Monday, April 05, 2021

Florida legislation on recording classes invites ‘gotcha’ politics into the classroom

Legislation that is close to becoming law in Florida would strongly undermine campus free speech and academic freedom by misguidedly allowing students to record classrooms.

The question of whether it is appropriate for students to have the right to record in the classroom is a thorny one, given the tension between the laudable goal of transparency and the need to avoid creating conditions that threaten academic freedom and chill speech. FIRE routinely grapples with this question, and we have found no obvious or simple answer as to how to strike the proper balance.

The current social climate, in which video or audio recordings of unpopular or controversial student or faculty expression (often taken out of context) are routinely used to “cancel” people of all political persuasions via social media mobbing, makes it more obvious than ever that getting the right answer to this question is of critical importance. Perhaps you have noticed any of the many, many, many examples across the country where students have tried to shame or sought discipline against their classmates or faculty for expressing protected, but controversial, views?

Accordingly, we urge the Florida legislature to refrain from imposing a statewide policy in this area, at least until it can truly engage all of the relevant stakeholders like faculty, campus administrators, students, and even journalists and civil libertarians whose interests may be implicated. Such a process would take time, and cannot be completed during the 2021 session, but doing so is necessary if the law is to avoid causing serious harm to classroom expression.

As it stands, the Florida House of Representatives has passed HB 233, while SB 264 is awaiting its final vote on the Senate floor. If enacted, these bills (which include some provisions FIRE supports, like strong due process protections) would amend Florida’s statute on campus free expression by adding the following:

Notwithstanding s. 934.03 and subject to the protections provided in the Family Educational Rights and 32 Privacy Act of 1974, 20 U.S.C. s. 1232g and ss. 1002.22 and 33 1002.225 [FERPA], a student may record video or audio of class lectures for their own personal educational use, in connection with a complaint to the public institution of higher education where the recording was made, or as evidence in, or in preparation for, a criminal or civil proceeding. A recorded lecture may not be published without the consent of the lecturer.

The bills continue to state that any person whose rights under the act were violated could bring a lawsuit:

[a]gainst a person who has published video or audio recorded in a classroom in violation of paragraph (3)(g) in a court of competent jurisdiction to obtain declaratory and injunctive relief and may be entitled to damages plus court costs and reasonable attorney fees, with the total recovery not to exceed $200,000.

Although there are obviously some legitimate uses of classroom recordings, the consequences of giving a statutory green light to recordings and litigation around their use is fraught with the potential to wreak havoc with classroom instruction, chilling faculty and student speech.

In a good faith, but inadequate attempt to protect against this problem, the bills would limit the authority to record in four ways. First, the bills require that recordings are only permitted to the extent they would be permissible under FERPA, the federal privacy law that prohibits the disclosure of students’ academic records. But FERPA provides little help here, since private recordings (as opposed to recordings by the institution) aren’t student educational records and are not, therefore, covered by FERPA. This caveat provides no discernable limitation on the use of these recordings.

The second limitation is that it authorizes students to record lectures for “their own personal educational use.” It’s easy to see how students might benefit in their studies from having lectures recorded for their personal use. But the mere existence of recordings in the classroom, given the “cancel culture” currently commonplace on college campuses, has tremendous potential to chill anyone who might dare to express a controversial idea in class. There is already ample evidence that students are self-censoring at alarming rates to avoid this dynamic. And how can you blame them, when the slightest transgression can be published for all posterity on the internet, affecting lives for years to come?

The third limitation on recordings in the classroom is that they are authorized “in connection with a complaint to the public institution of higher education where the recording was made, or as evidence in, or in preparation for, a criminal or civil proceeding.” Problematically, the bill does not define the scope of complaints to the institution that would qualify. It does not even require that the complaints be in good faith. This language invites the kind of “gotcha” politics at the heart of cancel culture. Will conservative students have to watch their words to avoid being reported to campus administrators? Will progressive faculty have to do the same to avoid being subject to complaints?

To be clear, recordings may be of help when part of good-faith whistleblowing, but the language in this bill doesn’t provide such a narrow exception, and it’s unclear that legislation is necessary to authorize recording in that context.

