Watching a School’s CCTV of your Child
If you ask the average American, they will tell you that their activities are captured by a video camera approximately 10x per day. But the actual number? Closer to 75, according to IPVM. Technology has advanced so much in recent years, that installing, recording and storing this video information has become much easier and affordable than it was just a decade or two ago.
And our schools are no different. Some school districts and even states have made it mandatory for all special education classrooms to be recorded all day, every day. For the most part, these cameras are installed in our school buildings in an effort to prevent another Columbine or Parkland school shooting. However, a by-product of this is that our kids’ activities are often recorded as they go about a normal school day.
Good, bad or otherwise, our kids are being recorded. As an IEP/504 parent, this can be a mixed blessing and a source of frustration.
Video records can provide us with needed information.
- Recording reported bullying incidents
- Capture and validate or incriminate reported incidents about our kids
- Set the story straight when there is conflicting information
But what do you do if the school won’t allow you to watch the video? Is it a FERPA violation? “But my child has an IEP!” is a common battle cry in this argument.
So what are your parental rights in this situation? Please note, for the purposes of this article, I want to make the following things clear.
- I am a special education advocate, not an attorney.
- I am only referring to video footage captured by the school and not by any videos that may have been captured by other students’ or staff members’ personal phones.
- I am also not referring to audio or video footage captured by a student or parent that was at an IEP meeting, or on a device such as AngelSense, without consent.
FERPA and Student Records
And here’s why. FERPA is the federal law that defines student records and student privacy. If a school actively captures video of your child, it is “maintained by the agency.”
FERPA specifically defines student records as:
“Education records” are records that are directly related to a student and that are maintained by an educational agency or institution or a party acting for or on behalf of the agency or institution. These records include but are not limited to grades, transcripts, class lists, student course schedules, health records (at the K-12 level), student financial information (at the postsecondary level), and student discipline files. The information may be recorded in any way, including, but not limited to, handwriting, print, computer media, videotape, audiotape, film, microfilm, microfiche, and e-mail.
Source: 34 CFR § 99.2
That phrase of “maintained by the agency” is key here. Agency means school or school district. Any footage captured by a parent or student may not fall under that criteria.
HUGE EXCEPTION-Law Enforcement Videos
So here’s where it can get tricky. And ugly. FERPA specifically says that if the video (thus, the student record) is maintained by a law enforcement agency, FERPA does not apply.
If your school district has SROs, or the incident is being investigated and possible charges forthcoming (for any participant), you may not have those FERPA rights. Read on.
Exclusion for Law Enforcement Unit Records
The FERPA statute and regulations (20 U.S.C. 1232g(a)(4)(B)(ii) and 34 CFR §§ 99.3 and 99.8) exclude from the definition of education records those records created and maintained by a law enforcement unit of an educational agency or institution for a law enforcement purpose. Thus, if a law enforcement unit of an educational agency or institution creates and maintains the school’s surveillance videos for a law enforcement purpose, then any such videos would not be considered to be education records. If the law enforcement unit provides a copy of the video to another component within the educational agency or institution (for example, to maintain the record in connection with a disciplinary action), then the copy of the video may become an education record of the student(s) involved if the video is not subject to any other exclusion from the definition of “education records” and the video is: (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution.
And honestly, once the school district has police involved and is considering charges against your child, you need an attorney. Once a child is in the juvenile justice system, it is so damn hard to get them back on the right track. If that is the case, please stop reading this and go find an attorney experienced in representing juveniles with disabilities.
“But I can’t afford to!” and I’m telling you, you can’t afford not to.
School Videos and Discipline
There are a few common scenarios that I hear about from parents who want to see videos.
- An incident that involved their IEP child being disciplined
- An incident of mistreatment (varying degrees) of a student by staff
- Bullying of a disabled student
I’m sure there are more, but those 3 are very common.
So let’s dig in.
Asking to See Video of an Incident
The first piece of advice I have is this. IMMEDIATELY craft a professional and succinct email asking to view the video, if such video exists, as soon as you hear of the incident.
I can’t even tell you the number of times that I’ve had clients request to see videos and were told “We only keep video footage on the servers for 24/48/72 hours.” Or whatever the time frame is that they give.
Are they telling the truth? Who knows? I can tell you this–if you’re going to pursue this beyond that answer from the district, and now you’re involving the IT department and subpoenaing data from school computer servers….trust me when I tell you that is a battle you do not want to fight.
So, as soon as you hear of the incident, send an email.
Dear Principal-Today my student said XYZ happened at school (be brief). I am requesting access to view the school’s CCTV footage of the incident, if the incident was captured on video. I am also requesting that if the school routinely erases such video footage, that measures are put into place to stop this from happening to this segment of footage. MY STUDENT is reporting that it happened in (location of building) at (date and appx time).
So, can I see the school video?
Short answer is yes. And I’m going to provide more information from FERPA below. As a parent, in most cases, you are permitted access to the video. That means you can watch it. They are not obligated to provide you a copy. Word your requests carefully.
Laws on Watching the Videos
FERPA has several guidance documents and Guidance Letters published on this.
Here are their FAQs on the subject.
They said I can’t see the video because of other students in the video.
This is probably the most common response I have heard from districts. There are other students in the video, and if you watch it, it will violate their privacy. What if a district cannot redact information, such as faces?
Here is a snippet, but I recommend you read the entire document (provided below) and it is only 4 pages.
Well, their response is a very common one. So common, in fact, that the US Department of Education felt the need to respond to it too. This letter addresses a scenario in which the school district claimed it did not have the capability to blur out faces and protect student privacy.
Only Mentions Disciplined Students
Note that it only mentions the rights of the parents of the disciplined students. It says nothing about the victims’ rights to view the video (or their parents).
When it comes to victims’ rights, the situation gets more complex. And not very hopeful or promising. At the very least, please follow my advice above and immediately request that the video footage be preserved. If the school is denying you access as a victim, you should probably seek an attorney. And yes, I get it, it sucks. FERPA has grown to protect schools, not students.
Here are some interesting case studies, including a life-threatening situation and a boy with DS being suffocated by his aide (and parents denied the video). Trigger warning, some of this is hard to read.
But what about the Special Education Laws?
Right, the special education and disability laws. Meaning-IDEA, Section 504, and ADA. Yes, those laws define a lot of the rights of our kids. But, unless they are being treated differently than their non-disabled peers, those laws won’t apply.
For example: An incident happens, and involves 6 students. Five sets of parents (all parents to non-disabled students) are allowed to watch a video. The sixth set of parents (parenting a disabled child) is not. Then, these laws may apply, in which case then I’d certainly recommend a civil rights attorney.
But by and large, we’re talking about student records and student privacy here. Whether or not your child was treated differently based upon their disability as part of the incident (your child suspended, non-disabled students were not) is a separate issue outside of your rights to watch the video footage.
They said the video doesn’t exist.
Yep, it happens. I’ve had it happen to me, while my client’s attorney was sitting in the room too. As I stated above, you can fight this, but it’s a long and tiresome road. Find an attorney.
I hope this gives you some clarity. Sometimes the laws in place to protect students do anything but.