By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
Recording a student during the assessment process or for purposes of self observation can be a helpful documentary or teaching tool because it provides a visual and/or auditory model for students, parents, and other educational professionals. It can also be a useful teaching tool. However, without consent provided, at a minimum by the student’s parent or legal guardian, and in cases where a teacher might be recorded, from the teacher and school principal, such recordings are illegal. Additionally, many assessors and/or services providers may not be aware that any videos or audio recording of the student are considered part of his/her educational record. Thus, all laws and regulations regarding the maintenance and release of educational records, including but not limited to the Family Educational Rights and Privacy Act (“FERPA”), will apply to the recordings.
LEA board policies and administrative regulations should address maintenance of the recordings, permission to record, privacy, etc.
Maintenance of Records
It is important to remember that the recordings must be stored, accessible to parents or legal guardians, copied upon request, and can be used at due process hearing and or other legal proceedings. Further, unlike traditional paper records, magnets, viruses, and new developments in technology may damage or destroy the recording, or make it financially burdensome to transfer the recording to the newest technological recording device (e.g., beta to VHS, VHS to DVD/Blu-ray, etc.)
Permission to Record
Proper procedure and best practices dictate receipt of obtain written permission from the student’s parent or legal guardian for the LEA to record the child and utilize the recording as the LEA deems appropriate including permission to share the recording to other assessors, IEP team members, etc. As for the recording of a teacher, the Education Code requires that consent be provided by the teacher and the teacher’s principal. Although Education Code Section 51512 does not require written consent from the teacher and principal, we recommend that such written consent be obtained. Some records are worth having.
Privacy
Whenever recording is taking place, there is a risk that other children and or adults may inadvertently be videotaped or audio recorded during the process creating a potential liability under the California Penal Code if the recorded individual has not signed a release. If an unknowing and/or unwilling party was inadvertently recorded the LEA may wish to destroy the recording when still in a “draft” format, i.e., prior to the recording becoming an official pupil/educational record. The key is to make sure that if other students are likely to be recorded, that written consent be obtained from the parents or legal guardians of the other students.
An Accurate Depiction or Not?
Video and audio recordings may not capture a full picture of a student’s ability as children have both good and bad days and the day selected to record may not accurately reflect the student’s daily performance. Recording of a student will provide a snapshot on a given day and given time. The key is whether it is fairly representative of the student’s performance. As such, discern beforehand based on reliable information and performance patterns, those portions of the day that are fairly consistent and representative of the student’s typical performance and record at those times.
While the benefit of video and audio recording of students may be great, it can be fraught with peril if handled improperly. LEAs considering recording students for assessments or other legitimate educational purposes should proceed with caution as described.
