Photo: Charles Deluvio/Unsplash

In negotiations with school districts around the state, the California Teachers Association has argued, with some success, that school districts lack the authority to force teachers to do live online instruction or to record lessons for later use. Some districts have accepted that assertion.

But some attorneys for school districts are challenging the CTA’s position. They point out that the Legislature encourages distance learning in legislation that accompanied the state budget Gov. Gavin Newsom signed into law last week.

At stake is whether school districts will be able to make live instruction a universal component of distance learning this fall. Many individual teachers across the state have been teaching online on their own since schools closed in March. A number of education experts say that online instruction should be a key strategy to counter the loss of learning that students experienced partly because school districts were unable to transition to remote instruction quickly and effectively.

A coalition of California civil rights and student advocacy groups, including Children Now and the Families in Schools, is among those that argue that online instruction should try to mirror instruction in a physical classroom. They are encouraging the state to set a minimum of 3 hours of virtual instruction daily.

However, the CTA points to a 1976 law, passed decades before the arrival of the internet, that provides privacy protections for teachers. It prevents unauthorized recording in a classroom and requires a teacher’s and a principal’s consent for the use of any “listening or recording device.” The CTA claims that the law, Education Code 51512, also applies to distance learning, both “asynchronous” instruction — recording and uploading lessons online for students to use at home — and “synchronous” or real-time, live instruction. A district needs the consent of every individual teacher to implement a districtwide remote instruction policy, according to the CTA.

“Yes, our position is that teachers will not be required to conduct live video over their objection, pursuant to Education Code Section 51512,” Claudia Briggs, communications assistant manager for the CTA, said in an email.

Some attorneys for school districts and education advocates say applying this law to distance learning is farfetched.

“That sounds like a tortured interpretation of a statue that clearly was not intended to apply to the modern classroom,” said Bill Lucia, president and CEO of EdVoice, a Sacramento-based nonprofit that advocates for school choice and for low-income students. “And it’s an odd position to take for an organization with tens of thousands of members that were trained and prefer to have real-time interaction with their students.”

The law was written to prohibit students and adults other than the teacher from recording activities in a classroom. Such an intrusion “disrupts and impairs the teaching process and discipline in the elementary and secondary schools, and such use is prohibited,” the law states.

But Gregory Dannis, president of San Francisco law firm Dannis Woliver Kelley, who represents school districts, said there’s no basis for applying a law protecting teachers from the impact of unauthorized classroom recordings to distance learning as a form of instruction.

“In our present Covid-19 environment, one can hardly claim that synchronous/video instruction as part of a distance teaching model is disruptive to teaching when it is the very method being used to teach,” he said.

In hurried negotiations with teachers’ unions after schools closed, some districts explicitly adopted the CTA’s position in agreements governing learning during school closures. Those agreements expired at the end of June. Oakland Unified wrote into its memorandum of understanding, “Teachers will not be required to conduct live video over their objections, pursuant to California Education Code Section 51512.” Montebello Unified adopted the same language. The Sacramento City Teachers Association cited the law in its effort to block the district from requiring live instruction.

Other agreements, Dannis said, contain the language, “Unit members shall not be required to submit lessons via video, either recorded or live, to administration or students.”

In Palo Alto Unified, the president of the school board, Todd Collins, said in an email to a parents group pressing for live instruction for all students, “Since this law requires individual teacher consent, our understanding is that it can’t be part of a bargaining agreement. That doesn’t mean that many teachers won’t be willing to do it — many, many did during the spring, and we hope that many more will in the fall. But a blanket requirement to do (live streaming) would violate that section of Ed Code.” He sent that email in mid-May.

Since then, after consulting with lawyers, the district has taken the position that Ed Code 51512 doesn’t apply, said Superintendent Don Austin, who said the teachers’ association has not raised the law as an obstacle in negotiations. He said he expects both uploaded lessons and live instruction will be integral to the district’s learning strategy.

Collins said this week that the concern he’d heard was around broadcasting a class being taught to students in-person. “Since we are not using that model, it has become moot for us,” he said in an email.

Some districts backed off requiring online instruction while not citing the law as the reason why. Other districts may have decided not to mandate it for other reasons: Students or teachers lacked the internet connections to participate in remote learning, or teachers lacked training.

