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As a school counselor, I am faced with many challenges on a daily basis. At times, they can be overwhelming; however, staying true to the ethical and legal aspects of school counseling is in the best interest for all students and counselors. I have to keep in mind what is best for the child even if that means breaking confidentiality. When self-harm is made apparent, the school counselor has no choice but to notify parent/guardians in order to protect the child from further harming themselves.

I chose this Privacy Rights in school counseling because I have seen so many middle schoolers turning to self-harm because they think no one understands and it is the only way to cope with their feelings.

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Must include a summary of the governing agency, at the federal and state level, in your field of practice with practical expertise related to the Guide topic. The summary should include what you learned about governing bodies and accountability at the federal and state level.

1. The U.S. Department of Education administers and enforces student privacy laws according to the Protection of Pupil Rights Amendment (PPRA) and the Family Educational Rights and Privacy Act (FERPA)(Student Privacy at the U.S. Department of Education, 2021).

2. The Texas Education Agency (TEA) helps to administer the rules and laws that are put in place for education in Texas (Federal Laws & Rules, n.d.). They help to enforce all laws for the betterment of the education world.

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The Texas Education Agency administers the laws and rules that govern education in the state. This page provides information on existing laws and rules, the process by which rules are adopted, and the enforcement of those rules.

Federal Laws and Rules

Special Education
Special Education in Texas is subject to a specific set of state and federal rules and regulations. This page includes information on special education laws dictated by federal law (the Individuals with Disabilities Education Act), State Board of Education rules, commissioner's rules, and state laws.

No Child Left Behind and Elementary and Secondary Education Act
The Elementary and Secondary Education Act of 1965 (ESEA), amended as the No Child Left Behind Act of 2001 (NCLB), aims to close the achievement gap between groups of students through greater accountability and increased flexibility and choice.

State Administrative Rules

State Board of Education Rules - Texas Administrative Code (TAC)
This page provides information on State Board of Education (SBOE) rulemaking, including links to the Texas Administrative Code (TAC), proposed and adopted rules, and rule review.

Proposed SBOE Rules
This page provides links to all proposed new rules, proposed amendments to existing rules, and proposed repeals approved for first reading by the State Board of Education (SBOE) and filed with the Texas Register.

Commissioner of Education Rules - Texas Administrative Code (TAC)
This page provides information on Commissioner of Education rulemaking, including links to the Texas Administrative Code (TAC), proposed and adopted rules, and rule review.

Proposed Commissioner Rules
This page provides links to all proposed new rules, proposed amendments to existing rules, and proposed repeals approved by the Commissioner of Education and filed with the Texas Register.

State Board for Educator Certification Rules - Texas Administrative Code (TAC)
This page provides information on State Board for Educator Certification (SBEC) rulemaking, including links to the Texas Administrative Code (TAC), proposed and adopted rules, and rule review.

Proposed SBEC Rules
This page provides links to all proposed new rules, proposed amendments to existing rules, and proposed repeals approved by the State Board for Educator Certification and filed with the Texas Register.

Other State Laws

Texas Education Code (outside source)
The Texas Education Code includes all laws and rules passed by the state legislature. It applies to most educational institutions that are supported in whole or part by state tax funds.

Texas Constitution and Statutes (outside source)
Searchable index of all state codes and the Texas Constitution.

Texas Administrative Code (outside source)
Compilation of all state agency rules in Texas.

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The Texas Education Agency administers the laws and rules that govern education in the state. This page provides information on existing laws and rules, the process by which rules are adopted, and the enforcement of those rules. Special Education Special Education in Texas is subject to a specific set of state and federal rules and regulations.

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The Fourteenth Amendment of the United States Constitution grants equal rights to all United States citizens (U.S. Const. amend. XIV, § 2.).

This allows:

Students to have rights when talking with school counselors

Gives parental rights to know what is being discussed.

Not adhering to this law can lead to lawsuits, fines, etc.

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Passed by Congress June 13, 1866, and ratified July 9, 1868, the 14th Amendment extended liberties and rights granted by the Bill of Rights to formerly enslaved people.

Following the Civil War, Congress submitted to the states three amendments as part of its Reconstruction program to guarantee equal civil and legal rights to Black citizens. A major provision of the 14th Amendment was to grant citizenship to "All persons born or naturalized in the United States," thereby granting citizenship to formerly enslaved people.

Another equally important provision was the statement that "nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The right to due process of law and equal protection of the law now applied to both the federal and state governments.

On June 16, 1866, the House Joint Resolution proposing the 14th Amendment to the Constitution was submitted to the states. On July 28, 1868, the 14th amendment was declared, in a certificate of the Secretary of State, ratified by the necessary 28 of the 37 States, and became part of the supreme law of the land.

Congressman John A. Bingham of Ohio, the primary author of the first section of the 14th Amendment, intended that the amendment also nationalize the Bill of Rights by making it binding upon the states. When introducing the amendment, Senator Jacob Howard of Michigan specifically stated that the privileges and immunities clause would extend to the states "the personal rights guaranteed and secured by the first eight amendments." Historians disagree on how widely Bingham's and Howard's views were shared at the time in the Congress, or across the country in general. No one in Congress explicitly contradicted their view of the amendment, but only a few members said anything at all about its meaning on this issue. For many years, the Supreme Court ruled that the amendment did not extend the Bill of Rights to the states.

Not only did the 14th Amendment fail to extend the Bill of Rights to the states; it also failed to protect the rights of Black citizens. A legacy of Reconstruction was the determined struggle of Black and white citizens to make the promise of the 14th Amendment a reality. Citizens petitioned and initiated court cases, Congress enacted legislation, and the executive branch attempted to enforce measures that would guard all citizens' rights. While these citizens did not succeed in empowering the 14th Amendment during Reconstruction, they effectively articulated arguments and offered dissenting opinions that would be the basis for change in the 20th century.

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14th Amendment to the U.S. Constitution: Civil Rights (1868)

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EnlargeDownload Link Citation: The House Joint Resolution Proposing the 14th Amendment to the Constitution, June 16, 1866; Enrolled Acts and Resolutions of Congress, 1789-1999; General Records of the United States Government; Record Group 11; National Archives.

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Texas Constitution states people cannot be searched or seized without probable cause with supported documentation (Tex. Const. art. 1§ 9).

This law goes hand in hand when dealing with students.

You cannot search and seize them without probable cause.

Not adhering to this law would land you in a legal battle.

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THE TEXAS CONSTITUTION



ARTICLE 1. BILL OF RIGHTS



That the general, great and essential principles of liberty and free government may be recognized and established, we declare:


Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.


(Feb. 15, 1876.)


Sec. 2. INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.


