As school districts implement plans to conduct virtual graduation ceremonies over the next month, there are a few legal considerations to bear in mind relating to student privacy, parental consent, and copyright. 

 

 

    The Family Educational Rights and Privacy Act (FERPA) generally prohibits the release of any personally identifiable information about a student. 

 

• School Districts that have adopted a policy describing directory information and permitting its release may reveal limited information about a student without receiving prior consent, as long as the district allows students to opt out of sharing directory information. 34 C.F.R. § 99.3; see also TASB Board Policy FL (LEGAL). 

 

• In general, student information shared at as part of a graduation program would likely be considered directory information. 

 

• Examples of directory information include a student's name, photograph, dates of attendance, enrollment status, participation in officially recognized activities and sports, and honors and awards received, among other information. 34 C.F.R. § 99.3. 

 

 

    Many districts may plan to record a virtual ceremony to make it available for viewing by friends and family. 

 

• Under U.S. Department of Education guidelines for photographs and video recordings, a recording of the ceremony is not likely to be considered a student record, unless a particular student or small group of students is the focus of a video or photograph. 

• Under TEA’s recently-issued guidance on graduation ceremonies, no more than five individuals may be in close proximity for a photograph or video recording, so many photos and video from hybrid virtual ceremonies may relate directly to a student. However, many districts seek parental consent to use images of a student’s likeness when a student enrolls in the district, and this consent would likely also apply to virtual graduation ceremonies. 

• In addition, many districts designate photos of students taken at district events as directory information in board policy FL (LOCAL). 

• Finally, while Section 26.009 of the Texas Education Code requires parental consent for video recording of students, a graduation ceremony would likely fall within the exception for cocurricular and extracurricular activities. 

 

 

    For any students who have opted out of the release of directory information under FERPA, the district should obtain a waiver so that the student can participate in the graduation ceremony. 

• The waiver should include a provision allowing the district to announce the student’s name and any honors or awards, and also obtain consent for the district to record the virtual ceremony for future viewing. but would still require waiver for any students who have opted out of the release of directory information. 

 

 

    For districts planning to have a school choir or band participate in a virtual graduation ceremony, keep in mind that the exceptions for online instructional use of audiovisual works would not apply to a performance at a virtual graduation ceremony. 

 

• School districts must use works in the public domain, or acquire the rights (or permission to use) any works performed if the ceremony will be transmitted to members of the public.