For excellent discussions of education, upon which I have generally based my account, see National Commission on Acquired Immune Deficiency Syndrome, America Living With AIDS: Transforming Anger, Fear, and Indifference into Action 18–44 (1991); Francis, & Chin, , “The Prevention of Acquired Immunodeficiency Syndrome in the United States: An Objective Strategy for Medicine, Public Health, Business, and the Community,” 257 JAMA 1357 (1987); Freudenberg, “AIDS Prevention in the United States: Lessons from the First Decade,” 20 Int'l Health Services 590, 597–98 (1990); Chelimsky, E., Educating People at Risk for AIDS, 27 (General Accounting Office testimony to Senate Committee on Governmental Affairs, June 8, 1988); see also Amsel, , “Introducing the Concept ‘Community Prevention,’” in AIDS and Intravenous Drug Use: Future Directions for Community-Based Prevention Research vii (Leukefeld, C., Battjes, R. & Amsel, Z. eds. 1990) [hereinafter AIDS and Intravenous Drug Use]; Citizens Commission on AIDS for New York City and Northern New Jersey, AIDS Prevention and Education: Refraining the Message (1989). The best review of federal efforts to date is Schietinger, H., Good Intentions: A Report on Federal HIV Prevention Programs (1991) (available from AIDS Action Council, 2033 M. Street N.W., Suite 802, Washington, D.C. 20036).Google Scholar

See, e.g., Bell, et al., “Evaluating the Outcomes of AIDS Education,” 2 AIDS Educ. & Prevention 82 (1990); Bush, & Boller, , “Rethinking the Role of Television Advertising during Health Crisis: A Rhetorical Analysis of the Federal AIDS Campaigns”, 20 J. Advertising 28 (1991); Fullilove, et al., “Black Women and AIDS Prevention: A View Towards Understanding the Gender Rules”, 27 J. Sex Res. 47, 57 (1990); Friedman, et al., “Health Education for IV Drug Users,” in AIDS and IV Drug Abusers 199, 211–13 (Galea, R., Lewis, B. & Baker, L. eds. 1988); see also Neaigus, et al., “Effects of Outreach Intervention on Risk Reduction Among Intravenous Drug Users,” 2 AIDS Educ. & Prevention 255 (1990) (describing intravenous drug users' receptivity to educational efforts facilitated by ex-users). Educators must reach people where they live, work, have sex or use drugs. See Bayer, R., Private Acts, Social Consequences: AIDS and the Politics of Public Health 101–136 (1989); Ginzburg, et al., “Health Education and Knowledge Assessment of HIV Diseases among Intravenous Drug Users,” in AIDS and IV Drug Abusers, note 2 above at 185, 193; Jackson, et al., “The Role of Drug Abuse Treatment Programs in AIDS Prevention and Education Programs for Intravenous Drug Users: The New Jersey Experience,” in AIDS and Intravenous Drug Use, note 1 above, at 167, 178–80; “This Court Offers Condoms with Prostitutes' Sentences,” N.Y. Times, Mar. 10, 1991, at B1.Google Scholar

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See Schinke, et al., “African-American and Hispanic-American Adolescents, HIV Infection, and Preventive Education,” 2 AIDS Educ. & Prevention 305 (1990); Franzini, et al., “Promoting AIDS Risk Reduction Via Behavioral Training,” in 2 AIDS Educ. & Prevention 313 (1990); Fullilove, et al., note 2 above, at 60–61.Google Scholar

See, e.g., Gostin, , “Drug Dependency and HIV,” in AIDS Law Today: A New Guide for the Public (Burris, S., Dalton, H. & Miller, J. eds. 1993); Selwyn, et al., “Knowledge About AIDS and High Risk Behavior Among Intravenous Drug Users in New York City,” in AIDS and IV Drug Abusers, note 2 above, at 215, 224–26.Google Scholar

See Serrano, , “The Puerto Rican Intravenous Drug User,” in AIDS and Intravenous Drug Use, note 1 above, at 24, 29.Google Scholar

See, e.g., Fox, , “Chronic Disease and Disadvantage: The New Politics of HIV Infection,” 15 J. Health Pol'y, Pol. & Law 341, 345 (1990); The Health Status of the United States, Federal News Service, Apr. 8, 1991 [hereinafter Health, United States]; Chu, et al., “Impact of the Human Immunodeficiency Virus Epidemic on Mortality in Women of Reproductive Age, United States,” 264 JAMA 225 (1990).Google Scholar

