As school closures continue and schools implement distance learning plans, questions and concerns persist concerning the applicability of laws and regulations relating to student confidentiality and best practices for protecting student data. On March 30, 2020, the Student Privacy Policy Office of the U.S. Department of Education (“SPPO”) conducted a webinar addressing the Family Educational Rights and Privacy Act (“FERPA”) and the use of virtual learning tools during school closures resulting from the COVID-19 pandemic. The presentation slides used during the webinar can be accessed here.
In its materials, the SPPO presents several scenarios relating to the use of virtual learning tools and the applicability of FERPA, as well as best practices relating to those scenarios. The scenarios address questions such as whether school staff may remove education records containing personally identifiable information (“PII”) from a school building; whether non-students can view virtual classes; whether classes can be recorded; and how to obtain necessary signatures for the release of education records.
Throughout the materials, the SPPO identifies various “take aways” from the scenarios that are consistent with FERPA and that schools can use in their conversion to virtual learning. These “take aways” include, but are not limited to, the following:
- Discourage non-students from observing virtual classrooms, and restrict recording and sharing of virtual lessons, to minimize inadvertent disclosure of PII.
- Remember that recording by the school of virtual classrooms may create education records.
- Ensure that online learning platforms that receive PII are FERPA-compliant by reviewing terms of service and privacy policies of those platforms.
- Be cautious about releasing information about COVID-19 positive students; this information may be released only if it is not PII, as that term is defined under FERPA, or if the parent has consented to the release.
- Institute physical, administrative and/or technical protections on PII being used and/or accessed by school personnel outside of the physical school building.
- Understand that FERPA permits electronic signatures, under specific conditions, to permit the release of education records.
The SPPO includes a variety of COVID-19 resources in its materials. These resources address general precautions issued by the Centers for Disease Control and Prevention (“CDC”), as well as student privacy-specific information relating to FERPA and the use of virtual learning tools. Schools are also directed to the SPPO’s website to access these resources.
Connecticut public schools are reminded that, in addition to federal law, Connecticut’s student data privacy laws impose a variety of requirements on schools and operators of online learning tools relating to the possession of, and access to, student data by operators. Please see our prior posts concerning the applicability of Connecticut’s student data privacy laws during school closures relating to the COVID-19 pandemic:
- Student Data Privacy and COVID-19
- UPDATE: Student Data Privacy and COVID-19
- Commissioner of Education Relaxes Portion of Student Data Privacy Law During School Closure
Please continue to monitor ctschoollaw.com for updates concerning COVID-19. If you have specific questions about online learning tools and contract requirements, please contact Gwen J. Zittoun at gzittoun@goodwin.com or Chris Tracey at ctracey@goodwin.com.
