Adults who grew up in the 1960s will remember “The Jetsons,” a popular cartoon set in a future space-age world filled with floating gadgets and flying machines. Even the family’s children, Judy and Elroy, could strap on boots that lifted them through the air. In this imaginary future everyone could fly high. What could be more fun? What could be more fanciful?
While today’s technology has not progressed to the level of making flying cars or jet-boots available for everyday use, flying gadgets no longer belong to an imaginary future. Noticeably, flying gadgets – better known as drones – were in almost every catalog and store this Christmas.
Because of the public interest in drones, their use is becoming a topic of discussion for school leaders, as board members and administrators are considering their potential benefit to the educational environment. But questions have arisen, too. If drones can be used on school grounds; under what conditions is the use of drones legal and acceptable? May schools prohibit flying drones above school property?
A drone is more technically referred to as an unmanned aerial system (UAS). The Federal Aviation Administration (FAA) defines UAS as “an aircraft without a human pilot onboard – instead, the UAS is controlled from an operator on the ground.” The unmanned aerial system includes the drone and the operator of the drone. The drone device itself may be referred to as an unmanned aerial vehicle (UAV).
Drones may be used for a number of purposes that can benefit a school or school district. These may include photographing or videotaping outdoor school activities, like marching band performances and sporting events; classroom instructional activities in technology, aviation, engineering, film and robotics; studying wildlife and the environment; and inspecting facility areas and construction projects in hard-to-reach places. There is no doubt that this technology is intriguing and has the potential for engaging students and staff both in the operation of the device and with the alternative perspective it provides from the sky.
There are a number of considerations for developing a policy that permits the use of drones on school property. The policy consideration for permitted use may be divided into two categories: drones operated by school employees and students for internal use; and the use of drones by members of the community for purposes authorized by the board of education.
Staff and Student Use The legal issues for policy development permitting staff and students to operate the UAS are complicated. In the March 2016 Inquiry and Analysis, the National School Boards Association Council of School Attorneys stated that “the use of drones in schools as an educational tool is problematic.” It is unclear whether the FMRA’s (FAA Modernization and Reform Act of 2012) model aircraft exception to the otherwise extensive drone regulations would apply to school use. If the model aircraft exception does not apply, schools would have to comply with the same regulations that are applicable to operators of commercial drones. Under the FMRA, a model aircraft is one that is flown for hobby or recreational purposes. All other unmanned aircraft fall under the general regulatory requirements, which are substantially more burdensome and potentially cost-prohibitive for student use. It is important to note that even aircrafts in the model aircraft category which are exempt from the stricter requirements of other categories of unmanned aircraft must still be registered with the FAA.
In a memorandum dated May 4, 2016, “Subject: The Educational Use of Unmanned Aircraft Systems,” the FAA provided an interpretation regarding the question of whether or not staff and student use of drones falls under the model aircraft category for hobby or recreational purposes and is therefore exempt from the stricter regulatory requirements for other UAS categories. This interpretation asserted that UAS may be consider hobby or recreational use for student and school staff according to the following conditions:
- A person may operate an unmanned aircraft for hobby or recreation in accordance with section 336 of the FAA Modernization and Reform Act of 2012 (FMRA) at educational institutions and community-sponsored events (including demonstrations at school) provided that person is (1) not compensated, or (2) any compensation received is neither directly nor incidentally related to that person’s operation of the aircraft at such events;
- A student may conduct model aircraft operations in accordance with section 336 of the FMRA in furtherance of his or her aviation-related education at an accredited educational institution; and
- Faculty teaching aviation-related courses at accredited educational institutions may assist students who are operating a model aircraft under section 336 and in connection with a course that requires such operations, provided the student maintains operational control of the model aircraft such that the faculty member’s manipulation of the model aircraft’s controls is incidental and secondary to the student’s (e.g., the faculty member steps-in to regain control in the event the student begins to lose control, to terminate the flight, etc.).
The FAA also regulates airspace over the United States. In developing policy, boards should research and consider any limitations associated with the school’s location. Schools that are near airports, military bases and other restricted flying areas may be subject to airspace security restrictions.
