another teenager roger white was barred from going to class because he was hiv positive. ryan white showed you could be hiv positive and not pose a threat to other students. the question tonight, have we not learned anything since then? three years ago congress suspended the americans with disabilities act to bar discrimination based on hiv status and the timing is remarkable and to many so is the setting where this decision was made. and pennsylvania's milton hershey school, which was established 102 years ago by the chocolate company founder to provide education and opportunity for disadvantaged children. 1,800 kids now live and study there. they get room and board, clothing, medical, dental care, some of the best faculty and education opportunities available and they don't pay a penny for it. by all accounts a remarkable, extraordinary school. according to the admission standards students come from low-income, limited resources and social need. the school admits boys and girls of any race, color, religion, nationality or ethnic origin. but now they decided not to add admit a child who has hiv. he is a student athlete and taking drugs to keep the virus in check. here's what the student told philadelphia station wncu. >> i feel that no other teenager should go through this being denied just because they have hiv. >> this week the aids law project of pennsylvania filed suit on his behalf claiming the hershey school violated the americans with disabilities act. in earlier court papers, school lawyers filed for an exemption because of the possibility, the possibility he might have sex with another student. "the school knows that no child can be assumed to always make responsible decisions, which affect the well being of others." it goes on, "the school believes it has made the correct assessment of the risk of transmission of hiv in the setting and has not violated the law because this student would pose a direct threat to the health and safety of other students." that presums an awful lot. it presums that a 13-year-old would have sex and that presums that that sex is unprotected and even though the drugs that he is taking makes that more than 95% impossible. in a moment, our own experts weigh in. first on what the hershey school has to say because whatever you make of their decision, they're being straight forward about defending it. joining me now is connie mcnamara. why has your school decide to deny permission to this hiv positive young man. >> first, i would like you and your viewers to understand what the hershey school is. we are a home-like residential school. children live in student homes with 10 to 12 other students. they're here 24 hours a day throughout the calendar year. pre-k through 12th grade and students that have a diverse population and we're a home for these students. we're a home when they're with us and we have a parental responsibility. >> so, why can't an hiv positive 13-year-old live in the home, go to this school? >> because we had to balance the interests. we looked at everything and we believe that we made the right decision. we believe that in this case, because this student has an active, chronic, communicable disease, it poses a direct threat to the health and safety of the other 2,000 students we serve. >> how? >> we have to balance the interest? >> how? >> all of us are there because we want to help children. >> how is it a direct threat? >> there are a number of issues. a number of issues but the key issue for us comes down to sexual activity. we know that teenagers nationwide are significant number of sexually active. our students are no different than any other teenagers. and on our campus, in our unique, controlled environment, they are, if one of our students is engaging in sexual activity, the odds are it's with another one of our students. >> under the law, under the americans with disabilities act you cannot discriminate with anyone with hiv. >> we believe we are following the law. we know that the law sets a high standard and we've looked at this and we believe that this rises to the level of a direct threat. but we acknowledge this is a difficult decision and we are very happy that the court will be deciding on this. >> in a legal document, you have written, "the school has made an individualized assessment as required by the ada, the americans with disabilities act and implementing regulations and determined that john doe would pose a direct threat. i want to review from a question and answer document put out by the justice department, by their civil rights division to inform people with the americans with disabilities act. there's a question, "can a public accommodation exclude a person with hiv/aids because that person allegedly poses a direct threat to the health and safety of others? in almost every instance, the answer to this question is no. persons with hiv/aids will rarely, if ever, pose a direct threat in the public. given that, how can you pose there is still a direct threat? >> we are a very unique institution. >> there are hiv children going to schools across the country in boarding schools across the country and living in homes across the country with brothers and sisters. are you saying that hiv-positive children shouldn't be allowed to live in homes with other kids and shouldn't be allowed to date? >> what we're saying is that in our environment, where we have responsibility. not for just this one child, but for nearly 2,000 other children. that once we made this, once we did this analysis, we believe that it does rise to that level. and we believe we're -- >> you're saying, but you're saying, you're saying hiv positive people. what you're saying hiv positive people shouldn't date and live in a home. you shouldn't be -- >> that's not what we're saying. >> uncomfortable having an hiv child in one of your group homes. you're