# data[].attributes.headline
Bulleted list of Recommendations / Best Practices for Compliance

# data[].attributes.subject
Bulleted list of Recommendations / Best Practices for Compliance

# data[].attributes.body
The counseling relationship calls for confidentiality in order to protect the integrity of the relationship. The student needs to trust that the school counselor will keep their information private, unless the student reports information that requires it to be disclosed (Glosoff & Pate, 2002).

A school counselor must know the legal and ethical ramifications of the job in order to ensure that the needs of all stakeholders are met without negative legal consequences.

School counselors must follow confidentiality laws to avoid a negative impact on the student population. Being familiar with all of the roles and responsibilities will allow correct practices to be followed. School counselors are able to do their jobs effectively through positive relationships with stakeholders. Following policies correctly within this topic fosters those positive relationships.

Confidentiality is an important topic because it effects every aspect of a school counselor's role. Students are taught that the conversations that they have with counselors are confidential, except in specific circumstances. Also, schools have a responsibility to keep student information private and protected to avoid any negative impacts.

# data[].attributes.body
State: The legislation of the State of Texas is responsible for creating the Texas Education Code (TEC). The TEC outlines all areas that must be addressed and adhered to in school counseling when it comes to confidentiality practices and is enforced by the Texas Education Agency (TEA) (TEX. EDUC. CODE § 33.004).

Federal: The United States Department of Education enforces Family Educational Rights and Privacy Act (FERPA) and Protection of Pupil Rights Amendment (PPRA) which both protect student confidentiality in schools across the U.S. (U.S. Department of Education, 2022).

Governing bodies have safeguards within them to ensure that they are evaluated on their performance and practices.

# data[].attributes.body
Confidentiality

U.S Constitutional Law - The 4th amendment of the United States Constitution protects individuals from unreasonable searches and seizures (U.S. Const. Amend. lV).

Texas Law - Article 1 section 9 of the Texas Constitution also protects individuals from unreasonable searches and seizures (Tex. Const. art. 1 § 9).

*Individuals have the right to secure their papers and effects\
*Unreasonable seizures are not allowed (including personal information)
*The person shall not be violated

Both of these protect an individual’s private information from being shared without their consent. Not following these laws can cause legal trouble for the school counselor unless information is disclosed for safety reasons.

# data[].attributes.attachment_link.readable_text
THE TEXAS CONSTITUTION



ARTICLE 1. BILL OF RIGHTS



That the general, great and essential principles of liberty and free government may be recognized and established, we declare:


Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.


(Feb. 15, 1876.)


Sec. 2. INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.


(Feb. 15, 1876.)


Sec. 3. EQUAL RIGHTS. All freemen†, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 3a. EQUALITY UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.


(Added Nov. 7, 1972.)


Sec. 4. RELIGIOUS TESTS. No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.


(Feb. 15, 1876.)


Sec. 5. WITNESSES NOT DISQUALIFIED BY RELIGIOUS BELIEFS; OATHS AND AFFIRMATIONS. No person shall be disqualified to give evidence in any of the Courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury.


(Feb. 15, 1876.)


Sec. 6. FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.


(Feb. 15, 1876.)


Sec. 6-a. RELIGIOUS SERVICE PROTECTIONS. This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.


(Added Nov. 2, 2021.)


Sec. 7. APPROPRIATIONS FOR SECTARIAN PURPOSES. No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes.


(Feb. 15, 1876.)


Sec. 8. FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the Court, as in other cases.


(Feb. 15, 1876.)


Sec. 9. SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.


(Feb. 15, 1876.)


Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall hav† a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself† and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense.† unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penetentiary†, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.


(Feb. 15, 1876. Amended Nov. 5, 1918.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 11. BAIL. All prisoners shall be bailable by sufficient sureties, unless for capital offences†, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 11a. DENIAL OF BAIL AFTER MULTIPLE FELONIES. (a) Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or (4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals.


(b) In this section:


(1) "Violent offense" means:


(A) murder;


(B) aggravated assault, if the accused used or exhibited a deadly weapon during the commission of the assault;


(C) aggravated kidnapping; or


(D) aggravated robbery.


(2) "Sexual offense" means:


(A) aggravated sexual assault;


(B) sexual assault; or


(C) indecency with a child.


(Added Nov. 6, 1956; amended Nov. 8, 1977; Subsec. (a) amended and (b) added Nov. 2, 1993.)


Sec. 11b. DENIAL OF BAIL FOR VIOLATION OF CONDITION OF RELEASE. Any person who is accused in this state of a felony or an offense involving family violence, who is released on bail pending trial, and whose bail is subsequently revoked or forfeited for a violation of a condition of release may be denied bail pending trial if a judge or magistrate in this state determines by a preponderance of the evidence at a subsequent hearing that the person violated a condition of release related to the safety of a victim of the alleged offense or to the safety of the community.


(Added Nov. 8, 2005; amended Nov. 6, 2007.)


Sec. 11c. DENIAL OF BAIL FOR VIOLATION OF PROTECTIVE ORDER INVOLVING FAMILY VIOLENCE. The legislature by general law may provide that any person who violates an order for emergency protection issued by a judge or magistrate after an arrest for an offense involving family violence or who violates an active protective order rendered by a court in a family violence case, including a temporary ex parte order that has been served on the person, or who engages in conduct that constitutes an offense involving the violation of an order described by this section may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate in this state determines by a preponderance of the evidence that the person violated the order or engaged in the conduct constituting the offense.


(Added Nov. 6, 2007.)


Sec. 12. HABEAS CORPUS. The writ of Habeas Corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.


(Feb. 15, 1876.)


Sec. 13. EXCESSIVE BAIL OR FINES; CRUEL OR UNUSUAL PUNISHMENT; OPEN COURTS; REMEDY BY DUE COURSE OF LAW. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.


(Feb. 15, 1876.)


Sec. 14. DOUBLE JEOPARDY. No person, for the same offence†, shall be twice put in jeopardy of life or liberty,† nor shall a person be again put upon trial for the same offence,† after a verdict of not guilty in a court of competent jurisdiction.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here and here.


