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Slide #1 - Professional Perspective, Audience, & Topic

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Slide #1 - Professional Perspective, Audience, & Topic

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While student confidentiality and parental rights are both important, the balance a school counselor must strike between the two can be quite difficult. Many school counselors either have experience or will experience this dilemma, with “issues of confidentiality and parent rights… found to be among the most common and most challenging ethical dilemmas reported across the K-12 grades” based on “a survey of Virginia school counselors” (Huss et al., 2008, p. 2).

The issue of prioritizing student confidentiality while also respecting the important role and rights of the parent(s) can create both a legal and ethical tightrope that the school counselor must walk, especially when information shared by a student may conflict with a parent’s wishes or beliefs.

PROFESSIONAL PERSPECTIVE: As a current classroom teacher, I have professional experience in handling student confidentiality and parental rights, though rarely with clash between the two elements. Very rarely (if ever) has a parent asked me to share notes about or work completed by a student, and most conversations I’ve had with parents regarding a student have been based on either the student’s overall average in the class or their behavior. However, when I started teaching a dual enrollment class through the University of Texas (OnRamps), I did receive thorough training in FERPA and have had to consider the information I communicate with parents regarding their student’s college coursework.

AUDIENCE: The intended audience for this guide is any school counselor who may need resources or guidance for balancing student confidentiality and parental rights, especially in a circumstance where the two clash. Navigating such a conflict can be overwhelming as it is, so having a clear, concise guide where all relevant laws, ethical standards, and resources can be found could be helpful for the school counselor in the situation.

REASON FOR TOPIC CHOICE: As a student currently studying school counseling, I know that there will likely be more clash between student confidentiality and parental rights in the school counselor role compared to the teacher role, as there will be more discussions of sensitive topics. Therefore, more consideration will need to be given to the legal and ethical guidelines of the school counselor regarding these elements.

Because the balance between student confidentiality and parental rights will likely be an issue I face as a school counselor, and perhaps quite frequently, I have chosen it as a potential topic for my legal guide. The audience of this legal guide would primarily be school counselors, though it will be tailored more to high school counselors specifically since that is the level of students I intend to serve. Having a thorough and accurate guide for this issue can help not only other school counselors but can also serve as a helpful reference for myself should I fulfill a high school counselor role.

In-text Citation:

(Huss et al., 2008, p. 2)

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FEDERAL: At the federal level, “the Family Education Rights and Privacy Act (FERPA) clearly establishes that parents control the privacy rights of students under the age of 18” (Glosoff and Pate, 2002, p. 24). The governing agency in charge of enforcing FERPA and investigating compliance is the Department of Education within the U.S. federal government – more specifically, the Office of the Chief Privacy Officer within the Department of Education (Family Educational Rights and Privacy Act, 1974).

STATE: At the state level, the Texas Education Agency provides FERPA-aligned guidance regarding student confidentiality and parental rights through Chapter 26 of the Texas Education Code: “A parent is entitled to access to all written records of a school district concerning the parent's child,” which include both “counseling records” and “teacher and counselor evaluations” (Tex. Educ. Code § 26.004). The governing agency in charge of enforcing and maintaining compliance with the Texas Education Code is the Texas Education Agency (Tex. Educ. Code § 7.021).

LOCAL (THRALL ISD): In the case of Thrall ISD, the district policy largely points back to the Texas Education Code when it comes to student confidentiality and parental rights (Thrall ISD, 2024). The district school board is the governing agency that enforces and ensures compliance with local policy, often through the district superintendent (Thrall ISD, 2021).

There are layers of legal obligations as well as legal agencies to whom school counselors and other stakeholders are accountable, especially when it comes to student confidentiality and parental rights. Accountable parties may include school counselors, principals, superintendents, school boards, and parents. Based on the information above, FERPA seems to set the tone and influence the descending levels of law within the legal hierarchy, with the Texas Education Agency modeling the Texas Education Code after FERPA and Texas school districts, including Thrall ISD, pointing back to the Texas Education Code within their local policies.

In-text Citations:

(Glosoff and Pate, 2002, p. 24)

(Family Educational Rights and Privacy Act, 1974)

(Tex. Educ. Code § 26.004)

(Tex. Educ. Code § 7.021)

(Thrall ISD, 2024)

(Thrall ISD, 2021)

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FEDERAL: U.S. CONSTITUTION - FIRST AMENDMENT (Full text of law linked in subheading)

The primary U.S. constitutional law affecting a school counselor’s legal obligations regarding student confidentiality balanced with parental rights is the first amendment (U.S. Const. amend. I).

