that merely carrying HIV does not make a person a direct threat to others. … The school’s attorney … said that while courts have looked at the direct threat standard to HIV … they have not addressed it as it applies to a residential child care facility.”

The school is currently standing behind its decision -- petitions have popped up online in favor of the boy.