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Protecting student privacy in an online classroom
October 12, 2020
For many school districts in New York, the return to the classroom this September has not just marked the start of a new school year, but a whole new way of going to school. The near-ubiquitous use of cameras to deliver two-way, online instruction has pushed to the forefront a host of legal considerations that were previously almost non-existent, including the issue of student privacy. With cameras recording students’ performance and progress, what, if anything, is protected?
Let’s review the basics of the relevant law. As was true prior to the pandemic, the Family Educational Rights and Privacy Act (FERPA) governs the extent to which personally identifiable student information contained in student records is private and confidential.
Under FERPA, a school district may not disclose personally identifiable information from a student’s educational records to a third-party, including other students, without the consent of the student’s parents or the “eligible” student (i.e., a student over 18), unless an exception applies (34 CFR section 99.30).
Personally identifiable information generally includes student names and images. If an online session is not recorded, no educational record is created that would be covered by FERPA. But what if the session is recorded? Presumably, these videos would include the images of individual students and perhaps captions with their full names, as well. Would such a video recording qualify as educational records? And, if so, can the school lawfully post or share those records without the parent or eligible student’s consent?