Sec. 15. RIGHT OF TRIAL BY JURY. The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. Provided, that the Legislature may provide for the temporary commitment, for observation and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of time not to exceed ninety (90) days, by order of the County Court without the necessity of a trial by jury.


(Feb. 15, 1876. Amended Aug. 24, 1935.)


Sec. 15-a. COMMITMENT OF PERSONS OF UNSOUND MIND. No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony. The Legislature may enact all laws necessary to provide for the trial, adjudication of insanity and commitment of persons of unsound mind and to provide for a method of appeal from judgments rendered in such cases. Such laws may provide for a waiver of trial by jury, in cases where the person under inquiry has not been charged with the commission of a criminal offense, by the concurrence of the person under inquiry, or his next of kin, and an attorney ad litem appointed by a judge of either the County or Probate Court of the county where the trial is being held, and shall provide for a method of service of notice of such trial upon the person under inquiry and of his right to demand a trial by jury.


(Added Nov. 6, 1956.)


Sec. 16. BILLS OF ATTAINDER; EX POST FACTO OR RETROACTIVE LAWS; IMPAIRING OBLIGATION OF CONTRACTS. No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.


(Feb. 15, 1876.)


Sec. 17. TAKING PROPERTY FOR PUBLIC USE; SPECIAL PRIVILEGES AND IMMUNITIES; CONTROL OF PRIVILEGES AND FRANCHISES. (a) No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for:


(1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by:


(A) the State, a political subdivision of the State, or the public at large; or


(B) an entity granted the power of eminent domain under law; or


(2) the elimination of urban blight on a particular parcel of property.


(b) In this section, "public use" does not include the taking of property under Subsection (a) of this section for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues.


(c) On or after January 1, 2010, the legislature may enact a general, local, or special law granting the power of eminent domain to an entity only on a two-thirds vote of all the members elected to each house.


(d) When a person's property is taken under Subsection (a) of this section, except for the use of the State, compensation as described by Subsection (a) shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority, shall be subject to the control thereof.


(Feb. 15, 1876. Amended Nov. 3, 2009.)


Sec. 18. IMPRISONMENT FOR DEBT. No person shall ever be imprisoned for debt.


(Feb. 15, 1876.)


Sec. 19. DEPRIVATION OF LIFE, LIBERTY, PROPERTY, ETC. BY DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.


(Feb. 15, 1876.)


Sec. 20. OUTLAWRY OR TRANSPORTATION OUT OF STATE FOR OFFENSE. No citizen shall be outlawed. No person shall be transported out of the State for any offense committed within the same. This section does not prohibit an agreement with another state providing for the confinement of inmates of this State in the penal or correctional facilities of that state.


(Feb. 15, 1876. Amended Nov. 5, 1985.)


Sec. 21. CORRUPTION OF BLOOD; FORFEITURE OF ESTATE; SUICIDES. No conviction shall work corruption of blood, or forfeiture of estate, and the estates of those who destroy their own lives shall descend or vest as in case of natural death.


(Feb. 15, 1876.)


Sec. 22. TREASON AGAINST STATE. Treason against the State shall consist only in levying war against it, or adhering to its enemies, giving them aid and comfort; and no person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or on confession in open court.


(Feb. 15, 1876.)


Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defence† of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 24. MILITARY SUBORDINATE TO CIVIL AUTHORITY. The military shall at all times be subordinate to the civil authority.


(Feb. 15, 1876.)


Sec. 25. QUARTERING SOLDIERS IN HOUSES. No soldier shall in time of peace be quartered in the house of any citizen without the consent of the owner, nor in time of war but in a manner prescribed by law.


(Feb. 15, 1876.)


Sec. 26. PERPETUITIES AND MONOPOLIES; PRIMOGENITURE OR ENTAILMENTS. Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State.


(Feb. 15, 1876.)


Sec. 27. RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.


(Feb. 15, 1876.)


Sec. 28. SUSPENSION OF LAWS. No power of suspending laws in this State shall be exercised except by the Legislature.


 (Feb. 15, 1876.)


Sec. 29. BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that every thing in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.


(Feb. 15, 1876.)


Sec. 30. RIGHTS OF CRIME VICTIMS. (a) A crime victim has the following rights:


(1) the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process; and


(2) the right to be reasonably protected from the accused throughout the criminal justice process.


(b) On the request of a crime victim, the crime victim has the following rights:


(1) the right to notification of court proceedings;


(2) the right to be present at all public court proceedings related to the offense, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial;


(3) the right to confer with a representative of the prosecutor's office;


(4) the right to restitution; and


(5) the right to information about the conviction, sentence, imprisonment, and release of the accused.


(c) The legislature may enact laws to define the term "victim" and to enforce these and other rights of crime victims.


(d) The state, through its prosecuting attorney, has the right to enforce the rights of crime victims.


(e) The legislature may enact laws to provide that a judge, attorney for the state, peace officer, or law enforcement agency is not liable for a failure or inability to provide a right enumerated in this section. The failure or inability of any person to provide a right or service enumerated in this section may not be used by a defendant in a criminal case as a ground for appeal or post-conviction writ of habeas corpus. A victim or guardian or legal representative of a victim has standing to enforce the rights enumerated in this section but does not have standing to participate as a party in a criminal proceeding or to contest the disposition of any charge.


(Added Nov. 7, 1989.)


Sec. 31. FUNDS FOR COMPENSATION TO VICTIMS OF CRIME. (a) The compensation to victims of crime fund created by general law and the compensation to victims of crime auxiliary fund created by general law are each a separate dedicated account in the general revenue fund.


(b) Except as provided by Subsection (c) of this section and subject to legislative appropriation, money deposited to the credit of the compensation to victims of crime fund or the compensation to victims of crime auxiliary fund from any source may be expended as provided by law only for delivering or funding victim-related compensation, services, or assistance.


(c) The legislature may provide by law that money in the compensation to victims of crime fund or in the compensation to victims of crime auxiliary fund may be expended for the purpose of assisting victims of episodes of mass violence if other money appropriated for emergency assistance is depleted.


(Added Nov. 4, 1997.)


Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman.


(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.


(Added Nov. 8, 2005.)


