AngelSense™, Amber Alert GPS™, Pocket Finder™, Filip™. The list of tracking devices for students with special needs constantly grows, and parents increasingly seek to send such devices with their students to school. The use of GPS is usually uncontroversial. But what if the device allows parents to listen into or even record what the student hears at school? Such functions can raise a plethora of legal concerns. In a recent due process decision from Nevada, an impartial hearing officer decided that parents of a student with Autism could not use the “listen-in” function of an AngelSense tracker at school. What does this decision mean for school districts across the country, including in Illinois?

Background on the Case

This case revolves around a non-verbal student with autism, JJ, whose teacher was arrested last year for allegedly hitting him with a stick. According to media reports, JJ’s parents, Joshua and Britten Wahrer, moved JJ to another school in the school district after the incident. During the first week of school, however, JJ wandered out of a classroom and school staff did not know where he was. The Wahrers sought to equip JJ with an AngelSense tracking device with a listen-in function while he was at school. In support of using the listen-in function, the parents cited the fact that JJ was not able to tell them that he was abused by his teacher. When the school refused to allow JJ to use the listen-in feature, the Wahrers filed a due process complaint under the IDEA.

This isn’t the first time a tribunal has addressed this question. In 2018, the First Circuit Court of Appeals (which has jurisdiction over Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) addressed a complaint by the parents of high school student with autism who had very limited communication skills. Pollack and Quirion v. Reg. Sch. Unit 75, 69 IDELR 271 (D. Me. 2017), aff’d, 118 LRP 11675 (1st Cir. 2018). Like in the Nevada case, the parents requested that the student wear a recording device at school so they could learn more about his day and have an easier time determining if he experienced any mistreatment of abuse. The district refused, noting that the student was making progress without the device and the student’s IEP already called for a daily communication log with parents. The school also argued that it would be disruptive.

Applicable Legal Concerns

The school was likely driven by the same legal concerns that most school districts would identify when faced with this type of request. What are they?

  • Eavesdropping. School districts are often concerned about eavesdropping laws when recording in the school environment occurs. Most states, including Nevada, require at least one party to a conversation to consent to listening in to or recording of a conversation. Some states have more stringent laws. In Illinois, for example, the law prohibits the knowing and intentional surreptitious “overhearing, transmitting, or recording” of a “private” conversation without consent of those involved. Even if a parent were told not to use an audio device on a GPS tracker but did so anyway—making the action “surreptitious” (i.e., using stealth or deception)—the recorded conversation would still need to be private for the law to be violated. The law defines private conversations as communications “where one or more of the parties intended the communication to be of a private nature under circumstances reasonably justifying that expectation.” Court cases have called into question whether conversations in a classroom would be subject to an expectation of privacy. Nonetheless, the uncertainty in this area of law often gives school districts understandable pause when faced with a request to audio record or transmit from the classroom.
  • Student Records. Another legal concern relates to student records. A listener might be able to identify particular students and confidential or student-related information through an audio feed. Such information could be protected by student records laws at both the state and federal level.
  • Labor and Employment. Finally, labor and employment concerns can come into play with such devices. Recording or transmitting in the classroom could be a change in the terms or conditions of employment and so may be subject to collective bargaining. Teachers and other employees may also be concerned about the transmission of truly private conversations for which the student incidentally overhears.

The unsettled nature of these laws and legal issues understandably make schools wary when asked to allow audio recording or transmitting the school environment.

The Case Decision

The Nevada hearing officer decided that the Wahrers could not require the district to allow JJ to use the listen-in function of the tracking device at school. The hearing officer cited the Nevada eavesdropping law in support of his decision, finding that it is unlawful for parents to listen in to communications at a public school without the knowledge of the person being observed. He also found that the AngelSense tracker would not protect the student from abuse by school staff, even if the listen-in function were used.

This was a similar decision to the one reached in Pollack and Quirion, the First Circuit case mentioned above. There, the judge found that use of the listen-in function on the GPS device was not necessary. The student was making significant progress without the device and the parents were already receiving detailed communication logs. The judge also noted that the device was not necessary for the student to benefit educationally and actually could be harmful.

Six Key Takeaways for School Leaders

The reasoning in these decisions applies to school districts across the country. The decisions provide support to a school district denying a request to use an audio recording or transmitting function on a GPS tracking device at school. Based on these cases, keep the following six tips in mind when addressing requests from parents to use tracking devices with an audio function at school:

  1. Prohibit. Consider a board of education policy prohibiting the use of audio functions for student tracking devices on campus or at school-sponsored events or activities without prior written authorization from the school district. A school district in Texas recently decided to add such language to its personal telecommunications/electronic devices policy because of the privacy and confidentiality concerns associated with such devices. Communicate the policy in student/parent handbooks and directly to parents of students with disabilities.
  2. Agree. When a student is identified as a candidate for a tracking device, have the parents/guardians of the student and, if appropriate, the student an agreement that any audio transmitting or recording function will be disabled while at school. Describe the consequences that may occur if there are violations of the agreement.
  3. Disable. Consider options to automatically disable audio recording or transmitting functions on a device during school hours. AngelSense offers such a feature to address school privacy considerations and rules. AngelSense also has a school dashboard that allows school districts some control over setting and changing the predefined schedule of school days and hours during which the voice features of the device will disabled.
  4. Supervise. During the due process hearing, school officials acknowledged that the cameras at JJ’s elementary school did not function. The parents’ attorney also suggested that the school did not engage in sufficient supervision of special education staff to ensure that abuse did not occur. Taking steps to ensure parents that school staff are adequately supervised and monitored can alleviate such concerns.
  5. Communicate. The Wahrers claimed that school staff did not communicate with them frequently enough about JJ’s experiences at school, leading them to seek to use the audio recording feature of the tracking device. More communication between school staff and parents coupled with the ability to observe the student in the school environment can lessen such worries. For example, in the Pollack and Quirion case, the fact that the IEP already called for a daily communication log with parents supported the court’s decision that the district property denied the request.
  6. Remember. Don’t forget that if an audio or recording device is necessary for a student to receive FAPE per the student’s IEP or 504 Plan, different rules apply. Do not rely on a general policy to prohibit use of necessary devices for the student in such situations. If there is an individual need for the student that can be met by an audio recording or transmitting device, consider whether there is any other way that the need can be addressed. If an audio recording or transmitting device is the only way to meet a student’s disability-related need, it should be allowed. Check out our previous blog post on the use of virtual technology in the classroom for more information on the considerations at play here.