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For an eloquent account of the issue, see Dalton, , “AIDS in Blackface,” 118 Daedalus 3219 (1989).Google Scholar

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See Evaluating AIDS Prevention Programs 51–52, 83–86, 102–03 (Coyle, S., Boruch, R. & Turner, C. expanded ed. 1991); Roper, note 13 above, at 113–15; H. Schietinger, note 1 above, pt. 2 at 21 & 10–14 figs. 8–9, 3 fig. 1, pt. 5 at 5; see also “Publicly Funded HIV Counseling and Testing—United States, 1985–1989,” 39 MMWR 137, 140 (1990)(“Of all HIV prevention efforts, counseling and testing activities receive the highest level of resource support from the CDC.”).Google Scholar

See Publicly Funded HIV Counseling and Testing—United States, 1985–1989, note 15 above; Higgins, et al., “Evidence for the Effects of HIV Antibody Counseling and Testing on Risk Behaviors,” 166 JAMA 2419 (1991); Schietinger, H., note 1 above, pt. 2 at 25. The number of tests has been increasing sharply. In 1991 alone, publicly funded sites performed over 2 million tests. “Publicly Funded HIV Counseling and Testing—United States, 1991,” 168 JAMA 1519 (1992).Google Scholar

See Schietinger, H., note 1 above, at 21–24; Higgins, et al., note 16 above; Roper, note 13 above; Zenilman, et al., “Effect of Posttest Counseling on STD Incidence,” 267 JAMA 843 (1992); Magura, et al., “Correlates of Participation in AIDS Education and HIV Antibody Testing by Methadone Patients,” 104 Public Health Reports 231 (1989).Google Scholar

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Roper, , note 13 above, at 112; see Bush, & Boller, , supra note 2; Schietinger, H., note 1 above, pt. 2 at 16–19; see also “HIV-Infection Prevention Messages for Injecting Drug Users: Sources of Information and Use of Mass Media—Baltimore,” 1989, 40 MMWR 465, 466 (1991) (television was primary source of information about HIV for almost half of surveyed drug users).Google Scholar

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See HIV-Infection Prevention Messages for Injecting Drug Users: Sources of Information and Use of Mass Media—Baltimore, 1989, note 21 above, at 467; Schietinger, H., note 1 above, pt. 2 at 18.Google Scholar

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See generally Freudenberg, note 1 above; Blendon, , Donelan, & Knox, , note 22 above; Kagay, , “Poll Finds AIDS Causes Single People to Alter Behavior,” N.Y. Times, June 18, 1991, at C3.Google Scholar

See, e.g., Centers for Disease Control, “HIV/AIDS Knowledge and Awareness of Testing and Treatment—Behavioral Risk Factor Surveillance,” 267 JAMA 27 (1992); McKenna, C., Young, M., Knowledge, Attitude and Behavior Concerning AIDS 2–3 (1990) (available from Pennsylvania State Data Center, Institute of State and Regional Affairs, Penn State Harrisburg, Middletown, PA 17057); McNally, et al., AIDS Related Knowledge and Behavior Among Women 15–44 Years of Age: United States, 1988, (1991) (available from National Center for Health Statistics, Hyattsville, Md.); Selwyn, et al., note 7 above, at 215, 219–20.Google Scholar

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Kolata, , “Drop in Casual Sex Tied to AIDS Peril,” N.Y. Times, May 15, 1991, at A22; see Kagay, , note 24 above; McNally, et al., note 25 above.Google Scholar

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See Byrd, , “Low Rate of Condom Use Found,” Philadelphia Inquirer, Dec. 13, 1991, at 10A (survey of 6,104 sex partners of IV drug users found that 58 percent of men and 63 percent of women had not used condoms in previous six months); see also Banks, , “Reproduction and Parenting,” in AIDS Law Today: A New Guide for the Public (Burris, S., Dalton, H. & Miller, J. eds. 1993).Google Scholar

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National Commission on Acquired Immune Deficiency Syndrome, note 1 above, at 38–9; Schietinger, H., note 1 above, pt. 5 at 1–5.Google Scholar

