Season 3: Episode 1: Secret Recording Devices in the Classroom

It seems like almost every week we hear yet another news story about a school in hot water because of a secret tape recorder or phone that a parent sent in a student’s back pack. Is this even legal? And what if a parent requests to send a recording device with her child in advance? Do school districts have to agree? What if the parent wants to record a team meeting? When is a school district obligated to allow such recordings and what precautions should the team take? Lisa and Miriam kick off Season Three with a fabulous interview with Peter Zawadski, an attorney at Walter | Haverfield who often advises school districts about developments in technology and privacy laws. In this episode, Peter reviews school district obligations when parents ask to record their child’s classroom or a team meeting, including considerations under the Family Education Rights and Privacy Act and the Individuals with Disabilities Education Act.

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Miriam: Welcome back to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We are attorneys at Walter Haverfield in Cleveland, Ohio. We practice school law, and every few weeks, we get together and we talk about the most recent legal developments in education that are relevant to boards, administrators, teachers, really anybody who works with children. Welcome to season three, everybody. Today, we’re going to start off our third season by talking about technology developments. As everybody knows, technology changes the world every day, but it also comes with its own set of challenges. Today, here with us to talk about technology and school districts, we have Peter Zawadski, an attorney at Walter Haverfield, who often advises school districts on technology-related issues. Welcome, Peter.

Peter: Hi, it’s my pleasure to be here.

Lisa: Hi, Peter. Let’s start with a global view of how technology developments, it’s constantly changing every day, how does that impact and create challenges for school districts?

Peter: Sometimes those technological developments are just a high-tech version of issues we’ve already seen, but other times, they create these brand new scenarios and legal questions for districts.

Lisa: Can you give us some examples and dive into that a little bit?

Peter: Sure. Technology has now evolved so that parents can send a recording device to school in their kid’s backpack to record what’s going on in the classroom or in the hallways or what their peers are saying.

Lisa: It’s just readily accessible, whereas before you might have had to make an effort to obtain technology. Everybody just has it on them these days.

Peter: Yes. Not only does everybody have it on them, but other people don’t know that they have it on them.

Miriam: Parents can be sending in recording devices surreptitiously, secretly, in other words.

Peter: Absolutely, and we see that happening.

Miriam: It’s not always malicious. It’s not always to record something that they think is wrong or to sue a district. Sometimes parents send in recording devices for benign purposes.

Peter: Absolutely. Sometimes the parents want to just be more involved. They want to know what the children are doing on a day-to-day basis. They’re just more involved in the children’s lives. Sometimes those students might have special needs, and they can’t verbalize what’s going on in the classroom, so the parents want to be able to communicate with their children. These recording devices, that’s just with that.

Lisa: Yes, I would say that’s one area I see it a lot in, in the special ed arena, is parents being concerned about a child’s safety, or especially if they have a severe disability and maybe have some significant deficits in communication, and they want to make sure they’re not eloping from the classroom. Or if they do, there are some devices now on the market that can help track where they are. We’re starting to see these kind of things pop up with questions and parents wanting those devices in the school.

Miriam: There’s definitely, I think, potential for misuse there.

Peter: Absolutely. In fact, there’s a case out of Maine where the parents insisted on having a recording device on their child in the classroom. It was a special needs case, and the student wasn’t very verbal. The parents insisted on having the device recording throughout the entire day.

Lisa: Did they give any explanation of why they wanted it recording all the time?

Peter: Well, they wanted to be able to determine exactly what the students were saying to their son, and they wanted to determine what the teachers were saying to their son, and they needed to help with a communication piece. Like I said, he was nonverbal, and they wanted to just be able to learn his experiences, what he was doing throughout the day. He wasn’t able to relate to the parents when they asked questions like, “How was your day? What did you do at school today?” It was a different scenario.

Lisa: They wanted to be able to say, “Well, we know you worked on this,” and be able to have some of those conversations and have something to reference?

Peter: At least so they said, and that’s what they testified in court saying.

Miriam: The school district refused. The school district did not want to allow this. Obviously, we understand from the district’s perspective. You don’t necessarily want parents recording everything in the classroom because they can possibly use that against the district in some way.

Peter: They can. The teachers would shut down, too. If they knew that they were being recorded all the time, and the peers wouldn’t be as welcoming or inviting to the students.

Lisa: I think one of the things districts get stuck in, I know we’ll talk about this later, but you really have to balance what that individual student needs for that device or information, that it’s going to give you, versus you have all these other students who also have rights and may be concerned about their privacy, or the teachers, like you said, may be more cautious in what they’re saying. There’s just a lot of different people and different people’s concerns that the districts have to weigh.

Miriam: I think if you just consider any job, a doctor, an attorney, an accountant, and you offer to record that person the entire day, nobody’s going to want to be recorded their whole day at their job. That’s going to make you feel more subconscious and uncomfortable, and it might limit your creativity or your ideas or just your functioning at work. Peter, this is Maine, what did the court decide in this case?

