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Upon completion of my Master's degree in Guidance and Counseling, I hope to be employed as elementary school counselor.

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Step 2: Exploration Option 1 - Top According to a Current Professional 

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Step 2: Exploration Option 1 - Top According to a Current Professional 

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I talked to a current elementary School Guidance Counselor, Andrea Boen, about current legal and ethical issues impacting her role.

#1 Managing the multitude of tasks while maintaining state and district deadlines. The workload of school counselors can be overwhelming. Some of those tasks include, individual student counseling, class counseling lessons, facilitation of the 504 and Special education process, legal documentation, keeping track of data, educating parents on issues, training teachers, and more.

#2 Keeping up with current legal guidelines and policies for both the state and the school district can be difficult. Policies and rules that have recently changed are 504 requirements and guidelines, new eligibility guidelines for STAAR, new guidelines for sub intellectual functioning, and requirements/guidelines for dyslexia.

Great ways to stay up to date on legal guidelines are district training, regional training, school board meetings, Counseling Conferences, Texas Education Agency website, and Texas Counseling Association Newsletters and website.

#3 School counselors must be careful when parents and/or other staff members are asking for confidential information regarding a student. School counselor have legal and ethically guidelines they must adhere to.

#4 Addressing mental health and social emotional needs of students. There seems to be more and more students that are in need of these services. Students need help working through mental health issues, behavior issues, and/or family crisis'.

#5 Educating parents is an important task for school counselors. Some parents need consultation on how to communicate with their children and on ways they can help their children through peer and/or family issues. Some parents do not completely understand the role of school counselors. Some parents do not want their children to receive school counseling and some want their children to receive in depth counseling. Counselors are required to find ethical ways to inform parents on issues with their children, providing them with resources, and educating them on the role of school counselors.

(A. Boen, personal communication, March 21, 2019)

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Step 2: Exploration Option 2 - American School Counseling Association

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Step 2: Exploration Option 2 - American School Counseling Association

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In my review of the ASCA Ethical Standards for School Counselors, there were several questions and concerns about confidentiality. States and district have different guidelines for student confidentiality. It is imperative for counselors to ensure they follow those guidelines. Parents and other staff members may ask to obtain information on a student that is receiving counseling services, but counselors must also maintain a rapport and trust. Counselors must use confidentiality guidelines as well as use professional judgement to ensure that there are not any legal or ethical implications.

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Legal and Ethical FAQs

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.

Subpoenas/Case Notes

What do I do if I receive a subpoena for my testimony or case notes?
This is a common part of being a school counselor. Remember, most courts are not looking to attack educators and operate under the general thought that you are attempting to do what is best for students and families. Let your principal know, and ask for assistance to contact your district legal team to get advice on how to proceed. If possible, work with the district legal team to get the subpoena quashed. If you are not able to 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. A few states give students privileged communication, which means they can render the school counselor incapable of testifying about their communications. Check your state statutes. In most of cases, the courts are entitled to your testimony, and even in the states awarding privilege communication to minors, judges can often exercise discretion if they need the information for the safety and health of the minor.

What is best practice regarding case notes? 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. Personal notes should really be more like memory-joggers for you professionally. 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. Other student names can be omitted, but the parents/guardians have a right to see the rest. You can keep personal notes if you feel the need to be more specific, but the law has been clear that 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 meet specific criteria. They must: serve as a memory aid, not be accessible or shared in verbal or written form, be a private note created solely by the individual possessing it and include only observations and professional opinions.

I have 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.

Confidentiality

When do I share information about students with parents or families and with administrators or other school staff?
Sharing information with parents/guardians is important when a student's safety is in question. This may be sexual behaviors, self-harm, drug use or threats to self or others. Ultimately, open communication with parents/guardians is important and will help with overall programming in the school.

Notify administrators of any threats to self or others and when a human services report has been made or the police have been called. If you do not already have a protocol in place for this situation, check with a few neighboring districts for their protocols and bring them to administration for approval. 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. This is particularly important regarding social/emotional interventions. Otherwise, a sharing of 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?
Your administrator may be curious about who is seeing you and for what reasons. Prepare that information in a general way, using descriptors such as "academic," "career" or "social/emotional" or in another way where personal information is de-identified. If the administrator wants to know more specifics, this is a good time to process your legal and ethical pull between 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., what is the age of consent, issues around pregnancy decision-making, etc.) as well as your school board policies regarding the issue 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.

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?
If the student tells you he was inappropriately touched, follow your school district's protocol regardless of the amount of time that has passed. You still have a duty to report. Remember that child offenders often offend many times before they are actually caught. You may be preventing future offenses. Also, remember that if the adult is anyone but a family member living in the home, you should call the police department. If the student was touched by another student, you will 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. A principal recently lost her job when three 5 year olds were caught simulating sex acts on each other, and the principal called the parents and not 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.

My principal and central office supervisor want to know the names of all the students I report to child protective services for possible abuse or neglect. Am I required to tell them?
School counselors are mandated reporters, and good-faith reporting is assumed when a professional reports child abuse. The term good-faith reporting refers to the assumption that the reporter, to the best of his or her knowledge, had reason to believe the child in question was being subjected to abuse or neglect. A mere suspicion of abuse is all that is necessary when reporting child abuse. The school counselor is acting legally and ethically when reporting and does not require anyone's permission to report child abuse. Following district or administration policy regarding notifying after the fact the students for whom you called in child abuse is legal and ethical.

Due to COVID concerns, students aren't allowed to come to my office for any reason. I'm only allowed to speak with students in the hallway directly outside their classroom. What do I do?
According to the ASCA Ethical Standards for School Counselors schools present competing interests, including the safety of students, parental rights and the best interest of students, but it is critical to respect students' privacy to the greatest extent possible and to adhere to laws, policies and ethical standards around confidentiality and disclosure in the school setting. Students need a safe, private space to talk, and the school must consider what the plan will be in case of a crisis, if abuse is suspected or if the student is considering harm to self or others. A student in crisis may not feel comfortable opening up when peers are nearby. If students can move around the building to see other school staff, they should be able to see the school counselor. In the past six months, many students have experienced trauma and stress related to the pandemic and racialized trauma following the death of George Floyd and the related protests. A safe, supportive and equitable learning environment requires us to provide structures for physical and emotional safety. Providing student physical and psychological safety includes ensuring specialized support personnel, including school counselors, school psychologists and school social workers, have an adequate space to meet with students confidentially while being able to be physically distant. When schools and school districts do not plan for these safety concerns, the school counselor should advocate for change. Ethical standard A.2.m states school counselors advocate for safeguards and protocols to protect student confidentiality, and A.10.b states school counselors advocate for student safety at school. School counselors can use the above points and the ASCA Ethical Standards in their advocacy efforts. The ASCA position statements The School Counselor and Confidentiality, The School Counselor and Safe Schools and Crisis Response and The School Counselor Student Mental Health may provide additional advocacy support. As a school counselor, you need to understand how to negotiate your school's political landscape. Advocacy efforts that come across as adversarial may do more harm than good. Diplomacy is an important skill to employ when advocating.

VIRTUAL: 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. Be aware that you don't know who else is on the other side of the computer screen, and 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.

VIRTUAL: Can school counselors conduct group counseling in a virtual setting? Am I still required to get parent/guardian consent?
Under the best circumstances, legal and ethical complications are acutely present in small-group delivery. This is especially problematic in the virtual world. Confidentiality for groups in a brick-and-mortar situation is fragile because the school counselor can never feel secure that students will abide by it or understand all the nuances. Remember, anything said in the group can be tweeted, posted on social media or discussed in the hallway within seconds or minutes. School counselors must be vigilant in what they allow one student to talk about in front of their classmates. Ensuring confidentiality in a virtual world is even more difficult. You can't know who is listening in each student's household. It might be impossible for a student to seek a private place, have headphones or keep family members out of earshot. Informed consent is even more important when providing group counseling services. Many legal and ethical complications in small-group counseling settings are more pronounced in a virtual context, particularly in regard to ensuring confidentiality. Students may disclose sensitive or personal information in front of classmates or household members, and school counselors should take the perspective that confidentiality likely will be breached. As a result, you should inform parents/guardians when their child is participating in a small group. Parent/guardian notification allows you to share the group's purpose, focus and goals and inform them about the challenges of maintaining confidentiality in a virtual format. Informing parents/guardians of the benefits and limitations of group counseling provides them an opportunity to make an informed decision and opt their child out of services if they choose. It is helpful to share this information both verbally (video or phone) and in writing. While best practice is to obtain written consent from parents, it can be challenging in a virtual setting. At minimum, school counselors should obtain verbal consent and document it is received from parents/guardian before students begin attending virtual small group sessions.

