A New Cell Phone Dilemma

Technological changes have a way of creating new possibilities, but also new problems.

Cell phones have evolved to the point where they can be used to make excellent audio and visual reproductions of events. That can be beneficial, as for example when cell phone video can prove whether a person was violently resisting arrest or was subjected to brutality by the police.

Now consider an occurrence last February at the University of Wisconsin – Whitewater. In an introductory sociology class, “Individuals and Society,” the instructor invited in a guest lecturer, Eyon Biddle.

Biddle is the director of organizing in Milwaukee for the Service Employees International Union. His talk turned into a harangue about the evils caused by Republicans, whom Biddle excoriated as being racist, classist, homophobic and dishonest. A student, Kyle Brooks, used his cell phone to record it. Later he made it public and he talks about the event in this video.

Some people think the problem here was that a professor had wasted her students’ time with a guest speaker entirely unqualified to speak in an academic setting. Others, however, think the problem was that the student had made the recording.

Key among the latter group was the Whitewater administration.

Embarrassed by the furor, school officials told the faculty that classroom material should be “balanced.” That admonition sounds nice, but doesn’t deal with the real problem, which is not imbalance but inappropriateness. If the professor brought in another guest speaker who ranted about the evils of Democrats, that wouldn’t right the wrong done to the students, but double it.

More importantly, however, the administration is moving to ban the use of cell phones to record what goes on in UW-Whitewater classrooms. The faculty senate has approved the ban and chancellor Richard Telfer has indicated that he supports it, saying “Faculty on this campus have the right to establish the policies for their individual classrooms.” (At the time of this writing, the matter has not been finalized.)

Like most free speech and communication issues, the cell phone recording controversy has a lot of “gray area” and colleges are struggling to find the best way to respond.

Some schools have adopted rules about cell phone recordings and most are taking a restrictive stance.

At the University of Virginia, for instance, the policy prohibits “recording and transmission of classroom lectures and discussions by students, unless written permission from the class instructor has been obtained and all students in the class as well as guest speakers have been informed that audio/video recording may occur.”

Even with such consent, a recording may only be used “for the purposes of individual or group study with other students enrolled in the same class.” And lest there be any doubt, recordings “may not be reproduced or uploaded to publicly accessible web environments.”

The penalty for a violation is vague, however. If we had an occurrence at UVA like the one at UW-Whitewater and a student, incensed at the speaker’s ranting, surreptitiously recorded it, he’d be subject to unspecified disciplinary action. That might deter students, but in an egregious case (and I think the Whitewater incident qualifies), a student might engage in some civil disobedience and risk the consequences.

Rutgers wrestled with this issue back in 2012. The faculty senate observed, “For some students, the knowledge that they are being taped may have a chilling effect on their willingness to ask questions or participate in discussions.” That might be true. Given the way statements can spread on the Internet with potentially harmful consequences, it certainly is possible that some students would refrain from speaking up in class if they thought that their comments might come back to haunt them on social media.

Not only might students change their behavior if they know (or merely suspect) they are being recorded, but faculty members might also. Consider the problem that a professor might find himself in if he used the “devil’s advocate” approach in class to challenge students.

Writing on Inside Higher Ed, dean and former professor Matt Reed explains that he often tried to generate controversy and stimulate student thinking by making the case for ideas he didn’t believe. Reed says, “I shudder to think what could have happened if some student had recorded and distributed five well-chosen minutes of a presentation on communism or fascism. Out of context, it could have looked awful.”

The U.S. has become addicted to “gotcha!” moments intended to torment or destroy people. It’s easy to see why some, perhaps many professors would shy away from saying things in class that could later cause them trouble. Who would want to risk an avalanche of hate-email and possibly disciplinary proceedings by the college where the professor could only say, “But that was taken out of context. I don’t really believe what I said in that edited clip.”

There seem to be sound reasons for putting limits on or even prohibiting recordings in class. But there are also reasons that pull the other way.

In the UW-Whitewater case, without the ability to record, all the student could have done would have been to jot down some of what the speaker said. If he later complained about the inappropriateness of the talk, the professor or the speaker might easily say, “No, he’s wrong; that’s not what I said.” Without the clear evidence that a recording provides, it would be almost impossible for a student to lodge a complaint that would “stick” when a professor or guest speaker goes off the topic and into a harangue.

Without the “smoking gun” of a recording, it wouldn’t have been possible for schools to discipline professors when they have launched into political tirades, such as at Michigan State last fall. (Read about that case here.)

Thus, while recordings might deter some good things from occurring in class, it’s equally possible that they would deter some bad things. Like most free speech issues, this one is not black or white.

Arguably, the best approach for colleges to take is to leave the resolution of the cell phone matter up to the parties involved: professors and students.

Professor A might have a policy against any recording, while Professor B allows it. Students who fear to speak up if they think they’re being recorded can enroll in A’s course; students who aren’t worried about that but believe that a recording might sometimes be very valuable, can enroll in B’s course.

Professor B might even make his own recording to help guard against out of context clips being used against him or against students.

And Professor C might let the students decide the matter on the first day of class.

My view is that college officials should resist the temptation to impose a one-size-fits-all solution here and instead allow the controversy over cell phone recordings to be determined more at the “consumer” level by faculty and students.