Topic: School Law
Texas Senate Bill 507,1 codified as Texas Education Code section 29.022, was enacted to promote student safety by requiring schools to install video cameras in certain special education classrooms.2 School districts and open enrollment charter schools should begin developing their policies and procedures now in order to be ready to roll the cameras by the start of the 2016-17 school year.
Requirements for Districts3
Districts must provide video surveillance cameras in specific special education settings upon the request of a parent, trustee, or staff member.4 Once a district receives a request, it must install “one or more video cameras in each 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.”5 The video cameras must cover all the areas of the educational setting, “except that the inside of a bathroom or any area . . . in which a student’s clothes are changed may not be visually monitored.”6 The school must also record audio from all areas of the special education setting.7
Prior to installing video cameras, districts must provide written notice to all campus staff and to the parents of a student receiving special education services in the educational setting.8 Note that only notice is required, not consent. The law does not contain an opt-out provision for those who do not want cameras installed. Once a proper request is made, districts must install videos cameras.
Policies and Procedures
Districts must adopt policies related to video cameras in special education classrooms that meet the following minimum requirements:
(1) a statement that video surveillance is for the purpose of promoting student safety in certain self-contained classrooms and other special education settings;
(2) the procedures for requesting video surveillance;
(3) the procedures for providing written notice to the campus staff and the parents of the students assigned to a self-contained classroom or other special education setting that video and audio surveillance will be conducted in the classroom or setting;
(4) a requirement that video cameras be operated at all times during the instructional day when students are in the self-contained classroom or other special education setting;
(5) a statement regarding the individuals who will have access to video cameras and video recordings and the roles and responsibilities of those individuals;
(6) a requirement that a campus continue to operate and maintain any video camera placed in a self-contained classroom or other special education setting for as long as the classroom or setting continues to satisfy the requirements in TEC, §29.022(a);
(7) a requirement that video cameras placed in a self-contained classroom or other special education setting be capable of recording video and audio of all areas of the classroom or setting, except that no video surveillance may be conducted of the inside of a bathroom or other area used for toileting or diapering a student or removing or changing a student’s clothes;
(8) a statement that video recordings must be retained for at least six months after the date the video was recorded;
(9) a statement that the regular or continual monitoring of video is prohibited and that video recordings must not be used for routine teacher evaluation or monitoring or for any purpose other than the promotion of student safety;
(10) at the school district’s or open-enrollment charter school’s discretion, a requirement that campuses post a notice at the entrance of any self-contained classroom or other special education setting in which video cameras are placed stating that video and audio surveillance are conducted in the classroom or setting;
(11) the procedures for reporting a complaint alleging that an incident occurred in a self-contained classroom or other special education setting in which video surveillance under TEC, §29.022, and this section is conducted;
(12) the local grievance procedures for filing a complaint alleging violations of TEC, §29.022, and/or this section; and
(13) a statement that video recordings made under TEC, §29.022, and this section are confidential and a description of the limited circumstances under which the recordings may be viewed.9
Retention of Video
Although the recorded video must be retained for a minimum of six months after it was recorded,10 districts may be required to retain the recordings longer if they are potentially responsive to discovery requests made in litigation or due process complaints.11 The retention period could also be lengthened if a video is considered an education record. The Family Educational Rights and Privacy Act12 (FERPA) defines “education records” as those records that are: “(1) directly related to a student; and (2) maintained by an educational agency or institution, or by a party acting for the agency or institution.”13 A video directly related to a student involved in an incident in a special education classroom may constitute an education record. Even if more than six months has passed since an incident, districts “shall not destroy any education records if there is an outstanding request to inspect and review the records under [FERPA].”14
On May 19, 2016, The Texas Education Agency held a public hearing on its proposed rules regarding video and audio surveillance in special education classrooms. As Districts develop their policies and procedures related to cameras in special education classrooms, keep an eye out for TEA’s finalized rules to see if any revisions are made. In addition, look for an opinion from Texas Attorney General Ken Paxton in response to Commissioner of Education Mike Morath’s request for clarification regarding the interpretation of section 29.022.15 TEA’s finalized rules and General Paxton’s response may impact the District’s policies and procedures related to cameras in special education classrooms. In the meantime, get ready to roll.
1 Tex. S.B. 507, 84th Leg., R.S. (2015).
2 Tex. Educ. Code Ann. § 29.022(a) (West 2015).
3 Throughout this article, reference is made to “districts” for simplicity even though Texas Education Code section 29.022 also applies to open-enrollment charter schools.
4 Tex. Educ. Code Ann. § 29.022(a) (West 2015).
5 Id. § 29.022(a)(1)-(2).
6 Id. § 29.022(c)(1).
7 Id. § 29.022(c)(2).
8 Id. § 29.022(d).
9 19 Tex. Admin. Code § 103.1301(g) (proposed effective date June 16, 2016) available at http://tea.texas.gov/About_TEA/Laws_and_Rules/Commissioner_Rules_(TAC)/Proposed/16_03_Proposed_New_19_TAC_%C2%A7103_1301/
10 Tex. Educ. Code Ann. § 29.022(e) (West 2015) (emphasis added).
11 See Tex. Loc. Gov’t Code § 202.002(a) (prohibiting destruction of records where the subject matter is known by the custodian to be in litigation).
12 20 U.S.C. § 1232g.
13 34 C.F.R. § 99.3 (2015).
14 34 C.F.R. § 99.10(e) (2015).
15 Letter from Commissioner of Education Mike Morath to Texas Attorney General Ken Paxton (March 11, 2016).