TCTA ensured that provisions requiring school districts to give written notice to campus staff before putting video cameras in their classrooms were included in TEA’s finally adopted rules issued last week, implementing SB 507 from the 2015 session requiring video surveillance in certain special education settings in order to promote student safety. 

TEA released the final rules Aug. 3, 2016, after conducting stakeholder meetings in which TCTA participated, as well as soliciting public comments when the rules were proposed.  TCTA submitted written comments on the rules, which also included a request that the rules allow a staff member or other district or charter school employee who is the subject of a video recording that is believed to document a possible violation of school district, charter school or campus policy, to have access to the recording. TEA agreed, adding language to the finally adopted rules, which states that “A recording believed to document a possible violation of school district, open-enrollment charter school, or campus policy must be released for viewing by the district or charter school employee who is the subject of the disciplinary action at the request of the employee.”

SB 507 was enacted in response to several high-profile media reports of special education students being abused in schools by school employees. The stated intent of the bill was to deter instances of abuse against vulnerable non-verbal children while also protecting special education teachers from unfounded claims of misconduct.

Cameras in classrooms

The bill requires that, beginning with the 2016-17 school year, on request of a parent, trustee, or staff member, a school district/charter school must provide video cameras with audio recording capability to each campus in which a student who receives special education services in a self-contained or other special education setting is enrolled. Each campus that receives the equipment must place, operate and maintain one or more video cameras in each self-contained or other special education setting in which a majority of the students are assigned for at least 50 percent of the instructional day and provided special education and related services. The bill requires that the school district release a recording for viewing on request by:

  • a school district employee or parent of a student who is involved in an incident documented by the recording for which a complaint has been reported to the district;
  • the Texas Department of Family and Protective Services (TDFPS) as part of an investigation under the Family Code;
  • a peace officer, school nurse or district administrator trained in de-escalation and restraint techniques or human resources staff person designated by the board in response to a complaint/investigation of district or school personnel or complaint of abuse submitted by a student; or
  • appropriate TEA/SBEC personnel as part of an investigation.

Other key provisions of the bill include:

  • There are no consent requirements for parents of students in the classroom other than the one making the request, but all parents in the class must be notified before cameras installed.
  • The video cameras must be operated as long as the setting continues to have a majority of students in that setting the majority of time.
  • The video has to cover all areas of the classroom except for the bathroom and where clothing is changed; in those areas, there must be audio recording operating.
  • The requirements of the bill do not create any liability for a cause of action against a school district or school officers or employees, nor does it waive any immunity from liability for the school district or school officers or employees.
  • Regular or continual monitoring of video is prohibited (no closed circuit TV); also the video can't be used for teacher evaluation or for any purpose other than for student safety.
  • Recordings are confidential except for certain circumstances in which they can be released.

Guidance from attorney general

In developing proposed rules, TEA determined that there were several areas in which it needed guidance from the Texas Attorney General’s office; accordingly Commissioner Mike Morath solicited an opinion from the attorney general on the following issues:

  • Who is included in the term “staff member” for purposes of being able to request a video camera in his/her classroom? Morath pointed out that some stakeholders think the term should be narrowly construed so that it only applies to a teacher or teacher assistant assigned to a self-contained instructional setting; others maintain that any campus or district employee should be allowed to request a video camera.
  • Does a request trigger a district’s requirement to put video cameras in all self-contained classes or just the one in which the requesting parent’s child receives instruction?  (Several legislators, upon hearing about this issue, made post-enactment statements that the intent was for one request to trigger video surveillance in one instructional setting.) Additionally, Morath asked whether a district could place a video camera in one specific classroom if the parent requesting the video camera asked that it be placed only in his/her child’s classroom.
  • Can a district discontinue video surveillance if, for example, the student whose parent requested the video camera is no longer assigned to the classroom or has left the campus or district, or the teacher who requested the video camera is no longer assigned to that classroom?

As of this printing, the attorney general has not yet issued an opinion on these issues.

Final rules

The final rules expand on and clarify statutory provisions:

  • The requirements for video surveillance apply during the regular school year and during extended school year services.
  • With regard to who constitutes a “staff member” for purposes of being able to request a video camera in their classroom, at TCTA’s request TEA included all teachers of special education students, whether special or regular education, who are assigned to work in a self-contained or other special education setting, as well as any paraprofessionals and educational aides in these settings.
  • The definition of a self-contained classroom references the instructional arrangements/settings described in the TEA Student Attendance Accounting Handbook [including self-contained (mild/moderate/severe) regular campus; residential care and treatment facilities, and off home campus].
  • For purposes of determining to which school district employees or parents of a student the district must release a video recording, the final rules define “incident” as an event or circumstance that involves alleged “abuse” or “neglect” as those terms are described in the Texas Family Code, of a student by an employee of the school district/charter school; or alleged “physical abuse” or “sexual abuse” as those terms are described in the Texas Family Code of a student by another student; and that allegedly occurred in a self-contained classroom or other special education setting in which video surveillance required by the statute is conducted. (The statute limits release of video recordings for viewing to school district employees or parents of a student who is involved in an incident documented by the recording for which a complaint has been reported to the district). 