Sec. 33. PUBLIC ACCESS TO AND USE OF PUBLIC BEACHES. (a) In this section, "public beach" means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low tide to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescription or dedication or has established and retained a right by virtue of continuous right in the public under Texas common law.


(b) The public, individually and collectively, has an unrestricted right to use and a right of ingress to and egress from a public beach. The right granted by this subsection is dedicated as a permanent easement in favor of the public.


(c) The legislature may enact laws to protect the right of the public to access and use a public beach and to protect the public beach easement from interference and encroachments.


(d) This section does not create a private right of enforcement.


(Added Nov. 3, 2009.)


Sec. 34. RIGHT TO HUNT, FISH, AND HARVEST WILDLIFE. (a) The people have the right to hunt, fish, and harvest wildlife, including by the use of traditional methods, subject to laws or regulations to conserve and manage wildlife and preserve the future of hunting and fishing.


(b) Hunting and fishing are preferred methods of managing and controlling wildlife.


(c) This section does not affect any provision of law relating to trespass, property rights, or eminent domain.


(d) This section does not affect the power of the legislature to authorize a municipality to regulate the discharge of a weapon in a populated area in the interest of public safety.


(Added Nov. 3, 2015.)


Sec. 35. RIGHT OF CERTAIN FACILITY RESIDENTS TO DESIGNATE ESSENTIAL CAREGIVER. (a) A resident of a nursing facility, assisted living facility, intermediate care facility for individuals with an intellectual disability, residence providing home and community-based services, or state supported living center, as those terms are defined by general law, has the right to designate an essential caregiver with whom the facility, residence, or center may not prohibit in-person visitation.


(b) Notwithstanding Subsection (a) of this section, the legislature by general law may provide guidelines for a facility, residence, or center described by Subsection (a) of this section to follow in establishing essential caregiver visitation policies and procedures.


(Added Nov. 2, 2021.)

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

# data[].attributes.body
Administrative Law - “The educator shall not reveal confidential information concerning students unless disclosure serves lawful professional purposes or is required by law” is one piece of the Texas Administrative Code (19 Tex. Admin. Code §247.2 (2018)).

* Educators cannot reveal confidential information
* Student information is to be kept private
* Student information can be provided only in legal circumstances or professional purposes
* Educators cannot share information with other educators
* Information can be shared in instances of harm of any kind

Statute - The Texas Education Code requires that schools obtain written consent from parent or guardian to be involved in programs within the school (TEX. EDUC. CODE § 33.004).

* Parents must provide written consent at the start of the school year
* Many districts require parents to provide consent as part of the yearly enrollment packet
* Consent to programs includes school counseling programs which allows counselors to meet with students, who then share personal information

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

# data[].attributes.attachment_link.title
EDUCATION CODE CHAPTER 33. SERVICE PROGRAMS AND EXTRACURRICULAR ACTIVITIES

# data[].attributes.attachment_link.description
EDUCATION CODE TITLE 2. PUBLIC EDUCATION SUBTITLE F. CURRICULUM, PROGRAMS, AND SERVICES CHAPTER 33. SERVICE PROGRAMS AND EXTRACURRICULAR ACTIVITIES SUBCHAPTER A. SCHOOL COUNSELORS AND COUNSELING PROGRAMS Sec. 33.002. CERTIFIED SCHOOL COUNSELOR. (a) From funds appropriated for the purpose or other funds that may be used for the purpose, the commissioner shall distribute funds for programs under this subchapter.

# data[].attributes.body
Eisel v. Board of Education of Montgomery County

Description: This court case is about a student who spoke about suicide with her classmates, which prompted the classmates to inform school counselors. The counselors did not inform the parents of the student causing the father to want the individuals held accountable for not notifying him after she followed through with her suicide plans.

Precedent: This court case set the precedent that school counselors may not break confidentiality when it is necessary to protect the student or other students.

Impacts on confidentiality: Since this court case, it has become mandatory to report any information pertaining to suicide to parents and other agencies as necessary. It is common knowledge that students are informed that anything that they share will not be disclosed unless there is harm of some kind involved. (Eisel v. Board of Education of Montgomery County, 1991)

# data[].attributes.attachment_link.readable_text
The legal theory advanced by the plaintiff in this wrongful death and survival action is that school counselors have a duty to intervene to attempt to prevent a student's threatened suicide. The specific question presented is whether the duty contended for may be breached by junior high school counselors who fail to inform a parent of suicidal statements attributed to the parent's child by fellow students where, when the counselors sought to discuss the subject, the adolescent denied ever making the statements. The circuit court granted summary judgment for the defendants, premised on the absence of any duty. As explained below, we shall hold that summary judgment was erroneously entered.

The decedent, Nicole Eisel (Nicole), was a thirteen year old student at Sligo Middle School in Montgomery County. She and another thirteen year old girl consummated an apparent murder-suicide pact on November 8, 1988. Nicole's father, Stephen Eisel (Eisel), brought the instant action. His amended complaint alleges negligence on the part of two counselors at Nicole's school, among others. In order to state the facts that are before us, and to determine the scope of the issues for decision on this appeal, we must review the procedural history.

I

Eisel's complaint, filed in March 1989, joined as defendants the Board of Education of Montgomery County (the Board), "Montgomery County Public Schools" and three individuals, the Superintendent of Schools of Montgomery County, the principal of Sligo Middle School, and Dorothy Jones (Jones), Nicole's counselor. The defendants filed an answer. Thereafter the parties engaged in discovery. Answers to interrogatories and documents produced are part of the record. Full copies of depositions were not filed in the court. Documents produced included the Board's memorandum of a telephone call on November 10, 1988, from the identified mother of a child at Sligo Middle School. That parent reported that children in her car pool said that Deidre Morgan (Morgan), another school counselor, knew of Nicole's suicide threats. Eisel amended his complaint to join Morgan as an additional defendant.

"Montgomery County Public Schools" is the name by which the Board of Education of Montgomery County describes itself on letterheads and other documents in the record.

Shortly thereafter the defendants filed a "Motion to Dismiss the Amended Complaint and/or Motion for Summary Judgment." Among other grounds, the motion asserted that the "[d]efendants owed no duty to the plaintiff or plaintiff's decedent."

