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In this post, we will take a look at what is potentially a large loophole in FERPA that has some obvious implications for school to prison pipeline issues.
However, I need to open with an enormous caveat. First, the FERPA brochure referenced in this post is from 2007. It is possible that these regulations have been updated over the last eight years. I searched in an effort to find updated versions, and asked other people if they knew of any more recent clarifications, and the closest thing I found from the Department of Education was this doc written after the Virginia Tech shooting. However, the fact that I didn't find anything more recent doesn't mean that additional clarification doesn't exist. If anyone reading this post knows of any more recent information on the use of surveillance cameras in schools, and how they are viewed under FERPA, please let me know either via email (bill at funnymonkey dot com) or on Twitter.
As the title of the 2007 brochure from the Department of Education indicates, the Department of Education is offering guidance on how to balance privacy of students with the security of schools, while complying with FERPA. The brochure highlights the role of "law enforcement units" - people or offices within the school who have been designated as having official responsibilities for enforcing laws, or communicating with law enforcement. FERPA specifically exempts records created or maintained by law enforcement units from protection under FERPA.
Under FERPA, investigative reports and other records created and maintained by these "law enforcement units" are not considered "education records" subject to FERPA. Accordingly, schools may disclose information from law enforcement unit records to anyone, including outside law enforcement authorities, without parental consent. See 34 CFR § 99.8.
As stated in FERPA, and highlighted here in this brochure, data collected or maintained by law enforcement units is not considered an educational record. Therefore, both parental and student rights over these records is limited.
The Department continues to offer the following advice (emphasis added):
Schools are increasingly using security cameras as a tool to monitor and improve student safety. Images of students captured on security videotapes that are maintained by the school's law enforcement unit are not considered education records under FERPA. Accordingly, these videotapes may be shared with parents of students whose images are on the video and with outside law enforcement authorities, as appropriate. Schools that do not have a designated law enforcement unit might consider designating an employee to serve as the "law enforcement unit" in order to maintain the security camera and determine the appropriate circumstances in which the school would disclose recorded images.
According to how FERPA is written, and based on the Department's own advice, schools appear to be encouraged to classify specific employees as "law enforcement units" to collect and manage data inside the school that is not protected by the specific law designed to protect data collected inside schools. This detail is odd on its own, but given that the stated purpose of this exemption is to stovepipe data sharing with law enforcement, this recommendation is highly problematic. Given that this FERPA brochure specifically addresses surveillance camera data, it remains an open question how this would affect the use of body cameras in schools.
In this Iowa school district, where it appears that principals and assistant principals will be wearing body cams to record interactions with students, it's unclear whether the data from the cameras is considered an educational record or not. However, in Houston, where all school resource officers will wear body cameras, it seems pretty clear that the officers - and all data collected via their body cams - are part of law enforcement units, and that the data collected by police within these schools will not be protected under FERPA.
We want kids to be treated as learners, not as the objects of surveillance. Creating a special class of employee and a special class of data that is collected inside yet handled outside the educational system seems destructive, and against the interests of learners. Mistakes are viewed differently by education and law enforcement. The broad exemptions granted under the auspices of a law enforcement unit provide ample opportunity for even well intentioned adults to make decisions that have long lasting negative repercussions for kids. The school to prison pipeline is real, and loopholes created by law enforcement units are part of the problem.