(Feb. 15, 1876.)


Sec. 3. EQUAL RIGHTS. All freemen†, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 3a. EQUALITY UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.


(Added Nov. 7, 1972.)


Sec. 4. RELIGIOUS TESTS. No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.


(Feb. 15, 1876.)


Sec. 5. WITNESSES NOT DISQUALIFIED BY RELIGIOUS BELIEFS; OATHS AND AFFIRMATIONS. No person shall be disqualified to give evidence in any of the Courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury.


(Feb. 15, 1876.)


Sec. 6. FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.


(Feb. 15, 1876.)


Sec. 6-a. RELIGIOUS SERVICE PROTECTIONS. This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.


(Added Nov. 2, 2021.)


Sec. 7. APPROPRIATIONS FOR SECTARIAN PURPOSES. No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes.


(Feb. 15, 1876.)


Sec. 8. FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the Court, as in other cases.


(Feb. 15, 1876.)


Sec. 9. SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.


(Feb. 15, 1876.)


Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall hav† a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself† and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense.† unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penetentiary†, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.


(Feb. 15, 1876. Amended Nov. 5, 1918.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 11. BAIL. All prisoners shall be bailable by sufficient sureties, unless for capital offences†, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 11a. DENIAL OF BAIL AFTER MULTIPLE FELONIES. (a) Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or (4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals.


(b) In this section:


(1) "Violent offense" means:


(A) murder;


(B) aggravated assault, if the accused used or exhibited a deadly weapon during the commission of the assault;


(C) aggravated kidnapping; or


(D) aggravated robbery.


(2) "Sexual offense" means:


(A) aggravated sexual assault;


(B) sexual assault; or


(C) indecency with a child.


(Added Nov. 6, 1956; amended Nov. 8, 1977; Subsec. (a) amended and (b) added Nov. 2, 1993.)


Sec. 11b. DENIAL OF BAIL FOR VIOLATION OF CONDITION OF RELEASE. Any person who is accused in this state of a felony or an offense involving family violence, who is released on bail pending trial, and whose bail is subsequently revoked or forfeited for a violation of a condition of release may be denied bail pending trial if a judge or magistrate in this state determines by a preponderance of the evidence at a subsequent hearing that the person violated a condition of release related to the safety of a victim of the alleged offense or to the safety of the community.


(Added Nov. 8, 2005; amended Nov. 6, 2007.)


Sec. 11c. DENIAL OF BAIL FOR VIOLATION OF PROTECTIVE ORDER INVOLVING FAMILY VIOLENCE. The legislature by general law may provide that any person who violates an order for emergency protection issued by a judge or magistrate after an arrest for an offense involving family violence or who violates an active protective order rendered by a court in a family violence case, including a temporary ex parte order that has been served on the person, or who engages in conduct that constitutes an offense involving the violation of an order described by this section may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate in this state determines by a preponderance of the evidence that the person violated the order or engaged in the conduct constituting the offense.


(Added Nov. 6, 2007.)


Sec. 12. HABEAS CORPUS. The writ of Habeas Corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.


(Feb. 15, 1876.)


Sec. 13. EXCESSIVE BAIL OR FINES; CRUEL OR UNUSUAL PUNISHMENT; OPEN COURTS; REMEDY BY DUE COURSE OF LAW. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.


(Feb. 15, 1876.)


Sec. 14. DOUBLE JEOPARDY. No person, for the same offence†, shall be twice put in jeopardy of life or liberty,† nor shall a person be again put upon trial for the same offence,† after a verdict of not guilty in a court of competent jurisdiction.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here and here.


Sec. 15. RIGHT OF TRIAL BY JURY. The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. Provided, that the Legislature may provide for the temporary commitment, for observation and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of time not to exceed ninety (90) days, by order of the County Court without the necessity of a trial by jury.


(Feb. 15, 1876. Amended Aug. 24, 1935.)


Sec. 15-a. COMMITMENT OF PERSONS OF UNSOUND MIND. No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony. The Legislature may enact all laws necessary to provide for the trial, adjudication of insanity and commitment of persons of unsound mind and to provide for a method of appeal from judgments rendered in such cases. Such laws may provide for a waiver of trial by jury, in cases where the person under inquiry has not been charged with the commission of a criminal offense, by the concurrence of the person under inquiry, or his next of kin, and an attorney ad litem appointed by a judge of either the County or Probate Court of the county where the trial is being held, and shall provide for a method of service of notice of such trial upon the person under inquiry and of his right to demand a trial by jury.


(Added Nov. 6, 1956.)


Sec. 16. BILLS OF ATTAINDER; EX POST FACTO OR RETROACTIVE LAWS; IMPAIRING OBLIGATION OF CONTRACTS. No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.


(Feb. 15, 1876.)


Sec. 17. TAKING PROPERTY FOR PUBLIC USE; SPECIAL PRIVILEGES AND IMMUNITIES; CONTROL OF PRIVILEGES AND FRANCHISES. (a) No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for:


(1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by:


(A) the State, a political subdivision of the State, or the public at large; or


(B) an entity granted the power of eminent domain under law; or


(2) the elimination of urban blight on a particular parcel of property.


(b) In this section, "public use" does not include the taking of property under Subsection (a) of this section for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues.


(c) On or after January 1, 2010, the legislature may enact a general, local, or special law granting the power of eminent domain to an entity only on a two-thirds vote of all the members elected to each house.


(d) When a person's property is taken under Subsection (a) of this section, except for the use of the State, compensation as described by Subsection (a) shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority, shall be subject to the control thereof.


(Feb. 15, 1876. Amended Nov. 3, 2009.)


Sec. 18. IMPRISONMENT FOR DEBT. No person shall ever be imprisoned for debt.


(Feb. 15, 1876.)


Sec. 19. DEPRIVATION OF LIFE, LIBERTY, PROPERTY, ETC. BY DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.


(Feb. 15, 1876.)


Sec. 20. OUTLAWRY OR TRANSPORTATION OUT OF STATE FOR OFFENSE. No citizen shall be outlawed. No person shall be transported out of the State for any offense committed within the same. This section does not prohibit an agreement with another state providing for the confinement of inmates of this State in the penal or correctional facilities of that state.


(Feb. 15, 1876. Amended Nov. 5, 1985.)


Sec. 21. CORRUPTION OF BLOOD; FORFEITURE OF ESTATE; SUICIDES. No conviction shall work corruption of blood, or forfeiture of estate, and the estates of those who destroy their own lives shall descend or vest as in case of natural death.


(Feb. 15, 1876.)


