Appeals court: Topsham student has no right to record school day

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TOPSHAM — A U.S. appeals court ruled Monday that a special education student does not have a right under the First Amendment to wear a recording device in school.

The Boston-based U.S. Court of Appeals for the First Circuit, which first heard the case Jan. 8, ruled in favor of School Administrative District 75 and affirmed a U.S. District Court judgment that the device, requested by the student’s parents, “provided no educational or other benefit for the student,” School Administrative District 75 Superintendent of Schools Brad Smith said Tuesday.

The courts agreed with an earlier decision by a Maine Department of Education hearing officer that the student “has been receiving a free and appropriate public education … and that the recording device actually would be disruptive and detrimental to the education process,” which “precluded the plaintiffs’ claim that the device was necessary under the Americans with Disabilities Act,” Smith said.

Matt Pollack and his wife, Jane Quirion, sued SAD 75 in March 2013 for allegedly violating the constitutional rights of their son, Ben Pollack. The suit was filed in part as an appeal of a decision in favor of SAD 75 that resulted from a due process hearing the prior October.

A U.S. District Court jury in Portland ruled in the school district’s favor in June 2017.

Ben Pollack, now 18, has autism and a language disorder, is nonverbal and has “very limited expressive communication skills,” according to an April 2017 order by U.S. Chief District Judge Nancy Torresen. Since he is unable to communicate about what happens during the school day, his parents have wanted him to be able to wear a recording device in school, which the School Department rejected.

Last June’s verdict supported a SAD 75 prohibition on students wearing recording devices, and marked “a significant decision for students and teachers in our district, state and country,” Smith said at the time.

The superintendent on Tuesday said the district is “pleased with this outcome,” adding that staff has “done a commendable job of meeting student needs, and the ruling again validates that appropriate education has been provided. I am proud of our support staff, teachers and administrators who have been involved over the past several years.”

The parents have a right to appeal the ruling to the U.S. Supreme Court, but are choosing not to do so.

“We are very disappointed, but this really is the end of the road,” Matt Pollack said Tuesday. “The U.S. Supreme Court would be the Court that could review it, but it would take almost a year, and would be useless to Ben, who ages out of the system next spring.”

Pollack and his wife, both attorneys, have claimed their son has the right under the Americans with Disabilities Act to wear a recorder, as well as a First Amendment right to record government officials in a public place. They have said the First Amendment right applies to recording teachers because they are public employees working in a public building.

Alex Lear can be reached at 781-3661 ext. 113 or alear@theforecaster.net. Follow him on Twitter: @learics.

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A Maine native and Colby College graduate, Alex has been covering coastal communities since 2001, and currently handles Bath, Topsham, Cumberland, and North Yarmouth. He and his wife, Lauren, live in the Portland area, and Alex recently released his third album of original music.