Education Law Advocates, P.C.

February, 2009

Education Law Advocates, P.C.
Education Attorneys

FEATURE ARTICLE: DOES A PARENT HAVE THE RIGHT TO TAPE RECORD AN IEP MEETING?

Parents and advocates sometimes ask us about tape recording IEP meetings. They most often want to know if they have the legal right to do it. They sometimes ask if they should tape record the meetings. This article deals only with whether parents have the right to tape record IEP meetings in Pennsylvania. Next month, we will discuss some possible advantages and disadvantages of tape recording IEP meetings.

Introduction

Please keep several things in mind as you read this article.

First, sometimes the law is very clear in telling us what we can and can't do; sometimes it isn't. The traffic laws are pretty clear, for example. We know we can be given a ticket for speeding if we drive 80 miles per hour on a road with a posted speed limit of 55. We know there are clear penalties for speeding that are specified in the traffic laws (known as the "Pennsylvania Motor Vehicle Code").

Second, facts matter. In the speeding case we mentioned, what if we were going 80 mph because we were being chased by a motorist with road rage? Or what if we were transporting a friend to the hospital who had just suffered a heart attack? Would we still be penalized for speeding? Probably not. So the law oftentimes states general rules. But we know there can be exceptions to the rule.

Third, some kinds of "legal authority" are "better" or more "authoritative" than others. The first place we look to find out "what the law is" is to the law that the legislators enacted. We ask: "What does the statute say?" The second place we look is to the highest state or federal appellate court in our jurisdiction to see if they issued a written opinion in a case dealing with our issue under the same statute. Those courts have the power to say how a statute applies to a specific set of facts, for example. The written opinions they issue generally must be followed by the "lower" courts in their jurisdiction.

But what if the law passed by the legislators says nothing about the conduct that we are concerned about? And what if the highest state or federal courts in our jurisdiction haven't issued a written opinion that deals with our issue? How do we determine what the law is then? Answer: We do the best we can, based on whatever legal decisions and information are available. That is what we must doin trying to assess the parent's right to tape record IEP meetings.

Legal Authority for Taping IEP Meetings:  Where It Is and Where It Ain't!

Let's be clear up front. First, there is nothing in the Individuals with Disabilities Education Act of 2004 ("IDEA 2004") that specifically tells us whether a parent can or cannot tape record an IEP meeting. Second, the United States Supreme Court has never issued a written opinion telling us "what the law is" on this issue. Neither has the Pennsylvania Supreme Court nor the highest federal court in our jurisdiction, the United States Court of Appeals for the Third Circuit. In fact, to the best of our knowledge, no court in Pennsylvania has issued a written opinion to date that deals with this question.

So are we out of luck in trying to figure out whether a parent is legally entitled to tape record an IEP meeting in Pennsylvania?  No!  There are several sources of information that provide us with guidance on a parent's rights in this situation. On balance, these sources support the principle that a parent generally does possess the legal right to tape record an IEP meeting.

The "Robert R." Decision

In 1996, a Pennsylvania Special Education Appeals Panel issued a written opinion that squarely dealt with the question whether a parent can tape record an IEP meeting. (Special Educ. Opinion No. 704). The special education appeals panels were part of the administrative law system set up by the Pennsylvania Department of Education. The department abolished the appeals panels effective July 1, 2008. Nevertheless, the panel's decision in Robert R. provides persuasive guidance on how a hearing officer or court might deal with this question. Therefore, it is important for any parent considering tape recording an IEP meeting to know about it.

What Happened in Robert R?

The facts in Robert R. reveal a very persistent parent and a very determined school district. The parent had filed a complaint with the Bureau of Special Education challenging the school program for her fifth grade son. The bureau found that the district had failed to properly implement the student's IEP, and ordered the district to convene an IEP meeting to consider providing "compensatory education."