Peter: Well, the parents alleged a number of things, and they asserted various claims, but the one big takeaway is, they filed a suit alleging violation of the ADA, the Americans with Disabilities Act, for failing to provide the student with reasonable accommodations.

Miriam: The reasonable accommodation was allowing the child to bring this device.

Peter: Correct.

Miriam: Basically, the school district said, “Look, we are not going to permit this,” and then the parents said, “Okay, well, our child needs this accommodation because of his disability, and by refusing to allow our child to come to school with this, you are violating the Americans with Disabilities Act.”

Peter: Correct.

Lisa: When we look at accommodations, districts have to weigh too, “How reasonable is that?” I’m suspecting that was the key analysis.

Peter: It was. The court found that the student didn’t need this recording device, at least not throughout the entire school day. The court discovered that the student was actually quite happy. He actually liked school. He was making progress and showing continuous improvement.

Lisa: There was a lot of history of that too. My understanding from this case, we’re not talking about a kindergartner or a first grader where there wasn’t a lot of educational history. This was a high school student, I believe. There was a lot of historical background.

Peter: Yes, he had 12 years in school.

Lisa: They had a lot of data to be able to reference and look at.

Peter: They found that the device would actually hinder his progress, and would isolate him among his peers, and the teachers would be more uncomfortable when they were working with him on a day-to-day basis.

Miriam: I guess what’s the takeaway from this case, essentially, courts are not requiring school districts to permit recording devices right now. It’s not a legal requirement that we-

Peter: They’re not requiring. Parents do not have a right to record in the classroom or in the school. The court did essentially hold that if the parents could show that there’s a critical need for this device, and if it would be a reasonable accommodation to the student, then district would have to provide it.

Lisa: In essence, the court left it open that districts don’t have this direct directive that they have to permit recording devices, but there could be a scenario or circumstance, especially with a child with a disability, where if it is necessary to provide FAPE, the district might need to permit it. There could be situations. I think there may be a comparison between recording all day versus maybe one subject. It’s going to be really fact-specific analysis, but it sounds like the court left that still floating out there as a potential.

Miriam: The possibility is there for that.

Peter: Absolutely. It will depend on the facts and circumstances. What’s interesting in the first circuit case that we have been discussing, the school knew that the parents were going to be providing a recording device with the student, but there are times when the parents aren’t forthright or the student isn’t forthright, and he is surreptitiously recording.

Miriam: That’s right. Sometimes parents send in recorders and they don’t ask. Over here in this case out of Maine, they made it clear that they were planning to send this in, but very often we have cases where parents, or attorneys, even, bring devices. Especially now with cell phones, you can just leave a cell phone on the table, and the people at the meeting do not know that they’re actually being recorded.

Lisa: Yes. I think this happens, more so in probably meetings, and necessarily, the day-to-day function in school, but I think we operate now in a culture of everybody has devices. It’s almost a safe assumption, that there’s that potential that somebody is recording. I think at this point, people need to operate under that.

Miriam: Absolutely. Frankly, you hope that the conduct in the classroom– You’re not trying to hide something. I think it’s difficult, but teachers and team members, I think they should just all assume that they are being recorded if there’s even a possibility that you should act as if you are being recorded. Which brings me to a question, Peter, that we sometimes get, what about the privacy of other kids? If a parent sends in a recording device, doesn’t that violate FERPA or the other students’ privacy rights? How does that work?

Peter: Well, privacy is certainly a concern. You mentioned FERPA. FERPA is going to protect the privacy of student records. Those are records that relate to the student and are maintained by the district.

Lisa: If a parent’s sending in a device or a child decides, “I’m going to turn on my cell phone,” that’s not necessarily going to be a recording the district has.

Peter: The district isn’t making the recording and the district is not maintaining the recording. FERPA isn’t at play there.

Lisa: Well, I think you bring up the legitimate point about the privacy, districts really do need to be aware of the privacy of other students, privacy of staff, and I think this is where a lot of districts are starting to really evaluate this issue and develop policies globally about whether or not all students can record in a class or things like that and have a global policy for the district. I think in our conversation of this past case, we just highlight that keep in mind there still may be some exceptions even if you do create a policy that says, “No recording.”

Miriam: In other words, the district should have policies relating to student recordings, but whatever their policy is, a federal law regarding special education or the American with Disabilities Act can override the district’s policy. One question, Peter, that we sometimes get is whether or not any of this is legal. Let’s say a parent brings in a recording device to a meeting or sends in a recording device with a child. Is that a violation of the law if they didn’t tell the district about it and they were secretive about that?

Peter: Ohio is a one-party consent state. There are two-party consent states and one-party consent states.

Miriam: Can you explain that?

Peter: What that means is, it is not against the law if one party to the conversation brings a recording device or uses a recording device as long as that one person knows that they’re recording, then it does not matter if the other person knows.

Lisa: Like Peter said, we’re in Ohio, a one-party consent state, so as long as I’m in the conversation, I could record and not have to tell you?

