Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.
Dear Legal Mailbag:
I am one of the assistant principals at my high school and I share the duty to oversee the athletic program with my principal. Over recent years, there has been a steady increase of parents using small video cameras, iPads and even cell phones to record images of athletic competitions and, sometimes, even practices. As I have observed the growing practice, I would shrug my shoulders and figure that no one, least of all me, can stand in the way of progress, and my principal seemed not to care much either.
Last week, that changed. My principal got an email from an irate parent of a student athlete, outraged that another parent had posted video excerpts of a soccer match at our high school on his Facebook page. It didn’t help that the son of the complaining parent was the goalie, and that the video clip showed the son diving clumsily and unsuccessfully at the ball as the other player scored the game-winning goal. My principal is a survivor, and he saw no good coming from his getting in the middle of these two parents, and in the best management tradition, he dumped the problem on my lap to “figure it out!” Being a good soldier, I accepted the assignment.
I did a bunch of research and I concluded that the posting of the video by the second parent was a FERPA violation because the goalie’s face and identity were clearly visible and, as such, the recording was personally-identifiable information about the goalie. I called the parent who posted the video and directed him to take down the video. I was gratified by his prompt agreement, but I was surprised by his claim that he was doing so as a courtesy, and not because he had to. I asked him if he knew what he was talking about, and he assured me that he did, gratuitously adding that he could not say the same for me.
What nice parents you have in your district! Legal Mailbag is sorry to inform you that the parent is correct (and you were wrong) because the video-recording is not a FERPA-protected record. The Family Rights and Privacy Act (FERPA) prohibits officials of school districts that accept federal funds from disclosing personally-identifiable student information in student records maintained by the school district. Your analysis is flawed because the record in question (the video-recording) was created and maintained by the parent. Unless and until you or the school district more generally receives a copy of the video-recording, there is no FERPA issue because the recording is not maintained by the school district.
To complicate matters further, if you or the district were to receive a copy of the record, there would still be no FERPA issue with the parent’s action. He, not school officials, can still disclose the record as he sees fit, because the parent is not a school official. Indeed, even the school district may be able to share the record under certain circumstances. FERPA provides that school districts can define as “directory information” records that would not generally be considered harmful or to be an invasion of privacy if disclosed. When records are so defined, school officials may share the record without obtaining parent (or eligible student) permission unless, after receiving the required annual “FERPA notification,” the parent (or eligible student) elects to prohibit the disclosure of directory information as to his or her child.
Legal Mailbag does not mean to suggest that you are totally helpless in this situation. Legal Mailbag believes that a school district can prohibit the recording by parents or others of student athletic events on school property (though Legal Mailbag is not aware of any administrative or court rulings so holding). But the practical issues of enforcement (and related parent resentment if they are told that they cannot record their child in an athletic competition) convince Legal Mailbag that such a prohibition would be unwise.
Now that you know what Legal Mailbag knows about FERPA, what do you think?