                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-5-2001

Doe v. County of Centre
Precedential or Non-Precedential:

Docket 00-3195




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"Doe v. County of Centre" (2001). 2001 Decisions. Paper 40.
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Filed March 5, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3195

JOHN DOE; MARY DOE,

       Appellants

v.

COUNTY OF CENTRE, PA; CHILDREN & YOUTH
SERVICES OF CENTRE COUNTY; BOARD OF
COMMISSIONERS OF THE COUNTY OF CENTRE; TERRY
WATSON, individually and in his of ficial capacity as the
Director of Centre County Office of Children and Youth
Services; CAROL SMITH, individually and in her of ficial
capacity as the Assistant Director Administrator of the
Centre County Office of Children and Youth Services;
LISA RICE, individually and in her official capacity as a
Foster Home Specialist of the Centre County Of fice of
Children and Youth Services

ON APPEAL FROM THE ORDER OF THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Civ. No: 99-cv-00683)
District Court Judge: The Honorable
James F. McClure, Jr.

Argued on September 27, 2000

Before: MANSMANN, ALITO, and FUENTES, Cir cuit Judges

(Opinion Filed: March 5, 2001)
Mathew M. Gutt (argued)
Carl G. Roberts
Ballard Spahr Andrews &
 Ingersoll, LLP
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania
 19103-7599

 Attorneys for Appellants

Stefan Presser
Scott Burris
American Civil Liberties Union
 of Pennsylvania
125 South 9th Street, Suit 701
Philadelphia, Pennsylvania 19107

 Attorneys for Appellants

Catherine Hanssens
Colleen Sullivan
Lambda Legal Defense and
 Education Fund, Inc.
120 Wall Street, Suite 1500
New York, New York 10005-3904

 Attorneys for American Public
Health Association, AIDS Alliance
for Children, Youth, and Families,
AIDS Law Project of Pennsylvania,
Alliance for Children's Rights,
Lambda Legal Defense and
Education Fund, Inc., The
Juvenile Law Center, Lawyers for
Children, Inc., Legal Aid for
Children/Pittsburgh, The Legal Aid
Society of New York/Juvenile
Rights Division, The National
Alliance of State and Territorial
AIDS Directors, National Center
for Youth Law, The Support Center
for Child Advocates, The Youth
Law Center, and The Association
of Maternal and Child Health

                        2
       Programs, as Amici Curiae on
       behalf of Appellants

       Gerard J. Geiger (argued)
       Newman, Williams, Mishkin,
        Corveleyn, Wolfe & Fareri, P .C.
       721 Monroe Street
       Stroudsburg, Pennsylvania 18360

        Attorney for Appellees

       Anthony T. McBeth (argued)
       Law Offices of Anthony T. McBeth
       407 North Front Street, First Floor
       Harrisburg, Pennsylvania 17101

        Attorney for The County
       Commissioners Association of
       Pennsylvania, as Amicus Curiae
       on behalf of Appellees

       Robert L. Knupp
       Knupp, Kodak & Imblum, P.C.
       P.O. Box 11848
       Harrisburg, Pennsylvania
        17101-1848

        Attorney for The County
       Commissioners Association of
       Pennsylvania, as Amicus Curiae
       on behalf of Appellees

OPINION OF THE COURT

FUENTES, Circuit Judge:

The primary issue raised by this appeal is whether
Centre County violated the appellants' civil rights by
excluding them from participation in the County's foster
care program because their son has HIV and AIDS, and
because of their race. This case began when appellants
John and Mary Doe, an interracial couple with an HIV -
positive son named Adam,1 appr oached Centre County's
_________________________________________________________________

1. Names have been changed to preserve confidentiality.

                                 3
Foster Child Program, seeking to become foster parents.
County officials responded by adopting a policy providing
that foster families whose members have "serious infectious
diseases" may care only for children with the same disease.
The policy would permit the Does to car e for uninfected
children only if the Does agreed to r elease information
regarding their son and the biological par ents executed a
written consent releasing the County fr om potential
liability. The Does refused to agree to the policy and filed
suit, alleging disability discrimination in violation of, among
other statutes, Title II of the Americans with Disabilities Act
and Section 504 of the Rehabilitation Act, and racial
discrimination in violation of Title VI of the Civil Rights Act
of 1964. The Does sought invalidation of the policy,
approval as foster parents, and compensatory and punitive
damages. The District Court granted summary judgment to
the County on the disability discrimination claims,
reasoning that the policy was justified under the ADA's
direct threat exception since foster children placed with the
Does could sexually assault Adam and contract HIV .

Because we believe that a reasonable fact finder could
find that placement of at least some foster childr en in the
Does' home would not entail a significant risk of harm, we
will reverse. Furthermore, we will r everse the District
Court's judgment that none of the Does' racial
discrimination claims are ripe for adjudication. However, we
will affirm the District Court's decision that the individual
County officials are entitled to qualified immunity. We will
also affirm the District Court's holding that county
government entities are immune fr om punitive damages.

I.

The appellants, John Doe, a 51 year old African-
American man, and Mary Doe, a 52 year old Caucasian
woman, are married, and live in State College, Centre
County, Pennsylvania, with their two adopted sons, Adam,
11 years old, and Steven, 12.

Over the years, Mary has dedicated herself to the care of
foster children with special needs. From 1972 to 1989, she
cared for 8 foster children and eventually adopted 7 of

                                4
them. Adam and Steven, who came to Mary as infants, were
the last two children she adopted. Adam came to Mary with
HIV and AIDS, which he contracted from his birth mother.
Another of Mary's adopted sons was blind, retar ded and
had cerebral palsy. Others had been physically and
sexually abused. Her efforts have earned her several
awards, including Foster Parent of the Y ear by the New
York State Foster Parents' Association.

Overcoming a troubled youth and time in prison, John
earned a college degree and became active in church and
community affairs. He has served as a pr ogram worker in
residential group homes for persons with mental
retardation and is currently a cab driver. He had no
children of his own, but upon marrying Mary, he accepted
her children, including Adam, into his home.

AIDS (Acquired Immunodeficiency Syndr ome) is the last
stage of progression of the HIV virus (Human
Immunodeficiency Virus). HIV infects and destroys specific
white blood cells, known as T lymphocytes, that support
the body's immune system. As the virus progr esses,
infected persons become more and more susceptible to
opportunistic infections and diseases, and, although
persons with HIV can live for years, the virus has no cure.
See generally Bragdon v. Abbott, 524 U.S. 624, 633-37
(1998) (describing the course of HIV and AIDS in detail,
with references to medical texts and authorities).

Due to the virus, Adam suffers eating and digestion
problems. He receives nourishment thr ough a feeding tube.
He has symptoms of autism and permanent lear ning
deficits, including difficulties speaking and expressing
himself. Unable to care for himself, Adam r elies on his
parents and others to assist him with eating, cleaning, and
personal hygiene.

Prior to 1996, HIV and AIDS severely thr eatened Adam's
health. His eating and digestive problems wer e far more
severe, and he weighed only 37 pounds at the age of six in
March 1996. At that time, doctors began aggr essive drug
therapy that has suppressed Adam's HIV viral load to
undetectable levels.2 Today, despite his physical limitations,
_________________________________________________________________

2. Viral load refers to the level of virus in an HIV-positive person's
blood.

                               5
Adam has good overall health, and suffers no greater risk
of opportunistic infection than a child without HIV .

Adam attends school classes for children with special
needs. School officials keep his HIV-positive status
confidential and do not require disclosure of that status to
parents of HIV-negative students. Adam has not
transmitted HIV to his brother, Steven, nor to any children
with whom he attends school.

