Is Your Use of Social Media FERPA Compliant?

Perry D. Drake is assistant professor and academic director, Social and Digital Media Marketing, University of Missouri–St. Louis.

It is hard to imagine holding a university-level class today in which students do not engage with the web or social media in one form or another, whether by using Google search, bookmarking or sharing an article, taking an online survey, posting or commenting on a blog, or using e-mail or text messaging. So, what rules should we, as instructors, follow to ensure no legal or Family Educational Rights and Privacy Act (FERPA) issues arise?

Context: Social Media Use

A May 2013 study of teen and adult Internet usage by Pew Research shows that teen use of social media and the web is much higher — and different — than that of adults (see figure 1). Also, as figure 2 shows, girls tend to use social media more frequently than boys, implying different levels of engagement are likely to occur within the classroom based solely on gender.

Even more interesting, the study compared the new findings with those from 2006 and found significant increases in what teens reveal about themselves publically:

• 91 percent post a photo of themselves (up from 79 percent in 2006);
• 71 percent post their school's name (up from 49 percent);
• 71 percent post the city or town in which they live (up from 61 percent);
• 53 percent post their e-mail address (up from 29 percent); and
• 20 percent post their cellphone number (up from 2 percent).

Further, the study also found that

• 92 percent post their real name to the profile they use most often;
• 84 percent post their interests, such as their favorite movies, music, or books;
• 82 percent post their birth date;
• 62 percent post their relationship status;
• 24 percent post videos of themselves;
• 58 percent share inside jokes or cloak their messages in some way;
• 26 percent post false information, such as a fake name, age, or location to help protect their privacy; and
• only 9 percent are very concerned with third-party access to their data based on the top of five Likert choices.

As the Pew research indicates, teens are heavy users of social media and apparently are not overly concerned about giving out sensitive personal information. Instructors, however, cannot be so carefree about releasing their personal data. We must be very careful — not only with what we release about our students socially, but also with what we release about ourselves.

FERPA aside, we must protect our personal persona because we are viewed as a role model by our students. In October 2013, for example, a teacher in Port Charlotte was removed [http://www.winknews.com/Local-Florida/2013-10-22/Port-Charlotte-teacher-in-trouble-over-explicit-Tweets] from his classroom for tweeting out his personal — extreme — views on religion and drug use. Among the problems here were that many of his students followed him on Twitter. With social media, the distinction between our personal and professional lives becomes blurred.

The Price of Free

Social media such as Facebook, Twitter, and Snapchat typically entails no direct financial cost for users. But what is the price of free? Lack of privacy. Although most social media and content sites are free, they do need to monetize, and they do it by pushing ads to users and selling their users' data to advertisers to better target them. That is the price of free.

We must realize that nothing we do on the web is private — not the searches we enter, the places we visit, or the articles we read. All of that data is captured and shared with ad networks, content developers, aggregators, and so on. Companies like Datasift, for example, partner with social networks and news providers across the web to consolidate billions of social conversations into a single platform; this gives company clients complete and compliant access to each user's social data and allows for targeted and intimate conversations and offers.

That being said, a private communication with a student might not be so private — and, that, in turn, could violate FERPA.

FERPA: What's Protected?

FERPA was designed to give students

• access to their education records,
• an opportunity to seek to have the records amended, and
• some control over the disclosure of information from the records.

Generally, schools must have written permission from the parent or eligible student to release any information from a student's education record. These records directly relate to the student and are either maintained by the school or by a party or organization acting on the school's behalf. Such records might come in the form of written documents (such as student advising folders); computer media; microfilm or microfiche; video, audiotapes, or CDs; film; or photographs.

In terms of content, student records include grades, class lists, schedules, disciplinary records, financial aid information, and payroll information. The record does not include personal "sole possession" records, medical records, alumni information, personal observations, peer-graded papers, or law enforcement records.

Examples of situations affected by FERPA include school employees divulging information to anyone other than the student about the student's grades or behavior, and graded school work being posted on a physical bulletin board. In the digital world, this implies that we are not to post grades or comment about a student's grades on Facebook, Twitter, a blog, a discussion forum, or any other social media property where others could see that grade.

Scenarios and Guidelines

Let's go through some scenarios of what "digital and social media" communications would be considered a sole position record or an educational record according to FERPA. It does get confusing, so examples will best serve and facilitate this discussion and your understanding.

The following scenarios offer guidelines and further insights.

Scenario 1: A Handwritten Note

A professor writes a note on a pad of paper about a student's behavior in class (good or bad). Would the student have the right to gain access to that document under FERPA?

