Q. Does the Presence of Others During Online Instruction Violate Student Privacy Rights?
A. No. The United States Department of Education issued guidance on March 23, 2020 stating that it is not a violation of FERPA for parents and volunteers to observe classrooms at school and the same rights apply when the classroom instruction is online and videoed from the home. Specifically, under FERPA, the determination of who can observe a virtual classroom, similar to an in-person classroom, is a local school decision as teachers generally do not disclose personally identifiable information from a student’s education record during classroom instruction. FERPA neither requires nor prohibits individuals from observing a classroom.
Practice Tip: Encourage students to set up a quiet, distraction-free environment to the extent possible.
Q. Can I Post Photos or Videos of My Online Class on the Internet or Social Media?
A. Not Without Consent. Engaging in online instruction may create a "pupil record" protected by federal law. Pupil records are defined as records that directly relate to an identifiable pupil that are maintained by the District or a party acting on behalf of the District. For example, if online classroom instruction focuses on a particular student, such as a student delivering a book report, it may be a protected pupil record that cannot be shared publicly without that student's consent. While videos of online instruction for large groups of students may not create a protected pupil record, some students may also have opted out of having their image shared. Posting images or videos of students online that have opted out of having their image shared not only violates that student's privacy, but also could present a dangerous situation. For example, a student who has opted out of having their image shared could have done so because they have a violent non-custodial parent and the student does not want their location identified publicly.
Practice Tip: Verify with District administration whether any students in the class have opted out of having their image disclosed.
Q. Can I Share Photos or Videos of My Online Class With Other District Employees?
A. Yes. As long as the other District employees have a "legitimate educational interest" in any "pupil record" that is created through online instruction, then the photos or videos of online instruction can be shared without violating a student's privacy.
Q. What Notice or Consent is Required Before Delivering Online Instruction to Students?
A. Students under 13 should be given notice that their information may be collected by an educational software company and they should be given the opportunity to opt out. The general rule is that website operators and software providers should obtain consent before collecting information from students under the age of 13. However, school districts can provide consent for the entire student population so long as the operator is collecting the information only for school or educational purposes. Operators include services for video conferencing and/or recording services for purposes of facilitating virtual instruction. It is a best practice for the school district to provide notice to students and families of the specific websites and operators to whom the school is providing consent on behalf of parents. School districts should also give parents the opportunity to opt out, and should be prepared to implement alternative methods of instruction for any opt out students, such as reasonably equivalent hard copy materials.
Practice Tip: Staff should be cautioned about implementing education software not already vetted by the District, because notice and the opportunity to opt out may not have been issued.
Q. Can the Online Instruction be Recorded by the District?
A. Yes, so long as the students are given notice that the lesson is being recorded. Generally, people should not be recorded without their knowledge in a location where they have a "reasonable expectation of privacy." Courts have determined that there is no reasonable expectation of privacy in a classroom. However, the law is less clear whether there would be a "reasonable expectation of privacy"in a "home classroom" while instruction is being provided. For this reason, we recommend at a minimum, providing notice to students that instruction is being recorded.
Practice Tip: Notify students that online instruction may be recorded in either policy, a pop-up notice, a banner notice, or at a minimum, verbally at the outset of instruction.
Q. Can I Sell My Online Lesson Plans?
A. Not without permission. While school districts are extremely appreciative of teacher's innovation during this challenging transition to online learning, lesson plans created to teach District students technically belong to the District. If a teacher is interested in selling their lesson plan, they should first contact District administration to obtain permission.
Q. What if My Observations During Online Instruction Lead Me to Reasonably Suspect Neglect or Abuse?
A. Report it. Teachers are mandated reporters of abuse and neglect regardless of where they see it. The obligation to report to Child Protective Services or Law Enforcement is personal to the teacher. Therefore, while a teacher may want to consult with District administration about any concerns they may have, if the teacher reasonably suspects abuse or neglect, telling the District only is not enough. A teacher's "reasonable belief" may be based on their experience and knowledge in working with children and based on their professional opinion.
Practice Tip: School districts have already seen an uptick in abuse and neglect in the home. As such, staff may want to have a heightened awareness of this issue and refresh their understanding of what is required for mandated reporting.
Q. What are My Responsibilities Regarding Student Misconduct Online?
A. Teachers have the same responsibility to supervise students as they do in a physical classroom. There is guidance available to instruct teachers on how to create a distraction-free environment during online instruction through settings and online conferencing platforms are moving rapidly to incorporate additional protective measures. Staff and students should be reminded that the District's policies still apply during online instruction, including the Code of Conduct and Responsible Use of Technology.