Legal Brief
Video Surveillance on School Property
BY DAVID B. RUBIN/School Administrator, December 2020

A FIGHT BREAKS OUT in the middle school cafeteria and the parents of all involved students demand copies of the school district’s video surveillance recording. The police are called in to investigate and they want to see it too. How do you respond?

As with much in the law, the answer is, “it depends.”

George Orwell’s 1984 painted a disturbing picture of a surveillance society where Big Brother tracks our every move. Today, most of us take the ubiquitous presence of video cameras in stride, and some even find comfort in it. Video recordings certainly have come to play a role in school operations as well.

Common Questions

School administrators ought to have knowledge of the basic legalities, including the issues raised by these four questions.

»Can you conduct video surveillance at all?

The Fourth Amendment prohibits unreasonable searches, and video surveillance could constitute a search if it violates reasonable expectations of privacy. Generally, cameras in common areas like hallways, stairwells, cafeterias, buses and parking lots pose no privacy issues, but video monitoring of locker rooms and lavatories may. The privacy concerns are greater if you employ powerful lenses or sensitive microphones.

Several states, including Georgia and Texas, have adopted legislation specifically permitting or even requiring cameras in some special education classrooms to record abuse of students who may be unable to report it themselves. If you’re in a collective bar-gaining state, you also may have a duty to negotiate the use of video recordings for disciplinary purposes. Districts’ legal counsel should know what’s permissible or even required in your jurisdiction.

»Who has access to video recordings?

That depends on whether they are considered “education records” under the Family Educational Rights and Privacy Act, the federal statute regulating access to confidential student data. An education record under FERPA is information “maintained” by a school district that is “directly related” to a student. Videos are “directly related” to students who are the focus of the images on the recording.

So if two of the students in your cafeteria fight are facing suspension, the video would be an education record of them both, but not of other students uninvolved in the melee. Either student’s parents would be entitled to view the recording upon request, but you may have an obligation to redact the other students’ images, if technologically possible without destroying the essence of the recording. If that’s not do-able, then each parent still would have the right to view the video even if other students are identifiable.

»Are we permitted to make copies of videotapes?

FERPA does not require you to provide copies of the recording but does not prohibit it either, if your state law allows it.

»Can police obtain and view copies of your videos upon request?

Probably not. Your natural inclination is to cooperate with your local law enforcement officials, but they are not on FERPA’s list of parties entitled to access education records upon request. FERPA has a narrowly drawn exception for health and safety emergencies, but otherwise the police will need to present at least a subpoena. Some states, such as New Jersey, where my school district clients are located, require a court order.

A different rule is at play if your district is large enough to have its own police force. FERPA allows school districts’ “law enforcement units” to create and maintain video surveillance strictly for law enforcement purposes without the recordings being considered education records, so they can be freely shared with the police without violating FERPA.

State Specifics

Be aware that your own state law may afford students and parents even greater rights than those specified in FERPA, so be sure to consult with your district’s legal counsel when these issues arise.

Additional information can be found on the U.S. Department of Education’s student privacy web page at studentprivacy.ed.gov.

DAVID RUBIN is an education attorney in Metuchen, N.J. Twitter: @dbresqnj