Video surveillance in public schools

by Christy Hickman, staff counsel

Members often ask whether a school district violates their right to privacy by using video camera surveillance or video recordings of evaluative observations. It is easy to understand the growth of video surveillance in schools, especially with the onslaught of on-campus criminal behavior and the horrendous episodes of violence that we hear of all too frequently. 

"Increasingly, however, the use of video camera surveillance technology is being increasingly adopted in public schools to assist in the evaluation of teacher and school staff job performance." Kevin P. Brady, "Big Brother" is Watching, But Can He Hear, Too?: Legal Issues Surrounding Video Camera Surveillance and Electronic Eavesdropping in Public Schools, 218 WEST'S EDUC. L. REP. 1, 3 (2007).  Districts are not just watching students these days, school personnel is also being monitored. 

The Fourth Amendment of the United States Constitution protects the right of all citizens to "be secure in their person, houses, papers, and effects, against unreasonable searches and seizures." An employee maintains a right to privacy in a particular location or object when the employee has "exhibited an actual expectation of privacy" and the expectation is "one that society is prepared to recognize as reasonable." Katz v. U.S., 389 U.S. 347, 352 (1967). Public employees do not shed their reasonable expectations of privacy when they come to work.  O'Connor v. Ortega, 480 U.S. 709, 717 (1987).  However, "[p]ublic employees' expectations of privacy in their offices, desks, and file cabinets. . . may be reduced by virtue of actual office practices and procedures, or by legitimate regulation."  O'Connor, 480 U.S. at 717.

The determination whether a school employee maintains an expectation of privacy is made on a case by case basis and is highly fact determinative.  Here are just a few cases in which courts have ruled on a school employee's expectation of privacy in the workplace.

In Gillard v. Schmidt, 579 F.2d 825 (3rd Cir. 1978), the U.S. Court of Appeals for the Third Circuit held that a school guidance counselor maintained a reasonable expectation of privacy in his school desk. In this case, an elected school board member entered the school in the evening while adult education classes were being held in the school building. The board member directed a janitor to unlock the door to the counselor's office and proceeded to rummage through the counselor's desk drawer in search of a political cartoon critical of financial and personnel policies of the school board. The Court rejected the board member's argument that because the desk was school property, the counselor's belief his desk was private was unreasonable. The Court noted that a school guidance counselor, by nature of his position, maintains sensitive and confidential student information in his school desk and, therefore, has a reasonable expectation that his desk will remain private.

In Alinovi v. Worcester School Committee, 777 F.2d 776 (1st Cir. 1985), the
U. S. Court of Appeals for the First Circuit held that a teacher did not have a reasonable expectation of privacy in a term paper she had written for a college course because the paper included a case study of a student and, although she refused to give the paper to her principal, the teacher had previously released the paper to another school official. 

In Shaul v. Cherry Valley-Springfield Central Sch. Dist., 363 F.3d 177 (2nd Cir. 2004), the U.S. Court of Appeals for the Second Circuit held that a teacher who had been suspended for misconduct did not have a reasonable expectation of privacy in his classroom once the suspension was in effect.

In Plock v. Bd. of Ed., 545 F. Supp. 2d 755 (N.D. Ill. 2007), special education teachers sued their school district after the district installed audio-visual recording equipment in their classrooms. The court acknowledged that "a teacher's personal office space" such as the teacher's desk or locked file cabinet may be "reserved for the teacher's exclusive use, giving rise to an expectation of privacy which society is willing to recognize as reasonable." The court concluded, however, that the teachers' expectation of privacy was not reasonable because an "entire classroom in a public school building . . . is not reserved for the teacher's exclusive, private use."

The Ohio Court of Appeals held in Brannen v. Bd. of Ed., 761 N.E.2d 84 (2001) that a school district's installation of a hidden video camera in the employee break room did not violate employees' privacy. The court reasoned that because the break room was open at all times to employees, it was not private.

In Roberts v. Houston Independent Sch. Dist., 788 S.W.2d 107 (Tex. Ct. App. 1990), the Texas Court of Appeals held that a teacher did not have a reasonable expectation of privacy in her public classroom when her classroom performance was video-recorded by her evaluator. Despite her objection to the original taping, the court opined that the district could use the recording against her in a termination proceeding.

These cases were decided outside of our jurisdiction and are, therefore, not binding on our courts. Nonetheless, the lessons we can learn from them are helpful. 

What we can take from these decisions is that an employee has little or no expectation of privacy in a space such as a classroom that is open to staff, students, parents, and others.  A locked file cabinet or a personal locker that a teacher does not allow others to access may be private. An expectation of privacy is more reasonable where sensitive information is kept and less so when an employee has compromised the private nature of a thing or place by welcoming access by others.