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Maintaining student confidentiality is an important part of building trust as a school counselor, but there are times when breaking confidentiality is legally and ethically necessary, such as in situations involving safety concerns or abuse. This guide is intended for school counselors, administrators, and educators to provide clarity on the legal and ethical factors that come into play when confidentiality must be broken. Understanding these considerations is critical, as it helps ensure counselors make appropriate decisions when a student’s safety conflicts with their right to privacy.

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At the federal level, the U.S. Department of Education enforces confidentiality through the Family Educational Rights and Privacy Act (FERPA), which protects the privacy of student educational records while allowing for specific exceptions (Centers for Disease Control and Prevention, n.d.). At the state level, the Texas Education Agency (TEA) ensures compliance with FERPA while addressing state-specific laws, such as mandatory reporting requirements for abuse. Through this, I’ve learned that federal agencies create the foundation for confidentiality laws while state agencies tailor and enforce these regulations to meet their local needs.

Centers for Disease Control and Prevention. (n.d.) Family Educational Rights and Privacy Act (FERPA). U.S. Department of Health and Human Servicies. https://www.cdc.gov/phlp/php/resources/family-educational-rights-and-privacy-act-ferpa.html

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Family Educational Rights and Privacy Act (FERPA)

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Office of Public Health Law Services: Family Educational Rights and Privacy Act (FERPA) Overview

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Slide # 3 Federal and State Constitutional Laws

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Slide # 3 Federal and State Constitutional Laws

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Fourth Amendment

Source of Law: United States Congress, U.S. Constitution, Fourth Amendment

Link to Law: Fourth Amendment

Important Points and Legal Requirements:

Protects individuals from unreasonable searches and seizures, ensuring privacy for personal belongings, records, and communications.

Schools must have a reasonable suspicion or legal justification to search or disclose personal student information.

Counselors must secure student records and ensure disclosures are legally justified, such as in cases of imminent danger.

(U.S. Const. amend. IV)

Texas Constitution, Article I, Section 9

Source of Law: Texas Legislature, Texas Constitution, Article I, Section 9

Link to Law: Article I, Section 9

Important Points and Legal Requirements:

Prohibits unreasonable searches and seizures, extending privacy protection to student records in Texas schools.

School counselors must ensure records are accessed or disclosed only with valid and legal justification.

(Tex. Const. art. I, § 9)

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Slide #4 Statutes and Administrative Laws

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Slide #4 Statutes and Administrative Laws

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Family Educational Rights and Privacy Act (FERPA)

Source of the Law: Department of Education

Link to Law: FERPA

Important Points and Legal Requirements:

Protects the privacy of student educational records.

Most disclosures require written consent from parents or eligible students.

Exceptions include health and safety emergencies, compliance with subpoenas, and specific government audits.

Schools must annually notify parents and students of their rights under FERPA.

(20 U.S.C. § 1232g)

Health and Safety Code Title 7, Chapter 611

Source of Law: Texas Legislature

Link to Law: Health and Safety Code

Important Points and Legal Requirements:

Governs the confidentiality and disclosure of mental health records in Texas.

Mental health information may only be disclosed with written consent, a court order, or an imminent risk of harm to the patient or others.

This code requires mental health professionals, such as school counselors, to keep sensitive information confidential.

(Tex. Health & Safety Code § 611)

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Tarasoff v. Regents of the University of California

Source of Law: 551 P.2d 334 (Cal. 1976)

Link to Law: Tarasoff v. Regents of the University of California

Important Points and Legal Requirements:

This case established a "duty to warn," requiring mental health professionals to breach confidentiality when a client poses a serious and imminent threat to another person.

This case influences school counseling where safety concerns may necessitate breaking confidentiality.

This is relevant in schools with bullying incidents. Counselors must consider ethical obligations to confidentiality against the need to protect potential victims and comply with state reporting laws.

(Tarasoff v. Regents of the University of California, 1976)

Eisel v. Board of Education

Source of Law: 324 Md. 376 (1991)

Link to Law: Eisel v. Board of Education

Important Points and Legal Requirements:

School counselors must take reasonable steps to prevent a student's suicide if they are aware of threats or signs of intent.

This case demonstrates the importance of breaking confidentiality to act on warning signs, even if a student requests privacy.

Counselors must report concerns to appropriate authorities or guardians while documenting their actions to ensure compliance with legal and ethical standards.

