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FAQ: Distance learning, data privacy, records and recording
Disclaimer: This publication is for informational purposes only and is not intended as a substitute for specific legal or other professional advice. If you have specific questions about your legal or contractual rights, contact your local association or UniServ director.
The federal Family Educational Rights and Privacy Act (FERPA) protects the privacy of student education records. Similarly, §4-313 of the General Provisions Article of the Annotated Code of Maryland protects the privacy of student records, including “home address, home telephone number, biography, family, physiology, religion, academic achievement, or physical or mental ability of a student.” Both laws prohibit the disclosure of student education records/education data to third parties without the written consent of a minor student’s parent or guardian.
Every effort should be made to keep student information confidential and out of the hands of other members of an educator’s household. Student records in an educator’s home should be stored in such a manner as to limit access to them by your family.
Educational records subject to FERPA include photos or videos that are directly related to a student, meaning the student is the focus of the video (for example, it shows them being injured, having a health emergency, contains their personally identifiable information, or depicts an act they are disciplined for) and does not include videos where the student is incidentally captured or shows the student participating in school activities open to the public and without a specific focus on any individual. FERPA, generally, allows teachers to disclose a student’s name, photograph, and other directory information during class in which the student is enrolled without parental consent absent a specific parental request to the contrary.
It is likely that mandated recording of all classroom instruction would capture videos directly related to students and at least portions of video would qualify as an educational record, requiring prior written consent before disclosure to others.
Finally, under the Children’s Online Privacy Protection Act (COPPA), consent of a parent or guardian would be required for children under 13 to use third party platforms, such as Zoom or Google Classrooms, where that platform collects the personal information of those using it.
Not necessarily. Neither federal nor state law necessarily prohibits a parent from accessing a classroom to observe their child because this information is not considered an education record or educational data. Therefore, parents may similarly observe a classroom setting that is occurring via distance learning; however, parents should notify the teacher that they are observing a lesson (s).
Allowing parents to have access to real-time video or audio of students receiving special education services will not violate FERPA, but the names of students who receive these services are considered private student education records/education data. For this reason, schools and educators should take precautions to ensure that these names are not available to other students or parents without the prior consent of parents or guardians.
If the video platform utilized to provide services could contain or reveal personally identifiable information of students, then the school system should evaluate the platform to ensure that it incorporates security measures to encrypt private data so that it may not be accessed by individuals who do not have authority to access the data. Alternatively, the schools may address privacy concerns by informing parents about the proposed services and the platform for delivery and seek parental consent.
As always, educators, especially special educators, should incorporate any additional requirements recommended by administration.
Yes. School systems have the right to create and require educators to follow security protocols greater than what state or federal law requires. However, these protocols should be clearly established, consistently enforced, and available electronically for staff to review. The benefits of these additional requirements should also be balanced against ease of access for students, parents, and educators.
School systems vary on this point, and we recommend following all applicable board of education policies and administrator directives you receive. Some school systems require recording so students with limited access to internet or technology may access them at a later time. Other school systems are discouraging or prohibiting educators from maintaining any recordings of their classes whatsoever. School systems have the authority to make these decisions, but the expectations should be clearly communicated and the necessary student and parent releases secured.
Specifically, with a recording of a virtual classroom, there are not only FERPA concerns, but also Maryland’s wiretapping law is implicated. Specifically, it is unlawful to record someone’s communications without their consent. Maryland is a two-party consent state, which requires all parties to the communication to consent to its recording. As such, recording of a virtual classroom requires the school system to secure appropriate releases from students and parents.
While real-time video of an entire classroom or group of students is not automatically subject to FERPA, video or audio recordings may be considered private student education records/education data if they are “directly related to a student,” meaning they are focused on one particular student giving a presentation. For these reasons, any recorded lessons that include students may ultimately be classified as a record protected by FERPA. Under FERPA, a parent must give written consent before a school may disclose “personally identifiable information” from student records.
We strongly recommend that educators not make the decision regarding which platform to utilize independently, but rather in collaboration with their department, grade-level team, and/or their administration.
Follow administrative directives and school policies specific to virtual learning and confirm concerns or questions in writing with school administration.
Seek consent prior to recording lessons. Teaching staff should not engage in the creation of “education records” which contain any personally identifiable information via video-recording unless consent has been acquired from every single parent/guardian/eligible student involved. The school system must be responsible for getting all such consent, and unless and until they do they should not expect educators to record their classes, and they should certainly not expect any student to appear on the video.
Valid written consent must:
- Specify the records that may be disclosed;
- State the purpose of the disclosure; and
- Identify the party or class of parties to whom the disclosure may be made.
The school system must have written consent from any and every parent/guardian/eligible student who will be involved in any such recording, even if such recording is only for the purposes of the remote learning of other students.
There may be school systems that fail and/or refuse to secure such authorizations. Although the publication of video showing students being instructed could create FERPA exposure for the school systems (FERPA does not permit a student’s parent to sue a teacher personally in the event of a FERPA violation as such action may only be taken against a school), administrators and teaching staff would be indemnified so long as the directive to record is clearly mandated by the system.
