Student Privacy Policy Office Offers Insights for Virtual Learning During COVID-19 Pandemic

| Mar 27, 2020 | Education |

School districts across the state are working hard to provide virtual learning opportunities to public school students while buildings remain closed due to the COVID-19 pandemic. Continuing education must, however, be provided in compliance with federal and state privacy laws, including the Family Educational Rights and Privacy Act (“FERPA”).  This week, the United States Department of Education’s Student Privacy Policy Office (“SPPO”) offered clarifications regarding the application of FERPA to virtual learning opportunities of which school districts and families alike should be aware.  The SPPO enforces school district compliance with several Federal privacy laws and regulations, including FERPA, and also offers technical assistance and training related to help achieve compliance.

In its FERPA and Virtual Learning Related Resources document, the SPPO clarified that FERPA does not protect the confidentiality of information in general.  Rather, FERPA generally prohibits school districts from disclosing information from a student’s education records without written parental consent.  The SPPO treats virtual classrooms the same as in-person classrooms and, as such, parents are not prohibited from observing the other children in their child’s class during virtual learning.  Teachers should, therefore, be able to conduct virtual classes through online platforms such as Zoom or Google Hangouts Meet without violating FERPA, so long as their instruction does not involve the disclosure of any particular student’s education records or information from such records.  To the extent that virtual classrooms are treated just like in-person classrooms, however, that also means that reasonable parameters may be set by school districts regarding those observations, including but not limited to, an expectation that the class will not be photographed, video-recorded, or audio-recorded by observers or indeed, members of the class, and that any information obtained regarding other students will be kept confidential.

The SPPO also highlighted various resources providing best practices for school districts to consider when developing and implementing virtual learning opportunities.  These resources make clear that, while there has been a significant increase in the use of online educational services over the past several years, school districts still need to exercise caution when providing virtual learning opportunities.  In other words, school districts are not absolved of their responsibility to comply with FERPA when providing virtual learning opportunities, even during the COVID-19 pandemic.  School districts need to determine on a case-by-case basis whether the use of a particular online educational service or a particular activity will result in the disclosure of personally identifiable information (“PII”) from students’ education records.  If so, school districts must either avoid the disclosure of PII, or otherwise obtain written parental consent for the disclosure.

Video tutorials and interactive exercises not requiring the use of PII were just a few of the virtual learning options highlighted by the SPPO which generally do not risk violations of FERPA.  By contrast, teachers do risk inadvertently disclosing PII from student records when sending class-wide emails or other online communications.  Group interactions involving small groups of students with disabilities may inherently involve the connection of directory information (i.e., student name, likeness) with non-directory information (status as a student with a disability), and therefore may involve disclosure of PII.  School districts may therefore wish to notify parents of the potential for inadvertent disclosures of PII during virtual learning, and to obtain written parental consent for their children to participate.  In the event that a parent “opts out” of online options that involve live videoconferencing, we generally recommend that districts provide alternative options such as telephone conferences, individual interactions with teachers, and pushing content out to students without live interaction.  In the case of students requiring special education or Section 504 accommodations, districts may need to individualize any or all of these options to fit the needs of students.  We will provide more information about this in future posts.

Finally, while the Governor’s recently issued Executive Order No. 7I permits the State Department of Education to temporarily waive various requirements related to the State’s Student Data Privacy Act, school districts are still encouraged to exercise caution in choosing particular platforms or programs for the provision of virtual learning opportunities, and make sure that the company hosting the platform has signed on to the Connecticut Student Data Privacy Pledge.  The materials cited by the SPPO include resources for school districts to consider when determining which platforms or programs, such as Zoom or Google, are the most appropriate for virtual learning.

The full text of FERPA and Virtual Learning Related Resources can be viewed through the following web link:

https://studentprivacy.ed.gov/sites/default/files/resource_document/file/FERPA%20%20Virtual%20Learning%20032020_FINAL.pdf.

Attorneys at Berchem Moses PC are available to consult schools and school districts regarding regular and special education matters in the State of Connecticut, including matters pertaining to the impact of COVID-19 on public schooling.  For further information, please contact Attorney Michelle Laubin at [email protected].

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