We’ll take any ray of hope, no matter how small, at this point when it comes to being able to protect our children’s privacy. That ray came in a complaint finding letter issued November 2017 from the U.S. Dept of Education which reaffirmed

“A parent or eligible student cannot be required to waive the rights and protections accorded under FERPA as a condition of acceptance into an educational institution or receipt of educational training or services.”

The statement by the Family Policy Compliance Office was in response to a case filed back in 2012 (you gotta love the speed of public bureaucracy) against Agora Cyber Charter School, an online public charter K-12 school based in Pennsylvania. As part of enrollment, families were asked to sign off on Agora’s Terms of Use policy which included this gem:

by posting or submitting Member Content to this Site, you grant K12 and its affiliates and licensees the right to use, reproduce, display, perform, adapt, modify, distribute, have distributed, and promote the content in any form, anywhere and for any purpose.

Agora didn’t claim ownership of the student’s submitted work, but they did try to retain the unfettered ability to use it for their own corporate purposes such as marketing or product development. More concerning than children being used for free labor is the fact that the member content they refer to also included registration data, and other forms of student personally identifiable information (PII). They also tried to claim the right to share such data with“future employers of the student” without express permission.

FERPA states that “a parent or eligible student cannot be required to waive the rights and protections accorded under FERPA as a condition of acceptance into an educational institution or receipt of educational training or services.” But the charter school was on-line and in order to be able to use it you had to have access to Agora. For parents who worry that FERPA protection doesn’t apply when the parent CHOOSES to send their child to such a school, the FCO said,

While we agree that the Parent did, in fact, choose to enroll her child in Agora, rather than, for instance, a neighborhood school, such decision did not relieve Agora of its obligations to comply with FERPA, nor lessen the Parent’s rights and protections under FERPA.

According to USED, the Terms of Use allowed “near universal use and distribution by K12 and various third party affiliates and licensees of information that could have constituted her child’s PII from education records,” an outcome that constituted an unlawful “forfeiture of [the parent’s] rights under FERPA to protect against the unauthorized disclosure of PII from her child’s education records.”  The FCO determined that the Agora Terms of Use DID violate FERPA protections.

The FCO offered schools these two guidance documents to avoid the ambiguities and liability contained in the agreement between the district and the vendor.

In 2014, the Department issued guidance on this subject entitled “Protecting Student Privacy While Using Online Educational Services: Requirements and Best Practices” and then in 2015 issued the companion document entitled, “Protecting Student Privacy While Using Online Educational Services: Model Terms of Service.” These guidance documents provide substantial clarity to the education community on best practices for effectively establishing direct control over the use and maintenance of education records and the PII from such education records by third parties acting as school officials with legitimate educational interests in the online educational service context.

The upshot for parents is that no education supplier can require you to waive your FERPA rights in order to use their product. This applies not only to online schools but any software used by any public school so be sure to read any TOU’s your child is being asked to check the I Agree box for.

This should have Silicon Valley lawyers working to review and possibly change their skewed Terms of Use statements.

Anne Gassel

Anne has been writing on MEW since 2012 and has been a citizen lobbyist on Common Core since 2013. Some day she would like to see a national Hippocratic oath for educators “I will remember that there is an art to teaching as well as science, and that warmth, sympathy and understanding are sometimes more important than policy or what the data say. My first priority is to do no harm to the children entrusted to my temporary care.”

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