Sec. 22. TREASON AGAINST STATE. Treason against the State shall consist only in levying war against it, or adhering to its enemies, giving them aid and comfort; and no person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or on confession in open court.


(Feb. 15, 1876.)


Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defence† of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 24. MILITARY SUBORDINATE TO CIVIL AUTHORITY. The military shall at all times be subordinate to the civil authority.


(Feb. 15, 1876.)


Sec. 25. QUARTERING SOLDIERS IN HOUSES. No soldier shall in time of peace be quartered in the house of any citizen without the consent of the owner, nor in time of war but in a manner prescribed by law.


(Feb. 15, 1876.)


Sec. 26. PERPETUITIES AND MONOPOLIES; PRIMOGENITURE OR ENTAILMENTS. Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State.


(Feb. 15, 1876.)


Sec. 27. RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.


(Feb. 15, 1876.)


Sec. 28. SUSPENSION OF LAWS. No power of suspending laws in this State shall be exercised except by the Legislature.


 (Feb. 15, 1876.)


Sec. 29. BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that every thing in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.


(Feb. 15, 1876.)


Sec. 30. RIGHTS OF CRIME VICTIMS. (a) A crime victim has the following rights:


(1) the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process; and


(2) the right to be reasonably protected from the accused throughout the criminal justice process.


(b) On the request of a crime victim, the crime victim has the following rights:


(1) the right to notification of court proceedings;


(2) the right to be present at all public court proceedings related to the offense, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial;


(3) the right to confer with a representative of the prosecutor's office;


(4) the right to restitution; and


(5) the right to information about the conviction, sentence, imprisonment, and release of the accused.


(c) The legislature may enact laws to define the term "victim" and to enforce these and other rights of crime victims.


(d) The state, through its prosecuting attorney, has the right to enforce the rights of crime victims.


(e) The legislature may enact laws to provide that a judge, attorney for the state, peace officer, or law enforcement agency is not liable for a failure or inability to provide a right enumerated in this section. The failure or inability of any person to provide a right or service enumerated in this section may not be used by a defendant in a criminal case as a ground for appeal or post-conviction writ of habeas corpus. A victim or guardian or legal representative of a victim has standing to enforce the rights enumerated in this section but does not have standing to participate as a party in a criminal proceeding or to contest the disposition of any charge.


(Added Nov. 7, 1989.)


Sec. 31. FUNDS FOR COMPENSATION TO VICTIMS OF CRIME. (a) The compensation to victims of crime fund created by general law and the compensation to victims of crime auxiliary fund created by general law are each a separate dedicated account in the general revenue fund.


(b) Except as provided by Subsection (c) of this section and subject to legislative appropriation, money deposited to the credit of the compensation to victims of crime fund or the compensation to victims of crime auxiliary fund from any source may be expended as provided by law only for delivering or funding victim-related compensation, services, or assistance.


(c) The legislature may provide by law that money in the compensation to victims of crime fund or in the compensation to victims of crime auxiliary fund may be expended for the purpose of assisting victims of episodes of mass violence if other money appropriated for emergency assistance is depleted.


(Added Nov. 4, 1997.)


Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman.


(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.


(Added Nov. 8, 2005.)


Sec. 33. PUBLIC ACCESS TO AND USE OF PUBLIC BEACHES. (a) In this section, "public beach" means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low tide to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescription or dedication or has established and retained a right by virtue of continuous right in the public under Texas common law.


(b) The public, individually and collectively, has an unrestricted right to use and a right of ingress to and egress from a public beach. The right granted by this subsection is dedicated as a permanent easement in favor of the public.


(c) The legislature may enact laws to protect the right of the public to access and use a public beach and to protect the public beach easement from interference and encroachments.


(d) This section does not create a private right of enforcement.


(Added Nov. 3, 2009.)


Sec. 34. RIGHT TO HUNT, FISH, AND HARVEST WILDLIFE. (a) The people have the right to hunt, fish, and harvest wildlife, including by the use of traditional methods, subject to laws or regulations to conserve and manage wildlife and preserve the future of hunting and fishing.


(b) Hunting and fishing are preferred methods of managing and controlling wildlife.


(c) This section does not affect any provision of law relating to trespass, property rights, or eminent domain.


(d) This section does not affect the power of the legislature to authorize a municipality to regulate the discharge of a weapon in a populated area in the interest of public safety.


(Added Nov. 3, 2015.)


Sec. 35. RIGHT OF CERTAIN FACILITY RESIDENTS TO DESIGNATE ESSENTIAL CAREGIVER. (a) A resident of a nursing facility, assisted living facility, intermediate care facility for individuals with an intellectual disability, residence providing home and community-based services, or state supported living center, as those terms are defined by general law, has the right to designate an essential caregiver with whom the facility, residence, or center may not prohibit in-person visitation.


(b) Notwithstanding Subsection (a) of this section, the legislature by general law may provide guidelines for a facility, residence, or center described by Subsection (a) of this section to follow in establishing essential caregiver visitation policies and procedures.


(Added Nov. 2, 2021.)

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THE TEXAS CONSTITUTION ARTICLE 1. BILL OF RIGHTS

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Family Educational Rights and Privacy Act (FERPA) protects students records by keeping them confidential unless stated otherwise. (Family Education Rights and Privacy Act [FERPA], 1974).

It is up to the agency, U.S. Department of Education and school districts, to ensure the law is being upheld.

If it is broken funding could be lost and/or the individual could be fined(The Ultimate Guide to FERPA | Everything to Know, 2022).

This is important because the students and their families know they have protection from their information being public.

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The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.

FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Students to whom the rights have transferred are "eligible students."

Parents or eligible students have the right to inspect and review the student's education records maintained by the school. Schools are not required to provide copies of records unless, for reasons such as great distance, it is impossible for parents or eligible students to review the records. Schools may charge a fee for copies.

Parents or eligible students have the right to request that a school correct records which they believe to be inaccurate or misleading. If the school decides not to amend the record, the parent or eligible student then has the right to a formal hearing. After the hearing, if the school still decides not to amend the record, the parent or eligible student has the right to place a statement with the record setting forth his or her view about the contested information.

Generally, schools must have written permission from the parent or eligible student in order to release any information from a student's education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR § 99.31):

School officials with legitimate educational interest;

Other schools to which a student is transferring;

Specified officials for audit or evaluation purposes;

Appropriate parties in connection with financial aid to a student;

Organizations conducting certain studies for or on behalf of the school;

Accrediting organizations;

To comply with a judicial order or lawfully issued subpoena;

Appropriate officials in cases of health and safety emergencies; and

State and local authorities, within a juvenile justice system, pursuant to specific State law.

Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.