The probability of HIV transmission from Adam to others
is a crucial issue in this case. During proceedings, the
District Court entertained testimony about HIV and AIDS
from two medical experts, Joel H. Hersh, an expert in
Public Health Administration, and Robert M. Swenson,
M.D., a physician and expert in the treatment of infectious
diseases. The following discussion proceeds fr om their
testimony and related affidavits. See generally Doe v.
County of Centre, 60 F. Supp. 2d 417, 419-26 (M.D. Pa.
1999) (summarizing portions of the medical evidence)
[hereinafter Doe I]; Doe v. County of Centre, 80 F. Supp. 2d
437, 441-44 (M.D. Pa. 2000) (same) [hereinafter Doe II].

HIV is transmitted only through absorption of infected
blood or sexual secretions into the bloodstr eam or mucous
membranes of an uninfected person. Bodily fluids such as
sweat, tears, or saliva, while containing minute amounts of
HIV, pose little to no risk of infection, nor does skin contact
with HIV-positive blood, unless the skin is br oken or has
open wounds. Thus, the chance of HIV transmission fr om
casual contact is virtually nonexistent. Nor mal sibling
fighting and roughhousing present negligible risk of
transmission. In fact, Dr. Hersh testified that out of the
21,000 AIDS cases in Pennsylvania, there ar e no reported
cases of virus transmission due to familial contact or
fighting. Even intense physical activities cr eate little risk of
infection. For example, Dr. Swenson noted that a study
involving football players found that the risk of HIV
transmission was one in every 85 million violent contacts.

The two primary modes of infection are thr ough the use
of infected hypodermic needles and thr ough unprotected
sex. According to Dr. Swenson, the pr obability of HIV
transmission through sexual activity varies depending on

                               6
the activity involved, the specific roles of the infected and
uninfected persons in the sexual activity, and the viral load
of the infected person. Certain generalities apply. For
example, the lower an HIV-positive person's viral load, the
lower the transmission risk. In addition, during sexual
intercourse, HIV is more easily transmitted from an
insertive to a receptive partner than fr om a receptive to an
insertive partner.

Relying on his professional experience and the prevailing
medical research, Dr. Swenson testified as to the
probability of transmission in non-consensual male-to-male
sexual activity. These risk findings rely on medical models
of disease transmission based on observations of patients,
rather than on actual controlled tests. Accor ding to Dr.
Swenson, the probability of transmission to a person with
HIV who performs oral sex on an infected partner is low,
about 1 in 2500 for each occurrence. The pr obability of
transmission from a receptive HIV-positive partner to an
insertive HIV-negative partner in anal sex is about 1 in
1666. However, the probability of transmission from an
insertive HIV-positive partner to a receptive HIV-negative
partner under these circumstances is much higher, about
1 in 120.

The appellees in this case are Centre County, the Office
of Children and Youth Services of Centr e County ("CYS"),
and the Board of Commissioners of Centr e County ("County
Board"), as well as individual CYS officials Terry Watson,
Carol Smith, and Lisa Rice. We will r efer to the appellees
collectively as the "County." Centre County provides a
foster care program for children in need of temporary or
permanent placements outside the homes of their biological
or custodial families. CYS operates the foster car e program
and is obligated to follow all applicable federal and
Pennsylvania laws. In particular, CYS operates under a
statutory duty to investigate foster parent applicants in
order to preserve the physical and emotional health of
foster children. See, e.g., 23 Pa. Cons. Stat. S 6344(d)
(requiring foster programs to investigate prospective foster
parents for criminal activity or child abuse). Both Centre
County and CYS receive federal funds, and the foster care
program receives a portion of these funds.

                               7
Terry Watson is the Director of CYS, and oversees the
foster care program. Carol Smith is the Assistant Director
of CYS, bearing ultimate responsibility and oversight for the
training of foster parents. Lisa Rice is a foster home
specialist employed by CYS. She helps select and counsel
foster families. Tom Groninger, who is not an appellee in
this case, is an employee of CYS who perfor ms home
studies for prospective foster parents. According to Carol
Smith, there are several steps in a foster parent
application: (1) an initial phone call; (2) a pr eliminary home
study by Groninger; (3) six weeks of pr e-service training for
foster parents; (4) a meeting between the foster parents and
Lisa Rice, and a final assessment; and (5) a meeting
between Rice and Smith to approve or disappr ove the
application.

In January 1998, the Does applied to become foster
parents under the CYS foster care pr ogram. During the
preliminary home study, the Does disclosed to Groninger
that Adam had HIV and AIDS. Prior to the Does'
application, CYS officials had never knowingly placed a
child in a foster home where someone had HIV , and
therefore had no policy to address the limitations, if any,
applying to such a home. The County claims that CYS,
looking for guidance, investigated the policies of other
counties throughout Pennsylvania. CYS officials found
some infectious disease policies in other counties, but claim
that none addressed the specific situation of placing an
HIV-negative child in a foster home wher e HIV is present.

Amici curiae, the American Public Health Association and
others, challenge the County's claims of investigation, citing
numerous policies from other jurisdictions. These policies
generally state that family services agencies should neither
apply blanket prohibitions against placing HIV -positive
foster children with HIV-negative childr en, nor segregate
HIV-positive foster children from HIV-negative children
without analyzing the particular circumstances of each
case. See Dep't of Pub. Welfar e, Commonwealth of Pa.,
Children, Youth and Families Bulletin: HIV/AIDS Policy 9
(1989) (unofficial draft policy) ("HIV positive children should
not be segregated in day care facilities, foster homes, group
homes, residential placements, or institutions based on

                               8
their HIV status alone"); The Dep't of Servs. for Children,
Youth and their Families, State of Del., Policy and Procedure
Manual: Communicable Diseases S 103 (IV)(F) (1998)
("Except where the presence or risk of[HIV infection from
a foster child] presents specialized car e needs, the presence
or risk of [HIV] should not be the mitigating factor in the
placement decision"); N.J. Div. of Youth and Family Servs.,
Field Operations Casework Policy and Procedur es Manual
S 1502.10 (1999) (when placing HIV-positive foster children,
"[s]iblings and children of any age may be placed together
in the same household, unless a physician advises
otherwise"); Child Welfare League of Am., Meeting the
Challenge of HIV Infection in Family Foster Car e 18-22
(1991); Child Welfare League of Am., Serving HIV-Infected
Children, Youth, and their Families: A Guide for Residential
Group Care Providers 29-33 (1989).

The policies cited are not, however, entirely on point,
since they apply to the placement of HIV-positive foster
children into foster homes rather than the placement of
HIV-negative children into foster homes where HIV is
present. Having reviewed these polices, we conclude that
only the policy of the Philadelphia Department of Human
Services applies to the present situation. That policy
declares that "[t]he Department . . . does not discriminate
in . . . its recruitment or development of kinship caregivers,
foster parents, adoptive parents, and contracted providers
on the basis of . . . [their] living or[being] perceived as living
with HIV/AIDS." See Children and Youth Div., Phila. Dep't
of Human Servs., Policy Manual SS 1010, 5200 (emphasis
added).

After its investigation, CYS officials examined the records
of Centre County's foster care program. They found a
pattern of physical and sexual abuse among foster children:

       As of March 31, 1999, CYS had 125 childr en in
       placement. Of those children:

       (a) 49% (61 children) had behavioral or emotional
       problems,

       (b) 24% (30 children) had been victims only of sexual
       abuse[,]

                               9
       (c) 5% (6 children) were perpetrators only of sexual
       abuse[,] and

       (d) 7% (9 children) were both victims and perpetrators
       of sexual abuse.