In other districts, like Long Beach Unified and Anaheim Union High School District, teachers embraced both uploaded lessons and live instruction and schedules based on in-school schedules. The issue of Ed Code 51512 didn’t come up when creating a learning plan for this past spring, Anaheim Union officials said.

In Assembly Bill 77, the “trailer bill” accompanying the 2020-21 state budget that became law this week, the Legislature and Newsom made it clear that the coronavirus pandemic may require distance learning. They defined it in the bill to include “online interaction, instructional television, video, telecourses, or other instruction that relies on computer or communications technology” (section 43500).

That language is significant, Dannis said. Defining distance instruction the way they did “may have taken away the 51512 argument,” he said.

And he said if the wording, carving out a big exception to applying the law, is not explicit enough, it would be easy enough to amend the statute to say that it does not apply to a deliberate program of distance learning instruction.

Local teachers unions and districts are currently negotiating the instruction agreements for 2020-21, and the next few weeks before school resumes will decide what distance learning looks like.

Peter Fagen, a partner with the law firm Fagen, Friedman and Fulfrost, which works with districts in Southern California, said the teachers unions are raising the issue of Ed Code 51512 more often in the current round of negotiations than before, but not strenuously so.

“It’s not necessarily a hard and fast position — it’s leverage, so they are willing to back off” if there’s another concession, he said.

As Dannis observed, the issue of preventing districts from requiring distance learning with live interaction doesn’t resonate in districts where “90-plus percent of teachers were already doing it as much and as well as they could.”

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  1. Cporras 3 months ago3 months ago

    Dear EMT. Unfortunately education is grossly underfunded and schools are not equipped to teach properly in our pandemic environment. I can’t imagine an EMT would be expected to do their job without a properly equipped, cleaned and supplied ambulance. Our US schools are understaffed, ill-equipped, and dirty. Our schools cannot find teachers, janitors, support staff, kitchen staff, or maintenance staff to be fully functioning. We are in a hybrid model at our school, students come … Read More

    Dear EMT. Unfortunately education is grossly underfunded and schools are not equipped to teach properly in our pandemic environment. I can’t imagine an EMT would be expected to do their job without a properly equipped, cleaned and supplied ambulance.

    Our US schools are understaffed, ill-equipped, and dirty. Our schools cannot find teachers, janitors, support staff, kitchen staff, or maintenance staff to be fully functioning. We are in a hybrid model at our school, students come to dirty rooms that teachers are doing their best to clean with supplies brought from home. Our computers/chrome books issued lack technology to view our students’ faces and they don’t have microphones for our students to hear us teach on zoom.

    We are drowning trying to fund our own safe place for students to meet on line and in class. I’m glad EMTs and nurses get the protection and equipment/supplies needed to serve our public properly and safely. Education funding has dropped dramatically since the ’60s and early ’70s. Decisions are made above teachers, admin, and districts that force inadequate environments for quality education. Until education becomes a priority to our nation and states, we will continue to suffer.

  2. Dan 4 months ago4 months ago

    Synchronous "live" online instruction can also include the use of a learning management system (LMS) discussion board where teacher instruction and student interaction is done through real time written exchanges. Such a live online style avoids the cacophony and chaos of a secondary level videoconferenced class discussion involving a teacher and as many as 40 students. In addition, this live online written style requires class communication to be more deliberate, precise, and thoughtful … Read More

    Synchronous “live” online instruction can also include the use of a learning management system (LMS) discussion board where teacher instruction and student interaction is done through real time written exchanges. Such a live online style avoids the cacophony and chaos of a secondary level videoconferenced class discussion involving a teacher and as many as 40 students. In addition, this live online written style requires class communication to be more deliberate, precise, and thoughtful since the LMS keeps a record of it. People assume that live online instruction only involves videoconferencing, but that style is just one of several live online modalities available in online education.

  3. Collin 4 months ago4 months ago

    It is really upsetting to see how many teachers are willing to sacrifice children's education. I am not only an essential worker, but an EMT. What if all EMTs, nurses and doctors decided that we would rather "wait this out," and that other people are not our concern. Teachers unions serve their place in the "normal" world, but are really causing more harm than good right now. Keep the "vulnerable" teachers at home, but we … Read More

    It is really upsetting to see how many teachers are willing to sacrifice children’s education. I am not only an essential worker, but an EMT. What if all EMTs, nurses and doctors decided that we would rather “wait this out,” and that other people are not our concern. Teachers unions serve their place in the “normal” world, but are really causing more harm than good right now.

