EDITORIAL: Lawmakers must decide how to best protect special-needs children

By Matthew Young, RealWV

The House Judiciary Committee, on Wednesday, spent a significant amount of time debating HB 3042, also known as the “Equal Protection for Religion Act.” The bill, which looks to prohibit “government limitations on exercise of religion,” is considered to be so controversial that a public hearing to debate the matter further was scheduled for Friday afternoon. But for as contentious a topic as HB 3042 is, presently there is no evidence to support the claim that government is infringing upon the religious rights of West Virginians. HB 3042, it would seem, is a solution in search of a problem. Perhaps a more accurate way to summarize HB 3042 would be to say that it is a solution which causes a problem. 

An unrelated – and far less publicized – development of Wednesday’s meeting was the committee’s adoption of HB 3271, a bill seeking to significantly enhance “the monitoring of special education classrooms” through the use of audio recording devices. The bill was briefly explained and advocated for by the father of a special needs child, before receiving the committee’s swift and unanimous approval.

On the surface, HB 3271 appears well-intentioned at best, and innocuous at worst. The bill requires that an “audio recording device” be installed in the bathrooms of “self-contained classrooms,” and that the recordings be monitored “for at least 15 minutes every 90 days.” While the definition of self-contained classrooms differ from state to state, the W.Va. Department of Education defines them as “ a classroom at a public school in which a majority of the students in regular attendance are provided special education instruction.” 

In short, these are classrooms for children with physical, emotional, intellectual, and behavioral disabilities. Many of these classrooms, 421 to be precise, have bathrooms directly connected to them to allow for ease of access. These dedicated bathrooms also afford special-needs children an additional level of privacy, as many require assistance when using the bathroom. 

In recent years, numerous reports of special needs children being abused in their classrooms began to surface. The most shocking example came in November 2021 when MetroNews reported on Nancy Boggs, a former Kanawha County special needs teacher who was indicted on 24 separate counts of student-abuse. The jarring allegations against her were both physical and emotional in nature, with Boggs ultimately pleading guilty to 10 counts of battery in May 2022. 

The Boggs case, along with several others, led to legislative action in the form of SB 261. In 2019, state code was enacted requiring that video recording devices be placed in all public school special education classrooms. With last year’s passage of SB 261, review of that recorded footage became a requirement as well. A minimum of 15 minutes of all video recorded in special education classrooms must now be reviewed once every 90 days. If enacted, HB 3271 would expand the surveillance requirement established by SB 261 to include audio recordings of the bathrooms. Those audio recordings would then be reviewed in the same manner and time frame as the video recordings. 

“Unfortunately we’ve had situations where things have happened, and no one is happy with that,” Fred Albert, president of the W.Va. chapter of the American Federation of Teachers (AFT-WV) told RealWV on Friday. “Listening to my members, some members are a little bit apprehensive about it (HB 3271) because there are some students that have, what would be called, ‘bathroom anxiety.’”

“If they’re aware enough to know that they’re being (audio recorded), that could present a problem,” Albert noted, before adding, “But I also have members who are somewhat relieved because it might help them clear up things when they’re accused of certain things when there are no grounds for the accusation. So there’s people all over the place. It’s unfortunate that we’ve come to this situation.”

“It’s a difficult bill to take a position on,” Albert noted. “We want our children to be safe. We don’t want anyone, regardless of their academic ability, we don’t want them to be mistreated in any way.”

Albert’s comments would seem to mirror the intentions behind the bill, which is ensuring the safety and protection of our most vulnerable children. However, also much like the bill, Albert’s comments shine a frightening light on the bill’s shortcomings. 

The statement, “If they’re aware enough to know that they’re being (audio recorded), that could present a problem,” would seem to indicate that the success of the bill is predicated on the ignorance of special-needs children. Bathroom anxiety is a real concern. A recent study conducted by Pedia-Lax indicated that as many as 64% of school age children suffer from some form of bathroom anxiety. And a 2012 report from Scholastic states that “A child may feel vulnerable ‘with his pants down’ in a place that is not as familiar as home.”

Oftentimes these children are non-verbal, wheelchair-bound, or struggle with motor function control. Many of them require the assistance of a teacher or an aid to undress them, physically position them to properly use a toilet, and to clean them after they have finished. These are the moments when the most vulnerable among us are truly at their most vulnerable, and protections offered by HB 3271 rely upon the hope that they do not possess the cognitive awareness to know that they are being recorded. 

However, it is also the vulnerability of special needs children which increases their susceptibility to abuse. In addition to the traumas inflicted by Nancy Boggs, Albert spoke of other situations which led to the creation of these bills.

“There have been some complaints that children had been sent to the bathroom to eat their lunch,” Albert said. “That’s not a good thing. They’d (the legislature) already passed the bill to put cameras in the special education classrooms. And last year, they revisited that because there were a couple of instances of abuse, even with cameras in the room, and last year’s bill required that those videos be viewed more often.”

“Most of our members (union-member teachers) that we’ve heard from – and we haven’t heard from a lot of members on this particular bill – but they’re not opposed to it,” Albert noted. “They feel like it might be another way of helping support them when they are accused of something they’re not guilty of doing.”

A fiscal note attached to HB 3271 estimates the total cost for installation of the 421 audio recording devices to be $210,000. Once the equipment is installed, schools would be required to post signage on bathroom doors stating that the room is under audio surveillance. The bill also makes exceptions for parents not wishing to subject their children to surveillance while using the bathroom. However, a sign does not help a preschool student who is unable to read, nor is it always possible for a special needs child to use a bathroom in another part of the school. 

“If it’s going to provide more safety for our students then it’s worth doing,” Albert added. “We want our students to be safe, and we want our educators to be safe. We want them to be safe from false accusations. Perhaps, in that way, it’s a good thing.” 

Thus far, HB 3271 has received near-unanimous, bipartisan support. The hope for the bill is that its supporters are correct – if it will make our most vulnerable students safer, perhaps it is a good thing. However, it can not be overlooked that HB 3271, in spite of its sincere intention to better protect these children, is simply exposing them to a different type of potential trauma. 

The third reading of HB 3271 will be heard in the House Chamber on Monday. With any luck, delegates will debate its merits as thoroughly, and with as much fervor as they did the “Equal Protection for Religion Act.” Our most vulnerable children surely need their protection just as much as our religion does. In fact, one might argue that they need it more.

RealWV will provide updates regarding the bill’s status as additional information is made available. 

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