The Texas attorney general issued an opinion this week that any attempt in TEA rules to put limits on video cameras in special education classrooms in school districts would likely exceed the commissioner’s authority. The Sept. 13, 2016, opinion was issued in response to a request from the Texas Education Agency for guidance on the legislation passed last session.

At issue was whether TEA rules could limit who requests the placement of a camera, whether a request applied to a single classroom and how long the camera must remain in the classroom. The attorney general opined that TEA rules that impose restrictions in excess of the "plain language used in SB 507" would likely be found by a court to exceed the commissioner’s statutory authority.

About SB 507

The Legislature passed SB 507 in 2015, requiring video surveillance in certain self-contained special education settings in order to promote student safety. The legislation 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. 

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.

Since the legislation awarded rulemaking authority to the commissioner of education, TEA began the process of rule development by holding stakeholder meetings to gather input.  TCTA participated and submitted written comments when TEA published the proposed rules for public comment. 

In developing the proposed rules, TEA determined there were several areas in which it needed guidance from the attorney general’s office. Accordingly, Commissioner Mike Morath solicited an opinion 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 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 surveillance in one instructional setting.) Additionally, Morath asked whether a district could place a 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?

Since the attorney general did not issue an opinion within the required timeline, TEA issued final rules on Aug. 3, 2016. The rules included provisions requested by TCTA requiring school districts to give written notice to campus staff before installing cameras in their classrooms and allowing a staff member appearing in a video believed to document a possible violation of district policy to have access to the recording. (Click here to read more.)

Attorney general's opinion

In releasing his ruling this week, Attorney General Ken Paxton opined that TEA rules that impose additional restrictions in excess of the plain language used in SB 507 would likely be found by a court to exceed the commissioner’s statutory authority. 

First, regarding the definition of the term “staff member” for purposes of who is able to request a camera, at TCTA’s urging, the definition of “staff member” in TEA’s final rules include “a teacher, related service provider, paraprofessional or educational aide assigned to work in the self-contained classroom or other special education setting." The term also includes "the principal or an assistant principal of the campus at which the self-contained classroom or other special education setting is located.” However, other stakeholders advocated an even broader definition of the term to include all school employees and contractors of the campus within a district or open-enrollment charter school. In addressing TEA’s question about how broadly or narrowly to construe the term “staff member,” the attorney general held that a common understanding of the word “staff” is “all the people employed by a particular organization” according to the Oxford Dictionary, and that since the statute does not limit the scope of the term “staff member,” a rule defining it more narrowly than the common understanding imposes additional restrictions in excess of the plain language of the statute.

Accordingly, it is likely that TEA will revise this provision in its final rules to expand the definition of “staff member.”

Regarding TEA’s question about whether a request triggers a district’s requirement to put cameras in all self-contained classes or just the one in which the requesting parent’s child receives instruction, the attorney general held that nothing in the plain language of the statute suggests that a parent, trustee, or staff member’s request is limited to or results in the provision of equipment to only a single classroom. “To the contrary, the Legislature has required that upon receiving a request, a school district shall provide the equipment not to a single classroom but 'to each school in the district' providing students special education services. Each school receiving equipment must, in turn, place, operate and maintain a camera in ‘each self-contained classroom or other special education setting.’” Despite letters from the bill’s sponsors that “their intent was for a request by a teacher or parent to install cameras to result in ‘installation only in the classroom where the teacher offers instruction or the child/dependent attends class,’ courts construing statutory language ‘give little weight to post-enactment statements by legislators.’... Only when a construction of a statute’s plain meaning leads to absurd or nonsensical results will courts refrain from enforcing that plain language,” the attorney general wrote.

The attorney general’s opinion on this point will likely strike a significant blow to school districts, many of which have advocated for a more narrow interpretation, based on their estimates that providing, operating and maintaining cameras would cost between $3,500 and $5,500 per classroom, with districtwide costs ranging from $350,000 to $6.8 million.

As to whether a requestor can limit his or her request for video surveillance to one or more specific instructional settings, the attorney general found that “the language chosen by the Legislature narrowly phrases the nature of the request to require the provision of equipment ‘to each school in the district or each charter school campus in which a student who receives special education services in a self-contained classroom or other special education setting is enrolled’” and that construing the language otherwise would contradict the plain language of the statute.

Finally, as to whether the law allows a school district or charter school to discontinue surveillance if the circumstances surrounding the request have changed substantially, the attorney general found that the law does not require the requestor to continue to be affiliated with the district or special education setting in order for the operation and maintenance of the camera to continue. “The plain language of the statute allows a school to discontinue operation and maintenance of a camera only if a setting in which the camera has been placed is no longer a self-contained classroom or other special education setting in which a majority of the students in regular attendance are: (1) provided special education and related services; and (2) assigned to a self-contained classroom or other special education setting for at least 50 percent of the instructional day.”

In closing, the attorney general wrote, “The implementation of [SB 507] would impose significant financial burdens upon certain school districts. However we ‘presume that the Legislature chooses a statute’s language with care, including each word chosen for a purpose, while purposefully omitting words not chosen.’ The plain language of the statute does not allow for the reasonable limitations that you [TEA] suggest, and this office cannot rewrite the statute. Such power rests exclusively with the Legislature.” 

With the next legislative session quickly approaching, many observers expect legislation to be filed to address the issues in a way that reduces the potential significant costs for school districts. TCTA will continue to be involved in this issue and will report on its development as it occurs.