# data[].attributes.body
-My professional perspective within school counseling is one that offers legal and ethical decisions and tasks through the lens of ethical standards, education, and training. My professional perspective on confidentiality stays true to what is right and noble. Additionally, following the law and doing what is in the student’s best interests serves as a priority. While dealing with ethical challenges, it’s critical to remain level headed and execute problem solving strategies

# data[].attributes.body
The audience for this informational guide on confidentiality can be many people. Parents, school counselors, education administrators to name a few. School counselors work with stakeholders, students, parents, and community resources all the time. To provide students any services, confidentiality information and laws are key aspect to know

# data[].attributes.body
The chosen topic, confidentiality, is very important and one that should be taken seriously. Due to the importance and repercussions of a breach, I wanted to know all the information as well as how to navigate ethically. Confidentiality has many aspects, not just student files. As a school counselor, confidentiality is something I will face every single day.

# data[].attributes.body
School counselors are held by the American School Counseling Association (2022) to uphold integrity by adhering to ethical standards and guidelines. Within these school counseling standards, we see confidentiality play a big role.  The ASCA (n.d.) states that school counselors are bound by FERPA as well as state and district policies for confidentiality. FERPA is a federal agency in which states abide by. FERPA allows students and families to have confidentiality with educational records (Family Educational Rights and Privacy Act, 1974)

# data[].attributes.body
The state of Texas has legal agencies that govern confidentiality. Texas Education Agency (TEA) has policies in place that protect student records. Additionally ,TEA (n.d.) is in compliance with the Texas Administrative code and Texas Education Code that outlines guidelines for confidentiality. School districts and all personnel are held accountable to follow TEA’s guidelines and policies.

# data[].attributes.body
Both the Federal and State Governing bodies align with each-other. While FERPA is a federal policy, we can see that FERPA is used at the state, local, and district level. These governing bodies outline laws, guidelines, and regulations to follow. With confidentiality, I learned which governing bodies to seek when clarification or information is needed. The federal and state governing agencies hold school counselors and other personnel accountable for maintaining confidentiality as we from their laws and regulations set forth.

# data[].attributes.attachment_link.readable_text
2. Where can I find information on school counselors serving special education students? When serving special education students, certified school counselors can:
For assistance with serving special education students contact your local Regional Education Service Center staff specialist. 3. Where can I find information on school counselors and multi-tiered system of supports (MTSS)?School counselors play a vital role in the MTSS framework. For information on the school counselor role in MTSS, visit the American School Counselor Association (ASCA) position statement: The School Counselor and Multitiered System of Supports. School counselors should be team members, under the guidance of a campus instructional leader who is directing the MTSS effort. The following are examples of how an MTSS framework may require the district's leadership:
4. What is The Texas Model for Comprehensive School Counseling Programs? 6. How can I find information on conferences, training, workshops, newsletters, and other information relevant to school counselors? Below are three professional development organizations that provide professional development for school counselors: 7. Does a parent have an unrestricted right of access to the school counseling records of his or her minor child? 10. Where can I find the list of appropriate school counseling duties on which a school counselor must spend at least 80 percent of their total work time, per SB 179 and TEC 33.006? 13. Where can I find information about graduation requirements, credits, and transcripts? 14. How can I use data in my school counseling program? 16. Is a school district or open-enrollment charter school required to have a school counselor on staff?
Certain provisions of the Texas Education Code (TEC) require that students of a district or charter school receive services from school counselors (e.g., TEC, Sec. 33.007(a), (b), and (c)). As a result, a district or charter school must have access to a school counselor to provide services to students in such situations.
The Texas Model has extensive information and resources on using data in school counseling. You can find guidance on how to use data in Sections II (pg. 38-40), III (pgs. 57-72), and IV (pgs. 106-114). In addition, the ASCA publication, Making Data Work, 4th Edition gives school counselors a step-by-step plan on how to use data in their program.
The state graduation requirements webpage provides information about Texas high school graduation requirements. Additional questions on these three topics can be sent to the Curriculum Standards and Student Support Division at curriculum@tea.texas.gov
Page 119 of the Texas Model has a list of appropriate school counseling duties (that are components of a counseling program developed under TEC 33.005) on which a school counselor must spend at least 80 percent of their total work time unless otherwise prescribed by local school board policy.
Texas Attorney General Opinion No. JC-0538 states the following: Generally, all student records are available to parents. Only under very narrow and unusual circumstances may a minor child's school counseling records be withheld from a parent. Under the Federal Family Educational and Privacy Rights Act, a public school may withhold a minor child's counseling records from a parent only if the records are kept in the sole possession of the counselor, are used only as the counselor's personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the counselor. Within this circumscribed category, state law permits the counselor to withhold a minor child's records only if the counselor is a "professional," as defined in section 611 .001(2) of the Health and Safety Code, and further, if the counselor "determines that release" of such record "would be harmful to the patient's physical, mental, or emotional health." If the counselor does not fall within the category of licensed professional under section 611 .001(2) of the Health and Safety Code, section 26.004 of the Education Code prevails, and the parent "is entitled to access to all written records" of the school district "concerning the parent's child, including . . . counseling records."
Visit TEA's Counseling, Advising, and Student Supports webpage for all Texas school counseling information, as well as to sign up for the school counseling newsletter. In addition, you can contact the counselor specialist at your Education Service Center for further resources.
The Texas Model for Comprehensive School Counseling Programs, Fifth Edition, (Texas Model) is a guide for creating, implementing, and evaluating a comprehensive school counseling program, aligned to the statutory requirements established in TEC 33.005. The Texas Model is a "resource to help students benefit from high-quality and effective comprehensive school counseling programs. It aligns with Texas state law governing the work of school counselors" (TEA, 2018, page 5). You can download a free copy of the Texas model by clicking here. "The multi-tiered system of supports (MTSS) framework can be considered the umbrella for other support systems, such as data-based individualization (DBI), response to intervention (RTI), and positive behavior intervention and supports (PBIS). MTSS encompasses career, academic, behavioral, and mental health supports for all students" (Tier Network, 2020). School Counselors cannot make Special Education Eligibility Determinations under 19 TAC 89.1040. The determination must be made by a licensed specialist in school psychology (LSSP), educational diagnostician, or other appropriately certified or licensed practitioner with experience and training in the area of the disability or a certified professional for a specific eligibility category.

provide a comprehensive school counseling program in accordance with Chapter 33 of the Texas Education Code to all students including special education students

serve on the Multi-Tiered System of Supports (MTSS)

MTSS can involve the re-allocation of resources such as federal, state, and local funds;

MTSS can involve the shifting of staff duties and responsibilities;

MTSS can involve decision making that impacts the entire school district;

MTSS involves supervision (fidelity of implementation);

MTSS involves buy-in from administration;

MTSS can involve a shift in current instructional practices (i.e. the inclusion of students in the general education setting who were served in a special education setting previously);

MTSS involves professional development;

MTSS involves support provided to staff by the instructional leader;

MTSS involves collaboration (common planning, aligning of curriculum, dialogue among staff, etc.); and

# data[].attributes.attachment_link.description
2. Where can I find information on school counselors serving special education students? When serving special education students, certified school counselors can: For assistance with serving special education students contact your local Regional Education Service Center staff specialist. 3. Where can I find information on school counselors and multi-tiered system of supports (MTSS)?

# data[].attributes.attachment_link.readable_text
From student safety and confidentiality to interactions with parents/guardians and administrators, school counselors encounter a range of legal and ethical issues every day. Here we've gathered some frequently asked legal and ethical questions to help guide you in your daily work. If students or staff have been victims of harassment or retaliation, they can formally file a complaint with the U.S. Department of Education, Office of Civil Rights.

Click here for the Ethical Decision Making infographic.

Case Notes/Student Records

What do I do if I receive a subpoena for my testimony or case notes?
Let your principal know, and contact your district legal team to get advice on how to proceed. Work with the district legal team to get the subpoena quashed if possible. If you can't do this, then you are compelled to testify. When giving a testimony, provide only facts and omit any subjective information that may make room for doubt. Check your state statutes to see if your state give students privileged communication, which means they can render the school counselor incapable of testifying about their communications. In most cases, the courts are entitled to your testimony, and even in the states awarding privilege communication to minors, judges can exercise discretion if they need the information for the safety and health of the minor.

How do I know if my personal notes meet the criteria for case notes?
Parents/guardians have a federal right to see anything you write down or record that refers to their child so, as a general rule of thumb, keep your notes in a way you would be comfortable with a parent reading. Anything that refers to a student, even using initials, ID numbers or personal descriptors, if specific enough, is an educational record that belongs primarily to the parent/guardian. You can keep personal notes as a memory aid, but if anyone knows the notes exist they are then covered under the Family Education and Privacy Act (FERPA). According to FERPA, case notes are "sole-possession records" and not educational records if they: serve as a memory aid, aren't accessible or shared in verbal or written form, are a private note created solely by the individual possessing it and include only observations and professional opinions.

I've taken a job in another district. What do I do with my personal case notes? What notes should I keep?
Personal notes, as in those notes only you are aware of, are kept for the purpose of supporting the student through long-term knowledge of a student's experience. If you are comfortable with your school counseling replacement, you may choose to leave the notes with the new school counselor. Case notes can always be purged except when there is knowledge that a subpoena is likely or the notes may be needed to help the courts convict a perpetrator such as in the case of child sexual abuse. Exercise judgment as to when notes need to remain and when they can be purged. If in doubt, consult.