When the student's mother arrived for the scheduled meeting in August 2005, she announced her intention to tape record the meeting. The district refused to permit tape recording of the meeting under a new written district policy banning tape recording of school board meetings and other meetings involving school personnel, and the parent refused to proceed with the meeting unless she could tape record it. The district then attempted to reconvene the IEP meeting on two subsequent occasions. Both times, the mother showed up with her trusty tape recorder in hand ready to tape record the meeting. At the third scheduled IEP meeting, the district's special education coordinator left the room, entered her office, closed the door, and conducted the IEP meeting outside the mother's presence. The mom thereafter refused to approve the IEP and filed for due process.

At the due process hearing, the parent contended that she had an absolute right to tape record the IEP meeting, regardless of any written policy of the school district banning such recording. The district argued that it had every right to hold the IEP meeting outside the parent's presence when she persisted in violating the district's policy against tape recording school personnel. After the hearing officer ruled in the parent's favor, the district filed an appeal with the special education appeals panel.

The "Three Legged Stool"

On appeal, the district asserted that its employees had a "privacy interest" in what they said at a meeting, which the mother was not entitled to violate by tape recording their comments. In addition, they argued that the mother had not given a good enough reason for the district to permit her to tape record the meeting. She had informed the district, in part,that she wanted to tape record the meeting so her 13-year-old son could listen to it later.

The district countered that under the law then in effect, the student was too young to insist upon attending the meeting so he had no right to hear what was said on tape. The appeals panel rejected the district's arguments, and found in favor of the parent's right to tape record the IEP meeting. The panel based its decision on three primary arguments. Here, in brief, is each "leg" of the"three-legged stool":

1.  The IDEA and U.S. Supreme Court favor parental participation in the IEP meeting. The appeals panel stressed the IDEA's emphasis on parental participation in the IEP meeting as an important method for achieving its purpose of ensuring a free appropriate public education for children with disabilities. To advance this purpose, the IDEA (and Pennsylvania regulations) specifically require school authorities to satisfy strict requirements to notify parents of the meeting in advance and to ensure their participation . [The IDEA requirements are now found at 34 CFR § 300.322]. The panel also cited the United States Supreme Court for the principle that parental participation in the IEP process is necessary. In other words, these sources, according to the panel, weigh heavily in favor of ensuring that each parent should be able to participate fully in IEP meetings without interference by the school district.

2. Two Connecticut federal district court decisions uphold the parent's right to tape record an IEP meeting. The panel also relied heavily on the decisions of two Connecticut federal district courts that ruled in favor of a parent's right to tape record an IEP meeting. In the first case, E.H. v. Tirozzi, 735 F.Supp. 53 (D. Conn. 1990), a non-native speaking parent sought permission to tape record the IEP meeting as an aid to reviewing and understanding what was said. A teacher refused to be tape recorded on the grounds that it violated her right to privacy, and the district supported its teacher. The court upheld the parent's right to tape record the IEP meeting on the grounds that the parent's statutory right to fully participate in the IEP meeting far outweighed the teacher's alleged right to refuse to be tape-recorded. In the second case, V.W. v. Fravolise, 131 F.R.D. 634 (D. Conn. 1990), the parent advised the school that he needed to tape-record the IEP meeting because an injury to his hand made note-taking difficult, and the district refused permission because tape recording the meeting allegedly would inhibit or "chill" the free flow of information at the meeting. The court rejected the district's argument on the grounds that it lacked any statutory authority to limit the parent's right to participate in the meeting.

3. An "OSEP" opinion permits tape recording of IEP meetings. "OSEP" is the Office of Special Education Programs, which is part of the U.S. Department of Education. It is empowered with interpreting the IDEA. It sometimes issues written opinions interpreting the IDEA, which are entitled to some weight, but they do not have the force of law. In 1992, OSEP opined that "[t]he use of tape recorders at IEP meetings is not addressed by either the [IDEA] or the [federal] regulations. Although taping is clearly not required, it is permissible at the option of either the parents or the agency." The Pennsylvania appeals panel gave more weight to this statement by OSEP than it did to a prior letter opinion in which OSEP stated that "[i]t would not be inconsistent with Federal privacy law for school districts to have a rule prohibiting the tape recording of IEP meetings if the policy provided for exceptions when they are necessary to ensure that the parent understands the IEP or the IEP process or to implement other [guaranteed] parental rights ...."

