A reminder that video in special education classes can’t be used for evaluations

Texas AFT has received several inquiries recently on the use of videos in special education classrooms for the purpose of teacher evaluations. The short answer is, “No, they can’t be used for evaluations.” You may recall that in 2015 the Legislature passed a law (Texas Education Code section 29.002) requiring districts to monitor certain special education classrooms with video and audio at the request of a parent of a student in that classroom (or certain staff members and district officials). Texas AFT raised important concerns about the use of video cameras and the Texas Education Agency’s rules developed for the law. Our Hotline at the time of the publication of rules outlines how most of our concerns submitted as comments to TEA were addressed.

We are re-posting the full Hotline here, which includes an explanation that the TEA rules now mirror state law on outlawing use of these cameras for evaluations:​

Last session’s legislation authorizing video recording of special-education classrooms during instructional time will be implemented this coming school year under rules of the commissioner of education taking effect on August 15. The legislation was sought by parent-advocates concerned about the potential for abusive treatment of special-ed students. A parent of a special-ed student, a school trustee, or a staff member could trigger video surveillance of instructional activity in the student’s classroom.

Many questions were raised regarding the scope and uses of video recordings under the commissioner’s first draft of the new rules, and the final version answers some but not all of them.  We are pleased to report that several key issues brought up by Texas AFT lawyers in a hearing earlier this year have been favorably resolved.

For instance, the final version of the rules corrects an overbroad definition of the kind of “incident” that would trigger review of the video recording of special-education classroom activity upon complaint by a parent. The adopted rule clarifies that the scope of the term “incident” is limited to abuse or neglect by an employee or physical abuse or sexual abuse of a student by another student, as defined in state statutes, that allegedly occurred in the special-education classroom in which video recording was conducted.

Texas AFT attorneys also prevailed on the commissioner to remove any ambiguity from the provision of the rules that prohibits use of the video recordings for teacher evaluation. The first draft of the rules, we noted, had created a gray area in the rule where none exists in statute, implying that such a video recording could be used for teacher evaluation under some unspecified circumstances. Now the rule simply repeats the statutory provision flatly outlawing use of the video recordings for teacher evaluation.

Texas AFT also sought to remove any ambiguity from the rules regarding the right of an employee involved in an alleged incident to have access to the relevant video recording. The commissioner’s final version of the rule now states:  “A recording believed to document a possible violation of school district, open-enrolment charter school, or campus policy must be released for viewing by the district or charter school employee who is the subject of the disciplinary action at the request of the employee.” This rule language tracks the Legislature’s directive specifically granting access to the recording for the employee involved in an alleged incident.

As school districts prepare to implement the requirement of video surveillance upon parental request, there remain unanswered questions about the scope of video recording triggered by such a request. Some of these may be answered by local district policies governing the details of implementation. However, one part of the commissioner’s rules makes clear that video cameras are required to be operating “during the instructional day when students are in the self-contained classroom or other special education setting”—and thus are not required to operate when students are not present, such as during a teacher’s planning and preparation period.