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policy; privacy; academic records; technical assistance; parent rights; student rights; ferpa

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Family Educational Rights and Privacy Act (FERPA)

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Family Educational Rights and Privacy Act (FERPA) Home Page.

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U.S. Privacy Act of 1974 is dealing with the rights and restrictions on data held by government agencies(United States Privacy Act, 1974).

Records must be kept private

Information students share with school counselors must be private unless otherwise stated.

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The Privacy Act of 1974, 5 U.S.C. § 552a, establishes a code of fair information practices that governs the collection, maintenance, use, and dissemination of information about individuals that is maintained in systems of records by federal agencies. A system of records is a group of records under the control of an agency from which information is retrieved by the name of the individual or by some identifier assigned to the individual.

The Privacy Act requires that agencies give the public notice of their systems of records by publication in the Federal Register. Click here to see a list of DOJ systems of records and their Federal Register citations. The Privacy Act prohibits the disclosure of a record about an individual from a system of records absent the written consent of the individual, unless the disclosure is pursuant to one of twelve statutory exceptions. The Act also provides individuals with a means by which to seek access to and amendment of their records, and sets forth various agency record-keeping requirements.

Overview of the Privacy Act

The " Overview of the Privacy Act of 1974, 2015 Edition" is a comprehensive treatise of existing Privacy Act case law. Any questions regarding the Overview may be directed to the Office of Privacy and Civil Liberties staff.

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The Privacy Act of 1974, 5 U.S.C. § 552a, establishes a code of fair information practices that governs the collection, maintenance, use, and dissemination of information about individuals that is maintained in systems of records by federal agencies.

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The Texas Education Code states that parents are partners with educators so that they are able to be active in their child's education (2 Tex. Educ. Code § 26.001).

It is up to the school districts, to ensure the law is being upheld.

This is important because counselors need parent involvement when it comes to the best interest of their students and the counseling program.

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EDUCATION CODE CHAPTER 26. PARENTAL RIGHTS AND RESPONSIBILITIES

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EDUCATION CODE TITLE 2. PUBLIC EDUCATION SUBTITLE E. STUDENTS AND PARENTS CHAPTER 26. PARENTAL RIGHTS AND RESPONSIBILITIES Sec. 26.001. PURPOSE. (a) Parents are partners with educators, administrators, and school district boards of trustees in their children's education. Parents shall be encouraged to actively participate in creating and implementing educational programs for their children.

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The state of Texas approved the Texas Medical Privacy Act to ensure they remain in compliance with federal laws when it comes to patient confidentiality (Texas Medical Privacy Act into law. S.B.11, 2001).

Again, keeping records and information about students confidential is a must.

This extends to than what HIPAA covers.

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Texas Medical Privacy Act Adopts and Expands the HIPAA Privacy Regulations

Jessica Luna, J.D. Candidate

On June 17, 2001, Texas Governor Rick Perry signed the Texas Medical Privacy Act into law. S.B.11 (2001). The Act is designed to bring Texas into compliance with Federal standards on patient privacy as enumerated by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). 65 Fed. Reg. 82,461 (2000). See http://aspe.os.dhhs.gov/admnsimp/Index.htm. The Texas Medical Privacy Act will also expand the protections mandated by HIPAA in three areas. First, the Act applies to a broader range of entities. Second, the Act does not allow a patient's health information to be marketed, or to be used in marketing, without that patient's consent or authorization. Third, the Act prohibits the re-identification of information that has been de-identified.

HIPAA was enacted on August 21, 1996. Title I of the Act deals with health insurance access, portability, and renewability. Title II authorized the Secretary of the Department of Health and Human Services (DHHS) to promulgate final regulations for maintaining the privacy and security of health information if Congress did not enact such legislation within 36 months of HIPAA's enactment. Congress missed the deadline; therefore, the Secretary issued a final regulation dealing with the security and privacy of protected health information (PHI) on December 20, 2000. The HIPAA Privacy Regulation was formally enacted on April 14, 2001. 45 C.F.R. §§160-164 (2000). See http://aspe.hhs.gov/admnsimp/final/PvcTxt01.htm. On July 6, 2001, the Secretary of the DHHS issued guidelines on the Privacy Regulations. The guidelines clarify the requirements and answer questions about the Regulations. See http://www.hhs.gov/ocr/hipaa/index.html#Initial%20Guidance.

HIPAA is the first federal legislation to initiate uniform privacy standards for patient information. Prior to the enactment of the HIPAA Privacy Regulation, it was up to the states to provide legislation to protect the privacy of patient information. The state laws, however, varied greatly and were often too narrow in their application. See "The State of Health Privacy: An Uneven Terrain," http://www.healthprivacy.org. HIPAA sets a floor of ground rules for health care providers, health plans, and health care clearinghouses to follow, in order to protect patients and encourage them to seek needed care. It creates a framework of protection that can be strengthened by both the federal government and by states as health information systems continue to evolve. 65 Fed. Reg. at 82,464. HIPAA's provisions allow existing state laws that are more protective of privacy to stand, and permit states to make more protective laws in the future. 45 C.F.R. §160.203(b)

The Texas Medical Privacy Act is an example of a state law that provides more protection for patient privacy than is provided under HIPAA. The Act adopts the basic tenets of the HIPAA Privacy Standards and provides additional protections for Texans in some areas where HIPAA has left gaps. The following chart is a basic comparison between HIPAA regulations and those of the Texas Medical Privacy Act. The portions in bold describe sections of the Texas Medical Privacy Act that fill a gap left by HIPAA.

Any person who engages in the practice of assembling, collecting, analyzing, using, evaluating, storing, or transmitting PHI, etc. This covers many more entities and individuals than HIPAA.

PHI is "individually identifiable health information," whether transmitted orally, electronically, or on paper. Individually identifiable health information, including demographic information, is information that:

PHI is individually identifiable health information, including demographic information, that:

Relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment of health care for an individual;

Identifies, or could be used to identify, the person who is the subject of the information

§181.001(b)(5)(A)&(B).

Individuals have rights with respect to their medical information, including the right to:

Receive notice of an entities privacy practices (§164.520);

Inspect and copy (§164.524);

Request restrictions on use or disclosure (§164.522);

Receive an accounting of disclosures (§164.528);

Request amendments or corrections (§164.526); and

File a complaint (§160.306).

Requires that health plans and health care providers provide written notice of their privacy practices, including:

The individual's rights with respect to PHI; and

The anticipated uses and disclosures of information that may be made without the individual's authorization.

Uses and Disclosures of PHI

The covered entity must obtain written:

Consent of the individual prior to uses and disclosures relating to treatment, payment, and health care operations (note: this is not the informed consent typically used for treatment)
A covered health care provider or a health plan may condition treatment or enrollment in a health plan on the provision by the individual of a consent under this section.
Authorization of the individual prior to uses and disclosures for purposes other than treatment, payment, and health care operations.

