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Confidentiality is one of the main elements and principles of education across the board. For school counselors in Texas, they are obligated by legal requirements and ethical guidelines through the Texas Education Agency, Texas Education Codes, and the Texas Model for Comprehensive School Counseling to adhere to protecting the privacy of their students. In addition, school counselors must follow the law with the Family Educational Rights and Privacy Act (FERPA) as well as the ethical standards withing the American School Counselor Association (ASCA). As an educator who has been in the field for over 10 years and now a newly school counselor, I feel that it is imperative that the confidentiality and privacy of students continues to be a number one priority. I chose this topic due to the nature of how our society is evolving with technology and laws governing this specific topic regarding confidentiality. In order to develop a safe and comprehensive school counseling program that advocates for our students, it is important to understand and practice the laws and ethical standards that govern the privacy of our students. The primary audience for this topic includes educators, counselors, teachers, administrators, and all others who are involved with supporting students.

References

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

Family Educational Rights and Privacy Act (FERPA). (2021, August 25). Www2.Ed.gov. https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html#:~:text=Get%20the%20Latest%20on%20FERPA

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Texas Education Agency. (2018). The Texas model for comprehensive school counseling programs (5th ed.). Texas Counseling Association. https://tea.texas.gov/sites/default/files/Pub_2018_Texas-Model_5th-Edition.pdf.

Texas Education Code (TEC § 33.002 through § 33.009) https://statutes.capitol.texas.gov/Docs/ED/h tm/ED.33.htm

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At the federal level, the United States Department of Education governs and enforces the Family Educational Rights and Privacy Act (FERPA). "The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education" (Family Educational Rights and Privacy Act (FERPA), 2021). This law gives parents the right to decide if their child's personal educational records can be disclosed to others; however, the rights of the parents is transferred over to the student once they turn 18 years of age or attends a school after high school. In addition, parents have the right to request or review their child's records. School districts must require consent from parents in order to disclose personal information about the student.

At the state level, the Texas Education Agency (TEA), the Texas Higher Education Coordinating Board (CB), and the Texas Workforce Commission (TWC), are the cooperating agencies that enforce the federal FERPA law regarding confidentiality (Texas Secretary of State, n.d.). "TEA only handles complaints related to violation of school law or the agency itself" (Agency, 2023).

References

Agency, T. E. (2023, March 21). Complaints Addressed by Other Agencies. Tea.texas.gov. https://tea.texas.gov/about-tea/contact-us/complaints/complaints-addressed-by-other-agencies

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Family Educational Rights and Privacy Act (FERPA). (2021, August 25). Www2.Ed.gov. https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html#:~:text=Get%20the%20Latest%20on%20FERPA

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Texas Secretary of State. (n.d.). Welcome to the Texas Administrative Code. Www.sos.state.tx.us. https://www.sos.state.tx.us/tac/index.shtml

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Although The United States Constitution does not explicitly go into details about the rights of privacy, the Bill of Rights can be seen as protecting privacy in ways that are not specifically detailed in the first eight amendments. The fourth and fifth Amendment most align with protection for an individuals privacy of personal information (Linder, 2003).

The fourth amendment protects people from unreasonable searches and seizures.

secure in their persons

houses

papers

effects

(Constitutional Amendments – Amendment 4 – “the Right to Privacy,” n.d.)

The fifth amendment protects privacy by guarantee of substantive due process and the right against self-incrimination.

held to answer for a capital, unless on an indictment

no individual subject for the same offense twice

no individual compelled to be a witness against themselves

no individual deprived of life, liberty, or property without due process

no individual shall have private property taken for public use

(Temme, 2018)

The Texas State Constitution in Article 1 Bill of Rights, Section 9 piggy backs on the fourth amendment in that it covers the privacy of individuals with searches and seizures.

secure in persons

houses

papers

possessions

(THE TEXAS CONSTITUTION ARTICLE 1. BILL of RIGHTS, n.d.)

