Does a teacher have the right to make a video recording of students without their permission and what privacy rights does a student have in school?
Where do we draw the line at which public video recording becomes an invasion of privacy? Even as cell-phone cameras and handheld video recorders proliferate, public video recording is still murky in the eyes of the law.
Until now, schools have had to wrestle with that question mostly as it has applied to students recording other students, or their teacher. But a case involving a Philadelphia educator flips that notion around.
Teacher Harry Drake became so frustrated with disruptive behavior in his Philadelphia public school classroom that he turned a video camera on the students—and was fired as a result.
A male student lunged at Drake and grabbed the camera, and a struggle ensued. But it wasn’t the student who got in trouble.
The Philadelphia School District removed Drake from his carpentry classroom at Randolph Technical High School in East Falls, banished him to teacher jail, and four months later in June 2009 fired him, asserting that he didn’t have his teacher certification, according to a lawsuit the teacher filed this month in Common Pleas Court.
Drake, who had taught in the district since 2003, is suing the district for wrongful termination. His lawyer, Daniel McElhatton, said the reason the district had cited for firing Drake was a “ruse.”
“I characterize the whole episode as the Alice-in-Wonderland incident, in that the world’s turned upside-down,” he said. “A student is disruptive and assaultive, and the teacher becomes the one who is punished.”
While the student didn’t strike Drake, he was “assaultive” in that he lunged toward Drake, grabbed the camera, and refused to let go, McElhatton said.
The student accused Drake of choking him in the struggle to get the camera back, said Barbara Dowdall, a former teachers’ union representative at Randolph. The student had red marks on his neck and was sent to a hospital, recalled Dowdall, who has retired. She said she believed Drake’s account and was aware of student behavior problems in his classroom.
According to the suit, Drake did not “touch, strike, choke, or physically contact” the student.
While it has become increasingly common for schoolhouse fights to be recorded and posted on the internet, the case raises the issue of whether a teacher has the right to make a video recording of students without their permission and what privacy rights a student has in a school.
“It’s really somewhat new and a little complicated,” said David Kairys, a constitutional-law professor at Temple University. “It’s fairly common to use video for in-class kinds of things, and it doesn’t seem to raise a problem.”
As for privacy rights, “it would be a question of, ‘Is the behavior in the classroom sufficiently public that you basically lose your privacy rights in it?’ ”
He said another factor would be whether the district had a policy governing the video recording of students.
School district spokeswoman Shana Kemp declined to comment on the case or whether students had been disciplined, citing ongoing litigation.
The Pennsylvania Department of Education did not return three calls for comment. Drake, 47, declined to comment through McElhatton.
According to the suit, Drake had witnessed “repeated safety violations in the shop area, inappropriate behavioral outbursts, and sexual harassment between students.” It says he began to document disciplinary problems in January 2009. He reported the violations to school authorities, and no action was taken, the suit says.
McElhatton said Drake had begun telling students he would use a camera.
Usually, that warning was enough to quell the disturbance, because the students did not want to be recorded, McElhatton said.
But on Feb. 26, 2009, Drake actually recorded students, and one of the males “lunged” and tried to wrestle the camera away, McElhatton said.
In the video, obtained by The Philadelphia Inquirer, Drake tells the students to leave the classroom and go into the carpentry shop. One of the students then gets closer to Drake and apparently moves to grab the camera. The screen goes dark, but the audio continues. A voice says, “Don’t grab my s—. What are you, crazy?” In the background, people are laughing.
There also was a video of a student cursing and refusing to follow directions while the camera was on.
After the tussle, Drake called security. When the school police officer arrived, rather than help Drake, she demanded his camera and questioned him, the suit says. The assistant principal also questioned him, and he was “told to sequester himself in a room pending further investigation.”
Drake, who eventually gave the camera to Dowdall, was held in the room for two hours and then removed from the school. The next day he was told to report to the district’s West Regional Office, where he was prohibited to teach and remained for the rest of the school year.
On May 18, he got a letter saying he was being fired for lack of certification.
The Philadelphia Federation of Teachers (PFT) filed a grievance on Drake’s behalf. But the union did not pursue the case after Drake was fired, McElhatton said, and is therefore also named in the lawsuit.
“We’ve done all we were supposed to do relative to his case,” PFT president Jerry Jordan said.
Teachers typically have three years to complete their certification, Jordan said, and Drake had been working in the district for more than five years without finishing it. There have been years when hundreds of teachers were dismissed for failing to get their certification, he said.
Drake is certified to teach social studies and was pursuing his certification in carpentry, McElhatton said. He had all of the required course work but needed to get observations by professors, McElhatton said. The district’s removal of Drake from the classroom prevented him from getting those observations and, therefore, his certification, McElhatton said.
“At no time,” Jordan said, “was that brought to our attention.”
Jordan said he understood that Drake must have been frustrated with the poor behavior and lack of response from the school administration, and that it should serve as a warning to the district about teachers’ anxiety over discipline.
“It’s amazing that so often administrators will act as if it’s the teacher’s fault, and it’s not,” he said.
But Jordan recommended that teachers get parental permission and approval of administrators before video recording students.
“Particularly in this era of YouTube and everything going viral,” he said. “You can end up with a lawsuit from someone saying, ‘I didn’t get permission for my picture to be out there.’ ”
Drake wasn’t planning on posting the video on the internet, McElhatton said. He wanted to show the behavior to administrators.
Dowdall, the former Randolph union representative, said student behavior there at the time had been poor. Staff felt that the administration didn’t properly deal with the disruptions, she said.
The principal at the time has died. Former assistant principal Jane Gilmore, who is named in the suit, did not return a call.
After Drake was removed, Dowdall said, conditions at the school worsened.
“These students, they ran rampant the rest of the year,” she said. “There were a string of subs [in Drake’s room]. . . . It was just atrocious behavior. It affected all of us.”
Randolph’s violence rate has fluctuated in recent years. The school reported 12 violent incidents in 2009-10, a rate of 2.9 per 100 students, up from six in 2005-06, a rate of 1.5.
Photo credit: The Chronicle
Via eClassoom News