Can school counselors take home educational records if asked to do so by an administrator?
There is no prohibition against teachers and school counselors taking home educational records, assuming the school counselors/teachers are school officials with legitimate educational interests, which they probably are. They should just be sure to protect the information they take home and ensure other people who are not school officials or parents don't see the information.

Confidentiality

When do I share information about students with parents/guardians and with administrators or other school staff?
Sharing information with parents/guardians is important when a student's safety is in question. Notify administrators of any threats to self or others and when you've made a human services report or called the police. Sharing information with the remainder of your team, such other school counselors, psychologists or social workers, is helpful for consultation but also provides additional eyes on students in case you are out of the building when a student needs assistance. Sharing general information when you are concerned about a student - such as a student who has been struggling with a loss or depression -- can be helpful so teachers can notify you of changing behavior in class or with peers. Typically, just asking teachers to notify you if they see any behaviors from the student that are different from the student's normal behavior is enough.

What do I do if my administrator asks for the names of the students I see and the reasons I'm working with them?
Prepare the information in a general way, using descriptors such as "academic," "career" or "social/emotional" or in another way where personal information is removed. If administrators want to know specifics, explain FERPA's "legitimate educational interest" and your ethical obligation to protect the information. If the information is relevant to building safety or school programming, it is important to share that with administration. However, remind administration the information is sensitive and that it must be kept confidential to preserve the student's dignity and rights, as well as your relationship with the students.

My central office supervisor wants me to provide copies of the action plans we create for students who express suicidal ideation. Is that breaking confidentiality?
Because of the health and safety concerns, districts have the right to require school counselors to follow policy regarding providing copies of action plans for suicidal students. The confidentiality breach comes when these plans are indiscriminately kept without regard to when they should be purged, where they should be kept and if they are necessary beyond just the district's need to ward off liability. The action plan is an educational record, but the plan should be kept outside the actual folder for certain eyes only and purged at the appropriate time.

What do I do if a student tells me she thinks she is pregnant?
It is important to know your state laws around this topic (i.e., age of consent, issues around pregnancy decision-making, etc.) as well as your school board policies and community norms. Find out how or if the student has confirmed her pregnancy. Other issues to consider include whether the sex was consensual and the age difference of both parties. Understanding the student's relationship with her parents/guardians will provide insights for how you might advise the student to tell her parents/guardians.
Article: Negotiating Neutrality

What confidentiality considerations should I keep in mind during virtual individual and group counseling?
The same limits of confidentiality apply (serious and foreseeable harm) virtually as well as in-person, and you should discuss them with students before counseling begins. To limit others overhearing you and your students, you should be in a private space and use a headset if possible. Also be sure to use a district-approved, secure platform. Make sure the student understands you can only control confidentiality on your end. If a parent, sibling, family member, friend, repairman or anyone else is on their end, that person potentially can hear what the student is saying. The same goes for a group setting. You don't know who else may be in the room with other members, so encourage students to wear headphones for some privacy.

Do I need to provide notification to parents and families when a student is involved in a small group I lead?
School counselors want to build, not erode, credibility and maintain a strong working relationship with parents/guardians. This mission is forwarded when school counselors inform parents their child is to be a group member, as some parents/guardians may view small-group counseling as moving away from classroom instruction to a social/emotional focus; therefore, you should inform parents/guardians. This notification gives you a chance to explain the connection small groups have to academic success, and it gives parents/guardians a chance to opt out.

What are a student's rights to confidentiality, especially in terms of sharing information with parents/guardians?
School counselors recognize parents'/guardians' inherent rights to be the guiding voice in their children's lives. School counselors inform parents/guardians of the confidential nature of the school counseling relationship with the student, while also recognizing that parents/guardians have legal rights to student information. FERPA defines who has access to students' educational records and allows either parents/guardians or eligible students the right to review the records. School counselors are bound by FERPA, as well as state laws and district policies regarding student confidentiality.

What are a student's rights in terms of confidentiality related to gender identity?
School counselors' goal is to ensure the safety, comfort, and healthy development of all students, maximizing inclusion and social integration while minimizing exclusion and stigmatization. Requiring school counselors to "out" students could prevent school counselors from being a safe haven to listen to and support students. Students are in the best position to predict their parents' reaction and to gauge when they are ready to broach the subject with them. It isn't the school counselor's role to "out" students, but to listen, support, and provide unconditional positive regard. Lawmakers have recognized this as well. Florida's "Parental Rights in Education" bill, for example, "permits school personnel to withhold such information from a parent if a reasonably prudent person would believe the disclosure would result in abuse, abandonment, or neglect..."

If school counselors are in a state where a law has been passed that requires staff to notify parents when a student requests to be referred by a different pronoun or name, school counselors should find out the school's/district's implementation process or guidelines. Inquire if the state education department has released guidelines to assist schools in the management of adhering to the laws while still performing school counselor duties. If there is credible concern regarding the student's safety were this information to be shared with the parent/guardian, school counselors are encouraged to follow district procedures for reporting.

Under what circumstances should I breach student confidentiality?
School counselors keep student information confidential unless legally required or if a breach of confidentiality is required to prevent serious and foreseeable harm to the student or others, or if dictated by school policy. Additionally, this breach of confidentiality is to be done after careful consultation with appropriate professionals, such as the school's administrator, other school counselors, the school nurse, school psychologist, school social worker, school resource officer, and/or child protective services. Sharing information with parents/guardians is particularly important when a student's safety is in question.

Confidentiality related to each student's unique situation should be addressed on a case-by-case basis, using a student-centered approach that includes ongoing student and parent/guardian engagement (as appropriate) and school personnel with a legitimate educational interest per FERPA.

VIRTUAL: Is it necessary to get parent/guardian consent for individual counseling in a virtual setting?
Despite the complications of providing virtual school counseling services, it is important to adhere to the same ethical guidelines as you would in person. Some school districts have specific policies and procedures around parent/guardian consent. Best practice is to inform parents/guardians when you are providing individual counseling for a student over more than one or two sessions.

My school and district have an electronic management system and want me to include the names of the students I see and the reasons I am working with them. Does that break confidentiality?
It is in your best interest to maintain these records as well. And, if you keep the reasons vague enough, you are still protecting student confidentiality while also informing parents/guardians, teachers and/or administrators that the student is accessing you for support. Avoid using software programs without the technological capabilities to protect student information based upon currently acceptable security standards and the law.

Dual Relationships

Webinar: Professional Distance, Dual Relationships and Boundaries

I live in a small, rural community and have my LPC and run a private practice after school hours. Does it create a dual relationship if I see current or previous students in my private practice?
School counselors do not refer or accept a referral to counsel a student from their school if they also work in a private counseling practice.

My son will be a student at my school next year. What do I need to do to avoid a dual relationship?
If a dual relationship is unavoidable, the school counselor is responsible for taking action to eliminate or reduce the potential for harm to the student through use of safeguards, which might include informed consent, consultation, supervision and documentation. The best way to minimize any negative impact is to assign the family member to a different school counselor. If the school counselor is the only one in the building, then the school counselor must work to ensure there isn't even an appearance of gaining any unfair advantages for the school counselor's son.

My principal has asked me to teach a class and assign grades to the students. Is that permitted? Does that create a dual relationship?
Remind your administrator that teaching a class puts students at risk, as you will need to prioritize any crisis or suicidal ideation over the class you're teaching, which could leave your classroom students unsupervised and potentially unsafe. Additionally, being responsible for assigning grades to students leads to a dual relationship and should be avoided to minimize potential harm to students.

IEPs/504 Coordination

On several student IEPs, the special education director has noted that weekly counseling be provided. This prevents me from fully implementing a comprehensive program. What do I do?
School counselors serve all students in their charge; it is unethical and professionally questionable when others define school counselors' role as acting outside their scope of practice and serving a small percentage of their population to the exclusion of hundreds of other students in their caseload. You can support regular education and special education students in brief group counseling or behavior management programs, but a long-term approach is an inappropriate use of school counselors' time.

Student Harmful Behavior

Toolkit: Information-Gathering Tool: Suicide Concern
The suicide informational questionnaire is a guide for having a conversation with a student, not an interview. The priority is to connect with the student and the student's immediate concerns and needs. Also available in Spanish.
Article: Suicide Assessments: The Medical Profession Affirms School Counselors' Truth
Guide: A Quick Guide to Support Students with Suicidal Ideation

My district recently purchased a software package that sends alerts to the school and district when students engage in potentially harmful behavior online. As the school counselor, I'm expected to follow up with all the students for whom alerts were received. What do I do and what are the liabilities?
If schools choose to use this type of software, it's important to bypass the school and send alerts directly to the parents, guardians or family members if a student's online activity yields red flags. This direct line of communication should also convey to parents the reason the software generated concern and possible referral resources. If the software developers continue to put educators into the loop instead of going straight to parents/guardians with alerts, the school district and its designees could face unneeded and unwarranted liability.

A student told me another student is expressing suicidal thoughts. What are my obligations?
If something prompts you to question a student about suicide, then you should talk to the parents/guardians as well. In-school suicide assessments are dangerous if relied on for conclusive answers. If a school district performs suicide assessments, these assessments should only be used to alert parents/guardians to the need to monitor their child's safety and to get them professional mental health care to evaluate and, if necessary, treat the suicide risk. The standard of care for school counselors when informally assessing students who are identified as a potential suicide risk is to employ these assessments with extreme caution, with a follow-up assessment completed by a mental health professional who has been trained to assess the risk. School counselors who rely on an in-school suicide assessment for definitive answers are not only negligent but reckless in their evaluation.

