The 2020-2021 school year has presented historical challenges for school districts across the nation.  One challenge specific to California school districts is the reconciliation of new State-mandated distance learning requirements contained in Assembly Bill (“AB”) 77 with California Education Code section 51512, which prohibits the unauthorized recording and use of electronic listening devices in the classroom.[1]  This legal update addresses the conflict between AB 77 and Section 51512, as well as how the California Legislature is proposing to solve this conflict.

Section 51512 became particularly troublesome as school districts prepared to transition to a distance learning model, thereby requiring students to log into synchronous instruction via their personal computers, and/or watch pre-recorded classroom lectures in an asynchronous model.  Many districts became concerned that students engaging in distance learning might unwittingly violate Section 51512 by using their personal computer, or an “electronic listening device” to receive their teacher's instruction.  Furthermore, teachers became concerned about the potential of students or parents recording their classroom lectures without their prior consent.

Until recently, school districts grappled with how to successfully comply with the State's distance learning requirements (implemented by AB 77) as well as Section 51512, which was drafted long before the invention of the internet as we know it. On August 27, 2020, however, a legislative “clean up” was offered to shed light on the State's expectations of school districts during the COVID-19 era.  Specifically, California Senate Bill (“SB”) 820 and AB 1865 were edited to provide school districts with clarifying information regarding, among other things, the conflict of law between AB 77 and Education Code section 51512.

SB 820 and AB 1865 propose to amend Education Code section 43503 regarding distance learning for the 2020–2021 school year.  The proposed Section 43503(d)(1) states:

“Notwithstanding Section 51512 or any other law, the prior consent of the teacher or the principal of a school is not required for the adoption or implementation of the use of synchronous or asynchronous video for purposes of distance learning provided pursuant to this section.”

Additionally, the proposed change would allow school districts, for the purposes of distance learning, to make audio, video, or digital recordings of live or synchronous distance learning instruction.  The proposed amendment maintains the long-standing prohibition against recording classroom instruction by individuals other than the school district, without the prior consent of the teacher and the principal, as consistent with Education Code section 51512.

The Education Code amendments proposed by SB 820 and AB 1865 are currently in committee.  An update with respect to this legislation will be provided.

[1] California Education Code section 51512 states:

“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…”  (Emphasis added.)

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This update is provided for informational purposes only. It is not intended as legal advice, nor does it create an attorney-client relationship between Parker & Covert LLP and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances.

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