just not comfortable having them in a group home because they possibly may date and possibly may have sex and possibly may have sex and transmit the virus, even though this child is on medication. i assume you know that under medication now, the chance of sexual transmission, even if the child had unprotected sex, is reduced by 96% to 97% with current medication. so, you're talking about a theoretical, theoretical possibility. >> we're also talking about children. and no child can be expected to always use the best judgment and do the best things to protect the child or other people. >> what medical evidence was your decision based on? >> we did a thorough review. we had the admissions committee and our senior administration along with our medical staff review the case. >> so, you had a doctor or medical professional consulting on this? >> yes. >> and they advised you that there was a risk of having an hiv positive child in the school? >> i wasn't in those discussions, anderson, but i can tell you that the decision at the end of the day was that in balancing the risks, we had to think about those other 2,000 students in our home. >> i mean, i guess i just don't understand, what are you telling hiv positive people, young people and adults about dating, about their own responsibility, about their ability to be in a generalized community? i mean, it seems to be saying that there's this risk that all hiv positive kids are a risk because they might date somebody. >> no, what we're talking about is this individual case in our individual unique environment. and we are saying that we have to balance the interests of this one child with the health and safety of the 2,000 children already in our home. and at the end of the day, we believe this was the best decision. but we, we struggled with it and we are happy to have the court weigh in on it because we think this is a novel area of the law. >> we appreciate you joining us, thank you. >> thank you. i think this is a very important case. we'll talk about it more. up next, senior analyst jeffrey toobin and talk to dr. kimberly manning weighing in on whether the legal or medical claims you just heard stand up to the facts. let us know what you think, facebook, twitter, let me know what you think on twitter. just ahead tonight, raw politics, also. herman cain is about to make a big announcement after a week of reassessing his campaign. the latest on that, newt gingrich's rise and mitt romney's rough week. he's clean cut, wholesome and a serial killer. the youngest killer says authorities. we'll see if he was caught. crime and punishment, tonight. 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[ male announcer ] we are insurance. ♪ we are farmers ♪ bum, ba-da-bum, bum, bum, bum ♪ we're talking about the decision to keep a teenager out of the miltden hershey school because he's hiv positive. alleging the school is violating the americans with disabilities act. now, a moment ago you heard a school spokeswoman say that circumstances in this case are unique. that this boy, who by the way is 13 years old and taking antiviral drugs, would pose a direct threat to other students basically because this child might one day down the road at this school have sex. let's dig deeper now into legal and medical angles. jeffrey toobin and dr. kimberly. jeff, i got to say. i'm stunned by this. just on a legal, i mean, is this legal? >> you know, the hershey school is a famous place. they have done amazing work for decades, which makes their position even worse in this case because people look to this school as a model. you know, usually, in legal arguments, there is sort of arguments on both sides. i don't even understand the school's argument here. the americans with disabilities act was specifically amended to say that you can't discriminate on someone on the basis of hiv status. so, this seems to be a completely categorical violation of the law. >> there's this direct threat loophole. you can say there's a direct threat and justify it, then you can get away with it. but they haven't really described what the direct threat is. >> that he'll have sex with other students. as far as i can tell, you know, 24 years after ryan white, when we learned that people with hiv are not contaminating other people around them, except through blood or sexual conduct. the idea that that risk is enough to keep a kid out of school seems completely perposturous to me. >> his risk of transmission is dropped 96%, even if the sex is unprotected. from a medical and scientific perspective, is this school's decision to deny enrollment to the kid justified in any way? >> it's not justified. i'll say that first. the only good thing about it, it opens the eyes of medical professionals of where some of the public still is in terms of fear. just how much fear still exists. i mean, we just need to point out. this was a decision that was rooted in fear, not because of public health concern. if this was truly for public health purposes, they would have sought the counsel of the appropriate medical professionals of the compelling data that those who are taking antiviral therapy if they have intercourse, the chances of getting hiv is minimal in those instances. >> they claim they did have medical advice and consulted medical advice. jeff, do you think this is more about them not wanting to have other parents upset at the school somehow if the word leaked out, although, it wasn't that this child was going to be known as being the hiv positive child at the school or -- >> that's what they're saying. they're saying this is to protect the other kids and presumably the parents of the other kids, if they have parents. that's one of the amazing things about the hershey school. they often take kids who are orphans. it's really a fantastic place. but, i mean, the idea that this would be protecting these