It is crystal clear that under the ADA that a student in the classroom as a reasonable accommodation would have the right to tape record or otherwise record the class. See 28 C.F.R. § 35.104(2),(3). However, you may want to look at your state’s eavesdropping statute to see if there aren’t some unintended consequences of that. For example, in Illinois there is a very strict recording eavesdropping statute, which would prohibit recording a class unless everybody in the class consents. Further, violation of the statute is a felony and the person allowing and/or doing the recording may be subject to a claim for actual and punitive damages (720 ILCS 5/14-1(b),5/14-2(a)(1), 5/14-4(a), 5/14-6(a-e). There is case law in Illinois to suggest that recording in the classroom would be allowed. However, that case law was before the Illinois eavesdropping statute was amended so as to clearly take away that possibility, at least as the statute is literally written. Therefore, it is possible that a person who records or allows the recording of a class as a reasonable accommodation could be prosecuted. While it is hard to believe that a prosecutor would undertake such a prosecution, it is more within the realm of possibility that a student might sue for actual and punitive damages because the recording was made without his or her consent.

So what is the school to do? If the school does nothing, it is faced with the possibility that a professor or a person doing the recording could be prosecuted for violating the Illinois eavesdropping statute. It is also possible that the professor or person doing the recording could be sued for actual and punitive damages. What the school can do for a few different things. First, administration could make it a part of the student contract with the school that says as a condition of taking any particular class, the student hereby consents that the class may be recorded for a variety of reasons, including as a reasonable accommodation to persons with disabilities. The other approach would be for each instructor to put in their syllabi that the student by taking the class consents to recording. The problem with the latter approach is that not all professors are amenable to the class being recorded. Whereas, if it comes down from administration, then the individual teacher probably doesn’t have a choice. Finally, it probably makes the most sense if the legislature would just amend the law so as to allow recording in a class room or to exempt such activity from the reach of the law. In short, Illinois eavesdropping statute is very unusual, but you may want to check your own eavesdropping statute to see if there is not a potential problem there.