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Can Parents Audio/Video Record Their Child During Distance Learning?

Posted by Paul Hefley | Feb 17, 2021 | 0 Comments

Parents may want to make an audio or video recording of their child for a variety of purposes. One such purpose may be to provide the school, teachers, and/or IEP team with evidence of their child's behavior (such as non-compliance) during distance learning instruction. Such evidence may be incredibly valuable to the IEP team so it can provide a free appropriate public education (FAPE) to the child.

However, parents cannot make an audio, video, or digital recording of a local educational agency's live or synchronous distance learning instruction without the prior consent of the teacher and principal of the school. California Education Code § 43503.

Importantly, the statute doesn't explicitly prohibit parents from recording their child's distance learning instruction. Instead, the statute provides discretion to the child's teacher and principal. Because school districts have a legal obligation to "offer an IEP that is reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances," it is foreseeable that certain situations might require recordings of live distance learning instruction in order that the school district has the information it needs to fulfill its legal obligation to a particular child. (see Endrew F. v. Douglas County School District).

Parental requests to record live distance learning instruction should be made in writing, either by email or letter. Such a request would likely result in the school district providing parents with a prior written notice (PWN), wherein it either accepts or refuses parents' request. A valid PWN must include the following:

(1) A description of the action proposed or refused by the public agency.

(2) An explanation of why the public agency proposes or refuses to take the action.

(3) A description of each assessment procedure, assessment, record, or report the public agency used as a basis for the proposed or refused action.

(4) A statement that the parents of an individual with exceptional needs have protection under the procedural safeguards of this part and, if this notice is not an initial referral for assessment, the means by which a copy of a description of the procedural safeguards can be obtained.

(5) Sources for parents to contact to obtain assistance in understanding the provisions of this part.

(6) A description of other options that the individualized education program team considered and the reasons why those options were rejected.

(7) A description of other factors that are relevant to the proposal or refusal of the agency.

About the Author

Paul Hefley

Paul is an experienced litigator and trial attorney. He has litigated special education cases in the California Office of Administrative Hearings, the United States District Court for the Southern District of California, and the Ninth Circuit Court of Appeals.

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