Labor and Legal Challenges in The

FROM TEXTBOOKS TO TWEETS: LABOR AND LEGAL CHALLENGES IN THE DIGITAL SCHOOLHOUSE

David M. Pellow, Esq. Madison-Oneida BOCES

I. Instructional Delivery in the Digital Schoolhouse

A. Digital Technology Creep in the Late 20th Century

1. Creation of databases for:

a. student information systems (SIS)

b. financial and other business operations

2. Move from mini-computers to micro-computers, so that a computer is a tool for almost everybody

3. Email

B. The Digital Tsunami of the Early 21st Century – Seven Emerging Technologies

1. The Cloud: Data about students, employees, and operations increasingly stored on remote memory devices owned and controlled by third party contractors.

2. Learning Analytics: more detailed “personally identifiable information” about student achievement created and stored

3. Wearables

4. Internet of Things: for example, internet-connected HVAC systems or security systems; create points of vulnerability for intrusion (cf. Target)

1 5. Risk-based Security: if cyber intrusion is a matter of “when,” not “if,” then a response plan is imperative; also, since the primary vulnerability is an imprper action by an authorized user, training about good digital hygiene is increasingly necessary

6. Biometrics: fingerprint readers, iris or face scans, and voice adaptation are increasingly used as “secure” entry to use a device; devices must create and store this “personally identifiable information”; NYS Labor Law §201-a prohibits private sector employers from requiring employees to provide a fingerprint

7. Smart Agents:software platforms such as Siri, Alexa, and Google Now are already built into child-directed devices; these may collect personally identifiable information such as linking a student to a voice profile and history of questions asked

C. Emerging Behaviors

1. Replacement of “Textbooks” with Online Instructional Content

2. Replacement of Procurement by Purchase with Procurement by Subscription (SaaS)

3. App Anarchy – Teachers “accepting” access to online applictions that store student information

4. Crowdsourcing Fundraising

5. Teachers Paying Teachers

II. Recommended Responses to Emerging Behaviors

A. Create a Process for Approving Instructional Materials Used in the District

1. Assess instructional value

2. Implement correct procurement procedures

3. Document contractual relationships

4. Maintain an inventory of data created and stored, and applications involved

B. Adopt a Policy Limiting Use of Computers to Business Purposes

1. Comptroller Audit Reports

2 C. Set Expectations for Compliance with FERPA and Section 2-d, and Impose Consequences

3 III. The Legal Framework for Responding

A. The Taylor Law Imposes a Duty to Bargain in Good Faith

1. An Employer, such as a school district, is required to negotiate in good faith concerning terms and conditions of employment. Civil Service Law §204(3).

a. Mandatory subjects are defined in CSL §201(4) as “wages, hours and other terms and conditions of employment”.

b. Prohibited subjects are those that if included in the agreement would not be enforceable. The list is short. The statute only classifies retirement benefits as lying outside the scope of “terms and conditions of employment.” Cf. CSL §201(4). The Court of Appeals has ruled that, as a matter of public policy, the statutory authority of a board of education to grant or deny tenure is not subject to negotiations. Cohoes City School District v. Cohoes teachers’ Assoc., 40 NY2d 774 (1976).

c. Nonmandatory (permissive) subjects are everything else.

2. Defining the scope of public services to be provided, and the methods of providing those services, is a management prerogative, not a mandatory subject of bargaining. “[T]he public employer, acting through its executive or legislative body, must determine the manner and means by which … services are to be rendered and the extent thereof …” City School District of City of New Rochelle,4 PERB ¶3060 (1971).

a. A demand that materials be “conducive to good teaching” and “in sufficient quantity” was nonmandatory. Peekskill Faculty Assoc., 16 PERB ¶4586 (1983).

b. Selection of textbooks and other classroom materials, and decisions about how a course will be taught, are nonmandatory subjects because they go to the “essence of educational policy.” SUNY-Stony Brook, 33 PERB ¶3045 (2000).

3. Although a public employer may be privileged to make a unilateral decision, it is required to bargain over the effects of the decision on terms and conditions of employment. City School District of City of New Rochelle, supra.

a. Thus, class size is a nonmandatory subject because it is central to educational policy, i.e. the service being delivered. Herdle and W. Irondequoit Teachers’ Assoc., 4 PERB ¶3070 (1971). However, a demand for aditional

4 compensation based on teaching load is a mandatory subject. Orange County Comm. College Faculty Assoc., 10 PERB ¶3080 (1977).

4. The prohibition of unilateral changes in terms and conditions of employment extends to those terms and conditions of employment that have been established by practice even though not reduced to writing in a collective bargaining agreement. County of Nassau, ¶3029 (1991).