Finally, the bill prohibits the publication of classroom recordings without the consent of the recorded faculty member and creates a cause of action whereby anyone whose rights under the paragraph were violated by the publishing of an unauthorized classroom recording could sue the party that published the recording for up to $200,000. While this provision is seemingly included to soften the concern that recordings will be used to publicly shame faculty or fellow students, this provision is also insufficient.

First, it does nothing to protect a faculty member from recordings being used as the basis for politically motivated complaints filed at the institution seeking their termination, since this likely would not count as publication. Moreover, the cause of action set forth in the bill is against the person who published the recording — not necessarily the person who created the recording. This is a serious problem because the First Amendment protects journalists’ right to publish leaked information on matters of public concern, even when the information was unlawfully intercepted, provided the journalist did not violate the law to obtain the information.

Even aside from that constitutional problem, it seems unwise to create a system where faculty members’ legal remedy is to sue their own students.

The legislation has some additional provisions worth discussing. Another problem with the bill is that it includes overly broad language stating that “[a] Florida College System institution or a state university may not shield students, faculty, or staff from expressive activities.” The term “shield” in the bill means to “limit students’, faculty members’, or staff members’ access to, or observation of, ideas and opinions they may find uncomfortable, unwelcome, disagreeable, or offensive.” The aim of this provision is to promote free speech on campus. The problem is that it makes no exception allowing faculty to maintain order in the classroom or decide the scope of classroom discussions.

On the positive side, it would add “faculty research, lectures, writings, and commentary, whether published or unpublished” to the list of protected expressions. It would also direct the State Board of Education and Board of Governors to require each public Florida college and university to conduct an annual assessment related to intellectual freedom and viewpoint diversity. We wrote about that aspect of the bill here.

FIRE appreciates the bills’ sponsors’ good-faith intention to promote free expression. But although it may be possible to craft legislation that strikes the right balance between transparency and academic freedom, the language pending in Florida doesn’t cut it. Getting that balance right is absolutely crucial to the health of higher education in the state. The Florida legislature should avoid rushing to enact the provision on classroom recording and the cause of action to enforce that provision. Instead, lawmakers should engage in robust discussions with stakeholders to explore the possibility of creating a policy that addresses these tensions more precisely.


Loudoun County Public School Board Targets Parents as “the Opposition”

Loudoun County, Virginia School Board Member Beth Barts joins FreedomWorks Wall of Shame.

The overtly despicable actions of a Loudoun County, VA elected official have united public school parents with demands for the removal of 6 of 9 school board members In Loudoun County.

By way of a Facebook group, Beth Barts has encouraged teachers to post the personal information of students’ parents who oppose the inclusion of Critical Race Theory in Loudoun County Public Schools curriculum. Barts has actively encouraged teachers to post the names, workplaces and home addresses of these parents. Barts has even gone as far to ask teachers to name the children involved, their schools, and to post photos of their parents to the group. This is clearly a direct call to action to target, harass, and intimidate parents simply for their opposition to the far-left, cynical curriculum Barts views as doctrine.

Schools board member Beth Barts must resign immediately as a result of her inexcusable actions. Nowhere in America, no matter the side of a position one holds, should it be acceptable for an elected school board member to use her office to encourage teachers and community members to target parents who oppose their political views.

Especially when it comes to protecting our kids from the biased, hate-driven propaganda of Critical Race Theory being taught in public schools.

At the March 23rd LCPS board meeting, dozens of parents rightfully spoke out against the witch hunt orchestrated against them by the district employees and board members. Not only has the personal privacy of these parents been violated, their first amendment rights and their children’s protection of privacy through federal FERPA laws have been violated, too.

Every board member and school district employee participating in the page that names students and parents' private information needs to either resign or be removed immediately for violating FERPA laws. FERPA generally prohibits the improper disclosure of personally identifiable information derived from education records. The Loudoun County School Board and employees have not only broken trust of the community but according to FERPA are also breaking federal law by participating on a Facebook group that discusses identifiable student’s information. Everyone who has worked in education knows that these rules must be respected and protected at all costs.

