In my state, it is illegal to record people without their permission. Is there an exception for students with disabilities who need to record class lectures for education purposes?
Many students with disabilities have difficulty with listening, focus, processing, note-taking, etc. Recording a class would be a reasonable accommodation for these students.
If you are a high school student with a disability who has an IEP, the IEP Team is required to consider your unique needs and challenges and write any necessary accommodations in the IEP.
IDEA 2004 also requires that the IEP team consider a student’s need for assistive technology.
Many students use assistive technology in class when they need accommodations for listening and note-taking. The LiveScribe pen (a digital recording device) is commonly used for this purpose.
You’ll find more information about this in the blog post Assistive Technology for the Struggling Notetaker at https://www.wrightslaw.com/blog/assistive-technology-for-the-struggling-notetaker/
Right to Privacy in the Classroom
In this article from 2011 in Queen Anne County, MD, teacher’s found there’s “no such thing as private speech in a public school classroom,” when a teacher brought privacy concerns about using Livescribe pens in special ed classrooms to the School Board.
Tyson Bennett, a sped lawyer for the school board noted “several cases in which judges have ruled that what transpires in a classroom is not private speech.”
Bennett did not cite the case, but said, “When an Illinois special education teacher objected to her class being recorded in 2007 the U.S. District Court there ruled against her. The decision, which upheld those in two previous cases, was that “teachers have no reasonable expectation of privacy in communicating in their classrooms.”
Below is the Federal District Court ruling in Plock v. Board of Education of Freeport School District No. 145, 545 F.Supp.2d 755, 758 (N.D.Ill.2007).
A classroom in a public school is not the private property of any teacher. A classroom is a public space in which government employees communicate with members of the public. There is nothing private about communications which take place in such a setting. Any expectations of privacy concerning communications taking place in special education classrooms such as those subject to the proposed audio monitoring in this case are inherently unreasonable and beyond the protection of the Fourth Amendment.
In Plock (2009), a Court of Appeals ruled on the “conversation” between students and teachers in a special education classroom under the Eavesdropping Act.*
Today, in Queen Anne County schools, Livescribe smart pens are used as instructional technology in classrooms.
Hat tip to our online community member, Chris, for sharing this –
** Update, March 28, 2014 **
Illinois Supreme Court Strikes Down Illinois Eavesdropping Law
In 1994, the IL Eavesdropping Act “defined an ‘eavesdropping device’ to include ‘any device capable of being used to hear or record oral conversations or intercept, retain, or transcribe electronic communications’…”
As of March 20, 2014 –
…individuals and organizations should be aware that the law no longer prohibits the recording and distribution of conversations by a private individual.
The Illinois Supreme Court in People v. Clark, 2014 IL 115776 and People v. Melongo, 2014 IL 114852, two unconsolidated cases, each held that the Illinois Eavesdropping Act is unconstitutional due to its violation of the First Amendment of the U.S. Constitution.
Whether or not Illinois will attempt to remain an “all party” consent state or join the majority of “single party” consent states remains to be seen.
Illinois Supreme Court Strikes Down Illinois Eavesdropping Law, National Law Review (June 4, 2019).
Smartpens Help Students with Disabilities
For post secondary students with disabilities, Section 504 covers your right to reasonable accommodations to ensure full participation in educational programs and activities.
You will find examples of colleges and universities nationwide that approve smartpens as a perfect accommodation for students – they also provide the pen.
Your state and/or your school may have specific guidelines for recording class lectures. If you are in post-secondary education, contact the Disability Services office at your school for more information or assistance.
Re-edited from a post originally published 07/02/2012
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‘Smartpen’ Pilot Program Helps Students with Disabilities
Understanding Confidentiality Requirements
Parent Observations v. Student Confidentiality
Parent Observation in the Classroom? Yes!
I apologize but I’m a little confused as to where we are at with all of this with the changing rulings and appeals etc. We are located in Illinois. My child is diagnosed autistic/ADHD. They struggle with taking notes and listening at the same time and would prefer to just listen and have the audio recording. I was told at two different IEP meetings that my teen cannot legally record her high school lectures due to privacy of the other students. So I’m just wanting to find out on here if that’s correct. Thank you
I suggest that you contact your state parent training & information center. Many rules can vary by state. http://www.parentcenterhub.org/find-your-center
I can use some guidance on a situation around a smartpen. In NY, high school student received a IEE by a Neuropsych on parents private insurance. During the CSE/IEP Annual Review recently, the neuropsych presented her findings and offered a recommendation of a livescribe smartpen that would allow the student to play back lecture. The chair was non-committal to that recommendation, and then talked to the parents off the record a week later. During that conversation it was stated that he doesn’t think it would be a device that would be helpful and also stated there are privacy concerns. The parents stated that from there understanding there is no reasonable expectation of privacy in a public school setting. He stated it was more complicated than that and another IEP meeting would be needed.