Doe II, 80 F. Supp. 2d at 441 (inter nal quotations and
citation omitted). According to CYS officials, a "perpetrator,"
as used in (c), is a child who has assaulted another child
sexually, but CYS's definition of "assault" includes such
activities as fondling and disrobing others.

CYS officials further concluded that, given the emergency
nature of foster child placement, there was inadequate time
to assess each foster child for behavioral or emotional
problems prior to placement. While able to identify some
sexual perpetrators, CYS officials found that a number of
foster children were not identified as sexual perpetrators
until after foster placement. Especially disturbing were
documented instances of sexual assault by foster children
on other children in foster homes.

Motivated by the concern that a foster child might
sexually assault Adam, and thereby contract HIV , CYS
Director Watson developed the following policy regarding
the placement of children when infectious diseases are
present:

       C) Placement Of Children With Ser ious Infectious
       Diseases

       . . . If a child with a serious infectious disease is placed
       in a foster home, or if there is a family member of the
       foster family who has a serious infectious disease, only
       children with the same serious infectious disease will
       be considered for placement in that home. The only
       exception to this policy would be for a parent/guardian
       of a child in the care and custody of C&YS to sign an
       informed consent for the placement of their non-
       infected child in such a home. . . . For this exception
       to occur, the foster parents would have to voluntarily
       agree to release information to the child's parents that
       a member of the foster family has been diagnosed with
       a specific serious infectious disease.

                               10
The County Board adopted this policy and dir ected CYS to
carry out its terms.3

Meanwhile, Lisa Rice informed the Does that Adam's HIV
might present a problem for foster par ent approval.
According to plaintiffs' version of events, Rice also alluded
to racial considerations, telling Yolanda Lollis of the AIDS
Law Project in Pennsylvania,4 as well as Mary Doe, that the
HIV issue was irrelevant since CYS did not have any
African-American foster children to place with the Does.
During later proceedings, Rice explained that CYS uses
race as a factor in placing children because it tries to
replicate a foster child's original home envir onment. Racial
continuity minimizes disruption and change in the child's
life. Rice also acknowledged the possibility of racial
animosity between the interracial foster par ents and
Caucasian biological or custodial parents.

Given the HIV controversy, the Does' application stalled
without a formal evaluation of their fitness as foster
parents. After delay and mutual recriminations, CYS
officials sent the Does a formal letter on December 18,
1998 stating that:

       we are prepared to consider appr oval of you as
       available foster parents for any HIV-infected child. If
       you would like to be approved for other childr en, per
       our policy, you would need to sign a consent allowing
       CYS to disclose to any child's parents that a member
       of your family/household is HIV-infected. In turn, the
       parent must sign an informed consent allowing their
       child to be placed in your home.

The Does refused to consent to this arrangement.

On April 28, 1999, the Does sued Centre County, CYS,
and the County Board, as well as CYS officials Watson,
Smith, and Rice, individually and in their official capacities.
The Does charged the County with disability discrimination
_________________________________________________________________

3. The quoted passage is actually provision IV.C in a policy containing
numerous provisions. Nevertheless, for ease we will refer to this
provision as the County's policy.

4. Lollis had provided legal advice to the Does in connection with this
case.

                               11
in violation of Title II of the Americans with Disabilities Act,
42 U.S.C. SS 12131-34 [hereinafter"Title II of the ADA"],
and Section 504 of the Rehabilitation Act, 29 U.S.C.S 794;
racial discrimination in violation of Title VI of the Civil
Rights Act of 1964, 42 U.S.C. S 2000d-1-7; and racial and
disability discrimination in violation of the equal protection
guarantees under the United States Constitution, pursuant
to 42 U.S.C. S 1983. They also filed a motion for injunctive
relief. With respect to remedies, the Does sought
invalidation of the County's infectious disease policy, their
approval as foster parents, and compensatory and punitive
damages.

On June 22, 1999, the District Court held a one-day
hearing on the Does' preliminary injunction motion. It was
during this hearing that nearly all of the r ecord in this case
was developed.

On July 12, 1999, the County moved to dismiss the Does'
complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to
state a claim, arguing that: (a) the Policy was valid since
Adam's AIDS posed a direct and significant threat to foster
children; (b) the Does' racial discrimination claims were
unripe; (c) the individual defendants were entitled to
qualified immunity; and (d) punitive damages wer e
unavailable. Within its motion, the County r eferred to
matters outside of the complaint, specifically r elying on
evidence from the June 22, 1999 preliminary injunction
hearing.

The District Court dealt with the preliminary injunction
motion and the 12(b)(6) motion in several related steps. By
order dated August 30, 1999, the District Court denied the
preliminary injunction motion, finding that the Does failed
to prove a reasonable likelihood of success on the merits.
Doe I, 60 F. Supp. 2d at 426. By or der dated October 13,
1999, the District Court, believing that the evidence from
the hearing sufficed to resolve the case, accepted and
considered the County's proffer ed extrinsic evidence.
Following Fed. R. Civ. P. 12(b), the Court r easoned that the
inclusion of extrinsic evidence mandated the conversion of
the motion to dismiss into a motion for summary judgment.
See generally Hilfirty v. Shipman, 91 F .3d 573, 578 (3d Cir.
1996) (outlining procedure for conversion). The Court

                               12
therefore gave the parties 16 days tofile briefs, affidavits,
and other materials that might be relevant. The Does
objected to conversion, arguing that discovery had been
inadequate. They also argued that, in any case, the Court
should deny summary judgment on the available r ecord.

On February 1, 2000, the District Court granted
summary judgment to the County on all claims. Doe II, 80
F. Supp. 2d 437. It held that Adam's HIV posed a
significant risk to foster children who might sexually
assault Adam, and that therefore, the dir ect threat
exception to the ADA and Rehabilitation Act applied,
justifying discrimination via the infectious disease policy.
The District Court also held that the individual CYS officials
were entitled to qualified immunity because any right the
Does had was not clearly established, and, further , that
County government entities were immune fr om punitive
damages. Lastly, the Court found that the Does' racial
discrimination claims were unripe. The Does appealed the
order granting summary judgment for the County, 5 and we
have jurisdiction under 28 U.S.C. S 1291.

II.

We exercise plenary review over the District Court's grant
of summary judgment, Dowling v. City of Philadelphia, 855
F.2d 136, 141 (3d Cir. 1988), and we independently apply
the same standard applicable to district courts, Olson v.
Gen. Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996)
(citations omitted). Federal Rule of Civil Pr ocedure 56(c)
directs that summary judgment is appropriate "if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law." In following this directive, a court must take the
facts in the light most favorable to the nonmoving party,
the Does, and draw all reasonable infer ences in their favor.
McCarthy v. Recordex Serv., Inc., 80 F .3d 842, 847 (3d Cir.
1996).
_________________________________________________________________

5. The Does have not contested the denial of their motion for a
preliminary injunction.

                               13
III.

We first consider the Does' contention that the District
Court erred in dismissing their disability discrimination
claims brought under Title II of the ADA and Section 504
of the Rehabilitation Act. As a starting point, the
protections found in the ADA and in the Rehabilitation Act
are interpreted similarly, and, in this case, are identical.
See Bragdon, 524 U.S. at 632 (using statutory construction
to conclude that the Court should "construe the ADA to
grant at least as much protection as pr ovided by the
regulations implementing the Rehabilitation Act").
Therefore, except where necessary, we refer only to Title II
of the ADA, with the understanding that both statutes are
implicated.

Title II of the ADA provides, in pertinent part, that:

       no qualified individual with a disability shall, by reason
       of such disability, be excluded from participation in or
       be denied the benefits of the services, pr ograms, or
       activities of a public entity, or be subjected to
       discrimination by any such entity.