If your child is a victim of social media harassment by a school district employee or representative, it’s your right as a parent to call for these individuals to resign. If that doesn’t gain the necessary results, then you should take action to the next level by demanding the removal of said board members like the brave parents are doing in LCPS district. Additionally, parents can file a timely complaint to the Office to Protect Student Privacy within 180 days of the date that the complainant knew or reasonably should have known of the alleged violation of FERPA. An eligible student may obtain a complaint form by calling (202)-260-3887. You can also contact Beth Barts’ office here to share your concerns.


Muslim bullying wins the day in British education

The father of the Batley Grammar schoolteacher who was suspended for the supposedly blasphemous offence of showing his pupils an image of Muhammad has spoken to the Daily Mail. It makes for distressing reading. His son is an ‘emotional wreck’, he says. He ‘keeps breaking down and crying and says it’s all over for him’. Worse, he fears for his life. He fears for his family’s lives.

‘He is worried that he and his family are all going to be killed’, his dad says. ‘He knows that he’s not going to be able to return to work or live in Batley. It’s just going to be too dangerous for him and his family. Look what happened to the teacher in France who was killed for doing the same thing. Eventually they will get my son and he knows this. His whole world has been turned upside down. He’s devastated and crushed.’

All that over an image. Over a cartoon. A man suspended from his job and hounded out of his hometown over a picture of Muhammad. A young family (the teacher is in his late twenties) living in fear of violent retribution over a caricature. In Britain in 2021, in this supposedly modern, post-religious nation, a public servant fears for his life because he showed his teenage pupils an image of a seventh-century prophet. What the hell is going on?

This is the price of liberal cowardice. What is happening in Batley is the logical conclusion of the liberal elite’s abandonment of the ideal of freedom of speech. The most shocking element of the Batley controversy is not actually the gruff protesters turning up to the schoolgates every day to demand the sacking of a teacher who offended their fragile sensibilities. It’s the broader establishment’s failure to defend the teacher, to stand by him, to insist on the right of educators to think freely and to engage their charges in open, critical discussion.

It is this craven turning away, this spineless reluctance to defend a teacher whose only offence was to exercise freedom of thought in his classroom, that will have fuelled this young man’s descent into such devastation and fear. For it is one thing for handfuls of religious extremists to shout abuse at you. But for society itself to abandon you? For the educational establishment to stare at its feet as you fear for your life? For the liberal intelligentsia – which is increasingly neither – to prevaricate and wonder out loud if maybe you are at fault for displaying an inflammatory image?

That’s the true kick in the gut. That’s what really illustrates the corrosion of liberty in 21st-century Britain. That’s what captures how broad and deep the crisis of freedom is right now.

Everyone, of course, is disturbed by the images of young Muslim men outside Batley Grammar arrogantly demanding the punishment of a teacher for allegedly offending their religious beliefs. These are indeed shocking and ridiculous scenes. The men represent an extraordinary combination of wimpish vanity and authoritarianism. Despite living in a largely secular society that doesn’t have blasphemy laws, they weirdly believe they have the right to wag their fingers for days on end at a school where an image of Muhammad was briefly displayed. It is equal parts perverse and laughable.

But at the same time, aren’t they only doing what we would expect them to? These are religious reactionaries, people who genuinely feel wounded when a kaffir disses Muhammad (though of course the schoolteacher, so far as we know, did no such thing). They are conforming to type. It is those who are failing to do what they’re meant to do who should disturb us more. For their failures are the fuel of this mob.

Schools are meant to stand up for their teachers when wild accusations are made against them. But Batley Grammar has flat-out refused to do this. Instead it suspended the teacher and issued an abject apology for his display of the image of Muhammad – a depraved act of public contrition for a made-up crime of blasphemy. Teachers’ unions are meant to defend their members when they are unjustifiably suspended and targeted by reactionary mobs, but the teaching unions are maintaining a morally invertebrate silence on the Batley controversy.

