Jury sides with SAD 75 in trial over student's 1st Amendment rights

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TOPSHAM — A federal jury ruled Monday in favor of School Administrative District 75 in a dispute over whether a special education student had a right under the First Amendment to wear a recording device in school.

The trial began June 6 in U.S. District Court in Portland.

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

“We are considering our options at this point,” Pollack said in an email Tuesday. Those options include filing motions in U.S. District Court to ask the court to enter a judgment, despite the jury verdict, or to reconsider the judgment.

The case may also be appealed to the U.S. Court of Appeals for the First Circuit in Boston.

The couple’s son, now 18, has autism and a language disorder, is nonverbal and has “very limited expressive communication skills,” according an April 28 order by U.S. Chief District Judge Nancy Torresen. Because he is unable to communicate what happens during the school day, his parents have wanted him to be able to wear a recording device in school, a request the School Department rejected.

The verdict backs a SAD 75 prohibition on students wearing recording devices, and marks “a significant decision for students and teachers in our district, state and country,” Superintendent Brad Smith said in a statement Tuesday.

“I appreciate the tireless dedication of our teachers, administrators and support staff, who despite years of litigation, have continued to provide a first-class education to the student in this matter, and to all students in our district,” Smith added. “One of our responsibilities as educators is to protect the rights of all students under our care. Another obligation is to maintain a productive and positive learning environment. That is what has taken place in this case.”

The superintendent also noted that SAD’s special education staff “believed very strongly that the use of a recording device throughout the day on one child would have negatively impacted his education as well as the education of other students.”

Pollack and his wife have claimed their son has the right under the Americans with Disabilities Act to wear a recorder, and a First Amendment right to record government officials in a public place.

The First Amendment right applies to recording teachers, since they are public employees working in a public building, Pollack said in 2013.

He and his wife have wanted the right to be able to have their son record his days, he explained, “so we can know what happens to him at school.” He said SAD 75 denied that request on grounds that its teachers and other faculty have a “legitimate expectation of privacy” concerning what they do and say around students.

The parents’ request was triggered by an incident in February 2012, when Quirion, who was picking her son up at school, watched him run out of the building and to their vehicle, Pollack said. He then cried for more than an hour, which Pollack said was uncharacteristic.

Not satisfied with answers they received from staff about why their son had acted that way, the couple asked that he be allowed to wear the recording device.

“We don’t fully trust the school district to tell us everything that happens to him,” Pollack said, noting that he and his wife accept that people at school should be advised that their son is wearing the device, and that their request applies to classrooms, not to teachers’ private offices.

“The law says there’s no expectation of privacy in a classroom,” Pollack said.

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.