42 U.S.C. S 12132; see also 29 U.S.C.S 794(a) (Section 504
of the Rehabilitation Act) (prohibition on disability
discrimination in federal programs). The ADA describes a
disability as "a physical or mental impair ment that
substantially limits one or more of the major life activities
of [an] individual." 42 U.S.C. S 12102(2); see also 29 U.S.C.
705(20)(B) (same under the Rehabilitation Act). Adam's HIV
clearly constitutes a disability since it is a physical
impairment, 28 C.F.R. S 35.104 (defining "physical
impairment"), that substantially limits several of Adam's
major life activities, such as talking, walking, and digestion,
28 C.F.R. S 35.104 (defining "major life activities"). See also
45 C.F.R. S 84.3(j) (defining physical impairment and major
life activities under the Rehabilitation Act); Bragdon, 524
U.S. at 637, 641 (holding that HIV, even in the so-called
asymptomatic phase, is an impairment which substantially
limits the major life activity of reproduction).

The protections of the ADA extend to "qualified
individuals" who are discriminated against because of their
relationship or association with individuals who have a

                               14
known disability. 28 C.F.R. 35.130(g); compare 42 U.S.C.
S 12112(b)(4) (Title I of ADA); H.R. Rep. No. 101-485(III), at
38 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 461 (Title I
of ADA) (the ADA "protects persons who associate with
persons with disabilities and who are discriminated against
because of that association. This may include family,
friends, and persons who provide care for persons with
disabilities."). As the adoptive parents of Adam, John and
Mary Doe have a close relationship entitling them to
protection under the ADA.

CYS's policy requires notification of and consent from the
biological or custodial parents of HIV-negative foster
children when placing those children in homes with HIV-
positive individuals. The policy therefor e treats John and
Mary Doe differently during the foster parent application
process solely on the basis of Adam's HIV and AIDS. As a
facial matter, then, the policy constitutes disability
discrimination against the Does under the ADA.

Nevertheless, the ADA allows disparate treatment in
certain cases. In particular, the ADA r ecognizes that the
goal of ending disability discrimination must be balanced
against the health and safety risks that disabilities
sometimes pose to others. See Bragdon, 524 U.S. at 648-
49. Thus, the ADA contains a direct thr eat exception, which
allows discrimination if a disability "poses a direct threat to
the health or safety of others." 28 C.F.R. Part 35, App. A at
483; compare 42 U.S.C. S 12182(b)(3) (Title III of ADA); see
also 29 U.S.C. S 705(20)(D) (Rehabilitation Act). A "direct
threat" exists when there is a "significant risk to the health
or safety of others that cannot be eliminated by a
modification of polices, practices, or procedures or by the
provision of auxiliary aids or services." 42 U.S.C.
S 12182(b)(3) (emphasis added).6 As the Supreme Court has
stated, the exception can only be invoked wher e a risk is
significant: "[b]ecause few, if any, activities in life are risk
_________________________________________________________________

6. The direct threat exception was a judicially created doctrine first
announced in School Board of Nassau County v. Arline, 480 U.S. 273,
287 n.16 (1987). Following that case, Congress amended the disability
discrimination statutes to include the Court's dir ect threat language.
See
Bragdon, 524 U.S. at 649.

                               15
free . . . the ADA do[es] not ask whether a risk exists, but
whether it is significant." Bragdon, 524 U.S. at 649. Thus,
courts and entities deciding whether to exclude the
disabled must rely on evidence that "assess[es] the level of
risk" for the "question under the statute is one of statistical
likelihood." Id. at 652.

To determine the existence of a significant risk, the
Supreme Court in School Board of Nassau County v. Arline
directed courts to make factual findings concerning the
following four factors:

       (a) the nature of the risk (how the disease is
       transmitted), (b) the duration of the risk (how long is
       the carrier infectious), (c) the severity of the risk (what
       is the potential harm to third parties) and (d) the
       probabilities the disease will be transmitted and will
       cause varying degrees of harm.

480 U.S. 273, 288 (1987) (internal quotations and citation
omitted). These findings must be based on "medical or
other objective evidence," with special defer ence to the
views of public health authorities. Bragdon, 524 U.S. at
649.

In the leading Supreme Court case, Bragdon v. Abbott, a
dentist refused to treat a patient with HIV, believing the
patient might infect him. Addressing the dentist's
invocation of the ADA's direct threat exception, the Court
conducted a rigorous and individualized inquiry into the
risk of HIV transmission from patient to dentist. Id. at 650-
54 (scrutinizing the details of studies and other cited
authorities). Despite the existence of a theor etically possible
means of transmission from patient to dentist, the Court
remanded the case to "permit a full exploration of the
issue" of risk of transmission given the Court's"analysis of
some of the studies cited by the parties." Id. at 655 (dentist
argued that he might be infected by HIV -positive patient
through airborne blood vapors or thr ough an accidental
cut). In doing so, the Court did "not for eclose the possibility
that the Court of Appeals [might] reach the same
conclusion it did earlier" in holding that ther e was no
significant risk to the dentist. Id.; see Abbott v. Bragdon,
163 F.3d 87, 90 (1st Cir. 1998) (finding no significant risk
on remand), cert. denied, 526 U.S. 1131 (1999).

                                16
The disposition in Bragdon follows fr om Congress' intent
that the ADA's prohibitions on disability discrimination
require an individualized determination as to the
significance of risk underlying the direct threat exception,
both by entities evaluating disabilities and by courts
judging the actions of those entities:

       A person with a disability must not be excluded . . .
       based on stereotypes or fear. Nor may a decision be
       based on speculation about the risk or harm to others.
       Decisions are not permitted to be based on
       generalizations about the disability but rather must be
       based on the facts of an individual case. . . The purpose
       of creating the `direct thr eat' standard is to eliminate
       exclusions which are not based on objective evidence
       about the individual involved.

H.R. Rep. No. 101-485(III), at 45 (1990), r eprinted in 1990
U.S.C.C.A.N. 445, 468 (emphasis added); see also Holiday
v. City of Chattanooga, 206 F.3d 637, 643 (6th Cir. 2000)
(holding that a district court erred in accepting a
physician's report about the abilities of an HIV-positive
police officer applicant where "ther e [was] no indication that
the physician conducted the individualized inquiry
mandated by the ADA"); Taylor v. Pathmark Stores, Inc.,
177 F.3d 180, 192-93 (3d Cir. 1999) (employers must make
individualized determinations about the disabilities of
employees); Doe v. Dekalb County Sch. Dist., 145 F.3d
1441, 1446 (11th Cir. 1998) (the Supr eme Court "insist[s]
that district courts undertake `individualized inquiry' in
each case" regarding the significance of risk).

In ruling against the Does' disability discrimination
claims, the District Court accepted the County's ar gument
that Adam's HIV posed a significant risk to foster children
placed in the Does' home. The direct thr eat exception
therefore applied, justifying the County's policy. While
acknowledging that the probability of transmission might
be low during a specific sexual act, the Court stated that it
was "unaware of any way of assuring that contact between
[Adam and a foster child] will be indeed casual," and that
if not casual, there would be a chance that HIV -
transmitting sexual intercourse might take place. Doe II, 80

                               17
F. Supp. 2d at 443 (internal quotations and citation
omitted).

In an effort to follow Arline and Bragdon, the District
Court based its significance of risk conclusion on four
findings of fact. As to the nature of the risk, it found that
"the HIV virus has been proven to be transmitted through
sexual intercourse (homosexual or heter osexual),
intravenous drug use, and transfusion of blood and blood
products." Doe I, 60 F. Supp. 2d at 428. As to the duration
of the risk, it found that "AIDS is a ter minal disease for
which there is no cure. . . . [T]he risk [is] present until the
carrier succumbs to the disease." Id. W ith respect to the
severity of the risk, it found that "[t]he harm to third
parties is life-threatening." Id. W e agree that there is no
genuine dispute regarding these findings.

