ARTICLE DETAIL

March 27, 2018

Know Your Terms of Use: Steps to Take When Contracting With Third Party Online Education Tools

By: Toni Norris, Law Clerk

Technology has become an integral part of public education as we know it.  With advancements in technology steadily progressing throughout society, the use of electronic resources continues to extend further into classrooms and school systems as a whole. The increased use of online educational tools as a part of the learning program in and outside the classroom has heightened the need for precautions related to protecting students’ personally identifiable information. As these tools launch classrooms into the digital age and expand students’ abilities to learn, develop content, share information, and gain critical skills, it is important to consider protecting students’ data, securing students’ privacy and maintaining the trust of parents. Recently, the Family Policy Compliance Office (FPCO), designated to investigate, process, and review complaints under the Family Educational Rights and Privacy Act (FERPA) has been giving greater attention to the practice of contracting for education technology services.

While there may be exceptions to FERPA requirements, parents and eligible students cannot be required to waive their rights and protections accorded under FERPA as a condition of acceptance into an educational institution or receipt of educational services.

In a recent letter to Agora Cyber Charter School, the FPCO found that Agora violated the legal requirements set forth in FERPA, by using a third party educational service which required parents to forfeit rights under FERPA and agree to terms of use in order to participate.  More specifically, a parent of an Agora student contended that as a condition of her child’s receipt of certain educational services at Agora, she was forced to agree to the “Terms of Use” governing the services of Agora’s online educational tool contractor.  The contractor’s Terms of Use, required that all users accept the Terms of Use as a condition of membership to the service.  Agora, then also denied the parent’s request not to use the contractor’s Terms of Use.  Thus, Agora required the parent’s acceptance as a condition of the child’s attendance at, and receipt of educational services from, Agora.

The contractor’s Terms of Use required the parent to agree that “by posting or submitting member content to this site, you grant [the contractor] 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.”  As written, the Terms of Use would have allowed the third party contractor and various affiliates to potentially distribute students’ personally identifiable information.  In effect, the Terms of Use required the parent to forfeit her rights under FERPA.

When using third party online education tools, here are some important things to keep in mind:

  1. Maintain direct control

While FERPA does not require a written agreement between an educational agency and third party provider, having a contract helps establish direct control over the provider. Furthermore, as demonstrated by Agora, it is important to review the contract or terms of use agreement with the provider and tailor it to satisfy the “direct control” requirement.  It is the school system that is governed by FERPA and therefore its responsibility to make sure FERPA is not being violated, not the third party provider.

  1. Be transparent

The Department of Education encourages school districts to be as open as possible with parents and students. Inform all relevant parties of their rights under federal and state laws and clearly explain how, when, and with whom student data is being shared. Even where consent may not be required, schools should consider whether it is appropriate.

  1. Research and Maintain Awareness

Researching and evaluating educational service providers allows for privacy and security concerns to be adequately considered. Keeping a running list of the online educational services being used within your school system further allows officials to evaluate which services are most effective, but also actively exhibits what information is being shared with providers.

 

            Protecting student data and monitoring online tools is an ongoing process.  It is not only important to stay current on relevant laws and practices, but also to review each online educational tool individually.  The effective use of online educational resources depends on the proper implementation by the school system.

PK Law’s Education Group represents a number of public and private employers on labor and employment issues. The majority of the Group’s practice involves the representation of public school boards across the State of Maryland as well as a number of public and private higher education institutions and private schools. For additional information click HERE or contact information@pklaw.com.

Toni Norris s a law clerk at PK Law. She is currently completing her third year of law school at the University of Maryland Carey School of Law and has accepted a position as an associate at the firm upon graduation.