The versatility of smartphones, smart watches, and other smart devices has provided people of all ages with connections with loved ones, entertainment, news, social media, selfies, and much more. With the ubiquitous use of these devices, the school district landscape has changed greatly.
Smartphones, cameras, and other recording devices regularly find their way into public schools. Their presence affects the school environment in many ways and can create legal issues. From time to time, administrators will field questions about the videotaping or recording of students or teachers in the classroom, on the playground, during parent-teacher conferences, and at sporting events. To avoid messy legal disputes, schools should establish a best practice for the use of recording devices. The following are the commonly asked questions about recording students by either video or audio recording.
Does FERPA apply to recording devices in schools?
The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, does not specifically allow or prohibit recording in schools, but districts must nevertheless take reasonable steps to protect student privacy.
Is a video an education record?
If a student is "featured" in a video, that video may be considered a part of the student's "education record" if it is maintained by the school. The term "featured" means that the information and image are directly related to or focused on a student or students. For instance, a video of a school play, in general, is not an education record. But if the video is specific to a student, that video may become a part of the student's education record.[1]
Can teachers record students?
Generally, staff should refrain from videotaping or recording students. Under limited circumstances, however, staff may record students. For example, staff may do so if the recording is for the educational purpose of helping a specific student. The recording should be for a short and defined time. Districts should require that teachers obtain permission of the building administrator before recording students for educational purposes.
Another permissible use of videotaping is the recording of a student activity, such as a school play or athletic competition, to help students improve their performance. In addition, a classroom project that involves video or audio and is supervised by a teacher is permissible. But here again, teachers should discuss such activities with their building administrator beforehand.
Can schools videotape for the purpose of staff development?
Occasionally, staff may be videotaped for the purpose of their professional development. While these videos are focused on the staff member, they may also include limited student footage (such as a student writing on the whiteboard or asking a question). This is acceptable and does not require written parental consent, but the videotaping should be for a defined period and the building administrator should give consent.
Can schools videotape students for surveillance purposes?
While schools generally refrain from surveillance of students for the purpose of catching students engaged in wrongdoing, it is not unlawful to record students for safety purposes. For example, it is not uncommon to place video devices in certain locations, such as entrances, hallways, computer labs, and school buses, to ensure general student and school safety. In response to school shootings and other acts of school violence, many districts have turned to recording devices as a proactive method of improving safety in their schools. According to the National Center for Education Statistics, more than 75 percent of public schools across the nation use security cameras to monitor their buildings.[2]
When do schools need to obtain parent permission?
The school must obtain written parent permission to videotape when the video is for a purpose other than safety or classroom instruction. If the school is going to display video on a school website or other public medium, individual students should not be identified without parental consent.
Does the IDEA require recording devices in special education classrooms?
Special education advocates and parents have argued that "meaningful parental participation" under the Individuals With Disabilities Act (the "IDEA"), 20 U.S.C. § 1400 et seq., means that the parent of a student with a disability is entitled to greater access to the classroom than the parent of a student who does not have a disability. Under this interpretation, a parent might have an enhanced right to use recording devices in schools. But the IDEA neither expressly prohibits nor requires a district to provide parents with unrestricted access to the classroom.
The Office of Special Education Programs ("OSEP") issued the following guidance in 2004, which it has consistently adhered to since:
While the IDEA expects parents of children with disabilities to have an expanded role in the evaluation and educational placement of their children and be participants, along with school personnel, in developing, reviewing, and revising the IEPs for their children, neither the statute nor the regulations implementing the IDEA provide a general entitlement for parents of children with disabilities, or their professional representatives, to observe their children in any current classroom or proposed educational placement. The determination of who has access to classrooms may be addressed by State and/or local policy.[3]
Districts should follow state law and district policy to determine a parent's right to access or observe a special education classroom. In most situations, recording a classroom will not be necessary to provide meaningful parental participation under the IDEA.
Can a parent record an IEP meeting?
The IDEA also does not specifically address recording in Individualized Educational Program ("IEP") meetings.[4] School boards should adopt rules either allowing or restricting such recordings. But any rules that prohibit or restrict a parent from recording IEP meetings must include an exception if recording is necessary to ensure that a parent understands the proceedings.
Is recording a conversation between two or more people a crime?
It depends. Both federal and state laws restrict wiretapping and eavesdropping. These laws generally apply to situations in which one party listens in on the conversations of others without their knowledge. Twelve states—including Washington and Oregon—are "all-party consent" or "two-party consent" states. These states generally prohibit individuals from recording conversations unless all parties to the communication consent to the recording. See ORS 165.540(1); RCW 9.73.030.
[1] Letter from Michael B. Hawes, Director, Student Privacy Policy, Office of the Chief Privacy Officer, U.S. Department of Education, to Timothy Wachter (Dec. 7, 2017), https://studentprivacy.ed.gov/sites/default/files/resource_document/file/Letter%20to%20Wachter%20%28Surveillance%20Video%20of%20Multiple%20Students%29_0.pdf.
[2] U.S. Department of Education, National Center for Education Statistics, Fast Response Survey System (FRSS), Public School Safety and Discipline: 2013-14, https://nces.ed.gov/pubs2015/2015051.pdf.
[3] Letter from Stephanie Smith Lee, Director, OSEP, to Shari A. Mamas (May 26, 2004), https://www2.ed.gov/policy/speced/guid/idea/letters/2004-2/mamas052604placement2q2004.pdf.
[4] Letter from Melody Musgrove, Director, OSEP, to Diana M. Savit (Feb. 10, 2014), https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acc-13-009888r-md-savit-evaluation-2-10-14.pdf.
