We are all thinking it. This stinks. As a result of the COVID-19 pandemic, this year’s senior class has been deprived of the moments that many look forward to the most, including prom, senior trips and traditional graduation ceremonies. Even “senior ditch day” has lost its luster with the move to distance learning, which may ultimately be seen by teachers and administrators as a small silver lining on a very dark academic and social cloud. In an effort to salvage as much as possible for the Class of 2020, school districts have been working tirelessly on how to give its senior class a proper sendoff under the circumstances. This article will discuss the legal aspects of the alternatives to traditional graduation ceremonies.

Two ideas have emerged as predominant in discussions of socially distant formats for graduation ceremonies. Some districts have drawn inspiration from the re-emergence of drive-in movie theaters and plan to conduct a ceremony at similar venues. Other districts have considered a virtual ceremony through a videoconferencing platform in which it will broadcast a slideshow of the graduating class, speeches, personalized messages, etc.

School board members and administrators planning graduations and other events that recognize students’ achievements should be cognizant of privacy issues and the importance of consulting with the state Department of Health. Regardless of the format your district may use for graduation or senior recognition, your district should consult with your school attorney to ensure compliance with relevant state and federal requirements.

Student privacy issues
Depending on what information is conveyed to the public, either a drive-in or virtual graduation ceremony may raise student privacy issues. Specifically, if a student’s information is broadcasted through a live stream, it may be protected under the Family Educational Rights and Privacy Act (FERPA). However, certain information may be disclosed, without the parent’s or eligible student’s consent, if it falls within your respective district’s policy definition of “directory information.”

Under FERPA’s regulations, “directory information” is defined as student information that would not generally be deemed harmful to the student if it were disclosed. The regulations further provide a nonexhaustive list of information that may be considered directory information, which includes a student’s name, photograph, participation in recognized activities/sports, honor, and awards. However, what is categorized as directory information is determined by the school district.

Districts are required to annually notify parents and eligible students of their rights under FERPA, which may be accomplished in a variety of ways (i.e., school calendar, student handbook, letter, etc.). This notice must include the district’s definition of directory information and provide the parent/eligible student with the opportunity to withhold permission for such disclosures. So, prior to broadcasting such information, districts should check their records to determine which parents or eligible students (i.e., those who are 18 years old or older) have opted out. If such parent or eligible student would like this information to be included in the ceremony, a valid release authorizing disclosure under FERPA may be required.

Furthermore, if the ceremony will include information outside of the definition of “directory information,” a release from the entire graduating class may be necessary.

Districts may also contract with service providers who will broadcast the ceremony to the public. In entering into these contracts, districts must ensure that their contracts comply with Education Law section 2-d and its implementing regulations (8 NYCRR Part 121).  The law and regulations are intended to ensure that third parties who have access to personally identifiable information (PII) of students will keep this information secure and confidential.

Because student information will be shared with companies that help organize and execute graduation related events, each service provider will likely be considered a “third-party contractor” under Education Law section 2-d. Thus, certain provisions must be included in the contract to require the third-party contractor to safeguard the students’ information. Moreover, the recently implemented regulations require the third-party contractor to submit a data security and privacy plan, which addresses the manner in which the information will be safeguarded. While a majority of educational software companies are well aware of section 2-d and have legal expertise to craft appropriate agreements, the third party contractors involved in graduation events may not be familiar with the law and therefore ill-equipped to promise compliance.

Health and safety considerations
Drive-in graduations have been conceived as events in which participants can remain socially distant while being together and sharing an event. Schools may use a drive-in theater or also choose to set up a projector screen in a parking lot or some other open space where the students and families can watch the ceremony from the safety of their cars. This poses various questions for organizers, such as: Can students and families get out of the car for their diploma or pictures? How can the event be structured to ensure compliance with all state and federal directives regarding both health and privacy?

If you decide to conduct a graduation ceremony in this manner, it is imperative that you remain well informed of any mandates issued at the state or local level. It is possible that Gov. Andrew Cuomo will issue an Executive Order that will specifically address graduation ceremonies, as he issued an order that specifically addressed Memorial Day (Executive Order 202.32). Given the rapidly evolving regulatory environment, consultation with your school attorney is recommended.

Currently, New York Executive Order 202.33 permits “any non-essential gathering of ten or fewer individuals, for any lawful purpose or reason, provided that social distancing protocols and cleaning and disinfection protocols required by the Department of Health are adhered to.” Although this Executive Order imposes a limitation on gatherings, Executive Order 202.31 expressly provides that drive-in movie theaters are not subject to closure under New York “PAUSE”. Thus, a gathering of cars could arguably be permitted under these circumstances. Again, consultation with your school attorney is recommended.

Whether a student and family may exit their car during the ceremony and remain in compliance with health directives is less clear. The limitation on nonessential gatherings set forth in Executive Order 202.33 would likely apply. The order further provides that in holding these limited gatherings, the social distancing protocols and cleaning and disinfection protocols that are required by the Department of Health must be adhered to. Compliance with health requirements depends not only on how the event is planned but in how people behave. Will teenagers resist the temptation to exit their cars and hug each other? If students are required to wear masks to receive diplomas or parents are required to wear masks to take photos, what happens if individuals fail to do so?

Districts considering drive-in graduations should consult with the state and county departments of health. This may be required pursuant to Executive Order 202.19, which states that “[n]o local government . . . shall take any actions that could affect public health without consulting with the state department of health.” This Executive Order has been extended through June 7, 2020 and is subject to further extensions and/or modifications. In addition to seeking approval, the Department of Health may provide useful guidance regarding the safety procedures that should be employed by the district.

As mentioned, the requirements related to gatherings are rather fluid and are subject to change by the stroke of the governor’s pen. Nevertheless, it is important to keep all of these issues on your radar as you plan for a safe and memorable experience for your graduating class.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Edward H. Grimmett of Jaspan Schlesinger LLP.