    Keep the “vulnerable” teachers at home, but we need the courageous teachers to show up to work, as all essential workers have been.

  4. Patrick 5 months ago5 months ago

    It is insane that the teachers union is pushing against this. And just as bad, many school districts are rolling over and playing dead instead of pushing against it, such is their fear of losing the fight. From April through the end of the semester, my wife taught community college English classes while at the same time taking classes to get a second degree. All of it was done on Zoom via direct synchronous teaching, … Read More

    It is insane that the teachers union is pushing against this. And just as bad, many school districts are rolling over and playing dead instead of pushing against it, such is their fear of losing the fight.

    From April through the end of the semester, my wife taught community college English classes while at the same time taking classes to get a second degree. All of it was done on Zoom via direct synchronous teaching, using nothing more than a laptop with its built-in camera and a DSL Internet connection. Nothing fancy is required. No “training” is needed. You just teach in front of a camera as though you were in front of a room of students, as indeed you are, albeit a virtual room.

    Our kids are enrolled in the local public schools and both the district and the local teacher’s union refuse to discuss synchronous online teaching. The worst part of this case, in my opinion, is that the teachers union is unilaterally dictating the educational process and deliberately keeping the public out of the discussion because they understand how unpopular it would be if everyone knew their extremely weak justification on a position that will affect us all directly in a very negative way.

  5. D. Polanco 5 months ago5 months ago

    This is a legitimate concern for teachers because having your recorded lessons on video is something that administrators can twist and try to use against you. Teaching like any job is not guaranteed. If you are a good teacher but bad at teaching in an online environment due to a clear lack training on behalf of school districts, this can negatively affect your ratings as a teacher and the future of your job.

    Replies

    • Lilly Ben 5 months ago5 months ago

      While I understand teachers may not want someone viewing their teaching, at some point, this needs to be about educating students. I have been very disturbed by all the teacher comments I have read that show very little concern for whether kids are actually learning.

    • Patrick 5 months ago5 months ago

      I disagree that teaching is not guaranteed. California teachers only need 2 years to get tenure. Even the worst slackers can keep up appearances and force a laugh now and then for 24 months. Two years is just not long enough to see all the sides of someone. It's basically impossible get a teacher fired for poor teaching or hostility to students. I know because we've tried. We kept a logbook of … Read More

      I disagree that teaching is not guaranteed. California teachers only need 2 years to get tenure. Even the worst slackers can keep up appearances and force a laugh now and then for 24 months. Two years is just not long enough to see all the sides of someone. It’s basically impossible get a teacher fired for poor teaching or hostility to students.

      I know because we’ve tried. We kept a logbook of insults, some racially biased, and bogus assignments like coloring a wacky holiday sweater for 8th grade science. With one or two exceptions, the English department refuses to actually grade and return papers. “I’m well within my rights” is a quote from our kid’s teacher when asked why our class was doing the absolute minimum.

  6. Anna Miller 5 months ago5 months ago

    Recording live sessions with students violates student privacy-if a child misbehaves, or has a disability, it is recorded for all to see. There are students with high functioning autism/Aspergers in the regular ed classroom.

    Replies

    • Robin Ivester 4 months ago4 months ago

      Anna, do you prefer that children receive no real instruction during the pandemic? At the end of the day, the birth rate is declining and schools are facing lower enrollment. If schools refuse to provide an appropriate education, including virtual in person learning, parents have choice to include actual homeschooling as they are already being forced to do. If public school and the teachers continue to make excuses, expect schools to disappear … Read More

      Anna, do you prefer that children receive no real instruction during the pandemic? At the end of the day, the birth rate is declining and schools are facing lower enrollment. If schools refuse to provide an appropriate education, including virtual in person learning, parents have choice to include actual homeschooling as they are already being forced to do. If public school and the teachers continue to make excuses, expect schools to disappear as parents move to other methods. Think about it.

