Education Law Attorney
Kennedy & Graven, Chartered
A recent special education due process decision in Nevada involving a popular location-monitoring and listening device may soon resonate with school districts across the country. Because Joshua Wahrer, a 6-year-old nonverbal autistic child, sometimes wanders, the Clark County School District implemented as part of Joshua’s Individualized Education Program a safety plan to locate him if he left the classroom.
With the plan in place, Joshua never left school premises and was usually found inside the school’s library, on the stairs, or in the teachers’ lounge. However, after Joshua’s teacher was accused of beating him with a wooden pointer stick and arrested, his parents were more concerned about his wellbeing and requested that he wear an AngelSense device at school. AngelSense is an electronic monitor worn on the body which allows users to track a wearer’s location in real time. While the device does not record, it does allow for two-way calls and one-way listening-in from an app associated with the device. The school district denied the Wahrers’ request, expressing confidentiality concerns stemming from the device’s more controversial voice feature, which allows a user to surreptitiously listen in to a wearer’s surroundings, which could violate state wiretapping laws.
The Wahrers filed a due process complaint alleging, in part, that the school district denied Joshua a Free Appropriate Public Education (“FAPE”) and demanding that he be allowed to wear AngelSense. But the hearing officer sided with the school district. He concluded the device was unnecessary because Joshua’s safety plan effectively addressed his elopement tendencies. While the hearing officer acknowledged the Wahrers’ well-founded concerns, the evidence did not show that AngelSense would prevent or protect Joshua from future abuse. There was also no practical way to obtain consent from, or give notice to, every person who may be overheard talking to another within the device’s range. The hearing officer also concluded that AngelSense was neither an “assistive technology device” nor a “supplementary aid or service” under the Individuals with Disabilities Education Act, because the device would not: further enable Joshua to be educated with nondisabled children; increase, maintain, or improve his functional capabilities; or provide Joshua with an educational benefit.
Location-monitoring devices like AngelSense are becoming more popular among families of children with disabilities, especially those with Down syndrome or autism, and school districts are grappling with how best to handle parent requests. While most schools do not take issue with the GPS tracker itself, the listen-in voice feature raises concerns about the potential disclosure of educational data or the contents of conversations intended to remain private.
Administrators should balance these concerns with a mind that is receptive to new technology. School districts may want to consider developing or revising policies to specifically address third-party listening and recording. A school district in Texas recently updated its electronic devices policy to require parents to obtain approval from the building principal before operating a student-tracking safety device with recording or listen-in capability at school or school-sponsored events.
As with other policies, general prohibitions should provide for an exception based on a student’s individual needs. If parents of a student with a disability request that their child wear a GPS tracker with the listen-in feature, school districts should handle the request individually using the IEP or Section 504 process. First, teams should determine if an unmet disability-related need exists and the reason for that need. Some parents may propose AngelSense as a means to address an elopement and safety issue. Others, however, may request its use purely to satisfy their desire to know what is happening in the classroom.
While a team should discuss whether AngelSense’s listen-in feature would be an appropriate way to address a child’s wandering, a parent’s interest in eavesdropping throughout the day does not necessarily justify the feature. Instead, a school could offer the parent the opportunity to observe the classroom in accordance with the school district’s visitor policy or direct staff to increase communication with the parent. AngelSense has also been receptive to schools’ privacy concerns by offering customizable voice deactivation agreements in which schools and parents can restrict user access and disable certain features during preselected times.
Assuming a child’s team identifies an unmet disability-related need, the team should next determine whether a device with an active listen-in feature is the only way to meet that need. In Joshua’s case, the school implemented an effective safety plan. In other situations, additional staff or a one-on-one aide could supervise a student to reduce the risk of elopement. Whatever the case, this decision supports a conclusion that devices with listen-in capabilities are only required if the child’s team determines that the device is a necessary component for FAPE.
This article is intended to provide general information with commentary. It should not be relied on as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.
Alex D. Ivan is an education law attorney with the law firm of Kennedy & Graven, Chartered. For more information, please contact him at (612) 337-9304 or aivan@kennedy-graven.com.
© Alex D. Ivan (2019). Used by permission.