Uses and Disclosures Allowed Without Consent or Authorization

No consent or authorization need be obtained prior to the use and disclosure of PHI for:

Public health activities;

Law enforcement purposes;

Health oversight activities;

Judicial and administrative proceedings;

Disclosures about decedents to coroners, medical examiners, funeral directors, or for organ donation purposes;

Specialized government functions; or

Worker's compensation.

No consent or authorization need be obtained prior to the use and disclosure of PHI for: §181.052-181.057

A covered entity must obtain an authorization for any use or disclosure of psychotherapy notes.

Exception: Only consent is required for treatment, payment, or health care operations in the following circumstances:
§164.508(a)(2)(i).

PHI may be disclosed to researchers, regardless of the source of funding of the research, only if the researcher has obtained:

Individual consent and authorization for research (§164.508(f).); or

Documentation that a waiver for consent or authorization has been granted by an IRB or "privacy board." (§164.512(i).)

The Texas law includes the same requirements as HIPAA except that consent or authorization is required for research without an IRB waiver.

PHI may not be used, disclosed, or sold for marketing purposes without first obtaining consent or authorization from the individual. Written communications must explain the recipient's right to removal from the mailing list, and removal must be accomplished within five days after the receipt of the request. The Texas Medical Privacy Act is much more restrictive of marketing than HIPAA is. HIPAA allows covered entities to market virtually all types of health products, with a few restrictions, without obtaining authorization from the individual. The Texas Medical Privacy Act prohibits any release of PHI for marketing purposes without consent or authorization from the individual.

De-identification and Re-identification

De-identified health information is information that cannot be used to identify the individual because individual identifiers have been removed. This information is not considered PHI, and can be used or disclosed without an individual's consent or authorization

A covered entity may assign a code or other means of record identification to allow previously de-identified information to be re-identified, provided that the means of record identification cannot be used to identify the individual, and the covered entity does not disclose the mechanism for reidentification.

A person may not re-identify or attempt to re-identify an individual who is the subject of any protected health information without obtaining the individual's consent or authorization. HIPAA allows de-identified information to be re-identified under specific guidelines, however, the Texas Medical Privacy Act does not allow re-identification at all.

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Texas Medical Privacy Act, Health Law & Policy Institute

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A court case in North Carolina, parents of an abused child filed a claim that the school counselor and social worker ignored their request to keep the information of the abuse private and shared with school educators (N.C. ex rel. M.C. v. Bedford Cent. Sch. Dist., 2004).

The court ruled in favor of the school.

This case is important because it shows how difficult the decision process is for school counselors when thinking about their students’ best interest.

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I. BACKGROUND :

A. PROCEDURAL HISTORY:

On or about March 7, 2004, Mr. and Mrs. N.C. (the "Plaintiffs") commenced this action against the Bedford Central School District (the "District") and against three individual defendants: William Reulbach, a social worker employed by the District ("Dr. Reulbach"), Rory Mackie, a middle school guidance counselor employed by the District ("Ms. Mackie"), and Linda Schluter, the Assistant Superintendent for Special Education and Student Services ("Ms. Schluter"; collectively the District, Dr. Reulbach, Ms. Mackie and Ms. Schluter are referred to herein as the "Defendants"). The Plaintiffs filed this action on behalf of their son, M.C. (the "Student"), a former student in the District.

On or about April 21, 2004, Plaintiffs served a First Amended Complaint (the "Complaint") on the Defendants. The Complaint asserts four causes of action against the Defendants: (1) a violation of the Student's fundamental right to privacy pursuant to 42 U.S.C. § 1983 ("1983") against Dr. Reulbach and Ms. Mackie; (2) a claim against all of the Defendants pursuant to New York State Civil Rights Law § 50-b ("§ 50-b") for a violation of the Student's right to privacy; (3) a claim against Ms. Schluter for a failure to supervise pursuant to § 1983; and (4) a claim against the District for a failure to provide adequate training and supervision to its personnel pursuant to § 1983.

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State of Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States of other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution or laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]

Section 50-b creates a right of privacy for victims of sex offense and states that "no report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies such a victim shall be made available for public inspection." The statute further states that "no such public officer or employee shall disclose any portion of any police report, court files, or other document, which tends to identify such a victim" with certain exceptions.

On or about May 3, 2004, Defendants filed a motion to dismiss the Plaintiffs' Complaint (the "Defendants' Motion") for the failure to state a claim arguing (1) that the communications regarding the Student's sexual abuse served a legitimate educational purpose and therefore did not violate any constitutional right; (2) that Dr. Reulbach and Ms. Mackie have a qualified privilege arising from their interest in assisting the Committee of Special Education (the "CSE") in its evaluation of the Student; (3) that the claims of supervisory liability against Ms. Schluter should be dismissed on the grounds of qualified immunity; and (4) that the District is not liable, first, because the Plaintiffs fail to allege a violation of a policy or custom and, second, because liability does not arise for unforeseeable error. In regard to the Plaintiffs' cause of action arising under § 50-b, the Defendants' Motion argues that the statute does not provide a private right of action and thus should be dismissed or, alternatively, should be dismissed for lack of proper pendent jurisdiction. The Plaintiffs filed an opposition to the Defendants' Motion (the "Plaintiffs' Opposition"), and the Defendants submitted a reply (the "Defendants' Reply").

Additionally, on or about May 23, 2004, the Plaintiffs filed a motion requesting permission to file a supplemental pleading (the "Supplemental Pleading Motion") pursuant to Federal Rule of Civil Procedure 15(d). The Supplemental Pleading Motion seeks to add a claim appealing the decision by the CSE, pursuant to the Individuals with Disabilities Education Act ("IDEA"), that the Student is not handicapped within the meaning of the IDEA (the "CSE Decision"). The Defendants oppose the Supplemental Pleading Motion arguing that it raises separate and distinct claims from the Complaint and that these new claims do not involve the same facts and circumstances.

Federal Rule of Civil Procedure Rule 15(d) mandates that the "court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented."

On or about July 20, 2004, the Plaintiffs and Defendants appeared before this Court for oral argument. At the Court's request, on or about July 23, 2004, the Plaintiffs provided this Court with a letter that cited the specific communications allegedly made by Dr. Reulbach, which gave rise to the Plaintiffs' claims (the "Plaintiffs' Letter"). On or about July 29, 2004, the Defendants provided this Court with a reply to the Plaintiffs' Letter.