  7. Sam 5 months ago5 months ago

    The teacher’s union is analogous at this point to the police union; their outright refusal to do what's right for the people they are employed on behalf of negates their entire workforce. For every good cop there is a bad one and likewise for teachers. In SD at the top public high school my daughter received 1 hour of live teaching a week from March 13th till the end of school. All around us … Read More

    The teacher’s union is analogous at this point to the police union; their outright refusal to do what’s right for the people they are employed on behalf of negates their entire workforce. For every good cop there is a bad one and likewise for teachers. In SD at the top public high school my daughter received 1 hour of live teaching a week from March 13th till the end of school. All around us charter and private schools were having full day schedules powered by Zoom. The only reason my child received a subpar educational experience was because of the union.

    It’s time teachers are treated as at will employees – the beat get bonus and top pay and the worst are terminated, immediately. How long to be allow America to lag educationally compared to the rest of the world. Look where that has gotten us.

  8. M 5 months ago5 months ago

    The school shut down in March was not planned. Teachers like me had their children at home with them. Some households have two teachers like mine. Someone had to watch our three children. Only one of us could work at a time. Fortunately, our district did not impose strict guidelines on the teachers. Our children are eight and under. Their school district had twice-weekly live sessions with teachers. We sat with them to watch every … Read More

    The school shut down in March was not planned. Teachers like me had their children at home with them. Some households have two teachers like mine. Someone had to watch our three children. Only one of us could work at a time. Fortunately, our district did not impose strict guidelines on the teachers. Our children are eight and under. Their school district had twice-weekly live sessions with teachers. We sat with them to watch every session especially after seeing story after story of live sessions being highjacked. I felt so bad for my children’s teachers. They were uncomfortable and “classroom” management was a nightmare. Lessons were repeatedly interrupted by background noise and activity from student homes. Some parents did not monitor their children while online with their class. Who knows if their parents were working or if they were at someone else’s house. Some children were extremely rude.

    My district did not provide extra equipment for online teaching. I had my tiny Surface Pro and that’s it. The camera is good but it is difficult to see the class and share your screen on 11 inches. I had to make a mini recording office complete with a sheet for a curtain to keep my background from being a distraction. I made a makeshift desk and computer stand.

    So here we are months later and nothing has changed. My district has not provided additional training or tech supplies. My district has no plan! I agree with some of the previous comments. With our fast-paced modern technology, what is taking so long for ed code and the law to catch up?

    I do not want to be unknowingly recorded by students only to have the video altered and reposted. Do a Google search. It happens regularly. Students make fake accounts for teachers and burn sites. Students have turned us into memes. No thank you. I will only record my voice, my screen, and my “whiteboard.”

  9. Manuel 5 months ago5 months ago

    Interesting that none of the comments address the obvious: if Ed Code 51512 is an impediment, then rewrite it to match today's conditions instead of using as an excuse not to do the right thing (which will vary depending on your POV and your interests). Of course, it won't be an easy thing to do, but I believe it would be more productive than bargaining or litigating this to death. Distance learning is the "new" … Read More

    Interesting that none of the comments address the obvious: if Ed Code 51512 is an impediment, then rewrite it to match today’s conditions instead of using as an excuse not to do the right thing (which will vary depending on your POV and your interests).

    Of course, it won’t be an easy thing to do, but I believe it would be more productive than bargaining or litigating this to death. Distance learning is the “new” normal until a vaccine is developed and implemented world-wide. Why not work collaboratively to find a solution? If not now, when?

  10. Vince Brannigan 5 months ago5 months ago

    I am a law professor emeritus. My field is technology and the law. Go to court. We have judges who decide such questions.

  11. Tracey 5 months ago5 months ago

    Students need to have live teacher interaction in a classroom. If that isn’t available, live real-time Zoom or some platform has to be available for students to engage and see teachers to ask questions in the moment while learning. Academically we can’t have another term or longer without teacher instruction in person or live on zoom.

  12. LVB 5 months ago5 months ago

    Luddites abound. Districts, unions, and teachers have had at least 36 years to prepare for this moment in the evolution of technology in education. Citing 1976 laws instead of having progressively bargained for tech training for its members since 1984 Illustrates how out of touch and myopic the teacher unions and most districts have been and are now found wanting for their dereliction.

