Recording teachers

Andy Carvin notes on the Learning Now blog that a New Jersey school district has banned students from recording their teachers in class after a student recorded a teacher’s classroom proselytization and then posted the audio on the Internet. As a school law guy, I’ve been following this incident with great interest. Here are some thoughts that have been running through my head…

  1. The United States Supreme Court famously said in Tinker v. Des Moines (1969) that “state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.”
  2. The default rule generally is that students can wear or bring to school what they want. Typically schools only can regulate what students wear or bring to school if it’s unsafe (e.g., weapons), illegal (e.g., drugs), vulgar (e.g., t-shirt with profanity), or causes a ‘material and substantial disruption’ to the school environment (this is the Tinker test). There are a few other reasons that courts have upheld now and then (e.g., public school uniforms can trump student clothing preferences) but these four are arguably the main ones. It’s not clear to me that a student surreptitiously recording his teacher in class meets any of these criteria.
  3. I don’t know what the law is in New Jersey, but most states allow recording of conversations if one party (e.g., the student) is aware that the recording is occurring. Also, I believe that all states allow the recording of speech occurring in public (e.g., in the park, on the street (in the classroom?)). In other words you can’t assert a privacy right regarding behavior that can be publicly seen or heard. I’m not a legal expert in this area, but I question whether the teacher or the students have a legally effective objection to being taped without their permission.
  4. I’m a little concerned from a supervision/evaluation standpoint that proselytizing behavior was occurring in a teacher’s classroom without the administration being aware of it. It sounded like this was ongoing, recurring behavior on part of the teacher. Where were the administrators?

Obviously I’ve got lots of concerns about the district’s new policy. Maybe someone more legally savvy than me can explain why the policy might be upheld, but my initial opinion is that it’s on awfully shaky legal ground.

There are other issues here too, such as the student’s belief that the administration wouldn’t take the complaint seriously, the desire of the administrators for the student to come to them first, and the student’s posting of the recording on the Internet. Check out the post and comments at Learning Now. There’s some good conversation occurring over there. Chime in!

23 Responses to “Recording teachers”

  1. Now this is an ironic statement, “Maybe someone more legally savvy than me”. Unless I am mistaken (joking with you here) you have a J.D. degree, as well as a Ph.D, right? So the only ones more legally savvy than you would be attorneys practicing in this very area of law? Do any of them read your blog?

  2. Hi Chris, yes, you’re correct on my degrees. I do lots of stuff unrelated to school law and/or privacy law (e.g., school technology leadership!), so you’re also correct that someone who lives and breathes this very area would be more knowledgeable than I am about this issue. Right now I’m operating off some basic legal principles and haven’t researched this too deeply…

    The ‘good faith’ argument is an interesting issue. Thanks for raising it. Can we say the student’s intent here was not in good faith? I’m not sure we can…

    Classroom speech between teachers and students may or not be ‘conversational.’ The bigger question for me is whether it’s ‘public’ speech like speech out on the street or in the park. Unless they’re private, schools are public institutions accountable to the public. I don’t know of any rulings on this issue (but I haven’t looked either).

  3. Scott,

    I sure hope you’ll answer this question — one that you suggest in the comment above —
    Are classroom public spaces or private spaces? I’m not talking about specific private schools — but public school classrooms. Is the work that I do with my students public, or private, or a wicked-strange hybrid of both/neither?

    I’d really, really like to know as definitively as you might be able to tell me.

  4. Not ALL states allow surreptitious recording, as we all remember from Monica Lewinsky and Linda Tripp (Maryland didn’t). In particular, my state of California bans it and I was warned in a union training not to ever do it.(I’m guessing that someone tried to catch out an administrator in a lie that way, and found themselves in even more trouble). I don’t think the district is on shaky legal ground at all about the recording, but they could be on shaky ground in re: how this teacher got away with teaching this way so long.

    This is funny because I was remembering a really crusty (and awful) Poli Sci professor who was asked if he could be recorded by a student with a mild (but identified) disability and the prof refused (he was an expert on China, and I think that made him a bit paranoid). This was about 1985. I’m wondering if he could get away with that under IDEA now?

