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Monday, December 05, 2011

Procedure and the rhetoric of the judicial process

A new HIV discrimination case is drawing obvious attention for its substantive issues. But I want to consider some underlying civ pro/fed courts issues (it would be the basis for a great exam), as well as what the case tells us about the rhetoric of the judicial process.

The Milton Hershey School in Hershey, PA, was established by the chocolate magnate to provide educational opportunities for socially and financially disadvantaged kids. Abraham Smith is a 13-year-old boy living in southeast Pennsylvania who is HIV positive. Smith was denied admission to the school, explicitly on the ground that the school "could not accommodate the needs of students with chronic communicable diseases that pose a direct threat to the health and safety of others." The School entered into negotiations with the AIDS Law Project of Pennsylvania, which represents Smith and his mother; when that failed, simultaneous lawsuits were filed. The School filed a declaratory judgment action in the Middle District of Pennsylvania (which includes Hershey), seeking a declaration that its decision did not violate the Americans With Disabilities Act or the Fair Housing Act (the school owns and runs dormitories) because its concerns for student health and safety meant it was not required to provide this accommodation. The same day, Smith through his mother, filed an action in the Eastern District of Pennsylvania (where the Smiths live), alleging that the school violated the ADA and seeking an injunction and compensatory and punitive damages.

Some thoughts and questions after the jump.

First, a rhetorical issue. Hershey blamed the fact that the case had come to litigation on the plaintiffs:

Recognizing the complex legal issues, the School was preparing to ask the court to weigh in on this matter. Unfortunately, attorneys for the young man took the adversarial action of filing a lawsuit against the School.

But "asking the court to weigh in on this matter" meant the filing of a lawsuit--the court was not going to simply  walk into the debate and provide an answer. Thus the school's argument is that a potential's defendant's anticipatory action for a declaration of non-violation is somehow less adversarial than the coerceive enforcement action by the injured party alleging a violation.  This seems a clever bit of rhetoric that is telling of popular misunderstandings of the court system that the school could try to exploit: "Filing a lawsuit" is an "adversarial action" that is bad; "ask[ing] the court to weigh in" is non-adversaril and is good.

But this argument is theoretically incoherent, which at least the school's lawyer should realize. Either lawsuit results in an adversarial process and the spending of resources on litigation. That is the only way a court can "weigh in" on any matter. What the school really lost when the plaintiffs filed their coercive action (and what I imagine is irking the school) was the opportunity to control the judicial forum; the school could have kept the case in the Middle District, close to its home, had the plaintiffs simply waited for the school to ask the court to weigh in. The school is basically criticizing the Smiths for not waiting for the school to sue first.

Second, education and disability law people, help me out: Can the school possibily win this? under the ADA? The logic of this would justify the Hershey School in excluding or removing anyone with any sort of communicable or blood-borne illness. It also would justify any school excluding anyone with HIV, since students will ("unfortunately", the complaint says) have sex.

And now for the fun procedure issues. Obviously, this case is unique for having concurrent, identical lawsuits--one defenssive, the other offensive--filed the same day in differnet districts. There is a nice question of which action should proceed. Federal courts facing concurrent/parallel litigation in different districts will typically defer to the federal court in which the action was first filed. Here, the lawsuits both were filed on November 30, so we don't have an obvious first filing. Should the coercive action take priority because coercive litigation is more common and more keeping with the norms of our adversary system?

There also is a question of whether venue is proper for the coercive action in the Eastern District. Venue there must be under § 1391(b)(2) that a "substantial part of the events or omissions giving rise to the claim occurred" in the Eastern District. There no doubt was frequent communication from the school to the family in the Eastern District and perhaps even some physical trips (recruiting, etc.); the Smith's complaint alleges that the school solicits and enrolls students from the Eastern District. But the real events--the decision to deny admission--occurred in Hershey in the Middle District. Even if venue is proper in the Eastern District, there still is the question of whether the Middle District is the better forum for purposes of a transfer of venue. Although there is no hardship or inconvenience to the school to litigate in Philadelphia rather than Harrisburg, most witnesses, documents, and information probably is at the school. And perhaps the Eastern District court will take account of the pending Middle District declaratory judgment action as a basis for tranfser, allowing for consolidation of the two actions. (Of course, § 1404 can work in both directions in the different cases--the Smiths could move in the Middle District to transfer the school's declaratory judgment action to the Eastern District, citing its pending coercive action there. So those convenience arguments may cancel one another out, unless the Middle District just seems a more appropriate place for the case to be tried).

Posted by Howard Wasserman on December 5, 2011 at 09:31 AM in Civil Procedure, Current Affairs, Howard Wasserman | Permalink


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the moron lawyer who wrote ""could not accommodate the needs of students with chronic communicable diseases that pose a direct threat to the health and safety of others." needs to be fired, disbarred, and held financially responsible for all the costs of the final outcome. this lawyer has singled handily spent over $1 mil of other peoples money with his gross negligence (or is it gross arrogance). the legal industry craves the rewards it gets from its own gross negliegence. when colleagues create legal business, do they also get a bonus from the legal industrial complex. its the lawyers stupid. occupy lawyers.

Posted by: aa | Dec 5, 2011 8:21:54 PM

I agree with Sam's assessment and keep wondering what was the school thinking. Did they just get bad legal advice? Was it the politics of board members of the school or a big donor? A stubborn admnistrator? I would love to here some thoughts about possibilities here. I saw the school spokesman yesterday on CNN and it was painful to watch. I used to litigate disability cases and it's just so bizarre to watch a seemingly admirable school take such a position. Or does such widespread lack of knowledge still permeate even this kind of seemingly elite school.

Posted by: Mark Kende | Dec 5, 2011 6:59:33 PM

Hershey has two chances to win this case: Slim and none. I discussed the issue a bit here: http://disabilitylaw.blogspot.com/2011/12/more-on-hershey-school-hiv-suit.html. But it's worth noting that the Third Circuit's 2001 decision in Doe v. County of Centre, on which the Hershey School seems to rely, seems all but dispositive against them. That case rejected the direct threat defense in the case of an 11-year-old with HIV in a home with foster children, which is awfully hard to distinguish from the case of a 13-year-old in a residential school. Of course, you're more likely to have sex as you get older, but the court surely wasn't saying the county couldn't discriminate then but was free to discriminate two years later.

Posted by: Sam Bagenstos | Dec 5, 2011 12:42:26 PM

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