In theory, a student’s confidentiality should rest on their first amendment rights to free speech (U.S. Const. amend. I); however, there may be exceptions to that confidentiality (and therefore free speech) due to certain exemptions made in Texas Education Code for students considered in danger, a danger to themselves, or a danger to others (Tex. Educ. Code § 37.115).

This law is also further complicated by students who qualify as minors, as their parents’ would have a right to access their educational records under FERPA (Family Educational Rights and Privacy Act, 1974).

STATE: TEXAS CONSTITUTION - ARTICLE 1, SECTION 8

Similar to U.S. constitutional law, the Texas Constitution accounts for freedom of speech and expression, stating, “Every person shall be at liberty to speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that liberty; and no law shall ever be passed to curtail or restrain the liberty of speech or of the press” (Tex. Const. art. 1, § 8).

This article of constitutional law could apply in the case of school counselors’ legal obligations regarding the balance of student confidentiality and parental rights not only in the student’s speech/expression, but also in the notes taken by a school counselor on a student. However, like U.S. Constitutional Law, this scenario is complicated by a student’s status as a minor and exemptions made through Texas Education Code (Tex. Educ. Code § 37.115).

Because the web created by the intersection of these laws could be difficult to navigate, a school counselor could potentially overstep student confidentiality by improperly disclosing information or violate parental rights by NOT disclosing student information, so various legal and ethical consequences could apply. The potential consequences. really just depend on the nature of the violation(s).

In-text Citations:

(U.S. Const. amend. I)

(Tex. Educ. Code § 37.115)

(Family Educational Rights and Privacy Act, 1974)

(Tex. Const. art. 1, § 8)

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FEDERAL

Statute - FERPA Statute:

The Family Educational Rights and Privacy Act (FERPA) is the federal statute that has the biggest impact on a school counselor’s legal obligation to balance student confidentiality and parental rights (Family Educational Rights and Privacy Act, 1974).

The primary purpose of the statute is to establish protections of student and parent information within the education system.

Administrative Law - FERPA Regulations:

While the FERPA statute establishes the primary purpose of the act, the regulations set forth for FERPA by the U.S. Department of Education give further detail on the application of FERPA and, specifically in the case of student confidentiality and parental rights, which student information is considered protected vs. which information is not considered protected, whether it be regarding parents or other stakeholders (Family Educational Rights and Privacy Act, 1974).

STATE

Statute - Texas Education Code § 26.004:

The Texas Education Code is a statute most relevant to the issue of balancing student confidentiality and parental rights, specifically the section on parental access to student records (Tex. Educ. Code § 26.004).

This section states that a parent has the right to access counseling records and counselor evaluations of their child (Tex. Educ. Code § 26.004).

Administrative Law - Texas Administrative Code § 247.2:

The Texas Administrative Code states that “educator[s] shall not reveal confidential information concerning students unless disclosure serves lawful professional purposes or is required by law” (19. Tex. Admin. Code. § 247.2).

This administrative law could serve as general guidance for a school counselor,  but further information would be needed to clarify what “lawful professional purposes” should entail.

Each of these statutes and regulations give parameters for all stakeholders in education, including students and parents, regarding the sharing of student information. This is especially important for school counselors who often handle sensitive student information. Depending on the nature and the severity of a violation of these statutes and administrative laws, a school counselor who violates any of the aforementioned laws may face several consequences including loss of trust with the student and/or parent(s), loss of state licensure, and even legal penalties.

In-text Citations:

(Family Educational Rights and Privacy Act, 1974)

(Tex. Educ. Code § 26.004)

(19. Tex. Admin. Code. § 247.2)

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EISEL V. BOARD OF EDUCATION OF MONTGOMERY COUNTY (1991)

One Supreme Court Case that has shaped laws around student confidentiality and parental rights in public education is Eisel v. Board of Education of Montgomery County (1991).

This case was brought forth after a young girl in Maryland killed herself and no communication had been made beforehand by her school counselors despite their knowledge that the student had made statements about committing suicide (Eisel v. Board of Education of Montgomery County, 1991).

This case set a precedent for the responsibility that a school counselor has to not only intervene with the student when such statements are made but the obligation to also communicate with parents.

While this is not the only case relevant to this topic and it took place far across the country in Maryland, it has shaped laws and policies in Texas regarding the duty of educators, including school counselors, when it comes to student safety and threats of suicide.

In-text Citation:

(Eisel v. Board of Education of Montgomery County, 1991)

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FERPA

When it comes to the balance of student confidentiality and parental rights, the Family Education Rights and Privacy Act (FERPA) is impactful on school counselors’ legal obligations (Family Educational Rights and Privacy Act, 1974).

