Senate Bill 632: Cameras in Special Education Classrooms and Changes to W. Va. Code 18A-2-8

May 1, 2019Legal Alerts

Though the legislative session again received a lot of attention from educators this year, there were also bills passed that did not receive as much attention. One of those was Senate Bill 632, which by its terms aims at “improving student safety.” The bill adds two new code sections and amends a third. This education alert provides a basic summary of what those sections require when they take effect July 1, 2019.

New Code Section 18-5-48

This new code section contains both a requirement of county boards of education and a corresponding benefit. The section will require each county board of education and multi-county vocational center to annually assess the safety and security of each of the school facilities within its boundaries and upgrade security measures when necessary to ensure the safety of the students. The section also requires the county board to annually report to the State Department of Education the safety and security measures it has put into place and any upgrades to those measures. The state department is then required to provide an annual report to the Legislative Oversight Commission on Education Accountability. The section defines “safety and security measures” to mean any action taken by a county board of education or multi-county vocational center that improves the security of a school facility and the safety of the students within the facility and includes as examples hiring a school resource officer, installing weapon detection systems, upgrading facility doors or windows, etc.

The benefit to county boards of education is the section also establishes a new Safe Schools Fund within the state treasury. The state department is mandated to accept requests for funds from county boards of education for such funds and request a corresponding appropriation. Funds appropriated to the Safe Schools Fund by the legislature will be divided among all of the schools in the state and must be used for safety and security measures.

New Code Section 18-20-11

This new code section, without question, creates the most significant change for county boards of education. Very broadly, the section requires the installation of video cameras in certain classrooms used for special education instruction. It also creates a procedure for maintaining and reviewing the videos created.

First, though, the section makes clear the requirements of the section apply “[u]pon appropriation of funds by the Legislature.” As a result, this is not a requirement that necessarily begins July 1, 2019 but instead will come into effect when funds are appropriated for this purpose.

Second, the section only requires video cameras to be installed in “self-contained classrooms.” The code now defines “self-contained classroom” to mean, “a classroom at a public school in which a majority of the students in regular attendance are provided special education instruction and as further defined in state board policy.” In other words, video cameras are not required in every classroom but only those classrooms primarily devoted to special education instruction in a self-contained setting.

The section requires the county board of education provide and operate a video camera for, and maintain video from, each self-contained classroom. The video camera must be capable of receiving audio, and it must be capable of capturing video and audio from all areas of the classroom, including an attached room, if such a room exists. The video must not capture video or audio from any restroom facilities or areas where students change clothes, unless capturing a small portion of such an area is incidental. The video must be operating whenever students are present in the classroom.

The code section requires the school provide notice about the camera before it is installed. That notice must be in writing and must be provided to every parent or legal guardian of a student who is assigned to the self-contained classroom, the county board, and every school employee who is assigned to work with one or more students in the self-contained classroom. The code section does not require those individuals to authorize their images or audio to be captured – just that they be provided notice the camera will be installed.

The section also establishes procedures by which various individuals may request to view a video. If a school employee reasonably suspects bullying, abuse, or neglect of a child or harm to an employee and that suspicion is reported to the school or the district, the employee may request to view the incident as documented by the video recording. Similarly, if a parent of a student in the classroom reasonably suspects bullying, abuse, or neglect of the child and that suspicion is reported to the school or the district, the parent may request to view the incident as documented by the video recording. Any employee tasked with conducting an investigation into a suspicion of bullying, abuse, or neglect of a child, or harm to an employee reported to the school or district, and which is documented by the video recording, may request to view the video. A law-enforcement officer conducting such an investigation into an alleged incident may also request to view the video. And finally, as part of any child abuse and neglect investigation, the Department of Health and Human Resources may request to view a video, but it must comply with FERPA.

In each instance, the school must respond within seven days to a request to view a video. The school is required to protect the confidentiality of any student not involved in the incident under review (including the possibility of blurring their faces, something to keep in mind when purchasing equipment). And the school must follow the requirements of FERPA with respect to the students’ confidentiality.

Outside of those requests, the statute is quite limiting in who may review videos. There is to be no continuous monitoring of the videos (i.e., by a PRO or other administrator), but incidental viewing by a contractor installing, maintaining, or operating the camera or by an employee tasked with retaining the videos is acceptable. Videos may not be used in employee evaluations, for discipline of students (if the discipline involves something more than an incident under review), or for reasons other than safety. It should be noted, though, the statute also states it does not limit a parent or guardian’s right to a recording of a student under FERPA. It is not clear whether the intent of that statement was that parents may request to review a video recording in broader situations than discussed above. 

Generally, each school must retain video from the camera for a period of three months and then destroy it. If, however, a request has been made to review a video, it must be retained until the later of: the date the video is actually viewed; 30 days after the requester has been notified he or she may review the video; or the conclusion of any investigation, or administrative or legal proceedings resulting from the recording, including the exhaustion of all appeals.

The statute makes clear it does not waive existing immunities from liability for the county board of education, school, or employees, and it does not create any causes of action against the county board of education, the school, or their employees. Any person aggrieved by a perceived violation of the new statute may appeal to the State Department of Education, which must set a hearing for review within 45 days.

As stated above, this section will not take effect immediately, but schools should begin familiarizing themselves with the requirements and new procedures.

Amended Code Section 18A-2-8

Most administrators will be familiar with Code Section 18A-2-8 as it relates to suspension and dismissal of school employees. The amendments add a few circumstances when county boards of education may suspend or dismiss employees. First, the section clarifies an employee charged with the commission of a felony or a misdemeanor with a rational nexus between the conduct and performance of the employee’s job, or child abuse may be reassigned to duties which do not involve direct interaction with pupils, pending final disposition of the charges.

Second, the code section now allows suspension and dismissal when an employee’s actions threaten the health, safety, or welfare of students or the learning environment of other students. The section also requires the county superintendent report any employee suspended or dismissed, including the rationale for the suspension or dismissal, to the state superintendent, and the state superintendent must maintain a database of all individuals suspended or dismissed for jeopardizing the health, safety, and welfare of students, or for impacting the learning environment of other students. The database must include the rationale for the suspension or dismissal, and though it is confidential, the database is accessible to county human resource directors, county superintendents, and the state superintendent.

If you have any questions regarding education law issues, please contact your Education Law Practice Group at Dinsmore & Shohl LLP.