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Legal and Ethical Principles Concerning Confidentiality for School Counselors

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Legal and Ethical Principles Concerning Confidentiality for School Counselors

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Sharlyn Pernell

December 12, 2023

Legal & Ethical Principles EDG-6305

Dr. Brook Dickison

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1. Confidentiality for School Counselors: Professional Perspective

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1. Confidentiality for School Counselors: Professional Perspective

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Discussions of parental rights have been at the forefront of education. According to Singh & Drabiak (2023, para 1), "several states have adopted laws or proposed laws relating to children's education and healthcare...regulations [outlining] the expectations for transparency and communication with parents about minors' health and well-being."

Students seek the services of school counselors to discuss personal matters, often issues they have not shared with their parents, and, in doing so, have the expectation that school counselors will maintain confidentiality. It is through this confidentiality that students feel safe to seek help and guidance from the school counselor. However, there are concerns about the legalities of the actual confidentiality of these conversations.

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At both the state and federal levels, governing agencies provide accountability by setting standards and policies for the organizations they govern. The Texas Education Agency (TEA) and the Department of Education both provide guidance and policy for public schools.

State Governing Agency

TEA oversees all public education in Texas.

Their mission is to "improve outcomes for all public school students...by providing leadership, guidance, and support to school systems" (About TEA, n.d.).

The Commissioner of Education and the Texas State Board of Education (SBOE) fall under TEA and set policy and standards for all Texas Public Schools through the Texas Administrative Code (TAC).

Through the Texas Education Code, Title 19 of TAC, the Texas Legislature lays out the roles and responsibilities of the professional school counselor. In 1995, the Texas Legislature amended The Texas Education Code by adding Chapter 33, clarifying the duties of a school counselor, stating they were responsible for including programs with "a responsive service component to intervene on behalf of any student whose immediate personal concerns or problems put the student's continued education, career, personal or social development at risk" (Tex. Educ. Code, 1995). This policy establishes the role of the professional school counselor in regard to the mental health and well-being of students.

Federal Governing Agency

The US Department of Education is the governing agency that "[establishes] policy for, administers and coordinates most federal assistance to education" (An Overview of the US, 2010).

This agency was created in 1979 for many purposes, one of which was to support the efforts of the States to promote improvement in the quality of education and overall student success.

According to the U.S. Department of Education, "the federal role in education is limited [because] most education policy is decided at the state and local levels" (Laws & Guidance, n.d., para 2).

The U.S. Department of Education administers and enforces the Family Educational Rights and Privacy Act (FERPA), which protects student privacy (Student Privacy at the U.S. Department of Education, 2021).

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Constitutional law exists at both the federal and state levels. Both the U.S. Constitution (U.S. Const.) and the Texas Constitution (Tex. Const.) are the foundation of education in Texas (Bigham, 2013, 9).

Federal Constitutional Law

Education is not directly mentioned in the U.S. Constitution. But, according to Bigham (2013, 9), the Tenth Amendment of the U.S. Constitution is the basis for the authority of public schools as it states, "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people" (U.S. Const. amend. 10). Therefore, the power and authority over public schools were directed to state governments.

Link: U.S. Constitution

State Constitutional Law

The Texas State Constitution consists of seventeen articles. Article 7 of the Constitution addresses education. Article 7 is comprised of twenty sections. The first section established the need to "support and [maintain] an efficient system of public free schools" (Tex. Const., art. 7 § 1) and therefore established the Texas Education System.

Link: Texas Constitution

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Statute

A statute is a law enacted by a legislative body. Both federal and state laws must be passed by both legislative bodies and require approval of the president (federal) or governor (state) to take effect.

Senate Bill 1: Parent Bill of Rights (The Texas Parent’s Bill of Rights and Responsibilities, 1995)

The bill was passed on September 1, 1995, by the Texas Legislature

It provided the basic framework of parental rights

The original Parent Bill of Rights has been amended throughout the course of its existence through bills introduced and passed by the Texas Legislature

One amendment included Chapter 26, which gives parents access to records, specifically among the records listed are health and counseling records (Tex. Educ. Code, 2002)

Link: Texas Education Code

Administrative Law

According to Duke Law, "administrative law focuses on the exercise of government authority by the executive branch and its agencies" (Federal Administrative Law | Duke University School of Law, n.d.). Federal administration law concerning education is governed by The Department of Education.

