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IEP FAQs: Tapes are “Best Evidence” in Litigation

08/08/08
by Pete Wright

We are in due process. We’ve recorded the IEP meetings. Should we use transcripts of the meetings or use the tapes as evidence in the hearing?

I always submit tapes of IEP meetings as the “Best Evidence,” i.e., the primary exhibit about what was recorded at the meeting. A transcript is simply an aid to understanding the tape recording …

I prefer to use audio tapes as evidence because they are not cutting edge technology. Tapes are easier for those Hearing Officers who are not computer savvy. If the case goes up, tapes are easier for federal court judges to use. In several cases, after the hearing but before the decision was rendered, the HO / Administrative Law Judge listened to more (or all) of the tape, and became aware of the negative attitudes and intimidation of parents by school staff.

If the meeting was recorded on mini-cassette tapes and Judge uses a full-size cassette player, we still introduce the mini-cassette into evidence. By agreement, we add the full-size cassette to that exhibit after it is recorded onto the new tape.

If the tape is in a digital format, I would submit an audio CD as the “Best Evidence”, i.e., the primary exhibit.

I always submit the master tape to the Hearing officer /Administrative Law Judge and have copies made for the school board attorney, the parents, and me. ~ Pete

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21 responses so far ↓

  • 1 Lori 10/30/12 at 5:31 pm

    Our school won’t allow meetings to be audio taped. We live in Massachusetts.

  • 2 Wrightslaw 11/10/10 at 12:38 pm

    Cyndie: We NEVER recommend that parents . . . . . . ask, allow, or encourage their children to monitor their teachers. Read these two articles and the posted comments.
    Should Kids Use Recorders or Cameras to Monitor Their Teachers?
    http://www.wrightslaw.com/blog/?p=102

    Can Parents Observe Children’s Classrooms and Placements
    http://www.wrightslaw.com/blog/?p=103

  • 3 Cyndie 11/10/10 at 12:25 pm

    Is it legal for a parent to send a student to school with a recorder and secretly tape the student’s entire day? Not only were teachers recorded, but other students were recorded without their knowledge. This took place over a 2 week period.

  • 4 Laura 03/23/10 at 4:58 pm

    Can someone please help me asap and let me know what my rights are. My daughters school in florida has sent letters home wanting to decrease her therapies(speech, physical, and OT) to quarterly. My daughter is at about a one year old level cognitively, and they say she is failing to progress. But although she isnt running and talking, she has made slow but consistent progress throughout the years. I have our IEP Meeting on 3/25/10. What course can I take to prevent them from decreasing her much needed therapies?

  • 5 Ace 05/10/09 at 6:18 pm

    Always tape record the IEPs & transcribe them to hold it against the school districts. The district dumped my son into general ed with no aide and very little support. It turned absolutely disastrous and ended up putting him in the hospital. They never did 1 assessment of him despite all these new symptoms nor were we ever informed of these new symptoms. These symptoms weren’t present anywhere but the school. I’m the one that had to call the emergency IEP. I took him privately to have him assessed. The school was practically begging me not to do it because they knew they messed up & much would be found wrong. They took my son down into a prone containment. He is asthmatic and in the state of CA it is illegal for them to do because of the risk of death to the child.

  • 6 2Heidi 09/23/08 at 1:04 pm

    Thank you, thank you for this article. Even though I understand the preference for “old school” tapes, I ran right out and bought the best Digital Voice Recorder I could find that interfaces via USB with any computer and records in universally playable formats, and composed a nice, appreciative and firm letter to our IEP team (Special Services and the school staff) informing them that I would be recording all meetings and they were welcome to copies of my files there at the end of the meeting or to use their own equipment. No doubt the comments that I (and I quote the head of our county’s Spec. Ed Services here) “should be happy because your son is too bright to be stuck in a room with kids in wheelchairs on feeding tubes” won’t recur!

