Published February, 2012

Smith v. Milton Hershey School, Answer with Affirmative Defenses to Amended Complaint and Counter-Claim for Declaratory Judgment, U.S. District Court for the Eastern District of Pennsylvania, The Milton Hershey School. (February 3, 2012)

This answer and counter-claim was filed February 3, 2012 by the Milton Hershey School, responding to the amended complaint filed by the AIDS Law Project of Pennsylvania. The ALPP complaint alleges that the school violated multiple anti-discrimination laws by refusing to enroll a 13-year-old pupil because he is HIV-positive and seeks relief under Title III of the Americans with Disabilities Act of 1990 and applicable state law.
Like the school's draft filing, the school is arguing here that the student, Abraham Smith, would pose a direct threat to the health and safety of other students. The argument of the school is still not based in any specific facts about the 13-year old applicant in question, but rather on a general concern that they cannot reasonably accommodate teaching universal precautions to staff and students and that they cannot be potentially responsible for the student having sexual relationships at the school.
The school argues a counter-claim for declaratory judgment, asking for a ruling from the court that they have not violated Title III of the ADA by discontinuing the admissions process for Smith because of his HIV positive status.