End of the Year Activities and Graduations in the time of COVID-19

May 8, 2020
Kasi M. Gifford, Esq.

To Our School Board Community:

We have been trying to anticipate and quickly respond to your questions during this time, given the unprecedented challenges presented to our Boards with COVID-19 and the related school closures.  As you are all no doubt aware, on May 4, 2020 Governor Murphy announced the closure of all public schools for the remainder of the 2019-2020 school year. Unfortunately, this means that the class of 2020, will not get to participate in any of the typical rights-of- passage associated with what is supposed to be such an exciting time in their lives. 

We are aware that many of you have already begun working on plans for how to honor the students that would typically be graduating from your various schools this year. As such, we wanted to make you aware of a couple of points:

1. N.J.S.A. 18A:36-35. Disclosure of certain student information on Internet prohibited without parental consent provides:

The board of education of each school district and the board of trustees of each charter school that establishes an Internet web site, shall not disclose on that web site any personally identifiable information about a student without receiving prior written consent from the student’s parent or guardian on a form developed by the Department of Education. The written consent form shall contain a statement concerning the potential dangers of personally identifiable information about individual students on the Internet. As used in this act, “personally identifiable information” means student names, student photos, student addresses, student e-mail addresses, student phone numbers, and locations and times of class trips.

We bring this to your attention because we know that many of you are hoping to plan a virtual graduation for your students. We believe N.J.S.A. 18A:36-35, while perhaps not authoritative on the topic, is a good starting point and will likely be applicable. As such, please remember to check your records to ensure that you have a State approved consent form for each student that will be graduating virtually. If you do not have a consent form for a particular student, please provide their parents with an additional copy of the consent form, and explain that their consent will be required for participation in the virtual graduation as said graduations will be broadcast to more than just that student’s family. 

2. Governor Murphy and Commissioner Repollet also advised that the Department of Education will work with school officials to share ideas on safe and innovative ways to recognize 2020 high school graduates and other end-of-year milestones for students. 

As of now, Executive Order 107, which mandates that all social gatherings of any sort be cancelled, is still in effect. While we understand graduation may not be a social gathering, we believe the same guidance would apply to public gatherings. As such, you should start working on several alternative options depending on the state of the restrictions at the time of your event. We also suggest that when considering your options, even if some of the restrictions have been lifted, you consult your policies and with your Risk Management Consultant regarding any potential civil liability. 

Another point to consider if planning a virtual graduation, is that you may have to work with your yearbook company, photographers, and other third-party vendors whose work may be protected by copy-right, to ensure that you are able to display their work during graduation. Additionally, it is our understanding that some yearbook companies are requiring consent forms from parents to disclose cap and gown photographs to the school. Lastly, you should be aware of N.J.S.A. 18A:18A-49.3 which allows students to submit yearbook photographs from a photographer of their choice as long as said photo meets the specifications of the yearbook staff. This is important because you may have to reach out to these individual entities. 

Our e-mails about recent developments are not intended to substitute for our legal advice to our clients based on your specific needs or requests. In addition, our guidance is subject to, and can be superseded by new laws, rules, regulations, or orders. Moreover, some directives from the Federal and State authorities can appear, and can be, contradictory or in conflict, so please contact us for assistance.

As always, please contact us with any questions. We will continue to do our best to keep you updated in the coming days and weeks.

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