Coronavirus and Schools: Do Virtual Connections During COVID Closure Breach Confidentiality?
We are hearing that some attorneys are advising school districts that the use of online platforms such as Zoom and Google Meet to deliver virtual instruction to students with disabilities is a breach of confidentiality. Is this accurate?
We respectfully disagree with this advice. FERPA governs the privacy of personally-identifiable information in education records, not live instruction. Yes, persons other than the student who happen to be in the home into which virtual instruction is being broadcast can observe other students participating in that instruction and can thus discover the identities of other students receiving special education. The same is true, however, of a visitor to a brick-and-mortar school. As you know, parents of children with disabilities have the right to visit the classrooms of their children. During such visits, they can freely observe other children receiving special education instruction. That real-time observation of instruction would not constitute a disclosure of an education record in violation of FERPA.