By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short,
law-related questions of practical concern to school administrators. Each week, we will select a question and publish an
answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
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Dear Legal Mailbag:

As an assistant principal, my responsibilities include dealing with students who have disciplinary issues. While most of these students are good people just caught doing bad things, I am afraid that a few of them are incapable of telling the truth under almost any circumstance. As I investigate situations, it is frustrating when these sociopaths change their story with each retelling. I was therefore delighted to download an app on my iPad that permits me to secretly record conversations. Now, when I sit these students down to review a situation, I casually press a button and record their every word without them being any the wiser, at least until I confront them with the contradictions in their story from their own previous statements.

Recently, I had the pleasure of recording a student giving one version of his side of the story, and then recording him a second time telling me a very different version. His inconsistency convinced me that he is lying about his involvement in a theft, and I played the two recordings for his father in the pre-expulsion meeting. I thought that he would thank me for holding his son accountable. But instead he went all “lawyer” on me, claiming that I had violated his son’s constitutional rights by secretly recording him and that he would sue me for everything I have.

I don’t see why I can’t document my conversations with students in this way. But I admit that his threat has me on edge. Please tell me if I should stop making these secret recordings.

Signed,
Better Safe than Sneaky?

Dear Sneaky:

Sometimes we must just rely on our gut instincts to decide that a particular action is right or wrong. Here, I must say that I don’t like the gut feeling I have about your secretly recording students.

It may be helpful to supplement that instinctive response with some legal analysis. The courts have held that surreptitious recording of students can violate their rights under the Fourth Amendment to be free of “unreasonable searches and seizures.” In one infamous case, Brannum v. Overton County School Board (6th Cir. 2008), school administrators decided to address student misconduct in the locker rooms by installing surveillance cameras to secretly monitor students’ conduct. The court ruled that such recordings constituted a search of those students (by invading their privacy interests). Indeed, the court ruled that this violation of the students’ constitutional rights was so egregious and obvious that the administrators should not have governmental immunity and could be held personally liable.

Your secret recording of students talking with you, of course, is not as offensive. Moreover, in Connecticut, one may secretly record another in a personal conversation without violating the law (as opposed to secretly recording a telephonic conversation, which can violate federal law, depending on the circumstances). However, here the conversation is not simply one between two people, but rather one between an agent of the government and a student entrusted to your care and control. When you are acting in your official capacity, you must respect the constitutional protections that students and others enjoy.

Here, one could argue that secret recordings of students do not violate their constitutional rights because such students do not have a legitimate expectation of privacy in their conversations with school administrators. However, it is simply not clear that this argument would carry the day. Moreover, it is reasonable to predict that, should such a claim ever get to a jury, that jurors may react negatively to a practice of secretly recording students. Accordingly, unless you want to be a test case and find out through litigation whether you have violated student constitutional rights, I suggest that you stop the practice.