Reaching Students Digitally and Legal Compliance

Thursday, Governor Parson announced that Missouri schools will remain closed for the rest of the 2019-20 school year. As educators begin to adjust to the new normal during extended school closures related to the COVID-19 pandemic, continuing to educate students raises many questions regarding virtual learning, access, and compliance with policies and the law. Teachers will be increasingly “reaching” into the homes of students in a variety of ways that are not typical or contemplated by current policies.

 

This post seeks to answer some questions we have been pondering over the last few weeks. There is a separate post dedicated to IDEA and Special Education issues located here: http://edcounsel.law/2020/04/02/special-education-considerations-amidst-covid-19-closures/

 

Staff/Student Relations & Electronic Communication Policy Compliance

 

Most districts have detailed policies regarding electronic communication with students. The framework of these policies is, of course, dependent upon the concept that students will be interacting with educators in the brick-and-mortar environment, and are meant to be slightly restrictive when it comes to electronic communication with students in order to reduce risk of inappropriate communication. In our new environment of remote learning, diligent and well-meaning educators may find themselves running afoul of policy in their efforts to make meaningful connections with students in order to enrich and enhance learning.

 

Most elements of Staff-Student Relations and Electronic Communications policies remain appropriate. For instance, restrictions on the time of day that communications are appropriate, and restrictions regarding the subject matter of communications, ensuring that such communications are educational in nature, are still critical in order to maintain appropriate boundaries between staff members and students. We encourage you to look closely at policy language that relates to a few issues:

  • Methods of Communication: It is likely that your policy indicates that employees should use a District-approved or District-provided methods of electronic communication to contact students. As you may be discovering, educators are thinking of all sorts of creative ways to reach and communicate with students right now. In an effort to encourage positive contact and accessibility, the District can expand what methods are deemed to be “approved” and inform your staff of what new platforms are appropriate, while reminding them of the requirements and professional boundaries associated with electronic communication. Staff members should also be informed that in order to use methods/platforms that are not pre-approved, they should first seek administrator approval. We recommend that the administration ensure that parents/guardians receive notice of methods and platforms that are approved in order to ensure that all parties involved in electronic communications are aware of what is and is not appropriate pursuant to your district’s standards, which may also raise awareness in the event that inappropriate communications take place. One possibility to reduce potential for missteps would be for staff members to pre-record communications or lessons for students and make them available instead of communicating in real time.

 

  • One-on-One Electronic Communication with Students: As we know, individual communications with students can be fraught. Some districts’ policies prohibit this type of communication entirely. If your policy prohibits one-on-one electronic communication, and your administrative team determines it is necessary in order to promote distance-learning, you may wish to consider a temporary change to your policy in order to achieve specific educational purposes during school closure this spring. If your policies do not prohibit one-on-one electronic communication, it is likely that the policy does require that supervisors approve any such arrangement prior to the communications taking place. We suggest that you notify staff members of your policy requirements, develop a method for seeking approval from staff members, and create a list of appropriate methods of one-on-one communication that may be approved. Staff members should be informed to keep a record of their electronic communications with students. For written communication, those communications should be maintained in their entirety and/or include an administrator. For video communication, staff members may wish to involve an administrator in such communications or work with an administrator to determine how best to create a protected/monitored virtual environment for both staff and student.

 

FAQs About How to Comply with FERPA in a Digital Setting

 

Q: Is a lesson on Zoom or Google Meet/Hangout a violation of FERPA? What if the link is public? What if the link is hidden and shared only with students/parents?

 

A: Unless the lesson is pre-recorded and there is no interaction with students, the ability to access the lesson should be protected in some way – e.g., requiring students to log on to a site or app and limiting access to students only, or using a site or app that allows the teacher to monitor who is viewing in real-time. If the teacher is simply recording the lesson and then sharing it through these services, without students having the ability to speak or otherwise interact with the teacher, then FERPA does not come into play, assuming no student information is shared. If the lesson is not pre-recorded and students will be able to interact with the teacher, then access to the lesson should be protected in some way to ensure that only students in the class (and potentially their parents) have the ability to participate in the lesson. This would be similar to a situation where in-person instruction is being given in a classroom.

 

Regardless of how a lesson is provided (recorded or in real time) teachers should not disclose personally identifiable information (PII) from a student’s education records during any lesson. A student asking a question and a teacher giving an answer likely would not constitute disclosure of PII, but discussing students’ grades or performance would be.

 

Q: Can we record a real time lesson showing other students participating so it can be watched by others later?

 

A: If a lesson is for all students in the class, it can be recorded and made available for students to watch later as long as the restrictions on disclosing PII from education records are followed. It may also be advisable to record any online real time lessons so that students who miss will have the ability to watch them later, unless the teacher is willing to give one-on-one instruction to a student, in order to avoid an argument that students are not being provided equal access to the content. Postings of recorded lessons should still be protected from unauthorized access in the same way access to the live lesson is protected, so that only students in the class can view it. For example, the lesson should not be posted publicly to YouTube if it shows students from the class as participants. Teachers should advise students (and parents) that they are not to record the lessons themselves.

 

Q: What if parents have signed the FERPA directory information opt-out form? Does that mean a student cannot participate in a virtual lesson?

 

A: No. If there are students whose parents have completed this form, there still should not be an issue with virtual learning so long as the steps described above are taken regarding limiting access to the online lessons. Only those students (and their parents) in each class should have access to the lessons – so, again, no recording and posting to YouTube should be done in a manner that depicts students involved in the lesson.

