Coronavirus and Schools: One-on-One Virtual Instruction and Communications
We have received several questions concerning the provision of one-on-one instruction, related services, and other student contact (one pool member asked about teacher-to-student ‘wellness’ checks, intended merely to express concern and support rather than to offer instruction).
In particular, several of you have asked whether this form of contact should be recorded and retained as an education record. We have not advised that recording of group instruction delivered on ZOOM or similar platforms (for purposes of providing asynchronous access) should be considered or stored as a record subject to FERPA. We do, however, recommend recording and maintaining as a record one-on-one services and contacts. Sadly, we live in an age when the one-on-one interactions between adult staff and children can be misunderstood or misconstrued to the detriment of the staff.
Because recording the audio component of an interaction can potentially violate Pennsylvania’s Wiretap Act, we recommend notifying parents and students of the intent to record one-on-one contacts prior to doing so. The purpose of this recommendation is to provide notice—not to obtain consent. The Wiretap Act prohibits the surreptitious recording of conversations in which the person recorded as a “reasonable expectation of privacy.” The notice we recommend simply brings the recording above board, eliminating any argument that it was undertaken surreptitiously. The notice can take the following form and be provided by email or by general notice delivered to all families:
Some students will receive virtual services or other contacts from school staff on a one-on-one basis during this period of school closure. These contacts will be recorded and maintained as part of the confidential education record of the student. We will not allow access to or disclosure of any such recording in any manner inconsistent with the Family Educational Rights and Privacy Act (“FERPA”).