None of these three sources of authority squarely compelled a finding that the mother of Robert R. was entitled to tape record the IEP meeting. But the Pennsylvania appeals panel found them to be persuasive. It found that the mother had a statutory right to participate in the IEP meeting that far outweighed the district's alleged interest in preventing taping from becoming a "barrier to effective communication," as the district claimed. It noted, however, that its finding was "fact-specific." It explained that its decision was based, in part, on the mother's explanation that she sought to tape record the meeting to share it with her son. The panel suggested that if the tape recording were for a different purpose, such as to "use this recording as a legal weapon or shield, the analysis and results of this case might have been quite different." In sum, the Pennsylvania appeals panel ruled in Robert R. that the district's refusal to permit the mother to tape record the meeting, without legal authority, was a violation of the child's right to a free appropriate public education under the IDEA.

We know of only one other Pennsylvania appeals review panel decision dealing with the IEP tape-recording issue. In December 2006, a panel ruled, with little discussion, in a "gifted" case, that a school district was without authority to prevent the student's parents from audiotaping the GIEP meeting, "in the absence of a preexisting school district policy, properly adopted and uniformly imposed, that prohibited recording devices at IEP meetings ..." (Special Educ. Opinion No.1787).

So What's the "Bottom Line?"

There is no clear, binding legal authority requiring a school district in Pennsylvania to permit a parent to tape record an IEP meeting. There is a 1996 Pennsylvania (administrative) appeals panel decision (Robert R.) that supports a parent's legal right to tape record an IEP meeting, at least where the parent asserts that the taping will facilitate an understanding of the proceedings or the achievement of a FAPE for the student. The opinion is based on a well-reasoned analysis of the IDEA, two federal district court opinions in Connecticut, and an opinion by the (federal) Office of Special Education Programs. There also is a 2006 appeals panel decision holding, with little discussion or explanation, that a district lacks authority to prevent a parent from tape recording a GIEP meeting in the absence of a preexisting, "uniformly imposed" school district policy prohibiting recording devices at IEP meetings. In part because "gifted" cases are not governed by the IDEA, however, we attach less significance to this appeals panel opinion.

On balance, we believe the law supports a parent's right to tape record an IEP meeting. The strongest case for upholding that right, in our view, would be one in which the parent offers a legitimate reason for recording the meeting. We can imagine many different circumstances under which recording the IEP meeting would serve a purpose that courts would recognize as legitimate.

A school district could choose to litigate the issue, of course, as West Shore S.D. and Haverford S.D. did in the two Pennsylvania appeals panel decisions discussed above. But we think most school districts would choose a more temperate course and allow the tape-recording. Choosing to allow such recording also would appear to be consistent with the information provided on this issue by Sweet Stevens Katz & Williams on their website. Sweet Stevens provides legal representation to school districts. In the article there on the tape recording of IEP meetings, attorney Jane Williams notes the relative ease with which parents likely could establish the need to tape an IEP meeting to the satisfaction of a reviewing court, and states that the "down side of allowing taping, provided both sides tape or a duplicate is made, is small even though the tape may, in limited circumstances, be reviewed by an administrative hearing officer or judge."  We agree with Ms. Williams on both points.

But assuming you have the legal right to tape record your next IEP meeting, is it a good idea? Should you do it? We believe this decision should be made only after careful consideration. We will return to that question in our next newsletter.

Questions? Comments? Want to do further research? Just call or email us.

P.S. Were you wondering if you could secretly tape record the IEP meeting? The answer is no, unless you are willing to take a chance on being found guilty of a third degree felony under the Pennsylvania Wiretapping and Electronic Surveillance Act, 18 Pa. C.S. § 5703.