VIRTUAL: Is it necessary to get parent/guardian consent for individual counseling in a virtual setting?
Challenges exist in obtaining parent/guardian consent in a brick-and-mortar school setting and are even more pronounced in a virtual context. 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. If your district previously required consent for school counseling services when you worked in person, you should continue to adhere to those policies in a virtual setting unless they have been softened or amended. Similarly, you must comply if your district enacted a new policy for obtaining parental permission when providing virtual school counseling services. Best practice is to inform parents/guardians when you are providing individual counseling for a student over more than one or two sessions. Currently it may be challenging to simply inform parents/guardians without adding the need for a parental signature. Nevertheless, you should make every effort to inform parents/guardians about the risks and benefits of providing individual virtual school counseling services, including limits of confidentiality in a video or electronic format. It is impossible to guarantee confidentiality in an online setting; therefore, both students and parents need to be informed of these limitations.

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. It's also a reminder to administrators of the need for your position. The ASCA Ethical Standards for School Counselors state: Section A.2n. Advocate with appropriate school officials for acceptable encryption standards to be utilized for stored data and currently acceptable algorithms to be utilized for data in transit. Avoid using software programs without the technological capabilities to protect student information based upon currently acceptable security standards and the law.

VIRTUAL: What FERPA and HIPPA guidelines should school counselors follow in virtual school counseling?
School counselors have expressed much angst regarding whether or not the platform they're being asked to use is Health Insurance Portability Accountability Act (HIPAA) compliant. HIPAA does not apply to elementary or secondary schools except in "in a few limited circumstances" (USDOE and USDHHS, 2019, p. 8). Schools that receive federal funds are not HIPAA-covered entities, because the health information maintained on a student's record is an education record and covered by Family Educational Rights and Privacy Act (FERPA). Use the platform your district has assigned because this is safest for you. If the district did not vet the platform for privacy, you may need to advocate for a change, but you do not have to worry about whether the platform is HIPAA compliant; even mental health providers who are under contract and control of the district are covered under FERPA, not HIPAA. If your school is private and receives no federal funds, you may encounter an unusual case in which someone who bills for health care might fall under HIPAA. For example, "if a private elementary or secondary school not subject to FERPA employs a physician who bills a health plan electronically for the care provided to students (making the school a HIPAA-covered entity), the school must comply with the HIPAA rules regarding the individually identifiable health information of its patients" (USDOE and USDHHS, 2019, p. 8). Get all the information you need on how HIPAA and FERPA intersect and an easy-to-read chart.

VIRTUAL: What are some things I can do to ensure confidentiality?
It is important to note that we cannot completely "ensure" confidentiality in an online setting given our limitations. We cannot know the student is alone, for example. However, these practices can help work toward this ideal:

Use headphones with a microphone, and suggest students do as well.

Use a white noise machine to help prevent others from overhearing private conversations

Identify a separate or private room. (You may think you are starting with an academic topic, but the discussion may venture into other areas.)

VIRTUAL: My school wants school counselors to record phone calls or virtual meetings with students and families. Is this something I should do?
It depends. For academic advising or college-related topics, this may be okay as long as you let the student and family know ahead of time that the session is being recorded. Obviously, you will not be able to have private (confidential) conversations with students given that these will be recorded and made available to administration.
Working With Administrators and Other Staff

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?
It can be difficult to curtail the process of writing school counselors into IEPs. Explain that the teacher or the inclusive classroom can better handle interventions targeting social skills and anger management due to the constant need to reinforce or extinguish behavior in the authentic context of the classroom where the behaviors occur. You can support regular education and special education students in brief group counseling or behavior management programs, but a long-term approach that interferes with the student's education is an inappropriate use of school counselors' time.

IEP teams need leadership, communication and clarity regarding the appropriate use of IEPs. The team leader should ensure every team member understands that the school counselor's role must be realistic and relevant as defined by ASCA. 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.

The educators in my state are planning to strike. Am I required to participate? Would my participation be considered student abandonment?
You are not required to do anything that isn't federal, state or county law, district or school policy, or mandated by your supervisor. This means you are not required to participate in any strikes unless you feel compelled to do so. As for student abandonment, if you believe the safety and wellbeing of your students will suffer in your absence, that may be something to consider. Consider the length of the absence, whether the family provide appropriate support in your absence and other resources that may be available to students if you chose to strike.

Student Harmful Behavior

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. This is taking all my time. What do I do and what are the liabilities?
Those who favor this type of software argue that it can save lives. However, 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. Some school districts use parts of the software to limit access to particular websites but don't activate the alerts. However, if schools use the alert functionality, it's likely school counselors will be assigned to follow up on the alerts. 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. In a hypothetical example, a student makes a suicide attempt Saturday night, but 24 hours earlier at 11 p.m. on a Friday night, when the school counselor wasn't working, the student's online activity indicated suicidal ideation. The student's online activity was not detected because the school district used the software to block certain sites but opted out of the self-harm alerts. Or, the school district did accept alerts, but the alert came in when the school counselor wasn't working. Could this create liability? Possibly. The argument is weak that liability would follow because a school district's actions or lack of action would have to be the actual cause of the death, but do school districts really want to test the argument?

A student at my school sent me an email indicating another student is expressing suicidal thoughts. What are my obligations?
Suicide reporting does not hinge on certainty of harm or your discretion. Waiting until you have certainty is dangerous. The only knowledge you need to meaningfully act is an expressed, implied, veiled, peer-reported or rumored suicidal ideation. The consequence of the risk - death of a child - is too great. We must err of the side of caution. School counselors should never rely on a student's denial of suicide intent. Students who are bent on self-harm will escape our scrutiny by telling us what they think we want to hear. If something prompted 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?
ASCA's position statement The School Counselor and Suicide Risk Assessment indicates our primary responsibility is to notify parents/guardians. Educators and school counselors stand in loco parentis, meaning we stand in the parent's place when the student is at school. 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. As ASCA's position statement indicates, students may say things to avoid scrutiny; therefore, parent contact is imperative. 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.

VIRTUAL: 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?
A school counselor's role in working with students at-risk for suicide is complex. You must navigate your legal and ethical responsibilities toward students, parents/guardians and the school district. You have a duty of care and legal obligation to make every attempt to prevent a student's suicide and have the responsibility to notify parents/guardians anytime you conduct a suicide risk assessment with a student. 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. Remembe, FERPA grants parents/guardians the right to access anything you write down. Therefore, if you do not directly tell a parent you believe the child is at low risk but indicate so on a suicide risk assessment form, the parent still will access to that information. 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.

Dual Relationships

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?
The ASCA Ethical Standards for School Counselors state: Ensure there is not a conflict of interest in providing referral resources. 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?
Sadly, this isn't uncommon. Your administrator is legally your supervisor and determines your role. However, be careful of going down this road and setting precedence. 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.

Do I need a signed release before meeting with a student virtually?
It is recommended to follow the policies of your school. If students do not sign releases to meet with you in your typical role on site at your school, it may not be necessary to get additional permission. However, it is important to follow the policies established by your school district, particularly in relation to the move to online learning.

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.

Our school provided laptops to our students. Through a monitoring system our school district uses, we are seeing some of the things students are searching. These include issues such as substance use, rape and suicide. What is our legal obligation when we see these searches?
An internet search doesn't necessarily indicate serious and foreseeable harm to self or others but could. If the monitoring system is in place, always alert parents if a suicide topic is being researched, and provide community resources and ask the parents to seek outside resources to address what is going on with their child. The district needs to determine a way to respond to serious concerns without burdening the school counselors and also determine which topics will trigger a call to parents. Perhaps an administrator could be responsible for this since the monitoring system is already in place anyway. The administrator and school counselor could collaborate about issues requiring outreach from the school to the student and families. The school district may want to see if the software has an alert that will skip the school and go right to the parent/family. Districts may also consider working with parents and families about how to appropriately monitor their child's online activity.