School policy and regulations should provide basic and practical guidelines including:
- Restrictions on where and when the UAV may be operated safely and away from students;
- Acceptable and prohibited uses for staff and students (e.g. may be flown only under the supervision of a teacher with the appropriate UAV certification; may not be used to record images or audiotape without authorization); and
- Consequences for violating school policy and/or the code of conduct.
In addition, the New Jersey Interscholastic Athletic Association’s (NJSIAA) Interim Drone Policy states that “Until the NJSIAA study is completed, no UAS or drone flights will be permitted at high school sporting events or practices involving NJSIAA member schools.” School districts that are members of the NJSIAA should, to stay in compliance with NJSIAA policy, consider a policy statement that prohibits drones from being used at sporting events and athletic practices.
Other requirements that affect policy development to permit students and staff may be driven by district insurance carriers. Insurance carriers may not cover accidents that result from flying the drone off school property or any use of drones that is in violation with state and federal laws or regulations. Insurance carriers may require a supplemental application specific to drones. Staff authorized to use drones may be required to obtain FAA certification even when the FAA standards for use qualifies as strictly hobby or recreational and certification is not required by law. The FAA has different certifications related to the type of use and, at a minimum, a Remote Pilot Airman Certification is required for flying UAS for work. Whereas the FAA standard for the weight of a model aircraft is “not more than 55 pounds,” your insurance carrier may limit you to a significantly lighter craft. Consultation with your insurance carrier is critical in the development of policy permitting the use of drones. Additionally, the complexity of state and federal laws and regulations make it essential that your board attorney be actively involved.
The board may want to take advantage of opportunities to contract with or accept volunteer videography by trained drone operators at school events or approve drone use for other requested reasons by outside members of the school community. Such activities should be authorized by the board of education. Policy development would be similar to requirements for the use of equipment (NJSBA file code 3514) and the use of school facilities (NJSBA file code 1330). Policy considerations include having a formal request and application process with the requirement to provide proof of commercial flying certification and appropriate unmanned aircraft registration, proof of insurance and a hold harmless agreement. Policy should also require the purpose of the activity to be clearly stated and in compliance with FAA regulations for the operation of the drone and with consideration to any limitation related to the airspace above the school. Again, consultation with your insurance carrier and attorney are critical in the development of policy.
All the above policy considerations apply to the use of drones that are operated by a pilot who is physically located on school property. While the federal regulations, including drone classification, pilot certification, drone registration and airspace, are complicated, the board has the authority to permit or prohibit the operation of drones by individuals while the operator is on school grounds. The board’s authority to restrict drones that are operated by individuals located off of the school property flying their drones over the school is not well defined.
According to the National School Boards Association Council of School Attorneys, federal law 49 U.S. Code § 40103 states “The United States Government has exclusive sovereignty of airspace of the United States” and the FAA Modernization and Reform Act of 2012, which directed the FAA “to develop a plan for the safe integration of civil unmanned aircraft systems into the National Airspace,” casts doubt on whether individual states or property owners have the ability to regulate low flying drones (March 2016 Inquiry and Analysis). The board of education would in this case be the property owners.
However, low-flying drones that create concerns related to the safety and welfare of the students, staff or school property are subject to the laws and school policies and procedures related to protecting student privacy and student safety, disorderly conduct and unwanted visitors (NJSBA Critical Policy Reference Manual 5145.5 Photographs of Students, 5142 Safety, 1250 Visitors). Such activity may be reported to local law enforcement and if the drone operator can be identified or the drone device taken, illegal activity may be reported online to the FAA Hotline for violations of Federal Aviation Regulation (Title 14 CFR) and aviation safety issues.
When your NJSBA policy consultants and legal team research emerging issues, we often joke that it’s never easy. This issue requires careful study and research by the board and is not a “fly-by” topic. Creating policy in this constantly-changing and technologically-advancing educational environment is challenging. New areas of law are emerging, involving technology and its uses in the educational environment. Genuine concerns are being debated related to privacy, security and student safety. During such times the board’s authority is often unclear. Thorough research and the involvement of your insurance carrier and board attorney will go a long way to help contain potential liability in the development of policy that supports creative educational initiatives. Although not an easy responsibility, it is the role of school leaders to strive for excellence and innovation in the education program and this requires carefully weighing the risks against the advantages in creating cutting-edge and engaging 21st century learning experiences.