Appellate Court Prevents Audio/Visual Recording of Special Education Classrooms

The Second District Appellate Court of Illinois has prevented a district from installing and operating audio and video equipment in certain special education classrooms, finding that the proposed policy would violate the Illinois Eavesdropping Act.

In Plock v. Board of Education of Freeport School District No. 145, 2009 WL 4757384 (2009), the district proposed the policy following reports of student abuse and the subsequent resignations of a teacher and classroom aide.  The parents of special education students requested audio and video recording to prevent future abuse.Plaintiffs, special education teachers employed by the district, sued in state court, alleging that the audio recordings would violate their fourth amendment right to be free from unreasonable search and seizures and violate the Eavesdropping Act.

Following removal to federal court, a federal trial court found that the proposed policy would not violate the Fourth Amendment and sent the case back to state court to rule on the Eavesdropping Act claim.  The court found the District’s proposed policy would violate the Act, and granted summary judgment to the plaintiffs.

The appellate court affirmed, stating that the plain language of the statute applied to the policy.  The Act provides that a person commits eavesdropping when he knowingly or intentionally uses an eavesdropping device for the purpose of hearing or recording all or part of any conversation, or “intercepts, retains, or transcribes electronic communication” without the consent of all of the parties of the conversation or electronic communication.  720 ILCS 5/14-2(a)(1).

The Appellate Court upheld the trial court finding that teaching occurring in the classroom constitutes a “conversation” under the Act, regardless of whether the conversation is intended to be private.  It rejected the District’s reliance on DeBoer v. Village of Oak Park, 90 F.Supp.2d 922 (N.D. Ill. 1999), in which the court held that the Act did not apply to public speeches.  The District argued that such speech-like communication was similar to that which would occur when a professor delivers a lecture to a large audience.  The court found, however, that exchanges at lower levels of education were better characterized as “ongoing oral exchanges between teachers and students,” and were thus easily distinguishable from the public speech setting.  The fact that the Act included an exclusion for recordings on school buses supported its determination, because the legislature had the power, but chose not to exempt such conversations.

The court rejected the District’s second argument, finding that the plain meaning of the Act applies to conversations, regardless of whether there is a subjective or objective expectation of privacy.  The court rejected the District’s public policy argument, finding that audio and video recording was not the only means of protecting teachers and students.

Finally, the court found that, although implied consent can apply to the Act, the employer could not compel its employees to relinquish their statutory rights.  Instead, relinquishment requires a knowing and voluntary waiver.  The court found waiver could not be inferred in this case because there was a direct statement opposing the proposed policy.

The Appellate Court’s decision in Plock raises a host of issues regarding tape recoding inthe school context.  Bennett Rodick will discuss the implications of Plock at his keynote address at the winter meeting of the Illinois Alliance of Administrators of Special Education.