Liberal commentators and self-styled progressives are meant to defend individuals who are howled down as blasphemers and threatened with punishment for speaking ill of gods, prophets or gospels. But this time they aren’t. Instead they’re stroking their chins in their comfortable offices, wondering if the protesters have a point, wondering if it’s appropriate to show kids ‘racist’ images related to Islam. The Huffington Post actually refers to the image displayed in the Batley classroom as a ‘racist caricature’. A supposedly liberal media outlet standing shoulder to shoulder with religious reactionaries to promote the idea that it is racist to depict or criticise Muhammad. All while a man fears for his life at the hands of radical Islamists. What ridiculous apologists for extremist religious censure.

These failures of liberal society horrify me far more than the noisy idiocy of the protesters outside the school. Sure, their enthusiasm to get a man sacked for offending against Muhammad is chilling. But it is the deadness of the elites, their inability to muster up any enthusiasm at all for the right to speak freely, for the right of schoolteachers to engage their students in critical discussion, that is properly alarming.

Yes, the protesters reveal that there are worryingly reactionary elements in our society. But the shoe-staring cowardice of almost every wing of the educational, political and commentating elites in response to a young man living in fear because he displayed an image of Muhammad reveals a far more serious decay in the values and institutions of our society.

Of course the two things are linked. It is the cowardice of the establishment that acts as a red rag to the mob. It is the liberal elite’s abandonment of freedom of speech and its embrace of the divisive ideologies of identitarianism and cancel culture that fuels today’s incessant, sectional cries for censorship of those who give offence. It is supposed progressives’ startlingly uncritical promotion of bullshit terms like ‘Islamophobia’ that has helped to nurture the nonsense idea that it is racist to criticise Islam and which has fuelled the grievance industry whereby unrepresentative, self-elected Muslim groups are forever demanding the censure of anybody who is less than effusive about their religion.

Indeed, too many on the right seem to view the events at Batley Grammar as entirely alien, as a case of a foreign culture – Islam – interfering with the great British tradition of liberty. But listen to the protesters’ language. They talk about the schoolteacher ‘stirring up hatred’. They say kids must be ‘safeguarded’ from offence. They talk about their ‘wellbeing’. This is the language of the liberal establishment. These religious conservatives are weaponising the British elites’ own abandonment of liberty, and the institutionalisation of ‘hate’-policing and cancel culture, to advance their warped religious conviction that critics of their prophet must be punished.

The Batley crisis shines a light on the depressing unholy marriage between radical voices in the Muslim community who want to punish ‘blasphemers’ and a liberal elite that has traded in the ideals of freedom for new forms of thought-control, speech-control and clampdowns on so-called ‘phobias’. And as a result, a man is fearing for his life. His fear, his sense of devastation, is the price of your cowardice. The establishment’s moral failures over Batley Grammar are a black mark against this country. They should not be forgotten.


There is no ‘rape culture’ in British private schools

Schools may have barely reopened but already many are embroiled in scandal. Stories exposing and condemning the ‘rape culture’ apparently rampant in Britain’s private schools have been gathering pace. This is the education sector’s #MeToo moment, a long overdue reckoning, we are told – a chance to confront the sexism, misogyny and abuse that supposedly stalk the nation’s more expensive classrooms.

The ‘moment’ began with Everyone’s Invited, a website and Instagram account launched last year that gathers ‘survivor testimonies’. Its pages were initially filled by private-school girls, detailing everything from alleged rapes and sexual assaults to sexist insults and jokes. This month, fuelled by crusading press coverage – particularly in the wake of the killing of Sarah Everard – interest in the site has exploded. Now, close to 8,000 incidents are recorded on the website, while the Instagram page has over 37,000 followers.

Off the back of this, former pupils at Westminster School have compiled a ‘dossier of rape culture’. Dulwich College has reported its own pupils to the police. Latymer School pupils have published a list of demands. The Home Office and the Department for Education are working with the police, Ofsted and the Independent Schools Inspectorate to coordinate a cross-government response and a Whitehall inquiry. Schools subject to allegations will be in line for immediate surprise inspections. The Metropolitan Police has launched an investigation and a police helpline will be set up for people to report incidents. There are demands for the education secretary to address parliament.

