From the NSBA School Law Seminar Boston, MA

Apr 9, 2016

Friday, April 8, 2016

Is Big Brother Really Watching?

Good morning!
Today started bright and early with a presentation on schools’ use of surveillance cameras. A two-fold inquiry: can schools make audio and video recordings of school activities, and should they?

The answer to the first part is a resounding yes. Courts are in agreement that there is no expectation of privacy in the classroom. Therefore, video or audio recordings in classrooms or other public areas does not violate individuals’ Fourth Amendment rights. This does not apply to recordings in bathrooms, changing rooms, or other areas within the school where an expectation of privacy may exist.

The second question, should schools create such recordings, is more nuanced. Videotaping is commonly requested in classrooms that serve extremely exceptional children, those who often cannot speak or advocate for themselves. Parents request such videos to ensure their children are not being subjected to abuse or neglect. Texas law now requires videos in special education classrooms, upon request of a parent, trustee, or staff member. However, one disability rights advocacy group, “TASH” (formerly The Association for the Severely Handicapped), is opposed to classroom surveillance of special education classrooms. TASH, and others, are concerned that video surveillance undermines trust between schools and parents, and may create or strengthen a bias in favor of more restrictive settings for special education students. Teachers may also oppose audio or video recording of their classrooms. Special education teachers who refuse to work in a monitored classroom can have considerable leverage, due to the shortage of and increasing need for, teachers who work with exceptional students.

Once a school district creates a video or audio recording, the next question that must be addressed is what type of record is this and who may access it? This depends largely on the purpose for creating the record. Schools should know at the outset why they are creating the recording. Recordings may be used for school safety, personnel evaluation, student discipline, or to aid law enforcement, among other purposes. The purpose of the recording will determine whether it is a student record and thus protected by FERPA, a personnel record that is subject to state law governing personnel records, and/or a record that is subject to disclosure under the state “sunshine” law.

A few courts have held that the initial purpose of a recording controls. So, for example, a surveillance tape created to monitor student safety is never a student record subject to FERPA. However, the Family Policy Compliance Office (“FPCO”), which is the federal agency charged with enforcing FERPA, takes the position that a record’s status may change if its purpose or use changes. For example, if a surveillance video recorded for purposes of school safety is used to discipline a student for misconduct, the record then becomes a student record and is subject to FERPA.

Also, a surprising number of schools are struggling with legal issues relating to the use of…drones?! Yes, drones. The primary purpose for using drones, thus far, appears to be to videotape opposing schools’ football practices. Nonetheless, the Federal Aviation Administration plans to issue regulations on the governmental and civil non-governmental use of drone in June 2016. Is school law not the most interesting area of law in which to practice?!

Tinker in the 21st Century

Another morning session focused on schools’ ability to discipline students for off-campus speech, specifically speech that occurs online or via social media. The Supreme Court’s 1969 decision in Tinker v. Des Moines Independent Community School District remains the controlling authority on student speech. Tinker, which involved students’ protesting the Vietnam war by wearing black armbands to school, contains the Supreme Court’s famous pronouncement that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Nonetheless, the court held that schools may discipline students for speech which they reasonably believe will lead to substantial disruption of or material interference with school activities. This is the standard most courts continue to apply.

However, Tinker was decided at a time when a “schoolhouse gate” could still be readily identified. A 2015 decision by the Fifth Circuit Court of Appeals, sitting en banc, highlights the difficulty in applying mid-20th century analysis to 21st century facts.
Bell v. Itawamba County School Board involved a student who was disciplined for creating and posting a rap song on Facebook and YouTube. The song contained profanity and violent lyrics about two school coaches who had been accused of harassing female students. Following a District Court order granting summary judgment in favor of the school district, then a reversal by a panel of the Fifth Circuit, the Fifth Circuit Court of Appeals, sitting en banc, issued a sharply divided decision upholding the discipline. The majority held that the discipline satisfied the Tinker standard and it was irrelevant that the speech occurred outside the “school house gate” and on social media. The majority recognized that use of the internet and social media are pervasive, and that the “school house gate” does not look the same in 2016 as it did in 1969 — if it exists at all. Students now use technology in school, as part of the curriculum. High school students are regularly enrolled in college level courses, they may earn credit for participating in community service programs or extracurricular activities, all of which take place outside the proverbial school house gate. The dissent argued that the Tinker analysis does not apply to off-campus speech. In addition, the dissent was concerned that the speech in question was on a matter of public concern — the alleged harassment of students by teachers. Bell’s petition for writ of certiorari with the U.S. Supreme Court was denied on February 29, 2016.

Schools continue to grapple with the standard for disciplining students for speech on social media. Questions include:
— What type of substantial disruption can reasonably be forecast?
— Should there be a focus on the “threat” character of the speech? On the intent of the speaker? On the audience reached?
— Should the rules apply 24/7? During school breaks? Over the summer?
— Does the fact that the speech is a “matter of public concern” come into play?
— Does the speech deserve greater protection if it is music, or “art,” such as the rap song in Bell?

Meanwhile, the U.S. Court of Appeals for the Eighth Circuit, the federal court with jurisdiction in Missouri, has applied Tinker to off-campus speech in at least two cases: D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60 (8th Cir. 2011) and S.J.W. v. Lee’s Summit R-7 Sch. Dist. (8th Cir. 2012).

“Terminating Teachers with Positive Performance Evaluations”
Wait, what’s that you say? How could this happen? If a teacher needs to be terminated, surely their performance evaluations would bear that out, right? *sigh* Alas, no. Most of the time when an administrator wants to terminate a teacher for performance concerns, the teacher’s performance evaluations range from average to stellar. This is usually the result of one of the following circumstances:
1. The teacher’s evaluations are inaccurate. This occurs when the evaluator does not accurately assess the teacher’s performance or, perhaps, there is a new evaluator who has different standards or expectations.
2. The teacher’s classroom performance is adequate and their evaluations reflect that, however the teacher is engaging in problematic behavior outside the classroom. For example, the teacher may be great in the classroom but has poor relationships with adult staff members.
3. Overall performance has been good, however the teacher has engaged in an intervening act of misconduct that warrants termination, such as misuse of social media, criminal or unethical activity, or inappropriate interactions with students.

To prevail in these cases, school districts must document all misconduct and performance concerns. Written documentation of employee wrongdoing is essential to overcome a history of positive evaluations. An employer’s actions will be evaluated for fairness by assessing the decisionmaker’s credibility. Documentation will enhance credibility, whereas absence of documentation leaves the decisionmaker subject to claims of pretext or, potentially, discrimination and/or retaliation.

Some best practices when documenting teacher performance concerns:
— Rely on facts and observations rather than rumors and speculation.
— Include the teacher’s response to the allegations.
— Identify specific actions or statements that form the basis for concerns, rather than generalized comments.
— Link the conduct in question to the teacher’s job performance.
— Include the full date of all events and do NOT backdate.
— Treat similarly situated employees consistently.
— Do not maintain “working files” of issues that the employee doesn’t know about.
— Follow district policies and guidelines.
— Address serious issues with the employee in person, rather than via email.
— Provide an opportunity for the teacher to review and acknowledge receipt of documentation.
— Inconsistent documentation may be perceived as discrimination or harassment.

Whew…it’s been a long day, but so informative! Looking forward to exploring Boston this evening before tomorrow’s final session.