Missouri school boards ask ED to clarify FERPA guidance on video recordings

A number of groups submitted comments to the U.S. Education Department to revise the Family Educational Rights and Privacy Act regulations as part of a departmentwide regulatory review to identify rules to keep, modify, or rescind under President Trump’s Executive Order 13777 Enforcing the Regulatory Reform Agenda.

The Missouri School Boards’ Association submitted suggestions on Aug. 21 that included requests to revise FERPA to specifically address video recordings under 34 CFR Part 99.

MSBA Executive Director Melissa Randol said video recordings have become “ubiquitous” in public school districts — from security cameras installed in buildings and on buses to school events such as graduation and athletics that are frequently recorded.

Video is also incorporated into classroom lessons, and images are used on district websites and in social media, she noted. What’s more, video is harnessed for professional development and evaluation purposes, the comments said.

That said, Randol mentioned that ED “has yet to adopt specific regulations or guidance interpreting FERPA with the unique issues involved with video recording, leaving districts to guess how the Department would apply the regulations.”

“MSBA encourages the Department to review and revise the FERPA regulations to provide more specific guidance to school districts on when pictures of students caught on video recordings may be released,” she said.

Specific guidance

According to the feedback, the group asked for specific guidance on the following scenarios:

Example 1: Two students get into a fight, which is recorded on a bus or building security camera. The recording is used as a disciplinary record for both students and both students are disciplined. The parents of each student demand to see the recordings. The district does not have the technology or expertise to obscure the faces of one student so that the parents of the other student may view the recording. Neither parent consents to the release of the recording to the other parent. Can the district legally allow either parent to view the video of their child’s misbehavior if it discloses the misbehavior of the other child they were in a fight with?

Example 2: State statute requires school administrators to report all criminal assaults to law enforcement. Two students get into a fight, which is recorded on a building security camera. District administrators did not witness the fight, so they rely on the recording to discipline the students and then call the police. By calling the police, the district discloses information contained in a student’s education record. The information is used by law enforcement to prosecute, not serve, the student. Does this disclosure violate FERPA?

Example 3: The district includes in its annual notice a definition of “directory information” that includes video recording and pictures. A parent notifies the district that he wants to his student excluded from directory information disclosures. The district routinely records the football games and provides a link to the recording on the website. The student whose parent opted out of directory information attends the football game and appears in the recording. The district does not have the technology or expertise to obscure the faces of one student. Does the district violate FERPA if the district posts the recording on the website with the image of the student in the crowd?

Online comments on Docket ID: ED-2017-OS-0074-9584 must be received by Sept. 20 on the Federal eRulemaking Portal.

Emily Ann Brown covers education technology and STEM education issues for LRP Publications.

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