A student told me she cuts herself. Do I need to tell her parents?
Self-harm can feel like a tricky situation because research is unclear of the intent or impact. Ultimately, cutting is a form of self-harm, and best practice and the ASCA Ethical Standards for School Counselors advise school counselors to inform parents/guardians so they have the opportunity to intervene. This helps ensure the student's overall safety and can help the student get additional help outside of school.

What do I do if a student tells me she has heard another student brought a firearm to school?
As a school employee, your obligation is to the safety of all students. Inform administration and the school resource officer or police, and allow them to move forward from there.

What is the school counselor's responsibility when a student may be a risk to self and a parent/guardian cannot be located?
In a brick-and-mortar setting, good practice is to keep the student with you until you can make contact with the parent. At times, the student may have to stay with you after school until the parent/guardian can be reached. If the school day has ended and all attempts to contact a parent have been unsuccessful, it may be necessary to contact law enforcement and/or child protective services to take custody of the student and keep the student safe.

If counseling is being provided remotely, it is critical to always know the physical address of your student's location. In the event of risk of harm to self or another, the school counselor should attempt to keep the student online while simultaneously trying to contact a parent or guardian. In the event a parent or guardian is unable to be reached, law enforcement should be sent to the student's location to ensure the student's safety.

What do I do if my school district requires me to indicate a student's level of risk on suicide risk assessment paperwork?
It is impossible for a school counselor to know a student's level of suicide risk with certainty, but some districts still require school counselors to document a student's level of risk as low, medium, or high. Although it is important to comply with mandated district procedures, do not document or indicate to a parent/guardian that a student is low risk for suicide since you have no way of knowing with assurance that this is the case. The best approach is to consider noting "unable to determine" if a child falls under the low risk category on a district suicide risk assessment form. In addition, always notify a parent/guardian that you conducted suicide risk assessment on a student (at any risk level) and support parents/guardians in obtaining mental health services for the child.

Supervision

Article: School Counselor Educators and Site Supervisors as Leaders

Title IX

Webinar: Title IX Changes and Sexual Harassment

What do I do if a student tells me he was inappropriately touched by an adult several years earlier or by another student more recently?
Follow your school district's protocol regardless of the amount of time that has passed. You still have a duty to report. If the student was touched by another student, go through a Title IX protocol. Contact your administration and local police department to investigate; your district may have an identified Title IX officer at the district level who can assist. In the case of young children, you may need to call child protective services. Do not ever question if the student is being honest. It isn't a school counselor's job to investigate, only to report and support the student.

Technology

Webinars: School Counseling in a Virtual Setting (Part 1)
School Counseling in a Virtual Setting (Part 2)

Can I use my personal cell phone to talk with students and families?
It is recommended to use school-issued devices. However, if the school has not provided you with devices, you may need to discuss the possibility of using your own devices. If it is decided that you will use your personal device, it's important to develop boundaries around your working hours and communicate this to students and families. In addition, be sure you maintain these boundaries, such as not answering the phone at times you are not able to assist a student. It would be helpful to use away messages or other communications to direct students to where they may get help outside of your available working hours.

Do I have to use the computer the school issued me, or can I use my much superior laptop?
You must use the school-issued computer unless the district offers you an exception. Again, it is about safety and security. There are privacy settings that protect district computers that your personal computer may not have. Advocate for your equipment needs, but be careful not to go against school district dictates regarding equipment.

Universal Screening

Webinar: Legal/Ethical Implications of the Hatch Amendment
Article: Protecting Pupil Rights

I want to require all students to complete a survey about any mental health problems, suicidal ideation, counseling needs, psychological problems and family mental health issues they may have. Are there any legal and ethical considerations in conducting this survey?
If a school district wants to require students to reveal personal information about themselves or their family, the school must first obtain written parental consent. The Protection of Pupil Rights Amendment (PPRA) requires schools receiving federal funding to obtain written consent from parents/guardians and non-federally funded schools to give notice before requiring minor students to participate in any "survey, analysis or evaluation that reveals information concerning the following areas:

Political affiliations

Mental and psychological problems potentially embarrassing to the student and the student's family

Sex behavior and attitudes

Illegal, anti-social, self-incriminating and demeaning behavior;

Critical appraisals of other individuals with whom respondents have close family relationships

Legally recognized privileged or analogous relationships, such as those of lawyers, physicians and ministers

Religious practices, affiliations or beliefs of the student or student's parent

Income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program"

# data[].attributes.attachment_link.title
FAQs - American School Counselor Association (ASCA)

# data[].attributes.attachment_link.description
From student safety and confidentiality to interactions with parents/guardians and administrators, school counselors encounter a range of legal and ethical issues every day. Here we've gathered some frequently asked legal and ethical questions to help guide you in your daily work.

# data[].attributes.body
The United States Constitution specifically the Fourth Amendment provides citizens with the right against unreasonable search and seizure. (U.S. Const. amend. IV).

privacy of individuals, homes, as well as papers, and effects.

This is a protection of privacy for individuals to not be searched without reasonable cause.

This law protects individuals confidential information and privacy.

# data[].attributes.body
The Texas Constitution Article I, Section 9 is similar to the Fourth Amendment of the U.S. Constitution.  This article within the Texas Constitution goes on to state that

No person or thing can be seized without probable cause

People shall be secure (Tex. Const. art I §9).

This helps protect confidential material and privacy for individuals within the state of Texas.

Shows alignment with both constitutions.

# data[].attributes.attachment_link.readable_text
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.)

# data[].attributes.attachment_link.title
THE TEXAS CONSTITUTION ARTICLE 1. BILL OF RIGHTS

# data[].attributes.body
The Texas Education Code states that parents have access to student records including teacher/counselor evaluations and counseling records (Tex. Educ. Code § 26.004).

Parents have rights to their students written records. It’s best to be mindful what is written inside these confidential records.

Records consists of attendance, test scores, grades, counseling record, discipline records, reports of behavior to name a few.

Not adhering to this law is breaking the law.

# data[].attributes.attachment_link.title
EDUCATION CODE CHAPTER 26. PARENTAL RIGHTS AND RESPONSIBILITIES

# data[].attributes.attachment_link.description
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.

# data[].attributes.body
The Texas Administrative Code gives educators a code of ethics to abide by. Confidentiality cannot disclose confidential information (19 Tex. Admin. Code § 247.2(3)(a)).

Ethically, school counselors must maintain confidential materials.

Administrative code states educators can not reveal confidential material concerning students (unless disclosure is lawful).

If failure to uphold ethical standards, one can jeopardize their job and liability.

# data[].attributes.attachment_link.readable_text
Enforceable Standards.
(1) Professional Ethical Conduct, Practices and Performance. (A) Standard 1.1. The educator shall not intentionally, knowingly, or recklessly engage in deceptive practices regarding official policies of the school district, educational institution, educator preparation program, the Texas Education Agency, or the State Board for Educator Certification (SBEC) and its certification process. (B) Standard 1.2. The educator shall not intentionally, knowingly, or recklessly misappropriate, divert, or use monies, personnel, property, or equipment committed to his or her charge for personal gain or advantage. (C) Standard 1.3. The educator shall not submit fraudulent requests for reimbursement, expenses, or pay. (D) Standard 1.4. The educator shall not use institutional or professional privileges for personal or partisan advantage. (E) Standard 1.5. The educator shall neither accept nor offer gratuities, gifts, or favors that impair professional judgment or that are used to obtain special advantage. This standard shall not restrict the acceptance of gifts or tokens offered and accepted openly from students, parents of students, or other persons or organizations in recognition or appreciation of service. (F) Standard 1.6. The educator shall not falsify records, or direct or coerce others to do so. (G) Standard 1.7. The educator shall comply with state regulations, written local school board policies, and other state and federal laws. (H) Standard 1.8. The educator shall apply for, accept, offer, or assign a position or a responsibility on the basis of professional qualifications. (I) Standard 1.9. The educator shall not make threats of violence against school district employees, school board members, students, or parents of students. (J) Standard 1.10. The educator shall be of good moral character and be worthy to instruct or supervise the youth of this state. (K) Standard 1.11. The educator shall not intentionally, knowingly, or recklessly misrepresent his or her employment history, criminal history, and/or disciplinary record when applying for subsequent employment. (L) Standard 1.12. The educator shall refrain from the illegal use, abuse, or distribution of controlled substances, prescription drugs, and toxic inhalants. (M) Standard 1.13. The educator shall not be under the influence of alcohol or consume alcoholic beverages on school property or during school activities when students are present. (2) Ethical Conduct Toward Professional Colleagues. (A) Standard 2.1. The educator shall not reveal confidential health or personnel information concerning colleagues unless disclosure serves lawful professional purposes or is required by law. (B) Standard 2.2. The educator shall not harm others by knowingly making false statements about a colleague or the school system. (C) Standard 2.3. The educator shall adhere to written local school board policies and state and federal laws regarding the hiring, evaluation, and dismissal of personnel. (D) Standard 2.4. The educator shall not interfere with a colleague's exercise of political, professional, or citizenship rights and responsibilities. (E) Standard 2.5. The educator shall not discriminate against or coerce a colleague on the basis of race, color, religion, national origin, age, gender, disability, family status, or sexual orientation. (F) Standard 2.6. The educator shall not use coercive means or promise of special treatment in order to influence professional decisions or colleagues. (G) Standard 2.7. The educator shall not retaliate against any individual who has filed a complaint with the SBEC or who provides information for a disciplinary investigation or proceeding under this chapter. (H) Standard 2.8. The educator shall not intentionally or knowingly subject a colleague to sexual harassment. (3) Ethical Conduct Toward Students. (A) Standard 3.1. The educator shall not reveal confidential information concerning students unless disclosure serves lawful professional purposes or is required by law. (B) Standard 3.2. The educator shall not intentionally, knowingly, or recklessly treat a student or minor in a manner that adversely affects or endangers the learning, physical health, mental health, or safety of the student or minor. (C) Standard 3.3. The educator shall not intentionally, knowingly, or recklessly misrepresent facts regarding a student. (D) Standard 3.4. The educator shall not exclude a student from participation in a program, deny benefits to a student, or grant an advantage to a student on the basis of race, color, gender, disability, national origin, religion, family status, or sexual orientation. (E) Standard 3.5. The educator shall not intentionally, knowingly, or recklessly engage in physical mistreatment, neglect, or abuse of a student or minor. (F) Standard 3.6. The educator shall not solicit or engage in sexual conduct or a romantic relationship with a student or minor. (G) Standard 3.7. The educator shall not furnish alcohol or illegal/unauthorized drugs to any person under 21 years of age unless the educator is a parent or guardian of that child or knowingly allow any person under 21 years of age unless the educator is a parent or guardian of that child to consume alcohol or illegal/unauthorized drugs in the presence of the educator. (H) Standard 3.8. The educator shall maintain appropriate professional educator-student relationships and boundaries based on a reasonably prudent educator standard. (I) Standard 3.9. The educator shall refrain from inappropriate communication with a student or minor, including, but not limited to, electronic communication such as cell phone, text messaging, email, instant messaging, blogging, or other social network communication. Factors that may be considered in assessing whether the communication is inappropriate include, but are not limited to: (i) the nature, purpose, timing, and amount of the communication; (ii) the subject matter of the communication; (iii) whether the communication was made openly, or the educator attempted to conceal the communication; (iv) whether the communication could be reasonably interpreted as soliciting sexual contact or a romantic relationship; (v) whether the communication was sexually explicit; and (vi) whether the communication involved discussion(s) of the physical or sexual attractiveness or the sexual history, activities, preferences, or fantasies of either the educator or the student.