FROM THE LEGAL DESK: THE NEW "POLICY" ON BULLYING Bullying in schools is a staggering problem, especially for some special education students. Consider the following statistics (Source:Parents United Against Bullying):

  • Bullying has been identified as a major concern by schools across the U.S. (NEA, 2003).
  • 160,000 students miss school every day due to fear of attack or intimidation by a bully (Fried & Fried, 1996).7 percent of eighth-graders stay home at least once a month because of bullies (Banks, 2000).
  • Research indicates that children with disabilities or special needs may be at a higher risk of being bullied than other children (Rigby, 2002).
  • In surveys of third through eighth graders in 14 Massachusetts schools, nearly half who had been frequently bullied reported that the bullying had lasted six months or longer (Mullin-Rindler, 2003).
  • Approximately 20 percent of students are scared throughout much of the school day (Garrity, et al., 1997).10 percent of students who drop out of school do so because of repeated bullying (Weinhold & Weinhold, 1998).

Studies also show that bullying tends to be underreported, because children are ashamed or afraid to report it, and teachers in many cases do not observe it.

The New Pennsylvania "Policy" on Bullying

The Pennsylvania legislature has enacted a new "policy" on bullying, which became effective on July 1, 2008. It provides:

  1. "Bullying" is defined to include acts that are severe, persistent or pervasive that have theeffect of substantially interfering with a student's education, creating a threateningenvironment, or substantially disrupts the orderly operation of the school.
  2. By January 1, 2009, any school lacking a policy on bullying shall adopt one as part of itsstudent code of conduct that may provide for prevention, intervention and education programs and "shall identify [a] school staff person to receive reports of incidents of allegedbullying."
  3. In its school bullying policy, the school may define bullying to include acts that occur outsidethe "school setting" (meaning beyond the building, school grounds, school bus, the schoolbus stop, andschool sponsored events).

Do You Suspect Your Child is a Victim of Bullying (or a Bully)

Either way, you need to take action right away. Put pressure on the school. Has it appointed a staff person to receive complaints? Does it have an anti-bullying policy? It is vigorously enforcing the policy? Have you sat down with the principal about it? Have you called another meeting of the IEP team to deal with it? Whatever you do, please don't ignore it!
If your special needs child is being bullied, the law is on your side. Let us know. We can help.

QUICK TIP: DID YOUR IEP TEAM MEET THE "ESY" DEADLINE?

"ESY" stands for "extended school year" services. Children may be eligible for academic, vocational and other skills and knowledge training through summer ESY programs, which can require weekend or even continuous programming, if your child meets the requirements for ESY.

There are many factors that may be considered in determining eligibility for ESY (feel free to contact us for detailed information). But, for most students, the primary issue is whether the student's disability is such that the studentwill lose more ground in important skills or knowledge over the summerthan he or she can recoup within a reasonable time when school resumes in September.

The Pennsylvania Bureau of Special Education has adopted deadlines for when IEP ESY planning must be completed. For "target group student," the deadline for the IEP review meeting is February 28 of each year.Target group students include those diagnosed with autism/pervasive development disorder, serious emotional disturbance, severe mental retardation, degenerative impairments with mental involvement, and severe multiple disabilities.The ESY program specifics must then be included in the IEP no later than March 31.

For "non-target group" students, the Bureau requires only that their ESY needs be considered by the team in a "timely manner." If you are the parent of a special needs child whom you believe may be eligible for ESY, we encourage you to seek an IEP meeting by no later than April 1. In that way, there will be sufficient time to effectively object if you disagree with the team's decision or, of course, to plan and prepare if the team reaches agreement.

Want more detailed information on ESY and the IEP deadlines? Click here to go the Bureau's "Basic Education Circular" on ESY.

If you have any trouble understanding it, or have other questions, just call or email us.

ELA Education Law Advocates PC - Special Education Lawyers

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Education Law Advocates, P.C. skillfully represents parents and their special needs children in southeastern and central Pennsylvania, including West Chester, Lower Merion, Coatesville, Paoli, Downingtown and Upper Darby, and throughout the Philadelphia metro area, including Chester County, Montgomery County, Delaware County, Bucks County, Philadelphia, Lancaster County and Berks County.

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