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See, e.g., Fla. Stat. Ann. § 233.0672 (West Supp. 1991); Ill. Ann. Stat. ch 22, para. 27–9.1 (Smith-Hurd 1992); Ind. Code Ann. § 20–8.1-11-2 (Supp. 1991); La. Rev. Stat. Ann. § 17:281(3) (West Supp. 1992); Okla. Sta. Ann. tit. 70 § 11–103.3 (West 1989); Utah Code Ann. § 53A-13-101 (1989); see also Nev. Rev. Stat. Ann. § 389.065 (Michie 1991) (requiring written consent of parent or guardian as condition of child's participation); Wash. Rev. Code Ann. § 28A.230.070 (West Supp. 1991) (parents and guardians must be notified, provided with opportunity to review materials). See generally “Guidelines for Effective School Health Education to Prevent the Spread of AIDS,” 37 MMWR S-2 (1988); Gostin, , “Public Health Strategics for Confronting AIDS,” 261 JAMA 1621 (1989).Google Scholar

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“N.Y.C. Transit Auth. Agrees to Strengthen Employee HIV Protection,” AIDS Litig. Rep. (Andrews) at 4945 (1990) (settlement of New York v. New York City Transit Auth., No. 41627/90) (N.Y. Supreme Ct. July 19, 1990)) (applying N.Y. Labor Law §§875 et. seq.). See generally Rothstein, M., Occupational Safety and Health Law 225–30 (3d ed. 1990).Google Scholar

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See Ware v. Valley Stream High School Dist., 75 N.Y.2d 114, 551 N.Y.S.2d 167 (1989). In Ware, New York's highest court reinstated a claim, rejected by two lower courts, that any HIV education violated the religious freedom of a separatist Christian community called the Plymouth Brethren. Although the U.S. Supreme Court has in the past shown sensitivity to parents' rights, and to religious communities whose traditions place them at odds with rules inoffensive to the general public, it has recently ruled that even a strongly held religious belief does not entitle one to an exemption from a generally applicable law whose purpose is not to interfere with religion. Compare Wisconsin v. Yoder, 406 U.S. 205 (1972) with Employment Div. v. Smith, 110 S. Ct. 1595, 1598–1601 & n.1 (1990). On the authority of school boards to prescribe the curriculum, see generally Board of Educ. v. Pico, 457 U.S. 853 (1981); Annotation, , Validity of Sex Education Programs in Public Schools, 82 A.L.R.3d 579 (1978 & Supp. 1990); Annotation, , Validity of State Regulation of Curriculum and Instruction in Private and Parochial Schools, 18 A.L.R.4th 649 (1982 & Supp. 1990).Google Scholar

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Pub. L. No. 100–436, 102 Stat. 1680 (1988) (emphasis added); see Institute of Medicine, National Academy of Sciences, Confronting AIDS: Update 1988, at 7 (“Explicit information on the risks associated with gay sex and the way those risks can be minimized does not promote or encourage' homosexual activities. Its sole function is to help homosexuals avoid an illness that endangers their lives and those of their sexual partners and costs the nation billions of dollars.”).Google Scholar

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1986 Guidelines, note 46 above; see GMHC I, 733 F. Supp. at 624.Google Scholar

Over the years, panels compiled a record of arbitrary denials of approval. A North Carolina panel rejected a poster that showed two men holding condoms and draped in an American flag over the motto “Life, Liberty and the Pursuit of Happiness.” The CDC approved a major campaign by Black and White Men Together, including posters advertising “Hot, Horny, and Healthy Playshops.” A San Francisco review panel approved as well a poster showing black and white men sitting together. The same materials were disapproved by panels in Los Angeles and the District of Columbia. Worse than the outright denial was the chilling effect of the rules. Educators, with little time or money to waste, learned to censor themselves to avoid disapproval by review panels. Some educators, unable to reconcile the needs of effective education with the demands of the CDC, simply gave up applying for federal money altogether. GMHC II, slip op. at 44 n.39, 56–57, 59–62.Google Scholar

GMHC I, 733 F. Supp. at 627.Google Scholar

GMHC II, slip op. at 32; see Miller v. California, 415 US. 15, 24–25 (1973).Google Scholar