# data[].attributes.body
One regulation or mandate that governs education within Texas is the Individuals with Disabilities Education Act (IDEA).

IDEA protects students confidential materials especially those who have a disability (IDEA, 2004).

IDEA has the idea that every child is created equally.

Within IDEA, maintaining confidential records, parental consent, and confidentiality safeguard are explained.

*Texas Education Agency upholds all laws and is in compliance with the federal law provided through IDEA. TEA ensures all school districts within the state are following the Individuals with Disabilities Education Act.

# data[].attributes.attachment_link.provider_name
Individuals with Disabilities Education Act

# data[].attributes.attachment_link.title
Individuals with Disabilities Education Act (IDEA)

# data[].attributes.attachment_link.description
The U.S. Department of Education’s Individuals with Disabilities Education Act website brings together department and grantee IDEA information and resources. The IDEA makes available a free appropriate public education to and ensures special education and related services to eligible children with disabilities.

# data[].attributes.body
Shallowater ISD (SISD) has implications and policies in place for confidentiality. Shallowater's Student Records Policy (SISD, 2023) states that

Parents can receive and access their students records as permitted by law.

Only school officials that have legitimate educational interest may gain access to students records.

Explains what student records are/who can access student records

How to transfer student records

Additionally Shallowater ISD has a policy that is dedicated to Parental Rights.

Shallowater has the Student Records Policy to outline guidelines. If student records were not a piece of secure materials it would not matter who had access to what information. This policy ensures Shallowater ISD is maintaining confidentiality with student records. Lastly, Shallowater ISD stays in compliance with state and federal guidelines regarding confidentiality.

# data[].attributes.attachment_link.title
Policy Code FL – Student Records – Shallowater ISD Board Policy Manual - Policy Online

# data[].attributes.attachment_link.description
Note: For information regarding law enforcement and schools, see GRAA. For information regarding juvenile law enforcement records, see GBA.

# data[].attributes.attachment_link.title
The School Counselor and Confidentiality - American School Counselor Association (ASCA)

# data[].attributes.body
When handing confidentiality ethically, there are many factors that can be incorporated to prevent a breach of confidentiality. The list below are risk management steps that can be put in place:

Glassoff and Pate (2002) share that when working with minors informed consent is both legal and ethical. Informed consent and assent signed by students is important. However, parents also have their parental rights. To prevent a confidentiality breach its best to follow ethical guidelines by ensuring students know the confidentiality limitations and parents know their parental rights. Communicating both aspects can help relationships and continue to foster student services.

Another form of risk management is providing professional development for staff. Professional development can include procedures to follow for confidentiality (Glassoff and Pate, 2022) . Professional development or workshops can enhance knowledge on local, state, and federal policies.

Have district protocols and policies set in place that is communicated effectively to all staff. If districts have clear expectations on handing confidentiality, there leaves little to no room to error. Additionally, school educators should be informed of possible repercussions for breaching confidentially.

# data[].attributes.body
2 Tex. Educ. Code § 26.004.

19 Tex. Admin. Code § 247.2(3)(a)

American School Counselor Association. (2022). ASCA ethical standards for school counselors. https://www.schoolcounselor.org/getmedia/f041cbd0-7004-47a5-ba01- 3a5d657c6743/Ethical-Standards.pdf

Glossoff, H., & Pate, R. (2002). Privacy and Confidentiality in School Counseling . https://www.researchgate.net/profile/H-Glosoff/publication/234700799_Privacy_and_Confidentiality_in_School_Counseling/links/0f31753c545050206f000000/Privacy-and-Confidentiality-in-School-Counseling.pdf

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

Individuals With Disabilities Education Act, 20 U.S.C. § 1400 (2004).

Student Records. Shallowater Independent School District . (2023). https://pol.tasb.org/PolicyOnline/PolicyDetails?key=836&code=FL#localTabContent

Tex. Const. Art. I § 9.

Wyatt v. Kilgore Indep. Sch. Dist, Civil Action No. 6:10-cv-674 (S.D. Tex. 2011). https://casetext.com/case/wyatt-v-kilgore-indep-sch-dist

U.S. Const. Amend. IV.

# data[].attributes.body
School counselors are held to the American School Counselors Association Ethical Standards (2022). Within these ethical standards section A.2 applies to confidentiality. These ethical standards outline confidentiality and how we apply it to our role. Confidentiality can include informed consent, ethical responsibility to the students and parents, as well as information regarding student records. For example, the ASCA Ethical Standards (2022) A.2(j) discusses the protection of confidentiality regarding student records and releasing of personal data. School counselors sometimes know more about students than any other personnel. Ensuring that confidentiality is not breached can become crucial. School Counselors are held to the ASCA Ethical standards to maintain integrity to all students

# data[].attributes.body
Ethical decision-making strategies for the topic of confidentiality can vary. However, one thing to keep in mind is that breaching confidentiality can have consequences that are hard to overcome.

Know, understand, and become familiar with the ASCA (2022) ethical standards.

Know the state and federal laws regarding students and confidentiality. (This also goes for parental rights).

When in doubt ASK key stakeholders that abide ethically for guidance and support.

Additionally, professional developments and trainings can ensure other staff members are on the same page regarding confidentiality.

Educate staff members and parents on the role of school counselors' and confidentiality guidelines.

Having district policies in place can help hold employees accountable for confidential materials.

Sending and receiving Personal Identifiable materials should be limited. Different protocols can be put in place to help reduce a breach in confidentiality.

School counselors provide trainings on confidentiality and allow for questions or concerns to be addressed.

# data[].attributes.body
Diving into the legal and ethical standards of confidentiality has informed me of what the law says and what my ethical guidelines are as a school counselor. Navigating multiple avenues of legal aspects of confidentiality has impacted my confidence moving into a school counseling role. Knowing I have legal guidelines to enhance my decisions is comforting all while knowing and understanding the information I learned.

The connections I have made with these laws will help me navigate challenging aspects of confidently as a school counselor. These connections have fostered the ability to know how to look, find, and understand that the law has implemented. Additionally, these connections have made me aware of the seriousness of student confidentiality and repercussions.

# data[].attributes.body
In the court case Wyatt V. Kilgore Independent School District (2011), a civil court case that involves confidentiality, This court case involves a student athlete who believes her confidentiality was breached due to coaches disclosing Wyatts sexual orientation to her mother. To dive in further, Wyatt was having a relationship with an adult although she was a minor. While this court cases can draw many opinions about how this situation accrued and ended. Kilgore ISD chose to pay the settlement fee. Confidentiality can be a sticky topic. Furthermore, this case is a good reminder of how easily people can become offended of what is shared. Confidential conversations, materials, ad topics is something to be mindful of.

(Wyatt v. Kilgore Indep. Sch. Dist, 2011)

Breach of confidentiality, violating FERPA.

