As schools continue to release and tweak their back-to-school plans, we’re getting a lot of insightful questions. Teachers are thinking about the safety and security of staff, students, and the community as a whole. Some schools will be live streaming and/or taping classes as they take place. We have received several questions on this new practice and are going to briefly address some of the key issues here.

One of the first laws that comes to mind is FERPA. When looking at FERPA and whether or not there is potential for a violation when live streaming/recording, our starting point is determining if an educational record is created. As a reminder, FERPA protects the release of educational records to non-authorized users. Class recordings are not student records, and therefore there is almost certainly not going to be a FERPA violation with this kind of practice. Further, the name and face of a child is likely considered directory information. Each district sets the rules on what constitutes directory information, so you’ll want to check on that. However, a FERPA violation is not likely to take place when people in the homes of students see the names and faces of other students.

While a FERPA violation is unlikely, we still need to be cautious. We want to make sure the live stream and recordings are only available to students and guardians of the institution. Password protecting material is essential. Secondhand recordings should be prohibited via school policy. Schools and teachers need to discuss how long the recordings will be available, and specifically who they will be available to. Procedures need to be created and followed to ensure proper uploading of classroom recordings. Staff need to have the ability to stop an upload of a class period if something serious takes place, such as a fight, that other students shouldn’t view.

Our final concern is evaluations and/or judgement of teachers through these recordings. The main purpose of recordings is to further the educational experience of students. If schools are going to evaluate teachers through these recordings, MSTA believes schools should add new policy language to clarify what the evaluation process would look like. Further, MSTA believes staff evaluations should consider the unprecedented nature of the current environment and should not be used in a punitive matter. The evaluation systems designed for in-person education are not applicable to environments where education is provided either completely or partially online.

If you have questions about FERPA, or another legal topic, don’t hesitate to reach out to the MSTA Legal Services Department at 866-343-6186, or e-mail us at legalservices@msta.org.

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