The hearing on the defendants' motion resulted in a final judgment entered on the docket as, "Order of Court . . . granted the defendants' motion to dismiss complaint with prejudice." The transcript of the hearing reflects that a number of rulings were made. The circuit court ruled that allegations of negligence against the superintendent and school principal were insufficient. The court ruled that "Montgomery County Public Schools" was not an entity separate from the Board of Education. These rulings are not challenged on this appeal.

With respect to the Board, Jones, and Morgan, counsel for the defendants accepted the allegations of the amended complaint as true, for purposes of the motion. On that basis defendants' counsel argued, as a matter of law, the absence of any duty and the lack of proximate cause. The circuit court ruled that proximate cause was a question for the jury, but that public policy considerations precluded legally recognizing any duty on the remaining defendants to intervene for the purpose of attempting to prevent suicide.

Eisel appealed. We issued the writ of certiorari on our own motion prior to consideration of the matter by the Court of Special Appeals.

Eisel's brief characterizes the appeal as one from the grant of summary judgment. The defendants view the judgment as one entered on the grant of a motion to dismiss for failure to state a claim upon which relief can be granted. Eisel's analysis is correct. Under Maryland Rule 2-322(b) it is permissive to raise, by motion to dismiss, the defense of failure to state a claim upon which relief can be granted, if the motion is made before answer is filed. If the defense is not made by a threshold motion, it "may be made in the answer, or in any other appropriate manner after answer is filed." Id. "A defense of failure to state a claim upon which relief can be granted . . . may be made . . . by motion for summary judgment under Rule 2-501 or at the trial on the merits." Md. Rule 2-324(a). Here, the procedural tool used by the defendants was a motion for summary judgment, but the defendants chose to argue their motion as if it were one to dismiss for failure to state a claim. Because, for purposes of the motion, the defendants and the trial court accepted the allegations of the amended complaint as true, we shall do the same. Nevertheless, because judgment was entered on summary judgment, we are free to state from the record, in addition to the accepted allegations, admissible facts which are favorable to Eisel's claim. Further, because the appeal is from the grant of a summary judgment, our review of whether judgment was properly entered looks only to the ground relied upon by the trial judge for granting the motion, i.e., the absence of duty. See Boyer v. State, 323 Md. 558, 588 n. 19, 594 A.2d 121, 136 n. 19 (1991); Finci v. American Casualty Co., 323 Md. 358, 381-82, 593 A.2d 1069, 1081 (1991).

Discovery material in the record, and the arguments by counsel at the motion hearing, reflect that there is a dispute over whether the counselors were ever advised by Nicole's fellow students, before Nicole's death, that Nicole was contemplating suicide. The defendants never argued that they were entitled to summary judgment because Eisel could not produce competent evidence sufficient to support a finding that the counselors were so advised.

II

The amended complaint avers that Nicole became involved in satanism, causing her to have an "obsessive interest in death and self-destruction." During the week prior to the suicide, Nicole told several friends and fellow students that she intended to kill herself. Some of these friends reported Nicole's intentions to their school counselor, Morgan, who relayed the information to Nicole's school counselor, Jones. Morgan and Jones then questioned Nicole about the statements, but Nicole denied making them. Neither Morgan nor Jones notified Nicole's parents or the school administration about Nicole's alleged statements of intent. Information in the record suggests that the other party to the suicide pact shot Nicole before shooting herself. The murder-suicide took place on a school holiday in a public park at some distance from Sligo Middle School. The other party to the pact attended another school.

III

There is no direct Maryland precedent on the issue before us. We have not been cited to, nor have we found, any decision by any other court that deals with the issue of duty on substantially similar facts. Before the circuit court the defendants' argument that the counselors owed no duty to intervene rested largely on language in judicial decisions that defendants say are analogous.

On the issue of duty Eisel argued that, by the School Board's own policy, counselors were required to contact the parents of any child who had expressed suicidal thoughts. Eisel pointed to deposition testimony on that subject by the principal, who said: "If the student is in danger, of course, you take care of that first. Then the next thing you do would be to notify a parent. If the student is in no apparent danger, you will notify the parent."

There appear to be two broad categories of cases in which a person may be held liable for the suicide of another. The first type occurs when the defendant's conduct actually causes the suicide, as when a negligent driver causes head injuries that lead to psychosis. See Fuller v. Preis, 35 N.Y.2d 425, 322 N.E.2d 263, 363 N.Y.S.2d 568 (1974). It is not contended here that Nicole's suicide was caused, in that sense, by the defendants' conduct.

The second type of case holds that a special relationship between a defendant and the suicidal person creates a duty to prevent a foreseeable suicide. For instance, many courts have held that a hospital or a prison that has custody over a person who commits suicide may be liable if the suicide was foreseeable. See Annotation, Civil Liability for Death by Suicide, 11 A.L.R.2d 751, §§ 13.5-14 (1950 Supp. 1985). In State ex rel. Shockey v. Washington Sanitarium Hosp., 223 Md. 554, 557, 165 A.2d 764, 765-66 (1960), we said:

"[T]here is a duty upon a sanitarium or hospital to exercise such care in looking out for and protecting a patient as the circumstances, including known mental and physical conditions, may reasonably require. Failure to do so may be negligence, and if suicide is a proximate result of the negligence, recovery may be had under the wrongful death statute. . . ."

At least one case has concluded that a professional therapist may be held liable when a patient commits suicide, even if the therapist or the therapist's hospital does not have custody over the patient. Bellah v. Greenson, 81 Cal.App.3d 614, 620, 146 Cal.Rptr. 535, 538 (1978); but see Nally v. Grace Community Church of the Valley, 47 Cal.3d 278, 295-96, 763 P.2d 948, 958, 253 Cal.Rptr. 97, 107-08 (1988) (limiting Bellah), cert. denied, 490 U.S. 1007, 109 S.Ct. 1644, 104 L.Ed.2d 159 (1989). Liability against therapists for outpatient suicides is rarely imposed, e.g., Farwell v. Un, 902 F.2d 282 (4th Cir. 1990) (applying Maryland law); Comment, Civil Liability for Causing or Failing to Prevent Suicide, 12 Loy.L.A.L.Rev. 967, 993 (1979), and some commentators have suggested that liability under these circumstances should never be imposed. See id. at 993 n. 142.

