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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?

In some cases, the answer under FERPA will be fairly obvious under rules that should be familiar to school officials. For instance, although student names are personally identifiable information, FERPA permits school districts to disclose a student’s name, identifier or institutional email address in the course of conducting a class in which the student is enrolled. This is true even where a parent has otherwise opted out of the disclosure of “directory information”, e.g., information contained in the educational records of a student that would not generally be considered harmful or an invasion of privacy if disclosed (see 34 CFR section 99.3 and section 99.37[c][1]). Therefore, students’ names may appear underneath their images in the screen of an online class without raising privacy concerns.

Answering other questions about student privacy that involve recordings of online classes may involve a call to your school attorney, because the determination of whether a video is a student record is generally made on a case-by-case basis, according to the particular context of the video. The general rule is that a photo or video of a student is considered part of that student’s educational record where the photo or video is “directly related to a student” and “maintained by an educational agency or institution or by a party acting for the agency or institution” (34 CFR section 99.3).

Unfortunately, there is no clear definition of what “directly related” to a student means. However, the U.S. Department of Education’s Student Privacy Policy Office has provided several examples in which a video of a student would be considered directly related to that student, and thus an educational record:

  • When the student is intended to be the focus of the video (e.g., a student presentation).
  • When the video will be used for a disciplinary or other “official purposes,” e.g., where a video records a student violating a rule or law, or being attacked.
  • When the video records a student getting injured, becoming ill or suffering a health emergency.
  • When the student’s personally identifiable information from his/her educational records are visible or discussed. However, a student’s incidental appearance in a video, e.g., as part of the background, generally will not render such video an educational record for that student. (For more information on where a recording is “directly related” to a student, see bit.ly/2GmFGaM).

A recording of a classroom session in which the teacher is shown providing instruction is unlikely to be considered an educational record of the students in the class, absent special circumstances. What is less clear is under what conditions a recording of a class in which students answer questions or participate in discussions become an educational record.

However, the text of U.S. Department of Education’s Student Privacy Policy Office guidance suggests that only a major event, such as an injury, illness, or illegal act, would transform the recording into an educational record of any individual student. Thus, unless the recording of the class included an activity or event focused solely on an individual student, such as a significant student presentation or an emergency, the video should not be considered an “educational record” pursuant to FERPA. Again, school districts should consult their attorney regarding specific circumstances.

So, your district’s teaching staff generally should be able to share classroom recordings with their students who are enrolled in their class. However, in the age of social media, staff should be advised to refrain from posting videos focused solely on an individual students or a recording that captures a significant event such as a health emergency, illegal act or violation of school rules that may result in discipline. Staff members should also be reminded to familiarize themselves with the employer’s acceptable use policy for technology, or other policies or regulations that might relate to the use of social media.

Staff should also not disclose other personally identifiable information from educational records, such as grades or accommodations, to other students in the class without first obtaining the consent of a parent or eligible student, as such a disclosure would constitute a FERPA violation. This rule applies to both in-person or online classes, irrespective of whether the class is recorded. Finally, as a best practice, teachers should instruct students with whom classroom recordings are shared that such recordings are intended for their educational use only and should not to be further disclosed or posted elsewhere. New questions involving student privacy may arise because an online classroom is simultaneously both an educational environment and a home environment. For instance, suppose a parent takes a photo of a child doing schoolwork via a teleconferencing and posts it on social media. If the photo captures the student’s screen, it might clearly show the names and faces of children in the class. This would not appear to violate FERPA, but it is an untested legal question.

When questions arise involving student privacy and recordings of online classes, school officials should not hesitate to contact their school attorneys.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Gregory A. Gillen of Guercio & Guercio, LLP.

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