Because this is a "sole possession" document (whether on paper or electronically on the PC), it does not fall under the definition of a student record. Therefore, a student cannot use FERPA law to force a university to produce that document.

Scenario 2: E-mail

Two professors exchange e-mails about the performance of a common student. Could the student ask to see this legally under FERPA?

Such a document would not be considered an educational record because it is not maintained by the university. Sole possession does not hold here because two faculty members are involved.

Two court cases further illustrate this point.

A 2009 California case,¹ for example, sided with the school after a student tried to sue after his school refused to release e-mails under the Individuals with Disabilities Education Act. The IDEA requires schools to release records to students that fall within the definition of "education records" as defined by FERPA. However, the court found that e-mails are not educational records under FERPA because they are not maintained by the school unless somehow placed in the students file.

In another case,² this one in Florida, a professor released from teaching duties asked his college to see an e-mail between a former student and his supervisor. The college fought this on the grounds that the student is protected under FERPA. The court overturned the college's decision, ruling that an e-mail is not a student record and must be released to the professor.

 

Scenario 3: Blog Post and Comment

A student creates and posts a blog to fulfill a class assignment. Could this blog ever be considered an educational record?

The university would not maintain the blog, so it cannot be defined as an educational record. However, by having students post blogs, the instructor risks inadvertently asking students to reveal their class schedules and other data that is protected under FERPA. It is thus always important to ensure that your students know what you are asking of them. A simple solution in this case is for the instructor to give students a lesson on how to make their blogs private.

Now, let's say a professor publically comments on a student's blog post. Is this protected under FERPA?

As long as the professor is not commenting on the grade the student will receive for the blogging assignment, the comment poses no issues under FERPA. But, as usual, be careful what you post!

Scenario 4: Text Messaging

A professor and a student exchange text messages. Is this protected?

Again, because the texts are not maintained by the university, they cannot be declared an educational record. However, you should always be careful about what is included in the text, regardless of how private the service might seem. The odds are slim, but digital transmissions can be intercepted!

Scenario 5: Tweet and Response

A student tweets to a professor. Is this protected under FERPA?

Absolutely not.

A professor publically tweets back to the student in response. Protected in this case?

Again, as long as the professor is not discussing a grade or other FERPA-protected data, no compliance issues exist. But, as always, be careful what you post!

Scenario 6: Foursquare

A professor asks students to check in using Foursquare during class and comment on what they are learning. Are there potential FERPA issues here?

This scenario could easily give rise to issues, because Foursquare is a GPS "check in" service that notes the user's location. As in Scenario 3, it is again crucial that students know what you are asking of them. If any students are concerned about revealing their location, you could give them the option of sharing their comments in another way, such as by tweeting them.

General Guidance

In relation to FERPA compliance and social media, there are two things to always keep in mind:

1. When using Twitter, Facebook, or other social platforms, never reveal information about students that might indicate their grades, course enrollments, class schedules, and so on. Doing so could be noted as a FERPA violation if called out by the student.
2. We must realize what is and is not subject to "inspect and review" regarding our actions with others and students. Any document or communication (digital or not) that is considered an educational record for purposes of FERPA is subject to the "inspect and review" privilege by the student.

If you play by these rules, you should be safe and in compliance.

Don't Lose the Spontaneity of Social

Social media is all about being in the moment, having real-time interactions, and sharing with others. If your classroom rules are too restrictive, you can't naturally and fully take advantage of what social media has to offer. Still, it is important to be initially cautious and make sure you get to know your students before you begin engaging with them on social media to any great extent.

I follow six rules for classroom social media engagement:

1. From day one, tell students exactly how you will be using social media in the classroom.
2. Offer options such as using an alias for students concerned about privacy (this might be difficult if you are teaching a Social Media and Communications class).
3. Be careful not to reveal personal data about students or openly correct them or make them feel awkward on social platforms.
4. Have students send any "friend" or contact requests.
5. Never initiate a one-on-one social conversation.
6. If a student begins a social dialogue with you, it really cannot be classified as an educational record, but you still must be careful about how you respond.

At this point, there are no clear-cut FERPA rules regarding the use of digital media and social sites for student communications and interactions. In general, however, your best bet is to be open with your students, hear their concerns, and use care when interacting with them socially.

1. Jackie Wernz, "Are Emails, Texts, Tweets, and Other Digital Communications Student Records Under FERPA and State Law?" Education Law Insights, JDSupra Business Advisor, February 20, 2013.
2. Bailey McGowan, "Florida Colleges Ask Court to Revisit FERPA Case Involving Student Who Complained About Professor," Student Press Law Center, September 11, 2012.