References

Constitutional Amendments – Amendment 4 – “The Right to Privacy.” (n.d.). Ronald Reagan. https://www.reaganlibrary.gov/constitutional-amendments-amendment-4-right-privacy#:~:text=Constitutional%20Amendments%20%E2%80%93%20Amendment%204%20%E2%80%93%20%E2%80%9CThe%20Right%20to%20Privacy%E2%80%9D

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Linder, D. O. (2003). The Right of Privacy: Is it Protected by the Constitution? Umkc.edu. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html

Temme, L. (2018). Fifth Amendment - U.S. Constitution - FindLaw. Findlaw. https://constitution.findlaw.com/amendment5.html

THE TEXAS CONSTITUTION ARTICLE 1. BILL OF RIGHTS. (n.d.). Statutes.capitol.texas.gov. https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm

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The Privacy Act of 1974, as amended, 5 U.S.C. § 552a establishes a code of fair information practices that governs:

the collection, maintenance, use, and dissemination of information about individuals that is maintained in systems of records by federal agencies

prohibits the disclosure of a record about an individual from a system of records without written consent of the individual

provides individuals with a means by which to seek access to and amendment of their records, and sets forth various agency record-keeping requirements

(Office of Privacy and Civil Liberties | Privacy Act of 1974, 2014)

The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule (45 CFR Parts 160 and 164) provides individuals privacy protection with their health information being disclosed to others.

primarily applies to health care providers

health plans

health care clearinghouses

educators with access to medical information to include health plans in place for students, possible information within 504 or IEP plans

school counselors with access or knowledge of medical information regarding their students

(U.S. Privacy Laws, n.d.)

The Texas Education Code § 26.004 elaborates on the parental rights of accessing their child's education information.

attendance records

test scores

grades

disciplinary records

counseling records

psychological records

applications for admissions

health and immunization information

teacher and school counselor evaluations

reports of behavioral patters

records relating to assistance provided for learning difficulties and intervention strategies

(TEC § 26.004)

References

Office of Privacy and Civil Liberties | Privacy Act of 1974. (2014, June 16). Www.justice.gov. https://www.justice.gov/opcl/privacy-act-1974#:~:text=The%20Privacy%20Act%20prohibits%20the

Texas Education Code (TEC § 26.004) https://statutes.capitol.texas.gov/Docs/ED/htm/ED.26.htm

TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES § 552a. (n.d.). https://www.govinfo.gov/content/pkg/USCODE-2018-title5/pdf/USCODE-2018-title5-partI-chap5-subchapII-sec552a.pdf

U.S. Privacy Laws. (n.d.). EPIC - Electronic Privacy Information Center. https://epic.org/issues/privacy-laws/united-states/#hipaa

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Owasso Independent School District. No. I-011 v. Falvo, 534 U.S. 426 (2002) addressed the concern of peer-grading being educational records and a violation of FERPA; however, the Supreme Court determined that peer-graded papers do not qualify as education records (Student Privacy Case Law, n.d.).

grades are not maintained by teachers until they are entered into the gradebook

"maintain" suggests FERPA records will be kept in a file in a school's record room or on a secure database

students are acting for the teacher in grading an assignment is different from saying they are acting for an educational institution in maintaining it

(Owasso Independent School Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002), n.d.)

References

Owasso Independent School Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002). (n.d.). Justia Law. https://supreme.justia.com/cases/federal/us/534/426/

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Student Privacy Case Law. (n.d.). EPIC - Electronic Privacy Information Center. https://epic.org/student-privacy-case-law/

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The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the rights for parents and children regarding educational records. It is governed by the United States Department of Education (FERPA | Protecting Student Privacy, n.d.).

parents the right to access their child's educational records

parents must provide written consent to disclose information

strict privacy and confidentiality unless mandated to report information due to legality or a harmful environment

References

Federal Register :: Request Access. (n.d.). Unblock.federalregister.gov. https://www.ecfr.gov/current/title-34/subtitle-A/part-99

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FERPA | Protecting Student Privacy. (n.d.). Studentprivacy.ed.gov. https://studentprivacy.ed.gov/ferpa#0.1_se34.1.99_12

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Temple Independent School District's public information is made available through the Public Information Act (the Act). The Public Information Act, Chapter 552 of the Government Code states that:

any person has the right to request access to government records or information

all entities defined as a “governmental body” in section 552.003 (1) (A) are subject to the Act

certain information is protected from disclosure by the exceptions in the Act, Family Educational Rights and Privacy Act (FERPA), or other law, either constitutional, statutory, or by judicial decision

(Public Information Request, n.d.)

Temple ISD's local policy mandates the FERPA law of privacy and confidentiality of student educational records; however, they have the right to disclose information that is designated as directory information and not harmful or an invasion of privacy. Parents do have the right to object to the release of this information, but it must be done in writing to the principal or Temple ISD Office of communications within ten days of the first instructional day for the school year (Temple ISD Middle School and High School Parent and Student Handbook Our Vision, 2023, pg. 20-21).