Technology

VIRTUAL: My district wants me to use one type of online conferencing technology, but I'd rather use a different kind. Is this okay?
It is far safer to use what the district suggests. The district has likely vetted the program to make sure it will interface and integrate with the district's system and security approach. For example, one large urban district requires Microsoft Teams because it is part of the larger group of software applications fully adopted and integrated with the district's systems and security. This protects the educator against false accusations and the student against exploitation because the district can review activity occurring in Teams. It is not a matter of which program or app is superior but rather which online program offers the best layer of protection for all as determined by the district.

VIRTUAL: What are some considerations when using a specific platform for virtual/distance school counseling?

Read the privacy policies of the platforms your school system uses.

Know limitations of the district's platform.

Advocate for a change if the platform is thought to be detrimental.

Don't select or use a platform without district approval.

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.
If you want to block a phone number, you can follow these steps:

Enter *67.

Enter the number you wish to call (including area code).

Tap Call. The words "Private," "Anonymous" or some other indicator will appear on the recipient's phone instead of your mobile number.

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.
Appropriate Duties

I am being asked to make home visits for those students who have not responded to their virtual classes. Am I unreasonable to want out of this dictate?
Dictates that would be considered unheard of in the everyday life of a brick and mortar school counselor's day are suddenly appearing in virtual schools. You are right to feel uncomfortable. Use all your powers of persuasion to get out of this. If you're in a state with a shelter-in-place order, these visits might even be illegal. Students have to be reached without putting educators at risk. Robo calls, news reports, public service announcements, etc., can be used to emphasize to the school community the importance of responding to the school. If a school counselor does end up making house calls, he or she should never go alone. Try to pair up with the school resource officer, use COVID-19 safety precautions, have a set plan as to what should be accomplished and take any resources, such as a laptop, you may need. Again, home visits should not be on the school counselor's shoulders.

What do I do if I'm asked to help with health screening?
In the current, unprecedented environment, school counselors may be tasked with participating in functions that are not typically part of their role - whether instruction is occurring virtually or in person. Advocating for appropriate responsibilities is important, but flexibility will be required. School counselors may be assigned to participate in health and safety efforts (taking temperatures, enforcing mask wearing, etc.). Given that all staff likely will be engaged in these or similar functions, this should be considered a fair-share responsibility.

What if I'm asked to teach a class to lower classroom ratios?
Classroom instruction is part of the ASCA National Model; however, teaching a course is not. Reference your school or district's job description for school counselors to determine if this is addressed. Also, it's important to know if a teaching certification is required for serving in this role. You should discuss with your administration about the student needs that may not be met or addressed as a result of teaching. Share data about the impact of your school counseling work. Ask what would be the contingency plan if you needed to deal with a school emergency. That said, at the end of the day, if a district wants to require this and there is no policy, you must comply.

VIRTUAL: How can I provide a school counseling program for all students in a virtual or hybrid setting that addresses students' academic, career and social/emotional development?
You have an ethical responsibility to deliver a school counseling program that addresses the students' academic, career and social/emotional needs. Delivering school counseling services through a virtual or hybrid setting should include all three of these domains and should not be limited by meeting platforms the district has put in place. A wide variety of resources are available on the ASCA website, www.schoolcounselor.org, for school counselors to access so they can deliver an evidence-based, effective program online.
Similar to the brick and mortar setting, school counselors should continue to rely on the data obtained from needs assessments, program evaluations, and outcome data to inform them about student needs and the effectiveness of interventions. Data obtained from these assessments can be analyzed and reported to school administrators, faculty and parents in ways that highlight the current program's accomplishments and limitations. Findings from these reports will provide the evidence needed to determine whether all three school counseling domains are addressed in the virtual or hybrid setting.

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Legal & Ethical FAQ | American School Counselor Association (ASCA)

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Legal and Ethical FAQs 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.

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Step 2: Exploration Option 2 - ASCD (formerly Association for Supervision and Curriculum Development

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Step 2: Exploration Option 2 - ASCD (formerly Association for Supervision and Curriculum Development

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In my review of the article, Bullying and Harassment on the ASCD website, I found that a legal and ethical issue that counselors and fellow educators face is violence in school. It is up to educators and counselors to investigate claims of violence, follow district and state guidelines, and determine whether the actual claim constitutes as a true offense. There are many types of violence from bullying to self-harm and each act of violence has its own set of guidelines and protocols to follow. Educators, counselors, and principals need to make sure that they follow up on claims to ensure that they do not face legal action.

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by Kathleen Conn

Although many educators may feel hard-pressed to define a "threat," most are confident that they would recognize one when it occurs. Problems often arise, however, when school personnel try to take legal action against students whom they perceive as making threats to harm others. A student who uses what appears to be threatening language simply may be exercising a First Amendment right to express an opinion, a right protected from governmental interference or suppression, even in the school setting. Under the United States legal system, what a reasonable educator might categorize as a threat may or not be a "true threat" under the law.

At a Washington, D.C., political rally in August 1966, an 18-year-old unhappy with his 1-A draft classification declared, "If they ever make me carry a rifle, the first man I want to get in my sights is LBJ," referring to then-President Lyndon B. Johnson. The young man, Robert Watts, was charged with and convicted of a felony under a federal statute that makes it a crime to "willfully and knowingly" threaten the president. The U.S. Supreme Court reversed his conviction three years later in what became the seminal Court decision distinguishing between threats and "true threats." Recognizing a "profound national commitment to . . . debate on public issues," including speech that may be "vehement, caustic, and unpleasantly sharp," the Court found that the youth's statement was merely "political hyperbole." Watts, the Court decided, had not uttered a true threat. Unfortunately, the Supreme Court declined to help educators by explaining what would make ordinary threatening-sounding words into a true threat.

Deciding What Constitutes a True Threat

Fast-forward to February 1993. Sarah Lovell, a 15-year-old California high school student, has been trying all day to get her class schedule changed. She has been shuffled back and forth between the assistant principal's and guidance offices. Finally, she thinks her schedule is settled, but when Linda Suokko, her guidance counselor, enters the changes into the master schedule, Suokko sees that the assistant principal has approved Sarah for courses that are already overloaded. Suokko tells the girl that she may not be able to make the changes. Sarah loses her patience and, according to Suokko, says, "If you don't give me this schedule change, I'm going to shoot you." Although Sarah apologizes immediately and insists that she did not say those exact words, her principal suspends her and files a strongly worded student referral form as part of her permanent record.

When Sarah's parents brought suit to have the referral form removed from her file, the Court of Appeals for the Ninth Circuit upheld the principal's actions, ruling that Sarah's communication to Suokko was a "true threat." Alleged threats, according to the Ninth Circuit, are judged by an objective standard that focuses on the speaker. The test is whether a reasonable person uttering a communication would foresee that the listener would interpret the statement as a serious expression of intent to harm. True threats, the Ninth Circuit emphasized, are not among the categories of expression protected by the First Amendment. Sarah's principal, therefore, was justified in suspending Sarah and filing the student referral form. In addition to the "objective speaker" test, the Ninth Circuit also requires that statements appearing to be threats "should be considered in light of their entire factual context." If the words uttered and the surrounding circumstances are so "unequivocal, unconditional, immediate, and specific" that they convey a seriousness of purpose and the prospect of being carried out in the near future, then the statement is a true threat.

Courts in the Ninth Circuit, then, like Sarah Lovell's court, will rule that a putative threatening statement is a true threat if the speaker, as a reasonable person, should have foreseen that the listener would interpret the statement uttered as a threat of bodily harm or assault. The burden is on the speaker to reasonably foresee an unpleasant reaction to what was said, considering all the circumstances. Sarah, as a reasonable person, should have known her statement would upset Suokko. The Ninth Circuit's definition of true threat says nothing about how reasonable the listener must be. Suokko could have completely overreacted to Sarah's words; in fact, she may even have misheard the student. Practically speaking, the Ninth Circuit requires speakers to know in advance their listeners' reactions. Moreover, using the Ninth Circuit's reasonable speaker standard, one wonders whether a frustrated teenager in Sarah's circumstances could ever be considered reasonable.

