by Shelley Haven, ATP, RET – Assistive Technology Consultant
New technologies for learning also create new challenges. This is very evident with "smartpens" which capture a student's handwritten notes, record audio, and link the two together. Devices like Livescribe’s Echo® can be incredibly helpful to students with dysgraphia, slow auditory processing, and other issues that impact their ability to effectively take notes. Students can listen more, write less, and selectively review sections of the recording later by tapping their written notes with the pen.
The challenge is the pen's ability to audio record, so laws or policies that specify what can and cannot be recorded in class apply. (These also apply to other notetaking technology that record – e.g., digital notebooks like Microsoft OneNote, various iPad notetaking apps, smartphone recorder apps, etc.)
I'm not a lawyer – nor do I play one on TV – but here is what I've gleaned from websites, list serve discussions, and my work with schools on this issue. In short, there are no hard-and-fast rules that apply in every state, every school, or every situation.
Concerns center around three issues: intellectual property, student confidentiality, and teacher rights.
At the college level, a professor might object to recording on the basis of "copyright infringement." One list serve post by a student claimed that her professor forbade her to use the smartpen because the lecture was his "intellectual property." But what if the student uses it as an academic accommodation?
Institutions have different perspectives about this. For example, the student handbook at Vermont's Middlebury College states: “Where a particular accommodation results in a verbatim transcription of a classroom lecture or presentation…[these] are the intellectual property of the individual professor, Middlebury College, and/or both,” and sharing these with anyone without prior written consent is prohibited. Institutions may employ an agreement for use of recording devices as an accommodation, such as this form from North Carolina State University.
At the K-12 level, recording teachers (as well as students who speak up) raises fears that a questionable off-hand remark or disciplinary action might become the latest YouTube sensation. States’ laws vary on use of recording devices in an educational setting, with some generalizing this to fall under laws regulating recording of phone calls without prior consent.
In California, Education Code Section 51512 says use of a recording device by any person, pupil or otherwise, without prior consent of both the teacher and the principal "disrupts and impairs the teaching process and discipline" and as such is prohibited. However, the last paragraph appears to provide an exception for accommodation-related recording, saying "This section shall not be construed as affecting the powers, rights, and liabilities...as provided for by any other provision of law.” This might include the ADA or IDEA rights of a student who needs recording as an accommodation. So which takes precedence?
The key may be striking a compromise on a case-by-case basis that balances the needs and rights of all involved. I've helped a few schools work out solutions. For example, in one school we determined that the district's board policy took precedence, and thus the "site administrator" (the principal) could make final decisions. The pen would only be used in certain circumstances (e.g., lecture portions of class but not discussions) and the student, parent, and teacher would sign a document indicating that they understood and would abide by the agreement, similar to this downloadable "Acceptable Use Policy" form for classroom recording.
Schools across the country are exploring other solutions that balance the educational benefits of technology like the Livescribe smartpen with the rights and confidentiality afforded to those being recorded, for example:
- Only use pen in certain classes, or during certain times in class.
- Pen is owned and retained by school; recordings are uploaded to computer controlled by school; teacher has 24 hours to approve recording before providing student access to it.
- Teacher (not student) uses pen under a document camera to teach, then shares the “Pencast” (file including both the notes and audio) with all students.
- For some activities, all students get to use a pen, or a limited number of pens are distributed to students on a rotating basis.
As with many emerging technologies, new capabilities raise new concerns and questions, so solutions are evolving and always a moving target. Remember the furor over electronic calculators in school and how they would single-handedly destroy math instruction? We seem to have survived that and even integrated the use of calculators into instruction. I am sure we will do the same here.
Have you experienced smartpens in the classroom or been denied their use? If so, please leave a comment below.
