U.S. appeals court hears SAD 75 student's 1st Amendment claim

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TOPSHAM — A U.S. appeals court is expected to take two or three months to render a decision in a dispute over whether a special education student had a right under the First Amendment to wear a recording device in school.

The U.S. Court of Appeals for the First Circuit in Boston heard the case Monday, Jan. 8.

Matt Pollack and his wife, Jane Quirion, sued School Administrative District 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 last June.

Ben Pollack, now 18, has autism and a language disorder, is nonverbal and has “very limited expressive communication skills,” according to an April 28 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 supports 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 at the time.

Each side had 15 minutes Monday to present the case to three appelate judges, Smith said Monday night, noting it usually takes the court two or three months to deliver its decision.

“This case has been argued at several hearings and court proceedings, and rulings have been in favor of the district,” Smith said in a statement. “The concerns we have about the device on the educational environment, and rights of other students’ privacy and the appropriateness of education that has been provided were all presented to the U.S. Court of Appeals today.

“We remain confident in our denial to the request for a recording device for the many reasons put forth in previous legal proceedings,” he added.

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, since they are public employees who work in a public building.

Pollack said in an email Monday night that they appealed last June’s decision “because we have never been able to present the case that the ADA requires the accommodation we are requesting. Although the district claims that we have lost many times, in fact, we have never been able to make the claim that we want to make.

“Instead, because of a common misunderstanding of special ed law that has now been corrected by the U.S. Supreme Court, we have been forced to go through all of these other procedures before being able to present our ADA claim to a court,” Pollack said. “After the federal District Court decided that we couldn’t present our ADA claim because of the findings in these other procedures that we were forced to go through, we decided to appeal.

“In other words, we took this step because we still have not been heard on the claim that we first made five years ago,” Pollack concluded.

The parents’ request stemmed from 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 in 2013, noting he and his wife accept that people at school should be advised 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.