If Sarah Lovell had expressed her frustration in another state-for example, in Virginia or Maryland, both of which are bound by the standards adopted by the Fourth Circuit Court of Appeals-the standard that the court applied would have been different. Courts in the Fourth Circuit judge whether a communication is a true threat solely by considering the communication's effect on the recipient. Whether or not the speaker had any idea, or even considered, how the listener would react to her allegedly threatening communication is unimportant in complaints litigated in Virginia or Maryland.

This point may not have made a difference in Sarah's case, because Suokko, the listener, also perceived Sarah's words as a threat. Nevertheless, the judicial standards in many states are different and have different implications. Focusing solely on the listener's reaction may negate totally consideration of the speaker's intent in the communication. Focusing solely on what a speaker should have known in advance about the listener's reaction presumes that the speaker was capable of rational thought when she may have been completely consumed by anger or frustration. Deciding whether a communication is a true threat that is actionable under the law, therefore, depends on the analysis adopted by the relevant jurisdiction.

Threats Delivered in Different Forms

In addition to speaker and listener tests, other jurisdictions have adopted hybrid tests or burdened traditional tests with specific requirements (e.g., that the threat be directly communicated to the intended victim). Technology that facilitates communication at a distance complicates the analysis. For example, either party to a telephone conversation may misperceive communications, because the speaker and listener can only hear each other but not distinguish visual cues. Similarly, nonverbal modes of communication, like works of art, confound traditional true threat analyses. Poetry may do the same.

E-Mail Threats

Internet communication is even more problematic. In the Sixth District in Michigan, for example, true threat analysis requires that the speaker have the intent to intimidate the recipient of the communication and that the alleged threat be communicated directly to the intended victim in some way. The Sixth Circuit applied this analysis to a series of Internet communications sent by a University of Michigan student to a chat room friend in Canada. In his messages, the student, who used the name "Jake Baker," expressed his intent to rape and sodomize young girls and women. Baker attracted the Canadian's attention through a series of sexually violent stories he had posted to an interactive Usenet bulletin board, in which he described the rape, mutilation, and murder of women and young girls.

From November 1994 until January 1995, Baker and his new online friend, known only as Arthur Gonda, exchanged e-mail messages discussing sexual violence that they hoped to inflict on women. On January 9, 1995, Baker publicly disseminated via the bulletin board a story in which he specifically identified by name a female fellow undergraduate at the University of Michigan, and described in horrific graphic detail how he would torture, rape, and murder her. An alarmed citizen who encountered Baker's posting notified University of Michigan authorities. When questioned by university personnel, the young woman appeared so emotionally traumatized that the university recommended psychological counseling. (All official records refer to her simply as "Jane Doe.") The Federal Bureau of Investigation (FBI) subsequently filed a complaint against Baker, whose real name was actually Abraham Jacob Alkabaz, and a grand jury indicted him for violation of 18 U.S.C. § 875, a federal statute criminalizing interstate communications containing threats to kidnap or injure another person.

The district court in Michigan dismissed the indictment, holding that the communications were not true threats. The prosecution appealed to the Sixth Circuit Court of Appeals. A panel of three judges heard the appeal, and agreed with the district court, ruling two-to-one that Baker's communications were not true threats. In the published decision, Boyce F. Martin, Jr., chief judge, engaged in an extended discussion of the nature of threats, stating, "At their core, threats are tools that are employed when one wishes to have some effect, or achieve some goal, through intimidation." Baker's communications, Martin wrote, were not intended to intimidate; they were never even communicated directly to his classmate. Therefore, they were not true threats. Baker and his Canadian friend, Martin continued, were simply attempting "to foster a friendship based on shared sexual fantasies." Martin's colleague on the bench, Judge Robert Krupansky, vigorously dissented, defining a threat in a more familiar way, as a "simple, credible declaration of an intent to cause injury to some person." However, "Jake Baker" went free. The court decision remains as only one of many adding to the confusion as to what constitutes a true threat under the law.

Would K-12 students ever engage in the kind of online communications published by Jake Baker? Public school districts that provide e-mail privileges to students and school personnel undoubtedly employ acceptable-use policies to put them on notice of what constitutes appropriate e-mail communication. When students and staff are aware of their diminished expectations of privacy in e-mail communications, most self-monitor their online speech. However, many students erroneously believe that the anonymity of the Internet protects them. In 2000, the Boston public school system ended free Hotmail and Yahoo e-mail accounts for students after two boys at the Boston Arts Academy had sent threatening e-mails to a female classmate who refused to date them. The district subsequently installed e-mail accounts that can be immediately traced back to the sender. That same year, a Florida teenager was sentenced to prison after he had sent an e-mail message to a Columbine High School sophomore, threatening to "finish Columbine."

Threatening Songs

As the Florida case demonstrates, technology-assisted communication can certainly count as a true threat. But can "entertainment" be a threat? Can a student-created rap song be a true threat? Does the song have to be recognizable as a song?

An Arkansas junior high school student intended to write a violent rap song in the style of Eminem and other controversial rappers after his girlfriend broke up with him. The student, however, seemed to lack musical talent, and his song had no discernible beat or rhythm. What his writings did contain, however, were violent rantings about how he wanted to molest, rape, and murder his former girlfriend. He never delivered the purported lyrics but instead left them on his bedroom dresser. A classmate discovered them weeks later and read them. Some time after this, the girlfriend found out about the "song." She arranged with the friend who had read the papers to steal them for her, and she read them in gym class. A student who observed her reading them noticed her very apparent distress and reported the threatening letter to the school security officer.

The principal subsequently suspended the would-be rapper for the remainder of his 8th grade year. The student's mother brought a lawsuit against the school district, suing for his reinstatement. The Arkansas court, acknowledging that courts in the Eighth Circuit where the state is located use a reasonable listener standard to analyze true threats, declined to use the traditional test. Instead, the court decided to apply the reasonable speaker test used in Sarah Lovell's case. In reality, however, they applied an amalgam of speaker and listener standards to decide that the feeble rap song was a true threat. The court also explicitly noted that in the wake of Jonesboro and Columbine, any reasonable school official would have taken action based on the content of the young man's papers.

This rap song case is especially interesting because the Court of Appeals, in a first sitting, decided that the song was protected speech. Courts of Appeals usually sit as a body of three judges to hear a case. After the decision of the three-judge panel in this case, the entire case was reheard en banc (i.e., by all the judges of the court sitting together). The full court came to its final decision, that the 8th grader's rap song was a true threat, by a narrow margin, and the decision contains four sharply divided dissenting opinions.

Another Arkansas court dealing with an allegedly threatening rap song also ruled that the song in question was a true threat. In this case, the rapper was a 15-year-old student who had become angry when his female classmate and former friend snubbed him. He wrote, "I'll murder you before you can think twice, cut you up and use you for decoration to look nice." The writer had a record of juvenile arrests, and the fellow student whom the rapper threatened knew of this record and believed that he would carry out the threats. Although the rapper argued to the court that he was exercising his First Amendment right to free speech when he wrote the song, the court ruled that, as a true threat, the words fell outside the protection of the First Amendment.

Poetry and Art as Threats

Two other cases from California illustrate the difficulty educators may have in recognizing a true threat when the alleged threat is not delivered in a spoken, face-to-face context. Both cases were brought to court as violations of the same California statute criminalizing true threats, a statute containing very specific and unambiguous language. In one, a male high school student nicknamed Julius, new to the school, gave a handwritten note containing "dark poetry," which warned that he could be "the next kid to bring guns to kill students at school," to at least two different female classmates from his honors English class. In the other case, another male high school student, Ryan D., turned in for credit for his art class a realistic painting depicting the execution by gunshot of a police officer who had recently "busted" him for marijuana possession.

The California statute criminalizing true threats, Penal Code § 422, requires that the prosecution establish that the accused willfully threatened to commit a crime that would result in death or great bodily injury to another person. Under the statute, the prosecution does not have to show that the accused threat-maker actually had the intent to carry out the threat but simply that the threat was made with the specific intent it be taken as a threat. In addition, the California statute tracks the language of several Supreme Court decisions and requires that the threat, either standing alone or considering the surrounding circumstances, be so "unequivocal, unconditional, immediate, and specific" that it conveys to the threatened person a gravity of purpose and immediate prospect of its being carried out. Finally, the threat must have reasonably caused the threatened person to be in sustained fear of harm.

