“Are we on the record? Legal Issues with Recordings in School.”

By Clint Campion of Sedor, Wendlandt, Evans & Filippi, LLC

Part two of a series on Technology and the Law.

As a trial attorney, I pay close attention when a judge announces, “we are on the record” because everything I say is being recorded. Several years ago, the Alaska Court System installed a new recording system in courtrooms across the State. The system activates a blue light when recording, so everyone knows “we are on the record.”

There is, however, no “blue light” in our schools. Teachers, students, and staff may be recorded without their knowledge or consent. Today’s smartphones have the capacity to audio and video record every interaction between students and staff. 

The prevalence of smartphones and the ease of recording in classrooms and schools create significant potential legal issues. School districts should consider these issues in developing practices and procedures pertaining to electronic devices and recording. 

Alaska is a “one-party consent” state. This means that only one party to a conversation must consent to recording the conversation. Let’s apply that to the school setting; any conversation, discussion, or phone call that you have maybe recorded if the other person decides to record it. Your knowledge and consent are not required. 

Staff or district initiated recordings may be impacted by the Family Educational Rights and Privacy Act (FERPA). FERPA does not expressly permit or prohibit recording in schools. But, if the recording is or becomes a record under FERPA, then the Act would apply. For example, a recording that is used as a basis for disciplinary action would be considered an education record protected under FERPA. Some one-party consent states have adopted laws that require written consent of a parent before school employees may record a student with exceptions for safety. Alaska has not.

Students are also a source of recordings. A student’s recording of a teacher may reveal poor performance by the teacher. In Roberts v. Houston Independent School District, a teacher sued after being terminated for her poor teaching performance. Verna Roberts claimed that her termination violated her right to privacy in her classroom. The district partially relied on recordings of her teaching in reaching the decision to terminate her employment. The Court of Appeals of Texas rejected the teacher’s argument, explaining that “the activity of teaching in a public classroom does not fall within the expected zone of privacy.” 

Parents sometimes have an interest in recording also. For instance, parents may want to record interactions between their children and staff or students to enhance learning for their children at school. Some school districts have policies that prohibit such recording. 

In Pollack v. Regional School Unit 75, the parents of a special education student in Maine unsuccessfully sued the school district where their son attended high school. The parents wanted to send their nonverbal, autistic teenaged son to school with a recording device so their son could “tell about his day at school.” The school district denied the parents’ request, relying on its privately-owned device policy, which prevented recording if the district believed the recording would disrupt the education of other students. 

The First Circuit of the United States Court of Appeals and the District Court found that the school district was justified in its decision to prevent the student from using a recording device all day at school. In addition, to attend school with a recording device would not provide any demonstrable benefit to the student’s education.

Not all recordings are bad or legally risky. For instance, schools across the country are using recording technology to improve the educational services it provides to students. Recordings of teacher’s performance can be useful in a teacher’s professional development to better understand their teaching style and effectiveness. Recordings of students with IEPs can provide critical information about the student’s progress in reaching goals and objectives. Smart pens can record instruction in classrooms, which can be replayed and reviewed to reinforce instruction.

As with all technology, the ease and sophistication of recordings has its ups and downs; we are left with trying to find the elusive balance between them. With regard to surreptitious recordings, if you suspect you may be recorded during a conversation, it is a good practice to ask the other party if he or she is recording the conversation. If so, request a copy of the recording. Unlike the courtroom, remember that there is no blue light to alert you that you are “on the record.”

More of the series on Technology and the Law:

The iPhone 11 – Not your Father’s Flip-Phone

More from Sedor, Wendlandt, Evans & Filippi, LLC:

Eight-part series: Interacting with the world outside of the schoolhouse gates

Five-part series: Union Issues in Schools

Four-part series: Freedom of Expression in Schools

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The views expressed here are the writer’s and are not necessarily endorsed by the Association of Alaska School Boards. AASB welcomes diverse perspectives and civil discourse. To submit a Guest Column for consideration, see our Guest Column Guidelines and email your 400-1000 word submission HERE.