Case of cursing LAUSD teacher raises legal questions about secret recordings
Published Oct. 12, 2013
It’s a story as old as smartphones.
A teacher has a weak moment in class and loses his or her cool — perhaps flipping a desk, or berating a student. A student in the class uses his or her mobile device to record the meltdown. The video or audio recording ends up on the Internet, and the teacher gets in trouble.
In the case of a high school English teacher at HArts Academy in Harbor City, the meltdown took the form of a profane tirade in response to being heckled by a student.
The teacher, who last week was placed on paid leave while Los Angeles Unified School District administrators investigate the matter, argues that she shouldn’t be disciplined because the student broke the law by making the recording.
But is that true?
It turns out the answer is complicated. Under California Education Code Section 51512, it indeed is illegal for any person — including a student — to use an electronic device to record what is happening in the classroom without the consent of the teacher.
But here is where the matter gets tricky: The teeth in the law really applies only to people who are not students. That is, any nonpupil who is caught recording a classroom discussion without the teacher’s consent can be charged with a misdemeanor.
“If I want to audit my kid’s class — maybe I think the material violates some religious belief — I can’t record the class without the teacher’s permission,” said Rebecca Lonergan, an assistant professor of law at USC.
When it comes to students who are caught surreptitiously recording their teachers, the punishment is determined by school administrators.
“If it’s a student, you’re not going to criminally prosecute them for recording their teacher,” said Lonergan, who also has worked with the U.S. Attorney’s Office, where she dealt with many wiretapping cases. After all, “they may be doing it with good motivations, as a study aid.”
That reportedly wasn’t the case for the student who recorded the HArts teacher, whose name the Daily Breeze has declined to publish.
According to the teacher, the student had been egging her on in front of the 12th-grade class.
That student then allegedly brought the recording to a faculty member on the campus of Narbonne High School, the comprehensive high school from which the brand-new academy split this fall. The HArts Academy teacher contends the Narbonne teacher began disseminating the recording to others on campus.
Does this mean that the student who recorded the teacher is subject to greater discipline because her intent was to do harm to the teacher? Not necessarily.
LAUSD spokeswoman Ellen Morgan said the district policy is that cellphones are not allowed to be turned on in class. The school policy does not distinguish between using a phone to text with a friend or using it to embarrass a teacher.
“On is on,” she said. “The policy clearly states it shouldn’t be on.”
Outside of the classroom, the laws on surreptitious recordings in California are relatively strict.
California is among 12 states nationwide to require “two-party consent,” meaning a conversation between two people in person or over the phone cannot be recorded unless both parties are aware. (The law also applies to conversations with more than two participants.)
The other 38 states, and the District of Columbia, require just one party to be aware.
Two-party consent law — codified in California law by Penal Code Section 632 — means an incriminating statement cannot be used against a person who was secretly recorded by another person who was not acting as an agent of law enforcement. In other words, the evidence is not admissible in court.
Does this mean that the teacher can be disciplined even though the evidence that launched the investigation was obtained as the result of an illegal act?
According to a precedent case in 1999, the answer is yes. In Evens v. Superior Court, Karen Evens, a science teacher at LAUSD, was surreptitiously videotaped by two students. Although reports online are not clear about what the video captured, it’s clear that it depicted some sort of misconduct on the part of the teacher.
The LAUSD school sought to use it as evidence in a disciplinary hearing. Through the teachers union, Evens filed a lawsuit arguing that the evidence was not permissible in court.
Ultimately, the California Court of Appeal ruled against the teacher.
The students, meanwhile, were suspended.
As for the student in this case, LAUSD officials said the punishment will depend on several factors.
“You always look at discipline of students as a continuum,” said Chris Ortiz, LAUSD’s director of school operations. “We look at: Does the student have a prior history of this type of violation?”
If so, he said, a suspension might be in order. If not, “we look at other means of correction — volunteering at the school, maybe, or writing a letter of apology.”
Officials from United Teachers Los Angeles declined to comment.