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This is an Administrative Law-needs a law for Statutory

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This is an Administrative Law-needs a law for Statutory

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Why is confidentiality important?
The foundation of a successful counseling relationship is the student's entitlement to privacy and secrecy. For school counselors, keeping student data confidential is an essential ethical obligation. Federal, state, and local laws are in place that ensure information about students will not be disclosed to anyone unless the student gives permission or there is an immediate threat to the student's safety or the safety of others.

Emerging Issue: Protecting student privacy while using online platforms
In a time when mobile technology puts the entire world at our fingertips, one of the challenges we confront is safeguarding children from the potential risks associated with data privacy and security. A clear set of laws and regulations must be in place to protect children, even when more data-driven services, such as social applications and games, are being personalized (Williams, 2023). Data leaks have become a bigger concern in protecting student information. Counselors must be proactive and stay up-to-date with the latest information in regard to protecting student data.

References
Williams, J. (2023, April 14). Keeping minors safe: Understanding data privacy and security in the digital age. Forbes. https://www.forbes.com/sites/forbestechcouncil/2023/04/13/keeping-minors-safe-understanding-data-privacy-and-security-in-the-digital-age/?sh=4aa4cd5110e2

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The American Counseling Association posts the latest news and informative articles about current counseling topics.

Carlson, N. (2017, October). To tell or not to tell: The fine line between minors’ privacy and others’ right to know. American Counseling Association. https://www.counseling.org/docs/default-source/ethics/ethics-columns/ethics_october-2017_minor-privacy.pdf?sfvrsn=a25522c_6

This article states that counselors must maintain the confidentiality of any information shared by students when ethically possible to all stakeholders. Building a counselor-student connection of trust is one of the defining characteristics of creating a successful program. Students typically do not have a legal claim to confidentiality; rather, the parent or guardian does. Counselors in schools may have to tread carefully when others ask for private information about their students.

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What is confidentiality?
Keeping private information a secret (Cambridge English Dictionary, n.d.)

School Counselors and Confidentiality:
Concerns around the privacy of student records and related
information frequently arises for school counselors (Texas Classroom Teachers Association, 2023).

Audience:
This legal guide will be used by school counselors to ensure local, state, and federal laws are being followed pertaining to student confidentiality.

Why this topic?
It is the school counselor's job to protect students' right to privacy and safeguard any personal data that has been given to them by students, parents/guardians, or employees (American School Counselor Association, 2018).

References
American School Counselor Association (ASCA). (2018). The school counselor and confidentiality. https://www.schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Confidentiality#:~:text=The%20role%20of%20the%20school,students%20in%20developmentally%20appropriate%20terms

Cambridge English Dictionary. (n.d.). Cambridge English Dictionary.com dictionary
https://dictionary.cambridge.org/us/dictionary/english/confidentiality

Texas Classroom Teachers Association (TCTA). (2023). Counselors making the right call. Texas Classroom Teachers Association. https://www.tcta.org/legal-updates/counselors-making-the-right-
call#:~:text=All%20educators%20must%20observe%20the,strictly%20maintaining%20their%20confidential%20status

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Richman, T. (2022, May 17). Texas schools can’t withhold student health info from parents, AG Paxton says. The Dallas Morning News. https://www.dallasnews.com/news/education/2022/05/17/texas-schools-cant-withhold-student-health-info-from-parents-ag-paxton-says/

Texas public schools are not permitted to keep parents from knowing about a student's health.

Lawmakers had voiced worry over suggestions made by staff of some school administrators that student privacy should be respected, for example, if a student identifies as transgender or nonbinary.

According to Paxton, if school administrators don't communicate with parents and give them information on their children, the district may be held liable and suffer financial consequences.

Teachers should always use the student’s legal name when communicating with a parent – unless the student requests otherwise if they are called something other than their legal name.

Health care professionals remain to have the right to restrict access of records if they believe it would be detrimental to the physical, mental, or emotional well-being of a patient.

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Texas schools can't withhold student health info from parents, AG Paxton says

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His determination comes as Republicans across the country are leaning into "parental rights" as a rallying cry, fueled by angst over the way issues of race,...

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Baker, K. (2023, January 22). When students change gender identity, and parents don’t know. The New York Times. https://www.nytimes.com/2023/01/22/us/gender-identity-students-parents.html

Parents did not understand why the school did not let them know about their children using the opposite sex's restroom and calling them by the opposite pronouns.

