The nature of school security has changed dramatically over the last decade. Schools employ various measures, from metal detectors to identification badges to drug testing, to promote the safety and security of staff and students. One of the increasingly prevalent measures is the use of security cameras. In fact, the U.S. Department of Education reported that more than half of all public schools used security cameras during the 2007-2008 school year to monitor students, a 30 percent increase over eight years prior.
While security cameras can be useful in addressing and deterring violence and other misconduct, they also raise several legal issues that can leave school administrators in a quandary. Does the use of surveillance cameras to capture images violate a student or staff member’s right of privacy? If the images captured on a surveillance recording are of a student violating school rules, may district administrators use the recording in a disciplinary proceeding? If so, are parents of the accused student entitled to review the footage?
What about parents of other students whose images are captured on the recording? How should schools handle inquiries from media about surveillance footage? Can administrators use surveillance cameras to monitor staff? I outline the overriding legal principles, common traps for the unwary and practical considerations.
Fourth Amendment to the U.S. Constitution. The Fourth Amendment prohibits the government, including public schools, from conducting unreasonable searches or seizures. Courts have generally held, however, that what an individual knowingly exposes in plain view to the public will not trigger Fourth Amendment protection because no search has occurred. Someone who is videotaped in public has no expectation of privacy and, therefore, hasn’t been searched by having his or her image recorded. Courts have also upheld suspicionless searches—such as random drug testing of students who participate in extracurricular activities—in which an individual’s expectation of privacy is low and the government can demonstrate a legitimate interest in conducting the search.
Family Educational Rights and Privacy Act. FERPA requires educational institutions that receive federal funding, including public schools, to protect the confidentiality of student education records and the personally identifiable information contained in them. FERPA also provides parents and eligible students access to these records. Images recorded by cameras can under some circumstances constitute education records under FERPA.
Open-records laws. All states have adopted laws similar to the federal Freedom of Information Act providing individuals access to public records of state and local governmental agencies. While the breadth of these laws varies across states, the definition of a public record in many states encompasses video images. As a result, the images recorded by surveillance cameras may be subject to disclosure to third parties, including media, seeking access through state open-records laws.
Deterring Student Misconduct, Violence
Many school administrators believe the use of surveillance cameras deters student misconduct and improves security and the overall school climate. Some students and families, on the other hand, believe that the use of cameras intrudes upon one’s expectation of privacy and that recordings are unreasonable seizures of one’s images. However, courts have generally held that when cameras are placed in public locations in which individuals do not have a reasonable expectation of privacy, there is no Fourth Amendment violation. But when a camera is placed in an area in which a student may have a reasonable expectation of privacy, such as a restroom or locker room, a court may likely find an invasion of privacy. School administrators should be particularly cautious about using surveillance cameras that collect audio recordings in addition to video recordings. The recording of audio conversations is likely to violate Title I of the federal Electronic Communications Privacy Act of 1986 as well as state wiretapping laws.
Administrators considering the use of surveillance cameras should:
• develop policies that set out the purpose for using surveillance cameras and outline the parameters for use;
• place cameras only in common areas, like stairwells, and avoid placing cameras in areas where students and staff would have an expectation of privacy;
• notify the school community—by including statements in student handbooks and posting signs—that surveillance cameras are located throughout school buildings and that anyone on school property may be videotaped;
• and, avoid the use of cameras that record audio conversations.
Evaluating and Monitoring Employees
In addition to using surveillance cameras to address and deter student misconduct, some school districts have chosen to use surveillance cameras to monitor and evaluate staff in classrooms, in workrooms and in break rooms. Although school employees have challenged the use of surveillance cameras for these purposes as an infringement on their Fourth Amendment right to be free from an unconstitutional search or seizure, courts have generally held that school employees do not have a reasonable expectation of privacy in classrooms, workrooms, break rooms or other areas that are readily accessible to other employees. Before using surveillance cameras to monitor staff, school administrators are smart to consult with legal counsel about defining the purpose for obtaining the footage, establishing guidelines for implementing a surveillance system, and communicating with staff about the program.
Access to Recordings
Most of the time, surveillance recordings capture nothing other than images of students and staff traveling to and from their destinations. There is little reason for districts to preserve the images. But when recordings capture misconduct, such as a student fight or theft, school administrators may wish to maintain the recordings as part of their investigation and may wish to use the recordings in disciplinary proceedings against the student.
When the recording is maintained by the school for disciplinary purposes such as these, the recording will likely qualify as an education record under FERPA. If so, the parents of the students who are subject to discipline are entitled to view the recording. Likewise, school administrators are obligated to protect the confidentiality of the recording from third parties.
But if local media become aware of an incident and request to view the recording, is the recording a public record that must be disclosed to the media? Are school officials required to obtain consent from the parents of all the students in the recording?
Whether the recording is subject to disclosure will depend on several factors:
• the events and images recorded;
• the purpose for which the recording has been maintained;
• whether the recording is maintained by school officials or by a law enforcement unit of the school;
• the requirements of the state’s open-records laws, specifically whether a recording constitutes a public record;
• if the recording qualifies as a FERPA-protected education record; and
• whether the district has the technology to redact images, such as blurring faces, of students who may be identified.
Typically, FERPA-protected education records are excepted from the disclosure requirements of open-records laws. So if the recording is maintained by school officials as an education record because, for instance, it contains images of a student in an altercation, the district’s obligations under FERPA to protect the confidentiality of the recording will, in most cases, override its open-records obligations.
Sometimes a district would like to disclose a surveillance tape, but is prohibited from doing so, and sometimes a district would prefer not to disclose a tape, but is obligated to do so. Whether or not a recording qualifies as an education record and to whom it may or must be disclosed should be reviewed on an individualized basis, taking into account all the factors.
Amy M. Steketee is a former public school educator who practices school law and labor and employment law at Faegre Baker Daniels in South Bend, Ind.