Applying the same statute to both the would-be poet and the aspiring artist resulted in two different outcomes: the poet was convicted of making a true threat, and the artist was let off. Why did these two cases come out differently?

The courts in both cases looked at not only the actual threats-the words of the poem or the painting itself-but also the circumstances surrounding each. In Julius's case, he was the "new kid" in school; he had been thrown out of two other high schools in the district for offenses other than threats: urinating on the wall and plagiarism. Evidence showed that he and his father were living with his uncle, who owned a stash of rifles and guns that Julius had discovered. Julius did not really know the girls to whom he showed his poems, and his class was not studying or discussing poetry at the time he divulged his works. Although Julius asserted that he was writing the poems as a fictional character, the court took into consideration his admitted feelings that the district was "out to get him," and it ruled that his poems had been intended as a threat to get back at the district by terrorizing innocent students.

Could Julius simply have been a lonely student, reaching out to his classmates for acceptance by offering them his poems? One of his poems had written at the top of the page, "These poems describe me and my feelings. Tell me if they describe you and your feelings." The dissenting judge, at least, thought so and noted that Julius's poem said he could be the next to bring guns to school, not that he would. The majority found the distinction not significant, focusing instead on the sustained fear that Julius's poems inspired in his female classmates.

In Ryan D.'s case, the court also examined the circumstances surrounding his painting. The officer was readily identifiable as Ryan's arresting officer in his marijuana conviction-her badge number was clearly depicted. Although Ryan admitted that he was angry at the police officer for arresting him and had painted the graphic shooting scene to show his anger, knowing the officer would see the painting, the court found it relevant that Ryan had handed in the painting for a class grade. Despite the testimony of the arresting officer that she considered the painting to be a threat, the court decided that Ryan's submission of the painting for class credit resolved the "ambiguous" intent of the expression; the painting was not a true threat.

How would another set of judges rule on the same facts? Did Julius "look like" a terrorist, and did Ryan look like a clean-cut kid? Are words more forceful than painted images? These two judicial rulings, from the same California jurisdiction and based on the same California statute, centered on similar imagery of bodily harm and death, arrive at opposite conclusions. They now serve as either controlling or persuasive authority for the next cases involving threatening expression, and lawyers for either side can argue opposite outcomes justified by precedent.

No Threat if Classroom Assignment

In Ryan D.'s case, the court made much of the fact that Ryan had turned in his graphic painting as a class assignment for an art grade. Does the fact that a student's allegedly threatening communication comes in the context of an actual school assignment mitigate the force of a threat? An 8th grade student in a creative writing class was found delinquent after he wrote a composition about concealing a machete and chopping off his English teacher's head. Although the student, Douglas D., specifically named the teacher in his writing and wrote the assignment after being disciplined and sent out of the classroom to a seat in the hallway, the Supreme Court of Wisconsin reversed his delinquency adjudication, ruling that his composition did not constitute a true threat. The court recognized a need for "more creative license" in a creative writing class than in, say, a math class. For instance, Douglas wrote his story in the third person; it also attempted at jest, the court said, when Douglas penned that the teacher's name, Mrs. C., stood for Mrs. Crab. Besides, the court said, a story about killing with a machete was unrealistic and not to be taken seriously.

Was Douglas really threatening Mrs. C.? Mrs. C. was a first-year teacher. She testified that she felt panicked by Douglas's composition. She had had discipline problems with Douglas before this incident. Douglas was not a model student; he had a pattern of delinquency and skipping school. The record showed that he was "a troubled young man." Yet the court decided that Douglas was not making a true threat against Mrs. C. The school, the court said, still had the right to discipline Douglas for violation of the student rules of conduct, but the First Amendment protected Douglas's right to speak freely and graphically in his composition.

Bomb Threats

Bomb threats, even if groundless or pranks, seriously disrupt the ongoing operations of schools. Besides instilling fear and forcing cancellation of classes and building closures, such threats also cost school districts considerable funds to install telephone systems to trace calls and video cameras to monitor nonclassroom areas of buildings, to investigate and prosecute perpetrators, and to hire extra personnel to observe student activities effectively. Many school districts specifically mention making terroristic threats as an actionable offense in their student codes of conduct. All states have adopted laws making it a crime to communicate a bomb threat to a school, even if the perpetrator knows the threat is untrue, and school districts have begun to cooperate vigorously with law enforcement authorities in prosecuting guilty students. However, schools need to exercise care in alerting authorities and charging students with making terroristic threats. Bomb threats are serious business and carry serious consequences under the law; these consequences need to be applied only to prosecute students who truly deserve prosecution.

For example, Jason W. did not need to be prosecuted. Jason was a middle school student at Clear Spring Middle School in Washington County, Maryland, on December 13, 2001. At 9:15 a.m., a teacher found him scribbling with a pencil on the wall near a school stairway. It appeared he had written "There is a bomb," but when the teacher spied him, he began erasing the word "bomb." The teacher took Jason to the school principal.

The principal obviously did not take Jason's threat seriously. He did not evacuate the school building; he did not notify the fire marshal or call in bomb detection or disposal agencies. The normal operations of the school were not disrupted. In fact, no one even took a photograph of Jason's writing, which, after his furious erasing, ended in an illegible smudge.

However, the school contacted law enforcement authorities, who brought charges against Jason. Communicating a false bomb threat in Maryland is a felony. Even if Jason had been convicted of "disturbing . . . the orderly conduct of schools," a misdemeanor, he could have received a six-month jail sentence and a $3,500 fine. As it was, the court adjudicated him as a delinquent.

Jason's parents appealed. The Court of Special Appeals found that Jason's wall writing had not disturbed the normal operations of the school. The court said that the lower court's reading of the statute raised the "specter of a young child being hauled into juvenile court and found delinquent for throwing a temper tantrum in school . . . . Disruptions of one kind or another no doubt occur every day in the schools," the court continued, and "there is a level of disturbance that is simply part of the school activity." Jason was off the hook, and the school district was publicly admonished.

Threats to Harm Self

Schools are supposed to be places where children and teenagers can learn without fearing for their safety. When students make threatening statements directed at members of the school community, school officials are usually quick to react. But what about a student's threat to harm himself? Does the school have a duty to protect students from themselves? Do guidance counselors, teachers, or other school personnel have a legal duty to warn parents that they suspect a student intends self-harm or suicide?

More than 25 years ago, the California Supreme Court imposed a much-debated "duty to warn" on therapists who learn that their patients intend harm to another. The litigation arose after a University of California at Berkeley student, Prosenjit Poddar, told his university hospital psychotherapist that he intended to kill his former girlfriend, Tatiana Tarasoff. Poddar actually carried out his threat. Tarasoff's parents sued the regents of the University of California, the hospital's psychotherapists, and the university police for failing to protect their daughter. The court ruled that once a therapist determines that a serious threat of violence to another exists, he or she has a duty to "exercise reasonable care to protect the foreseeable victim." This duty to warn foreseeable victims of harm, now called the " Tarasoff duty," has been adopted in several states and extended to apply not only to therapists but also to many other professionals who engage in confidential relationships with clients.

Should the law recognize a Tarasoff-kind of duty for educators who receive student confidences threatening suicide? Where a duty exists, the potential for liability also exists. Should educators and their school districts be held liable for failing to prevent student suicides whose warning signs were, or should have been, apparent? Many surviving parents, believing they should, have pursued remedies through the courts.

Suicide in Schools

More people die from suicide than from homicides, according to the Centers for Disease Control (2000). Many of these suicide victims are young people. Between 1981 and 1998, the Office of Juvenile Justice and Delinquency Prevention reports, 20,775 juveniles ages 7-17 committed suicide in the United States. Of these juvenile suicides, 62 percent were committed with a firearm. The states with the highest juvenile suicide rates were Alaska, Montana, Idaho, Wyoming, and New Mexico, in that order (Snyder & Swahn, 2004).