In the event that releases are secured, local association representatives should demand to negotiate over the manner in which the videos are stored, length of time of storage, access to the video, and limited use of the video (i.e. may not be used for evaluative purposes).
As is the case in your classroom, your school system may not be able to completely safeguard you from having your image or your instructional materials shared beyond their intended audience. At the same time, school systems can and should support educators’ legitimate privacy concerns by prohibiting the unauthorized recording and/or dissemination of videos, images, or other data captured in the course of distance learning.
We recommend that boards of education create a written agreement for students (and/or parents/guardians, depending on age) to sign or click, containing the following language or something similar:
The following content is for educational purposes only. By accessing this material, I agree not to share this content with anyone not enrolled in the class or assisting an enrolled student. Unauthorized distribution of any distance learning content, including sharing video recordings or screenshots on the internet or social media, is strictly prohibited and could result in disciplinary action and/or the suspension of a student’s access to certain distance learning materials.
School systems have an obligation to take reasonable measures to protect the privacy of students and staff. As with board of education policies prohibiting recordings in the classroom, this type of notice will make it easier for the administration to justify disciplinary action or other consequences for a student or parent/guardian who records or shares distance learning content without an educator’s permission.
School systems vary in how they respond to these incidents based on the severity of the conduct and the policies they have in place. If you believe your administration has not responded to unauthorized use of your content appropriately, contact your local association or the UniServ Director for assistance.
Yes. While there is no particular guidance that has been issued by MSDE regarding the format for distance learning, the local board of education continues to possess the statutory authority to determine the method, the format, and the daily schedule of its employees so long as it complies with the work hours provided in the collective bargaining agreement.
Educators will likely not be able to provide the same type of interaction with and between students through distance learning that they can provide in a classroom, but school systems can expect educators to have ongoing interactions that include opportunities for students to ask questions and receive real-time feedback.
Yes. Records that you independently keep on students, which you do not share with anyone else, are considered “desk drawer notes” rather than government data and not accessible as part of a data request under the Public Information Act. Inasmuch, when you no longer have a student in your class any associated “desk drawer notes” should be destroyed. All other information likely becomes part of the student’s educational record, i.e. discipline, grades, attendance, etc.
FAQs from Teletown Hall
We are extremely grateful for the input provided from PGCEA for the current Distance Learning Plan. Using the input from the committee, the central office team worked through the weekend until 1am Monday to complete the document that was sent to employees a few hours later. For continuity, it is our hope that there will not be many changes. We will reconvene the committee that originally met at the conclusion of the first week of distance learning (April 17, 2020) to determine if there are any areas that need to be clarified for teachers.
An allocation of $2 million was approved by the Board of Education to support providing wifi to students that are on Free and Reduced Meals (FARMS) and for those immigrant students that did not feel comfortable completing the form to be identified as a FARMS student. In addition, we will be pointing our wifi hotspots in the meal distribution sites towards the parking lot to anyone (including staff) who needs access can have it. On Wednesday, I made a plea to our businesses, non-profit and faith based organizations to ask them to also open up their wifi hotspots for anyone (including staff). I wrote a letter to the Congressional leadership and our state federal representatives asking them to include broadband access for EVERYONE across the nation in the stimulus plan. I received an email from Van Hollen with his specific testimony supporting this request. If passed this would allow everyone to have free access during this pandemic. Lastly, I provided PGCEA leadership with the contact information for Comcast and Verizon to see if they would be willing to provide an educator discount. In terms of cell phone use, of course you can use your phone in these unprecedented times. Please make sure that when you call parents you use *67 before dialing the number so your phone numbers does not show up on their phone or caller ID.
If a tenured employee has completed everything in the evaluation cycle for the 2019-2020 school year then we will denote they are complete. If a tenured employee has not completed the evaluation cycle we will role them over to next year and complete the process then. We are still waiting to hear from MSDE on how to handle nontenured teachers.
We will offer additional professional development next week.
For 4th quarter it is difficult to handle grading equitably no matter how much I am trying to close the gap which is why we are using Pass and Incomplete. We have to acknowledge that no matter what we provide there may be some students that cannot meet the daily instructional plan. Contact by the teacher to the family to find out what is going on with the student will help determine how to best support the student. Exempt is only to be used in the gradebook for 3rd quarter when calculating grades. Incomplete is used as a grade for 4th quarter. You will have to use a variety of ways to determine how students have learned the content taught (individual response to questions, work turned in electronically). We are not requiring students to mail work in or to drop it off at the school and someone pick it up. If a student is not completing work they get an I (incomplete) for their grade.
This information was shared in a memo issued today which will be shared by your principals.
Yes, you will get paid after April 24, 2020 until school concludes for the school year. The reason I only state until April 24 is because if we go back to “normal” after April 24th I made the assumption that everyone would know they would continue to be paid.
You only need to complete attachment 1 and 3 weekly after you have completed the entire packet for the first time.
We will continue with a once a month staff meeting just as outlined in the negotiated agreement. Teachers have asked can they collaborate with their colleagues in their school and we have agreed that this is permissible. All work should be done between the hours of 9 am – 1 pm to honor the fact that many of our teachers have families of their own they must support.