In my special education law practice in Connecticut, parents ask me all the time about tape recording their child’s IEP Team meetings. Like most things, there are benefits and detriments to doing so, and I have heard parents’ attorneys and advocates come down on both sides of the question. Some record each and every IEP meeting they attend with a client, and have very compelling reasons for doing so, as outlined in this excellent analysis on Wrightslaw. Others feel it creates a far too adversarial tone and never record IEP Team Meetings. Still others, like myself, suggest recording the meeting under certain circumstances, but not others.
There are two key questions: can you record the IEP Meeting, and if so, should you?
In Connecticut, we have two court rulings in favor of a parent’s right to tape record IEP Team Meetings (one case where English was not the parent’s native language, and another where the parent required the tape as an accommodation for her own disability; both decisions are cited in this letter on the permissibility of recording IEP Team Meetings from the United States Department of Education’s OSEP), and so I never hear districts claim that it is not permitted here.
However, there are some places where the tape recording of IEP meetings is not generally allowed.
There is no federal guarantee to be able to record IEP Meetings, but as the OSEP letters clarify, even where a State has a policy limiting or prohibiting it, there must be exceptions provided if recording the meeting is necessary to ensure that the parent understands the IEP process or to “implement other parental rights.” If you are receiving any resistance to recording your child’s IEP Team Meetings, ask for a written copy of their policy; in my experience, most of the time it either doesn’t exist, or doesn’t say quite what you’re being told it says.
NEVER, EVER record an IEP Team meeting without telling the people in the meeting!
To begin with, in many States it is illegal to record someone without their knowledge, and you could be subject to civil or even criminal penalties for doing so. You could get yourself in real trouble, and the recording will then probably not be of any use to you anyway. And even if you don’t live in a State where recording someone in this fashion is illegal, I would guess that most hearing officers and judges would regard a parent who deceptively recorded the meeting with a great deal of suspicion. Finally, and as importantly, if your school district finds out you did it, you will have seriously damaged any hope of a trustful relationship going forward, probably permanently.
Once you figure out whether you are permitted to record the meeting in your school district, you need to decide if it’s a good idea to do so.
There are a number of things to consider when making this decision. In my practice, if the parents have usually recorded their meetings prior to my involvement, I suggest they continue to do so when I go with them. If they haven’t, then I make a judgment based on my experiences with the school district in question, their counsel, and the unique circumstances of the case. There are simply some districts or cases where an official record of the meeting is essential. Sometimes, however, people speak more freely when they are not being taped, and that can help you. It all depends on the case, and if you have your own attorney or advocate working with you, you should probably defer to his or her judgment on this, which will likely be based on an assessment of the situation in your own locale.
If you do decide to record the IEP meeting, how should you go about it?
In my office, if we are going to record, we give the district notice whenever possible so that they may also record the meeting if they choose. It is important to remember that, when the school district records the meeting, whether the parents are recording or not, the recording becomes part of the student’s educational records, and therefore the parent would have a right to inspect or review it. Try to have the most reliable and quality equipment you can afford, with one caveat: it always makes me uncomfortable when my client has a fancy, expensive little high-tech gadget and the school district drags out their large tape recorder that looks like a VCR…especially if the dispute is over very expensive services.
Many people feel defensive when they know they are being recorded.
Your relationship with your child’s school should determine the tone with which you begin recording. If you have a good relationship, I’ve found it will diffuse some of the tension if the parents make a comment like “these meetings go by so quickly with so much information, this really helps me to be able to break it all down later,” or if only one parent is in attendance they can note that the recording will keep the other parent informed. Of course, if you are in an active dispute with your district, it might not be so cordial, in which case simply make a statement like “I am going to begin recording now.” In any event, it is essential that the very beginning of the recording begin with an introduction of all of the people in the room so they can later be identified.
Can you use the recording later in a Due Process Hearing?
As with the introduction of any evidence, there are certain legal standards which need to be met in order to enter into “the record” a recording or a transcript of the recording, and this is no different. When we do record the meeting, I have it transcribed by the court reporting service who has a contract with the State of Connecticut for our special education Due Process Hearings, which I’ve found makes it hard for school districts to challenge the quality and reliability of the transcription.
If recording IEP Team Meetings is permitted where you live, you need to decide whether the need for an accurate account of what happened at the meeting is worth the potential for offending some of the team.
The fact is that some people will take this move as aggressive, whether it’s intended to be or not. Sometimes, that is exactly the message you want to send; but if it’s not you need to be careful about how you present it. If your decision is to record the meeting, be sure that you remember that this is a knife that cuts both ways, and you don’t want to say anything at the meeting that you would later regret if it were played back to you.