kids, i think all it does is send them a terrible message about how people with disabilities should be treated. >> i also don't understand then what the, if the argument is that hiv positive child, that it's not safe for them to be in a school where there's also a residential setting, then why, if you use that logic, then it's not safe for a child to be in a home where there's other kids or it's not safe for them to be dating at all and then why allow a kid to date? >> right. that's the thing. the point that the woman from the school was making was that, you know, the risk of sexual contact is something that we can't tolerate. well, i mean, 13 year olds and high school kids can have sex in any, regardless of where they go to school. it has relatively little to do with where they go to school. so, the idea that this, by keeping him out of school will somehow protect the public or even protect their students just seems, logically, and factually, not supported. >> i think, dr. manning, what some people think, too, hiv in the united states is not a death sentence. >> no, it is not. >> this is a long-term chronic condition like diabetes or that with medication, you can live a long and healthy life. this seems to be their logic seems to be rooted in, you know, 20 years ago. >> in fear. like we said, you know, you cannot combat fear with logic. that's what we're trying to do. trying to provide them some logic. but, really, they're afraid. you know, i'm a parent, too. as a parent, if this were my own child and i knew that my child's life expectancy could be well into adulthood and they would have many opportunities to be gainfully employed in a productive part of society, i would want them to have every single opportunity, which means that this is really, really unfortunate that this kind of fear still exists and we're very stunned, i think, medical doctors and those i talk to about this that someone actually, publicly, would admit that they're not admitting someone to school because they're hiv positive. that's really disturbing. >> that's what occurred to me. usually when we have discrimination in our society, people find a pretext. they say, well, they don't qualify for a lot of reasons. >> a lot of hiv discrimination cases, look, it's rare you have somebody saying it's because the person has hiv we're not going to do this. >> i have to give them a perverse kind of credit for say being honest and saying this kid is find except for his hiv status. i'm a parent, too. of course, if my kid was sick, i would want my kid to be in a great school like hershey. i thought my kids were the other kids. i wouldn't feel threatened. i wouldn't feel like their health was in danger. i would feel like this is the kind of society you want to live in where kids who have problems, you know -- >> dr. manning, also aren't there plenty of communicable diseases. i mean, herpes is widespread, various forms of herpes are widespread among adult populations and teenage populations and i doubt this school would stop somebody who has herpes from teaching at the school. >> and that points to the public stigma still attached to hiv and that people still have the mindset of the hiv of the mid-'80s of people dying immediately shortly after getting it. >> i just think this is a really important study and case, not just for this young man and his mom and his family, but just to kind of open people's eyes abou hiv in this country and the reality of it. >> i have to say, i was surprised by this case. not because it was the hershey school which is a very distinguished place but people still have these kind of fears so many years after the epidemic. >> any chance this holds up legally? >> i usually don't like to give categorical predictions, but no way a court is going to keep this kid out of this school and i think the hershey school ought to wake up, let the kid in, welcome him and not be further embarrassed because i think it's pretty embarrassing, as it is. >> jeff toobin, thank you very much. dr. kimberly manning, thank you. we'll continue to follow this. we'll continue to follow this closely in the day aahead. herman cain reassessing his campaign after allegations he had a 13-year affair. newt gingrich under fire for what he said about disadvantaged kids. we'll talk to gop strategist rich galand. he doesn't look like a serial killer, but that's what police say he is. the youngest serial killer in history. ♪ [ male announcer ] every day, thousands of people are choosing advil. here's one story. my name is lacey calvert and i train professional athletes with yoga. if i have any soreness, i'm not going to be able to do my job. but once i take advil, i'm able to finish my day and finish out strong. then when i do try other things, i always find myself going back to advil. it really works! [ laughs ] [ male announcer ] make the switch. take action. take advil. and if pain keeps you up, sleep better with advil pm. it's real milk full of calcium and vitamin d. and tastes simply delicious. for those of us with lactose intolerance... lactaid® milk. the original 100% lactose-free milk. politics tonight. plenty of it. by this time tomorrow, herman cain could be out of the presidential race. one claiming harassment, one claiming an affair. he has been reviewing his situation all week and today he suggested a decision is near. >> tomorrow in atlanta i will be making an announcement. but nobody will get me to make that prematurely. >> that's all he's saying, but not all there is to say politically. speaking volumes about his support there at 8%. a lilt more than a month ago, 23%. separately, perhaps strangely given the circumstances his campaign launched a new campaign, newt gingrich has joined controversy with his opposition to child labor laws. two weeks ago he called them "truly stupid" and suggest that children do the jobs of schoo