Family Education Rights and Privacy Act (FERPA)

FERPA provides certain rights to parents and students in regard to students' education records.

Education records as defined by FERPA, are records "directly related to [the] student, and maintained by an educational agency or institution or by a party acting for the agency or institution" (FERPA, 1974)

An educational record is not "records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record" (FERPA, 1974)

According to TEA, "under the FERPA, a public school may only hold a child's counseling records from a parent only if the records are kept in the sole possession of the counselor, are used only as the counselor's personal memory aid, and are not accessible or revealed to any other person (School Counseling - FAQs | Texas Education Agency, n.d.).

Link: FERPA

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Case Law

Case law is law, both state and federal, established through the judicial branch of government. With an increase in focus on parental rights, several cases nationwide have challenged privacy policies in regard to school employees' (teachers and counselors) disclosure of a student's information, specifically involving a student's social gender transition to others, including parents. The following cases establish parental authority in making decisions for their children.

H. L. v. Matheson

The Supreme Court of the United States stated, "Constitutional interpretation has consistently recognized that the parents or guardians claim the authority in their own household to direct the rearing of their children is basic in the structure of our society" (H.L. v. Matheson, 1981).

Link: H.L. v. Matheson

Troxel v. Granville

The United States Supreme Court ruled in favor of the parent's right to "oversee the care, custody, and control of a child" (Troxel v. Granville, 2000).

Link: Troxel v. Granville

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Texas public schools are not required to employ school counselors in the State of Texas, but any school that does employ a counselor is mandated by the Texas Administrative Code that those counselors meet state certification requirements (Tex. Admin. Code, 2005).

This mandate impacts school counselors and students in public schools as it ensures that counselors are trained and aware of ethical and legal issues pertaining to confidentiality and the implications of those issues.

Link: Texas Administrative Code, Title 19

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Local Policy

State and federal law drive school board policy.

Local School Board Policy: FL - Student Records

This policy states that the school district is required to make all student records available to the student's parents. (Canyon ISD Board Policy Manual).

This policy is in accordance with and directed by the Texas Education Code.

Link: CISD Student Records

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Risk Management Strategies

Communicate and educate parents in regard to the role of the school counselor. Communication is vital to an effective, credible school counseling program. Glosoff et al. (2002, para 31) state that "educating stakeholders about the parameters of confidentiality when it is not related to any one particular child is the first step." Transparency provides assurance that school staff desire an effective relationship with parents. According to Glosoff et al. (2002, para 30) "there may be when the best interests of minor clients are served by including parents rather than trying to withhold information from them."

Train counselors on FERPA guidelines in regard to parents' access to educational records. Educate counselors on the definition of educational records and memory aids so they can make an informed decision regarding (Glosoff et al., 2002).

Inform students of the limitations of confidentiality prior to having a conversation with them. Being transparent is vital to building trust between the student and the school counselor. Although, ethically, minors have the same rights to confidentiality as adults, legally, they do not have a right to keep information from their parents (Glosoff et al., 2002).

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Ethical Delima

There is increasing debate regarding the obligation that counselors, along with other professionals in education, must inform parents when transgender or gender nonconforming students are socially transitioning at school or when students make a choice to change their pronouns or names and request this information be kept confidential and from their parents.

Are counselors legally or ethically obligated to the students, and must maintain confidentiality?

ASCA Ethical Standards for School Counselors

Ethical Principles

A.1.a According to the ASCA Ethical Standards for School Counselors, school counselors have a "primary obligation to students who are to be treated with dignity and respect"

A.1.b School Counselors "affirm all students and their identity"

A.2.a School Counselors must "promote awareness of school counselors’ ethical standards

and legal mandates regarding confidentiality and the

appropriate rationale and procedures for disclosure of

student data and information to school staff.

A.13.a School Counselors must "abide by the Family Educational Rights and Privacy Act (FERPA), which defines who has access to students’ educational records and allows parents/guardians the right to review the records.

B.1.a Recognize, honor, and respect the importance of parents/guardians when providing services to students in a school setting and collaborate with students’ parents/guardians as appropriate.