Recent attempts to extend the duty to prevent suicide beyond custodial or therapist-patient relationships have failed. For instance, the Supreme Court of California refused to impose a duty on a church pastor to refer a twenty-four year old suicidal counselee to a mental health professional. Nally, 47 Cal.3d at 299-300, 763 P.2d at 960-61, 253 Cal.Rptr. at 110. Although on its facts Nally dealt only with religious counselors, the court appeared to extend its no-duty rule to all "nontherapist counselors," who were defined as "persons other than licensed psychotherapists, who counsel others concerning their emotional and spiritual problems." Id. at 283, 763 P.2d at 949-50, 253 Cal.Rptr. at 99.

In McLaughlin v. Sullivan, 123 N.H. 335, 461 A.2d 123 (1983), a jail prisoner killed himself within twelve hours of incarceration after his conviction on burglary and drug charges. The administrator of the suicide's estate sued his attorney for legal malpractice. The Supreme Court of New Hampshire held that the attorney had no duty to prevent the suicide because she neither had custody or control over the defendant nor did she have the "expertise or the training necessary to judge or foresee that a client will commit suicide." Id. at 342, 461 A.2d at 127; see also Snyder v. Baumecker, 708 F. Supp. 1451, 1463 (D.N.J. 1989); McPeake v. Cannon, 381 Pa. Super. 227, 553 A.2d 439 (1989). In Krieg v. Massey, 239 Mont. 469, 781 P.2d 277 (1989), an apartment manager had reason to believe an elderly tenant was suicidal and attempted to remove the tenant's handgun, but ultimately left it within the tenant's reach. The court found the manager had no duty to prevent the subsequent suicide because she was not in a custodial relationship with the tenant.

Probably the closest case, factually, to the matter before us is Bogust v. Iverson, 10 Wis.2d 129, 102 N.W.2d 228 (1960). The parents of a college student who killed herself sued a college professor-counselor. The suicide occurred about six weeks after the counselor suggested terminating counseling sessions with the student. The court held that the counselor had no duty to secure psychiatric treatment for the student or advise her parents of her emotional state because the plaintiff had alleged no facts showing that the counselor was apprised that the student had suicidal tendencies. One commentator has cited this ruling as potentially establishing a duty when such facts are alleged. See Comment, supra, 12 Loy.L.A.L.Rev. at 991.

The custody rule is extended, arguably unjustifiably, well beyond the confines of the instant matter in Sneider v. Hyatt Corp., 390 F. Supp. 976 (N.D.Ga. 1975). That court refused to grant summary judgment for a hotel company which claimed it could not be liable for the death of a registered guest who jumped from the twenty-first floor of the hotel. The plaintiff had alleged that the hotel's management was aware that the hotel had become an "attractive location for suicides," and that the decedent was inebriated, had no luggage and was seen by hotel employees wandering in a confused state on the twenty-first floor. The court acknowledged that a hotel has less control over a customer than does a hospital over a patient. Nonetheless, the court refused to decide that the hotel had no duty at all. Id. at 979-81.

A number of factors distinguish the instant matter from those cases finding an absence of any duty, reviewed above, in which the custodial relationship between the suicide victim and the defendant was other than that of hospital and patient or jailer and prisoner. Eisel's claim involves suicide by an adolescent. The negligence relied on is a failure to communicate to the parent the information allegedly possessed by the defendants concerning the child's contemplated suicide, not a failure by the school authorities physically to prevent the suicide by exercising custody and control over Nicole. The theory of Eisel's case is that he could have exercised his custody and control, as parent, over Nicole, had he been warned, and inferentially, that there was nothing known to the counselors about Eisel's relationship with Nicole that would make such a warning unreasonable. Compare Farwell v. Un, 902 F.2d at 288-89 (limited duty to prevent suicide on a physician who had no authority to commit a patient involuntarily) with Md. Code (1982, 1990 Repl. Vol.), § 10-610 of the Health-General Article (parent's right to apply for, and consent to, "voluntary" commitment for up to twenty days of minor child suffering from mental disorder).

There are, of course, various statutory and constitutional restrictions on a parent's right to commit a child against the child's will. See, e.g., Parham v. J.R., 442 U.S. 584, 604, 99 S.Ct. 2493, 2505, 61 L.Ed.2d 101, 120 (1979) (parents retain plenary authority to seek institutionalization of their children subject to physician's independent judgment).

Further, we have recognized

"the doctrine that the relation of a school vis a vis a pupil is analogous to one who stands in loco parentis, with the result that a school is under a special duty to exercise reasonable care to protect a pupil from harm, Segerman v. Jones, 256 Md. 109, 123-24, 259 A.2d 794, 801 (1969); Restatement (Second) of Torts § 320 at 130 (1965); 2 Harper and James, The Law of Torts § 18.7 at 1058 (1956); Annot., 86 A.L.R.2d 489, 565-68 (1962); Annot., 32 A.L.R.2d 1163, 1178-81 (1953); Annot., 160 A.L.R. 7, 155-56 (1946)."

Lunsford v. Board of Educ., 280 Md. 665, 676, 374 A.2d 1162, 1168 (1977) (footnote omitted).

The harm in Lunsford was an assault and battery, inflicted on a student who was en route to his home after having been released from school, where there was evidence that the school authorities knew of the danger. The jury verdict was for the defendant. This Court found no error in the proceedings. Two dissenting judges believed it was error to submit the issue of contributory negligence to the jury.

Finally, the relationship of school counselor and pupil is not devoid of therapeutic overtones. The "Counselor Job Description," published by the Department of Professional Personnel of the Board lists the first two "[p]riorities of the counseling profession" to be:

"1. Counseling with individuals and groups concerning school adjustment, physical and emotional development, educational planning, and career awareness. . . .

"2. Identifying students with significant problems and taking steps to provide help for these students."

The defendant Jones has been a counselor in the Montgomery County school system since 1977. She holds an M.A. in guidance and counseling. Her answers to interrogatories include the following:

" Continuum Education:

Psychiatric Institute (1979) - 6 hrs., Crisis Intervention Techniques

Frost Center (1984) - 2 hrs., Suicide Warnings - Steps to Follow

Crisis Psychiatric Services (1987) - Suicide."