Most of the tension in this case, however, surrounds the
fourth and final factor -- the probability of transmission. As
to this factor, the District Court agr eed with the County,
and found "a high probability that [HIV] will be transmitted
[through sexual contact] to childr en placed in foster care
with the Does." Id. at 428. With r espect to this factor, we
cannot agree with the District Court because we conclude
that there is definitely a genuine dispute of fact. It is
obvious from the record that Adam's physical limitations
prevent him from being a sexual aggr essor. The District
Court must have derived its conclusion regar ding the
probability of transmission from the possibility of a sexual
misdeed by a foster child, reasoning that: (1) given the data
provided by CYS officials, CYS foster childr en have a high
propensity to sexually abuse other childr en, see Doe II, 80
F. Supp. 2d at 441; and (2) according to testimony by Carol
Smith, "CYS cannot identify with any certainty at the time
of placement which of its foster children will engage in
assaultive behavior or those children who will be sexual
perpetrators," id. at 442 (internal quotations and citation
omitted).

We believe that the reasoning the County and the District
Court employed is contrary to Congress' intent that
analysis of the ADA's direct threat exception should involve
an individualized inquiry into the significance of the threat
posed. See Bragdon, 524 U.S. at 649. In concluding that

                               18
CYS foster children have a high propensity for sexual
abuse, the District Court relied on a bland and generalized
set of statistics, lacking in individual specificity. These
statistics reveal that 12% of the foster childr en have had
histories of perpetrating some form of "sexual abuse," but
the statistics broadly define "sexual abuse" to include
activities such as fondling and disrobing that carry no risk
of transmitting HIV. Does II, 80 F . Supp. 2d at 441. More
important, the statistics do not indicate how many children
can be readily identified as being unable or unlikely to
engage in high-risk behavior.

The following example illustrates this point. The Does
have stated a preference for foster childr en under the age of
12. Foster children of tender age -- i.e., infants and
children who have not reached puberty-- are extremely
unlikely to commit forcible sexual inter course leading to the
transmission of HIV.7 Mor eover, as noted there is no
evidence indicating that Adam is at all likely to commit
such an assault, and much evidence suggesting that this is
most unlikely. Thus, we believe that the probability of HIV
transmission from Adam to a tender-aged child placed in
the Does' home appears to be insignificant. Mor eover,
contrary to Carol Smith's testimony, such children are
precisely the type of children whom CYS can identify as
unlikely perpetrators of HIV-transmitting sexual assault.

The County argues that even though the pr obability of
_________________________________________________________________

7. We use "tender age" only as helpful terminology for defining a range
of sexual development. In doing so, we are not drawing on any legal
definition of tender years or age, but rather on the practical physical
limits of pre-pubescent children. In fact, we note that the definition of
the phrase "children of tender years" has varied in social and legal
contexts, with little direct connection to sexual development. See, e.g.,
Black's Law Dictionary 1480 (7th ed. 1999) (in family law, the tender
years doctrine provides "that custody of very young children (usu[ally]
five years of age and younger) should generally be awarded to the mother
in a divorce unless she is found to be unfit"); Robert G. Marks, Note,
Should We Believe the People Who Believe the Children?: The Need for a
New Sexual Abuse Tender Years Hearsay Exception Statute, 32 Harv. J.
on Legis. 207, 245-46 (1995) (noting that all states limit their tender
years statutes to children below a certain age, and arguing that some of
the age limits are too low).

                               19
transmission is negligible, a generalized policy is justified
where a disability, such as HIV, is deadly and has no cure,
because the loss of even one life is too great a cost in
pursuit of the ADA's honorable goals. Admittedly, when
facing the life-threatening consequences of HIV , some
federal appellate courts have held that any amount of risk
through a "specific and theoretically sound means of
transmission" constitutes a significant risk, allowing
invocation of the direct threat exception. Onishea v. Hopper,
171 F.3d 1289, 1297-99 (11th Cir. 1999) (allowing
segregation of HIV-positive prisoners), cert. denied, 528 U.S.
1114 (2000); see also Estate of Mauro v. Borgess Med. Ctr.,
137 F.3d 398, 405, 407 (6th Cir. 1998) (affirming summary
judgment against HIV-positive surgical technician even
though Centers for Disease Control calculated odds of
transmission during a surgery as between 1 in 42,000 and
1 in 420,000); Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d
1261, 1265-66 (4th Cir. 1995) (affir ming summary
judgment against HIV-positive physician wher e the risk of
transmission was "minimal but nevertheless
ascertainable"); Bradley v. Univ. of T ex. M.D. Anderson
Cancer Ctr., 3 F.3d 922, 924 (5th Cir. 1993) (per curiam)
(affirming summary judgment in favor of hospital that
refused to permit an HIV-positive surgical assistant to
assist surgeries, even though risk was "small").

Other appellate courts have endorsed a more exacting
standard, requiring some actual risk of transmission
including documented cases. See Abbott, 163 F.3d at 90
(finding that plaintiff HIV-positive dental patient produced
sufficient evidence that there would be no significant threat
to dentist from treatment); Chalk v. United States Dist.
Court Cent. Dist. of Cal., 840 F.2d 701, 707-09, 712 (9th
Cir. 1988) (directing entry of pr eliminary injunction
prohibiting school from transferring teacher with HIV from
classroom because uncertain and theoretical possibility of
HIV transmission to students did not present significant
risk, despite district court's characterization of the potential
harm as "catastrophic").

We need not decide the merits of these two positions
since, even under the more cautious rule, a r easonable fact
finder could find that there is no "specific and theoretically

                               20
sound means of [HIV] . . . transmission" fr om Adam to a
tender-aged foster child. Onishea, 171 F.3d at 1297. In
light of the objective medical evidence in the r ecord, a
reasonable fact finder could easily find that the risk of a
little boy or girl contracting HIV from Adam by forcing him
to engage in high-risk behavior is the type of r emote and
speculative risk that is insufficient for a finding of
significant risk, and insufficient for the invocation of the
direct threat exception. See Bragdon , 524 U.S. at 649 (in
assessing whether patient with HIV presented a significant
risk to dentist, "Arline and the ADA do not ask whether a
risk exists, but [rather] whether it is significant"); see also
H.R. Rep. No. 101-485(II), at 56 (1990), r eprinted in 1990
U.S.C.C.A.N. 303, 338 (Title I of ADA) (noting that a
"speculative or remote risk" is insufficient to support a
finding of a "significant risk"), H.R. Rep. No. 101-485(III), at
46 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 469 (Title I
of ADA) ("The plaintiff is not requir ed to prove that he or
she poses no risk").

Its original sexual assault justification faltering, the
County turns to another, contending that physical
roughhousing or fighting between Adam and a foster child
of tender age could still lead to the transmission of HIV. We
reject this contention. Even if we accept the less than
obvious proposition that a young child or infant could
physically assault Adam, a reasonable factfinder could
find, based on the objective medical evidence in the record,
that the risk of HIV transmission from casual contact, even
intense physical contact, is negligible.

Furthermore, the County's sexual assault and physical
violence arguments lose all force in the case of a foster
child who is so disabled that he or she is simply incapable
of committing sexual or physical assault.8 In such a
situation, the County's blanket policy discriminates against
the Does because of Adam's HIV positive status even
though the probability of HIV transmission, and
consequently the risk, is next to zero.
_________________________________________________________________

8. We believe there are such handicapped foster children. After all, the
record demonstrates that Adam himself was a physically disabled foster
child before being adopted by the Does.