  5. It seems to me that the teacher is “on stage” and should be considering his work a performance. Privacy of the teacher isn’t what needs to be protected here. What is on display really isn’t subject to a resonable expectation of privacy.

    However, as middle school teacher, I would rather see a student paying attention to the class, not the recorder. If the recorder has no purpose (an adaptation for a special needs student, etc.) and it is a distraction to the student or others in the room, I think he will get it back after school.

  6. Well, I was wrong, but I had a good reason, the case law basically said nyer, nyer to state code…I recently picked up a wonderful reference, California School Law (Kemerer, Samson, Kemerer). Although California does have a both a law against surreptitious recordings in general (Govt. Doc sec. 630), and a specific section of the Ed Code — 51512, that says you have to get principal and teacher permission before recording in a classroom, case law has blown this to smithereens. In Evens v. LAUSD they reasoned that a teacher must always expect public dissemination of what transpires in a classroom. So teachers can be recorded by students while teaching, but I imagine that teachers and admins should not try to secretly recording conversations with each other, since that is not a classroom situation. Live and learn…

  7. Cool legal sleuthing, Alice! Thanks for sharing the results of your investigation!

  8. I think that you may be missing the central point of the school district’s concern and policy . The problem was not with the recording of the teacher but with the public dissemination on tape of comments made by other students in the class in question . It was their objection to being recorded without permission that brought the case and the policy .

    This might require that each parent must sign a waiver that their child’s contributions in the classroom be allowed to be part of the public record . Then how do you separate and protect those who do not sign this waiver ? Do you want YOUR child’s classroom contributions winding up on the internet ?

  9. Hi Jim,

    1. The district also was concerned with the recording of the teacher because it passed a policy banning the recording of teachers.

    2. If the law in New Jersey allows the recording of a conversation as long as one of the parties knows about it (and I don’t know if NJ law does or doesn’t), then the teacher or students may not have a legal objection. I tried to address this in Point #3 of my post.

    3. Some of this depends on whether we see the student as a whistleblower or a hero:

    4. See also my follow-up post to this one. There may be some advantages to having cameras in the classroom?

    5. What about students who want to use a digital voice recorder to capture lectures for later note-taking (like they do in college)? Do we want to ban this?

    6. Since you asked, I would be pretty comfortable with my kids’ voices in class being part of the ‘public record.’ But I know others might not be…

    I guess it ultimately comes down to just how PUBLIC we want our public school classrooms to be. Should parents and taxpayers be able to literally see and/or hear what’s going on in public school classrooms? I don’t have an answer to that question, but it makes for an interesting discussion!

    Thanks much for the comment and for sharing your views with us.

  10. I have been advocating classroom cameras for years.When discussing this issue with educators I have observed a remarkable degree of hostility.Why? Classroom cameras are a double edged sword. They can show evidence of student misconduct but they can also show teacher misconduct. The National Education Association website “Legal Issues Concerning Acadmic Freedom” tells us how they and probably most teachers feel about classroom monitoring. In the section ” Academic Freedom model Contract Language”it states- …”No mechanical or electronic device shall be installed in any classroom orbroght in on a temporary basis which would allow a person to be able to listen or record the procedures in any class.”

    • Even for Adaptive purposes. Seems like tort language. Federal Law (ADA) trumps torts. What if my employer required me to smoke crack cocaine in order to maintain employment, while federal law bans crack cocaine under the Controlled Substances Act of 1970. Then comes sever ability. All it takes is for one school district to do that, and the NEA to sue that district, and argue on the grounds of the State’s recording laws.

      Contracts can be breach able. As we all know the 5 defenses to breach of contract.

      Due to the high amount of violence in John Doe High School, we are installing security cameras to protect the welfare of our students. NEA’s tort is impossible to preform due to our limited resources, therefore we have breached this portion of NEA’s contract regarding classroom monitoring. John Doe High School cannot afford Police Officers stationed at every classroom. School District produces it’s line item budget for it’s schools. Thus, inconsolable.

      Good luck on your mission!