References

Public Information Request. (n.d.). Www.tisd.org. Retrieved July 23, 2024, from https://www.tisd.org/apps/pages/index.jsp?uREC_ID=356372&type=d&pREC_ID=773160

Temple ISD Middle School and High School Parent and Student Handbook Our Vision. (2023). https://4.files.edl.io/fde2/09/15/23/131415-72b9a8ee-024e-479a-b499-ebf8ad7fa8ae.pdf

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3 Risk Management Strategies

Required Training or Professional Development: In the state of Texas, school district employees are required to complete annual trainings in regards to FERPA and HIPPA laws. Depending on the educators job title, some employees require further training or professional development. For example, school counselors must complete a mental health professional development every three years. "State law requires districts to provide professional development for school personnel on youth mental health" (Professional Development for Mental Health - Texas | State Policy Database, n.d.).

Child Abuse Prevention an Overview. ...

Grief informed & Trauma informed practices. ...

Mental Health in Schools. ...

Suicide Prevention, Intervention, and Postvention. ...

Texas Statutes Education Code § 26.004

Policies and Procedures: Policies and procedures must be put in placer in order for school districts to maintain the federal law with FERPA as well as state administrative laws and statues such as the Texas Education Code § 26.004 and Texas Administrative Code regarding the code of ethics and standard practices for Texas educators.

Creating a Culture and Safe Environment: School districts can take many steps to protect student data in regards to technology usage in the classroom. Districts are responsible for promoting student safety and ensuring the protection of student data privacy. These steps may include:

point of contact person (technology or tech coach)

develop a communication strategy

identify websites and apps being used in the district

develop an understanding of specific laws and regulations such as FERPA

vet apps for compliance with laws and data privacy

create a list of approved apps to share with teachers

(Thompson, 2023)

References

Professional Development for Mental Health - Texas | State Policy Database. (n.d.). Statepolicies.nasbe.org. https://statepolicies.nasbe.org/health/categories/counseling-psychological-and-social-services/professional-development-for-mental-health/texas

Texas Education Code (TEC § 26.004) https://statutes.capitol.texas.gov/Docs/ED/htm/ED.26.htm

Thompson, R. (2023, March 15). 6 Steps to Protect Student Data Privacy. Edutopia; George Lucas Educational Foundation. https://www.edutopia.org/article/protecting-student-data-privacy/

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Welcome to the Texas Administrative Code. (2018). Texas.gov. https://www.sos.texas.gov/tac/index.shtml

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The American School Counselor Association (ASCA) outlines all ethical standards that school counselors can use as a guide for ethical practices within the job. It also provides support and direction to inform all educational stakeholders the expectations of a school counselor. According to Standard A.2, school counselors must promote awareness of legal mandates regarding confidentiality and advocate for students without disclosing personal and private information with student records (ASCA, 2022). School counselors are mandated by law to disclose information to the appropriate authority figures if they feel the student is in danger or not in a safe environment.

Reference

American School Counselor Association. (2022). Ethical standards for school counselors. ASCA. https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

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Learning more about the laws and standards involved with confidentiality has allowed me to have a better understanding of the expectations that I must abide by as an educator as well as a newly school counselor. In addition, it has broadened my thinking of my own personal education journey and how lucky we are to have these laws in place to protect our privacy from others. Moving forward as a new school counselor, I plan to use what I have learned in depth regarding privacy/confidentiality and making sure that all my records are kept safe and away from others as well as keeping organized and documented records with the correct consent forms if needed.

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School districts must provide professional development annually to all educational stakeholders regarding privacy, confidentiality, and security.

School districts can minimize data collection of student information and only collect was is absolutely needed.

School districts may come up with a plan of action regarding purging unnecessary student records to lower the impact of a cyber breach.

School districts should assign the minimum level of access to all educational stakeholders in order for their job to be performed appropriately.

School districts must abide by the FERPA law and require parent/guardian written consent in regards to student educational records being disclosed to other entities or individuals.

School districts should monitor school network activity for suspicious movement within the different platforms being used with teachers, students, and administration.

(Chapel, 2019)

References

Chapel, M. (April 10, 2019). 5 Ways to Safeguard Student Information. Technology Solutions That Drive Education. https://edtechmagazine.com/k12/article/2019/04/5-ways-safeguard-student-information

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Scheid, M. (2019). The educator’s role: Privacy, confidentiality, and security in the classroom. Student Privacy Compass. https://studentprivacycompass.org/scheid1/

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