Violation of student privacy rights

District policy to disclose sexual orientation for Kilgore ISD

# data[].attributes.attachment_link.readable_text
MEMORANDUM OPINION AND ORDER

DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

On December 12, 2010, Plaintiff Barbara Wyatt ("Plaintiff" or "Ms. Wyatt") filed this action against Kilgore Independent School District ("KISD"), Rhonda Fletcher, and Cassandra Newell alleging various causes of action stemming from an incident that occurred on March 3, 2009 involving S.W., then a 16 year old minor, and the coaching staff of KISD's softball team. Before the Court is Defendants' Motion for Summary Judgment (Doc. No. 41)("MOTION"). Plaintiff filed a response (Doc. No. 54)("RESPONSE") to which Defendants filed a reply (Doc. No. 57)("REPLY"). A hearing was held on October 13, 2011. See (Doc. No. 59). Due to multiple unresolved questions of fact, the motion is DENIED in its entirety.

Plaintiff's original complaint named Kilgore High School's assistant athletic director, Douglas Duke. See COMPLAINT (Doc. No. 1) at ¶ 9. The Court later granted Plaintiff's motion to file an amended complaint and dismiss Duke (Doc. 51). See (Doc. No. 55).

BACKGROUND

Plaintiff's Version of the Facts

Plaintiff contends that Coaches Newell and Fletcher ("the Coaches") called an unscheduled softball team meeting on March 3, 2009 at the usual off campus playing field. RESPONSE at 2. The Coaches dismissed the remainder of the team, lead S.W. into an empty locker room, and locked the door behind them. Id. At this time the Coaches began questioning S.W. about her relationship with an older woman named Hillary Nutt. Id. at 2-3. Fletcher also accused S.W. of spreading a rumor that Ms. Nutt was "Coach Newell's ex-girlfriend." Id . at 3. S.W. initially denied the Coaches' accusations, which angered the Coaches. Id. Fletcher proceeded to advance in close on S.W., yelling at her, threatening to sue her for slander and calling her a liar. Id. at 3. Eventually, S.W. admitted that she and Ms. Nutt were dating even though at the time of the confrontation, S.W. and Ms. Nutt had arranged a date but were not "dating." Id. The Coaches then threatened to tell S.W.'s mother that she was gay and having a sexual relationship with another woman. Id. During the conversation, the Coaches made it clear that S.W. would not be allowed to play softball until they told her mother this information. Id.

Shortly after this conversation, the Coaches met with Ms. Wyatt and "Fletcher revealed S.W.'s sexual orientation to her mother by telling Ms. Wyatt that S.W. was dating a girl whom Fletcher described as S.W.'s 'girlfriend.'" Id. at 3. Newell then offered Ms. Wyatt the contact information for Ms. Nutt. Id. Plaintiff contends that prior to the March 3, 2009 incident, Ms. Wyatt did not know that her daughter was homosexual but had previously asked S.W. if she was gay, which S.W. consistently denied. Id. at 4.

Ms. Wyatt informed the Kilgore High School athletic director, Douglas Duke, the school's principal, and the KISD superintendent, Jody Clements about what happened. RESPONSE at 10. At this time, Clements neither investigated the incident nor informed Ms. Wyatt of the possibility of filing a formal complaint. Id. When she was informed of the grievance process five months later, Ms. Wyatt filed a Level One grievance with the principal of Kilgore High School alleging that the Coaches acted inappropriately by disclosing S.W.'s sexual orientation. Id. at 5. This initial grievance was summarily dismissed as time barred under KISD procedure, however, Ms. Wyatt subsequently filed a Level Two grievance with Superintendent Jody Clements who issued a written report responding to Ms. Wyatt's allegations. See id; see also (Doc. No. 54-16)("LEVEL TWO REPORT"). The report defended the Coaches' actions, finding that "Coach Fletcher and Newell are legally obligated to share this information with the parent," which Plaintiff interprets as a policy requiring teachers to disclose students' sexual orientation to their parents. RESPONSE at 5; see also LEVEL TWO REPORT at 4. Ms. Wyatt then filed a Level Three grievance with the KISD Board of Trustees ("the Board"), which held a hearing allowing both Ms. Wyatt and Superintendent Clements the opportunity to speak. See RESPONSE at 6. The Board summarily denied Ms. Wyatt's appeal without opinion. Id.

Defendants' Version of the Facts

Defendants argue that S.W. was openly gay for several years prior to the incident and never attempted to keep her sexuality secret. MOTION at 4. Moreover, Defendants argue that S.W. was not a serious athlete and regularly disregarded team rules, making it difficult for her to be coached. Id. at 5-6. Prior to joining the team, S.W. and Ms. Wyatt were required to sign a permission slip specifically limiting the persons with whom S.W. could ride to practice and games. Id. at 6. S.W. broke this rule by riding to practice with Ms. Nutt on at least one occasion. Id.

On March 3, 2009, the Coaches became aware of a rumor created by a note written by S.W. that claimed S.W. was dating Ms. Nutt, a person S.W. claimed to be Coach Newell's ex-girlfriend. Id. at 6-7. Id. at 7. When the Coaches heard the rumor, they took it upon themselves to confront S.W. for three reasons: (1) they believed that Ms. Nutt was a bad influence on S.W. because Ms. Nutt had previously talked about drinking and smoking marijuana; (2) they believed the fact that Ms. Nutt was eighteen-years-old and S.W. was sixteen "made any physical relationship between them a potential crime;" and (3) the rumors were "causing dissension on the softball team." Id. at 6-7.

During the March 3, 2009 confrontation, Defendants argue that they questioned S.W. about the note that started the rumor and asked if she was "involved" with Ms. Nutt. Id. at 7. At no point did the Coaches stand over S.W. Id. The Coaches also questioned S.W. about who she was riding with to practices. Id. S.W. lied and told them that she was riding with her grandmother when she was in fact riding with Ms. Nutt. Id. The Coaches then released S.W. Id.

The Coaches proceeded to call Ms. Wyatt and asked her to come to the softball field to discuss S.W.'s behavior. Id. at 8. During the Coaches' discussion with Ms. Wyatt at the softball field, the Coaches told Ms. Wyatt that S.W. was in an "inappropriate relationship" with Ms. Nutt. Id. Defendants argue that the Coaches never used the word "gay" or "lesbian" and only revealed the identity of the person with whom S.W. was involved when Ms. Wyatt asked. Id. Defendants further argue that Ms. Wyatt indicated to the Coaches that she knew S.W. was homosexual. Id.

Defendants argue that KISD has a policy not to disclose confidential information and provides training to staff regarding the disclosure of confidential information. See MOTION at 4. Additionally, Defendants claim that apart from Plaintiff's complaint, no other student or parent has ever alleged that a KISD employee wrongfully disclosed a person's sexual orientation. Id. KISD does not have a policy requiring the disclosure of students' sexual orientation, but the policy to which Superintendent Clements was referring to in the Level Two Grievance is a policy to disclose potentially illegal relationships involving students to students' parents. See CLEMENTS DEP. at 112- 13.

LEGAL STANDARD

Summary judgment is appropriate when the record, as a whole, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). A fact is material if it might affect the outcome of the suit under the governing law. Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir. 1999). A "genuine issue" of material fact exists when a fact requires resolution by the trier of fact and a reasonable jury could resolve a factual matter in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

The moving party bears the initial burden of showing absence of a material fact issue, and doubt is resolved against the moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962) (the court should draw all reasonable inferences in favor of the non-moving party). If the moving party "fails to meet this initial burden, the motion must be denied, regardless of the non-movant's response." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). If the movant meets this burden, Rule 56 requires the opposing party to go beyond the pleadings and to show by affidavits, depositions, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1180 (5th Cir. 1996); Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1046-47 (5th Cir. 1996).

When ruling on a motion for summary judgment, the Court is required to view all justifiable inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587; Adickes, 398 U.S. at 158-59; Merritt-Campbell, Inc., 164 F.3d at 961. However, the Court will not, "in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995), as modified, 70 F.3d 26 (5th Cir. 1995). Unless there is sufficient evidence for a reasonable jury to return a verdict in the opposing party's favor, there is no genuine issue for trial, and summary judgment must be granted. Celotex, 477 U.S. at 322-23; Anderson, 477 U.S. at 249-51; Texas Instruments, 100 F.3d at 1179.

DISCUSSION

Plaintiff accuses the Coaches of violating S.W.'s right to privacy. Specifically, Plaintiff argues that the Coaches violated S.W.'s right to keep her sexual orientation private by disclosing her sexual orientation to her mother, Ms. Wyatt. Plaintiff also accuses KISD of promulgating policies that facilitated this unauthorized disclosure and failing to train its employees on how to handle the confidentiality of a student's sexual orientation. Defendants move for summary judgment on the grounds of qualified immunity, arguing that the Coaches acted in an objectively reasonable manner and did not knowingly violate S.W.'s right to privacy. Defendants also move for summary judgment with regards to municipal liability, arguing that KISD properly trained its employees and did not have a policy of disclosing a student's sexual orientation. These claims will be discussed in turn, beginning with Defendants' qualified immunity claim.

I. The Coaches' Qualified Immunity Defense

The test for qualified immunity requires a two part inquiry: The Court must determine (1) whether a public official's conduct violated a constitutional or statutory right and (2) whether the right was "'clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, - U.S. ----, 131 S.Ct. 2074, 2080 (2011); see also Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011)(en banc). In determining whether a right was clearly established, courts look to whether the public official's actions were objectively reasonable in light of the law at the time of the challenged conduct. See Morgan, 659 F.3d at 370. Applying the law of qualified immunity to the set of facts presented here, the Court identifies a multitude of key factual disputes between the parties. As will be explained in more detail below, although issues of qualified immunity typically are questions of law for the courts to decide, at this stage of the proceedings, the Court does not have a set of undisputed facts to which the law may be applied. As such, only if both versions of the facts submitted by the parties dictate that the Coaches' conduct was reasonable or not in violation of a clearly established right, can this Court find that the Coaches are entitled to qualified immunity. Because Plaintiff's version of the facts differ significantly from Defendants' version, there are genuine issues of material fact as to whether the Coaches acted in an objectively reasonable manner and violated S.W.'s clearly established right to privacy. Thus, Defendants' motion for summary judgment on qualified immunity is DENIED.

