Editors Note: The names of the parents and child involved have been removed to protect their privacy.
After the parents of an Ardmore student recently filed a lawsuit in federal court, some light was finally shed on an agenda item the Ardmore City Schools Board of Education has been discussing in executive sessions for quite some time.
The board would list the student involved in the situation as “Student A” on agendas, at which time updates would be given to the board, said Superintendent Sonny Bates.
The agenda from last week’s special meeting states the parents of “Student A” had presented video and audio evidence in a due process hearing and the board voted to approve filing a lawsuit to determine the admissibility of the recordings.
The district’s lawsuit had not been filed as of Monday. The school district’s attorney, Bo Rainey of Tulsa, said it will be filed in Carter County District Court either today or Wednesday.
The parents, who filed a lawsuit last week in United States District Court for the Eastern District of Oklahoma, outlined what they allegedly found on the recordings when their child would come home from school.
Their child, listed in the federal lawsuit as “severely disabled,” is primarily non-verbal and cannot communicate with words. In order to communicate, he uses an Augmentative and Alternative Communication Device, otherwise referred to as a “Talker” in the suit. The “Talker” is capable of video and audio recordings.
According to the lawsuit, on some of the recordings, school staff are heard calling the child, a “bastard,” stating they do not want to work with him and he has driven off a number of teachers. Additionally, the staff mocks the child’s disability openly among themselves, the document says.
According to the lawsuit, the recordings also document how the child was taken directly to the “sensory room” at the elementary school, where he stayed almost all day with two paraprofessionals, being isolated from the student’s disabled and typically-developed peers while the student was at school.
The impact of that social isolation, the lawsuit states, was severe and significant on the child’s social and emotional development.
The incident that spurred the parents to record their child’s school day was obtaining the school’s file on the child after becoming increasingly concerned about the school environment and the effect it had on the child, the lawsuit states.
When they received the child’s school file for the first time, they learned Ardmore City Schools personnel had “secluded (the child) in January of 2013 by locking the student in a closet,” the lawsuit states.
While seclusion techniques are allowed for limited situations, the law requires school districts to notify parents immediately after it occurs, the document states, adding that the parents were never notified of the incident.
After finding out about the incident two years later, only after obtaining legal counsel, the parents believed it reasonable, necessary and in the best interest of their child to consent on behalf of their child to record his school day, the document states.
The parents’ use of the Talker was, “reasonably calculated to record only the conversations and events taking place in a public school classroom setting and in the presence of their (child),” the lawsuit says.
The document goes on to say the recording is “lawful and appropriate,” and the parents have the legal authority to vicariously consent on behalf of their minor child.
“All recordings took place in a public school classroom setting and no person in such a setting has a reasonable expectation of privacy,” according to the document.
However, the school district’s attorney disagrees. Rainey said that while a school is a public place, the question is whether or not the individuals who were having a conversation, under the circumstances, reasonably believe their communications were not being recorded.
When the officer for the due process hearing refused to make a decision on whether or not the recordings were unlawful wire taps, the district was then advised by legal counsel to pursue a lawsuit to prohibit the parents’ recordings as exhibits in the due process hearing.
Rainey said there were nearly 800 recordings provided to the school district in December and over 100 were designated by the parents as possible exhibits in the due process hearing.
The parents’ lawsuit states that while the Oklahoma Security of Communications Act makes it unlawful in certain circumstances to intercept “oral communications,” it is subject to certain exceptions.
“The definition of ‘oral communications’ is intended to parallel the reasonable expectoration of privacy’ test articulated by the United States Supreme Court in Katz v. United States, 389 U.S. 347 (1967),” the document says.
“Public school employees do not have a reasonable expectation of privacy in their communications in public classrooms; Parents have the right to vicariously consent to the recording of conversations to which their children are parties.”
In addition to what the parents said they found on the recordings, the parents’ lawsuit also makes the following claims:
• School administration deliberately ignored the discrimination against their child and intentionally allowed it to be perpetuated for at least two years
• The parents themselves were discriminated in two ways by using two different protocols. One, by creating a “drop off procedure” prohibiting the child’s mother from entering the school building and having staff meet her at the door to escort the child to his classroom when being dropped off. Two, by staff using the protocol of responding to any of the parents’ questions with the statement, “I don’t know.” Both protocols were allegedly not used with any other parents.
• The school district hired a special education teacher whom the parents discovered had pleaded no contest to multiple felony counts of child abuse, telling the parents the school conducts a proper search with due diligence and considers student safety of paramount importance. Several months later the teacher’s license was suspended on an emergency basis and steps were taken by the state to have her license permanently removed
When The Ardmoreite spoke to the parents, they referred all inquiries to the complaint filed in federal court and their attorneys. They did confirm their child is still attending school in Ardmore.
Representing the parents are Ward and Glass, L.L.P., and specifically, attorney Barrett Bowers. He also referred The Ardmoreite to the complaint filed.
Editor’s note: The suit is available in its entirety on ardmoreite.com.