Peter: Correct.

Lisa: I could see some concerns coming up, though, like the case we talked about, where if you’re recording the whole day, it’s likely you’re recording things that that student isn’t actually part of the conversation, whether it’s the teacher lecturing or the teacher having a conversation with another student. I think there’ll be some concerns that actually you’re recording stuff that you are not a party to.

Peter: That could be against the law if you’re picking up other conversations that you’re not a part of.

Miriam: Some states, we should clarify, are two-party consent states. In those states, you would need the consent of both parties, and in those situations, sending in a device surreptitiously could possibly violate laws.

Lisa: Yes. Absolutely.

Peter: Yes.

Miriam: What about meetings? We talked a little bit about parents sending in recording devices into the classroom. What about parents who want to record either regular meetings or special education meetings. Peter, can you talk a little bit about that?

Peter: First, there’s no law against it. You want to go look at the policies. What does this policy say about recording devices in schools?

Lisa: Right. Some districts will put into their policy, “Meetings may not be recorded or meetings may only be recorded with prior notice.” That you can put certain conditions in there, so every policy is going to be unique.

Peter: I will say, if the parent is recording, then it is advisable that a district would record themselves, so there will be two recordings.

Lisa: Yes. Absolutely.

Miriam: If you know that a parent’s planning to record a meeting, you as the district should also be recording that meeting simultaneously.

Peter: There are benefits. I’m sure you two probably have more experience than I do in the special ed arena about benefits of why a district might want to record a meeting.

Lisa: Yes. Certainly, there’s some circumstance. I mean it gives you an exact record.

Miriam: If a parent is claiming pre-determination or that something happened in the team meeting that the district disagrees, a parent might say, “I wasn’t allowed to provide input. I wasn’t permitted to participate,” and then there’s actually a recording of the parent providing input and the district discussing that parent’s suggestions, then you essentially have a very solid piece of evidence for your side.

That, I think, is a tremendous benefit to recordings. Sometimes school districts are obligated, though, Lisa, to permit recordings in certain situations for IEP meetings, and that’s if a parent needs that recording to be able to understand the IEP meeting. For example, if the parent might have a language barrier, limited English proficiency, some other kind of challenge or disability that requires the parent to sit down and listen to the IEP meeting after that meeting took place. If that’s required for the parent to be able to participate then the team has to permit that, regardless of what its policies say for other meetings. Is that right?

Lisa: Right. There definitely can be some circumstances like you described, but I do believe that there is some case law that also supports the other side of that when those circumstances aren’t present, then a district doesn’t have to permit it. I can see the other side of that, that the district sometimes are hesitant to record almost for the same reasons we talked about originally about recording in the classroom. It makes everybody on edge, it gives just a different tone to the meeting sometimes.

I get where districts come from when they do want to deny that request sometimes, too. I absolutely agree with the advice Peter gave of, if a parent does tell you they’re going to record, it is very advisable to make your own recording, too. That way you can just make sure that it’s exactly the same, you have the same access to the information. I do think that that is a good idea.

Miriam: Yes. Absolutely. In Connecticut, there’s a case out of Connecticut where the district was held to have violated special education law because it denied a parent who was native Danish speaker permission to record the meeting. She asked for permission to record it, so that she could review it later with a dictionary, the district said no and eventually the court held that this refusal denied the parent meaningful participation.

That’s one of those situations where there’s that exception. We have a case out of Ohio, the Horen Case versus Board of Education of Toledo, where the parents wanted to record but they didn’t have any language barriers or any other specific need for that recording. The Federal Court in Ohio, held that those parents had no right to record their child’s IEP meetings. You can see both sides, like you said, depending on the situation. Let’s just try to sum up for our audience some of the takeaways here. What should districts be thinking about when a parent asks to either send in a recording device to school with their child or to record a meeting?

Peter: I would say, you check out the policy first, and then see if there’s some sort of circumstance or exception that may apply here. Especially if it’s a special needs student, if there are some barriers involved, if the parents will have a hard time communicating with the special ed director or the members at that meeting, then you might want to allow the recording device. You want to allow FAPE. The whole idea is to make sure that these students are getting the services they need and the education that’s due to them.

Lisa: Right. I guess my overarching takeaway from that first analysis is, then, for an individual student to not to jump to a conclusion of we just always say no or we always say yes. Just to take an individual analysis and see whether your unique circumstances lend themselves to.

Miriam: Yes. Exactly.

Peter: And the courts are skeptical. They will challenge and push back against the parents.

Miriam: Okay. Well, thanks very much, Peter, for coming today and talking to us about this. Next time we are going to continue this conversation and we’ll talk about parent requests for video footage if the video footage includes other children. In the meantime, please subscribe to our podcast, rate us on Apple Podcasts, iTunes, Stitcher, Google Play Music or wherever you get your podcast.

Lisa: Thanks for listening.

Miriam: Have a great day.

Peter: Thank you.

Miriam: The content of this podcast was provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.

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