Technology Services Agreements:
Education Lawyer As Frenemy
By Gretchen Shipley
Based on the calls I receive as an education lawyer, I can only imagine the pressures of working in a technology services department ("IT") to support an entire school district. In a day and age when the quality and capacity of a technology program drives the quality and reputation of an educational program, IT has a lot riding on its shoulders.
As an attorney, my interactions with IT are largely IT staff telling me, "My boss told me to run this contract past you," or when defending a bid protest, eRate audit, or supporting a financing agreement, me explaining to IT staff, "I need to have a better understanding for what went wrong in the procurement process." I'm always the bad guy.
I appreciate the immense responsibility IT has to research, identify and procure the technology and infrastructure to support a whole school system and complete these tasks in time to meet board meeting and eRate deadlines. However, please know that if legal counsel ever recommends that a contract be revised or rejected, rather than be approved by a board, the attorney is truly just looking out for the best interests of the district (and the IT staff) and not trying to stand in the way of progress.
For example, I was recently contacted by an IT director who reluctantly asked me to review a statement of work that had been provided by a vendor for the installation of a data management system. Out of the twelve page document, one sentence cross-referenced the company's website to access the terms and conditions of the agreement being formed between the parties. By clicking on the link, I discovered six additional pages of fine print. There were several terms I was concerned about, so I called the IT director back and suggest he try to negotiate some of the terms of the agreement. Flabbergasted, he informed me that the agreement was scheduled to go to the board in two days and there simply wasn't any time for negotiating any terms. In response, I pointed out just one of the provisions that gave me heartache:
‘In performance of services by [software provider], it may be necessary to obtain, receive or collect data . . . School district grants worldwide, perpetual, non-revocable, license to use, compile, distribute, store, reproduce data to [software provider] . . . District represents that it has obtained legally sufficient consent necessary to use and transfer data within and outside of the country.’
In this era of heightened concern for data privacy, in this instance, a community member could easily challenge a school board for failing to comply with legal requirements and thus, allege that it entered into an illegal contract. As readers may be aware, technology services agreements entered into, amended, or renewed after January 1, 2015 must include specific provisions. These requirements apply to contracts for digital storage, management and retrieval of pupil records, as well as educational software that authorizes a third-party provider to access, store and use pupil records. All of the following provisions must be included in such contracts:
- A statement that pupil records continue to be the property of and under the control of the school district;
- A description of the means by which pupils may retain possession and control of their own pupil-generated content, if applicable, including options by which a pupil may transfer pupil-generated content to a personal account;
- A prohibition against the third party using any information in the pupil record for any purpose other than those required or specifically permitted by the contract;
- A description of the procedures by which a parent, legal guardian, or eligible pupil may review personally identifiable information in the pupil's records and correct erroneous information;
- A description of the actions the third party will take—including the designation and training of responsible individuals—to ensure the security and confidentiality of pupil records;
- A description of the procedures for notifying the affected parent, legal guardian, or eligible pupil in the event of an unauthorized disclosure of the pupil's records;
- A certification that a pupil's records shall not be retained or available to the third party upon completion of the terms of the contract and a description of how that certification will be enforced;
- A description of how the district and the third party will jointly ensure compliance with the federal Family Educational Rights and Privacy Act; and
- A prohibition against the third party using personally identifiable information in pupil records to engage in targeted advertising.
While these provisions might be difficult to comply with, I would be reluctant to recommend approval of a contract to a board that doesn't meet the requirements. School boards are dependent on staff to recommend contracts. Such contracts are often agendized with numerous other agreements and board members typically don’t have the opportunity to re-review contracts to independently verify legality and yet, it is the school board members who are held accountable for approving the contracts. For these reasons, it is important that the district staff member responsible for IT procurement not take a vendor and/or salesperson's word at face value that a contract can be piggybacked or that it is legally complaint for school districts in California. Rather, technology procurement staff are strongly encouraged to perform an independent analysis of whether a contract must be bid, meets data privacy compliance standards, eRate compliance requirements, and all of the provisions of the Public Contract Code and Education Code.
More importantly, IT procurement staff should feel empowered to negotiate contract terms with technology vendors. It is anticipated that most nationwide technology companies do not have contracts that are tailored to California law, much less laws specific to the education context. Therefore, it is incumbent on school districts to look out for their own interests and, in some instances, might have to educate the technology vendors on what is required to contract with a California local educational agency. Ultimately, this knowledge, understanding, and implementation of procedures for quickly evolving education technology laws to address the rapid influx of technology in education is a tremendous leadership opportunity for IT staff and the platform to become a powerful voice in your school community.