      This advice is for general purposes only, it is wise to contact a qualified attorney licensed to practice in your state. For more information contact your Bar Association in your State. Do not rely on this as qualified legal advice. This reply does not mean the acceptance of an Attorney Client relationship.

  11. We are in a rapidly advancing technological arena in the classroom. This right to record was broached just last week in my school system after a parent requested that her non-disabled child be allowed to utilize a Smart Pen in the middle school classroom in which I teach. On the face of it, it sounds like a wonderful thing to do. One kid. One pen. The technology specialist on our system said, “Sure. Give it a go ahead.” I cringed mightily. No guidelines were given whatsoever. The system, with one go ahead has approved the use of voice recorders for all students without any sort of protocol. I think it is lawsuit waiting to happen. There are so may things that could go wrong as voice recorder use (in the hands of middle school students who may use their power for evil and not good) picks up. Students taping students and posting it for public consumption? Students taping me for public consumption? Okay, not a big deal unless they spend a little time doing some editing to make it something it is not. The system has failed to be proactive. I have duly recorded my reservations. I think that may be little protection when things go wrong ….

  12. Sorry. It’s the teacher in me. I spotted several typos after I posted. Just had to acknowledge their presence.

  13. I happened upon this site in trying to get an answer to the “challenge” posed by one of my son’s teachers who said “if any student tries to record this class, I’ll sue them to get the tape.” In reading the Evens case cited earlier, it appears that the court, while saying that teachers have no expectation of their lectures not being made public, didn’t say that 51512 wasn’t still enforceable – only that it didn’t preclude tapes of classes, however made, being used in disciplinary proceedings. So, did I read it correctly and principal/teacher permission is still required to record (in this case, audio) or not?

  14. If the school is american and overseas who are they rule by??
    They wont let my daughther use the smartpen (middle school,)but it does help her because she gets distracted very easily and notes are not completed.

    • The issue of voice recording seems to exist in some very grey area. At minimum, I would expect that a waiver for all students in the classroom would need to be signed for any student to use a voice recorder in the classroom. A student may tape the classroom proceedings, but a teacher has no control over what happens with the recording. It is the property of the student recording it. The other students (and parents) in the classroom can exercise their right to not be recorded by declining the waiver…which pretty much does away with the voice recording in the classroom if any one student/parent declines. It may be because of this that your child’s school has declined the use of a Smart Pen unilaterally.

      As a teacher working to obtain National Board Certification, I needed to video several classroom settings in which students were interacting. To protect the rights of the students, a waiver was required from all students so that I could submit the video (with audio)to be reviewed by a small group of educators for the purposes of evaluating the work. Students who declined would have to be removed while the taping occured. It worked fine for 2 tapings, but on a day-to-day basis would not be realistic.

    • Give your child’s school a doctors note, and request for reasonable accommodation. If that fails, sue the district for violating the Americans With Disabilities Act of 1990, and the Americans With Disabilities Amendments Act of 2008, as amended. Would that district take away a student’s wheelchair, or cane? Same thing, adaptive device.

  15. When I was in middle school, I had an ARD and in the IEP I was allowed to utilize my Walkman while riding the school bus as an adaptive device. I still have that paperwork. It is from 1991.

  16. My physical anthropology teacher in college is forcing me to accept faith and belief as the origins of mankind and science. It is a public school. That I pay. Is this legal?

    • And what exactly do you propose as the actual foundation of science or other forms of human knowledge? At some point, a leap of “faith” is always required.

      • Q….teacher in college is forcing me to accept faith and belief as the origins of mankind and science…Is this legal?
        Reply: And what exactly do you propose as the actual foundation of science or other forms of human knowledge? At some point, a leap of “faith” is always required.

        The reply seems a throwback to early 20th century intrusions of a narrow range of religious advocacy into secular and factual domains. Clearly, in science and judgments about the origins of mankind, observation, research, and logic are more important than “faith” regardless of attempted sophistry and puns.

  17. I don’t know that schools are actually considered public as a park would be considering you need a badge to gain entrance, background checked, a copy of your license, be escorted by security, or a combination of these.

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