By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

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:

The teachers in my school are live streaming to children whose parents have opted for the temporary remote learning opportunity and to other regularly-enrolled students who are learning remotely on some days with our hybrid model. It is going surprisingly well, but one of the parents raised an objection on which I need to get some (free) legal advice from Legal Mailbag.

This parent claims that live streaming is a FERPA violation because at some points during the lesson other people can see her child. Given her claim, she is demanding that we provide remote instruction to her child separate from the live streaming. The teachers have been gracious and cooperative in adjusting to live streaming, and I certainly don’t want to upset the applecart by imposing new burdens on them to prepare special lessons for some students.

Is this parent on solid ground with her claim that live streaming is a FERPA violation? Can I tell her that live streaming is the deal, take it or leave it?

Signed,
My Way or the Highway
 

Dear Way:

The parent is incorrect in her claim that live streaming violates FERPA, but Legal Mailbag is confident that you, as an accomplished school principal, can come up with a nicer way to deny the parent’s request.

As you know, FERPA protects personally-identifiable information from student educational records from disclosure to third parties. This obligation applies to teachers and others who receive (or create) personally-identifiable information about students. It is therefore a FERPA to disclose such information without an applicable exemption from the privacy obligation (such as disclosure to another school official, compliance with a subpoena, etc.). However, improper disclosure of personally-identifiable student information in violation of FERPA can occur in a regular classroom, at the grocery store, during live streaming, or wherever. Live streaming per se, however, does not implicate FERPA because it is simply instruction, not disclosure of student records.

The Student Privacy Policy Office (SPPO) is the agency within the United States Department of Education responsible for administering FERPA, and it has provided helpful guidance, including the following Webinar, FERPA and Virtual Learning (March 30, 2020). The SPPO has advised that third party visitors (parents, caregivers) can be present/observing the virtual lesson without running afoul of FERPA so long as personally-identifiable student information from educational records is not disclosed during the virtual lesson. The SPPO does recommend, as a best practice, that school districts discourage visitors/non-students from observing virtual classes.

In reaching the conclusion that live streaming per se does not violate FERPA, SPPO identified existing guidance, including Letter to Mamas (December 3, 2008). That guidance was issued in 2003, long before COVID-19 and live streaming, and it holds that classroom visits by third parties do not violate FERPA. Analogously, parents may observe the classroom in monitoring their children during a live-streamed lesson without violating FERPA:

• “FERPA does not specifically prohibit a parent or professional working with the parent from observing the parent’s child in the classroom.”
• “FERPA does not protect the confidentiality of information in general; rather, FERPA applies to the disclosure of tangible records and of information derived from tangible records.”

Given that live streaming per so does not violate FERPA violation, your question is thus reduced to whether a parent can demand that his or her child be educated in a manner different from the other children. The answer, of course, is no. The public schools provide education in the manner they determine appropriate. If a parent does not want to provide education as offered by the public schools, he or she is free to send the child to private school or provide home instruction. But parents cannot tell you how to deliver instruction to their children.