 

Copyright Concerns

 

One topic of recent interest is what risks may be associated with educators using virtual platforms to read or otherwise present copyrighted material to students. Teachers across the country are reaching students by reading to them online. Increasingly, these videos are made available via platforms like Facebook Live and Instagram TV. Though a complaint might be rare, educators should be aware of potential copyright issues and determine the best methods and platforms for delivering copyrighted content. Under usual circumstances, there are no concerns of copyright violations when a book is read during face-to-face instruction, as that is one of the exceptions to the Copyright Act. When it comes to doing so virtually though, things get a little trickier! There is an exception for virtual instruction under the TEACH (Technology Education and Copyright Harmonization) Act, which is a part of the Copyright Act, which allows for digitally transmitting class materials to students. This exception comes with a list of requirements educators and administrators should be aware of in order to comply with the law:

 

  1. Materials can only be digitally transmitted to students officially registered in the course.
  2. The performance or display of materials must be an integral part of the class session.
  3. The performance or display of materials must be directly related to the teaching content.
  4. The performance or display of materials must be comparable to what takes place in a live classroom setting.
  5. The performance or display is made by, at the direction of, or under the actual supervision of the instructor.
  6. The materials are available to the students only for the duration of the class session.
  7. To the extent technologically possible, technological protections have been implemented to prevent students from retaining and further distributing the course materials.
  8. The materials must contain a notice stating that they may be subject to copyright protection.

 

Increased risk of a complaint by the copyright holder arises if staff members use Facebook Live or a similar streaming method, because as you have likely deduced, it’s unlikely that the TEACH exception explained above would apply unless all of the above requirements are met. If you are familiar with Facebook Live and IGTV, it is difficult to limit the access to a video by other users of those social media sites. Instead, educators would have to rely on a different exception to the Copyright Act: Fair use.

 

In order to make a fair use argument, four factors are necessary to examine. To avoid nerding out on that analysis, what you need to know is:

  • Educational reasons generally favor fair use. (Check that box in our favor!)
  • Creative works that are copyrighted, like stories in books, are more protected due to their nature. (That’s not weighing in our favor for broadcasting read-alouds virtually.)
  • How much of the copyrighted work is being used is also a factor. (The more of a story book, for instance, that is read, the more it weighs against the concept that it is “fair use.” It’s a little anti-climactic not to read the whole book, but doing so doesn’t weigh in favor of fair use.)
  • How the intended use impacts the market for the work is also considered. (Does broadcasting the read-aloud negatively affect the sales of the book? This could go either way, in that reading a book to students could certainly encourage them to purchase it themselves, or, if a recording is available to be listened to at any time going forward, that could arguably discourage a desire to purchase the book.)

 

How can we build the best protections for educators who just want to read to kids? First, educators should check the website of each book publisher, if works are still copyrighted and not in the public domain. In response to the COVIF-19 pandemic, many large publishers are temporarily altering their policies and providing guidance to educators about acceptable virtual use. For works that are not in the public domain, and that do not have a publisher who is electing to allow more flexible use, educators should consider reading portions of a book, and connecting those portions of a book to a lesson, and limiting the audience to the extent possible by using a closed platform and limiting the amount of time a recording is available for viewing, in order to make the best fair use defense to a copyright claim.

 

CIPA and COPPA and Bears, Oh My!

 

Even MORE federal regulations come into play when it comes to schools, students, and technology. CIPA, the Child Internet Protection Act, requires districts utilizing e-Rate funds, to ensure the following internet filtering for all connected devices to guard against access to visual obscenities, child pornography and material that is harmful to minors. Your district’s acceptable use policy (AUP), agreements between your district and technology vendors, and the filtering tools you have in place likely create these necessary safeguards. But how does this look different when students are learning from home? To the extent that students are using district-owned devices like laptops, Chromebooks, and mobile hotspots, the district must continue to ensure that the devices are equipped with CIPA-compliant filters. Further, districts remain responsible for monitoring student activity to ensure security for minor students (under the age of 17) when using email, chat, and other communication functions.

 

In addition to CIPA, the Children’s Online Protection and Privacy Act (COPPA), puts a burden on districts to ensure that student information is protected in the use of online programming. For vendors that your district use on a regular basis and have an existing agreement or contract with, the COPPA requirements related to the privacy of student data are likely addressed within any such agreement, and/or within your district’s internal practices related to data encryption and internal practices regarding access to student data. For new platforms, this can be trickier. For instance, a quick check of the Zoom website, led us to a page specifically about the use of Zoom for K-12 schools and how Zoom addresses COPPA. (That page is located here, if you’re interested: https://zoom.us/docs/doc/School%20Administrators%20Guide%20to%20Rolling%20Out%20Zoom.pdf) Of note, Zoom recommends that students not create their own Zoom accounts (because minors are not permitted to create accounts) and should be accessing Zoom as a participant in a school subscriber’s account. Secondly, Zoom places the burden on districts to ensure appropriate parental consent is obtained to allow student access: “Zoom relies on you to obtain consent from parents for their children to use the Zoom services. Your organization should be able to demonstrate compliance with the parental consent requirements contained in the Children’s Online Privacy Protection Act (“COPPA”) and other applicable laws.” We mention this not specifically because Zoom has unique provisions, but in an effort to demonstrate that many other vendors may take similar approaches therefore administrators should engage in close review of current policies, parental notices and permissions, and vendor agreements and requirements before engaging with new vendors.

 

As we are all experiencing, the tides are unpredictable right now, and things change by the day, and sometimes the hour. EdCounsel is here to continue to provide guidance and support as you work through practical concerns in order to be innovative in providing support to your students and educators.