EdLawConnect Blog

Since the advent of the cellular phone camera, nearly every high school student is equipped to surreptitiously videotape his/her teacher.  While this practice is statutorily-prohibited, what happens when a student breaks the rule and the cellular phone video depicts an image that would subject the teacher to discipline?

To be clear, the Education Code expressly prohibits surreptitiously videotaping a teacher.  Education Code section 51512 states in relevant part:

The Legislature finds that the use by any person, including a pupil, of any electronic listening or recording device in any classroom of the elementary and secondary schools without the prior consent of the teacher and the principal of the school given to promote an educational purpose disrupts and impairs the teaching process and discipline in the elementary and secondary schools, and such use is prohibited. Any person, other than a pupil, who willfully violates this section shall be guilty of a misdemeanor.

Any pupil violating this section shall be subject to appropriate disciplinary action.

This section shall not be construed as affecting the powers, rights, and liabilities arising from the use of electronic listening or recording devices as provided for by any other provision of law.

So, this begs the question, if a student video records a teacher engaging in misconduct, can it be used in a subsequent dismissal hearing?  According to the California Court of Appeal, the answer is yes.

In Evens v. Superior Court (1999) 77 Cal.App.4^th 320, a teacher, Karen Evens, worked for the Los Angeles Unified School District (“LAUSD”).  In May of 1999, two students in Evens’ science class surreptitiously recorded her providing instruction in violation of Education Code section 51512.  The students delivered the videotape to the LAUSD Board and the Administration.  The teacher and the union subsequently filed a lawsuit seeking a judicial determination that Section 51512 prohibited the Board an LAUSD from viewing the videotape, an injunction prohibiting the parties from viewing the tape, and an order directing its destruction.

The superior court denied the request for the injunction and ruled that LAUSD and the Board were allowed to view the videotape.  The court, however, did not rule on whether the videotape could be used for disciplinary purposes.

On appeal, the court held that despite the fact that evidence of teacher misconduct had been obtained in violation of Section 51512, it could still be used in a subsequent disciplinary proceeding.  The court reasoned that while Section 51512 provides for sanctions against violators, it does not specifically prohibit the use of the illegally-produced evidence in disciplinary proceedings.

Therefore, surreptitious recordings of teachers by students may subsequently be used against the teacher in a disciplinary proceeding.  It is important, however, to note two important caveats.  First, a student who secretly videotapes a teacher must be punished in accordance with District policy.  Second, District officials cannot seek out a student to make a recording; doing so would subject the requestor to the criminal penalty delineated in Education Code section 51512.