A Samuel Gaines Academy student was suspended this week after she says she was trying to defend a classmate.
Brianna Cooper, 11, says she took an audio recording in class of what she says depicted her teacher bullying a student.
Instead of receiving praise, Cooper says she was suspended for five days when the school said her video was illegal.
In legal terms… well, I’m not licensed to practice law in Florida, so I’ll leave this one up to the local police:
Law enforcement officers say recording someone without their knowledge can be legal so long as there is not an expectation of privacy.
So the questions to be asked here, it seems to me, are two:
First, does it matter at all whether the child’s recording was illegal or not? And second, if it does matter, is there an expectation of privacy in a classroom?
The first question seems fairly straightforward. In general, I think that most people would agree that behavior doesn’t need to be illegal to warrant suspension. Students get suspended all the time for doing things that are not in violation of any criminal (or even civil) statute. It’s not illegal, after all, to throw one’s book at the chalkboard in frustration, or to call one’s teacher a worthless sack of ignorance fit only for target practice. Yet these things will surely lead to suspension. So it doesn’t seem to me that it’s absolutely NECESSARY that the behavior be illegal in order for it to lead to a suspension. It may, however, be sufficient. I don’t think it’s crazy to say that a student who breaks the law at school is liable to be punished to some *lesser* extent by the school, through disciplinary procedures.
Now, the school appears to have stated that the reason for the suspension was that the behavior was illegal. But one could reasonably interpret that claim as arguing, essentially, “The student is being suspended for the behavior, and by the way this is entirely reasonable because the behavior in question is so bad that it’s illegal.”
Let’s give the school the benefit of the doubt for a moment, and assume that the behavior is not, and need not be illegal at all. Can the school punish this student anyway?
I don’t think so. Even in the rights-impoverished climate that is the American public school, students have First Amendment rights. Is the exercise of those rights significantly curtailed by case law supporting the school’s ability to keep order and look after the student body’s welfare? Sure. But the rights still exist. I’m not a First Amendment lawyer of any stripe, but it strikes me that where the photographing or recording is being used for communicative purposes, or to gather information about what public officials are doing on public property, the First Amendment is squarely implicated. This certainly seems to be such a case.
That means, if I remember my Educational Con Law correctly, that in order to ban this behavior — even if it’s not illegal — that a school needs to show that there’s a reasonable concern that there will be a “substantial disruption of or material interference with school activities” — the Tinker standard. There are a few other exceptions, but I don’t think they are relevant here.
So now let’s give me the benefit of the doubt, and say that I’m right and that the school does need the behavior to be illegal in order for the suspension to be righteous. Then the question becomes one of whether there is an “expectation of privacy” in the classroom. There’s a reasonable, albeit somewhat politically motivated discussion, of the relevant statutes here, discussing the recording of Mitt Romney’s remarks in Florida in 2012. The gist seems to be, with respect to the Florida statute anyway, that there are a lot of factors that can go into establishing or destroying an expectation of privacy:
One Florida appellate court has held that it did not violate the Florida wiretap act for a subordinate law enforcement officer to record his supervisors’ statements in a disciplinary interview; the court held that there was no reasonable expectation of privacy because of the number of persons present (five, the subordinate and four senior officers), the location of the interview (in a sergeant’s office at a police station), and the nature of the interview (a disciplinary matter). Dept. of Agriculture & Consumer Servs. v. Edwards, 654 So. 2d 628, 632-33 (Fla. 1st DCA 1995); contrast Horning-Keating at 447 (legitimate expectation of privacy in communications between clients and attorney in attorney’s office).
Here, it’s a classroom. It’s a public building — one with restricted access for safety reasons, but a public building nonetheless. The teacher is a public employee carrying out her duties, in front of twenty or thirty other people who are sitting there watching.
Additionally, it does not strike me that the classroom is really a place of privacy: observers constantly come into classrooms to, well, you know… observe. Principals worth their salt regularly do walkarounds. Teachers themselves record their teaching when they are trying to get nationally certified, or sometimes for performance reviews. Certainly the students don’t have an expectation of privacy at a school that could easily be covered by CCTV cameras and teachers watching their every move. And from the student’s point of view, the classroom is not much different from the rest of the school. I don’t see why a teacher should have an expectation of privacy in a situation in which a student would not.
So my tentative conclusions are (1) that it probably does matter that the student’s behavior was illegal (assuming that the statute is Constitutionally sound), and (2) that there probably isn’t a reasonable expectation of privacy in a classroom. And frankly, I’ve long thought that I’d *want* cameras recording everything that happened in my classroom if I were a public school teacher, both for my own edification and my legal protection. I can see why parents would want to be able to see what is happening in their child’s classroom, to verify or dispel the child’s complaints about school and about teachers. I think it’s not crazy to believe that principals should be able to flip a switch in their office and see what’s happening in their school’s classrooms.
So even if there is a reasonable expectation of privacy in a public school classroom — and I am skeptical of that claim — there probably shouldn’t be.
Private schools, on the other hand… are a different beast. Let them set themselves up however they want, and if parents like the monitored school, they can choose it. If teachers want a monitored classroom, they can take the job at the monitored school. And if they don’t, they can pick a school with a more reverent approach to classroom privacy.