In brief

As most non-government schools move quickly to implement online home-based learning platforms for the delivery of curriculum in response to COVID-19, it is vital that schools undertake risk assessments to identify emerging security, privacy and data risks, and develop comprehensive protocols to guide staff, students and parents.

Protocols are mandatory to guide acceptable behaviours

The COVID-19 pandemic has seen the unprecedented widespread closure of school campuses and a shift towards delivery of curriculum to online platforms. The prospect of an extended period of online learning means schools are entering unchartered waters. Technology creates as many issues as it solves. Many schools are inadequately equipped with protocols and guidelines to manage the new frontier of electronic learning.
 
All non-government schools are encouraged to seek advice about developing protocols and guidelines for staff, parents and students to encapsulate an array of considerations that require special treatment in the context of online delivery of curriculum - relating to child safety, acceptable use of technology, privacy, security and health and safety.
 
Protocols of this nature are important features of a school’s duty of care towards its students, which will to continue to apply, with some adjustment, in an online learning environment. 

Key risk areas requiring consideration  

  • School's should ensure the following topics are adequately addressed in protocols regulating online delivery of learning to students:

  • Security issues posed by online learning platforms must be identified and school information technology infrastructure upgraded (or preferred products closely reviewed) to protect against emerging phenomenon such as:

    • video conference hijacking (whereby a stranger hijacks or "bombs" an online class);

    • spam related pornographic and/or hate images deployed by hackers disrupting an online class;

    • product vendors disclosing user information about the school's users of the online platform with third parties without the school's authority.

  •  The expectations and responsibilities of students must be set out clearly. This can range from expected attire to be worn during online classes, expected online etiquette ('netiquette') to minimise distraction and enhance learning, expected attendance, level of engagement in the class, completion of assessments, and compliance with pre-existing school codes of conduct.

  • Misconduct can still occur even though teachers and students are not interacting in a traditional physical setting. Grooming or cyber bullying by way of online communications are a typical example. Therefore, binding guidelines for staff should be developed that either extend the application of pre-existing school codes of conduct and policies to the application of home based learning, or additional behavioural expectations in an online environment should be prepared.

  • Responsibilities of the student’s parents or carers should be outlined, including the level of supervision of online learning expected (particularly for younger students), assistance in creating and enforcing the student’s regime that allows for a balanced lifestyle, and ensuring that the student has an appropriate workspace and resources to engage in online learning.

  • Schools should ensure parental consent for the delivery of online learning is adequately obtained by way of existing privacy policies or that appropriate consent is obtained by parents, and that information obtained about all participants as part of the online activities is compliant with the Privacy Act 1988 (Cth).  

  • Schools should also use this opportunity to ensure underlying enrolment documentation, forming the basis of the commercial contract between parents and students in the delivery of education, covers the various aspects and risks associated with home-based online learning, including issues associated with fee recovery that may arise. Our previous article on updating enrolment contracts provides further guidance in this important area.

Implementation

Colin Biggers & Paisley is working with numerous non-government schools to support the transition from face-to-face teaching to online learning, in response to COVID-19. While a great deal of innovation and enthusiasm is occurring in the online teaching area at present in response to the global limitations posed by social distancing rules, it is important that non-government schools seek advice and ensure the delivery of home-based online learning is appropriately regulated, to mitigate against future legal risks that are bound to emerge.
 
Our Education Industry Team contacts in New South Wales, Queensland and Victorian can be contacted here

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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