Can Professors Ban Class Recordings, Even By Students With A Disability Accommodation Requiring It?

Inside Higher Ed, Can Professors Ban Class Recordings?:

Students in Susanne Lohmann’s small seminar classes at the University of California, Los Angeles, debate inflammatory topics, including transgender rights, the Israel-Palestine conflict and the fracas on college campuses over that conflict. ... Lohmann, a political science and public policy professor, said she wants to keep what students say in her classes from getting out into the wider world—“What happens in Vegas, stays in Vegas,” as she puts it. She said that for years she had complained to her university about students recording audio of her classes, even those who had a disability accommodation allowing it. She told Inside Higher Ed that her students need to be able to take even extremist positions on morally charged or politically controversial issues without fearing their speech “will come to haunt them” outside the classroom.

Audio-recording accommodations have grown more common, and by 2020 it was usual to have three students with audio-recording accommodations in a class of 20, Lohmann said. Subsequently she learned about the transcription software called Otter, which uses artificial intelligence to transcribe audio into written notes.

Lohmann said she became concerned about the possible privacy and commercial exploitation threats that Otter—which, for example, uses human speech to train its AI—posed for students who didn’t consent to being recorded. Others in higher education have also expressed concerns about AI recording. ...

As she was writing her syllabus for the winter 2022 quarter and preparing to write to the university’s Center for Accessible Education (CAE) to complain yet again, she said a solution occurred to her in an “epiphany.” She wrote into her syllabus that she would fail students who recorded other students, even if they had a disability accommodation.

“The associated grading scheme applies to CAE-registered students as well,” Lohmann wrote. Students were free to record her, she said, unless they used Otter.

The students had the legal right to have an audio-recording accommodation, she determined, but she had the academic freedom to fail them for using it. The CAE “pretty much went ballistic,” Lohmann said, but the university eventually gave in.

She said that when her ban first went into effect, she pointed it out to a UCLA disability specialist who had approved a student’s audio-recording accommodation. The specialist replaced the accommodation with a peer note taker, another student who took notes in the class for the student with the accommodation.

Now, she says, UCLA allows her to write into her syllabi that the director of the university’s Center for Accessible Education “has determined that audio recording is unreasonable and inappropriate for the course.” This is accompanied by a statement saying, “CAE students are asked to work with their disability specialist to determine notetaking supports that do not involve audio recording.” Lohmann said she’s yet to give out an F under her ban, as she’s yet to catch a student recording.

Her ban now extends beyond audio recording, threatening an F for students who “distribute student-authored class materials in part or in full to persons outside of class” without the authors’ permission. She said she tells students that she considers “student-authored class materials” to include what students say in class.

Lohmann told Inside Higher Ed she wants to send a nationwide message that faculty members can use their own academic freedom and “simply write words into a syllabus and thereby create student academic freedom.”  ...

Federal law specifically mentions audio recording of postsecondary students. It says universities “may not impose upon handicapped students other rules, such as the prohibition of tape recorders in classrooms or of dog guides in campus buildings, that have the effect of limiting the participation of handicapped students in the recipient’s education program or activity.” But the law says that if any accommodation, including recording, would fundamentally alter the course, it can be banned.

Arlene Kanter, a professor and the founding director of the Disability Law and Policy Program at the Syracuse University College of Law, said UCLA’s signing off on what she called a “blanket ban” on a disability accommodation is problematic. Kanter said, “These laws prohibit, always, blanket bans” because they require individualized determinations as to whether the accommodation a student is requesting is reasonable. “No [blanket] ban is ever permissible, and there are many, many court cases that have held so,” she said.

“I’m surprised that UCLA would go that route and uphold the ban because there’s literally no court authority that would be on their side,” Kanter said. “The recording allows a student with a disability to be on equal footing and participating in that class with students without disabilities. To deny that opportunity is discrimination, pure and simple.”

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