5. Where a permissive subject has been addressed in a written collective bargaining agreement, it is converted to a mandatory subject. City of Cohoes, 31 PERB ¶3020 (1998); Greenburgh No. 11 UFSD, 32 PERB ¶3024 (1999) [inclusion of class size language in collective bargaining agreement converted class size to a mandatory subject].

B. The Public Service Provided by School Districts Is Instruction

1. The Education Law grants authority to, and imposes a duty upon, boards of education to determine the course of instruction to be offered in a school district.

a. Common school districts,

§1604 (10): “To prescribe the course of studies to be pursued in such schools. Provisions shall be made for instructing pupils in all schools supported by public money, or under state control, in all subjects in which such instruction is required to be given under the provisions of article seventeen of this chapter.”

§1604(29): “To prescribe the text-books to be used in the schools, and to compel a uniformity in the use of the same, pursuant to the provisions of this chapter, and to furnish the same to pupils out of any moneys provided for that purpose.”

§1604(30): “To have in all respects the superintendence, management and control of the educational affairs of the district, and, therefore, shall have all the powers reasonably necessary to exercise powers granted expressly or by implication and to discharge duties imposed expressly or by implication by this chapter or other statutes.”

b. Union free school districts:

§1709(3): “To prescribe the course of study by which the pupils of the schools shall be graded and classified, and to regulate the admission of pupils and their transfer from one class or department to another, as their scholarship shall warrant.”

5 §1709(4): “To prescribe the text-books to be used in the schools, and to compel a uniformity in the use of the same, pursuant to the provisions of this chapter, and to furnish the same to pupils out of any moneys provided for that purpose.”

§1709(13): “To have in all respects the superintendence, management and control of said union free schools, and to establish therein, in conformity with the regents rules, an academic department, whenever in their judgment the same is warranted by the demand for such instruction …”

§1709(33): “ To have in all respects the superintendence, management and control of the educational affairs of the district, and, therefore, shall have all the powers reasonably necessary to exercise powers granted expressly or by implication and to discharge duties imposed expressly or by implication by this chapter or other statutes.”

c. Central school districts:

§1804(1): all of the powers and duties of boards of education of union free school districts

d. Small city school districts:

§2503(1): all of the powers and duties of boards of education of union free school districts

§2503(3): “Shall have in all respects the superintendence, management and control of the educational affairs of the district, and, therefore, shall have all the powers reasonably necessary to exercise powers granted expressly or by implication and to discharge duties imposed expressly or by implication by this chapter or other statutes.”

§2503(4)(c): ” Shall authorize the general courses of study which shall be given in the schools and shall approve the content of such courses before they become operative.”

§2503(4)(d): “Shall authorize and determine the textbooks to be used in the schools under its jurisdiction …”

e. Query: Are these duties so central to educational policy, like tenure, that they are effectively prohibited subjects, or are these non-mandatory subjects that a district may bargain away?

i. A decision to create combination grade classes falls within the area of nondelegable responsibility of boards of education to maintain

6 classroom standards, which may not be negotiated. Board of Ed. of Yonkers City School District v. Yonkers Fed. Of teachers, 129 AD2d 702 (2d Dep’t 1987)

ii. A demand for faculty input into the courses they will teach is nonmandatory. Orange County Comm. College Faculty Assoc.,10 PERB ¶3080 (1977).

iii. The portions of an intellectual properrty policy that relate to compensation, dispute resolution, and grievances are mandatorily negotiable. City Univ. of New York, 36 PERB ¶4547 (2003), rev’d in part 37 PERB ¶ 3006 (2004), rev’d and remanded sub nom. Professional Staff Congress – City Univ. of New York v. NYS Public Employment Relations Board, 21 AD3d 10 (1st Dep’t 2005), motion to dismiss on the grounds of mootness denied, 7 NY3d 780, rev’d 7 NY3d 458 (2006)

2. Education Law §701(1): “In the several cities and school districts of the state, boards of education, trustees or such body or officer as perform the functions of such boards, shall designate text-books to be used in the schools under their charge.

a. §701(2): “A text-book, for the purposes of this section shall mean: (i) any book, or a book substitute, which shall include hard covered or paperback books, work books, or manuals and (ii) … any courseware or other content- based instructional materials in an electronic format …which a pupil is required to use as a text, or a text-substitute, in a particular class or program in the school he or she legally attends.”

b. Selection of textbooks is nonmandatory. Orange County Comm. College, 9 PERB ¶3068 (1976)

c. The determination of the equipment which will be used by employees is nonmandatory, because it relates to the manner and means by which the employer provides services. See Village of Montgomery PBA, 43 PERB ¶4603 (2010).