This is a huge response to an issue that was barely discussed even a month ago. It is driven by an assumption that the recorded testimonies are just ‘the tip of the iceberg’ and that schools have covered up sexual offences to protect their reputations. Police chiefs report that rape culture is not restricted to private schools but is endemic in the state sector and in universities, too. They have urged parents to hand their sons over to the police if they suspect guilt.

School abuse claims could be the ‘next national scandal’, we are told. But the speed with which we are treating allegations as fact, and the blind acceptance that reported incidents barely scratch the real extent of the problem, suggest we are not in the middle of a scandal but a moral panic. It should be beholden on everyone to pause and think before rushing to respond.

We need to keep in mind that, despite headlines that conflate the two (such as The Times claiming that rape is ‘normal’ at private schools), ‘rape’ and ‘rape culture’ are not the same thing. While rape is a very serious criminal offence, punishable by lengthy prison sentences, ‘rape culture’ is used as a catch-all label to describe an environment that objectifies women – the normalisation of pornography, sexist insults, degrading jokes, for example. Not nice – but not rape, either.

It’s also worth remembering that most teenagers are now in school until past their 18th birthday, taking them beyond the legal age of consent. There are no suggestions that sexual harassment of girls is being perpetrated by teachers or older adults in these accounts. What’s being alleged has come to be termed ‘peer-on-peer abuse’ – in other words, between youngsters of roughly the same age.

That teenagers are interested in sex is hardly revelatory. With hormones raging, it’s a time when most people discover their sexuality, practice flirting and experiment with hooking up. This is often encouraged – or at least recognised – by progressive sex educators who far too rarely tell young teenagers simply to say no to having sex. Today’s teenagers live in a strange world where they watch sex and talk about sex but must only actually do it if they follow more rules and procedures than a game of chess.

As anyone who has ever been a teenager knows, first sexual encounters are rarely champagne, roses and luxury hotel rooms. The reality of teenage sex is often uncomfortable and messy – both emotionally and physically. But this does not mean that all teenage sexual encounters are abusive. There needs to be space for experimentation, which means making mistakes and even experiencing regret.

Too much of the current discussion presents girls as being naively preyed upon by predatory boys. But girls are not so innocent. Many enjoy dressing provocatively and attracting the attention of boys. Teenage girls are just as capable as boys of getting drunk and behaving recklessly. Of course, being drunk and scantily clad is not an invitation to sex. But absolving girls of all responsibility for their own behaviour does them few favours in the long run.

Some boys clearly behave badly – perhaps even criminally. But even teenagers deserve to be presumed innocent until found guilty. If we are to believe the victim, we must extend the same good faith to the accused, too. Justice by social media sets a dangerous precedent for all concerned.

Being a victim of sexual assault is devastating. But being publicly accused of something you have not done – or did unwittingly – can also be life-changing. It can be hard for a young man faced with public shame and humiliation, the end of friendships and social ties, the withdrawal of a university place or a job offer, to see how he can ever get his life back on track. This might be fair enough if due process has been followed, but not if you find your name being circulated with no opportunity to put your side of the story.

It’s also worth considering why all the focus is currently on schools. Most of the incidents being discussed on the Everyone’s Invited site did not occur at school but in bedrooms, gardens, bus stops and parks. The relentless focus on top private schools suggests there is something more political going on – an opportunity to bash institutions that have long been loathed as bastions of privilege and elitism. Posh white boys are considered fair game by just about everyone.

Posh, north London private-school girls are in a similar position. They are likely to score the best exam results, win places at the top universities, volunteer on gap years and find that the doors are open to them for the best careers. In a society that trades in victimhood, they find – much to their distress – that they do not have much currency. Being a victim of rape culture may alleviate you of at least some privilege points.

It’s ironic that this moral panic over teenage sex should blow up at the end of a year when young people have barely been in school and have rarely had fewer opportunities for illicit encounters. For all their sakes, adults need to pause before rushing headlong into panic.




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