Even more alarming than the overall numbers of student suicides is the increase in the suicide rate among middle school students, a rate that has increased more than 100 percent over the last decade. Among 13- and 14-year-olds, as many youngsters committed suicide as were murdered. While suicides among white males still predominate, rates for minority students are increasing. Suicide rates for black male adolescents as a group increased 240 percent between 1981 and 1998 (Snyder & Swahn, 2004). Black males ages 15-24 showed the greatest increase in suicide completion rates in the 1990s compared with other minority groups. In addition, gay and lesbian adolescents were 200-300 percent more likely to attempt suicide than other young people, and they may have accounted for up to 30 percent of completed youth suicides annually (Poland & Lieberman, 2003).

In December 2001, Mark Anderson and his colleagues from the Division of Violence Prevention of the Centers for Disease Control reported the results of a five-year study of violent deaths that had occurred either on the campus of a public school, on the way to or from regular school sessions, or during official school-sponsored events. They found that 220 confirmed school-associated incidents involving violent death had occurred between July 1, 1994, and June 30, 1999, with a total of 253 victims who died in those incidents. While 18 of the 220 total incidents were the widely reported school shootings that involved multiple victims, 202 of the incidents resulted in single deaths.

Analyzing the details of the 220 total incidents, 172 were homicides, 30 were suicides, and 11 were homicide-suicides. The remaining seven death-related incidents were the result of legal interventions into school situations or accidental firearms discharges. Over half of all these incidents were preceded by warning signals such as notes, journal entries, or threats; in the cases of suicides, significantly more than half were signaled in advance. Homicide perpetrators were also likely to have expressed suicidal behaviors, thoughts, or actual suicide attempts before the incidents (Anderson, et al., 2001).

Legal Implications for Educators

Imposing liability on schools and school personnel for failing to warn of a student's threats to commit suicide would require a showing of negligence on the part of school personnel. Negligence is a tort that requires proof of four elements that the plaintiff must show: (1) that the defendant had a duty of care, (2) that the defendant breached that duty, (3) that the breach of duty caused the damage alleged, and (4) that quantifiable damage actually occurred. The sticking point in the law is establishing that school personnel had a duty of care to prevent harm to the student.

Although no educator would deny a moral responsibility to care for and protect students in the school setting, a legal duty of care is different from a moral or professional duty. Courts have held that the requisite duty of care necessary in a suit for negligence against state actors occurs in only two different situations: (1) where individuals are under the control, or in the custody, of the state, as in an orphanage or in a jail; or (2) where the state itself created the danger. Courts have been reluctant to decide that either situation applies in the public school setting. Although school attendance is compulsory under state laws, schools are not jails or orphanages, and school employees are not wholly responsible for the care of students, nor are they in total control of students' actions or well-being.

State legislatures could, of course, make reporting of suspected student suicides by school personnel mandatory, as they have done for reporting suspected child abuse. However, to date few states have adopted specific statutory language dealing with school employees' obligations with respect to suspected student suicides or confidential communications from students. That said, the American Counseling Association does acknowledge that school counselors have an ethical obligation to report to parents, school administrators, or other appropriate authorities their suspicions that a student intends to harm herself or someone else. However, an association study in 1999 revealed that only 38 percent of school counselors believed that they could identify a student at-risk for suicide (Milson, 2002).

The situation is even more complicated when a student confronted with warning signs of her imminent suicide denies her intentions. Nicole Eisel, a 13-year-old Sligo Middle School student from Montgomery County, Maryland, confided to several friends her intent to commit suicide in a Satanic murder-suicide pact. When friends alerted school counselors, two counselors questioned Nicole, who vigorously denied making the comments. Neither counselor notified school authorities or the girl's parents. After Nicole committed suicide, her father brought a lawsuit against the counselors and the school district, alleging negligence as a cause of his daughter's death. Eisel argued that, if school authorities had not neglected their duty to warn him of Nicole's intentions, he could have prevented her suicide. The court granted summary judgment to the school district, stating that "public policy" prohibited recognizing that either the counselors or school district had a duty to intervene.

When Nicole's father appealed the decision, the Maryland Court of Appeals focused not on duty but on the foreseeability of the student's committing suicide. The court quoted from the Maryland State Department of Education's 1987 Youth Suicide Prevention School initiative for Maryland public schools, in place at Nicole's school at the time of her death, but declined to find that the law creating the program imposed liability on school counselors for failing to intervene in student suicides. Instead, the court pointed to the law as evidence of "a community sense that there should be intervention" when a student's emotional states indicates suicidal ideation. Even if the possibility of Nicole's committing suicide was remote, the court said, the possible harm was so "total and irreversible" that school counselors had a duty to "use reasonable means to attempt to prevent a suicide" when they had notice of a student's suicidal intent.

The Court of Appeals sent the case back to the lower court to determine if the counselors had sufficient notice of intent in order to hold them liable for failing to notify Nicole's parents. In an unreported decision, the jury hearing the evidence decided they did not. (For a discussion of unreported decisions, please see the end of Chapter 1.) The court then relieved the counselors and the school district of liability for Nicole's suicide. However, the Eisel decision has been interpreted in many jurisdictions as imposing on school counselors the duty to use reasonable means to prevent student suicides, including warning parents.

Parents of suicide victims have also attempted to sue school districts based on liability under Section 1983 of the federal Civil Rights Act of 1871, alleging that school officials acting under color of state law violated their children's civil rights. Shawn Wyke was a 13-year-old in 1989 when he finally accomplished at home the suicide he had twice before attempted in school. Shawn's mother sued the Polk County School Board and school officials at McLaughlin Junior High School where Shawn had been a student, alleging both negligence and violation of Section 1983. Mrs. Wyke argued that school personnel were made aware of Shawn's first suicide attempt after he tried to hang himself in the school bathroom, but district officials had not notified her or Shawn's grandmother, had not obtained counseling for Shawn, and had not taken him into protective custody. In 1995, in an unreported decision, a U.S. District Court jury dismissed Wyke's Section 1983 claim, stating that the district had no constitutional duty to protect Shawn Wyke from himself, but awarded her $165,000 damages on her state law claim that the school board negligently failed to supervise her son (Bjorklun, 1996). Wyke then appealed the court's dismissal of her Section 1983 federal claim.

In 1997, the U.S. Court of Appeals for the Eleventh Circuit ruled that Mrs. Wyke's Section 1983 claim failed. Failure to train school personnel in reporting and handling recurring situations where students are endangered was not enough to sustain a federal claim of violation of her son's constitutional rights, the court stated. The school, standing in the place of a student's parents, has a duty to supervise students. When a student attempts suicide at school, and the school knows of the attempt, the school can be found negligent in failing to notify a parent or guardian. However, compulsory school attendance laws do not give rise to a school district's constitutional duty to affirmatively protect students. In other words, under a Section 1983 federal claim analysis, school districts are not liable for student suicides.

What about a student who cannot deny his suicidal thoughts because he wrote them down? And what about school liability if the student's thoughts were submitted to a teacher in English class as an ongoing journaling assignment? Parents who seek to hold school districts liable for their children's suicides have a heavy burden of proof. In the case of Jeff Brooks, a high school student who chronicled his suicidal ideation for the four months of a daily journal-writing assignment in English class, the Idaho Supreme Court ruled that a jury could consider whether the district had violated a state law, as in Wyke's case, and been negligent in not notifying Jeff's parents of his troubled writings. However, the dissenting judge strongly stated that expecting teachers untrained in medicine to recognize and diagnosis a potentially suicidal student would "require a duty beyond reason."

Liability for Threats Resulting in Violence

When students carry out their threats in schools, and other students get hurt, are school districts or school personnel liable for the injuries to other students? Suppose the school district had warning signs of the dangers, teachers heard the threats or saw students acting out in unmistakably threatening ways?

Following the Columbine High School tragedy on April 20, 1999, many parents of injured and slain students sought to hold the Jefferson County School District, school officials, and law enforcement officials who had responded to the tragedy liable for injuries to their children. In the media aftermath of the Columbine shootings, the parents had discovered many reasons to think that school and law enforcement officials should have anticipated trouble at the hands of Dylan Klebold and Eric Harris. In January 1998, Klebold and Harris were apprehended by sheriff's deputies for stealing tools from a van, adjudicated delinquent, and placed in a county juvenile offender diversion program. Harris again came to the attention of law enforcement officials for repeatedly threatening the life of Brooks Brown, a fellow Columbine student. Harris maintained a Web site in which he spoke of issuing death threats, using pipe bombs to kill numerous people, and making other bombs. Sometime before the actual shootings, Harris added an "information panel" to his Web site listing as his "Hobbies" "Preparing for the big April 20! You'll be sorry that day."