See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). See generally Amsterdam, , “The Void-for-Vagueness Doctrine in the Supreme Court,” 109 U. Pa. L. Rev. 67 (1960).Google Scholar

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Perry v. Sindermann, 408 U.S. 593 (1972); Sherbert v. Verner, 374 U.S. 398 (1963); Speiser v. Randall, 357 U.S. 513 (1958); Bella Lewitzky Dance Co. v. Frohnmayer, 754 F. Supp 774, 785 (C.D. Cal. 1991) (government may not attach unconstitutional conditions to funding). But see Regan v. Taxation With Representation, 461 U.S. 540 (1983); Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977) (limits on use of subsidy do not infringe rights). See generally Tribe, L., American Constitutional Law § 11–5, at 781–84 (2d ed. 1988); Epstein, , “Unconstitutional Conditions, State Power and the Limits of Consent,” 102 Harv. L. Rev. 4 (1988); Fiss, , “State Activism and State Censorship,” 100 Yale L.J. 2087 (1991); Sullivan, , “Unconstitutional Conditions,” 102 Harv. L. Rev. 1413 (1989).Google Scholar

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See Miami Herald v. Tornillo, 418 U.S. 241 (1974).Google Scholar

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The Supreme Court's “forum doctrine” draws a distinction, strained and much criticized, between public property opened up by tradition or deliberate designation for free-speech activities, and public property reserved for the particular proprietary purposes of the government. In “traditional public forums”—places like parks and sidewalks that the Court believes have always been sites of public debate—the government has little authority to regulate speech. The government is also barred from censoring speakers in places it has “designated” to he public forums—like university classrooms and municipal auditoriums—although the government can place neutral limits on the forms of expression that the forum will accommodate. Finally, in “non-public forums,” like military bases, the government can impose whatever limits it likes so long as they strike a court as “reasonable.” See Lehman v. Shaker Heights, 418 U.S. 298, 303 (1974); Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U.S. 37 (1983); U.S. v. Kokinda, 110 S. Ct. 3115, 3133 (1990) (Brennan, J., dissenting); Greer v. Spock, 424 U.S. 828 (1976). See generally Tribe, L., note 57 above, § 12–24, at 993; Post, , “Between Governance and Management: The History and Theory of the Public Forum,” 34 U.C.L.A. L. Rev. 1713 (1987).Google Scholar

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Moreover, later that year the CTA ran an even more controversial poster portraying three kissing couples of various genders and races, over the slogan “Kissing Doesn't Kill; Greed and Indifference Do.” Washburn, , “Anti-AIDS Poster Gets CTA's OK,” Chicago Tribune, June 5, 1990, at Chicagoland 1; Pearson, , Wagner, , “Senate Votes to Ban AIDS Posters from CTA,” Chicago Tribune, June 13, 1990, at News 1.Google Scholar

In one instance, however, a group of Philadelphia parents unsuccessfully went to court to stop their school board from giving condoms to high school students on request, arguing among other things that condom distribution was an incitement to sodomy and a burden on parental rights. See Parents United for Better Schools v. School Dist. of Phila., Jan. Term 1992, No. 1389 (Common Pleas Phila. County filed Jan. 13, 1992); see also “Los Angeles to Distribute Condoms in High Schools,” N.Y. Times, Jan. 23, 1992, at A17. In one even more bizarre episode of legal misjudgment, the freeholders of Burlington County, New Jersey voted to stop city health workers from providing free condoms along with HIV educational material, based on the exceedingly remote possibility of a products liability lawsuit by a person infected because of a defective condom. Campbell, , “Condom Giveaway Halted,” Philadelphia Inquirer, Apr. 11, 1991, at 4B.Google Scholar

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See Gostin, , note 7 above, at 150 n.141; Williams, , “We'd All Be Dead Without You'—Needle Swap Challenged,” Seattle Times, May 6, 1991, at B3; Conn. Gen. Stat. § 19a-124 (1990); 1990 Hi. Act 280 § 2(b). Provisions allowing state health authorities to exempt certain items from drug paraphernalia laws are not unusual, and may be the most expeditious vehicle for clarifying the legal status of needle-exchange programs. See, e.g., 35 Pa. Stat. Ann. § 780–105 (Purdon, 1977).Google Scholar

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