Use of Audio Listening Devices in School
Matthew W. Bell , Douglas E. Witte , Brian P. Goodman , Heather Curnutt | 04.30.26
Recently, a number of school districts have requested guidance regarding audio listening devices that are surreptitiously placed in a student’s backpack or on a student’s person. Often these devices have multiple functions, including GPS tracking capabilities. While numerous devices exist, a commonly utilized device is a product from Angel Sense. The company describes the device as “an assistive technology that includes a proactive monitoring & alerting system, an app for caregivers, and a wearable device with an auto-pickup speakerphone and SOS button.” Typically, the GPS tracking capabilities of the device do not implicate the confidentiality of others within the school building and might be useful in safeguarding students who have a history of elopement. However, the audio listening function of the device, if active, might result in breaches of confidentiality and violations of criminal law.
When considering devices that might be used to listen in on school events, it is important to note that Wisconsin is a “one party consent” state. That means that anyone can record a conversation with another person without the other person’s knowledge because the person making the recording can provide consent. Consequently, if a student is using a device that can listen in on a classroom and a device records a conversation between the student and a teacher, it is likely a legal recording because one of the parties to the conversation, the student, generally has provided consent to record the conversation. In some situations, the student might not be capable of consenting to the recording, increasing the legal risk for the student and their family.
If a device is used to make a recording of a conversation between a teacher and another student or between two other students, that will likely be deemed an illegal recording in violation of Wis. Stat. § 968.31 which prohibits wiretapping. Wis. Stat. § 968.31 notes that it is a class H felony for anyone to “intentionally use[], attempt[] to use or procure[] any other person to use or attempt to use any electronic, mechanical or other device to intercept any oral communication.” If a conversation is intercepted or recorded, that act might also violate the Family Educational Rights and Privacy Act (FERPA) and Wis. Stat. § 118.125 (state pupil records law). Consider a situation in which two staff members are discussing the services a student (not the student with the device) receives pursuant to their individualized education program (IEP). A parent listening in on that conversation would acquire information gleaned from a pupil record which would be a violation of the confidentiality of pupil records.
Case Law on Audio Devices
There is limited case law regarding the use of audio devices such as Angel Sense. However, one due process hearing and another federal appellate court decision are relevant. In Pollack v. Regional School Unit 75, 886 F.3d 75 (1st Cir. 2018), a student’s parent requested that the student be allowed to wear an electronic recording device at school. The student was autistic and non-verbal. However, the student had been attending school in the district for 12 years and had made continuous educational progress. The court concluded that the recording device was not required under the Individuals with Disabilities Education Act (IDEA). The court determined that the need for a recording device was not a safety issue, the student was receiving a Free Appropriate Public Education (FAPE), and that it was unnecessary for the student to wear a recording device to benefit educationally.
In a due process hearing, Clark County School District, 119 LRP 17581 (Nev. Dep’t of Educ. Apr. 22, 2019), a student who frequently eloped requested to use an audio listening device. The hearing officer held:
With regard to the elopement issue, the Angel Sense device is unnecessary. The undisputed evidence is that although Student tries to and sometimes does elope, he has never made it off school premises and is usually found in one of three quiet places inside the school. Furthermore, the Angel Sense device is also not necessary for the safety of the eloping Student because a safety plan is in place and to date the safety plan has worked. Finally, this product does not fall within the definition of a ”supplementary aid or service,“ or an ”assistive technology device.“ The use of Angel Sense will not further enable Student to be educated with non-disabled children to the maximum extent, it will not increase, maintain, or improve Student's functional capabilities, and its use will not provide Student with an educational benefit.
The student also argued that because he was previously abused by a teacher, he should be permitted to use the Angel Sense device. The hearing officer held:
The gravity of the abuse of Student by his former teacher cannot be ignored or trivialized. The teacher's conduct was deplorable and Student suffered at her hands. However, there is no evidence to prove how the use of Angel Sense could have in the past or will in the future protect Student from abuse. Even if someone is listening in at all times, it cannot be concluded that physical violence will be prevented. And, there is no practical way to obtain consent from or give notice to every person who may be overheard talking to another within range of the Angel Sense device.
The decisions cited above, which are not binding on Wisconsin courts or hearing officers, are very fact specific and involve states where the consent requirements for recording conversations might be different. However, they demonstrate that at least one court and one hearing officer limited the use of audio monitoring devices even when there are alleged, or proven, instances of inappropriate conduct on the part of staff.
Conclusion
When responding to requests for an Angel Sense or similar device, districts should first review board policies regarding electronic devices. If no such policy exists, school boards should consider adopting one. Districts should also consider having a conversation with a parent regarding the rationale or perceived need for the device. If the device is for the purpose of addressing a student’s elopement, most devices do have the option of disabling the audio listening function. Maintaining the GPS function of the device and disabling the audio functions might be a compromise that the district could reach with a parent — although the district might want to establish a way to verify that the audio listening function has been disabled. If the parent insists that the audio listening function remain active, the district should again attempt to understand the need for the device and discuss alternatives to meet that need. For example, many parents of students who are non-verbal are unable to get a report from their child about the events of the day. The ability to listen in on the student’s day might provide that information to the parents. The district could collaborate with the parents to develop other methods of reporting on the student’s daily activities, such as a communication log. If a parent insists that the audio listening function remain active, the district will need to determine whether it will prohibit the use of the device or how it might protect other students’ privacy.
If you have questions about the use of audio listening devices in school, please feel free to contact a member of Boardman Clark’s School Law Practice Group.
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