The assistant principal in charge of discipline allegedly knew that Klebold and Harris had talked about blowing up the school. He had suspended them for hacking into school computers and stealing locker combinations. Klebold's creative writing teacher had alerted his guidance counselor to a particularly vicious story he wrote in her class. In his video production class, Harris turned in a videotape filmed inside the school depicting him and Klebold enacting revenge shootings of other Columbine students. Other videos showed the two shooters carrying guns in the school hallways and recorded their conversations about owning guns and making bombs. Their psychology teacher had heard them speak of their hatred, anger, and intent to kill other Columbine students in many classes.

The parents of Richard Castaldo, a student injured in the Columbine shootings, presented this evidence of the pre-April 20 warnings in a lawsuit alleging that both law enforcement and school officials had breached a duty of care to their son and violated his constitutional rights to be free from bodily harm by not taking steps to prevent the Columbine tragedy. The federal district court in Colorado dismissed their claims, stating that even if they were negligent, both law enforcement and school officials had such high social utility that to impose a duty on them to act affirmatively to prevent violent acts would undermine their usefulness to society as a whole. Affirming the general rule that compulsory attendance laws do not impose on schools an affirmative constitutional duty to protect students from harms imposed by others at school, the court rejected Castaldo's Section 1983 claim.

Months after the shootings, additional evidence came to light in the form of a journal written by Eric Harris and reports by the Brown family, and several other parents of injured students sued as the Castaldos had; all suits were dismissed from court. The Castaldos moved for reconsideration, but the court denied their request. One injured student attempted to sue the gun shop dealer who had sold guns to Klebold and Harris; his suit, too, was dismissed for the same reasons already stated.

Although the Colorado courts' assessment of the social utility of law enforcement and school officials is reassuring, the parents of slain and injured students in the Columbine community deserve some explanation of how and why professionals trained to deal with public school students ignored the collective signs of impending violence. As recently as October 2003, more information about forewarnings of the Columbine events was released by the current Jefferson County sheriff, Ted Mink, indicating that a caller had tipped authorities off to a threatening Web site created by Eric Harris as early as 1997 (Slevin, 2003). Threats and warning signs of violence have been present in other school shootings besides those at Columbine.

Courts may deny a school district's legal responsibility to act on threats and warnings of violence, even where the warning signs seem unmistakably clear in hindsight. However, school officials and school districts function at public expense. If courts were to impose liability on schools when students injure other students or teachers, even if warning signs were present and neglected, monetary damage awards might seriously deplete the public treasury, with benefits distributed to a relatively few individuals at the expense of the greater community. The same public policy argument applies in lawsuits against state-supported first responders in school shooting tragedies. Several states, including Idaho, where Jeffrey Brooks committed suicide, explicitly provide governmental entities immunity from lawsuits alleging liability for failure to adopt discretionary policies like suicide prevention programs. However, even Idaho has a statute requiring school boards to protect the health of its students. Florida, as the Wyke case demonstrates, has a law requiring school districts to immediately notify parents of any emergency involving students that occurs during the school day. The Eisel decision noted the Maryland statute mandating school districts' adoption of suicide prevention programs. Ohio has a similar suicide prevention initiative. One difficulty in assessing the prospects of school district liability for harms to students is the wide range of language used in state statutes dealing with student safety. Every statute seems to use different vocabulary terms, and courts hearing the lawsuits brought by the families of students injured or killed in schools are faced with interpreting the different terms on their own. Seemingly conflicting rulings may be the result. In addition, the law is distinctly different from morality and moral responsibility. The courts may legally set aside school districts' responsibility, but educators' moral responsibility is not so easily set aside.

The Take-Home Message on Threats

The legal standards for deciding what constitutes a true threat are confusing and contradictory. Until the Supreme Court steps in and defines a common standard test for all courts in the land to follow, the confusion and contradictory lower court opinions will persist. Unfortunately, the Supreme Court seems reluctant to undertake the needed clarification, and it has ignored several opportunities to deal with the issue.

What can and should educators do in the meantime? School personnel must take all threats or suspected threats seriously. Investigators have documented that many of the widely publicized recent episodes of school violence, such as those at Jonesboro and Columbine, were preceded by warnings or threats by the student perpetrators. Warning signs of student suicide may be subtle, but they are documented. All school personnel should be trained to recognize them. Warning signs include making verbal statements of a wish to die or an intent to commit suicide, cutting oneself or other intentional superficial self-wounding, experiencing prolonged depression, withdrawing, talking of death, putting affairs in order or giving away favorite possessions, or having a sudden change of mood to a kind of euphoria or extreme calm after a period of prolonged depression or anxiety.

For threats against the school community, the 1999 report of the Federal Bureau of Investigation's Critical Incident Response Group, The School Shooter: A Threat Assessment Perspective, recommends that schools adopt three-tiered threat response policies based on the perceived level of the threats: low level, carrying a minimal risk to the victim; medium level, threats that could possibly be effected but are not realistic; and high level, which pose a serious and imminent danger to others. The Final Report and Findings of the Safe Schools Initiative: Implications for the Prevention of Attacks in the United States (Vossekuil et al., 2002), issued by the U.S. Department of Education and the U.S. Secret Service, contains information about profiling students who make threats and sorting them into six categories. Another publication of the Department of Education and Secret Service, Threat Assessment in Schools: A Guide to Managing Threatening Situations and to Creating Safe School Climates (Fein et al., 2002), contains similar information. Both reports stress that "school shootings are rarely impulsive acts." The shooters told others, not the victims, but the other students did not tell adults.

The guiding principle in dealing with student threats should be that the first and foremost goal and duty of all school personnel is to safeguard the physical welfare of students and colleagues. Any and all threatening communications or materials should be reported to a school official with authority to investigate. The school official who receives such notification must research the reported incident and take appropriate action.

Of course, in an actual or perceived situation of a threatening nature, having policies in place to deal with the issue is always desirable, but the policies must be flexible enough to cover varied and possibly unanticipated circumstances. A useful exercise is to examine the scenarios described in this chapter and to determine whether the district has in place a student code of conduct or a district policy to deal with similar threatening situations. (All district policies should be incorporated in the student code of conduct by reference, and vice versa.) If not, codes and policies need to be put in place as soon as possible.

With appropriate documentation in place, the first step when a threat is made or suspected is to consult the district's student code of conduct to see whether the code itself or a district policy has been violated. If a part of the code or a policy has been violated, the designated consequence should be applied if the consequence is sufficient to deal with the severity of the issue. Any student who presents an immediate danger to school personnel or students should be removed from the school, with the assistance of school safety officers or the police if necessary, without any hesitation over possible legal action that may follow.

If the situation is deemed serious, district legal counsel should be involved as soon as possible. Courts will ultimately decide whether school personnel acted in accordance with the law, but an adverse decision years down the line is better than risking harm because of inaction when faced with the possibility of bodily harm to a member of the school community.

Annotated References and Resources

Constitutional and Statutory References

The federal statute that makes it a crime to willfully and knowingly threaten the President of the United States is 18 U.S.C. § 871 (a).

18 U.S.C. § 875 (c) prohibits interstate communications containing threats to kidnap or injure another person, stating:
Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

Many states also have state laws dealing with threatening communications. For example, California criminalizes making threats. To prove that a defendant uttered a true threat, California Penal Code § 422 requires that the prosecution establish
(1) that the defendant willfully threatened to commit a crime which will result in death or great bodily injury to another person, (2) that the defendant made the threat with the specific intent that the statement be taken as a threat, even if there is no intent of actually carrying it out, (3) that the threat-which may be made verbally, in writing, or by means of an electronic communication device-was on its face and under the circumstances so unequivocal, unconditional, immediate and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, (4) that the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate family's safety, and (5) that the threatened person's fear was reasonable under the circumstances.

