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!

Comments

[Chris Craft]

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?

It used to be my understanding that most states allowed recordings provided one person was aware, although that was in a conversation. I would posit that the typical lecture scenario would fall short of that conversation definition and potentially fail the test of legally permissive recording. I would also presume there to be some sort of good faith measure, if a student is genuinely recording to review, that's one thing, but can you imagine the mal intent of some other students?

Just thoughts...

Chris Craft

[Scott McLeod]

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).

[Bud Hunt]

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.

[A Mercer]

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?

[Roger Whaley]

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.

[A. Mercer]

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...

[Scott McLeod]

7.

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

[jim]

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 ?

[Scott McLeod]

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:

http://snipurl.com/3nz19

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

http://snipurl.com/3nz21

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.