Given the peculiar mix of factors presented, it is an open question whether there is a duty to attempt to prevent an adolescent's suicide, by reasonable means, including, in this case, by warning the parent. Therefore, we must analyze whether we should recognize a duty in this case.

IV

A tort duty is "an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." Jacques v. First Nat'l Bank, 307 Md. 527, 533, 515 A.2d 756, 759 (1986) (quoting Prosser Keeton on the Law of Torts § 53, at 358 (5th ed. 1984)). "[A]mong the variables to be considered in determining whether a tort duty should be recognized are:

`[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.'"

Village of Cross Keys, Inc. v. United States Gypsum Co., 315 Md. 741, 752, 556 A.2d 1126, 1131 (1989) (quoting Tarasoff v. Regents of Univ. of Calif., 17 Cal.3d 425, 434, 551 P.2d 334, 342, 131 Cal.Rptr. 14, 22 (1976)). See also Ashburn v. Anne Arundel County, 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986).

A. Foreseeability and Certainty of Harm

Foreseeability is the most important variable in the duty calculus, Ashburn, 306 Md. at 628, 510 A.2d at 1083, and without it there can be no duty to prevent suicide. Comment, Civil Liability for Suicide, 12 Loy.L.A.L.Rev. at 991. Here Nicole's suicide was foreseeable because the defendants allegedly had direct evidence of Nicole's intent to commit suicide. That notice to the defendants distinguishes this case from Bogust v. Iverson, 10 Wis.2d 129, 102 N.W.2d 228, where the counselor had no notice of contemplated suicide.

The degree of certainty that Eisel and Nicole suffered the harm foreseen is one hundred percent.

Nor would reasonable persons necessarily conclude that the harm ceased to be foreseeable because Nicole denied any intent to commit suicide when the counselors undertook to draw out her feelings, particularly in light of the alleged declarations of intent to commit suicide made by Nicole to her classmates. "An adolescent who is thinking of suicide is more likely to share these feelings with a friend than with a teacher or parent or school guidance counselor. But, we all - parents, teachers, administrators, service providers and friends - can learn what the warning signs are and what to do." 3 Maryland Office for Children and Youth, Monthly Memo, at 3 (Apr. 1986). Jurors, as triers of fact, may well conclude that the quoted point of view is consistent with their own experiences with adolescents. On the other hand, when the facts of this case are fully developed, the court may conclude that the duty did not arise, or jurors may conclude that it had not been negligently breached.

B. Policy of Preventing Future Harm

The General Assembly has made it quite clear that prevention of youth suicide is an important public policy, and that local schools should be at the forefront of the prevention effort. A Youth Suicide Prevention School Programs Act (the Act) was enacted by Chapter 122 of the Acts of 1986, codified as Md. Code (1978, 1989 Repl. Vol.), §§ 7-4A-01 through 7-4A-06 of the Education Article (EA). The uncodified preamble to the Act states that "[t]he rate of youth suicide has increased more than threefold in the last two decades," and that "[o]ver 5,000 young Americans took their lives [in 1985], including over 100 young people in Maryland. . . ."

Further legislative findings and declarations are set forth in EA, § 7-4A-01. "A statewide Youth Suicide Prevention School Program is essential to address" the problem. § 7-4A-01(1). "County suicide prevention and crisis center agencies along with local education agencies are best suited for developing and implementing programs for statewide youth suicide prevention." § 7-4A-01(5). Section 7-4A-03(a)(1) provides for a statewide Youth Suicide Prevention School Program administered by the State Department of Education in cooperation with, inter alia, participating local education agencies. Any program established under the Act "shall . . . [t]rain school personnel in individual and school wide strategies for teenage suicide prevention." EA, § 7-4A-04(c)(2).

In 1987 the Maryland State Department of Education (the Department) published its "YOUTH SUICIDE PREVENTION SCHOOL PROGRAM for the Public Schools of Maryland." It presented goals, objectives and strategies for youth suicide prevention, intervention and "postvention," i.e., "coping with the aftermath of a student's attempted suicide, or completed suicide." Id. at 2.

Nicole's school had a suicide prevention program prior to her death. Eisel requested that the Superintendent of Schools for Montgomery County produce "all published rules . . . or other written directives available as of November 1, 1988, to . . . counselors . . . or other school system staff relating to staff responses to alleged student intent to commit suicide." In response, the superintendent produced, inter alia, a memorandum dated February 18, 1987, from the office of the principal to the staff of Sligo Middle School on the subject of "Suicide Prevention." It consists of a top sheet setting forth the "steps [that] must be followed." The top sheet is supplemented by materials on other pages reproduced from various sources. These materials include lists of the methods of, and motives for, suicide and important warning signs ("[A]lmost all who have committed suicide have communicated their intent beforehand."). Part IX lists ten answers to the question, " How Can You Help In A Suicidal Crisis?" Answer D is:

The description of the steps, in relevant part, reads:
"1. Notify the appropriate grade level counselor and administrator immediately.
"2. It will be the grade level administrator's responsibility to call a team meeting. . . .
"3. The committee will decide jointly as to the next steps - i.e., contacting parents, outside agencies, etc.
"4. Reminders:
(a) Our counselors are trained to counsel with a youngster who is contemplating suicide; there are also full-time professionals who are available.
(b) Confidentiality is not an issue - it makes for more sense to pick up the pieces of a teacher/pupil relationship after the crisis is over.
(c) The student should not be left alone at any time."

"Tell others - As quickly as possible, share your knowledge with parents, friends, teachers or other people who might be able to help. Don't worry about breaking a confidence if someone reveals suicidal plans to you. You may have to betray a secret to save a life."

There is no indication in the Act that the Legislature intended to create a statutorily based cause of action against school counselors who negligently fail to intervene in a potential suicide. Nevertheless, holding counselors to a common law duty of reasonable care to prevent suicides when they have evidence of a suicidal intent comports with the policy underlying this Act.