  • 7 Angela 09/16/08 at 4:04 pm

    In Texas you absolutely have the right to tape meetings. You do have to notify the school district in advance that you are doing so. They will then usually tape as well. I called and spoke with Texas Education Agency and got the name of the person I spoke with and wrote it down for my records. If you’re in another state, call the state ed agency and ask them. If the school district refuses or give you a hard time (we don’t have a recorder, etc) get them to sign a statement that they are refusing to hold the IEP meeting (ARD in TX) for that reason and don’t meet with them. There are consequences (yes, I know they generally are weak consequences, but still) to the school district refusing to hold an IEP meeting.

  • 8 Regina 09/16/08 at 9:51 am

    I really would like to know the answer to this one. My district says no – no matter what. Even when they refuse to provide an interpreter and translations.

    “We requested taping the IEP meeting. Our school district said “no.” Are we entitled to tape the meeting as long as we give prior notification?”

  • 9 Jill 09/16/08 at 9:43 am

    I am working with a parent and recently the school told her that she could not tape any meetings with the school, including IEP meetings. Last school year this district recieved several DPI complaints and one case went to due process and the parent won. The school’s reason is that the tape recorder intimidates the school staff or other IEP members, although they know they can have thier recorder at the meeting. How can I help this parent when the Special Ed.Director says no taping? Jill

  • 10 Laurel 09/16/08 at 9:09 am

    We live in Minnesota. How can we find out the laws regarding using tape recorders in meetings with the school?

  • 11 Isabel 09/06/08 at 9:05 pm

    We requested taping the IEP meeting. Our school district said “no.” Are we entitled to tape the meeting as long as we give prior notification?

  • 12 Jackie 08/20/08 at 12:16 pm

    Thank you for this particular information on taping IEPs. This is a very simple thing that any parent can do. So often, we find ourselves get ting emotional during IEPs or there are simply too many people, some practically “talking over one another” during the meetings. It helps to listen to the tape(s) later in order to refresh your own memory or to catch something that you might’ve missed at the meeting. It is also helpful to hear how you sound – – whether it be whiny, demanding, level-headed, or just plain unreasonable. When talking with my attorney and advocate the other day, I reminded them that we need to make sure to do this at each and every meeting – – whether the IEP waters are choppy or calm. It really is good practice. It seems like at every single IEP I’ve been to, there is always a ball that’s dropped on someone’s end. Not good – – especially when that ball is a piece of a child’s education.

  • 13 Pam Wright 08/15/08 at 5:19 pm

    Kristina:

    If I understand your question correctly, you want to know if you can tape record meetings covertly, without the knowledge of the people being taped.

    No. It may be legal in your state to tape record phone conversations. If you tape meetings covertly, this will come out eventually. I hate to think about the consequences when it does.

    Taping people in meetings without their knowledge is a huge betrayal of trust. No one who was secretly taped will ever trust you. Some may refuse to work with you. Who will help your child?

    I read your question to Pete. He said, “If her case ends up in a due process hearing or judicial proceeding, the fact that she secretly taped meetings will turn most judges against her. She will lose, regardless of the merits of her case.”

  • 14 David 08/13/08 at 9:20 pm

    We have found that the complaint process in our state to be pointless. Compensatory educational services were promises and retaliation began as a result of filing a level 1 complaint.

    Our State department is aware that nearly a year after their findings were delivered and compensatory educational hours awarded, our school district had not began to deliver any of the compensatory hours owed. This may be due in part to the fact that they did not provide any educational instruction in my son’s homebound setting that same school year following the complaint. The Director of Special Services had informed us by that time that “the parents are to locate a teacher to provide compensatory educational instruction”.

    Once we found the person who would provide my son’s instruction (My wife), we were given a virtual school course for the current school year (In April). The stipulation for getting a current school year course online was that we had to accept an offer to allow this “current” school year subject to serve as compensatory education..

    Our State and School district do not seem to be afraid of tapes or written agreements.

  • 15 Kristina 08/13/08 at 6:05 pm

    Hello!!

    I have read what has been said about taping IEP meetings. My question is this. What if you live in a state that does not require all parties to know that the meeting or phone call is being taped?

    I have a special needs son and we have already experienced statements being made and then denied being said later. I have decided to tape all meetings and any conversations with teachers and aides simply because of this.

    Should I still tell them I am taping even though my state does not require it? We live in Ohio. I am asking because I have found that people are more themselves when they don’t know that they are being taped.

