Texas Education Agency
Robert Scott, Commissioner of Education
William B. Travis Building
1701 North Congress Avenue
Austin, TX 78701-1494

Phone: (512) 463-9734
Fax: (512) 463-9838
TTY: (512) 475-3540
Email: teainfo@tea.state.tx.us or commissioner@tea.state.tx.us
Website: http://www.tea.state.tx.us/

…if you just send it to your district attorney … they’ll say not to use it because that is the easy legal way out and ensures that they keep their job too! (even if that’s not the best educational option). Also, FERPA can not be so easily broken down into “permanent v. desk drawer” – it’s more complex and some Google Docs would assuredly be educational records.

The issue here is bigger than Google, it is the cloud in general (i.e. any storage of educational materials on servers not owned and controlled by the school). Google is just the biggest cloud purveyor, but all the other cloud tools would have a similar issue so we need to get this figured out (I probably need to write an article on it – Miguel, want to help with that?).

However, I’m not convinced there is a FERPA issue yet (this is not legal advice, even though I am a lawyer). FERPA is not a law that was really built for this purpose. It was built for paper records and most of the cases that are out there are paper in nature. Also, FERPA doesn’t seem as concerned about e-discovery access as it does non-parental access in real time – and the cloud would seem to me to have more issues with the former than the latter.

On top of all that, FERPA doesn’t really carry a big stick. Worst case it would seem to me is that a parent files a complaint with the DOE, the DOE could investigate, and the DOE could tell you to stop using it. But, as of now, the DOE has NEVER pulled the funding (their only remedy) because of school FERPA violations. If they haven’t pulled the funding even in extreme cases where the intent of FERPA was clearly being violated, I highly doubt they would pull the funding on this very complex and legally gray issue.

But, let’s say you are a big district that wants to make the switch and is worried about it … just ask the DOE for an opinion on the matter! They will provide guidance on the matter and if they don’t, at least you can say you asked them first but didn’t get a response. The wrong reaction is to stop implementation of a tool that could help kids because you THINK there might be a legal issue, but really don’t know. Don’t let the law get in the way of learning! If your lawyers don’t want to help you build for learning, get new lawyers.

Ask – if no one answers – implement – if someone raises concerns – apologize. There is enough administrative discretion built into the law that it is only the rare circumstance where the Courts or the Fed slap people’s hand enough for them to be fired.