Trial begins over Topsham student's 1st Amendment rights

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PORTLAND — A jury is deciding whether a Topsham special education student had a right under the First Amendment to wear a recording device in school.

The trial began Tuesday in U.S. District Court, and is scheduled to conclude next week.

Matthew Pollack and his wife, Jane Quirion, sued School Administrative District 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.

The boy, 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. Since he is unable to communicate what happens during the school day, the couple has wanted him to be able to wear a recording device in school, a request the School Department rejected.

Although the boy “is happy, loves school, and has made some progress toward his educational goals,” according to the order, “(b)y the time (he) began attending Mt. Ararat Middle School … the relationship between his parents and district officials had grown tense.”

Superintendent of Schools Brad Smith said in a statement in 2013 that “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 added. “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 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, since they are public employees working in a public building, Pollack said in 2013.

He explained that he and his wife want the right to be able to have their son record his days, “so we can know what happens to him at school.” He claimed 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 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.

“We have excellent staff, including all those who work with this student,” Smith noted in his statement. “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 in 2014 again made an Americans with Disabilities Act request to outfit his son with a recording device or body camera, but Smith said recording devices on the teen would not impact the educational environment, according to the judge’s order.

SAD 75, in denying the couple’s requests for their son to be equipped with a recording device, “has consistently relied upon its written policy covering employee and student use of cellular telephones and other privately owned electronic devices,” which bars the use of those devices in classes, study halls and assemblies.

The two parties filed competing motions for summary judgment in September 2015, and Torresen partially granted SAD 75’s motion in January 2016, “holding that the Plaintiffs failed to exhaust the Individuals with Disabilities Education Act … administrative process,” she wrote.

The parents appealed that decision three months later.

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

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.