B. FACTUAL BACKGROUND:

In 1999-2000, when the Student was in seventh grade, Mrs. N.C.'s male cousin (the "Cousin"), began giving the Student gifts, watching pornographic videos with the Student, providing prostitutes for the Student to engage in sexual conduct, and prompting the Student to have sexual intercourse with a female while the Cousin watched. In May of 2000, the Plaintiffs became aware of the Cousin's sexual misconduct with the Student and obtained an Order of Protection (the "Protective Order") against the Cousin. Despite the Protective Order, the Cousin continued to contact the Student and to offer him gifts. By 2001-2002, when the Student was in ninth grade, the Cousin's conduct had escalated to sodomy.

In April of 2002, The Cousin was identified through a police internet sting. Computer records seized by the police indicated that the The Cousin had been boasting about having sex with his fourteen year old cousin. The Cousin's arrest was published in local newspapers. The Student testified before Grand Juries in Westchester and Bronx counties to secure indictments against the The Cousin. The The Cousin was sentenced to two to six years in state prison on or about June 25, 2003.

In April of 2002, the Student spoke with Dr. Reulbach and told him that the Cousin had maintained contact with him despite the Protective Order. After receiving such information, Dr. Reulbach accompanied the Student to his home, upon the Student's request, to notify the Plaintiffs of the Cousin's violation of the Protective Order. The Plaintiffs allege that the only person in the District to whom the Student revealed his sexual abuse history was Dr. Reulbach. Upon notification that the Protective Order had been violated, the Plaintiffs contacted the police, and the Cousin was arrested. Subsequently, the Student remained in contact with Dr. Reulbach and related to him that he had been sodomized by the Cousin. Dr. Reulbach and the Student relayed this information to the Plaintiffs.

In March 2003, the Plaintiffs referred the Student to the CSE and sought to have the Student classified as "emotionally disturbed" pursuant to the IDEA. The Plaintiffs described the Student's abuse as "trauma" during the CSE evaluations due to the Student's confidentiality concerns. On or about May 25, 2003, the CSE determined that the Student was not emotionally disturbed within the meaning set forth by the IDEA. The Plaintiffs sought an impartial hearing to dispute the CSE's Decision. On or about June 24, 2003, there was a pre-hearing conference, where it was disclosed that the Student had been the victim of sexual abuse. In December of 2003, at a subsequent impartial hearing regarding the CSE's Decision, the Plaintiffs learned that the CSE was aware of the Student's sexual abuse history. Dr. Jeffrey Schein ("Dr. Schein") testified that Ms. Mackie told him that the Student had been sexually abused by an older boy. Dr. Schein testified that he got this information from Ms. Mackie when he interviewed her in conjunction with his administration of a psychological evaluation of the Student as a part of the CSE's review. Additionally, in a written report to the CSE, Dr. Reulbach included a social history of the Student, which provided information regarding the Student's sexual abuse. II. STANDARD OF REVIEW :

A classification as "emotionally disturbed" by the CSE would entitle the Student to special education services. The classification is made pursuant to 8 NYCRR 200.1(4)(zz).

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move to dismiss a complaint for "failure to state a claim upon which relief can be granted." The burden of proof is on the party moving for a Rule 12(b)(6) dismissal to show that no claim has been stated. The movant must show "beyond doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "[A] complaint should not be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996), ( quoting Hughes v. Rowe, 449 U.S. 5, 10 (1980)). During a Rule 12(b)(6) review, the issue for the Court is not whether the plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Scheur v. Rhodes, 416 U.S. 232, 236 (1974). When considering a motion to dismiss for failure to state a claim, the Court must accept the factual allegations set forth in the complaint as true, Villager Pond v. Town of Darien, 56 F.3d 375, 377 (2d Cir. 1995), and the Court must draw all reasonable inferences in favor of the non-moving party, Jackson Nat'l Life Ins. Co. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994).

III. ANALYSIS :

A. MOTION TO DISMISS:

1. Constitutional Right to Privacy and/or Confidentiality:
The Defendants' first ground for dismissal under Rule 12(b)(6) is that the Plaintiffs have failed to show that Dr. Reulbach and Ms. Mackie's disclosure violated the Student's constitutional right to privacy. In order to maintain a § 1983 claim, two essential elements must be present: (1) the conduct complained of must have been committed by a person acting under color of state law; and (2) the conduct complained of must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States. See e.g. Parrat v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds byDaniel v. Williams, 474 U.S. 327 (1986). In the case at bar, the Defendants do not challenge the first element, that the Defendants were "acting under color of state law." However, the Defendants do contest the existence of the second element, deprivation of a constitutional right.
With respect to the Plaintiffs alleged deprivation of a constitutional right, two constitutional issues arise in this case. First, this Court must determine whether the Student had a right to privacy to keep the information regarding his sexual abuse history confidential. Second, to the extent this Court finds that such a right exists, it must ascertain whether that right was violated when this information was relayed by Dr. Reulbach and Ms. Mackie to the CSE and Dr. Shein.

The Second Circuit has found that the privacy of personal matters is a protected interest, Barry v. City of N.Y., 712 F.2d 1554, 1559 (2d Cir.), cert. denied, 464 U.S. 1017 (1983), and has characterized it as a right to "confidentiality," as distinguished from the right to autonomy and independence in decision-making for personal matters. Doe v. City of N.Y., 15 F.3d 264, 267 (2d Cir. 1994). While the exact nature and scope of the right to confidentiality has not been fully defined, the Second Circuit in Barry held that "some form of intermediate scrutiny or balancing approach is appropriate as a standard of review" and that the Government's interest must be shown to be "substantial." Barry at 1559-60. In applying such scrutiny, the Second Circuit has extended the right to privacy regarding one's personal information to various circumstances. See e.g. Eisenbud v. Suffolk County, 841 F.2d 42 (1988) (recognizing the right to privacy when dealing with financial disclosures); Barry, 712 F.2d 1554 (finding that a provision of the City's financial disclosure law did not violate confidentiality); Doe v. Marsh, 105 F.3d 106 (2d Cir. 1997) (recognizing the existence of a clearly established constitutional confidentiality-based right to privacy which precluded the state from disclosing that plaintiffs had HIV); Doe v. City of N.Y., 15 F.3d 264 (recognizing the existence of the right to privacy and confidentiality in one's personal medical information).

Based upon the foregoing, it is consistent with the Second Circuit's jurisprudence to extend the right to confidentiality to the current situation, where the Student, a minor, was sexually abused. The nature of the abuse inflicted and the Student's adolescence are two factors which indicate that this incident is so personal that it should fall under the umbrella of privacy. Accordingly, this Court finds that the Student has a right to confidentiality with respect to the details surround the sexual abuse; however that right is not absolute and must be balanced against the Defendants' interest in sharing that information for professional purposes.

