This week CNN reported on a case in Virginia that involved a mother sending a recording device to school with her young daughter to try to capture evidence of her child being "bullied" at school. This was apparently after the mother had attempted to have school administration deal with the alleged bullying. The recording device was confiscated, the school contacted police, and felony charges were filed against the parent for intercepting wire, electronic or oral communications as well as misdemeanor charges of contributing to the delinquency of a minor.
The charges were recently dropped; the prosecutor citing "prosecutorial discretion." While of course CNN did not have access to all the facts, there was likely more to the story than "meets the eye" -- or in this case -- "the ear." Virginia is a "one-party consent state," which essentially means that if the party doing the recording is involved in the conversation or one party has given (prior) consent, then such a recording may be "legal." But here the student was a minor ("consent" is an issue with minors), there were multiple parties involved (classroom of students), and reports from CNN stated that the recording device had been in the student's desk "recording the school day." If accurate, the latter would arguably cut against the "one party participating in the conversation" consent exception. (Is the person who put the recorder in the desk "participating" when s/he may not even be in the room when the device is on and recording?)
While the charges against the mother may have been dismissed, and acknowledging that "bullying" can be a serious issue in schools that needs to be taken seriously, others who may consider doing this or schools facing a similar situation in the future should take heed and take note. Minors are very much a part of school life (obviously) so "consent" is always an issue. And besides the general privacy interests that the law seeks to protect when recording conversations of others, in the school setting there are other significant privacy interests. There could potentially be multiple individuals being inadvertently recorded (again, usually minors), and there are other laws that could be violated, such as the federal Family Educational Rights and Privacy Act (FERPA) and comparable state laws. Parents are strongly cautioned about considering sending a recording device to school in the back-pack or having one placed in a classroom, and schools need to stick to their policies and not shy away from the laws regarding protection of student privacy rights and keeping such hidden recording devices out of the classroom.
About the Author: R. V. Stanke, Ed.S, J.D., a licensed attorney, teacher, and school principal, is affiliated with LEAD Legal & Educational Services, LLC. LEAD Legal & Educational Services, LLC provides services to schools and school districts and offers continuing education programs and graduate courses in school law related areas to teachers and school administrators. For more information contact www.leadeducationservices.com).