TOPSHAM — The parents of a 13-year-old Mt. Ararat Middle School student who has autism and intellectual disabilities are challenging the school district's decision to block them from sending their son to school with an audio recording device.
The school district is fighting the parents' proposal, saying it's not conducive to providing educational services and poses a threat to the privacy of other students and school staff.
A hearing made public by the parents started last week and is scheduled to continue Monday.
Jane Quirion had notified SAD 75's attorney in March that she intended to send her son, Ben, a seventh-grader who is nonverbal, to school with an audio recorder in an effort to keep him safe and to ensure that school staff were complying with the terms of Ben's individualized educational plan, known as an IEP.
Ben's father, Matthew Pollack, who is a lawyer, said the response from the school's attorney was jolting.
The attorney threatened to bar Ben from school if he were equipped with a live audio recorder, Pollack said.
"They claimed it wasn't discipline. He just wouldn't be allowed in," he said.
The school's attorney said it would have constituted a crime, as well as a violation of school policy, Pollack said. The attorney added that it would have violated the school's collective bargaining agreement with the teaching staff, Pollack said.
He said he and his wife, who also is a lawyer, didn't believe they needed the school's permission, but had notified officials as a courtesy. Maine law allows audio recording as long as one of the parties involved is aware of the recording.
In June, the parents wrote a letter to the school district's special education director and to the principal of Ben's school, seeking permission for him to carry a live audio recorder while in school, citing the Americans with Disabilities Act, Pollack said.
A month later, the parents got an email from the special education director saying that he and the principal would discuss the request and get back to the parents.
They heard nothing from the school until they contacted school officials a couple of days before school started in September, 79 days after the June request, Pollack said.
After notifying school officials that they took their silence as acquiescence, the school responded with the same arguments that their attorney had made in March.
Pollack said his and Quirion's interest in recording their son's school day was triggered by events that left them rattled.
"This wasn't out of nowhere," Pollack said. "We have discovered several instances where they haven't complied with IEP and never told the parents."
Two years ago, Ben went to the cafeteria alone, got lunch and began eating it before his teacher appeared to redirect him to where he was supposed to be, Pollack said. Another student had witnessed Ben's actions.
"That, obviously, was a very concerning incident to us," Pollack said. In Ben's IEP, he was never to be unsupervised in school, Pollack said.
Another time, in February, Quirion went to the school to pick up Ben, as usual. But, unlike every other time she picked him up, Ben went straight to their minivan and burst into tears.
He acted "like he was scared and heartbroken at the same time," Quirion said while testifying last week at the formal hearing at the SAD 75 administration building before a hearing officer.
Ben continued to cry for more than 90 minutes, Quirion said. He had never behaved that way before, she testified.
She said she tried to talk to him, but he was inconsolable.
"I have no idea what happened," she said.
She examined him for signs of physical abuse, but found none.
Because Ben can't verbalize his experiences, his parents felt he needed to carry a recording device that would serve as an accurate record of his school day.
"He can't tell us anything," Pollack said. "For almost any other kid in the school, kids can go home and tell the parents what happened."
Quirion also testified that one of the school's workers, who is also her friend, told her she wasn't allowed to report to Quirion anything that happened at school.
Several times, Pollack said, he and his wife have learned about things that happened at school that violated the terms of Ben's IEP. On none of those occasions did the school notify them and share with them any information about those incidents, Pollack said.
"Our point is that the school doesn't tell us when it doesn't comply," he said. The only way to know whether it has complied is to document Ben's day with a recording device, Pollack said.
He said he understands the positions of other students who might object to being recorded, an argument the school district has only recently made, Pollack said.
They said they would have to notify parents of all students who might have contact with Ben and get their permission to be recorded, an approach that would cause an administrative nightmare, Pollack said he was told. Unlike photos of students, Pollack said there are no laws restricting audio recordings of students.
But Pollack said he does not understand why a teacher or other school staff might object to being recorded — claiming a right to privacy while working with students — if they have done nothing wrong.
"It's to check up on the school to make sure the school's doing what it's supposed to do," he said.
He had approached the school about putting a camera in the classroom where Ben studies with three other students, Pollack said, but the school dismissed the idea.
Pollack said he and his wife weighed the importance of their son's privacy against the public interest before deciding to open their hearing to the public.
"We think this is a very important issue that needs to come out, be discussed and debated," Pollack said.
Ben's parents hope the hearing officer will rule in their favor by finding that under the Individuals with Disabilities Education Act, Ben is allowed to carry an audio recorder in school.
If that were to happen, the school district could relent or appeal the hearing officer's decision in court.
If the hearing officer's ruling goes against the parents, they could file a case in federal court under the Americans with Disabilities Act, Pollack said.
Daniel Nuzzi, a Lewiston attorney who represents SAD 75, commented briefly on the matter Friday, citing statutes and other guidelines that prevent him and the district from breaching confidentiality requirements.
"This is a special education case," he said. "These are typically handled confidentially and privately" despite the parents' decision to open the hearing to the public.
Moreover, Nuzzi noted that the hearing isn't finished and the hearing officer hasn't reached a final ruling.
"This case involves a group of very dedicated educators in this district who have done an outstanding job and provide first quality education, not only for this student, but for all others in the program," he said. "We do respect the parents' right to raise the technical issues that they have about the program, but we believe they are without foundation."
He said the district has complied with the parents' request for educational records and "closely followed federal and state law" by providing the parents with a "substantial volume of records."
But, he said, "with respect to their request for a 'bug' to be placed on their child and run for his entire day at school, from an educational point of view, we do not believe that this is a sound education practice and that having a child equipped with a recording device or 'bug' at school is not conducive to the delivery of educational services by the district," he said.
He also said the district opposes the notion of equipping Ben with a recording device because it would be a violation of privacy of the other students in Ben's classroom and of school staff.
"Those children have rights under the constitution, as well," Patrick Moore, director of Special Services, testified at last week's hearing.
The school district has other concerns about the proposed recording but can't disclose them due to the ongoing hearing and confidential nature at the center of the hearing, he said.