Having found that the Student has a right to confidentiality, this Court must apply the analysis the Second Circuit employed in Barry, and the other cases cited above, to determine whether the Defendants had a substantial interest that outweighed the Student's right to privacy. In order to outweigh the Student's right to confidentiality, the Defendants' interest in disseminating the information concerning the Student's sexual abuse history must be "substantial" and must be balanced against the Student's right to confidentiality. See Barry, 712 F.2d at 1559-60. The Plaintiffs' claim is based on two specific communications, where the Student's identity and the details of his sexual abuse were revealed. The first cited occasion was when Ms. Mackie told Dr. Shein, during an interview conducted as a part of Dr. Shein's evaluation, that the Student had been sexually abused by an older child. The second cited occasion was Dr. Reulbach's testimony to the CSE and his written summary of the Student's social history.

Upon being asked what he was told, Dr. Shein said, "That he was sexually abused by an older child, an individual. I think it was a boy." Dr. Shein also said, "I was told that he was sexually abused by an older boy," and stated that Ms. Mackie had given him this information. Complaint Exhibit 3, Dr. Shein's Direct Examination before the Impartial Hearing Officer, Tr. 704:15-18; 706:24-25; 707:2-7.

The Plaintiffs' Letter details various communications regarding the Student's sexual abuse history which the Plaintiffs allege portrayed the sexual abuse as a consensual homosexual relationship. Upon reviewing the Plaintiffs' Letter, the Court finds that Dr. Reulbach's use of "sexual abuse" and "sexual relationship" does not portray the Student's relationship with the Cousin as consensual. Dr. Reulbach clearly testified that the relationship was not consensual sodomy. Tr. 546: 10-11. The Plaintiffs also allege that Dr. Reulbach did not have permission to reveal these details, but Dr. Reulbach and the Plaintiffs testified to the contrary at the CSE meeting. Tr. 419: 8-14; Tr. 783: 20-25; Tr. 784:1-5. The Plaintiffs further claim that Dr. Reulbach did not adequately portray the Student as the victim of an adult pedophile, but the Court finds that Dr. Reulbach's Social History portrays the abuse as non-consensual sexual abuse inflicted by a criminal perpetrator. See Notice of Motion Ex. 6. The Court finds no inference of a consensual homosexual relationship.

As set forth above, the Plaintiffs have a strong interest in keeping the details of the Student's abuse private because of the nature of the offense and their desire to prevent further trauma to the Student, which might ensue from disclosure to his peers or other members of the community. However, the Defendants, pursuant to their respective responsibilities as social workers and educators, have a substantial interest in setting forth all relevant details about events, which are likely to have impacted the Student's emotional well-being, during an evaluation of the Student's emotional state. All of the communications cited by the Plaintiffs occurred during the course of the evaluation, which was conducted, at the Plaintiffs' request, for the benefit of the Student. Further, each of the cited communications was between parties who had a relevant interest in making available as much pertinent information as possible in order to adequately determine the Student's needs and provide special education resources if needed. Even if this Court accepts the Plaintiffs' allegations that (a) Dr. Reulbach was the only District employee that the Student informed about the abuse, (b) Dr. Reulbach told Ms. Mackie about the Student's sexual abuse, and (c) incorrect information was relayed regarding the Student's sexual abuse history, the facts provide no basis to infer that Dr. Reulbach and Ms. Mackie were engaging in "prurient gossip" rather than professional communication. The Plaintiffs have not cited to any communications that occurred outside of a professional setting, outside of the scope of the psychological and emotional evaluation of the Student, or amongst individuals without a significant interest in communicating about the Student's sexual abuse history. Therefore, this Court finds that the Defendants' interest in professional communication, for the Student's benefit, outweighs the Student's and the Plaintiffs' rights to confidentiality. Accordingly, the Plaintiffs have failed to state a claim upon which relief may be granted and the Plaintiffs' first cause of action is dismissed with prejudice.

The Student's sexual abuse began when he was in middle school. Ms. Mackie is the middle school counselor. The abuse continued through high school until the Student confided in Dr. Reulbach. The Student's enrollment in the schools where Ms. Mackie and Dr. Reulbach were employed, the fact that the abuse was occurring during those times, and the employment duties of each Ms. Mackie and Dr. Reulbach create a relevant interest in the Student's history.

Having found that the Plaintiffs' failed to state a claim upon which relief may be granted for a violation of their constitutional rights under § 1983, this Court need not address the Plaintiffs third and fourth causes of action against Ms. Schluter for supervisory liability and the District for municipal liability, respectively. Accordingly, the Plaintiffs third and fourth causes of action are hereby dismissed with prejudice.

The Plaintiffs' third cause of action alleges that Ms. Schluter (a) had supervisory responsibility for the conduct of Dr. Reulbach and Ms. Mackie, and that Ms. Schluter failed to prevent, control and stop inaccurate communications among her staff concerning the Student's sexual abuse history, and (b) when presiding over the CSE, failed to raise any objections regarding the cited communications.

The Plaintiffs' fourth cause of action claims that the District is liable for its failure to provide adequate training and supervision to prevent the dissemination of information regarding students who are the victims of sex crimes.

2. Right to Privacy Arising Under New York Civil Rights Law 50-b :

In addition to alleging a violation of the Student's constitutional privacy rights, the Plaintiffs also claim a violation of the Student's right to privacy under § 50-b of the New York Civil Rights Law. Under the doctrine of pendent jurisdiction, where the state and federal claims derive from a common nucleus of operative fact such that it would ordinarily be expected that they would all be tried in one judicial proceeding, federal courts have the constitutional power to exercise jurisdiction of the state law claims as well as the federal claims. See e.g. United Mine Workers v. Gibbs, 383 U.S. 715 (1966). However, 28 U.S.C. § 1367(c)(3) gives a district court the discretion not to exercise pendent jurisdiction when it has dismissed all of the claims over which it had original jurisdiction. Further, the Supreme Court in Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988), announced that when all federal claims are eliminated in the early stages of litigation, the balance of factors generally favors declining to exercise pendent jurisdiction over remaining state law claims and dismissing them without prejudice. Id. at 350. Therefore, in light of the determination that the Plaintiffs' have not stated a viable federal claim under 1983, this Court declines to exercise jurisdiction over the Plaintiffs' § 50-b claim. Accordingly, the Plaintiffs' second cause of action is hereby dismissed without prejudice.

