Remote learning implicates many issues related to the Family Educational Rights and Privacy Act (“FERPA”).  FERPA is a federal law that protects the privacy of student education records and prohibits school districts from disclosing personally identifiable information (“PII”) from a student’s education record without prior written consent or an applicable exception under FERPA.  Recently, the U.S. Department of Education (“DOE”), the agency that enforces FERPA, has offered insight for school districts on complying with FERPA as remote learning occurs for the remainder of the school year.  We have recounted some of the DOE guidance below:

Q: Can a teacher bring home student education records?

A: Yes, as long as the teacher has a legitimate educational interest in the education records, does not disclose PII from the education records, and uses reasonable methods to protect the education records and the PII within the records from disclosure.

Q: How can school districts use virtual learning software under FERPA?

A: Under the “school official exception” to FERPA’s general consent requirement, which permits disclosure of student education records as long as the provider (1) performs an institutional service or function for which the school district would otherwise use its own employees; (2) has been determined to meet the criteria set forth in the school district’s annual notification of FERPA rights; (3) is under the direct control of the school district regarding the use and maintenance of the education records/PII; and (4) uses the education records/PII only for authorized purposes and does not redisclose the education records/PII unlawfully.

Q: Does FERPA address which virtual learning applications can be used?

A: No, as FERPA is a privacy rule and does not include explicit information security standards. However, school districts should be cautious to review information security requirements and terms of service in connection with FERPA.

Q: Is it permissible to record classes and share the recording with students who are unable to attend?

A: Yes, assuming the recording does not disclose PII from student education records or appropriate written consent is obtained.

Q: A parent requests access to their child’s education record while school is closed. How can a school district provide access?

A: Under FERPA, a school must provide a parent with an opportunity to inspect and review their child’s education records within 45 days* of the receipt of the request. FERPA does not identify exceptions to this deadline, therefore a school district would be required to provide the parent with a copy of the records or make other arrangements permitting inspection.

*In Massachusetts, school districts have 10 days to provide such access. The Massachusetts Department of  elementary and Secondary Education has not identified exceptions to meeting this deadline.

Q: Does FERPA permit electronic consent and signatures?

A: Yes, as long the form identifies and authenticates a particular person as the source of the electronic consent and indicates such person’s approval of the information contained in the electronic consent.

Q: A teacher would like to conduct a parent-teacher conference but is working at home in the same room as a family member. Is it permissible for the teacher to conduct the conference?

A: Yes, as long as the teacher (1) does not disclose PII from the student’s education record during the conversation; or (2) moves away from the family member so the family member does not overhear the discussion; or (3) obtains prior consent in writing from the parent/student for the potential disclosure of PII to the teacher’s family members.  Teachers should make every effort to ensure that individuals residing with the teacher cannot overhear the conversation which may require relocating to another room or asking others in the household to relocate to another room.

Our office will continue to monitor federal and state guidance and legislation for further developments related to COVID-19.  If you have any questions, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.