Law on recording in classroom questioned

Monadnock Ledger-Transcript
Last modified: 11/5/2015 11:53:03 AM
This school year, districts across the state have been grappling with unintended consequences of HB 507, which became effective in August, relative to recordings in the classroom and student and teacher privacy. The Wilton-Lyndeborough School District has gone so far as to place a moratorium on filming until a policy for the district is established.

The new law, RSA 189:68, requires school districts to hold public hearings on “recordings” that might happen in a classroom, and to obtain permission from teachers and parents for such recordings, as well as school board approval. But the vagueness of the law has generated many questions for school communities wondering how many public hearings and permission slips are actually needed, as well as what to do in the meantime with students with disabilities who regularly record classes.

“There’s a lot of issues of privacy going on,” said Sen. Kevin Avard (R-Nashua), who represents Brookline, Greenville, Hollis, Mason, New Ipswich, Rindge, and Wards 1, 2, and 5 in Nashua. Avard was one of the sponsors of the HB 507, which he says has prompted unforeseen reactions throughout the state. He referred questions to the bill’s primary sponsor Rep. Glenn Cordelli (R-Tuftonboro), who Avard said is working to correct the oversights in the law, in particular those associated with recordings on the part of students with disabilities.

Cordelli has submitted an amendment to RSA 189:68 to be taken up in the Legislature in 2016 that, if approved, would roll back the restrictions surrounding video and audio recording in the classroom and make clear the law’s purpose.

“It got interpreted a lot more broadly than originally intended,” Cordelli said Monday.

Cordelli said his motivation in bringing forward the bill was to protect teachers from having their classrooms recorded as part of an evaluation process without their consent, and to protect the privacy of students in those classrooms being recorded for evaluations whose parents might not be informed of how the films would be used. “That was the main focus,” he said.

But filming in the classroom has long been used for other purposes, including special education assistance and as part of regular lesson plans and routines. Some students have Individualized Education Programs, or IEPs, that call for recording lessons for later review. “This is certainly not intended to prevent things like that,” Cordelli said, noting he’s even heard districts questioning whether photos of school activities may be taken.

Late this summer, Cordelli began hearing concerns about the new law, as did the N.H. School Boards Association and the N.H. Department of Education. The Department of Education put out a technical advisory on Oct. 23 to help districts understand the law’s requirements (see

“Often there are unintended consequences, but that’s why we have public hearings on these things,” Cordelli said. He said he’s not sure why the issues that are now being raised never came up in the hearings. “But hopefully we’ll get this straightened out,” he said.

The law now states, “No school shall record in any way a school classroom for any purpose without school board approval after a public hearing, and without written consent of the teacher and the parent or legal guardian of each affected student.” Cordelli’s proposed amendment reads, “No school shall record in any way a school classroom for the purpose of teacher evaluations without school board approval after a public hearing, and without written consent of the teacher and the parent or legal guardian of each affected student.” It also states that nothing in the bill shall preclude the use of audio or video recordings by students with disabilities as part of their IEPs, in accordance with the Family Education Rights and Privacy Act, or for general education purposes.

How school districts 
should proceed, for now

“You need to continue to provide services for special education, as mandated by federal law,” said Heather Gage of the N.H. Department of Education.

A school district may want to seek legal advice, she said, but the department advises districts to continue allowing students with IEPs that call for recording classroom activities to do so, while undergoing the process set out by the law — that is, holding public hearings, and obtaining school board, teacher and parental approval for that and any other type of recording.

In the event that a parent refuses to give consent, Gage said the student in question would not be recorded and the person doing the recording would have to abide by that. “The same thing happens with children in protective custody,” she said.

Because of the vagueness of the law, school districts have been questioning whether they have to have a public hearing each time a recording is planned and if that applies to permission slips as well. But the Department of Education and the School Board Association agree that one public hearing and permission slip covering the various types of recordings is sufficient.

“The numbers and the dates of those recordings do not need to be specified,” Gage said.

Barrett Christina, staff attorney with the School Board Association, says the association is also recommending school districts develop a policy authorizing recordings. A draft policy would be useful, he noted, at the public hearing on the types of recordings anticipated.

Six to eight months from now things could be quite different, Christina noted, depending on how the Legislature acts on Cordelli’s new proposal. “This is in the very early stages of the process,” he said.

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