By D&K’s School and Higher Education Law Team
As part of Educator Effectiveness, student teachers in Wisconsin must create and submit to peer review video clips of the student teacher engaged in teaching activities. The video clips will capture the student teacher interacting with K-12 students in the classrooms of Wisconsin public school districts. Such video clips are clearly pupil records for the student teachers, but depending upon the images and audio captured, the video clips may also be pupil records for the K-12 student(s). Before a Wisconsin public school district allows a student teacher to video record himself/herself in a classroom interacting with K-12 students, it is advisable for the school district to establish some rules in order to protect K-12 students and to avoid liability.
In November 2012, the State Superintendent of Public Instruction Tony Evers approved the use of edTPA as a required element during student teaching and for Wisconsin licensure with mandatory implementation of edTPA occurring in September 2015. In a letter to school districts dated March 10, 2014, Dr. Evers explained that Department of Public Instruction (DPI) is committed to ensuring that all classrooms in Wisconsin have effective educators now and in the future. A part of that commitment is to make certain that all initial license applicants have completed a high performing educator preparation program and are ready to teach before they receive a license. A high performing educator preparation program includes providing a student teaching environment that will allow student teachers to complete the edTPA portfolio, which includes a video component.
Pupil records (or education records under the Family Educational Rights and Privacy Act (FERPA)) are defined as any record relating to an individual pupil or containing information directly related to the pupil, which is maintained by a school district. Pupil records include “any material on which written, drawn, printed, spoken, visual, or electromagnetic information is recorded or preserved, regardless of physical form or characteristics.”
Not all video clips are pupil records. According to the United States Department of Education, video surveillance of students walking down a hallway, riding the bus, or eating lunch in the cafeteria does not constitute a pupil record. However, if the video captures audio in addition to images and/or the video captures a student in an act, such as engaging in misconduct, participating in class performing a curricular or extracurricular task, or becomes relevant to a particular student for any reason, then the video clip is transformed into a pupil record. At that time, the school district has an obligation to maintain the pupil record and to protect it from disclosure without parental consent or statutory authority.
When a student teacher is interacting with K-12 students in the classroom, unless the video clip is created with special attention to avoid capturing information directly related to those K-12 students, such video clips are likely to be a pupil record for the K-12 students, and therefore, regulated by Wis. Stat. § 118.125 and FERPA. As a result, the school district may not disclose a video clip of a student without prior consent from the student’s parent. Disclosure would include allowing the student teacher to remove the video clip from the school district for purposes of peer review and/or playing the video for the student teacher’s professors and classmates.
In order to address this issue, DPI has warned school districts “that student teachers will be using a parent permission form to inform parents about the edTPA assessment and to ensure their child can be included in the video clip of the student teacher’s instruction.” DPI has not yet endorsed or issued a template form for student teachers to use. In August 2014, DPI issued its Frequently Asked Questions about Student Teaching and the edTPA in Wisconsin, wherein the following instructions were given to student teachers with regard to video clips:
Candidate should follow the procedures of the educator preparation program and school district to secure permission to video record during the student teaching placement. Classroom videos may be viewed only by school district personnel, education faculty, and official scorers or trainers; under no circumstances may they be shared or posted online, and candidates who violate this restriction may be denied a teaching license. Once permissions are secured, candidates should practice video recording before starting the edTPA to learn how to capture clear video and audio in a classroom setting and to get students acclimated to having a video camera in the room.
A school district may choose to create its own policy and/or parental permission form to address student teachers video recording classroom interactions with K-12 students. For example, a school district may wish to coordinate the notices provided to parents regarding pupil records disclosures, including directory data disclosures and military recruiter disclosures, with the student teacher video recording parental permission form. Additionally, the school district may wish to use the parental permission form to assure parents that a refusal to grant such permission will not impact the child’s education and other opportunities. The school district may also be interested in using the form to explain how the school district has taken steps to protect the students involved in student teaching videos.
Furthermore, student teachers are also expected to request the opportunity to utilize K-12 student work (i.e., homework assignments, in classroom tests, etc.) as “artifacts” to be reviewed by the student teacher and his/her professors in assessing the student teacher’s performance. The use of such “artifacts” presents additional pupil record concerns. As a result, the school district may be interested in using the parental permission form to address how the school district intends to handle such requests from student teachers.
Finally, a school district may want to consider entering into an agreement with the university(ies) or college(s) that places student teachers in the classrooms of the school district in order to establish the rules and parameters related to student teachers and the creation, maintenance, disclosure and destruction of video clips of the student teacher engaged in teaching activities. Davis & Kuelthau attorneys are already drafting such agreements for school districts and Wisconsin-based higher education institutions.