i. The availability of employer tools and facilities for personal use is a mandatory subject. Westbury Water and Fire Distr., 13 PERB ¶3019 (1980)

Employer’s telephone system – County of Saratoga and Saratoga County Sheriff, 37 PERB ¶4525, aff’d 37 PERB ¶3024 ((2004), rev’d sub nom. County of Saratoga v. NYS Public Employment Relations Board, 21 AD 3d 1160 (3d Dep’t 2005)

7 Employer’s email system – Town of Fishkill, 42 PERB ¶4577 (2009)

3. Education Law §751(1): “ In the several cities and school districts of the state, boards of education, trustees or such body or officers as perform the functions of such boards, shall designate software programs to be used in conjunction with computers of the school district.”

a. §751(2): “A software program, for the purposes of this article shall mean (a) a computer program which a pupil is required to use as a learning aid in a particular class in the school the pupil legally attends, or (b) … any content- based instructional materials in an electronic format that are aligned with state standards which are accessed or delivered through the internet based on a subscription model …”

b. Will Orange County Comm. College, supra, apply to software selection?

C. Instructional materials must be procured in conformance with General Municipal Law.

1. Competitive bidding, if the expenditure is over $20,000. GML §103.

2. In compliance with a locally adopted procurement policy, if the expenditure is less than $20,000 . GML §104-b.

3. Query: Is it “procurement” if the cost is $0, but there is a written agreement affecting the school district’s legal rights?

D. Confidentiality (Privacy) of Student Information Is Mandated.

1. There is no common law right of privacy in New York State. Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (1902); see Foster v. Svenson, 128 AD3d 150 (1st Dep’t 2015).

2. The Family Educational Rights and Privacy Act (FERPA) requires that education records, and personally identifiable information (PII) derived from an education record, not be disclosed by a school district unless the family or responsible student has consented in writing, or the information fits within one of several statutory exceptions. FERPA was adopted in 1974.

a. A “record” is any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche. 34 CFR §99.3

b. An “education record” is a record that is:

8 i. Directly related to a student; and

ii. Maintained by an educational agency or institution or by a party acting for the agency or institution.

34 CFR §99.3 c. “Personally identifiable information” includes, but is not limited to: i. The student's name; ii. The name of the student's parent or other family members; iii. The address of the student or student's family; iv. A personal identifier, such as the student's social security number, student number, or biometric record; v. Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name; vi. Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or vii. Information requested by a person who the school district reasonably believes knows the identity of the student to whom the education record relates. 34 CFR §99.3 d. Prior consent is not required for disclosure to a school official with a legitimate educational interest. 34 CFR §99.31(a)(1).

i. A contractor or consultant to whom the school district outsources institutional services may be classified as a school official for this purpose if the contractor or consultant performs a function for which the district would otherwise use employees, the contractor or consultant is under the direct control of the school district with respect to the use and maintenance of the education records, and the contractor or consultant is subject to the regulatory restrictions on use and redisclosure of the education records.

ii. The school district must use reasonable methods to ensure that school officials obtain access to only those education records in which they have legitimate educational interests. An educational agency or institution that does not use physical or technological access controls must ensure that its administrative policy for controlling access to education records is

9 effective and that it remains in compliance with the legitimate educational interest requirement.

e. Prior consent is not required for disclosure to a school in which the student is or seeks to become enrolled (if annual FERPA Notice discloses this practie). 34 CFR §99.31(a)(2).

f. Prior consent is not required for the disclosure of information that the school district has designated as “directory information” if the family is given annual notice of the school district’s policy and does not opt-out. 34 CFR §§99.31(11) and 99.37.

i. “Directory information” means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed.

ii. Directory information includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended. ii. Directory information does not include a student's Social security number; or student identification (ID) number, except: A. A student ID number, user ID, or other unique personal identifier used by a student for purposes of accessing or communicating in electronic systems, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a personal identification number (PIN), password or other factor known or possessed only by the authorized user; and B. A student ID number or other unique personal identifier that is displayed on a student ID badge, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a PIN, password, or other factor known or possessed only by the authorized user. 3. Student health information, as a general rule, is governed by FERPA and not by the HIPAA Privacy Rule. Joint Guidance document issued by U.S.

10 Department of Education and Department of Health and Human Services (2008), found at http://www2.ed.gov/policy/gen/guid/fpco/doc/ferpa- hippa-guidance.pdf .

