On Christmas Day, the Concord School District posted a video of students singing carols on its Facebook page. In other other videos, students celebrated the last day of school, explained the state’s new school cell phone ban, and collected diplomas at graduation.
Four months into the school year, the state Department of Education warned districts that those types of videos are now illegal under state law, unless the school has written permission from parents to audio or video record each student. The same applies to band concerts and, it appears, sporting events.
Concord’s superintendent told families Wednesday the district halted recordings while it creates a policy to comply with the law. Several other schools have done the same, including the Newport School District.
Newport superintendent Forrest Ransdell said he no longer assumes the general video permission form his districts' parents sign at the beginning of the year is sufficient. Ransdell paused all recordings until the district has written permission forms from parents for each activity their student participates in.
“We may be doing something that’s not completely required,” Ransdell said, “but I would rather be ahead of this than be the test case.” Parents can sue districts that violate the law, and if they win, the district will pay their attorney fees and legal expenses.
Other school leaders voiced similar uncertainty.
“There are just lots of questions before I think everyone feels comfortable with the implementation of that statute,” said Bill Olsen, superintendent of the Merrimack School District. He also paused recordings while the school consults with its lawyer on a new policy.
The Hopkinton School District taped a notice on a door of the high school gym that said basketball games are considered a public event: “By entering during an event, you acknowledge and agree that you may be photographed and/or audio or video recorded.”
The state’s parental rights law took effect in July, but the state Department of Education did not advise schools of the law’s broad implications until December 15, four months into the school year and just as schools were closing for winter break. The department did not respond when asked why it waited six months to send districts its five-page advisory on how to comply with the law.
The advisory said schools need written permission to audio or video record not just plays and concerts but also rehearsals. This applies even if recordings won’t be shared or posted, and viewed only by staff. Teachers cannot record classroom activities for assessment without written permission.
The law has also impacted the testing and assessment schools must do to receive money for their students receiving English instruction. The state Board of Education has given schools a workaround that will preserve their funding while they are obtaining parents' written permission.
Athletics pose a challenge
The advisory does not address school athletics or school board meetings where students are present. The state Department of Education did not respond when asked why or if it believes the law applies to those activities. Deputy Commissioner Richard Sala said school leaders should consult with their district’s lawyer.
Several school leaders told NHPR they are assuming the law applies to their athletic games, which draw large audiences when they are streamed by schools and local news networks. Athletes often need the footage for college and scholarship applications.
Superintendents said athletics pose a particular challenge because they involve so many students.
Do schools need to obtain written permission for every student in the stands? What about students on the opposing team? Can schools use a single permission form for all recordings or do they need one each time a student may be recorded? What are the options if only some players on the team return the permission form?
Ransdell said he’s unsure if districts can blur the faces of student spectators and players who’ve not returned signed forms. But he thinks it would be virtually impossible.
“We don't have the bandwidth to sit there to modify what amounts to hours of videotape,” he said.
Greg Uhrin has been streaming games in the Kearsarge Regional School District on his site, YCN, for years. He is frustrated with the new law, and worries communities will lose their connection with schools if they can't tune in to a game or concert.
Uhrin often uses half time to highlight other activities at the school.
“I can see where the population is viewing these games from,” Uhrin said, “and there are a lot of Floridas and Arizonas, and …that becomes grandmas and grandpas and aunts and uncles.”
A legislative fix
The Merrimack Valley School District cited the Department of Education's advisory when it announced on its website that it would be suspending recordings. The post included contact information for the school district’s lawmakers, most of whom voted for the bill.
Rep. Michael Moffett, a Loudon Republican, was one. In an interview, Moffett said he now thinks the bill had some unintended consequences. He noted the impact on athletics.
“Being a sports guy, the last thing I’d want would be to prevent video taping of games, not just for scholarships but for family purposes,” Moffett said. “I’m very concerned that it can be fixed soon before any more games are lost or any memories are lost.”
It’s unclear whether lawmakers can amend or clarify the law this year, because the deadline for new legislation has passed. Rep. Rosemarie Rung, a Merrimack Democrat, said if nothing can be done this year, lawmakers will have to take it up next year.
“The state failed our local school district first of all in even passing that bill without more consideration of those unintended consequences,” Rung said. “And to have that technical advisory come out so late, even after the beginning of the school year.”
Olsen, Merrimack’s superintendent, said he spoke with Education Commissioner Caitlin Davis about his concerns. She said she was understanding and that there may be “room” for clarification from her office. The department did not respond when asked by NHPR if it plans to issue additional guidance to address school leaders’ questions.
In the meantime, the New Hampshire School Boards Association is drafting sample policies in response to the technical advisory, which is shared with members the day after the state issued it.
Rep. Daniel Popovici-Muller, a Windham Republican who voted for the bill, said he sees no need for clarification or a law change.
Popovici-Muller does not believe law requires prior written permission to record athletics or school board meetings when students are present.
Popovici-Muller pointed to a section of the bill that says parents rights must be honored while “children are in the custody and control of a school.” He said he doesn’t consider a child in the custody or control of a school during a game or school board meeting.
Popovici-Muller also criticized schools that are just now implementing the law, four months into the school year and six months after the law took effect. He said school leaders did not need to wait for the Department of Education's technical advisory, though several school leaders said they often do.
“It’s a good bill and it’s a good policy,” Popovici-Muller said.