Link: ASCA Ethical Standards

Professional school counselors must work to balance each of the above ethical standards as they relate to the above dilemma while also abiding by state and federal laws. They must appreciate and respect the student's privacy while also respecting the relationship and responsibility to the parent, who is ultimately responsible for their guidance.

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10. Personal Connection to Legal and Ethical Standards

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10. Personal Connection to Legal and Ethical Standards

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Personal Connection to Legal and Ethical Standards

In education, as in many professions, ethical standards are vital to maintaining a credible, professional, and effective organization. While school counselors are responsible for understanding and upholding the American School Counseling Association's (ASCA) ethical standards, they must also follow state and federal laws.

In education, it is vital to acknowledge and understand the legal authority parents have and their ultimate responsibility for the well-being of their child, and while this may seem to be in conflict with keeping the confidentiality of students, which counselors ethically are called to do, it must be balanced with what the laws, statutes, and policies require. With the ultimate goal in education being the success of the student, cooperation between parents and education professionals is necessary to achieve this goal.

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11. Recommendations / Best Practices for Compliance

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11. Recommendations / Best Practices for Compliance

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Recommendations and Best Practices

Professional school counselors must provide programs and services that ensure student success.

In accordance with State and Federal Law (FERPA), all student records must be made available for parents to view, with only a few exceptions.

Professional school counselors should be provided professional development to ensure they are up to date on laws both at the state and federal level including what constitutes a professional record in accordance with the Texas Education Code.

Professional school counselors are faced with both legal and ethical issues on a regular basis. Each situation must be carefully considered in full. The ASCA Ethical Standards must be considered along with state and federal law.

Both students and parents should be informed of the legal limits of confidentiality in confiding in the school counselor. Both parties must be aware that although, ethically, minors have the same rights as adults regarding confidentiality, State and Federal law dictates that parents are legally responsible for the well-being of their child. Communication between counselors and parents is vital for an effective school counseling program.

Communication between all parties is key to student success.

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19 Tex. Admin. Code § 239.15 (2005)

About TEA. (n.d.). Texas Education Agency. Retrieved December 11, 2023, from https://tea.texas.gov/about-tea/welcome-and-overview

ASCA Ethical Standards for School Counselors. (2022). American School Counselor Association. https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

An Overview of the U.S. (2010). Department of Education. Retrieved December 11, 2023, from https://www2.ed.gov/about/overview/focus/what.html

Bigham, G. (2013). Framework for understanding the legal structure of Texas public schools. School Leadership Review, 8(1), 5-20.

Canyon ISD Board Policy Manual. https://pol.tasb.org/PolicyOnline?key=1012

Federal Administrative Law | Duke University School of Law. (n.d.). Duke Law School. Retrieved December 12, 2023, from https://law.duke.edu/lib/research-guides/federal-administrative-law

Family Educational Rights and Privacy Act (1974) 20 U.S.C § 1232g

H. L. v. Matheson, 450 U.S. 398 (1981)

Glosoff, H. L., & Pate, , Robert H. (2002). Privacy and Confidentiality in School Counseling. Professional School Counseling, 6(1), 20–27.

Laws & Guidance (n.d.). Department of Education. Retrieved December 11, 2023, from https://www2.ed.gov/policy/landing.jhtml?src=pn

School Counseling - FAQs | Texas Education Agency. (n.d.). Texas Education Agency. Retrieved December 12, 2023, from https://tea.texas.gov/academics/learning-support-and-programs/school-guidance-and-counseling/school-counseling-faqs

Singh S. Drabiak K. Parental rights laws and the impact on mental health services and counseling for adolescents. Journal of School Health. 2021; 93: 1049-1054. DOI: 10.1111/josh13356

Student Privacy at the U.S. Department of Education. (2021). Protecting Student Privacy | U.S. Retrieved December 11, 2023, from https://studentprivacy.ed.gov/

The Texas Parent’s Bill of Rights and Responsibilities. S. bill, 132nd Cong. (1995).

Tex. Const.

Tex. Const., art. 7 § 1

Tex. Educ. Code § 33.006 (1995)

Tex. Educ. Code § 26.004 (2002)

Troxel v. Granville, 530 U.S. 57 (2000)

U.S. Const.

U.S. Const., amend. 10