F’s for recording class, even for students with disabilities

July 10, 2024
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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. This past spring she taught two classes called Radical Disagreement and Global Catastrophic Risk: The Clash of Science, Politics and Ethics, both of which partly focused on Israel and Palestine.

At a conference last month hosted by Heterodox Academy, an organization that promotes viewpoint diversity in higher education, Lohmann gave an example of the kinds of controversial debates her classes include. “There are solutions to the Israel-Palestine conflict—one state, two state—but it turns out the people on the ground actually prefer the two ethnic cleansing solutions,” Lohmann said in her presentation, pointing to public opinion polls, arguments that Israel is an illegitimate state and the Israeli settler movement.

One side contends that the region should be free of Jews, and the other side says it should be free of Palestinians, Lohmann said, “and so these two solutions need to be articulated and argued in my class.”

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. (An Otter spokesperson, in an emailed statement, said, “We believe transparency is important to all meeting participants, and as such, users should always ask for consent and indicate when they are recording and transcribing conversations with others.”)

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.” At the Heterodox conference, she joined a panel about how faculty members can teach controversial subjects in courses. She titled her own presentation “Teaching the Conflict in the Age of the Discrimination Prevention Office” and told listeners, “We can weaponize our syllabi to fight back.”

As AI technology advances and the political focus on higher education continues, faculty members across the country have expressed worry about audio recordings and their possible misuses. But Mark Criley, a senior program officer with the American Association of University Professors, said, “The AAUP has long recognized that class recordings, if used improperly, can chill—if they’re publicized—can chill frank classroom discussion.” However, Criley also said that “it’s essential that students receive the accommodations to which they’re legally entitled.”

UCLA spokespeople didn’t provide interviews for this article. They provided a written statement from Spencer Scruggs, the CAE’s director, that doesn’t mention any protracted fight with Lohmann but does back her recording ban.

“The center worked on a specific plan that included appropriate notetaking support alternatives for students in the course,” Scruggs said in the statement, referring to only one course despite Lohmann teaching multiple ones with the recording ban. “The course is part of an IRB [Institutional Review Board] approved research project and it had been determined that recording would have caused a fundamental alteration for the course.” He said the university continues to “ensure that the course, or the details of the analysis of the course outcomes, doesn’t change in any way to shift the determination of a fundamental alteration.”

However, Lohmann said that, while her classes are part of her research for teaching ethics online, “the IRB has nothing to do” with why she’s allowed to ban audio recordings. The university didn’t respond to follow-up questions about this.

If a student were to challenge the prohibition outside the university’s walls, such as by complaining to the U.S. Education Department’s Office for Civil Rights or filing a lawsuit, federal disability law could come into play. That law says disability accommodations can be denied if they represent a “fundamental alteration” of a course, the same term of art Scruggs cited in his statement alongside his contested IRB claim.

The situation raises a question: Would classroom recordings of contentious debates meet that legal standard?

‘Fundamental Alteration’

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.”

Asked if he’s heard an argument like Lohmann’s, Jamie Axelrod, director of disability resources for Northern Arizona University and a past president of the Association on Higher Education and Disability (AHEAD), said, “I have heard of situations where the content of the course is so personally sensitive or personally identifiable or highly controversial that a faculty member might argue that allowing audio recording would be a fundamental alteration of an essential element of the course.”

But Axelrod said there’s clear court precedent that faculty members aren’t supposed to ban audio recordings just on their own accord. “It’s supposed to be a group of individuals [at the university] who are informed and knowledgeable about the course and the content of the course and how the course is presented” and who know how to provide access to students with disabilities, Axelrod said.

When the Education Department’s Office for Civil Rights has investigated situations in which faculty members have either refused audio recording or argued that everyone in the classroom must consent to allow it, the office has generally found their universities to be violating federal law, Axelrod said.

Lohmann said University of California policy is supposed to involve her in UCLA’s determination of whether audio recording would present a fundamental alteration to her course, but the CAE didn’t consult with her. “They just shut me out,” she said, but her audio-recording ban “has in effect forced the CAE to listen to me.”

Laura Rothstein, a professor emerita at the University of Louisville Brandeis School of Law, said disability accommodation cases typically get resolved internally within universities. “I don’t recall seeing any litigated judicial opinion that upheld a professor’s right to refuse to allow tape recording,” said Rothstein, who focuses on disability law and subspecializes on disability law in higher education.

But Rothstein said that doesn’t mean there haven’t been settlements on the issue, and she doesn’t follow all of the Office for Civil Rights opinions because they’re so numerous and don’t set legal precedent.

Axelrod said that, even if audio recording is banned through a finding that it would fundamentally alter the course, a university “is then still obligated to provide some sort of effective alternative access to the information.” Jenifer Montag, associate director of the National Center for College Students With Disabilities, which AHEAD established, said there are some students for whom a peer note taker would not provide the alternative access they require.

Lohmann said, “It’s not discriminating because there are alternatives.” She’s argued that she’s using her academic freedom as a faculty member to create academic freedom for her students. And Lohmann hasn’t just expressed worry about the wider public learning what her students say in class—she has said she’s concerned about antidiscrimination offices at her own university knowing.

“When [students] say this stuff, it’s legitimate and appropriate speech in the classroom, and it’s a university official, namely me, who signs off on that by virtue of grading them,” Lohmann said. “Even when they get a bad grade, it’s still appropriate speech.” Yet, she said, “that exact same thing that the student is saying in class could be reported to the Office of the Dean of Students as antisemitism, Islamophobia, anti-Arab racism that necessarily triggers an investigation that can last up to two years.”

Lohmann said her classes include fourth-year political science students headed for law school, and years-long discrimination investigations could hamper their ability to graduate, get into graduate school and get jobs.

Montag argued that—unlike the Americans With Disabilities Act and Section 504 of the Rehabilitation Act, laws that ban discrimination against people with disabilities in higher education—academic freedom “is not a federal law.”

“As we enter into this new world of technology and the speed at which information and disinformation is shared,” Montag said, “there’s going to be additional concerns that our institutions and our faculty and our students are going to be forced to address.” However, she said, “the burden should not be on the students with disabilities who need those accommodations to access those classes.”



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