U.S. First Circuit - The FindLaw 1st Circuit Court of Appeals News and Information Blog

Non-Verbal Disabled Student Denied Recording Device

In a federal First Circuit appeal that pulls at the heartstrings while also pushing the boundaries of privacy rights, a disabled, non-verbal primary school student has been denied the right to carry around an audio or video recorder while at school.

Although it was the student's parents that were pushing for this, anyone with the littlest shred of empathy would easily understand their plight. The parents of the student steadfastly maintain that their son should be allowed to carry a working audio recorder while at school so that they can know what is going on. Unfortunately for the parents, the school, and the courts, just didn't see it the same way.

ADA and Education

For disabled students, not only does the ADA provide for some limited protections, the IDEA does as well. The Individuals with Disabilities Education Act requires schools to provide individualized education assessments and provide specialized education services as required to meet the needs of disabled students.

In this case, both IDEA and ADA claims were brought. When the parents appealed the school assessment that rejected the use of an audio recorder, a finding was made by a panel that the recorder was not necessary for the student's education. Sadly as the parents found out later, the panel's decision was factually preclusive and prevented them from even having a chance of prevailing on an essential part of their claim.

Although the student and school have not had any incidents that would warrant such close monitoring, the request, from a parent's perspective seems entirely reasonable. However, as the school, administration, and court, saw it, a student carrying around an audio recorder all day could certainly be a distraction.

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