Was The Recording Device A Necessary Accommodation For The Nonverbal Student?

The 19-year-old student was nonverbal and was unable to communicate with his parents about his experiences at school.  As a result, the parents requested that he be equipped with a recording device while at school.  When the district denied the request, the parents sought administrative review under the Individuals with Disabilities Education Act (“IDEA”).

The hearing officer determined that the recording device would provide “no demonstrable benefit” to the student and, therefore, it was not required under the IDEA.  The parents sued the school district, arguing that the district denied a reasonable accommodation to their child in violation of the IDEA, the Americans with Disabilities Act (“ADA”), and Section 504 of the Rehabilitation Act.

We all know that schools are required to provide a free appropriate public education (“FAPE”) to students with disabilities who are in need of specially designed instruction.  We also know that Section 504 and the ADA require districts to provide reasonable accommodations to disabled students that will allow them to fully access the benefits of their education.  So, the main issue was whether allowing the student to record his activities at school was a reasonable accommodation.

The First Circuit Court of Appeals said no.

Apparently, the student had attended school in the district for twelve years without a recording device and was happy at school.  There was no evidence of a substantial safety concern requiring the device.  In addition, the student was receiving FAPE and made “continuous and significant progress” without the device.

The bottom line:  the hearing officer concluded that it was not necessary for the student to wear a recording device to benefit educationally and receive FAPE.

Unfortunately for the parents, they did not appeal that specific finding by the hearing officer.  The Court concluded that they waived that issue on appeal.  Because the parents could not prove that the student required the recording device to benefit from his education, the ADA and Section 504 claims failed as well.

The case is Pollack v. Reg'l Sch. Unit 75, 886 F.3d 75 (1st Cir. 2018).