When the Environment is Other People: An Essay on Science, Culture, and the Authoritative Allocation of Values
94 Pages Posted: 10 Apr 2010 Last revised: 15 Jul 2018
Date Written: 1994
This essay examines the "significant risk," test under Section 504 of the the Rehabilitation Act of 1973, first laid down by the Supreme Court in School Bd. of Nassau County v. Arline, as that test has been applied in cases in the context of the AIDS epidemic. It begins by looking at the origins and nature of the test, and then reviews two groups of lower court decisions which show how the test has been applied. Thereafter the problem of "significant risk" will be considered from the perspective of the philosophy of science, to see whether that viewpoint has anything to contribute to our understanding of the problem. It will be seen that the concept of risk is far richer than the case law admits,and, most important, that the concept of "significant risk" contains both factual and normative elements – a fact which the case law does not acknowledge. Finally, because the "significant risk" test is freighted with value choices which the courts seem unlikely to resolve, let alone likely to resolve with the authority or promptness that the AIDS epidemic requires, the essay will conclude that courts are not well-suited to make such determinations, without guidance, in the first instance.
Keywords: AIDS, significant risk, Rehabilitation Act of 1973, School Bd. of Nassau County v. Arline
JEL Classification: K4, K32, K40
Suggested Citation: Suggested Citation