There is an update on this case regarding the ruling prohibiting recording of the “conversation.” The 2009 decision prohibiting capturing of audio was based on the Appellate Court’s interpretation of the Illinois wiretapping law see: Illinois Compiled Statutes (720 ILCS 5). March 20, 2014, the Illinois Supreme Court declared the Illinois wiretapping law unconstitutional unanimously in People v. Melongo and People v. Clark. Lower courts had found that it criminalized “wholly innocent conduct”.
As amended, the new wiretapping law requires that in order to commit a criminal offense, a person must be recording “in a surreptitious manner”. The legislative history indicates that it was meant to upholds the rights of citizens to record in public.
Chris, many thanks for this update. We always appreciate those in our online community who share information to help us stay up-to-date. I’ve added the information you sent to the blog post (with a hat tip to you) to make sure all of our readers are aware of the changes in IL. Thanks again.
Hi – This was helpful background for my issue. Any updates on the state of the law surrounding this issue since 2012? Thanks!
It is still important to know what your state law says.
Amazingly, I have negotiated Livescribe pens in 2 IEPs and 2 504s in one district. One high school in that district now refuses to allow the third 504 student to use it. They say it could be unfair to the teachers. Seems to me there’s already a precedent in the district.
Even weirder is that in my state, you can record with the knowledge of just one person – you. With all the smart phones, recording goes on all the time. Our Board Policy says that you cannot record in the bathroom or the locker room. Should be a fun meeting as we ramp up for the school year.
We have found that most sped teachers have been “brought up” on pencil and paper and are having a difficult time transitioning to technology. We have worked to use AT for several years and have learned that it works in some classes and not well in others. (There are no good AT writing tools for higher math…After several years of struggle we finally got an aide for that class only.) We asked repeatedly for a SMARTPEN and it was resisted, but we got it for this coming year as a kind of adaptive skill in our transition plan to college. For our other child with a writing issue, we found that colleges are good with it, as it is not nearly as powerful as iphones and ipads used routinely in the 504 world.
Our district hasn’t decided on this yet, but they seem to be leaning toward saying no. It isn’t the only the privacy of the teachers at stake. It’s the privacy of the whole class. We would love to believe that kids should, or shouldn’t, do or behave in certain ways, but in reality there are issues in classes. In that case the recording of the child that acts out (maybe a child with issues) could quickly end up public knowledge, on the internet, etc… which is a breech of student privacy rights. There is probably some sort of middle ground to be reached where recordings could be used in class, but it is yet to be found here.
The district does not allow the smart pen. My son is going to 7th. Instead he has copy of class notes on his IEP. As long as we have the notes to study from, it is fine. i just make him copy in what he didn’t get in class. The teachers do hate that he needs it. In 5th grade he had a lovely teacher who also liked the smart pen and we used it, mostly for math. She would do a problem with the pen and I would play it back during homework, it really helped. I would make a pen cast of two of him doing the problem, step by step and she could see if he actually understood or where he was going wrong. Her opinion was that no teacher should be saying or doing anything in class that they would not want recorded. I agree. If you can not self regulate your words and actions in front of the kids, there is a problem.
I know for many parents, with kids in the upper grades, that a teacher’s refusal to accommodate is frustrating and very problematic. Yet, I learned how to truly understand the role of union politics, school culture and climate in the upper grades. Parents have to understand who the power players are in a school culture. Many special education administrators and teachers can do little if a teacher refuses to have a child use AT. I have seen this first hand. It breaks my heart. Yet, Wrightslaw has taught me how to navigate through the system with savvy. By doing so, my child is getting FAPE. I am not a political person but when it comes to my child it has been well worth it for me to understand and make myself known to the change agents in my child’s school district. Indeed, it is a tiring process but worth it.
My son is dyslexic and taking college prep classes. He uses AT for homework. He has IEP goals for notetaking, organization and self-advocacy. Our district has repeatedly refused to include a smartpen in his IEP because some teachers stated they would not allow it. Instead the IEP offers a behavior aide as notetaker. Many staff members assume my son is receiving behavior intervention. My son cannot independently read the aides’ notes, and the aides have not utilized the funded time to review their notes with him. My son has made no progress on his goals for notetaking or organization. In April I signed the IEP, which had SMART goals, but reporting has been vague and untimely. I want to persuade the special ed director to remove the aide, add the smartpen and AT specialist support for my son’s goals. Please advise on strategy.