Do you think you need consent to
use a student's photo? Innovative educators use digital resources such as social media and other online spaces with students, so it’s important that they know when it is necessary to notify students and families when their information is shared and when consent is needed.
“Many parents, teachers, and school personnel are convinced that the release of names, addresses, or phone numbers is “against the law,” a firmly held belief which has circulated so widely that it is generally assumed to be true. Thus, the release of names or phone numbers—even to a PTA committee or classroom parent—may generate confusion or controversy within the school community.” Releasing Student Information: What’s Public and What’s Not, Huges - School Law Bulletin p. 19
The answer is such information can be released as long as the school has notified parents and students annually of their rights and has allowed them a reasonable amount of time to request that the school not disclose directory information about them.
The law driving this is called the Family Education Rights & Privacy Act (FERPA). FERPA states that schools may disclose, without consent, "directory" information about a student. The US Department of Education defines directory information as follows:
- Student's name
- Telephone listing
- Electronic mail address
- Date and place of birth
- Major field of study
- Dates of attendance
- Grade level
- Participation in officially recognized activities and sports
- Weight and height of members of athletic teams
- Degrees, honors, and awards received
- The most recent educational agency or institution attended
- Student ID number, user ID, or other unique personal identifier used to communicate in electronic systems that cannot be used to access education records without a PIN, password, etc. (A student's SSN, in whole or in part, cannot be used for this purpose.)
This education law alert goes on to specify that photos and videos are directory information as long as a school has notified students and parents of this.
The primary purpose of directory information is to allow schools and districts to include this type of information from a child's education records in certain publications. Examples include:
- A playbill, showing your student's role in a drama production
- The annual yearbook
- Honor roll or other recognition lists
- Graduation programs
- Sports activity sheets, such as for wrestling, showing weight and height of team members
Schools can notify parents and eligible students of their FERPA rights and how directory information will be released in whatever way they choose, for example a special letter, inclusion in a PTA bulletin, student handbook, a note home. In the notification parents must be informed of their right to opt out and they must be given ample time to do so. Harvard has created forms for students to opt out which you can see here.
Do keep in mind that a teacher using directory information when parents and students were notified is fine, but state laws (both statutory and common law) make it unlawful to make use of names, portraits, and pictures of individuals "for advertising purposes or purposes of trade" without their written permission.
Of note is that if a recording is not generated by - or subsequently maintained by - an educational agency or institution, it is not protected by FERPA. Thus, pictures or videos taken by parents or visitors are not subject to FERPA's regulations.
To clarify, I’m not a lawyer and please don’t take this as the final say. Check with the folks where you work and ask to get the answer in writing with sources cited as there is a lot that people think is true, that just may not be so. I’ve just done my best to read through the various documents here and make the most sense I can about this. It’s a bit confusing and different than what you may have been told in the past. So, what do you think? Do you think I’m right? Do you think I’m mistaken? If so, please comment, but do provide a link and cite the text to where you are getting your information.