    Thank you,

    Kristina

  • 16 karenRZ 08/10/08 at 4:35 pm

    Pam,

    We don’t exactly word our comment to taping as I did in my written comment – so sorry for the misunderstanding. We do it in the nicest, but assertive way possible. We feel that the current team is the reason why our son is successful, and we make sure they understand that. However, our case manager has got to be the biggest space case on the planet – and we do not trust her to remember facts, and we have caught quite a few mistakes on her part and have the proof in the taped meetings to back us up.

    And we have gotten that “Oh, we don’t have a recorder or tape” excuse from her, and we say we would be happy to provide them with a copy of our tape.

    But we will always record the meetings from this day forward because of our past experiences with the district. We’d be crazy not to.

  • 17 Wrightslaw 08/10/08 at 12:14 pm

    David: Yes, tapes are often used as evidence in litigation.

    In many states, the complaint process is lame. Many people who work at State Depts of Ed have worked for local school districts. The state dept of ed (SEA) staff and school district (LEA) staff know each other and are often friends. When the SEA gets a complaint against a local, they are not inclined to do a thorough investigation of their friends. There are also political pressures, especially from large and/or wealthy school districts.

    When the SEA does find violations, the remedy isn’t enough to deter future misconduct. In Virginia, the SEA often orders the school district to hold an IEP meeting to fix the problem. If the local refuses, nothing happens. The complaint process seems to work better in states like Mass.

    Most people who work in these agencies don’t view themselves as regulators or investigators, but as providers of $$ and training – so that’s what they do.

  • 18 Sharon 08/10/08 at 11:04 am

    I have been to many meetings where as soon as I take out my tape recorder all the Department of Education people stand up and refuse to conduct the meeting. These are usually annual/triennial reviews or initial conferences to determine eligibility.

    Do the laws vary from state to state regarding the taping of these meetings?

    Sharon

  • 19 David 08/09/08 at 3:52 pm

    This is great info.
    After seeing how frequently misleading information is added to my son’s school records, we have avoided even requesting due process. Investigators at the Office of Civil Rights as well as the State Department of Education have told me in the past that they do not review tapes of IEP meetings as part of the complaint investigation process.

    We continued taping each meeting because hearing is believing.

    In summary, our tapes clearly communicate that not all kids are entitled to a FAPE, when kids act like name, they are going to get picked on, we can actually provide more services through a service plan if you will withdraw name. (To make sure that I did not misunderstand this request, the school’s attorney drafted and IEP “Addendum” that waived my son’s right to a FAPE) and in effect, we would be withdrawing my son as a student if we signed this proposed “addendum”..

    I am really glad to know that they may be used as evidence.

  • 20 Pam Wright 08/09/08 at 11:23 am

    Karen and others – if you have questions about taping meetings, here are a couple of articles that offer practical advice.

    How and When to Tape Meetings by Brice Palmer is at http://www.wrightslaw.com/advoc/tips/palmer.meeting.tape.htm

    Tips on Taping Meetings by parent attorney Anne Eason is at
    http://www.wrightslaw.com/info/iep.tips.taping.eason.htm

    It’s been our experience that when parents tape meetings, objections fade quickly. People know that “Ms. Jones always tapes.” If the school doesn’t have a tape recorder available and wants to use this as a reason to cancel the meeting, offer to provide a copy of your tape.

    As Brice Palmer says in his article, people often forget that they are being taped. I’m surprised at the things people say in taped meetings – statements and admissions that help our clients’ case in ways we didn’t expect.

    Karen: If you say you are taping because of “the district’s past conduct,” relations will remain adversarial. From my perspective, statements like this are attempts to make people feel bad or guilty. This doesn’t improve parent-school relationships. If people feel blamed, they will be less likely to find creative ways to help your child. Just a thought.

  • 21 karenRZ 08/08/08 at 11:04 pm

    We used our tapes of our meetings with the CST during our due process action; to this day, we always record the meeting – but I constantly get the question “Oh, do you REALLY have to record the meeting?” and my retort to that is due to the district’s past conduct, YES, we record all meetings.

    However, it should be noted that you have to notify the district in advance that you intend to record the meeting as they will have their own record in process also.