In negotiations with school districts around the state, the California Teachers Association has argued, with some success, that school districts lack the authority to force teachers to do live online instruction or to record lessons for later use. Some districts have accepted that assertion.
But some attorneys for school districts are challenging the CTA’s position. They point out that the Legislature encourages distance learning in legislation that accompanied the state budget Gov. Gavin Newsom signed into law last week.
At stake is whether school districts will be able to make live instruction a universal component of distance learning this fall. Many individual teachers across the state have been teaching online on their own since schools closed in March. A number of education experts say that online instruction should be a key strategy to counter the loss of learning that students experienced partly because school districts were unable to transition to remote instruction quickly and effectively.
A coalition of California civil rights and student advocacy groups, including Children Now and the Families in Schools, is among those that argue that online instruction should try to mirror instruction in a physical classroom. They are encouraging the state to set a minimum of 3 hours of virtual instruction daily.
However, the CTA points to a 1976 law, passed decades before the arrival of the internet, that provides privacy protections for teachers. It prevents unauthorized recording in a classroom and requires a teacher’s and a principal’s consent for the use of any “listening or recording device.” The CTA claims that the law, Education Code 51512, also applies to distance learning, both “asynchronous” instruction — recording and uploading lessons online for students to use at home — and “synchronous” or real-time, live instruction. A district needs the consent of every individual teacher to implement a districtwide remote instruction policy, according to the CTA.
“Yes, our position is that teachers will not be required to conduct live video over their objection, pursuant to Education Code Section 51512,” Claudia Briggs, communications assistant manager for the CTA, said in an email.
ED CODE 51512 (ENACTED BY STATS. 1976, CH. 1010.)
The Legislature finds that the use by any person, including a pupil, of any electronic listening or recording device in any classroom of the elementary and secondary schools without the prior consent of the teacher and the principal of the school given to promote an educational purpose disrupts and impairs the teaching process and discipline in the elementary and secondary schools, and such use is prohibited. Any person, other than a pupil, who willfully violates this section shall be guilty of a misdemeanor.
Any pupil violating this section shall be subject to appropriate disciplinary action.
This section shall not be construed as affecting the powers, rights, and liabilities arising from the use of electronic listening or recording devices as provided for by any other provision of law.
Some attorneys for school districts and education advocates say applying this law to distance learning is farfetched.
“That sounds like a tortured interpretation of a statue that clearly was not intended to apply to the modern classroom,” said Bill Lucia, president and CEO of EdVoice, a Sacramento-based nonprofit that advocates for school choice and for low-income students. “And it’s an odd position to take for an organization with tens of thousands of members that were trained and prefer to have real-time interaction with their students.”
The law was written to prohibit students and adults other than the teacher from recording activities in a classroom. Such an intrusion “disrupts and impairs the teaching process and discipline in the elementary and secondary schools, and such use is prohibited,” the law states.
But Gregory Dannis, president of San Francisco law firm Dannis Woliver Kelley, who represents school districts, said there’s no basis for applying a law protecting teachers from the impact of unauthorized classroom recordings to distance learning as a form of instruction.
“In our present Covid-19 environment, one can hardly claim that synchronous/video instruction as part of a distance teaching model is disruptive to teaching when it is the very method being used to teach,” he said.
In hurried negotiations with teachers’ unions after schools closed, some districts explicitly adopted the CTA’s position in agreements governing learning during school closures. Those agreements expired at the end of June. Oakland Unified wrote into its memorandum of understanding, “Teachers will not be required to conduct live video over their objections, pursuant to California Education Code Section 51512.” Montebello Unified adopted the same language. The Sacramento City Teachers Association cited the law in its effort to block the district from requiring live instruction.
Other agreements, Dannis said, contain the language, “Unit members shall not be required to submit lessons via video, either recorded or live, to administration or students.”
In Palo Alto Unified, the president of the school board, Todd Collins, said in an email to a parents group pressing for live instruction for all students, “Since this law requires individual teacher consent, our understanding is that it can’t be part of a bargaining agreement. That doesn’t mean that many teachers won’t be willing to do it — many, many did during the spring, and we hope that many more will in the fall. But a blanket requirement to do (live streaming) would violate that section of Ed Code.” He sent that email in mid-May.
Since then, after consulting with lawyers, the district has taken the position that Ed Code 51512 doesn’t apply, said Superintendent Don Austin, who said the teachers’ association has not raised the law as an obstacle in negotiations. He said he expects both uploaded lessons and live instruction will be integral to the district’s learning strategy.
Collins said this week that the concern he’d heard was around broadcasting a class being taught to students in-person. “Since we are not using that model, it has become moot for us,” he said in an email.
Some districts backed off requiring online instruction while not citing the law as the reason why. Other districts may have decided not to mandate it for other reasons: Students or teachers lacked the internet connections to participate in remote learning, or teachers lacked training.
In other districts, like Long Beach Unified and Anaheim Union High School District, teachers embraced both uploaded lessons and live instruction and schedules based on in-school schedules. The issue of Ed Code 51512 didn’t come up when creating a learning plan for this past spring, Anaheim Union officials said.
In Assembly Bill 77, the “trailer bill” accompanying the 2020-21 state budget that became law this week, the Legislature and Newsom made it clear that the coronavirus pandemic may require distance learning. They defined it in the bill to include “online interaction, instructional television, video, telecourses, or other instruction that relies on computer or communications technology” (section 43500).
That language is significant, Dannis said. Defining distance instruction the way they did “may have taken away the 51512 argument,” he said.
And he said if the wording, carving out a big exception to applying the law, is not explicit enough, it would be easy enough to amend the statute to say that it does not apply to a deliberate program of distance learning instruction.
Local teachers unions and districts are currently negotiating the instruction agreements for 2020-21, and the next few weeks before school resumes will decide what distance learning looks like.
Peter Fagen, a partner with the law firm Fagen, Friedman and Fulfrost, which works with districts in Southern California, said the teachers unions are raising the issue of Ed Code 51512 more often in the current round of negotiations than before, but not strenuously so.
“It’s not necessarily a hard and fast position — it’s leverage, so they are willing to back off” if there’s another concession, he said.
As Dannis observed, the issue of preventing districts from requiring distance learning with live interaction doesn’t resonate in districts where “90-plus percent of teachers were already doing it as much and as well as they could.”