Legal Mailbag – 6-9-22

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

The “Legal Mailbag 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: legalmailbagatcasciacdotorg.

Dear Legal Mailbag:

As the principal of a middle school, I am investigating a complaint that a teacher used profane and insulting language in class, and I confront a dilemma. In talking with students in the class, a student shared a video with me that he took in the classroom on his cell phone. The video is conclusive proof that the teacher used inappropriate language in talking with the class. The problem is that the recording was surreptitious, and the teacher neither gave permission to be recorded or was even aware that she was being recorded.

I confiscated the student’s cell phone for our use during the investigation, and in meeting with the teacher and her union representative, I showed them the video. Rather than owning up to her misconduct, the teacher professed to be outraged at this “invasion of privacy.” The union representative then jumped on the bandwagon, and he demanded that I delete the video. Moreover, the union representative told me that the Union would grieve any disciplinary action I might take based on such “tainted” evidence.

I have never been the subject of a grievance, and I don’t want to start now. But I hate the idea that the teacher would therefore not be held accountable for her unprofessional behavior. Can I go ahead and write the teacher up, notwithstanding the questionable way in which I received the evidence against her? And should I discipline the student?

Equivocal over Evidence


Dear Equivocal:

As you know, sometimes unions think that the best defense is a good offense, and the Union’s position is not surprising. However, you do not have to accede to the Union’s demand that you delete the video or refrain from disciplining the teacher.

From watching television, we all know that there is an “exclusionary rule” in the criminal law, and that evidence obtained illegally cannot be used in prosecuting an individual for a crime. However, as an administrator you are free to use whatever evidence you have available. The teacher did what she did, and you have video evidence of her actions. If those actions are unprofessional, you have the right to hold the teacher accountable.

In so doing, you should not worry about being the subject of a grievance. It happens to the best of us. Should the teacher file a grievance concerning the discipline that you impose on her, the question will be whether the discipline was for just cause, i.e., is there a factual basis for the disciplinary action, and was the level of discipline commensurate with her misconduct? Should the grievance proceed to arbitration, that should be the focus of the arbitrator’s review, and he or she should not worry about how the video was made because a teacher has no privacy right in how he or she teaches a class.

Legal Mailbag points out an additional concern here. In considering the matter, keep in mind the potential need to file a report of suspected abuse with DCF. From the facts you provided, it is not clear whether the teacher was abusive to specific students in her inappropriate language. Frank v. Department of Children and Families, 312 Conn. 393 (2014). If she was particularly hard on one or more individual students, her misconduct may rise to the level of suspected emotional abuse that you should report to DCF.

Finally, Legal Mailbag poses two questions for your further consideration. First, was it appropriate or necessary to confiscate the student’s phone here? Presumably, you could have had the student forward the video to you, and there would be no need to hold on to the student’s phone. Confiscation of a student’s property is permissible only in connection with the exercise of in loco parentis authority, and any such confiscation should be limited in duration to the time necessary to take administrative action. In any event, school officials do not have the authority unilaterally to delete information from student phones. If the information is particularly concerning (e.g., student pictures of a sexual nature), school administrators should call the police for assistance.

Second, should you discipline the student who took the video? If there is a rule against video-recording in class (as there should be), the student is subject to discipline. However, under circumstances of teacher misconduct, a student may feel justified in documenting such misconduct through video recording. Moreover, on a practical level, your disciplining the student in this case may result in students being less willing in the future to share relevant information with you. Please keep these concerns in mind as you proceed.