FERPA establishes protections for student and parent information within the public education system and serves as a guide for what information school counselors can and cannot disclose.

Generally, parents have rights to access almost all student information when the student is a minor; however, FERPA does detail a couple of exceptions to this (Family Educational Rights and Privacy Act, 1974).

One exception to parent access to student information under FERPA is any information considered to be “records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record” (Family Educational Rights and Privacy Act, 1974). If a school counselor had information that met that definition, they would not be legally obligated to disclose that information to the parent of a student.

In-text Citation:

(Family Educational Rights and Privacy Act, 1974)

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Slide #7 - Local Administrative Law/Policy/Rule

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Slide #7 - Local Administrative Law/Policy/Rule

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THRALL ISD LOCAL POLICY ON STUDENT CONFIDENTIALITY & PARENTAL RIGHTS

Thrall ISD, through local policy on Policy Online, mostly points to Texas Education Code when it comes to student information and parental rights (Thrall ISD, 2024).

Additionally, Thrall ISD (2023) addresses the requirement that a parent legally must provide written consent for a student to receive mental health counseling and the rights that a parent has to instructional materials that may be used within the school counseling program.

Each of these local policies directly impact the school counselor(s) that may work in the district. Not only must a school counselor abide by the Texas Education Code regarding student information and confidentiality, as it is frequently cited in the Thrall policy (Thrall ISD, 2024), but the school counselor must also have materials and consent forms prepared and available should a student warrant mental health counseling (Thrall ISD, 2023).

In-text Citation:

(Thrall ISD, 2024)

(Thrall ISD, 2023)

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RISK MANAGEMENT FOR SCHOOL COUNSELORS REGARDING BALANCE OF STUDENT CONFIDENTIALITY AND PARENTAL RIGHTS

In order to avoid or mitigate legal/ethical conflict between a school counselor’s obligation to student confidentiality but also a parent’s right to information on their child, the following steps must be taken:

Clear Training for School Counselors: In order for a school counselor to properly apply the aforementioned laws regarding student confidentiality and parental rights, the counselor must have proper training in the legal/ethical obligations. While certification in school counseling may ensure some understanding, additional training can further mitigate the legal/ethical risks.

Clear Communication to Student: A school counselor must inform students that the confidentiality that exists between the student and counselor does have exceptions, such as when the student is considered to be in danger, a danger to themselves, or a danger to others (Tex. Educ. Code § 37.115). Additionally, the school counselor must communicate that a parent has access to student records (Family Educational Rights and Privacy Act, 1974).

Clear Systems & Materials: In order to meet legal/ethical obligations regarding parents’ legal access to student information, the counseling program should have a clear set-up of the counseling program and the materials within it, including counseling consent forms and instructional materials as mentioned in Thrall ISD local policy (Thrall ISD, 2023).

Collaboration: Especially prior to breaking student confidentiality in order to meet parental rights (especially with sensitive student information), the school counselor should involve other stakeholders, such as the principal, other school counselors in the district, and/or legal counsel.

In-text Citations:

(Tex. Educ. Code § 37.115)

(Family Educational Rights and Privacy Act, 1974)

(Thrall ISD, 2023)

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ASCA ETHICAL STANDARDS FOR SCHOOL COUNSELORS

The American School Counselor Association (ASCA) provides ethical standards specific to school counselors that can apply in cases of conflict between student confidentiality and parental rights. The purpose of these standards, as stated in the Purpose section, is to “to clarify the profession’s norms, values and beliefs” and starts with a “primary obligation to the students, who are to be treated with dignity and respect as unique individuals” (ASCA, 2022).

Application to Student Confidentiality & Parental Rights

Standard A.2.b states that a school counselor should “inform students of the purposes, goals, techniques, rules and procedures under which they may receive counseling. Disclosure includes informed consent and clarification of the limits of confidentiality” (ASCA, 2022). This standard explicitly states that student confidentiality does, in fact, have limits and requires counselors to clearly communicate those to students.

Standard A.2.f specifically states that “parental rights” may “demand confidential information be revealed” (ASCA, 2022). This standard clarifies that parental rights to student information, even confidential information related to counseling, must still be acknowledged and met.

These standards demonstrate the ethical obligations that a school counselor must maintain student confidentiality but while also upholding parental rights.