Court Decisions

The seminal Supreme Court decision on true threats is Watts v. United States, 394 U.S. 705 (1969).

Student Threats of Harm to Others

Sarah Lovell's case is Lovell v. Poway Unified School District, 90 F.3d 367 (9th Cir. 1996).

In the University of Michigan e-mail case, "Jake Baker" was a pseudonym used by Abraham Jacob Alkabaz. His case is United States v. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995), aff'd United States v. Alkabaz, 104 F.3d 1492 (6th Cir. 1997), rehearing and suggestion for rehearing en banc denied (1997).

The two student rapper cases are Doe v. Pulaski County Special School District, 306 F.3d 616 (8th Cir. 2002) and Jones v. Arkansas, 64 S.W.3d 728 (Ark. 2002).

Julius's real name is George, and his case is In re George T., 102 Cal. App. 4th 1422 (Cal. Ct. App. 2002). Ryan D.'s case is In re Ryan D., 100 Cal. App. 4th 854 (Cal. Ct. App. 2002).

The creative writer is Douglas D., In the Interest of Douglas D., 626 N.W.2d 725 (Wis. 2001).

The student caught writing a bomb threat is Jason W., In re Jason W., 837 A.2d 168 (Md. 2003).

School Districts' Duty to Report Student Threats of Suicide

The Tarasoff duty is derived from Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976).

Several courts have declined to recognize a school district's duty of care in suits for negligence. See, J.O. v. Alton Community Unit School District 11, 909 F.2d 267 (7th Cir. 1990); D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364 (3dCir. 1992).

Lawsuits alleging district liability for student suicides include the following:

Eisel v. Board of Education of Montgomery County, 597 A.2d 447 (Md. 1991), brought by Nicole Eisel's father.

Wyke v. Polk County School Board, 898 F. Supp. 852 (M.D. Fla. 1995), and Wyke v. Polk County School Board, 129 F.3d 560 (11th Cir. 1997), both brought by Shawn Wyke's mother.

Brooks v. Logan, 903 P.2d 73 (Idaho 1995), brought by Jeff Brooks' parents.

Lawsuits against school officials and law enforcement authorities in the wake of the Columbine tragedy include:

Castaldo v. Stone, 192 F. Supp.2d 1124 (D. Colo. 2001), reconsideration denied, 191 F. Supp.2d 1196 (D. Colo. 2002);

Graves v. Stone, 191 F. Supp.2d 1194 (D. Colo. 2002);

Kirklin v. Stone, 191 F. Supp.2d 1198 (D. Colo. 2002);

Ireland v. Jefferson County Sheriff's Department, 193 F. Supp.2d 1201 (D. Colo. 2002).

Journal Articles, Texts, and Commentaries

The National Center for Injury Prevention and Control of the Centers for Disease Control reports that more people in the United States die from suicide than from homicide. In 2000, 1.7 times as many people committed suicides as were killed in homicides. Available at www.cdc.gov/ncipc/factsheets/suifacts.htm (accessed May 2004).

Poland, S., & Lieberman, R. (2003, May). Questions and answers: Suicide intervention in the schools. National Association of School Psychologists Communique 31(7). Available atwww.nasponline.org/publications/cq317suicideqa.html (accessed May 2004).

Snyder, H. N., & Swahn, M. H. (2004, March). Juvenile suicides, 1981-1998. Youth Violence Research Bulletin. Available atwww.ncjj.org/Publication/Juvenile-Suicides-1981-1998.aspx (accessed May 2004).

Department of Health and Human Services, Mental Health (1999). U.S. Department of Health and Human Services, Mental Health: A Report of the Surgeon General. Rockville, MD: Department of Health and Human Services, National Institutes of Health, and National Institutes of Mental Health. The Executive Summary is available athttp://www.surgeongeneral.gov/library/mentalhealth/summary.html (accessed May 2004). Of particular interest is Chapter 3, Depression and Suicide in Children, by Chavez, N., Hyman, S. E., and Arons, B. S. Available atwww.surgeongeneral.gov/library/mentalhealth/chapter3/sec5.html (accessed May 2004).

Anderson, M., et al. (2001, December 5). School-associated violent deaths in the United States, 1994-1999. The Journal of the American Medical Association, 286(21), 2695. Available atwww.cdc.gov/ncipc/abstract.htm (accessed May 2004).

Milson, A. (2002, March). Suicide prevention in schools: Court cases and implications for principals. National Association of Secondary School Principals Bulletin, 86(630). Available atwww.principals.org/news/bltn_suicide0302.cfm (accessed May 2004).

Court decisions involving student suicides are discussed in Bjorklun, E. C. (1996). School liability for student suicide. Education Law Reporter, 106(21).

Slevin, C. (2003, October 30). Columbine pair stirred alarms as early as '97. Philadelphia Inquirer, p. A3. See also, Nussbaum, P. (2004, April 18). Philadelphia Inquirer, p. A1.

O'Toole, M. E., & Critical Incident Response Group. (1999). The school shooter: A threat assessment perspective. Quantico, VA: National Center for the Analysis of Violent Crime. Available atwww.fbi.gov/publications.htm (accessed May 2004).

Vossekuil, B., Fein, R. A., Reddy, M., Borum, R., & Modzeleski, W. (2002). The final report and findings of the safe schools initiative: Implications for the prevention of school attacks in the United States. Washington, DC: U.S. Secret Service and U.S. Department of Education. Available atwww.secretservice.gov/ntac_ssi.shtml (accessed May 2004).

Fein, R., Vossekuil, B., Pollack, W., Borum, R., Modzeleski, W., & Reddy, M. (2002). Threat assessment in schools: A guide to managing threatening situations and to creating safe school climates. Washington, DC: U.S. Secret Service and U.S. Department of Education. Available at www.secretservice.gov/ntac_ssi.shtml (accessed May 2004).

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by Kathleen Conn Although many educators may feel hard-pressed to define a "threat," most are confident that they would recognize one when it occurs. Problems often arise, however, when school personnel try to take legal action against students whom they perceive as making threats to harm others.

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Confidentiality seems to a big legal and ethical issue that school counselors face daily. They are responsible for a multitude of tasks and they must conduct those tasks while insuring that they are maintaining confidentiality.

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School counselors handle a multitude of tasks and are required to maintain confidentiality as outlined by the district and state guidelines. If counselors do not maintain proper confidentiality, there could be legal and or ethical repercussions. There are occasions that student confidentiality can be limited. You may share students’ confidential information if they threaten to impose danger to themselves or others. You also may need to share confidential information with certain professionals that work to support the student.  (Trice-Black, 2013)

There are many scenarios that school counselors are responsible for that require confidentiality. They are responsible for the 504 and special education process. Therefore, they will be in possession of confidential paperwork. Counselors also may handle Child Protective Service concerns regarding students. They must remain confidentiality to not only the child and family members, but also to fellow colleagues. Counselors will also face situations where parents and/or fellow professionals want to obtain confidential information. School counselors must understand their legal and ethical boundaries regarding student confidentiality. (https://www.schoolcounselor.org, 2018)

References

American School Counselor Association (ASCA). (n.d.). Retrieved March 21, 2019, from https://www.schoolcounselor.org/

Conn, K. (n.d.). Chapter 6. Student Threats and Violence in Schools. Retrieved March 20, 2019, from http://www.ascd.org/publications/books/104147/chapters/Student-Threats-and-Violence-in-Schools.aspx

Trice-Black, S. stblack@wm. ed., Riechel, M. E. K., & Shillingford, M. A. (2013). School Counselors’ Constructions of Student Confidentiality. Journal of School Counseling, 11(12), 1–46.

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In my search of the Angelo State University Library, I found an academic article titled "School Counselors’ of Student Confidentiality" by Shannon Trice-Black, Morgan Riechel and M. Ann Shillingford. The article discusses the issues of confidentiality and ethical boundaries of school counselors.

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Angelo State University - Library Online Resources

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Unauthorized use is prohibited; Usage may be subject to security testing and monitoring; Misuse is subject to criminal prosecution; No expectation of privacy except as otherwise provided by applicable privacy laws.

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In my internet search, I found a document from the American School Counseling Association website that outlines the role of school counselors in regards to confidentiality.