                               21
In sum, the record is insufficient to support the grant of
summary judgment in favor of the County, because a
reasonable fact finder could not find, based on the
summary judgment record, that an individual with HIV
would always pose a significant risk to a foster child placed
by the County in that individual's home. This generalization
fails to address, for example, the placement of tender-aged
and disabled foster children. The County ther efore failed to
conduct the ADA-mandated individualized deter mination,
and the District Court erred in concluding that the ADA's
direct threat exception applied.

In addition to its significance of risk ar guments under
Arline and Bragdon, the County has pr esented several other
justifications for the policy. First, and most persuasively,
the County argues that the direct thr eat test in Arline and
Bragdon developed in the context of HIV-positive persons
rightfully demanding inclusion into the public spher e and
into public life. See, e.g., Abbott, 163 F.3d at 90 (holding
that HIV-positive dental patient was entitled to dental
treatment); Chalk, 840 F.2d at 708-09, 712 (9th Cir. 1988)
(holding that school could not transfer teacher with HIV
from classroom). The present case, by contrast, involves an
HIV-positive family requesting the placement of a non-HIV
positive child into their private home. The County argues
that this is a novel situation, demanding mor e stringent
standards since the threat posed in a private home is much
greater.

We have found no authority on this issue. W e
acknowledge the intuitive difference between inclusion into
the public sphere and placement in a private home. A
private home is much more difficult to monitor and involves
more intimate contact than would ordinarily take place in
the public sphere, such as at a school or within a hospital.
Further, as compared to the HIV-positive person seeking
inclusion, the HIV-negative child and his or her guardians
lack choice in the foster placement process. In addition,
entities responsible for foster placement, such as the
County, normally have an independent statutory directive
to ensure that the placement of children is safe. See, e.g.,
23 Pa. Cons. Stat. S 6344. Nevertheless, the differences
suggested, while possibly significant in some cases, cannot

                               22
justify the type of blanket policy implemented her e. Simply
put, the distinction between the public spher e and a private
home, which relates primarily to monitoring and intimacy,
has no material effect on the significance of risk analysis
for tender-aged and disabled foster childr en who, by their
inherent physical limitations, face negligible risk from an
HIV-positive child such as Adam, whether in the public
sphere or private home.

Second, the County argues that its policy is analogous to
the legal concept of informed consent, which r equires that
physicians, before performing any medical procedure,
provide patients with information about the potential risks
of the procedure to the health and safety of the patient. Doe
I, 60 F. Supp. 2d at 429-30 (employing this argument). The
analogy is inappropriate here. No pr ovision of the ADA
incorporates the concept of informed consent, and we see
no basis for engrafting that concept onto the statutory
scheme.

Third, the County argues that the particular
circumstances of the Does' family situation would compel
CYS to deny foster placement anyway, even in the absence
of the policy. In particular, the County is concerned with
family instability if Adam is hospitalized or has increased
needs, an event that might reduce the level of care to a
foster child. The problem with this argument is that the
County, by virtue of its application of the policy to the
Does, never reached this evaluative stage. Mor eover, the
record contradicts the County's assertions. Adam's
condition is stable. He has good health and faces no greater
risk of infection than a child without HIV. T o the extent the
County enacts a policy based on the belief that HIV , as a
general matter, causes instability, it again controverts the
ADA-mandate of individualized determination. The
instability argument further rings hollow given that the
County does not require disclosure of other stability
threatening conditions, such as cancer or neur ological
problems.

Finally, the County argues that making accommodations
for the Does will be difficult and resour ce-intensive given
the realities of foster care. Specifically, the County contends
that placements are often made under emer gency time

                               23
constraints with inadequate time for evaluation. Placing
young children with the Does, according to the County,
could also be psychologically damaging if those children
need to be moved at a later time due to their sexual
development. This argument, however, again ignores the
principle of individualized evaluation. After all, not every
placement will be an emergency, and not every child will
need to be moved.

For the reasons stated, we will reverse its grant of
summary judgment on the Does' claims of disability
discrimination. We emphasize that, while we have used
tender-aged and disabled foster childr en to illustrate the
shortcomings of the County's policy, our holding does not
foreclose the possibility of placing other foster children with
the Does, so long as there is no significant risk.

Given our decision, we need not consider the Does'
further arguments that the District Court impr operly
converted the County's motion to dismiss and that it erred
in not deferring summary judgment pursuant to Fed. R.
Civ. P. 56(f) until the completion of discovery. See Fed. R.
Civ. P. 12(b) (on conversion, "all parties shall be given
reasonable opportunity to present all material made
pertinent to such a motion by Rule 56"); Fed. R. Civ. Pro.
56(f); Ford Motor Co. v. Summit Motor Pr ods., Inc., 930 F.2d
277, 284 (3d Cir. 1991).

IV.

With respect to the Does' claims of racial discrimination
under Title VI of the Civil Rights Act of 1964 and 42 U.S.C.
S 1983, the District Court granted summary judgment to
the County. Reasoning that the Does' foster par ent
application had not yet been approved and that CYS had
not yet denied referral of a foster child to the Does on any
grounds, the District Court concluded that the Does' racial
discrimination claims were not ripe. See Doe II, 80 F. Supp.
2d at 446. On appeal, the Does argue that the District
Court erred. We exercise plenary r eview over whether a
cause of action is ripe. Felmeister v. Office of Attorney
Ethics, 856 F.2d 529, 535 n.8 (3d Cir . 1988). Upon review,
we conclude that the District Court's ripeness
determination was incorrect.

                               24
The ripeness doctrine helps determine whether a dispute
or claim has matured to a point warranting judicial
intervention. 13A Charles Alan Wright, Arthur R. Miller, &
Edward H. Cooper, Federal Practice and Procedure S 3532
(2d ed. 1984). The doctrine exists "to pr event the courts,
through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over
administrative policies, and also to protect . . . agencies
from judicial interference until an administrative decision
has been formalized and its effects felt in a concrete way by
the challenging parties." Abbott Laboratories v. Gardner,
387 U.S. 136, 148-149 (1967), overruled on other grounds,
Califano v. Sanders, 430 U.S. 99, 105 (1977). T o evaluate
ripeness, we must look at the "fitness of the issues for
judicial decision and the hardship to the parties of
withholding court consideration." Id. at 149. "A claim is not
ripe for adjudication if it rests upon contingent future
events that may not occur as anticipated, or indeed may
not occur at all." Texas v. United States, 523 U.S. 296, 300
(1998) (internal quotations and citation omitted).

Here, the record shows ripe claims. The County enacted
the infectious disease policy, and, on December 18, 1998,
sent a letter informing the Does that they would not be
approved as foster parents without disclosure of Adam's
HIV status and without consent of the parents of any
prospective foster child. During the application process,
CYS officials allegedly made statements that might support
an inference of underlying racial motivations-- in
particular, Rice allegedly stated that the HIV issue was to
some degree irrelevant given the lack of racially suitable
foster children.

The District Court erroneously focused on the alleged
denial of placement as the Does' sole claim. Besides
alleging an improper denial, the Does alleged that the
County imposed discriminatory restrictions on the process
itself, in part because of racism engendered by the Does'
interracial relationship. This allegation, while disputed by
the County, does not constitute an "abstract
disagreement[ ]" incapable of judicial resolution. See, e.g.,
Abbott Laboratories, 387 U.S. at 148. Withholding judicial
consideration causes an immediate and significant

                               25
hardship on the Does, who will be deprived of their right to
present their federal statutory and constitutional claims for
redress. Therefore, we hold that the racial discrimination
claims are ripe.9 Accor dingly, we will reverse summary
judgment, and remand the case to the District Court for
further consideration.

