Parents of Topsham special education student sue School Administrative District 75
TOPSHAM — After being rebuked by an independent examiner, the parents of a special education student at Mt. Ararat Middle School are suing School Administrative District 75 for allegedly violating their son's constitutional rights.
Matthew Pollack and his wife, Jane Quirion, filed the lawsuit in U.S. District Court in Portland last month in part as an appeal of a decision in favor of SAD 75 that resulted from a due process hearing last October, Pollack said on Thursday.
Their son is non-verbal and unable to communicate what happens during the school day, Pollack said. The couple want him to be able to wear a recording device in school, a request the School Department rejected.
In what he called the district's "official response to the pending litigation," Superintendent of Schools Brad Smith on Friday issued an email statement that said "almost all of the claims made in the Complaint have already been ruled upon by an independent hearing officer after a lengthy hearing."
"The hearing officer handed the District a decisive ruling in favor of the District on all the parents' claims," Smith said. "This decision is now being appealed by the parents. We remain convinced that the District has provided this student with an excellent educational program tailored to the student's needs and we look forward to the opportunity to make our case in court."
Pollack and his wife, both attorneys, are advocating the case on their own behalf, without an outside lawyer. He said they claim 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, Pollack said, because they are public employees working in a public building.
"We want the right to be able to have (our son) record his days, so we can know what happens to him at school," Pollack said in an email.
He said SAD 75 denied the request on grounds that its teachers and other faculty have a "legitimate expectation of privacy" concerning what they do and say around students.
The reason for the request stemmed from an incident in February 2012, Pollack said.
He said his wife, who was picking their son up at school, watched as the boy ran out of the school building and to their vehicle. He then cried for more than an hour, which Pollack said is uncharacteristic.
The couple was not satisfied with answers they received from staff about why their son had acted that way, so they asked that he be allowed to wear the recording device.
Pollack said his son has not exhibited that kind of behavior after school any other time. "We don't fully trust the school district to tell us everything that happens to him," Pollack said.
He said he and his wife accept that people at school should be advised that their son is wearing the device. He also noted their request applies to classrooms, not to teachers' private offices.
"The law says there's no expectation of privacy in a classroom," Pollack said.
The lawsuit, which seeks an unspecified amount of damages, names SAD 75, Smith and Kelly Allen, an autism consultant for the district, as defendants.
Pollack said in an email Friday that the individuals were included "because the district may or may not be liable for some of their actions. A public employee's actions that infringe on a person's constitutional rights are sometimes deemed to be the actions of the government entity, but are sometimes deemed to be the actions only of the individual employee."
Smith declined to discuss specific allegations.
"This case will be argued and decided in a court of law, and we will not argue our case through the media," his statement said.
He added that "we have excellent staff, including all those who work with this student. I will simply state that we have fundamental disagreement with much of what is claimed. I am confident that a court will come to a similar conclusion as has been reached in previous proceedings."
Pollack also claims Allen searched his son the first day of school, and that Pollack had been told she was looking for a key to the boy's locker.
"We're challenging the legality of that," Pollack said.
Allen said in an email Friday that she has no comment on the matter.
Pollack and Quirion also claim they asked for their son's school records as another means of knowing what happens to him, but were not given all the documents they requested.
The lawsuit also targets a School Board policy prohibiting complaints or allegations against school employees at School Board meetings. Pollack said the policy is unconstitutional.
SAD 75 has until May 31 to respond to the complaint in writing.