The rules set out a list of written policies and procedures that each school district/charter school must adopt, including:

  • The procedures for requesting video surveillance and, at TCTA’s request, the procedures for responding to a request for video surveillance;
  • The procedures for providing advanced written notice to the campus staff and the parents of the students assigned to a self-contained classroom or other special education setting that video and audio surveillance will be conducted in the classroom or setting;
  • A requirement that video cameras be operated at all times during the instructional day when students are in the self-contained classroom or other special education setting;
  • At TCTA’s request, a statement regarding the personnel who will have access to video equipment or video recordings for purposes of operating and maintaining the equipment or recordings;
  • A requirement that a campus continue to operate and maintain any video camera placed in a self-contained classroom or other special education setting for as long as the classroom or setting is one in which a majority of the students in regular attendance are provided special education and related services and are assigned to the self-contained classroom or special education setting for at least 50 percent of the instructional day;
  • A requirement that the cameras be capable of recording video and audio of all areas of the classroom or setting, except that no video surveillance may be conducted of the inside of a bathroom or other area used for toileting or diapering a student or removing or changing a student's clothes;
  • A statement that the regular or continual monitoring of video is prohibited and that video recordings must not be used for teacher evaluation or monitoring or for any purpose other than the promotion of student safety;
  • The procedures for reporting a complaint alleging that an incident occurred in a self-contained classroom or other special education setting in which video surveillance required by statute is conducted; and
  • A statement that video recordings made pursuant to the statue are confidential and a description of the limited circumstances under which the recordings may be viewed.

Finally, the rules provide that, if TDFPS personnel, a peace officer, school nurse, administrator or human resources staff member views a video recording and believes that it documents a possible violation of school district, charter or campus policy, the person may allow access to the recording to appropriate legal and human resources personnel of the district or charter school to the extent not limited by the federal student privacy laws or other laws. The rules provide that a recording believed to document a possible violation of school district, charter or campus policy may be used in a disciplinary action against district or charter school personnel and must be released in a legal proceeding at the request of a parent of the student involved in the incident documented by the recording. At TCTA’s request, the rule includes the provision that a recording believed to document a possible violation of school district, open-enrollment charter school or campus policy must be released for viewing by the district or charter school employee who is the subject of the disciplinary action at the request of the employee.

Clarifications

In response to public comments, TEA made some clarifying remarks that could prove to be useful if certain situations arise, including:

  • There is no express right for a parent to obtain a copy of a video recording of his/her child. Rather, the statute merely requires that a school district/charter school release the recording for viewing by a parent of a student who is involved in an incident documented by the recording for which a complaint has been reported;
  • A parent cannot watch video recordings of his/her child just to see how the child’s day is going;
  • There is no timeline for installing video equipment after a request for video surveillance is received, leaving that decision to local school districts and charter schools;
  • The requirement for video surveillance is not applicable to rooms on a campus other than self-contained classrooms on regular school campuses and classrooms located on campuses that serve only students who receive special education and related services.
  • In response to a question about how to determine whether a classroom is subject to video surveillance requirements when some of the students are in and out of general education during the day, TEA provided the example that, if a classroom on a regular school campus serves 12 students who receive special education services and nine spend 50 percent or more of the instructional day in the classroom and have an instructional arrangement/setting of "self-contained (mild/moderate/severe) regular campus" while three spend between 21 percent and 50 percent of the instructional day in the classroom and have an instructional arrangement/setting of "resource room/services," the classroom would be subject to video surveillance requirements, because a majority of the students in regular attendance are in a self-contained classroom as defined in the final rules.
  • A parent does not have the right to view a video recording before filing a complaint, but only after a complaint is filed.
  • In response to a question about whether staff who are responsible for operating and maintaining video equipment are allowed to view the recordings, given that the recordings are confidential, TEA answered that the statue is not intended to restrict appropriate personnel from carrying out the activities necessary to implement the statute.
  • There is no required timeline for releasing a video recording for viewing, leaving that decision to local school districts and charter schools. However, to the extent that the video recording is an education record under the Family Educational Rights and Privacy Act (FERPA), a school district must release the video for viewing not later than 45 days after it has received a request.

This last point reflects a large issue that remains unanswered, which is whether a video recording under this statute is considered an educational record, thereby invoking FERPA protections, or since the statute specifies that the recordings are for purposes of promoting student safety, it is not an educational record. TEA’s stance on the issue is that although the U.S. Department of Education’s Family Policy Compliance Office (FPCO) has yet to issue formal guidance relating to the disclosure of video surveillance recordings, TEA’s review of the available FPCO guidance reflects that video surveillance recordings of students can be considered education records under FERPA in some situations. One of the reasons this issue is so important is that it has implications for who has access to the videos, how long they must be maintained, and where they are stored. TCTA will continue to monitor this issue and inform our members if and when it is addressed.