Sarasota Herald-Tribune | By Ryan McKinnon | July 28, 2021
The fallout from a costly, protracted special education scandal continued to divide the Sarasota County School Board Tuesday, as school leaders questioned each other’s motives during a heated discussion over special education policy.
The question at hand: Should parents be allowed to record individualized education plan (IEP) meetings?
The board couldn’t agree on a solution Tuesday and tabled the discussion for a later date with more information, but the tension surrounding all things related to special education was evident once again.
Board member Bridget Ziegler pushed for a policy to allow parents to record the meetings in the name of heightened transparency, especially as the district is currently under state sanctions for wrongfully placing children in a program for students with the most severe cognitive disabilities.
After her fellow board members resisted a new recording policy, she said the district was sending the wrong message to families of children with disabilities.
“It is a farce, one, and two it’s going the wrong direction and three it highlights that some people will say things but when the rubber hits the road you get to see if they really believe what they say,” she said Wednesday.
Ziegler’s fellow board members are concerned to varying degrees that such a policy could put staff at legal risk and questioned whether it was necessary.
“This is much ado about nothing,” said board member Jane Goodwin. “This is a solution looking for a problem.”
Superintendent urges caution
IEP meetings are federally mandated for students with disabilities, and they are where school staff and parents agree on the accommodations students will receive to help them learn. Most are uneventful, but opponents to recording these meetings worry that an errant turn of phrase could be weaponized against the district in a lawsuit.
The most recent high-profile lawsuit has board members especially wary.
The “DJ Case,” named for a boy who was improperly placed in a program for students with the most severe disabilities, revealed how deep the distrust can be between special education advocates and district leaders.
DJ’s advocates used public records requests to uncover evidence of school officials lying about their involvement with DJ, stoking concerns that families need to be more vigilant about documenting what exactly is said regarding their child’s education.
And a follow-up state Department of Education investigation found that Sarasota had additional students in programs for the most disabled who lack the necessary classification.
In some cases this may be a simple paperwork error, but DJ’s case set off alarm bells among the special education community, as a boy with relatively minor learning disabilities was placed in a program for the most severely disabled and essentially learned nothing for six years without his mother understanding the impact of the district’s decision.
Superintendent Brennan Asplen says he is committed to greater transparency, but allowing parents to record IEP meetings is a touchy issue as he seeks to both rebuild trust but also not put staff in a position where they fear litigation.
Asplen urged caution on Tuesday.
He read aloud an email from a stressed parent, who described what it was like attending these high-stakes meetings where parents may encounter educational jargon and a table full of experts.
“Nerve wracking experience…I feel alone…it’s overwhelming,” Asplen read.
But the superintendent also described a conversation he had with a teacher who was recorded during a meeting and then someone posted the recording to social media, exposing a private conversation to the Facebook rabble.
“I don’t want us to go way overboard in either direction,” Asplen said. “…if I’m in a position where I have to make a teacher sit there and be recorded, you’re not going to get much out of the teacher and it’s not going to be what’s best for the child as far as the conversation is concerned.”
What’s the current practice?
Exceptional Student Education Director Tammy Cassels said allowing recording had generally been the practice, but in recent years more staff members have objected, so the district has provided written notes instead. The board does not have an official policy on recording.
Board attorney Patrick Duggan brought three potential policies before the board Tuesday – one that prohibits recording except for when required by law to accommodate for a disability, one that allows recording with parental permission, and one that allows recording with the consent of everyone in the meeting.
Duggan said he informally polled several districts in the state and found that most generally do not record IEP meetings except for situations where a participant’s disability makes it necessary, such as if a participant were deaf and needed the recording to create a transcription of what took place.
Manatee is one of the few districts to allow recording with just parental consent, Duggan said.
Duggan said state privacy laws can complicate the issue. In Florida, both parties have to consent to being recorded in any situation where there is a reasonable expectation of privacy.
However, IEP meetings can have up to a dozen people in the room, and Duggan said they did not really meet the standard for “expectation of privacy,” meaning you don’t necessarily have to have the permission of both sides.
If parents did record the meeting, the school district would record it as well. And while parents could post the recording on social media or share it with the press, the district would be required to safeguard their recording as part of a student’s private educational record, Duggan said.
DJ case ripple effect
School officials say they provide written notes of what is said during an IEP meeting as an alternative to recording.
But the district may have lost much of the benefit of the doubt during the DJ case.
Advocates working on the case obtained internal emails through public records request that showed district staff lied while under oath when asked about their involvement in the DJ case.
In one instance, a school psychologist who had been one of DJ’s staunchest defenders behind closed doors claimed to not remember if she had voiced objection to the district’s treatment of him. A public records request revealed she had written her bosses an impassioned 1,000-word email objecting to the treatment.
On Tuesday, board member Jane Goodwin, who objects to a recording policy, said the board needed to move on from the DJ case.
“We’re still going back to the DJ case. God knows we could have done better, I wish we had done better, but we have passed that by now,” Goodwin said.
Goodwin suggested that Ziegler was lobbying on behalf of special education advocates who want to record meetings in order to have ammunition for suing the school district.
“Perhaps this recording would be very beneficial to the family, but it also might be involved for someone whose looking for business from a case,” Goodwin said. “…I think that’s where Bridget (Ziegler) may be getting some of her information about these cases.”
Any change regarding the policy seemed unlikely after Tuesday’s discussion.
Board chairwoman Shirley Brown said she worried about recordings being used as “gotchas,” and board member Tom Edwards said the current practice of generally allowing recording if everyone agreed was working and that he didn’t see the need to codify the practice into policy.
“What we’re doing seems to be working, and we can do a better job to make sure we don’t find ourselves in a room with advocates asking for it to be recorded,” Edwards said.
Ziegler said deciding whether meetings could be recorded on a case-by-case basis was both a bad practice and bad policy, especially since just one staff member feeling “uncomfortable” could prevent a meeting from being recorded.
Board member Karen Rose said the district ought to be open to recording but also accommodate staff who don’t want to be recorded.
The board ultimately asked for more information about how many requests to record there had been in the last year, and may revisit the topic at a future date.