A. There is a Constitutional Right to Prevent the Unauthorized Disclosure of One's Sexual Orientation

The Supreme Court and the Fifth Circuit recognize two branches of substantive due process privacy rights: autonomy and confidentiality. The autonomy branch involves "'the interest in independence in making certain kinds of important decisions[,]' such as those relating to marriage, procreation, and education." Zaffuto v. City of Hammond, 308 F.3d 485, 489 n.4 (5th Cir. 2002)(quoting Whalen v. Roe, 429 U.S 589, 599-600 (1977)). The branch implicated in this case, however, is the "confidentiality branch" which refers to the Fourteenth Amendment's protection of the "individual interest in avoiding disclosure of personal matters." Id. (citing Whalen, 429 U.S. at 599). This also includes "the right to be free from the government disclosing private facts about its citizens and from the government inquiring into matters in which it does not have a legitimate and proper concern." Ramie v. City of Hedwig Village, Tex., 765 F.2d 490, 492 (5th Cir. 1985)(citing Whalen, 429 U.S. at 599-600). In evaluating actions under the confidentiality branch, the Fifth Circuit has adopted a balancing test where the constitutionality of the action is determined by comparing the interests it serves with those it hinders. Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978), cert. denied, 439 U.S. 1129 (1979); see also Coontz v. Katy Independent School Dist., No. 98-20188, 1998 WL 698904, at *3 (5th Cir. Sept. 14, 1998)(citing Plante, 575 F.2d at 1135) (applying the balancing test to a minor in the school setting). Thus, "[a]n intrusion into the interest in avoiding disclosure of personal information will thus only be upheld when the government demonstrates a legitimate state interest which is found to outweigh the threat to the plaintiff's privacy." Fadjo v. Coon, 633 F.2d 1172, 1176 (5th Cir. Unit B Jan. 1981). This balancing test is a question of law for the Court to decide. Id; Woodland v. City of Houston, 940 F.2d 134, 138 (5th Cir. 1991).

1. S.W. Has a Reasonable Expectation of Privacy in Her Sexual Orientation

"[W]hether or not personal information is private is a matter of reasonable expectations."Coontz, 1998 WL 698904 at *3 (citing Plante, 575 F.2d at 1135). Defendants challenge both whether a student could ever have a reasonable expectation of privacy in his or her sexual orientation and whether S.W. specifically had a reasonable expectation of privacy in her sexual orientation. See MOTION at 16-18. While the Fifth Circuit has never explicitly held that a student has privacy right in keeping his or her sexual orientation confidential, an analysis of existing Supreme Court and Fifth Circuit precedent compels the Court to find such a right.

As an initial matter, Defendants argue in various places throughout their briefing that S.W. could not have had a reasonable expectation of privacy in her sexual orientation because either Ms. Wyatt already knew S.W. was homosexual or S.W. was openly gay in school. Plaintiff, however, provides sworn testimony from Ms. Wyatt that she did not know S.W. was homosexual until the Coaches told her on March 3, 2009. See RESPONSE at 4 (citing WYATT DECL. at ¶ 7). Although whether a person has a reasonable expectation of privacy is a question of law, the inquiry relies on a factual foundation that is not developed at this stage in the litigation. Whether S.W. was openly gay or whether Ms. Wyatt knew she was homosexual prior to the March 3 incident is a question of fact requiring credibility determinations that are best left to the trier of fact.

Turning to the law of privacy, the Supreme Court has found under the auspices of personal autonomy that there is a right to privacy that protects matters related to "marriage, procreation, contraception, family relationships, child rearing, and education." Lawrence v. Texas, 539 US 558, 573-74 (2003)(citations omitted); see also Klein Independent School Dist. v. Mattox, 830 F.2d 576, 580 (5th Cir. 1987)(citing Paul v. Davis, 424 U.S. 693 , 713 (1976))("Under the autonomy branch of privacy, constitutional protection has been limited to intimate personal relationships or activities, and freedoms to make fundamental choices involving oneself, one's family, and one's relationships with others"). Moreover, in Lawrence, the Supreme Court extended the right to privacy to include "intimate conduct." Lawrence, 539 US at 562. The Court cautioned against "defin[ing] the meaning of [a] relationship or [] sett[ing] its boundaries absent injury to a person or abuse of an institution the law protects." Id. at 567. Thus, the Court found "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice." Id. With an understanding that the Supreme Court carefully guards a person's right to make decisions regarding intimate conduct irrespective of that person's sexual orientation, the Court now turns to the Fifth Circuit's informational privacy precedent.

While there is no concrete definition of what is personal enough to trigger the confidentiality branch, binding precedent supports a finding that a person's sexual orientation is of such a highly personal nature to prevent its unauthorized disclosure. See, e.g., ACLU of Miss. v. Miss., 911 F.2d 1066, 1070 (5th Cir. 1990)(finding "instances of (often unsubstantiated) allegations of homosexuality, child molestation, illegitimate births, and sexual promiscuity as well as reports of financial improprieties, drug abuse, and extreme political religious views" sufficiently personal); Fadjo v. Coon, 633 F.2d 1172, 1174 (5th Cir. Jan. 1981)(finding a legitimate interest in the privacy of "the most private details of [Fadjo's] life"); Plante v. Gonzalez, 575 F.2d 1119, 1121 (5th Cir. 1978)(finding detailed personal financial information sufficiently personal).

See also Wolfe v. Shaefer. 619 F.3d 782, 785 (7th Cir. 2010)("The courts of appeals, including this court, have interpreted Whalen to recognize a constitutional right to the privacy of medical, sexual, and perhaps other categories of highly personal information -information that most people are reluctant to disclose to strangers- and have held that the right is defeasible only upon proof of a strong public interest in access to or dissemination of the information.")(collecting cases).

Although there is clear precedent that a person has a right to the privacy of sexual information, the Fifth Circuit has not explicitly held that a person has a right to prevent the unauthorized disclosure of his or her sexual orientation. Nevertheless, the Court finds that a person's sexual orientation is one of "the most private details of [a person's] life" and subject to the confidentiality analysis. See Fadjo, 633 F.2d at 1174. This is supported by the Supreme Court's careful guarding of the right of an individual to make decisions regarding intimate conduct, irrespective of the sexual orientation of the individual, and the Fifth Circuit's protection of information regarding information of a sexual nature. See Lawrence, 539 U.S. at 573-74; ACLU of Miss. v. Miss, 911 F.2d at 1070.

Several circuits including the Second, Third, Sixth, Ninth, and Tenth circuits have found that such information is intrinsically private. See Powell v. Schriver, 175 F.3d 107, 111 (2nd Cir.1999) ("the excruciatingly private and intimate nature of transsexualism, for persons who wish to preserve privacy in the matter, is really beyond debate"); Sterling v. Borough of Minersville, 232 F.3d 190 (3rd Cir. 2000) ("It is difficult to imagine a more private matter than one's sexuality"); Bloch v. Ribar, 156 F.3d 673, 685 (6th Cir.1998)(publicly revealing information regarding sexuality and choices about sex exposes an aspect of our lives that we regard as personal and private); Thorne v. City of El Segundo, 726 F.2d 459, 468 (9th Cir.1983) (the interest raised in the privacy of sexual activities is within the zone of privacy protected by the Constitution); Eastwood v. Dept. of Corrections, 846 F.2d 627, 631 (10th Cir.1988) (right to privacy "is implicated when an individual is forced to disclose information regarding personal sexual matters").

While S.W. may have a legitimate interest in preventing the unauthorized disclosure of her sexual orientation, the inquiry does not end there. The Court must next determine whether the Coaches had a legitimate interest in disclosing that information and whether that State interest outweigh's S.W.'s privacy interest in her sexual orientation.

2. The Summary Judgment Evidence Does Not Show that KISD Had a Legitimate Interest in Disclosing S.W.'s Sexual Orientation to Her Mother

Based on the record before the Court, the Court cannot conclude as a matter of law that Coaches Newell and Fletcher had a legitimate interest in revealing S.W.'s sexual orientation to her mother that outweighed S.W.'s privacy interest in keeping that information confidential. See Fadijo, 633 F.2d at 1176 ("An intrusion into the interest in avoiding disclosure of personal information will thus only be upheld when the government demonstrates a legitimate state interest which is found to outweigh the threat to the plaintiff's privacy"). While the Court is mindful that the balancing inquiry is a question of law, the underlying factual disputes regarding the Coaches' motivations for confronting Ms. Wyatt and the details of the conversation between the Coaches and Ms. Wyatt must be resolved by a trier of fact. Taking the facts as alleged by Plaintiff, the Court cannot find that Coaches Newell and Fletcher had a legitimate interest in disclosing S.W.'s sexual orientation that outweighed S.W.'s interest in keeping that information private.