(Eisel v. Board of Education, 1991)

Eisel v. Board of Education, 324 Md. 376, 597 A.2d 447 (Md. 1991)

Justia. (n.d.). Tarasoff v. Regents of the University of California, 17 Cal. 3d 425

(1976). https://law.justia.com/cases/california/supreme-court/3d/17/425.html

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Protection of Pupil Rights Amendment (PPRA)

Source of Law: United States Department of Education (20 U.S.C. § 1232h)

Link to Law: PPRA

Important Points and Legal Requirements:

Protects students' privacy in surveys, analyses, or evaluations conducted by schools.

PPRA ensures that sensitive information is not collected without proper consent.

Parents must be notified of their rights through PPRA and must be allowed to opt-out.

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Slide # 7 Local Administrative Law/Policy

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Slide # 7 Local Administrative Law/Policy

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Mansfield ISD FL(LOCAL) - Student Records

Source of Policy: Mansfield Independent School District Board Policy

Link to Policy: FL(LOCAL) - Student Records

Policy Information and Legal Requirements:

Campus principals serve as custodian of all student records and are responsible for their confidentiality.

Parents and students who are 18 years or older have the right to access records upon request.

Personally identifiable information from student records cannot be disclosed without written consent, except under specific circumstances such as emergencies or court orders.

(Mansfield Independent School District, 2023)

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Clear Communication of Limits of Confidentiality

Counselors should clearly explain the limits of confidentiality to students in a developmentally appropriate way and to parents during initial sessions (ASCA, n.d.). They must understand that disclosure may be required in certain situations, such as in cases of harm or abuse.

This ensures counselors handle sensitive information correctly and can help build trust with their clients through transparency.

Seek Consultation

Counselors should seek consultation from other school-based mental health professionals or administrations when deciding whether to break confidentiality (ASCA, n.d.).

This allows counselors another perspective on their situation and reduces the risk of bias influencing their decisions.

Documentation

Keep detailed records of counseling sessions and sessions when confidentiality was breached. Document the reason for breaking confidentiality, the information disclosed, and the reason for disclosing (ASCA, n.d.).

Documentation clearly shows the counselor's decision-making process, which is essential in justifying a confidentiality breach. It can protect counselors from legal issues, complaints, and other disciplinary actions.

American School Counselor Association. (n.d.). The school counselor and confidentiality. https://www.schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Confidentiality

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ASCA Ethical Standards for School Counselors, Section A.2 - Confidentiality

"School counselors protect the confidential information received through the counseling relationship as appropriate and required by laws, ethical standards, and school policies, with the following exceptions: imminent danger to the student or others, legal requirements, or if the student poses a risk to others."

Connection to the topic:

This standard connects directly to situations where breaking confidentiality is necessary. School counselors have a legal responsibility to protect students and others in cases involving potential harm or danger. For instance, if a student reveals suicidal thoughts, the counselor must decide when it’s appropriate to break confidentiality and involve parents or guardians. Adhering to this code helps counselors navigate these challenging situations while keeping student safety and confidentiality as top priorities.

American School Counselor Association (ASCA). (2022). ASCA ethical standards for school counselors.

ASCA Ethical Standards for School Counselors

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Slide #10 Personal Connection to the Legal and Ethical Standards

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Slide #10 Personal Connection to the Legal and Ethical Standards

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Learning about legal and ethical standards, like confidentiality and the circumstances that require breaking it, has given me a better understanding of a school counselor’s role. Studying laws such as FERPA and the ASCA ethical standards has shown the importance of balancing ethical duties with legal obligations. This knowledge is essential for my future role as a school counselor and valuable for me as a graduate student, helping me better understand my own educational journey and privacy rights. These connections to the law have made me feel more confident about handling situations in my future role. Knowing these laws in my current role as a teacher is also helpful for me in advocating better for my students.

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Slide #11 Recommendations/Best Practices for Compliance

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Slide #11 Recommendations/Best Practices for Compliance

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1. Clearly communicate the limits of confidentiality through informed consent.

2. When taking notes on clients, keep them concise and non-identifiable.

3. Review policies regularly to stay up-to-date with any changes.

4. Collaborate with other professionals.

5. Document all decisions that are made.

6. Follow an ethical decision-making model.

7. Stay up to date on practices through professional development.

American School Counselor Association. (n.d.). The school counselor and confidentiality. https://www.schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Confidentiality