V.

In this action, the Does sued CYS officials W atson, Smith,
and Rice in their individual capacities, seeking to impose
liability and personal damages. The officials claimed
qualified immunity from suit. The District Court agreed,
holding that qualified immunity applied because the Does
failed to show that the individual officials' conduct violated
rights clearly established at the time the conduct occurred.
Doe II, 80 F. Supp. 2d at 445. The Does appeal this
determination, and we have plenary review. Elder v.
Holloway, 510 U.S. 510, 516 (1994). We agree with the
District Court.

The doctrine of qualified immunity "hold[s] that
government officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established
statutory or constitutional rights of which a r easonable
person would have known." Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). The doctrine recognizes "the need to
protect officials who are requir ed to exercise their discretion
and the related public interest in encouraging the vigorous
exercise of official authority." Id. at 807 (internal quotations
and citation omitted).

In determining whether the individual CYS officials are
entitled to claim qualified immunity, we engage in a three-
part inquiry: (1) whether the plaintiffs alleged a violation of
their statutory or constitutional rights; (2) whether the right
alleged to have been violated was clearly established in the
_________________________________________________________________

9. We express no view as to whether there is sufficient evidence in the
summary judgment record to support a claim that the defendants were
motivated by racial considerations or that any such considerations had
any determinative effect on the proceedings concerning the plaintiffs.

                               26
existing law at the time of the violation; and (3) whether a
reasonable official should have known that the alleged
action violated the plaintiffs' rights. Rouse v. Plantier, 182
F.3d 192, 196-97 (3d Cir. 1999). Under the first part of the
inquiry, the Does allege a violation of their federal statutory
and constitutional rights. The second and thir d parts are
related, and involve an inquiry into the "objective legal
reasonableness" of an official's action, assessed in light of
legal rules that were "clearly established" at the time the
officials took the action. Anderson v. Cr eighton, 483 U.S.
635, 639 (1987) (internal quotations and citation omitted).
Rights may be clearly established even though the pr ecise
conduct at issue has not yet been declared unlawful. See
id. at 640. Throughout the inquiry, the officials' subjective
intent is irrelevant. See id. at 639.

The Supreme Court has directed that the right in
question should be defined in a particularized and relevant
manner, rather than abstractly. See id. at 640. Therefore,
we define the right in question as the right of HIV-positive
individuals and related persons to be fr ee from generalized
discrimination when public agencies place HIV -negative
individuals into their HIV-positive private homes. To defeat
qualified immunity, this right must have been sufficiently
clear such that a reasonable official would have known that
enacting and applying the County's policy would have
violated the right. See id. at 640.

To the contrary, however, the placement of HIV-negative
children into HIV-positive private homes presents a novel
legal issue. As we noted earlier, federal cases involving HIV
and disability discrimination nearly universally deal with
access to the public sphere, rather than placement into
private contexts, such as homes or residences. Of the
Pennsylvania county policies we have reviewed in this case,
only one directly applies to the right in question, and then
only in general terms. Children and Y outh Div., Phila. Dep't
of Human Servs., Policy Manual SS 1010, 5200.

In addition to the novelty of the issue, CYS officials had
a separate legal duty to protect the health of foster
children. See, e.g., 23 Pa. Cons. Stat.S 6344. As a legal
matter, the interplay between this duty and the ADA's
prohibition of generalized determinations under the direct

                                27
threat exception was unclear when the policy was drafted.
This is especially true given that there exists authority
supporting the proposition that HIV-positive individuals
may be segregated from HIV-negative individuals under the
direct threat exception even where the possibility of
transmission is low. See, e.g., Onishea , 171 F.3d 1289
(segregation of HIV-positive prisoners in the prison context);
Estate of Mauro, 137 F.3d 398 (limiting activities of HIV-
positive surgical technician); Univ. of Md. Med. Sys. Corp.,
50 F.3d 1261 (limiting activities of an HIV -positive
physician); Bradley, 3 F.3d 922 (limiting activities of a HIV-
positive surgical assistant). For these r easons, we conclude
that the right in question was not clearly established such
that a reasonable official would have known that the policy
violated the ADA, and we will therefore affirm the District
Court's holding that the CYS officials had qualified
immunity from suit.

VI.

The Does' final argument on appeal is that the District
Court erred in holding that the County gover nment entities
-- Centre County, CYS, and the County Boar d -- are
immune from punitive damages in suits under T itle II of the
ADA and Section 504 of the Rehabilitation Act.10 We
exercise plenary review over this legal issue.

The Does seek punitive damages from the County
government entities under Title II of the ADA, Section 504
of the Rehabilitation Act, and 42 U.S.C. S 1983. As to
S 1983, City of Newport v. Fact Concerts, Inc., stands for the
proposition that municipalities, and mor e broadly, state
and local governments entities, are immune from punitive
damages under that statute. 453 U.S. 247, 271 (1981). The
issue presented here is whether the District Court correctly
extended the holding of City of Newport, to suits brought
under Title II of the ADA and Section 504 of the
Rehabilitation Act.
_________________________________________________________________

10. In order to address the Does' ar guments, we must depart from
previous practice in this opinion and r efer separately to Title II of the
ADA and Section 504 of the Rehabilitation Act.

                               28
We have not found any federal appellate court opinions
that have addressed this issue. The district courts that
have addressed it are divided, some holding that punitive
damages are available against municipalities under Title II
and Section 504, and some holding that they ar e not.
Compare, e.g., Dadian v. Village of Wilmette, No. 98-C-3731,
1999 U.S. Dist. LEXIS 6846, at *9-10 (N.D. Ill. May 4,
1999) (punitive damages available); Purcell v. Pennsylvania
Dep't of Corr., No. 95-6720, 1998 U.S. Dist. LEXIS 105, at
*34-39 (E.D. Pa. Jan. 9, 1998) (same); DeLeo v. City of
Stamford, 919 F. Supp. 70, 74 (D. Conn. 1995) (same);
Penney v. Town of Middleton, 888 F . Supp. 332, 342
(D.N.H. 1994) (refusing to dismiss S 504 punitive damages
claim but not definitively deciding the issue); with Adelman
v. Dunmire, No. 95-4039, 1996 WL 107853, at *4 (E.D. Pa.
Mar. 12, 1996) (punitive damages unavailable).

Our analysis begins with City of Newport. In holding that
a municipality is immune from punitive damages under 42
U.S.C. S 1983, the Supreme Court r easoned that, at the
time Congress enacted the statute that is nowS 1983, it
was generally understood in common law that a
municipality "was to be treated as a natural person subject
to suit for a wide range of tortious activity, but this
understanding did not extend to the award of punitive or
exemplary damages." City of Newport, 453 U.S. at 259-60
(footnote omitted). The common law rule developed fr om a
reluctance to punish innocent taxpayers and bankrupt
local governments because of the actions of a few miscreant
public officials. Id. at 266. ReviewingS 1983, the Court
found no indications, in the common law or legislative
history, that Congress intended to abolish the doctrine of
municipal immunity from punitive damages. Id. at 259-66.

The Supreme Court also looked to public policy. It
reasoned that the rationales underlying punitive damages
did not support exposing a municipality to such damages
for the bad faith actions of its officials. First, since
municipal officials, rather than municipalities, were the
wrongdoers, sanctioning municipalities would not advance
the retributive purpose of S 1983. Id. at 267-68. Second,
the Court believed that it was unlikely that municipal
officials would be deterred from wr ongdoing by large

                               29
punitive damages awarded against municipalities. And, in
any case, a more effective deterr ent existed in the
possibility of awarding punitive damages dir ectly against
officials and their personal finances. Id. at 269-70.
Furthermore, the Supreme Court noted the high costs of
expanded damages remedies under federal statutory and
constitutional law, costs that might threaten the financial
integrity of local governments. Id. at 270. Since City of
Newport, the principle that municipalities ar e immune to
punitive damages under S 1983 has been extended to other
government entities. See, e.g., Bolden v. Southeastern Pa.
Transp. Auth., 953 F.2d 807, 830 (3d Cir. 1991) (extending
the rule to regional authorities).