C. Closeness of Connection Between Conduct and Injury

This factor is the proximate cause element of a negligence action considered on the macroscale of policy. Consideration is given to whether, across the universe of cases of the type presented, there would ordinarily be so little connection between breach of the duty contended for, and the allegedly resulting harm, that a court would simply foreclose liability by holding that there is no duty. The defendants in the instant matter argue the closeness of connection factor from two aspects, superseding cause and remoteness.

The defendants say that the law considers suicide to be "a deliberate, intentional and intervening act which precludes a finding that a given defendant is responsible for the harm." Brief of Appellees at 6. Defendants cite McLaughlin v. Sullivan, 123 N.H. at 339, 461 A.2d at 125, where the court held that an attorney's alleged malpractice, in not requesting a stay of sentence or bail pending appeal in a criminal case, could not have been the proximate cause of the client's suicide in jail during the first day of confinement following conviction. Here, however, we deal with the relationship between an adolescent and school counselors who allegedly were informed that the adolescent was suicidal. Legally to categorize all suicides by adolescents as knowing and voluntary acts which insulate the death, as a matter of law, from all other acts or omissions which might operate, in fact, as causes of the death is contrary to the policy manifested by the Act. The Act does not view these troubled children as standing independently, to live or die on their own. In a failure to prevent suicide case, Maryland tort law should not treat an adolescent's committing suicide as a superseding cause when the entire premise of the Act is that others, including the schools, have the potential to intervene effectively.

The bill file on the Act reflects that the General Assembly had before it, inter alia, a publication of the State of Maryland Office for Children and Youth devoted entirely to youth suicide. In rejecting the "myth" that children do not commit suicide, the publication presents the following as "fact":
"Children from the age of 3 years can understand the concept of suicide and do kill themselves. The danger is that while they may understand the concept of suicide, they may not understand the finality of death until the age of 10-15 years."
3 Maryland Office for Children and Youth, Monthly Memo, at 3 (Apr. 1986).

The defendants also argue that "[i]n blaming the Board and the school counselors for his daughter's death, [Eisel], at most, makes out a case for a remote cause, one which is speculative and inconclusive." We have held, supra, Part I, that this issue of causation in fact is not before us on this appeal. Obviously, when the factual skeleton, on which the duty issue has been presented to us, has been fleshed out with evidence at trial, causation may be a question for the jury, or it may develop that, as a matter of law, any causal connection has been severed by some fact, other than that death was essentially self-inflicted.

D. Moral Blame

Moral blame as a factor to be weighed in deciding whether to recognize a legal duty in tort is less than an intent to cause harm. This factor considers the reaction of persons in general to the circumstances. Is it the sense of the community that an obligation exists under the circumstances? Certainly if classmates of Nicole found her lying on the floor of a lavatory, bleeding from slashed wrists, and those students told one or more teachers of the emergency, society would be outraged if the teachers did nothing and Nicole bled to death. Here, the information allegedly received by the counselors involved intent, not a description of physical facts. The distinction does not form a bright line separating duty from the absence of duty. The youth suicide prevention programs provided for by the Act call for awareness of, and response to, emotional warning signs, thus evidencing a community sense that there should be intervention based on emotional indicia of suicide.

E. Burden on the Defendant

"[U]nintended harms are ordinarily compensable if caused by conduct that involves undue risks - risks that, along with other costs, outweigh the usefulness of the conduct causing the harms." Prosser Keeton on The Law of Torts § 85, at 608 (5th ed. 1984) (footnote omitted).

The harm that may result from a school counselor's failure to intervene appropriately when a child threatens suicide is total and irreversible for the child, and severe for the child's family. It may be that the risk of any particular suicide is remote if statistically quantified in relation to all of the reports of suicidal talk that are received by school counselors. We do not know. But the consequence of the risk is so great that even a relatively remote possibility of a suicide may be enough to establish duty. We pointed out in Jacques v. First Nat'l Bank, 307 Md. 527, 537, 515 A.2d 756, 761 (1986), that "[a]s the magnitude of the risk increases, the requirement of privity is relaxed - thus justifying the imposition of a duty in favor of a large class of persons where the risk is of death or personal injury." See Council of Co-Owners Atlantis Condominium, Inc. v. Whiting-Turner Contracting Co., 308 Md. 18, 35 n. 5, 517 A.2d 336, 345 n. 5 (1986) (recognizing a duty against architects, enforceable by recovery for economic loss, if building conditions present a clear risk of death or personal injury).

Moreover, when the risk of death to a child is balanced against the burden sought to be imposed on the counselors, the scales tip overwhelmingly in favor of duty. Certainly the physical component of the burden on the counselors was slight. Eisel claims only that a telephone call, communicating information known to the counselors, would have discharged that duty here. We agree.

The counselors argue that there are elements of confidentiality and discretion in their relationships with students that would be destroyed by the imposition of a duty to notify parents of all reports of suicidal statements. Confidentiality does not bar the duty, given that the school policy explicitly disavows confidentiality when suicide is the concern.

The defendants further point out that counselors are required to exercise discretion when dealing with students. Their discretion, however, cannot be boundless when determining whether to treat a student as a potential suicide. Discretion is relevant to whether the standard of conduct has been breached under the circumstances of a given case. Discretion does not create an absolute immunity, which would be the effect of denying any duty.

F. Community Consequences of Liability - Insurability

EA, § 4-105(d) and Md. Code (1974, 1989 Repl. Vol., 1991 Cum. Supp.), § 5-353(b) of the Courts and Judicial Proceedings Article (CJ) allow a county board of education to "raise the defense of sovereign immunity to any amount claimed above the limit of its insurance policy or, if self-insured or a member of a pool . . . above $100,000." The Board participates in the Montgomery County self-insurance program. CJ, § 5-353(e) provides that a "county board employee acting within the scope of employment, without malice and gross negligence, is not individually liable for damages resulting from a tortious act or omission for which a limitation of liability is provided . . . under subsection (b)." Recognizing the duty contended for by Eisel in this case would not appear to have any substantial adverse impact on this legislative scheme, or on the community at large.

We refer to statutes enacted after the occurrence involved in the action before us because the issue is whether to recognize a duty in tort, and the most recent statutes represent the best guide to the future. We intimate no opinion on the precise statutes which might govern coverage in the instant matter.