E. Education Law §2-d is a Student Data Privacy Statute and a Procurement Statute.

1. §2-d regulates two kinds of data.

a. Student data: “Personally identifiable information from student records of an educational agency”; the definition of “personally identifiable information” from 34 CFR §99.3 is explicitly incorporated into Section 2-d; NOTE: this does not include the exceptions, such as directory information;

b. Teacher or Principal data: “Personally identifiable information from the records of an educational agency relating to [APPR] that is confidential and not subject to release under [Education Law §3012- c and 3012-d]”.

2. §2-d imposes obligations upon three classes of entities:

a. “Educational agencies”: school districts, boards of cooperative educational services, schools, and the State Education Department;

b. The State Education Department is assigned additional obligations, including employing a Chief Privacy Officer, promulgating regulations, creating guidance documents to inform districts of “best practices,” and creation of a quasi-judicial data breach procedure for assessing penalties on third party contractors, and

c. “Third Party Contractors”: any person or entity, other than an educational agency, that receives student data or teacher or principal data from an educational agency pursuant to a contract or other written agreement for purposes of providing services to such educational agency, including but not limited to data management or storage services, conducting studies for or on behalf of such educational agency, or audit or evaluation of publicly funded programs.

3. School districts must adopt a Parents’ Bill of Rights for Data Security and Privacy and post it on their website.

a. Mandated elements are statements that:

i. A student's personally identifiable information cannot be sold or released for any commercial purposes;

11 ii. Parents have the right to inspect and review the complete contents of their child's education record;

iii. State and federal laws protect the confidentiality of personally identifiable information, and safeguards associated with industry standards and best practices, including but not limited to, encryption, firewalls, and password protection, must be in place when data is stored or transferred

iv. A complete list of all student data elements collected by the State is available for public review at

http://www.p12.nysed.gov/irs/sirs/documentation/NYSEDstudentData.xlsx or may obtain a copy of this list by writing to the Office of Information & Reporting Services, New York State Education Department, Room 863 EBA, 89 Washington Avenue, Albany, NY 12234, and

v. Parents have the right to have complaints about possible breaches of student data addressed. Complaints should be directed to (insert phone number, email and mailing address here).

b. Other elements may be mandated by SED regulations.

c. Locally-adopted provisions may be added.

d. “Supplemental information” about each covered contract must be appended to the Parents’ Bill of Rights for Data Security and privacy.

i. the exclusive purposes for which the student data or teacher or principal data will be used;

ii. how the third party contractor will ensure that the subcontractors, persons or entities that the third party contractor will share the student data or teacher or principal data with, if any, will abide by data protection and security requirements;

iii. when the agreement expires and what happens to the student data or teacher or principal data upon expiration of the agreement;

iv. if and how a parent, student, eligible student, teacher or principal may challenge the accuracy of the student data or teacher or principal data that is collected; and

12 v. where the student data or teacher or principal data will be stored (described in such a manner as to protect data security), and the security protections taken to ensure such data will be protected, including whether such data will be encrypted.

d. Tip: do not use SED Parents’ Bill of Rights for Data Security and Privacy as a model. http://www.p12.nysed.gov/docs/parents-bill-of-rights.pdf

4. Third party contractors must meet certain standards for data handling:

a. limit internal access to education records to those individuals that are determined to have legitimate educational interests;

b. not use the education records for any other purposes than those explicitly authorized in its contract;

c. except for authorized representatives of the third party contractor to the extent they are carrying out the contract, not disclose any personally identifiable information to any other party:

i. without the prior written consent of the parent or eligible student; or

ii. unless required by statute or court order and the party provides a notice of the disclosure to the department, district board of education, or institution that provided the information no later than the time the information is disclosed, unless providing notice of the disclosure is expressly prohibited by the statute or court order;

d. maintain reasonable administrative, technical and physical safeguards to protect the security, confidentiality and integrity of personally identifiable student information in its custody;

e. uses encryption technology to protect data while in motion or in its custody from unauthorized disclosure using a technology or methodology specified by the secretary of the United States department of health and human services in guidance issued under Section 13402(H)(2) of Public Law 111- 5.

5. §2-d creates a data breach regimen that imposes obligations on educational agencies and third party contractors, in addition to the data breach provisions required by State Technology Law.

6. There is no private right of action created by the statute.

13 F. Is It Possible to Implement Best Practices?

1. Comptroller: District’s should have Board-level Policy telling employees to use digital technology for work purposes only.

Problem: “Past practice” of untracked personal use.

2. District should have an inventory of the digital programs being used. This requires asking teachers what they are using.

Problem: “Past practice” of teachers selecting own instructional materials. Are the apps more like textbooks or more like classroom aids?

3. There should be a process for schools to “clear” the use of an application.

Problem: See above.

4. Schools should be transparent with parents about what data is being collected and why.

Problem: Do Superintendents and principals know what data is being collected?