The principles derived from City of Newport are directly
applicable to the present case. When Congr ess enacted Title
II of the ADA and Section 504 of the Rehabilitation Act, it
knew of the common law rule precluding punitive damages
against municipalities. Therefore, under the City of Newport
framework, the question is whether Congress intended to
disturb that settled common-law immunity.

To be sure, an opposing principle exists. Namely, the
Supreme Court in Franklin v. Gwinnett County Public
Schools directed courts to "presume the availability of all
appropriate remedies [for a federal right of action] unless
Congress has expressly indicated otherwise." 503 U.S. 60,
66 (1992). For example, relying on the Franklin
presumption of remedies and the lack of congressional
expression to the contrary, the Fourth Cir cuit held in
Pandazides v. Virginia Board of Education, an employment
case in which the sole defendant was a state boar d of
education, that the plaintiff could seek punitive damages
under Section 504. 13 F.3d 823, 830-32 (4th Cir. 1994) (full
panoply of legal remedies available, including punitive
damages in suit against employer); see also Pur cell, 1998
U.S. Dist. LEXIS 105, at *34-39 (following similar
reasoning); cf. Schultz v. Young Men's Christian Ass'n of the
United States, 139 F.3d 286, 291 (1st Cir. 1998) (suggesting
that, in a suit under Section 504, "damages for emotional
distress [might] be justified to punish patent misbehavior or
the deliberate infliction of humiliation"); but see Moreno v.
Consol. Rail Corp., 99 F.3d 782, 790-92 (6th Cir. 1996) (en

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banc) (holding that, based on the lack of congressional
intent to override existing punitive damage norms, Section
504 does not allow punitive damages).

We believe, however, that the analysis underlying
Franklin, and employed in Pandazides, does not control in
this case. The Franklin presumption is rooted in the
common law principle, recognized by the Supr eme Court as
early as Marbury v. Madison, that a right without a remedy
is not a right at all. See 503 U.S. at 66-67 (citing numerous
authorities). Prior to Franklin, some courts had held that
monetary damages were unavailable in suits br ought under
Title IX of the Education Amendments of 1972. See 503
U.S. at 64-65. The Franklin Court settled this dispute,
holding that monetary damages were available. In the
present case, the principle of Franklin has limited
applicability since, irrespective of the availability of punitive
damages against municipalities, several other monetary
remedies are available to enforce the rights in Title II and
Section 504. Limiting punitive damages will not r ender
those rights meaningless. Moreover, insofar as the rules of
Franklin and City of Newport conflict, the reasonable way to
reconcile them is to give effect to the narrower rule in the
latter. Cf. Morales v. Trans W orld Airlines, Inc., 504 U.S.
374, 384 (1992) (in statutory construction, "the specific
governs the general"). After all, the issue here is not the
general availability of damage remedies, but rather the
specific availability of punitive damages against
municipalities. In these circumstances, City of Newport tells
us to assume that Congress intended to r etain common law
immunity, unless there is a clear expression of
congressional intent to the contrary. See 453 U.S. at 263-
64.

Title II and Section 504 incorporate by r eference the
enforcement scheme found in Title VI of the Civil Rights Act
of 1964. See 42 U.S.C. S 12133 (T itle II incorporates
enforcement scheme in Section 505 of the Rehabilitation
Act); 29 U.S.C. S 794a(a)(2) (Section 504 and 505 of the
Rehabilitation Act adopt the remedies available under Title
VI of the Civil Rights Act of 1964). Therefor e, we may look
for congressional intent in Title II and Section 504, as well
as in Title VI. On their face, however , neither Title II nor

                                31
Section 504 indicate a congressional intent to override
municipal immunity to punitive damages. Likewise, support
for the availability of punitive damages against
municipalities cannot come from Title VI since the general
view is that punitive damages are not available, in any
form, under that statute. Moreno , 99 F.3d at 790 (citing
numerous cases).

Nevertheless, the Does argue that the Rehabilitation Act
Amendments of 1986, Pub. L. No. 99-506, 100 Stat. 1807
(1986), demonstrate Congress' intent to eliminate municipal
immunity from punitive damages in suits under T itle II and
Section 504. Title X, section 1003, of the Rehabilitation Act
Amendments of 1986, entitled "Civil Rights Remedies
Equalization," abrogates the states' Eleventh Amendment
immunity from, among other things, suits under Section
504 of the Rehabilitation Act and Title VI of the Civil Rights
Act of 1964. See 42 U.S.C. S 2000d-7. In particular, the
Civil Rights Remedies Equalization provision states that,
"[i]n a suit against a State for a violation of [these statutes]
. . . remedies (including remedies both at law and in equity)
are available . . . to the same extent as such remedies are
available for such a violation in the suit against any public
or private entity other than a State." 42 U.S.C.S 2000d-
7(a)(2). The Does construe the Equalization pr ovision as a
broad grant of remedies, evidencing Congr ess' intent that
punitive damages should be available against
municipalities. We disagree with the Does' interpretation.
The provision only states that the remedies available
against a state government would be the same as those
already available against an entity other than a state. It
says nothing more about punitive damages.

Another argument suggested by the Does hinges on the
Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.
1071 (1991). That act expressly amended T itle I of the ADA
(employment discrimination) to allow awards of punitive
damages against individuals and private entities, but not
against municipalities and government entities. 42 U.S.C.
S 1981a(b)(1). The act did not amend T itle II. One district
court has reasoned that the amendment of T itle I, without
change to Title II, shows that Congress intended not only to
prohibit punitive damages against municipalities in the

                                32
employment context under Title I, but also to allow punitive
damages against municipalities under Title II. See generally
Purcell, 1998 U.S. Dist. LEXIS 105, at *34-39. We decline to
draw such a broad inference of congr essional intent,
especially where numerous explanations for the lack of
amendment to Title II are possible. Compare, e.g., id. at
*36-38 (lack of amendment to Title II indicates availability
of punitive damages); with Harrelson v. Elmore County, 859
F. Supp. 1465, 1468-69 (M.D. Ala. 1994) (lack of
amendment to Title II "counsels against a statutory
construction that punitive damages are available").

In summary, we find that Title II of the ADA and Section
504 of the Rehabilitation Act lack any indicia of Congress'
intent to override the settled common law immunity of
municipalities from punitive damages. In addition, just as
in the S 1983 context, notions of retribution and deterrence
provide weak support for awarding punitive damages
against dispassionate municipal government entities, rather
than offending officials. See City of Newport, 453 U.S. at
267-70. Awarding such damages also thr eatens the
financial integrity of local governments. Id. at 270. Given
these considerations, we believe that City of Newport should
apply with equal force to suits under T itle II of the ADA and
under Section 504 of the Rehabilitation Act. Consequently,
the Does may not recover punitive damages fr om the
County government entities.

VII.

For all these reasons, we will reverse the District Court's
grant of summary judgment against the Does on their
claims of disability discrimination and remand for further
discovery and factual findings. We will also reverse the
District Court's grant of summary judgment in favor of the
County on the Does' racial discrimination claims and
remand for further proceedings. Lastly, we will affirm the
District Court's conclusions that the CYS officials are
entitled to qualified immunity and that punitive damages
are unavailable against the County entities.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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