  13. Adam Hampton 5 months ago5 months ago

    Without union-negotiated protections, the hard-working teachers who constantly bend over backward for students and parents would instead be bent over forward by administration with no parameters. Not all admin, but we all know admin who would. There is a balance here. Creativity is this crisis should not mean excessive demands on an already hard-working populace. As demands and responsibilities increase in any job, protections and additional compensation should follow. The teachers I work … Read More

    Without union-negotiated protections, the hard-working teachers who constantly bend over backward for students and parents would instead be bent over forward by administration with no parameters.

    Not all admin, but we all know admin who would.

    There is a balance here. Creativity is this crisis should not mean excessive demands on an already hard-working populace. As demands and responsibilities increase in any job, protections and additional compensation should follow. The teachers I work with are overwhelmingly, if not unanimously, grateful for their protections. Whatever re-opening plan a district adopts should take into account the workplace (also the learning place) conditions. These are negotiable. When teachers are protected, so are students.

    Replies

    • Dr. Bill Conrad 5 months ago5 months ago

      You make valid points. There is no question that teachers need protection against the schmoozer administrators in our midst who value self over service and rule the roost through loyalty rather than competence. No question about that. The teachers need union protections. Students, families, and the community expect that teachers and administrators develop a strong online teaching system to teach their children. It is not unreasonable. Teachers should not have the option to opt out, … Read More

      You make valid points. There is no question that teachers need protection against the schmoozer administrators in our midst who value self over service and rule the roost through loyalty rather than competence. No question about that. The teachers need union protections.

      Students, families, and the community expect that teachers and administrators develop a strong online teaching system to teach their children. It is not unreasonable. Teachers should not have the option to opt out, dictate schedules, or work less than a full day with some time devoted to daily online quality instruction.

      Unions need to advocate for the ongoing improvement of instructional practices as well as reasonable protections against administrative and local school board overreach. Unions need to transform themselves into professional organizations that seek improvement in practice. We should be more than a blue collar type union that constantly seeks to protect worker rights – we need to be much more.

      The student results (only half of third graders can read) demonstrate that we have a long way to go and teacher professional organizations should be leading the way. Reducing class sizes is not enough.

    • Lilly B 5 months ago5 months ago

      I have always supported my kids teachers through volunteering, donating money and making sure my kids are on top of their school work. Teachers have now shown their true colors. It is very clear that my kids’ teachers were much more concerned with going to the beach, taking long bike rides and hikes than teaching my kids.

    • Marcia 4 months ago4 months ago

      Good teachers don’t need protection. Bad teachers do, however, and teachers unions do a great job keeping bad teachers employed.

  14. Vicki Rigsby 5 months ago5 months ago

    Many kids are missing from this distance learning. What's to become of them and students who need extra help. Plenty of parents don't have the funds for tutors nor are they computer savvy nor are they capable of assisting their children's home education. I am floored by the people who decided their vocation was teaching. None of us signed up for all the changes the pandemic has brought to us but we must look for … Read More

    Many kids are missing from this distance learning. What’s to become of them and students who need extra help. Plenty of parents don’t have the funds for tutors nor are they computer savvy nor are they capable of assisting their children’s home education.

    I am floored by the people who decided their vocation was teaching. None of us signed up for all the changes the pandemic has brought to us but we must look for ways to move forward. Virtual classroom instruction needs to closely mirror the instruction kids would receive if they were present in the classroom. Kids need more than packets of homework in a never-ending study hall. They need interested teachers providing interesting material in all core subjects. Students need the opportunity

  15. Shana Just 5 months ago5 months ago

    Having been a party to negotiation sessions, the 51512 section of Ed Code has primarily been raised in the context of required streaming in-person instruction so students at home can watch or for requiring live video lessons. I have not heard it argued that it means teachers don’t have to provide any audio or video lessons. All the teachers I know did recorded audio/video lessons during distance learning this spring. The concerns with live video … Read More

    Having been a party to negotiation sessions, the 51512 section of Ed Code has primarily been raised in the context of required streaming in-person instruction so students at home can watch or for requiring live video lessons. I have not heard it argued that it means teachers don’t have to provide any audio or video lessons.

