Dear Legal Mailbag:

One of the teachers in my building is fit to be tied. One of the students in her class surreptitiously recorded her on his smart phone while she was teaching a social studies lesson, and he then posted that recording on Instagram. To make matters worse, students and others then posted unkind comments about the teacher.

When we had a meeting with the student and his parents, they were anything but contrite. I could hardly believe what I heard, but citing the need for “transparency,” the dad said that his son has every right to record and post what goes on in a public school classroom. For his part, the student just sat there with a smug Backpfeifengesicht.

As you can imagine, the entire faculty is both enraged and deeply anxious that they will be targeted next, and I need to do something. This terrible conduct must be illegal, right? I want this delinquent in jail. What should I charge him with?

Judge and Jury

Dear Judge:

Legal Mailbag shares your indignation over the student’s actions. But this student’s misbehavior was not a criminal offense. There are two related crimes on the books, but neither applies here. First, there is the Recording Statute, Conn. Gen. Stat. § 52-570d, which establishes a private right of action against a person who uses “any instrument, device or equipment to record an oral private telephonic communication” unless there is (1) consent of all participants, (2) prior notice to all participants, or (3) a beep tone alerting all participants. There are a number of exceptions to the prohibition in this statute, including emergency personnel, law enforcement personnel, recipients of threats of extortion, bodily harm or other unlawful requests or demands, or persons who receive calls that occur “repeatedly or at an extremely inconvenient hour.” Legal Mailbag presumes that you are happy to learn that it is usually illegal in Connecticut to record a telephone conversation secretly without the knowledge of the other party. However, the words the student recorded here were not part of a telephone conversation, and thus the student did not violate this law.

Connecticut has another law that hits closer to the mark. Adopted in 1969, the Eavesdropping Statute provides that “a person is guilty of eavesdropping when he unlawfully engages in wiretapping or mechanical overhearing of a conversation.” The statute defines “mechanical overhearing of a conversation” as “the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment.” Thus, if the teacher were in conversation with another person and the student recorded it without her knowledge (or that of the other party to the conversation), the student would commit the crime of “eavesdropping.” Unfortunately, it is a stretch to describe a lesson as a “conversation” or say that the student, however inattentive, was “not present.”

That said, school officials have every right to discipline a student for surreptitiously recording a teacher. Such actions are seriously disruptive of the educational process, and the misguided views of the parents here notwithstanding, any reasonable person knows that making such recordings is wrong.

The case of WVIT v. Grey, 20 Conn. L. Rptr. 526 (Conn. Super. 1997), deals with an analogous situation where an employee secretly recorded conversations with co-workers. The judge described her actions as follows:

[T]his court (Lavine, J.) has ruled in this case that Gray’s actions were “an affront to the average person’s sense of dignity” and a transgression of “boundaries that deserve[d] to be respected.” WVIT, Inc. et al. v. Gray, No. CV 9505476689S, 18 CONN.L.RPTR. 203, 1996 WL 649334 at *4. Judge Lavine further concluded that Gray’s conduct “would be highly offensive no matter where it occurred and no matter what it related to.” That is because “[i]t is the fact of surreptitiously monitoring a fellow employee in and of itself that constitutes the intrusion on that employee’s privacy under the circumstances of this case. The intrusion here is on the ‘person’ of the employee, irrespective of content.” IdThus, this court has found that Gray’s conduct was highly offensive to a reasonable person as a matter of law. (Emphasis added).

Such conduct by a student in school, therefore, is clearly disruptive, and a student engaged in such conduct is certainly subject to serious disciplinary action.

Finally, Legal Mailbag raises an issue for your consideration. As described above, discipline for such conduct is warranted and permissible because suspension is authorized for “conduct on school grounds or at a school sponsored activity [that is] is violative of a publicized policy of such board or is seriously disruptive of the educational process or endangers persons or property.” Conn. Gen. Stat. § 10-233c(a). However, following a recent change in the law, expulsion is permitted only for “conduct on school grounds or at a school-sponsored activity [that is both] violative of a publicized policy of such board and is seriously disruptive of the educational process or endangers persons or property.” (Emphasis added). On the chance you and your colleagues may think that expulsion may ever be appropriate for such conduct, your board of education should amend its disciplinary policy expressly to prohibit recording teachers and others in school without their consent.

Originally appeared in the CAS Weekly Newsletter.