Q&A For Faculty About Audio-Recording Lectures As An Accommodation

The following questions and answers assume that the ARC student has sent their accommodation letter to the professor and that the accommodation letter includes audio-recording of lectures.

Q-1. I don’t want the recordings to be posted anywhere or shared with other students. How does ARC address these concerns?

The Accessibility Resource Center shares faculty’s desire to protect academic integrity. We ask every student for whom we approve the accommodation of audio-recording of lectures to sign the Recorder Consent Agreement form. This agreement indicates that the recordings are to be used only for personal use in studying the material, are not to be shared, and must be erased when no longer needed.

If an ARC student violates the Recorder Consent Agreement and a professor becomes aware of such a violation, it is our expectation that the professor will promptly inform ARC and report the student’s behavior to the Dean of Students as a conduct violation. The Dean of Students office will treat the violation in the same way that it would treat any other conduct issue.

Use of this accommodation does not violate the legal rights of faculty or other students. In fact, the right to use this specific accommodation in the educational setting is protected by federal law. UNM is responsible for complying with the legal requirements of the Rehabilitation Act of 1973, and the accommodation of audio-recording classes is mentioned specifically in the Rehabilitation Act regulations. ARC students with this accommodation also have a responsibility to comply with ARC’s the Recorder Consent Agreement form regarding confidentiality.

Use of this accommodation does not violate FERPA. FERPA regulates a college’s disclosure of education records and personally identifiable information in an education record. What a student says in class is not a part of their official Educational Record. It is also unlikely that a student could be identified easily based on their voice, unless everyone is required to state their full name before they speak. In addition, student-created class recordings are not a record created by, maintained by, or disclosed by the school, so FERPA does not apply to them. The following are relevant excerpts from the FERPA statute and regulations.

Sensitive topics are discussed in a variety of classes taught by many departments on campus. Given the tenuous political climate in this country, we agree that professors have a challenging responsibility to ensure the protection of all students’ rights in the classroom, including those related to race, ethnicity, gender identity, disability, and so on.

The answers to Q-1 and Q-2 also apply here. In addition, New Mexico is a one-party consent state, meaning that conversations can be recorded as long as one of the parties involved consents to the recording (which includes the person doing the recording). Given the abundant technology that is available, students without disabilities can easily record their classes, and they often do. Also, students across campus are capturing sensitive information discussed in classes not only by audio-recording but also in their written notes. One student can easily write down another student’s comments verbatim.

If a professor is deeply concerned about certain kinds of sensitive information being documented by students in the class, and if the professor can assure the students that no information from certain parts of the discussion will need to be remembered or reproduced in any way in any exam or assignment, then the professor could say to the students, “Please put down your pen/pencil, close your notebooks, and turn off any recorders.” In this way, the professor is taking an action that has an equal impact on all the students and is most likely to prevent sensitive information from being captured by any student using any method.

According to the United States Department of Education Office for Civil Rights, which enforces the Americans with Disabilities Act and Section 504 of the Rehabilitation Act and investigates complaints of noncompliance with those laws by colleges and universities, colleges cannot require a student with a disability to obtain permission from faculty or classmates in order to use their approved accommodation of audio-recording. ARC can provide references to specific OCR cases upon request.

No, it would not be appropriate for a professor to make this kind of announcement to the class in response to receiving an accommodation letter. Doing so would demonstrate unequal treatment of students with disabilities in relation to their nondisabled peers, which is not permitted under federal law. Given that there is no reasonable expectation of privacy in a typical classroom, and given the abundant technology that is available, students both with and without disabilities can easily record their classes, and they often do. New Mexico is a one-party consent state, meaning that conversations can be recorded as long as one of the parties involved consents to the recording (which includes the person doing the recording).

Also, making such an announcement in response to an accommodation letter carries the risk of unintentionally outing or alienating a student with a disability due to the following:

  • When the students ask why recording is being done, the professor will have to somehow answer without revealing that there is a student with a disability in the class, as this is confidential information that cannot be disclosed to other students.
  • As soon as the students in the class are made aware that at least one of them is recording, human nature being what it is, many of them will begin scrutinizing their peers as they try to determine who is doing the recording. The unintended result could easily be to draw unnecessary and unwanted attention to the ARC student, which could result in a student with a disability being treated differently by the other students. It could also discourage our students from using a necessary accommodation that gives them equal access to the class, thus impacting their ability to fully demonstrate their knowledge and mastery of the material.

If a professor wants to address how students are capturing sensitive information in classes by audio recording and or taking written notes, one possible approach that would be both reasonable and equitable would be for the professor to make an announcement to the class at the beginning of the semester to remind students of the following: information shared in class can be personal in nature; there is no reasonable expectation of privacy in the classroom; anything they say in class may be written down or audio-recorded by students taking notes; therefore, they should be mindful of what sensitive disclosures they make in class. In this way, all students would be treated equally, and all methods of transmitting sensitive information can be addressed.

No, the student must be permitted to record the guest lecturer’s presentation to the class. While We understand that a professor would want to extend every possible courtesy and consideration to the guest lecturer, The accommodation of audio-recording lectures applies equally to all verbal presentations and dialogue occurring during the class, whether the person doing the speaking is a student, the professor, or a guest lecturer.