Legal Brief

The Legalities of Classroom Apps
By DAVID B. RUBIN/School Administrator, March 2019

THE $9 BILLION educational technology industry spawned a host of innovations to improve teacher performance and student engagement, including a wide array of classroom apps. It’s no wonder that teachers’ use of classroom apps has proliferated in recent years. They’re easily accessible, low to no cost and instantly useable.

In many school districts, however, teachers bring this software into their classrooms with no prior knowledge or approval of their supervisors. This is not a criticism of dedicated teachers who surf the net on their own time looking for tools to up their game. The educational technology producers haven’t helped matters by circumventing school district procurement procedures and marketing their products directly to teachers. The problem is that the use of this technology has significant legal implications that all educators should bear in mind.

To begin with, the classroom apps your teachers are using may be undercutting your district’s approach to academic and social-emotional learning. Behavior management apps, in particular, often incorporate assumptions about what motivates students that may be in direct conflict with your schools’ philosophy.

In New Jersey, where I practice law, the courts have held that teachers have no legal right of academic freedom to teach whatever they please. The same holds true for the use of classroom apps that don’t reflect your school district’s educational values.

Allowing indiscriminate use of these apps by teachers also may run afoul of your district’s procurement practices. Most teachers don’t realize that by accepting a vendor’s terms of service they may be miring themselves in a complex web of legal rights and responsibilities well beyond their comprehension. Depending on your state’s public contracting laws, they also may be creating legal exposure for the district.

Privacy Violations
But by far the most significant legal concern is the protection of student data privacy. Many classroom apps collect, store and share sensitive data about your students. That information does not remain trapped inside the teacher’s handheld device. Rather, it is electronically transported elsewhere. There is no “cloud” — it’s just someone else’s computer.

The federal Family Educational Rights and Privacy Act generally prohibits sharing students’ personal data with third parties without their families’ consent. Another relevant federal statute, the Children’s Online Privacy Protection Act, requires operators of online services, including mobile apps, to notify parents and obtain their consent before collecting personal information on children younger than 13.

Some states have adopted even stricter statutes. Teachers are in no position to determine for themselves whether a particular app complies with these laws.

Protective Lingo
These problems are not insurmountable. FERPA has a “school official” exception that allows districts to share student data with educational technology firms performing functions the district ordinarily would perform for itself, as long as the district exercises control over their use of the data and the tech firms are barred from disclosing this sensitive information to others.

School districts routinely invoke this exception to contract with cloud storage services. The difference is that when the district itself is involved, the vendor usually has been checked out by the district’s instructional technology staff to ensure appropriate data security measures are in place and protective language has been included in a contract reviewed by legal counsel. None of those protections exist when teachers acquire classroom apps on their own.

Legal concerns should not discourage your district from enjoying the benefits of classroom apps. The key is to harness the power of this technology without compromising your district’s educational values or violating student privacy rights.

One solution is to allow your teachers to select apps from a preapproved list that your curriculum, information technology and legal teams have reviewed for educational appropriateness and FERPA/COPPA compliance. For other best practices, consult your district’s legal counsel, who can offer further guidance tailored to the laws of your state.

DAVID RUBIN is of counsel to the Busch Law Group in Metuchen, N.J. Twitter: @dbresqnj