B. SUPPLEMENTAL PLEADING MOTION:

The Supplemental Pleading Motion was filed on or about May 23, 2004, seeking to serve a supplemental pleading pursuant to Fed.R.Civ.P. 15(d), which would add an additional claim appealing the CSE Decision pursuant to the IDEA. Subsequent to the filing of the Supplemental Pleading Motion, the Plaintiffs commenced a separate lawsuit regarding the CSE Decision, which has been filed with the Clerk of the Court as matter 04 Civ. 6173 and is assigned to this Court. As set forth above, the Defendants' Motion in the current case is granted and the Plaintiffs' four causes of action are dismissed in their entirety. Therefore, the Supplemental Pleading Motion is moot and is hereby denied. IV. CONCLUSION :

As set forth more fully above,

A. The Defendants' Motion is granted and (a) the Plaintiffs' first, third and fourth causes of action, pursuant to § 1983, are dismissed with prejudice for the failure to state a claim upon which relief may be granted; (b) the Plaintiffs' § 50-b claim is dismissed without prejudice for lack of federal jurisdiction; and (c) the Clerk of the Court is directed to close this matter.

B. The Plaintiffs' Supplemental Pleading Motion is denied.

It is so ordered.

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N.C. ex rel. M.C. v. Bedford Cent. Sch. Dist., 348 F. Supp. 2d 32 | Casetext Search + Citator

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Read N.C. ex rel. M.C. v. Bedford Cent. Sch. Dist., 348 F. Supp. 2d 32, see flags on bad law, and search Casetext's comprehensive legal database

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The Texas Education Agency follows the laws and ethical standards put forth for educational purposes. “Through the responsive services component, school counselors intervene on behalf of any student whose immediate personal concerns or problems put the student's continued educational, career, personal, or social development at risk” (School Counseling | Texas Education Agency, n.d., para. 4 ).

Part of that intervention is deciding when the privacy rights of students are no longer in play in order to get them the help they need.

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School counselors offer services designed to increase student wellness, improve academic performance, and increase participation in postsecondary education. School counselors support students in their academic, career, and social-emotional development. They help students achieve success in school, pursue post-secondary opportunities, and lead healthy, fulfilling lives. As described in Texas Education Code (TEC) §33.005 and §33.006, a school counselor works with school faculty and staff, students, parents, and the community to plan, implement, and evaluate a comprehensive school counseling program (CSCP). The school's CSCP includes the following four components:

Guidance Curriculum

Through a guidance curriculum, a school counselor guides students in developing their full educational potential and serves as a critical Tier I support for all students. This curriculum helps students develop competencies that align with the knowledge, attitudes, and skills appropriate for their developmental level. The guidance curriculum is delivered systematically by school counselors in collaboration with other professional educators. The curriculum includes K-12 classroom lessons and group activities.

Individual Student Planning

Through Individual Student Planning, a school counselor guides each student in planning, monitoring, and managing their educational, career, personal, and social development. To achieve this, school counselors work with other educational professionals to implement systemic activities that guide students in creating future goals and plans.

Responsive Services

Through the responsive services component, school counselors intervene on behalf of any student whose immediate personal concerns or problems put the student's continued educational, career, personal, or social development at risk. This can include preventive, remedial, or crisis situations. Responsive services are implemented through individual or small-group counseling, as well as through crisis response.

System Support

System support is the foundation of the comprehensive school counseling program (CSCP). School counselors plan, organize, implement, manage, and evaluate their school counseling program to increase efficiency and efficacy. In addition, school counselors coordinate with providers in the broad network of interrelated services offered in the school, district, and community to ensure individual student needs are met.

American School Counselor Association: A professional development association dedicated to supporting school counselors' efforts to help students focus on academic, career, and social/emotional development so they achieve success in school and are prepared to lead fulfilling lives as responsible members of society.

Lone Star State School Counselor Association: A professional development association dedicated to providing services and resources to meet the needs of school counselors across our great state of Texas.

Texas School Counselor Association: A professional development association dedicated to serving professional school counselors by advocating for and advancing the role of the professional school counselor and the comprehensive school guidance and counseling program throughout Texas.

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School counselors offer services designed to increase student wellness, improve academic performance, and increase participation in postsecondary education. School counselors support students in their academic, career, and social-emotional development. They help students achieve success in school, pursue post-secondary opportunities, and lead healthy, fulfilling lives.

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Slide #7: Local Administrative Law/Policy/Rule

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Slide #7: Local Administrative Law/Policy/Rule

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The Ganado ISD School Board Policy explains that students’ homeless status should be private information unless specific educators need to know (Ganado ISD Board Policy Manual, 2016).

School counselor work with homeless students to make sure their needs are met in an educational setting while keeping their status private.

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Policy Code FDC - Admissions: Homeless Students - Ganado ISD Board Policy Manual - Policy Online

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A potential issue that could arise is a school counselor sharing private information with another educator.

1. Identify the Risk

a. When Sharing information with another educator, is there reason?

2. Assess the Risk

a. Will the student and parent/guardians approve?

b. Could this be a legal issue and end up in court?

3. Response to Risk

a. Rather than assuming, the counselor can have a conversation with the student, parent/guardian to make sure it is okay with them to share the information.

4. Monitor and Review

1. a. Make sure proper communication is in place with all stakeholders

(Risk Management: A Four-Step Framework, 2020)

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According to American Counseling Association, “Respect for Privacy Counselors respect the privacy of prospective and current clients. Counselors request private information from clients only when it is beneficial to the counseling process” (B.1.b. Respect for Privacy Counselors, 2014, p. 6). This code impacts school counseling because it protects students’ rights and prevents their information from getting in the wrong hands

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Slide #10: Personal Connection to the Legal and Ethical Statndards

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Slide #10: Personal Connection to the Legal and Ethical Statndards

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The biggest takeaway from this assignment is learning the difference between the laws, statutes, cases, etc. Gaining a better understanding of the legal and ethical standpoint will only benefit me as I continue my educational journey. The way the information was presented really pushed me to dive deeper into the topics and figure out how it applies to my career.

There are so many resources out there to help when legal and ethical issues arise. Especially in my field of school counseling, there are issues that can pop up on a daily basis. Being aware of the laws and ethical standards is key to making decisions in the best interest of the student.

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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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Do not focus just on the legalities of your career, the constitution applies to every situation that might be encountered.

When in doubt ask! There are laws put in place to protect your students and you.

Do your due diligence and research prior cases. I have learned that they are useful guides.

Every decision is a risk. Learning proper risk management strategies will lesson the likelihood of ending up in court.

There are agencies that are designed to help when questions arises, reaching out to them would be beneficial rather than staying quiet.

Local policies are put in place to guide the school district, but keep in mind the constitution is the main set of law, guidelines, policies, etc. that courts follow.