At the hearing on the motion for summary judgment in this action, the circuit court also ruled that there were no allegations of malice or gross negligence on the part of Jones or Morgan. Eisel did not seek leave to amend; nor does he question those rulings on this appeal.

V

The Centers for Disease Control (CDC) in Atlanta has reported on a new survey of high school students, which revealed that twenty-seven percent "thought seriously" about suicide in the preceding year, and "one in 12 said they had actually tried." The Sun (Baltimore), Sept. 20, 1991, at 3A, col. 3. The CDC report noted that suicide rates among teenagers between fifteen and nineteen years old had quadrupled between 1950 and 1988. The General Assembly had similar numbers before it when it adopted the Act. "Changing social conditions lead constantly to the recognition of new duties." Prosser Keeton on The Law of Torts § 53, at 359 (5th ed. 1984) (footnote omitted); see, e.g., B.N. v. K.K., 312 Md. 135, 538 A.2d 1175 (1988) (transmission of herpes).

Considering the growth of this tragic social problem in the light of the factors discussed above, we hold that school counselors have a duty to use reasonable means to attempt to prevent a suicide when they are on notice of a child or adolescent student's suicidal intent. On the facts of this case as developed to date, a trier of fact could conclude that that duty included warning Eisel of the danger.

JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS. COSTS TO BE PAID BY APPELLEE, BOARD OF EDUCATION OF MONTGOMERY COUNTY, MARYLAND.

# data[].attributes.attachment_link.title
Eisel v. Board of Education, 324 Md. 376 | Casetext Search + Citator

# data[].attributes.attachment_link.description
Read Eisel v. Board of Education, 324 Md. 376, see flags on bad law, and search Casetext’s comprehensive legal database

# data[].attributes.body
The Texas Education Agency has adopted the ASCA ethical model for school counselors to ensure that all aspects of a school counselor’s duties are being followed. The ASCA model discusses multiple areas, with confidentiality being one of them. The purpose is to outline the expectations that are held by the school counselor to protect student’s rights and personal information. Another main purpose is to ensure that the counselor is engaging in professional behavior in every role they are asked to take part in (ASCA, 2022).

# data[].attributes.attachment_link.title
ASCA Ethical Standards for School Counselors - American School Counselor Association (ASCA)

# data[].attributes.body
In San Felipe Del Rio Consolidated Independent School District (SFDR-CISD), the employee handbook outlines all aspects of employment within the district as determined by the school board and the superintendent.

*Confidentiality is mentioned multiple times, but with the same purpose each time, protecting student and employee information.
*Confidentiality must be maintained for all student and employee records unless lawfully or ethically necessary (SFDR-CISD, 2022).
*This protects information from being disclosed without consent, unless absolutely necessary.

# data[].attributes.body
School Counselor Ethical Standards

*Create an emotionally, physically safe environment for all students

*Provide access to a school counseling program equally for all students

*Do not discriminate for any reason

*Provide support

*Career planning implementation

*Provide privacy and confidentiality for all students

*Be inclusive of all

*Aid in student development

*Provide a comprehensive school counseling program

(ASCA, 2022)

Link: https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

School counselors are responsible for aiding students in becoming their best selves. In order to do so, school counselors must abide by ethical standards to promote their comprehensive program for all students. Being ethically responsible helps the counselor to provide the best care and attention to student needs. Students and other stakeholders must feel that school counselors are ethically responsible in order to have a trusting

# data[].attributes.body
Confidentiality has many areas that it embodies within a school system. This topic has a place in all areas of school counseling. The laws that are currently used to outline school counseling expectations are necessary in maintaining student confidentiality in schools.

*Confidentiality helps students share information through a good rapport with the school counselor
*Confidentiality in protecting student information is necessary to keep students and their information safe
*Understanding confidentiality helps school counselors be effective in advocating for student needs

# data[].attributes.body
*School counselors must keep student information private
*School districts must outline expectations for confidentiality
*School districts must provide training on confidentiality practices to all employees
*Educators must refrain from discussing student's/staff private information
*Documents must be secured
*School counselors must tell students that anything they share is confidential, except in situations where harm is occurring

# data[].attributes.body
*Risk-Reward Analysis: This strategy requires school districts to weigh the pros and cons of best practice items to determine which would be most beneficial in the long run. This is important so that opportunities for compliance are available and effective before spending district money on these opportunities (Simplilearn, 2023).

*Contingency Planning: This strategy is having a plan in the event that confidentiality compliance is not followed. An educator or someone in the education system my accidentally share a piece of student data not realizing the negative impact that it has. Having a plan to follow after this happens will be beneficial for all individuals involved (Simplilearn, 2023).

*Procedures: This strategy includes having specific items in place to lower the chance of a breach in confidentiality (Simplilearn, 2023). In the case of a school or district, the most common may be training on protecting personal information.

# data[].attributes.body
ASCA ethical standards for school counselors. ASCA Ethical Standards for School Counselors - American School Counselor Association (ASCA). (2022). Retrieved February 26, 2023, from https://www.schoolcounselor.org/About-School-Counseling/Ethical-Legal-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)

Eisel v. Board of Education, 324 Md. 376 (1991). https://casetext.com/case/eisel-v-board-of-education

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

Simplilearn. (2023, February 21). Project Risk Management: Risk Analysis and risk management strategies [updated]. Simplilearn.com. Retrieved March 6, 2023, from https://www.simplilearn.com/risk-management-strategies-article

TEA. (2023). EDUCATION CODE CHAPTER 33. SERVICE PROGRAMS AND EXTRACURRICULAR ACTIVITIES. Texas Constitution and Statutes.

Texas Constitution Article 1, section 9. Searches and seizures.

United States Constitution Amendment 4. Searches and seizures.

U.S. Department of Education. (2022, November 1). Protecting student privacy: U.S. department of education. Protecting Student Privacy | U.S. Department of Education. Retrieved March 6, 2023, from https://studentprivacy.ed.gov/#:~:text=We%20administer%20and%20enforce%20student,districts%20safeguard%20information%20about%20students.

19 Tex. Admin. Code §247.2 (2018)