A MOTHER SENDS
her daughter to school with a hidden smartphone, hoping to record evidence of bullying. A student uses a “spy pen” to secretly record her class reciting the Mexican pledge of allegiance and posts the recording on YouTube. Parents of a nonverbal student sue over a school district policy that prohibits recording on campus, claiming it violates their son’s right to “tell” about his day at school.
Each of these real-life situations demonstrates the challenges presented by the proliferation of recording devices in schools.
The wide availability of new recording technology has many potential benefits. Advocates argue that security cameras in special education classrooms could protect the most vulnerable students from abuse or neglect. In 2015, Texas became the first state to mandate that schools place cameras in certain special education classrooms upon request.
Recording devices also have clear educational uses, particularly with students who experience learning challenges. For example, a student who struggles with note taking can use a smart pen to record lectures. In addition, video technology could provide valuable feedback in evaluating teacher performance.
The authority to use a recording device at school is not a simple matter, however.
Public schools are obligated to protect student privacy. The federal Family Education Rights and Privacy Act, or FERPA, prevents school districts from disclosing personally identifiable information in a student’s “education record,” which the law broadly defines as a record maintained by the school that is “directly related” to a student.
FERPA does not allow or prohibit recording devices in schools, but districts must take steps to ensure student privacy when devices are around. Audio or video footage of students recorded by a parent’s or student’s personal device cannot be an education record if the school does not maintain it. Nonetheless, a device may record information that is contained in a student’s education record. To avoid releasing student information to unauthorized individuals, districts often choose not to allow recording or photography in the classroom.
Of course, no principal in her right mind would try to prevent proud parents from snapping photos at graduation. Taking pictures and videos at school activities such as musical performances and athletic events does not raise the same concerns under FERPA as recordings in the classroom. According to the U.S. Department of Education, a photo or video that depicts a student participating in school activities that are open to the public, without a specific focus on any one person, should not be considered an education record.
Before taking a position on recording devices in your school system, consider these tips:
» Know the law.
In addition to FERPA, recording in schools relates to federal and state wiretap laws. Some states have adopted statutes that restrict the use of recording devices in school. Collective bargaining agreements may address whether teachers can be recorded. Research the laws in your area to ensure your practices are consistent.
» Avoid overly broad restrictions.
A policy that prohibits making secret recordings or taking pictures or videos in sensitive locations such as restrooms or locker rooms is defensible. However, a policy that restricts anyone on campus from making a recording of any kind is unrealistic and may be impossible to enforce.
» Make exceptions when necessary.
If a student requires a recording device in order to receive educational benefit, federal disability laws may require the district to accommodate the student by making an exception to a general recording ban. Whether a student needs to use a recording device should be determined through the legal procedures that protect students with disabilities.
» Focus on what’s best for students.
When a student needs a recording device to learn, work with the parents to find an arrangement that addresses student privacy and minimizes disruption to the school environment. When a parent acts unreasonably, document your efforts to resolve the issue.
is senior attorney for legal services with the Texas Association of School Boards in Austin, Texas. Twitter: @tasblegal