    All the teachers I know did recorded audio/video lessons during distance learning this spring. The concerns with live video or live streaming of in-person classes are well founded as students/parents could record sessions and could be shared/edited without the teacher’s knowledge or permission. It also would require teachers to remain only at the front of the room so as not to show any student faces and violate other provisions of Ed Code and student privacy.

    Replies

    • el 5 months ago5 months ago

      Copyright law already prevents a situation where parents would redistribute video. Permissions can be set so that only authorized users can stream video. How secure you get it is limited by how much trouble you want to go to.

      I have no idea why anyone thinks it’s likely or especially problematic even for parents to be going to the trouble to pirate, edit, and redistribute classroom video. What am I missing here?

      • Martha Infante 5 months ago5 months ago

        You can record a live session with your cell phone directed at a computer screen.

  16. Dr. Bill Conrad 5 months ago5 months ago

    The Teachers’ Unions are once again snatching defeat from the jaws of victory. They embrace a selfish Me First approach to the detriment of students and families who need creative solutions to teaching and learning in order to advance student academic success. Maybe it is time for us to consider defunding K-12 education until it comes to its senses and begins to advance a 21st century professionalism that supports the needs of all students and their … Read More

    The Teachers’ Unions are once again snatching defeat from the jaws of victory.

    They embrace a selfish Me First approach to the detriment of students and families who need creative solutions to teaching and learning in order to advance student academic success.

    Maybe it is time for us to consider defunding K-12 education until it comes to its senses and begins to advance a 21st century professionalism that supports the needs of all students and their families.

    The kinda of bureaucratic “protections” advocated by the Teacher Unions are an embarrassment to the hard working teachers and administrators who want to bend over backward to support students and their families.

    Enough is Enough.

    Replies

    • Demetrio 5 months ago5 months ago

      The Heritage Foundation salutes you.

    • Joanne Dougherty 5 months ago5 months ago

      So your solution is to cut funding to school districts and schools. Punishing students because districts are out of compliance. Isn’t that counter productive? Your solution calls for the have-nots to have even less because the adults in charge are not doing the right thing. My district has teachers who taught five days a week, and spent the time we weren’t teaching contacting parents, troubleshooting tech issues, and setting up classrooms in our … Read More

      So your solution is to cut funding to school districts and schools. Punishing students because districts are out of compliance. Isn’t that counter productive? Your solution calls for the have-nots to have even less because the adults in charge are not doing the right thing.

      My district has teachers who taught five days a week, and spent the time we weren’t teaching contacting parents, troubleshooting tech issues, and setting up classrooms in our homes. On the other hand, there are teachers who suddenly became hard to reach, and invisible, on March 13. Strong work ethics are few and far between, and the disparity is glaringly obvious.

      Equity does not exist in distance learning. Cutting funds until a school “wises up” and reinvents itself is hurting the group that can least afford these cuts. Better to add money to the funds, and spend it developing clear and comprehensive, structured curricula that is aligned to the Common Core Standards and can easily be accessed and delivered in meaningful ways from a distance with the expectations that all students will achieve mastery.

      • Dr. Bill Conrad 5 months ago5 months ago

        The K-12 education chaotic lost in the fog system is supremely unable to produce results for children. One half of 3rd graders can’t read. Only 14% of Black 11th graders are proficient in Math. I think we should push the pause button on K-12 public education while we totally transform it into a truly professional system. That work will include a rebuilding of the color in the lines colleges of education. We need to … Read More

        The K-12 education chaotic lost in the fog system is supremely unable to produce results for children. One half of 3rd graders can’t read. Only 14% of Black 11th graders are proficient in Math.

        I think we should push the pause button on K-12 public education while we totally transform it into a truly professional system. That work will include a rebuilding of the color in the lines colleges of education. We need to create a solid teacher career ladder going from novice teacher to apprentice to journeymen to Master. Master teachers will earn six figure salaries and act as coaches for novice and apprentice teachers. Administrators will be drawn from the Master teacher pool for temporary assignments as administrators.

        We need to significantly raise the bar in K-12 education or we will produce another generation of academically unprepared students.

        • Marcia 4 months ago4 months ago

          Perhaps a good thing to come out of this pandemic is parental enlightenment and engagement. I see a movement beginning similar to BLM. Maybe call it Students’ Lives Matter!!!