In-text Citation:

(ASCA, 2022)

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PERSONAL CONNECTION

The process of creating this Padlet has helped me to truly reflect on the population I will be serving as a high school counselor and how many legal and ethical principles exist based on the specific context and phase in which those students will be served. High school students, at the end of the day, are still children. While student confidentiality is important, the parent of each student has a right to access their student's information, even within school counseling. While there are exceptions to those rights, there are specific criteria to be met in order for those rights to be superceded. Ultimately, the highest priority is a student's wellbeing, and that seems to be at the center of the laws and ethics surrounding student confidentiality and parental rights. Therefore, it is a school counselor's job to keep the student's wellbeing as the highest priority, as well.

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Slide #11 - Recommendations/Best Practices for Compliance

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Slide #11 - Recommendations/Best Practices for Compliance

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RECOMMENDATIONS/BEST PRACTICE FOR COMPLIANCE

As seen in the posts above, there is no one-size-fits-all when it comes to scenarios of student confidentiality and parental rights. However, there are steps that can be taken to strive for compliance and for meeting our ultimate goal of doing what's best for students:

Thorough & Up-to-Date Training: School counselors must receive or seek out training in ethical and legal principles that relate directly to the field of school counseling. The tricky gray areas and constant "flux" nature of education requires school counselors to know as much as they can on ethical and legal principles, even once they are certified and employed.

Clear Communication with Students: School counselors must also be clear with students that while student confidentiality is a high priority, there are exceptions to that confidentiality when the student is considered to be:

in danger,

a danger to themselves, or

a danger to others (Tex. Educ. Code § 37.115).

Additionally, the school counselor must communicate to the student that their parent has the right to access their records (Family Educational Rights and Privacy Act, 1974).

Clear Systems: School counseling programs must also have clear systems in place to navigate the appropriate steps and gray areas of laws and ethics surrounding student confidentiality. This means appropriate and required paperwork, clear school handbook and district policies, and materials that are prepared well in advance. If this is not already in place, it is the school counselor's role to either advocate for it or put those resources in place themselves, depending on the school and counseling program size.

Collaboration: Similarly, a school counselor must be willing to seek out other resources and stakeholders who can help navigate the ethics and laws of student confidentiality. This may include other counselors, the school principle, the superintendent, the school board, and/or legal counsel.

Membership in a Professional Organization: Joining a professional organization, especially one with thorough legal knowledge and resources such as the ASCA, is a method to not only learn more about laws and ethics in school counseling but can also be a valuable aide in the case of alleged non-compliance. Many of these organizations have liability insurance intended for school counselors specifically. Additionally, some have valuable publications and webinars for additional training in legal and ethical principles.

Willingness to Look for Faults: One inevitable fact in education is that the system is imperfect (and probably always will be, to an extent). However, that inevitability does not warrant indifference to the individual imperfections. As a school counselor (or any educational professional), it's important to be proactive and ask how a system can be better, even if it means more work on your part. When it comes to a school counseling program or the local/district policies surrounding student confidentiality (or other topics central to the school counseling profession), a school counselor can look for the faults and advocate for solutions before those faults create conflict for the counselor, students, parents, or other stakeholders.

In-text Citations:

(Tex. Educ. Code § 37.115)

(Family Educational Rights and Privacy Act, 1974)

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Access to Student Records, Tex. Educ. Code § 26.004

American School Counselor Association. (2022). ASCA ethical standards for school counselors. https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1).

Code of Ethics and Standard Practices for Texas Educators, 19. Tex. Admin. Code § 247.2

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

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

Glosoff, H. L., & Pate, R. H. (2002). Privacy and confidentiality in school counseling. Professional School Counseling, 6(1), 20–27.

Huss, S. N., Bryant, A., & Mulet, S. (2008). Managing the quagmire of counseling in a school: Bringing the parents onboard. Professional School Counseling, 11(6). https://doi.org/10.1177/2156759X0801100602.

Tex. Const. art. 1, § 8

Texas Education Agency Power and Duties, Tex. Educ. Code § 7.021

Thrall ISD. (2021). BAA — Board Legal Status: Powers and Duties– Legal Framework. https://pol.tasb.org/PolicyOnline/PolicyDetails?key=1247&code=BAA#legalTabContent.

Thrall ISD. (2024). FA — Parent Rights and Responsibilities – Legal Framework. https://pol.tasb.org/PolicyOnline/PolicyDetails?key=1247&code=FA#legalTabContent.

Thrall ISD (2023). FFEA — Counseling and Mental Health: Counseling. https://pol.tasb.org/PolicyOnline/PolicyDetails?key=1247&code=FFEA#legalTabContent.

Threat Assessment and Safe and Supportive School Program and Team, Tex. Educ. Code § 37.115

U.S. Const. amend. I