Is This Being Recorded? Navigating FERPA in the Virtual Classroom

Category: Blog Posts
Date: May 21, 2020 05:11 PM

When the COVID-19 outbreak reached California, schools throughout the state converted traditional classes to a distance education model for millions of students seemingly overnight. Distance education programs rely on a combination of websites, programs/applications, and other technologies to deliver content, facilitate communication, administer exams, and more. Video conferencing applications (e.g., Zoom) with screen sharing features allow educators to recreate live classes online and have become invaluable remote teaching tools. This sudden and unprecedented reliance on these technologies raises urgent questions regarding student privacy and specifically pupil records.

In California, public school districts must comply with specific laws regarding pupil records and educational records set forth in Education Code sections 49060, set seq. These provisions largely mirror the Family Educational Rights and Privacy Act (“FERPA”). They give parents/students certain rights with respect to pupil records and prohibit the unauthorized disclosure of information contained in pupil records unless a specific exception applies. “Pupil records” is broadly defined as “any item of information directly related to an identifiable pupil” that is maintained or required to be maintained by a school district, “whether recorded by handwriting, print, tapes, film, microfilm, or other means.” (Ed. Code, § 49061(b).) This includes photographs or videos if they depict an identifiable pupil and are “maintained by a school.” (See 84 Ops.Cal.Atty.Gen. 146.)

On March 30, 2020, the Student Privacy Policy Office within the U.S. Department of Education provided guidance to schools and colleges navigating FERPA in the online environment. The Department of Education clarified that:

  • Video recordings of virtual classes qualify as pupil records only if they directly relate to a student and are maintained by the educational institution or a party acting on its behalf;
  • Even if it does not qualify as pupil records, a video recording of a virtual class cannot be shared without appropriate authorization if it contains personally identifiable information (“PII”) from pupil records;
  • FERPA does not prohibit non-students from observing virtual class sessions so long as PII from a pupil record is not disclosed;
  • Classes may be recorded and shared with students who are unable to attend as long as PII from a pupil record is not disclosed or appropriate written consent is obtained for such disclosures;
  • Teachers may conduct meetings with parents/students over video conference but should ensure that such conversations are not overheard by third parties (such as the instructor’s spouse); and that
  • If circumstances effectively prevent a parent from exercising his or her right to inspect and review education records, then the school is required to either provide a copy of the records or make other arrangements that would allow the parent to inspect and view the requested records within 45 days of receiving the request.

The guidance did not address when an electronic recording is “maintained by the school,” which is necessary to determining what recordings constitute a pupil record in the first place. The question of when an electronic record is “maintained” by the school is complex.

Notably, the recent Department of Education guidance states that class recordings are pupil records if they are maintained by the school or a party acting on behalf of the school. This latter reference goes beyond the plain language of the law and appears to contradict S.A. and other authorities. The guidance is not binding authority, but may indicate that the Department of Education (which enforces FERPA) is taking the position that electronic records can be pupil records under FERPA even if they exist on servers not belonging to the school district. If that is the case, schools may face challenges with respect to a student/parent’s right to review and amend pupil records.

For instance, a recording of a virtual class session where multiple students appear on a video conference call and discuss their work and/or personal experiences may constitute a pupil record for each of those students. (U.S. Department of Education “FAQs on Photos and Videos Under FERPA.”) If one of those students request to review the pupil record, the student only has a right to review the specific information directly related to him or herself, and the school must take reasonable steps to redact or segregate the information. (U.S. Department of Education Letter to Wachter (Dec. 7, 2017).) If a recording that is a pupil record for multiple students and cannot be segregated and redacted without destroying its meaning, a student/parent may review the record even though it contains another student’s information. (Id.)

Given that many schools will continue distance education in at least some capacity into the next school year, we are likely to see more of these issues come up. School districts should speak to their vendors and/or IT departments about how and where class recordings are or will be stored and the district’s ability to reasonably redact or separate video recordings.

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