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Public Schools, Public Places

An incident of alleged teacher misconduct in Nevada last year illuminated a strange reality: The places we call “public schools” are not, for the most part, considered public places.

Last June, police arrested a teacher at Harmon Elementary School on a charge of felony child abuse. Melody Carter allegedly struck a 5-year-old autistic student with a wooden pointer. The boy developed bruises on his lower legs. A substitute aide who had been in the classroom for a few days witnessed the incident and told the police that Carter swung the pointer with enough force to make noise, and that the pointer eventually broke.

Carter’s charge was reduced to a misdemeanor and dismissed after she attended anger management training. Shortly afterward, she resigned her position. So far, so good. I have written in this space about the reasons corporal punishment is counterproductive and wrong, whether in the classroom or anywhere else. In this sense, the story resolved as it should.

Unfortunately, this was not the end of the story. Joshua and Britten Wahrer, the parents whose son Carter allegedly struck, felt understandably shaken after the incident. “When it comes out that your son was beaten with a stick, and a stick was actually broken on him, it’s hard to describe emotionally,” Joshua Wahrer told a local ABC news affiliate. To protect their son and bolster their own peace of mind, the Wahrers sought to outfit him with a GPS tracker. The device also offers them the ability to remotely listen to their son’s surroundings periodically throughout the day.

The Clark County School District refused. The district’s reasoning hinged on the device’s listen-in function, which the district claimed could intrude on private conversations.

Nevada is not the only place parents lack access to such devices. While originally developed for Alzheimer’s patients, the technology has been a good fit for parents of special-needs children, especially those prone to wander (as the Wahrers report their son does). But a variety of school districts across the country have cited privacy concerns in requiring parents to disable the listening function or in banning the devices outright. For example, the Lake Travis Independent School District outside of Austin, Texas, requires parents to secure approval before outfitting students with tracking devices. That district also stipulates that even approved devices must have listening functions turned off while the student is at school or school-sponsored functions.

In Nevada and Texas, as in many states, it is illegal to record a conversation without at least one party’s consent. The definition of “recording” may get a bit blurry in the case of these monitoring devices, as Joshua Wahrer pointed out. The tracker functions more like a baby monitor or a cellphone speaker function. It does not store conversations, but only allows users to listen to what is currently happening around the wearer. Yet even assuming that operating such a device fits the definition of “recording,” it is not clear that such a device worn openly could violate privacy laws.

School districts have raised concerns that a student’s monitor may pick up private conversations not involving the student wearing the device. If a classroom teacher needs to have a private conversation with another adult or another student, what should he or she do? The answer seems obvious: Hold the private conversation someplace private, out of earshot of other students, and thus out of range of any devices they may be wearing. This solution represents common sense, as well as common courtesy toward any parties whose privacy might otherwise be at risk. It’s a sensible policy even when no listening devices are involved.

A classroom in a public school supported by taxpayers ought to be considered a public place, at least with respect to anyone authorized to be there. There is nothing that a teacher should say or do in front of a roomful of students that the teacher could not share with school administration, the school board or any parent of a child present in that room.

As for anti-eavesdropping laws, are we now to expect the police to successfully charge members of the public with violating such laws when we capture video on our phones of officers in the act of (arguably) mistreating members of the public? When an event occurs in a public place, openly recording it should never be a crime. Expanding the definition of “public place” to include classrooms would probably address the matter. When people converse in front of an individual whose presence is obvious to those engaged in the conversation, there is no reasonable expectation of privacy; the term “eavesdropping” and, thus, eavesdropping laws, should never apply in these circumstances. I do not eavesdrop on your conversation just because you are indiscreet enough to have it in front of me.

Schools have a duty to protect their students, but that duty takes a back seat to a parent’s position as the child’s ultimate legal representative and guardian. Nothing that happens to a child at school – or arguably anywhere – should be secret from a custodial parent. To the extent there is any exception to “nothing,” it involves highly personal and mature issues like psychological or reproductive health. Such concerns have nothing to do with a 5- or 6-year-old.

Lawmakers should sit up and take notice. Of course, teachers unions will do what they tend to do best, which is to try to circumscribe accountability for whatever a teacher does or does not do in the classroom. Does every teacher deserve due process when accused of mistreating a child? Absolutely. Is due process impeded by giving parents the same long-distance insight into their child’s day at school that they would have at home using a “nanny cam”? Absolutely not.

The resolution to this question should hinge on this: For whose benefit do public school systems operate? I continue to hold the quaint, possibly antiquated beliefs that schools should be run for the benefit of their students, rather than for their employees, and that the interests of those students are best protected by their parents, not the schools.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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