Many school districts are considering recording or livestreaming classes during the 2020-2021 school year, either as an option for students that need to participate virtually because of COVID-19, or because the district is starting the year virtually for all students. Whether your district is fully remote or offering a remote option for students, this blog highlights several legal and practical considerations for recording or streaming classes.
Student Privacy / FERPA
Under the Family Educational Rights and Privacy Act (“FERPA”), a photo or video of a student is an education record when it is: (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution. 20 U.S.C. 1232g(a)(4)(A); 34 C.F.R. 99.3 (“Education record”). Thus, video recordings of classroom lessons may qualify as education records protected by FERPA only if they directly relate to a student and are maintained by the district or a party acting on the district’s behalf.
In March 2020, the United States Department of Education’s Student Privacy Policy Office (“SPPO”) issued guidance regarding virtual learning and FERPA, including a webinar, powerpoint presentation, and FAQs, which address many of the common concerns districts have about recording or livestreaming lessons for students. For example, the presence of students on camera in and of itself does not create an education record for each student because it is not directly related to each student. However, if the recording focuses on a specific students or group of students (e.g., a student giving a presentation, or students engaged in a fight), that recording may be “directly related” to that student such that the recording, if maintained by the district, is an “education record” for that student.
The SPPO also has specific FAQs on Photos and Videos under FERPA, which provide more examples of common situations and whether FERPA is implicated.
Bargaining Implications
A district may be able to install video cameras in the classroom to record or livestream classes, but districts should review their collective bargaining agreements first to determine whether such installation is a term and condition of employment subject to bargaining. Some collective bargaining agreements may prohibit the installation of cameras explicitly. However, districts also should review provisions relating to observations, recordkeeping, and security to determine whether they impact the Board’s ability to install cameras. Additionally, the Ohio State Employment Relations Board (“SERB”) utilizes a balancing test to identify subjects which public employers must bargain in Ohio. Although SERB has not ruled specifically that the installation of cameras is a mandatory subject of bargaining, Boards should consult their counsel to confirm that they may do so without engaging in an unfair labor practice.
Other Miscellaneous Concerns
It is likely that all the interested parties – classroom teachers, their students, and students’ parents – will be concerned primarily with privacy related to recording or streaming classes. Districts should consider how to share the video recordings or streaming links with students who need them without making the recordings public. The district also should remind students that sharing the recordings with others is strictly prohibited. If it is possible to limit access to a recording or livestream by requiring students to use a password, districts may consider doing so as an added precaution. Additionally, to limit the possibility of releasing information directly related to a student, a district should consider focusing the camera only on the teacher.
Kevin J. Locke may be reached at klocke@pepple-waggoner.com.