School officials explained that the parent did not have to give permission for this to occur. The student's wishes were to keep it confidential.

The school was a safe space for the students to freely express who they wanted to be.

Districts have stated that they want parents involved but that they must abide by federal and, in certain cases, state regulations intended to safeguard students against prejudice and invasions of their privacy.

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When Students Change Gender Identity, and Parents Don’t Know

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Educators are facing wrenching new tensions over whether they should tell parents when students socially transition at school.

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Ethical Standards, 19. Tex. Admin. Code § 247.2. https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=19&pt=7&ch=247&rl=2

Educator shall not reveal confidential information concerning students

Disclosure of information must serve lawful professional purposes or is required by law

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Hall v. McRaven, 508 S.W.3d 232 (Tex. Ct. App. 2017).  https://law.justia.com/cases/texas/supreme-court/2017/16-0773.html

Hall filed a lawsuit against McRaven for his refusal to allow full access to data including information about student admissions.

The courts dismissed the case stating that McRaven’s conduct was not done outside of one's legal authority or power.

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Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (1974).
https://www.law.cornell.edu/uscode/text/20/1232g

Maintains the privacy of student records information

Gives parents certain rights about their children's academic records

When a student turns 18 or enrolls in a post-high school institution, their rights become their own.

Parents and qualified students have access to the student's educational records that the school maintains.

Any data that parents or eligible students feel is inaccurate or misleading must be corrected by the school upon request.

Allows schools to share student records with specific people without their consent or in specific circumstances.

School or law officials

Other schools when transferring

For audit purposes

For financial aid

Research studies on behalf of the school

Accredited organizations

To comply with laws or subpoena

Appropriate health or emergency officials

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Pine Tree ISD. (2023). Student Records. Pine Tree ISD.
https://pol.tasb.org/PolicyOnline/PolicyDetails?key=541&code=FL#localTabContent

Only those who are authorized may access records, as permitted by this policy. All information and documents must be kept in a secure location with easy access for usage by authorized school administrators. As permitted by law, the District must give parents of students access to their records. Before releasing student records that contain personally identifiable information, the records clerk shall take reasonable steps to confirm the identity of the requester.

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American School Counselor Association. (2016). ASCA ethical
standards for school counselors.
https://www.schoolcounselor.org/getmedia/a8d59c2c-51de-4ec3-a565-a3235f3b93c3/SC-Competencies.pdf

School counselors must respect the statutory and ethical restrictions of student confidentiality. They are expected to fulfill this moral and legal commitment to students, parents, faculty, and staff.

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Hansen, S. (2009). Confidentiality guidelines for school counselors. School Counseling-Zone. https://meckes.weebly.com/uploads/5/8/2/9/58298161/confidentiality_for_school_counselors.pdf

The fine line with regard to confidentiality is one of the most pressing ethical questions facing school counselors. The most straightforward way to avoid issues is to inform the student and their parents about confidentiality prior to the start of the school year and to keep that information readily available at all times.

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The following is a list of recommendations/best practices for counselors to remain in compliance reguarding student confidentiality:

The right of the student to confidentiality and privacy is the foundation of a successful counseling program.

School counselors should explain to students what confidentiality is and its limitations in words that are developmentally appropriate before talking with the student (ASCA, 2018).

School counselors must maintain the privacy of student information unless disclosure is mandated by law, is necessary to avert significant and imminent harm to the student or others, or is authorized by school policy (ASCA, 2018).

FERPA should be used to handle confidentiality relating to each student's particular situation on a case-by-case basis.

Federal, state, and local laws are in place that ensure information about students will not be disclosed to anyone unless the student gives permission or there is an immediate threat to the student's safety or the safety of others.

Parents or qualified students may request that the school change any information they believe to be false or misleading.

A minor's parent/legal guardian typically has the legal right to confidentiality, not the minors themselves.

References
American School Counselor Association (ASCA). (2018). The school counselor and confidentiality. https://www.schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Confidentiality#:~:text=The%20role%20of%20the%20school,students%20in%20developmentally%20appropriate%20terms

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U.S. Const. amend. 4.6.
https://constitution.congress.gov/browse/essay/amdt4-6-6-6/ALDE_00000802/

The court recognizes and safeguards the confidentiality rights of students including space, materials, and documents.

There must be solid reasons to believe that the student has broken or is breaking the law or the school's policies before a search is allowed to take place.

Searches must not be overly intrusive and breach confidentiality considering the student's age, gender, and the infraction's nature.