Is This Thing On?

Students with documented disabilities will make thousands of classroom recordings this academic year. With colleges and universities reopening this fall, in person and online, we should pause to consider this state of affairs. The issues at stake -- including access, privacy, consent and academic freedom -- concern everyone involved in higher education

The overwhelming majority of higher education institutions enroll students with disabilities, including 99 percent of public institutions. Nearly one in five undergraduates today reports having a disability, totaling more than three million students. That is a significant departure from 40 years ago, when less than 3 percent of undergraduates identified themselves as students with disabilities.

Both the 1990 Americans With Disabilities Act and Section 504 of the 1973 Rehabilitation Act provide protection against discrimination to qualified individuals with documented disabilities. With respect to audio recordings in particular, Section 504 regulation stipulates that instructors and institutions “may not impose upon handicapped students other rules, such as the prohibition of tape recorders in classrooms or of dog guides in campus buildings, that have the effect of limiting the participation of handicapped students in the recipient's education program or activity.” However, as legal scholar Alexis Anderson explains, the Office for Civil Rights provides for limited exceptions to this mandate in cases where “undue administrative burden or fundamental alteration of the program would result.”

What constitutes a “fundamental alteration” of the essential nature and key elements of a particular course is not an easy question to answer. Disability law expert Laura Rothstein told us she is “unaware of any litigation that has directly addressed the issue of classroom recordings as a ‘required’ accommodation” if a faculty member objects on pedagogical grounds. We seem to be in a legal gray area, then, in which a professor’s invocation of academic freedom to deny a classroom recording accommodation has never been tested.

We examined dozens of audio recording agreements posted on disability services websites at colleges and universities across the country. Those agreements frequently underscore that recordings are considered a “reasonable accommodation” under federal law and almost always include stipulations that recordings are for personal use only, subject to copyright protections and must be deleted at the conclusion of the course. Some agreements spell out that students may be subject to disciplinary sanctions if they violate the terms.

Only a small fraction of institutions, however, require the instructor to inform all of the students in any given classroom that recording is taking place. That tracks standard wiretapping laws in that most states have what are called one-party consent statutes, which means that only one person -- including the individual doing the recording -- has to give their consent.

But a policy that classroom recordings may proceed without the knowledge or consent of most students in the room raises serious questions about privacy and academic freedom. Some institutions attempt to address such concerns with provisions that recording “may be prohibited during portions of classes that involve personal discussion and self-disclosure.” At Marymount Manhattan College, for example, faculty members have the right to prohibit recording in “the rare instances where such recording would inhibit frank and open discussion of course material.” (Italics added.)

Policies like these, however, seem to misconstrue the nature of classroom discussions. No meaningful distinction can be made between our personal lives and the course content in liberal arts education, especially in the humanities and social sciences. During class discussions, students often disclose sensitive personal details about their lives that deepen and enrich our understanding of the academic material at hand. For instance, in classes on educational policy taught by one of the co-authors of this piece, Jeff Snyder, several students have revealed their undocumented status in the context of analyzing access to higher education. In a course that the other co-author, Amna Khalid, offers on modern India, students of South Asian origin have often shared the horrific violence their grandparents faced during Partition in 1947.

Whether it is the fear that an out-of-context comment will be posted online or simply the heightened self-consciousness cued by a recording device, classroom recording will tamp down robust dialogue, especially with respect to personal revelations, controversial subjects and minority viewpoints. In fact, any policies that constrain the scope and quality of classroom discussion interfere with a professor’s academic freedom. According to the 2007 American Association of University Professors report “Freedom in the Classroom,” how a professor teaches is “a matter of personal style” informed “by the pedagogical goals and classroom dynamics of a particular course, as well as by the larger educational objective of instilling in students the capacity for critical and independent thought.”

Disability services offices at many colleges and universities note that faculty members have the right to “challenge accommodations that fundamentally alter the academic integrity of a course.” Yet we only found one -- at the University of Montana -- that mentions the possibility of alternative accommodations to classroom recordings in particular if the instructor determines that they would “fundamentally alter the classroom experience.”

Lest we be misunderstood, we strongly believe in making the most powerful educational experiences accessible to all students. Colleges and universities have a professional and ethical obligation to enhance learning opportunities for students with disabilities. But a top-down model -- where faculty members are handed predetermined accommodations even in institutions where they may have the “right” to challenge them -- must be reconsidered. Classroom recording policies ought to be arrived at through a process of dialogue and consultation.

Faculty members should take more of an interest in understanding and shaping the classroom recording policies in effect at their home institutions. Some professors may not have any issues with their class sessions being recorded; others surely will. It is likewise incumbent upon administrators, especially those in disability services, to take the initiative to engage faculty members who have concerns about consent, confidentiality or academic freedom. Together, faculty members and administrators must collaborate to find effective alternatives to classroom recording. Note takers would seem to be one promising substitute. But, of course, the best solutions will be tailored to the distinctive needs of individual students, bearing in mind the pedagogical aims of individual faculty.

Recording devices are now ubiquitous. In this era of smartphones, smart pens and Zoom, the issues surrounding classroom recordings go well beyond accommodations for students with disabilities. Colleges and universities should take this opportunity to engage students, administrators and faculty in frank discussions about what happens when someone presses the record button.