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!