"A student's privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health, and safety . . . . Securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults." Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottowatomie Cnty. v. Earls, 536 U.S. 822, 830-31 (2002). Thus, the nature of the school setting generally gives more weight to the state's interest in the privacy analysis. See Veronia School Dist. 47J v. Acton, 515 U.S. 646, 655-56 (1995)("Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the 'reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children").

Defendants argue that "the purpose of [the Coaches] conversation with Barbara Wyatt was . . . to inform her that her sixteen year-old daughter was in a potentially inappropriate and/or illegal relationship with an adult" and that "[w]hatever right Plaintiff had to the confidential to keep the fact that she was dating an adult from her mother was far outweighed by the need to determine whether S.W. was the victim of a crime." MOTION at 13 (citations omitted). Defendants contend that the disclosure was warranted because "any sexual relationship with the 16-year-old S.W. and an adult would have violated Texas' statutory rape laws." Id. at 17. Plaintiff suggests that the Coaches were angry with S.W. for spreading a rumor that she was dating Coach Newell's "ex-girlfriend" and that the "real reason for the disclosure was that [the Coaches] wanted to make Barbara Wyatt aware that her daughter was a lesbian." RESPONSE at 3, 18.

With regards to the potential crime at issue, Plaintiff argues that the Coaches had no personal knowledge of any sexual contact between S.W. and Ms. Nutt and any belief by the Coaches of that was based on rumor and conjecture. RESPONSE at 13, 16. Moreover, while Defendants are technically correct that the Texas' statutory rape law generally makes it a crime for a person eighteen years of age or older to engage in a sexual activity with someone under the age of eighteen, the statute provides a clear and unmistakable affirmative defense for situations such as these. See TEX. PENAL CODE ANN. § 22.011(e) (West 2011) (absolving the actor from liability if the child was 14 years of age or older and the actor was not more than three years older than the victim at the time of the offense). Defendants' argument is further belied by their own actions: Plaintiff provides evidence that "Defendants . . . do not attempt to notify parents or authorities when heterosexual students [of] 16 years of age or less have romantic relationship with 18 year olds." RESPONSE at 17 (citing GEORGE DEP. at 60-62; CLEMENTS DEP. at 21-26).

Thus, from the evidence presented by Plaintiff, a reasonable person could conclude that the Coaches were not motivated by the need to protect S.W. but rather were retaliating against S.W. for spreading a rumor about Coach Fletcher. Moreover, the state has no interest in retaliating against students, no matter how difficult to coach or teach they are. Additionally, even if the Coaches were motivated by a desire to protect S.W., Plaintiff provides expert testimony based on Plaintiff's version of the facts that the Coaches actions "were not a reasonable response to any potential concerns they may have had regarding S.W. or her welfare." Id. (quoting EXHIBIT M TO RESPONSE, DECLARATION OF KRISTINE VOWELS (Doc. No. 54-13)("VOWELS DECL."), at 5). As a result, based on the record before the Court, the Court cannot find that the states' interest outweighs S.W.'s right to keep her sexual orientation confidential.

B. S.W.'s Rights Were Clearly Established at the Time of the Incident

The Fifth Circuit, sitting en banc, recently explained the proper analysis for determining whether a right was clearly established for the purposes of the qualified immunity analysis:

When considering a defendant's entitlement to qualified immunity, we must ask whether the law so clearly and unambiguously prohibited his conduct that "every 'reasonable official would understand that what he is doing violates [the law].'" Al-Kidd, 131 S.Ct. at 2083 (emphasis added)(citing Andersen v. Creighton, 483 U.S. 635, 640 (1987)). To answer that question in the affirmative, [the court] must be able to point to controlling authority-or a "robust 'consensus of persuasive authority' "-that defines the contours of the right in question with a high degree of particularity. Id. at 2084 (citing Wilson v. Layne, 526 U.S. 603, 617 (1999)).

Morgan, 659 F.3d at 371-372. Moreover, "[w]here no controlling authority specifically prohibits a defendant's conduct, and when the federal circuits are split on the issue, the law cannot be said to be clearly established." Id. (citing Wilson, 526 U.S. at 617-18). As explained above, although the Fifth Circuit has never explicitly held that a person has a privacy interest in keeping his or her sexual orientation confidential, Fifth Circuit and Supreme Court precedent clearly supports such a finding. Moreover, there is a "robust consensus of persuasive authority" supporting the conclusion that a person has a privacy interest in his or her sexual orientation. See id.

Defendants fail to identify a circuit split. The Court notes that the Fourth Circuit rejected a claim that a questionnaire containing queries about homosexual sexual encounters violated the plaintiff's privacy. Walls v. City of Petersburg, 895 F.2d 188, 193 (4th Cir. 1990). The court found that a person's sexual activities are not within the "zone-of-privacy" protected from unwarranted government intrusion. Id. In doing so, the Fourth Circuit relied exclusively on Bowers v. Hardwick for the proposition that "the reme Court explicitly rejected 'the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.'" Id. (quoting Bowers v. Hardwick, 478 U.S. 186, 190 (1986)). Lawrence v. Texas explicitly overruled Bowers, finding that private sexual conduct between consenting adults are, in fact, insulated from state proscription. See Lawrence, 539 U.S. at 562, 578.

Although the Court finds that S.W.'s right to privacy was clearly established at the time of the incident, the Court cannot make a determination that the Coaches acted in an objectively reasonable or unreasonable manner because of the factual disputes between the parties. The Court acknowledges that in the school setting, what is "reasonable" is often given more leeway because of the unique circumstances of public education. See Veronia School Dist. 47J v. Acton, 515 U.S 646, 655-56 (1995)("Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the 'reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children").While the qualified immunity inquiry is a question of law for the Court, there are substantial unresolved questions of fact surrounding the circumstances leading up to and the content of the Coaches conversation with Ms. Wyatt that prevent the Court from making a qualified immunity determination. For example, whether the Coaches' disclosed S.W.'s sexual orientation as retaliation for S.W.'s conduct, whether they disclosed the identity of Ms. Nutt without provocation by Ms. Wyatt, and the words they used to describe the relationship may play a role in determining the "reasonableness" of their conduct. Without a factual determination by the appropriate trier of fact, this Court cannot resolve the legal question as to whether the Defendants' actions are amenable to a qualified immunity defense on this claim.

II. Municipal Liability

In general, "municipal liability under section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose 'moving force' is the policy or custom." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)(quoting Monell v. Dept. of Social Servs , 436 U.S. 658, 694 (1978)). Plaintiff argues KISD is liable under § 1983 under two theories: (1) KISD has a policy requiring disclosure of students' sexual orientation to their parents; and (2) KISD failed to train its employees on disclosure of sexual orientation of a student which led to Fletcher and Newell soliciting this information from S.W. and then disclosing it to her mother. RESPONSE at 10-11. As will be explained below, the ultimate determination of liability rests on unresolved questions of fact that are better left to the trier of fact and prevent the Court from

making a determination on municipal liability at this time.

A. Plaintiff Has Identified Substantial Questions of Material Fact With Regards to a Policy of Disclosing Sexual Orientation

Plaintiff may establish municipal liability by proving three elements: "a policymaker; an official policy; and a violation of constitutional rights whose 'moving force' is the policy or custom." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)(quoting Monell v. Dept. of Social Servs., 436 U.S. 658, 694 (1978)). An official "policy" need not be in writing nor establish a fixed plan to be followed in similar circumstances. Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986). Indeed, "a government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations." Id. Provided that this course of action is properly made by an authorized final decision maker, it represents an act of government policy for the purposes of § 1983. Id. at 1981. The Fifth Circuit has held that a school Board of Trustees' single action constitutes a "policy" attributable to the school district potentially exposing the district to liability under § 1983. See Gonzalez v. Ysleta Independent School District, 996 F.2d at 754 ("The Board's decision . . . represents a final action by the entity charged with making and executing policy within the school district").

Plaintiff alleges the Coaches were acting in accordance with an official policy promulgated by the KISD Board requiring teachers to disclose students' sexual orientation to their parents. See RESPONSE at 11-12. According to Plaintiff, this policy was unwritten prior to the March 3 incident but was "put in writing" by Superintendent Clements' written response to Ms. Wyatt's Level Two grievance. Id. at 12. This, in turn, was ratified by the School Board without opinion, which Plaintiff argues "confirms the existence of a facially unconstitutional policy . . . ." RESPONSE at 14-15. Plaintiff also argues that the Board's ruling on the Level Three grievance is separately sufficient to establish the existence of an official policy.

The Court notes that because Plaintiff must show that the "moving force" of the constitutional violation of S.W.'s rights was the official policy, Plaintiff must show that the policy was in existence prior to the incident. Even assuming arguendo that the School Board's action constituted an adoption of an official policy that teachers are required to disclose the sexual orientation of students to their parents, it is logically impossible for this policy to have been the moving force behind the incident that occurred before the policy was enacted. Thus, Plaintiff's policy claim rests on whether there was an existing policy.
--------

Plaintiff argues that "[a]t the Level Two complaint and hearing, Defendants' formal justification provided for Fletcher and Newell's nonconsensual disclosure of S.W.'s sexual orientation was that they were 'legally obligated to share this information with the parent.'" RESPONSE at 5 (citing CLEMENTS DEP. at 112-13). The relevant portion of the Level Two Grievance response reads as follows:

In your Grievance you stated that you wanted all unethical conduct reported. I will address the Employee Standard of Conduct violations that you feel were violated.
Section 3.1 The educator can not reveal confidential information concerning students unless disclosure serves lawful professional purposes or is required by law. Coach Fletcher and Newell are legally obligated to share this information with the parent. To my knowledge no one else was given this information except for school officials. The athletes I interviewed never stated that the coaches divulged any information about the details of why [S.W.] was no longer on the team.

