- Associated Press - Sunday, January 7, 2018

BOSTON (AP) - A Maine teen with autism and a rare neurological syndrome that affects his speaking ability cannot talk to his parents about his school day the same way other students can. So his family is fighting for the right for him to carry an audio-recording device to ensure he’s being treated properly when they aren’t watching.

A novel case heading Monday to the 1st U.S. Circuit Court of Appeals in Boston, which hears most New England cases, pits the student’s parents against his southern Maine school district, which says the recording device would infringe on other students’ privacy rights. His parents say they need a glimpse into his day so they can better advocate for him at a school they don’t trust isn’t always telling the whole story.

“Most kids can come home and tell their parents what happened at school or what the teacher had done or not done. He can’t do that,” said Matthew Pollack, the father of the now 18-year-old Ben.

The teen, who is nonverbal, uses a device at school and at home that allows him to answer some questions or request things, but he cannot discuss events from his day, his father said.

The parents argue that laws prohibiting discrimination against people with disabilities require the district to allow him to record his school day. Because their son largely cannot communicate with them, they say he cannot benefit from his education the same way non-disabled students can.

The parents, who are both lawyers, first pushed for the recording device in 2012, after the boy was unusually upset one day. They suspected something happened at school, but got no explanation from administrators, they say. The student’s mother told the district they would start recording his days to “have some semblance of peace that he is safe at school.”

The school told the couple the recorder would violate a ban on students using privately-owned electronic devices. Since then, two administrative hearing officers, a lower court judge and a jury have all rejected the family’s request.

“The plaintiffs have tried a number of legal theories under which to attach a recording device to the child and they have lost at every round and on every theory,” said Daniel Nuzzi, an attorney for Regional School Unit 75, which includes Ben Pollack’s school in Topsham.

Attorneys for the district say teachers and administrators have gone above and beyond to provide the parents with information about the student, who they say loves school. A hearing officer concluded last year there is “simply no demonstrable benefit” to allowing the parents to record his day and that it would actually be “disruptive and detrimental” to his education.

In other states, parents of special education students have secretly placed audio recorders on their children to expose abuse, which have led to firings or settlements. And Texas recently began requiring school districts to install cameras in certain special education classrooms.

But opponents say such actions raise serious privacy concerns.

If parents can assert a right to “send an always-on listening device to school with their children, what would this mean for students who wished to report abuse or neglect at home to a school counselor, or for students with disabilities who are LGBT?” asked Samantha Crane of the Autistic Self Advocacy Network.

Arlene Kanter, director of Syracuse University College of Law’s Disability Law and Policy Program, said she believes the family has a strong case.

The Americans with Disabilities Act requires schools make accommodations unless doing so would pose an undue burden or fundamentally alter their program. The family here is not asking, for example, the school to spend extra money or move him to another class, Kanter said.

“From what I’ve seen, there wasn’t any showing that it was an undue burden,” Kanter said.

A decision in favor of the parents could impact other children in his situation, which Pollack said is part of the reason why he and his wife have been fighting this case for so long.

“It has bothered us that the district’s position has been that we don’t necessarily have a right to know what happens to our son in school unless they decide it’s important for us to know,” Pollack said. “That’s very disturbing.”

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Follow Alanna Durkin Richer @aedurkinricher. Read more of her work here.


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