A Topsham couple is pursuing an unusual First Amendment case against the local school district in order to allow their disabled son to carry a recording device.

Ben Pollack, 17, has autism and a particularly severe and rare neurological syndrome that leaves him largely unable to speak and with a limited ability to process language. He attends special education classes in School Administrative District 75, which covers Bowdoin, Bowdoinham, Harpswell and Topsham.

Ben’s parents say they need to record his experiences at school to be able to answer the question most parents pose to their children every day: What happened at school today?

Ben “can’t say that he had a good day or a bad day,” his parent’s lawyer, Richard O’Meara, told a jury in U.S. District Court in Portland as a trial got underway Tuesday. “This is a First Amendment case that seeks freedom of speech for someone who cannot speak, but who needs to communicate.”

The national American Civil Liberties Union and the ACLU of Maine, both of which are supporting the claim, say they don’t know of any other case that has asserted a First Amendment right to record a school day. The trial is expected to last six days and will be decided by a jury of seven women and one man.

Ben’s parents, Matt Pollack and Jane Quiron, say a recording device will give them insight into the school days of their son, who was 13 when the suit was launched, as well as a better ability to determine how his education is proceeding.

But Daniel Nuzzi, the lawyer representing the school district, said allowing Ben Pollack to carry a recording device would violate the rights and threaten the confidentiality of teachers and other students, whose voices might be picked up in the recordings. He also said that it would violate the district’s contract with its teachers and possibly run afoul of a Maine law that seeks to restrict voyeurism.

“It would chill the interaction between teachers and students,” he said.

Nuzzi said that even Ben’s parents agree he has gotten a good education in the school district. But he also said Ben’s teachers are unanimous in the opinion that introducing a recording device into the relationship between the boy and his teachers could hamper the progress he’s made.

O’Meara argues that the school district allowed a student with a learning disability to record his classes because his disability made it difficult for him to take notes. And, he said, the laptops distributed to middle school students in Maine all have the ability to record conversations or classroom discussions.

The suit has grown out of a testy relationship between the parents and the school district that has gone on for years.

Quiron and Pollack said they have been stymied in their efforts to see the full records on their son and find out more about how Ben’s days at school are spent. The reports they receive on his progress are all “filtered” by school officials, they said.

In one instance, they said, Ben came home with bruises on his forearms. Ben was unable to tell them what had happened, and officials at Mt. Ararat Middle School said they couldn’t determine how he got the bruises, even though Ben has an adult with him at all times during the school day.

Jane Quiron said a teacher at the school accused her of “spying” on members of Ben’s class during a field trip to the library. The district admitted it was wrong, she said, after she produced a receipt from a supermarket showing she had been shopping at the time the class was at the library.

Exchanges with school district officials indicate a level of frustration with Pollack and Quiron, as well. In one letter entered as evidence in the trial, a school district official said a “barrage of accusations” by Ben’s parents have left staff wary of any interaction with them. One teacher complained that criticism by Ben’s parents was defaming her.

The suit seeks a ruling that allows Ben to carry a recording device to school and compels school district officials to release all their records on the boy, as well as punitive and compensatory damages and attorneys’ fees.

The ACLU of Maine has joined the case on the side of the parents, and the national ACLU has sent a lawyer from its Speech, Privacy and Technology Project to sit in on the case.

Edward D. Murphy can be contacted at:

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