RIALTO -- When the Marquez family wanted to find out if their son was telling the truth about his third-grade teacher scaring him, they slipped a digital recorder into his backpack.
Rialto Unified officials called foul, labeling the family's actions illegal.
But it may not be so clear-cut.
Under normal circumstances, California law requires both parties involved to agree to any recording -- both the person being recorded and the person doing the recording. When Tim Braby taught his class at Henry Elementary on Aug. 31, he had no idea what the Marquez family was doing.
On the recording, Braby lectures one of his 10-year-old students: "Not very intelligent, are ya? Are ya? Why don't you grow up?"
The audio goes on:
"How many times do I have to say to indent? Do you not get what 'indent' means, ... or not? What does 'indent' mean? It means move it in! Just like I did! Can you not see the pink line, that's moved in? Yes or no? Can you see it? Then why can't you copy it that way? What do you mean, you don't know? Because you don't pay attention! That's why you can't copy it. You people don't pay attention. Right there on the board, in black and white, and you can't copy it down. Is that indented like I told you to do? No, it is not."
Rialto Unified officials objected to Marquez's making the recording without Braby's consent.
The law -- California Penal Code 632 -- explicitly refers to confidential conversations.
But in 1999, in the case of Karen Evens v. Superior Court, the state's 2nd Court of Appeal ruled that that definition didn't apply to the Los Angeles Unified School District classroom where Evens was secretly videotaped by two students.
"The videotape recording at issue here was made in a public classroom, and is clearly not the type of 'confidential communication' contemplated by Section 632," the court's ruling reads in part.
The state Legislature also enacted a special law protecting teachers from surreptitious recordings.
Education Code 51512 specifically prohibits "any electronic listening or recording device in any classroom of the elementary or secondary schools without the prior consent of the teacher and the principal," as doing so without their consent "disrupts and impairs the teaching process and discipline" at the school.
Violating that measure is a misdemeanor.
Education Code 51512 also was touched on in Evens v. Superior Court. The court said the L.A. Unified school board could use the videotape, however it was obtained, in its disciplinary decisions regarding Evens.
And the court said Evens could have no real expectation of privacy teaching in the classroom.
"Any such expectation was, we believe, unreasonable," the court's decision reads in part. "Communications and activities on the part of a teacher will virtually never be confined to the classroom. Students will, and usually do, discuss a teacher's communications and activities with their parents, other students, other teachers, and administrators. This is especially true when a student believes that the teacher is guilty of misconduct. A teacher must always expect 'public dissemination' of his or her classroom 'communications and activities.' We conclude, therefore, that California's privacy laws do not apply under the circumstances of this case."
The California Supreme Court later refused to review the case, letting the lower court's decision stand.
But it doesn't end there.
"Three years later, the California Supreme Court, in a case called Flanagan vs. Flanagan, ruled that a conversation is a confidential conversation ... based on the reasonable expectation of whether the conversation is being recorded," said Jeff Hermes, director of the Digital Media Law Project at Harvard University's Berkman Center for Internet and Society. "I'd say the question is up in the air, but there's definitely arguments to suggest the family did not violate California law."
Although a college or high school teacher might expect students could be recording their lectures, an elementary school teacher would be less likely to think that's a possibility, according to Rialto Unified school board member Joanne Gilbert, who was a high school teacher for 37 years.
"Not in elementary school, a teacher would not expect that to happen," Gilbert said. "But we're also in the age of technology. When I was teaching, there were no such devices available for a student to bring into a classroom.
But for the Marquez family, they felt they had no other choice.
"I already went to the district, I went to the principal," said the boy's mother," Charliena Marquez.
It was then, Marquez said, that her mother slipped the recording device into the boy's backpack.
"I had already exhausted my other options," Marquez said.
The Braby situation is being investigated, according to school board member Joseph Martinez, but residents shouldn't expect immediate results.
"We have to follow state law. Whenever anyone, a teacher, custodian, a superintendent," is accused of something, the district "has to follow state law and also their contract," Martinez said. "When something occurs, the first thing is, 'OK, during an investigation, everyone is put on a paid administrative leave,"' even when "the public is screaming 'cut them loose."'
Reach Beau at via email, call him at 909-483-9376, or find him on Twitter @InlandED. ___
(c)2013 the San Bernardino County Sun (San Bernardino, Calif.)
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