Ex. P to RESPONSE (Doc. No. 54-16) at 4 (underlining added). The statement on its face does not indicate that the school district believed it was obligated to disclose S.W.'s sexual orientation, however it suggests the existence of a policy requiring the Coaches to share some "confidential information" with S.W.'s parent.
Defendants present testimony from Superintendent Clements and KISD School Board president Terry George that KISD does not have a policy of requiring staff to disclose students' sexual orientation to their parents. MOTION at 4 (citing CLEMENTS DEP. at 112; GEORGE DEP. at 56). Defendants provide testimony from Superintendent Clements, the author of the Level Two grievance report, explaining the context of the statement that "Coach Fletcher and Newell are legally obligated to share this information with the parent:"

Q: . . .What did you refer to when you were talking about Coach Fletcher and Newell are legally obligated to disclose this information?
A: I was referring to the situation where we had an adult and a minor that could possibly be involved with each other that were riding around in the car, and we felt like we had a legal obligation, because it's an adult and a minor, to report that.
Q: Did you ever - were you referring in any way to them having to disclose her
sexuality -A: No.
Q: - or her sexual orientation?
A: No, just referring to the fact it was an adult and child.

CLEMENTS DEP. at 112-13. Thus, Defendants' appear to be arguing that the policy was not one of disclosing students' sexual orientation, but rather informing parents when their minor child is "possibly involved with" an adult See id.
Plaintiff counters that KISD's belief that it was legally obligated to disclose S.W.'s relationship because of the adult/child relationship is disingenuous. See RESPONSE at 17-18. According to the summary judgment evidence, KISD does not investigate nor has it ever reported to authorities or parents when students 16 or younger have romantic heterosexual relationships with 18 year olds. See id. at 17. As such, Plaintiff suggests that this was merely a post-hoc rationalization of Newell and Fletcher's conduct. See id. at 17-18.

As the above discussion indicates, whether KISD has a policy requiring staff to disclose students' sexual orientation to their parents ultimately rests on the credibility of Superintendent Clements and Mr. George. Although Defendants' claim that it is KISD's policy not to disclose confidential information, Defendants nevertheless argue that it is their policy to disclose to parents when their minor children are in relationships with "adults." Despite this policy, KISD or its staff has never reported to parents when sixteen year old students have heterosexual relationships with eighteen year olds. Thus, because the determination of whether or not KISD has a policy requiring the disclosure of students' sexual orientation would require the Court to evaluate the credibility of Defendants' witnesses, summary judgment as to this prong of the municipal liability analysis is improper.

B. Plaintiff's Failure-to-Train Theory

The Supreme Court recently summarized what a plaintiff must show to prove municipal liability under a failure to train theory. See Connick v. Thompson, - U.S. - . 131 S. Ct. 1350, 1359-60 (2011). In Connick, the Court explained "[i]n limited circumstances, a local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for the purposes of § 1983." Connick, 131 S. Ct. at 1359; see also Valle v. City of Houston, 613 F.3d 536, 544 (5th Cir. 2010) ("The failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury")(citation omitted). The Fifth Circuit's three part test for a failure to train claim requires that a plaintiff show "(1) the municipality's training policy or procedure was inadequate; (2) the inadequate training policy was a 'moving force' in causing violation of the plaintiff's rights; and (3) the municipality was deliberately indifferent in adopting its training policy." Valle, 613 F.3d at 544.

In Connick, the Supreme Court explained that

[D]eliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action. Thus, when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program.

Connick, 131 S. Ct. at 1360 (quotation marks and citations omitted). Lastly, "[a] less stringent standard of fault for a failure to train claim 'would result in de facto respondeat superior liability on municipalities Id. (quoting Canton, 489 U.S. at 392). Thus, "[a] municipality's culpability for deprivation of rights is at its most tenuous where a claim turns on a failure to train." Id. (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-823 (1985)).
To prove deliberate indifference, Plaintiff must show either a pattern of similar violations of students' privacy rights regarding their sexual orientation or the "obvious need for specific legal training" to prevent the "highly predictable consequence" of violating students' privacy rights with regards to their sexual orientation. See Connick, 131 S.Ct. at 1360-61. In this case, Plaintiff alleges that "[t]he disclosure of [Plaintiff's] sexual orientation to her mother was an inevitable consequence" of KISD's failure to provide guidance specifically related to the confidentiality of a student's sexual orientation. MOTION at 12-13. Defendant counters that its training covering confidential information is sufficient, even though it does not address a student's sexual orientation.

Even if Plaintiff fails to show a pattern of similar violations, Plaintiff can still succeed in showing that KISD had "constructive notice" that its training was insufficient by showing the "obvious need for specific legal training" to prevent the "highly predictable consequence" of violating students' privacy rights with regards to their sexual orientation. See Connick, 131 S.Ct. at 1360-61. In rare cases, "the unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under §1983 without proof of a preexisting pattern of violations." Connick, 131 S.Ct. at 1361. In Canton, the Supreme Court hypothesized that "a city that arms its police force with firearms and deploys the armed officers into the public to capture fleeing felons without training the officers in the constitutional limitation on the use of deadly force" would likely be subject to liability. Id. (citing Canton, 489 U.S. at 390, n. 10). Liability stemmed from the "'predictability that an officer lacking specific tools to handle that situation would violate citizen's rights'" because absent training, "there is no reason to assume that police academy applicants are familiar with the constitutional constraints on the use of deadly force." Id. (quoting Board of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997)).

Although Plaintiff only identifies a single specific instance where the sexual orientation of a student was potentially at issue, Plaintiff identifies a series of incidents that could reflect deliberate indifference towards issues involving sexual orientation. Plaintiff alleges that "KISD teachers told [S.W.], 'Tonight is not a night for alternative lifestyles' when she arrived at prom with a female date, and refused to let her in." RESPONSE at 14 (citing S.W. DEP. at 111). Superintendent Clements was aware of the incident and while he stated that KISD has always allowed same sex couples to attend prom, he did not feel the need to announce such a policy even where there was confusion at the dance. Id. (citing CLEMENTS DEP. at 105). Moreover, Plaintiff further argues that Superintendent Clements "expressed further indifference to providing training on policies specifically protecting sexual orientation, claiming that, if the district offered such training, 'there's [sic] going to be 10 or 12 other groups that want a specific thing they have.'" Id. (citing CLEMENTS DEP. at 95).

The awareness that there was at least some confusion among KISD staff regarding their approach issues involving the sexual orientation of students combined with Superintendent Clements' statement implying that additional safeguards or training would too burdensome may rise to the level of deliberate indifference. The risk of the inappropriate disclosure of a students' sexual orientation is exacerbated by the potential existence of a policy requiring staff to inform parents when their sixteen-year old students are dating eighteen year olds. As explained above, it appears that KISD makes no effort to investigate or inform parents when students are in similar heterosexual relationships. It is not unforeseeable that armed only with this policy and no training regarding the confidential nature of a students' sexual orientation or the proper steps to take in order to ensure the safety of the child at issue, an incident like the March 3 incident would occur. In sum, Plaintiff provides enough evidence from which a reasonable person could conclude that KISD was deliberately indifferent towards the need for additional training regarding the confidentiality of students' sexual orientation.

III. Defendants' Remaining Arguments

Defendants also move for summary judgment alleging that Plaintiff failed to exhaust her administrative remedies. See MOTION at 32-33. Defendants claim that because Ms. Wyatt did not timely file her initial grievance, her complaint should be dismissed. Id. While Ms. Wyatt's initial complaint was dismissed as time barred, she pursued her claims through KISD's proscribed appeal process where Superintendent Clements and the Board substantively addressed her claims. See RESPONSE at 9-10; id. at 4-5. Thus, the Court finds that Plaintiff's claims are not barred for failure to exhaust administrative remedies and DENIES Defendants' motion for summary judgment on this issue.

Defendants' also move for summary judgment on the grounds of qualified immunity with regards to Plaintiff's false imprisonment claims. As explained above, there remains a genuine material issue of fact as to whether there was an objectively reasonable basis for the Coaches' actions including factual disputes over what transpired behind the closed doors of the locker room. This factual dispute is highlighted by the parties' competing expert testimony where the experts came to opposite conclusion when presented with only one party's version of the facts. See Ex. 15 TO MOTION, AFFIDAVIT OF MIKE MOSES (Doc. No. 41-15), at 1-2, 7-8 (finding the Coaches' conduct objectively reasonable based on Defendants' version of the facts); VOWELS DECL. at 4-5 (finding that Coaches' treatment of S.W. in the locker room was "hostile and unjustified" based on Plaintiff's version of the facts). Thus, the Court finds that the defendants are not entitled to qualified immunity on this claim at this time and DENIES Defendants' motion.

CONCLUSION

For the aforementioned reasons, the Court DENIES Defendants' Motion for Summary Judgment.

UNITED STATES MAGISTRATE JUDGE

# data[].attributes.attachment_link.title
Wyatt v. Kilgore Indep. Sch. Dist., CIVIL ACTION NO. 6:10-cv-674 | Casetext Search + Citator

# data[].attributes.attachment_link.description
Read Wyatt v. Kilgore Indep. Sch. Dist., CIVIL ACTION NO. 6:10-cv-674, see flags on bad law, and search Casetext's comprehensive legal database