Published January, 1999

Montalvo v. Radcliffe, 167 F.3d 873 (4th Cir. 1999)

This opinion affirms a holding for the defendant, a Karate school that denied admission to a 12-year-old boy living with AIDS, in a case brought under the Americans with Disabilities Act (ADA). The defendant conceded that the school was a place of public accommodation under Title III of the ADA, that the plaintiff’s son was disabled by virtue of being HIV-positive, and that it excluded the boy on the basis of his HIV-positive status. However, the defendant argued that the “direct threat” defense should apply, in which discrimination is permissible if the disabled individual poses a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures. The Fourth Circuit affirmed a district court holding that the boy posed a direct threat because of the risk of blood-to-blood contact between him and other children due to the particularly intense sparring used in this specific form of karate, which caused participants to sustain bloody injuries that were “extremely likely” to spill onto the hands, mouths, and uniforms of other students. The court held that no reasonable modification short of private lessons—which the school offered to the boy —could have eliminated the significance of the risk because: (1) requiring the school to soften the teaching style would constitute a fundamental change to the nature of the program, and (2) universal precautions such as eye coverings and gloves would not be effective due to the type to sparring involved.

This decision fails to consider several factors supporting the arguments made on the boy’s behalf. Numerous studies demonstrate that contact sports and fighting present a negligible risk of transmission, as the Third Circuit recognized in Doe v. County of Centre, 242 F.3d 437 (3d Cir. 2001). The court’s dismissal of universal precautions as inadequate to address the risk of transmission contradicts established medical practices. Moreover, the court ignores the fact that it is not possible to know the HIV status of any member of a karate class or sports team at any time; thus, universal precautions are recommended by the medical community for all participants. It is also notable that the viral load of the plaintiff’s son and whether he was on antiretroviral medication are not discussed, factors that can significantly reduce the chance of transmission.