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Educational Video and Protecting Student Rights

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Teachers are naturally skilled at improvisation and maximizing value from available resources. Those skills haven't disappeared as many school districts and universities continue to hold classes remotely. With many companies offering free-to-use educational technology products, especially video services, it's prudent to take some time to assess the risk of the tool you bring into your online classroom.

The most well-known, most poorly understood law impacting teachers when evaluating the risk of an educational technology product is FERPA, the Family Educational Rights and Privacy Act. It's a federal law that guarantees access to the educational records for the parents or guardians of minor students, while protecting educational records from everyone else —including the parents of adult students, who may be paying the students' tuition. Since the 2002 U.S. Supreme Court ruling in Gonzaga v. Doe, FERPA does not provide any enforceable individual rights. Students and families cannot sue a teacher or a school district for a FERPA violation; instead, they file a form with the Department of Education (DOE) describing the vio­lation. The DOE then serves as investigator, judge, and jury on the complaint. Its outcome is either a decision that the school acted in compliance, or, if it did not, the school is given specific instructions on how to remedy its non-compliance. If the remedies are not acted upon, the school can lose federal funding. Thus, FERPA is a critically important law for schools, and teachers play an important role in maintaining FERPA compliance. However, school administrators too often use FERPA as a blanket excuse to deny a teacher's attempt to use technology creatively.

Of utmost importance is having a clear definition of "education record," which the Department of Education provides: "those records that contain information directly related to a student and which are maintained by an educational agency or institution or by a party acting for the agency or institution." Both clauses are critical here: For information to be FERPA-protected, it has to be about a specific student, not aggregated over a group of students, and it has to be information that the school curates or contracts someone to curate on its behalf. Grades, attendance information, and registration information are all education records that cannot legally be shared outside of a school's designated communication systems. Since the Department of Education is the absolute authority on FERPA compliance, which shifts over time, it is extremely important to pay careful attention to its updated guidance over time.

There are privacy risks beyond FERPA that also need to be weighed. Anyone can sue anyone in the U.S. if quantifiable damages, as well as intent to harm or negligence to prevent harm, can be proven. Schools in most states confer limited qualified immunity on teachers and schools, both public and private, but the ease with which students can sue a teacher varies widely by jurisdiction: A search for "tort immunity" and the name of your state should get you headed in the right direction. (Or, check with your teacher's union or school's legal office.) My advice is to avoid making students record themselves on camera for schoolwork, especially when the video is hosted by a free service, where the terms of service routinely provide a perpetual, irrevocable, royalty-free license to the platform for all user content. It's best to give students a way to complete their work without revealing their living conditions, which could arguably lead to damages.

By far, the greatest risk factor is accessibility for disabilities, both sensory and cognitive. The primary federal regulations are the Americans with Disabilities Act (ADA) and the Individuals with Disabilities Education Act (IDEA). The most common way that K–12 schools comply with IDEA is through Individualized Education Programs (IEPs) negotiated between schools and a student's family. Staying within the agreed guidelines of your students' IEPs and making a good-faith effort to maintain contact with their families are the best ways to avoid having your creative classroom activities cause legal risk for you or your school.

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