By Gwen Zittoun, Guest Columnist
Attorney Zittoun is a partner at Shipman & Goodwin LLP where she practices in the area of school law, representing boards of education and school districts in relation to special education, Section 504, ADA, student discipline, Title IX, restraint and seclusion, student data privacy and general education matters.

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
 
 

 
Dear Legal Mailbag:

Like nearly all other schools in the country, my school district has implemented a distance learning plan during the school closure related to COVID-19. Our initial plan required teachers to hold live classes via video conference to provide new instruction to students. After we notified the community of our plan, we received a lot of parent complaints about students not being available to log into the live class at the designated time on each day. As you can imagine, parents are working and not always able to closely supervise or help their children access the live instruction. We then revamped our plan to require teachers to record their live classes and post them for students to access on their own time if they were not able to attend the live session.

Well, now all of these recorded classes are piling up! Should the district be recording these live lessons? I’m worried that the district may be in violation of a student’s right to privacy or confidentiality. Essentially, I’m wondering, was this recording of live lessons a good idea?

Sincerely,
Just Making Sure
 

Dear Sure:

Wow! Who could have imagined that educating students would get so complicated so quickly? As always, Legal Mailbag is here to provide answers to these difficult questions.

To start, it is helpful to step out of the distance learning environment and determine how these questions would be answered in a regular school setting. The legislators certainly did not anticipate COVID-19 causing school closures, so our laws do not specifically address a situation in which all students are educated virtually. Various federal and state laws, however, do address the confidentiality of student records.

The most relevant law in this circumstance is the Family Educational Rights and Privacy Act (FERPA), a federal law that addresses the maintenance and confidentiality of, and access to, education records and the personally identifiable information (PII) contained in them. FERPA defines education records broadly: any record (physical document, electronic information, video or audio recording, microfiche, etc.) that is (1) directly related to a student and (2) maintained by the school district. FERPA requires that the school district provide parents and eligible students (18 and over) access to education records, and that they only release education records to third parties if the parent/eligible student has consented to the release of such records, or an exception to consent applies.

As you can imagine, education records include a lot of information in possession of the school district. However, education records do not encompass everything that goes on inside the school — whether that is a physical building or virtual environment. Importantly, FERPA protections apply only to information included in records, but do not apply to “live” interactions. It follows, then, that whatever occurs in a live class — whether in the physical or virtual classroom — is not necessarily protected by FERPA. These interactions are not “confidential” information.

There is a catch, though (isn’t there always a catch?). If the information revealed in a live interaction is also included in an education record, then that information is still confidential, even though it is “live.” For example, it is not permissible for school staff to reveal the contents of a student’s special education program to the entire class because special education status and programming is PII protected by FERPA. Similarly, a student-specific incident may occur during a live class (think student discipline-related, for example). That live interaction is not an education record protected by FERPA. However, if and when that interaction is recorded, the recording can become an education record as to that student.

This brings us to your question, Sure. Once the school district records a live lesson, and maintains the recording, it has created a record. This is not necessarily a bad thing to do. And it is not, per se, unlawful. The school must understand, however, that under certain circumstances the video may be an education record, triggering FERPA protections and obligations, as discussed above. The Student Privacy Protection Office (SPPO), an arm of the U.S. Department of Education that oversees implementation of FERPA, takes the position that videos may be education records of individual students if, among other factors, an individual student is the focus of the video. Students who are not the focus of the video are bystanders and the video is not their education record. The SPPO provides helpful guidance concerning FERPA and videos, which guidance can be found here.

A related issue is the impact of Connecticut’s student data privacy laws (Conn. Gen. Stat. §§ 10-234aa through dd) on the use of video conferencing and storage of the recordings you mention. The specific details of these laws are a Legal Mailbag for another week. Safe to say that school districts must ensure that, during the period of this health emergency, they are using “safe” online programs or mobile apps and are in compliance with the temporary rules established by the Connecticut State Department of Education.

In the end, is it a good idea to record live classes? That is not a legal question, but rather a practical question that you must answer for yourself. Legal Mailbag simply suggests schools electing to record live sessions keep the FERPA rules in mind and use caution in proceeding with such an approach. School staff and students should be provided with guidance on the appropriate use of video conferencing, and school staff should be reminded specifically not to reveal PII during live class sessions. Also consider that there may be situations where student-specific incidents occur during recorded class sessions and the recording thereafter becomes a student record. In that case, the school was not required by law to record the class, but it did, so it must comply with the associated access, maintenance and confidentiality requirements.

The SPPO and the SDE have each developed resources (here and here) to help school districts navigate the use of technology in this age of distance learning. To be sure, these are complicated issues in a complicated time. Stay safe out there.