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School counselors are faced with a number of legal and ethical issues every day. Some are easy to evaluate and work through, while other legal and ethical situations can prove more difficult when deciding on the most ethical solution to the problem.

This legal and ethical guide explores the topic of mandated reporting. As mandated reporters, counselors often make difficult calls to child protective services. Sometimes, counselors may find themselves questions whether or not something needs to be reported.

This legal guide was created to help other new counselors who may find themselves wondering if an issue is or is not reportable.

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At the federal level, school counselors are governed by the U.S. Department of Education. This department "establishes policy . . . to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access" (U.S. Department of Education, 2010).

At the state level, school counselors are governed by Texas Education Agency (TEA). TEA oversees public education for all public school students in Texas.

Both agencies enact laws, mandates, regulations, and policies that directly affect the school counselor's role and hold school counselors accountable for providing guidance, leadership, and support for students and schools.

References
US Department of Education (ED). (2010). An overview of the U.S. Department of Education. https://www2.ed.gov/about/overview/focus/what.html#:~:text=The%20U.S.%20Department%20of%20Education%20is%20the%20agency%20of%20the,implementing%20laws%20enacted%20by%20Congress.

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3. Federal and State Constitutional Laws

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3. Federal and State Constitutional Laws

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Federal Constitutional Law:
Amendment of the U.S. Constitution (U.S. Const. amend. XIV)

https://www.archives.gov/milestone-documents/14th-amendment

Every U.S. citizens shall not be deprived of "life, liberty, or property" (U.S.
Const. amend. XIV).

Texas Constitutional Law:
Section 19 of the Texas Constitution (TX. Const. sec. XIX)

https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm#:~:text=19.,the%20law%20of%20the%20land.

Each Texas citizen "shall [not] be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised" (TX. Cost. sect. 19).

Abuse and neglect jeopardize a student's life. To help protect students' lives, counselors have an obligation to report any suspected abuse or neglect to the appropriate authorities.

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Texas Administrative Law:
Reporting Child Abuse or Neglect, Including Trafficking of a Child, 19. Tex. Admin. Code § 16.1051

https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=19&pt=2&ch=61&rl=1051

"Every school employee. . . who suspects a child's physical or mental health or welfare has been adversely affected by abuse or neglect submit a written or oral report. . . within 48 hours or less" (19 TAC § 16.1051).

Texas Statute:
2 Tex. Edu. Code § 33.006

https://statutes.capitol.texas.gov/Docs/ED/htm/ED.33.htm

"Nothing. . . exempts a school counselor from any mandated reporting requirements imposed by other provisions of law" (2 TEC § 33.006).

Both the Texas Administrative Code and the Texas Education Code require school counselors to report any suspected abuse or neglect in order to protect the student's health and wellness.

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Case Law
South Dakota Supreme Court Case
Appeal from the Sixth Judicial Circuit
Hughes v Stanley County School District (1999)
https://law.justia.com/cases/south-dakota/supreme-court/1999/432.html

*A school counselor did not report a student's claims that her father was abusing her. The counselor did not believe the student's claims and therefore did not make a report.
*The student's father sexually assaulted a neighbor child.
*The counselor was charged with failure to report.

Had the counselor reported the alleged abuse, another child would not have been abused. Cases like this illustrate the importance of reporting abuse or neglect.

(Hughes v Stanley Co. Sch. Dist., 1999)

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Civil Rights Act of 1964

Civil Rights Act of 1964, Pub. L. No. 880352, 78 Stat. 241 (1964). https://www.govinfo.gov/content/pkg/STATUTE-78/pdf/STATUTE-78-Pg241.pdf

This act states "all covered professionals who learn of suspected child abuse . . . must report that abuse" (Civil Rights Act, 1964).

School counselors fall under the umbrella of "covered professionals," and therefore and mandated to report all suspected child abuse and negelct.

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Eastland ISD Employee Handbook
Reporting Suspected Child Abuse

Local policy states
A. All employees are requited to report suspected child abuse per Texas Family Code § 261.001 (5 Tex. Fam. Code §  261.001).
B. Reports must be made in good faith.
C. Be aware of the warning signs.
D. Failure to report could results in a Class A misdemeanor and disciplinary actions by the State Board for Educator Certification.

(Eastland ISD, 2014)

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Analyze the Risk
A. Ask yourself: Based on the evidence, what is the likelihood abuse or neglect are occurring?
B. Ask yourself: What will the consequences be if I do not report?
C. Determine the severity of the risk if no report is made.

Evaluate the Risk
A. Understand the risks of not reporting suspected abuse or neglect.
1. More harm to the child or potential loss of life.
2. Counselor loses certification and faces possible prosecution.

Treating the Risk
A. Take action. Report any and all suspected abuse or neglect to the appropriate authorities.

(Horvath, 2023)

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ASCA Code of Ethics:
A.12.a--"Report to the proper authorities, as mandated by the state, all suspected cases of child abuse and neglect, recognizing that certainty is not required, only reasonable suspicion. School counselors are held to a higher standard regarding their absolute duty as a mandated reporter to report suspected child abuse and neglect" (American School Counselor Association, 2022).

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

This ethical code also says school counselors must report any and all suspected abuse and neglect.

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This assignment has allowed me to understand how connected laws, mandates, policies, and statutes are. As a first-year school counselor, most of my knowledge about mandated reporting comes from the ASCA model (American School Counselor Association, 2022) and Chapter 33 of the Texas Education Code (2 TEC § 33.002-33.007). This course has broadened by knowledge of how to conduct legal research so as to familiarize myself with other laws, statutes, and mandates that pertain to the role of the school counselor.

I appreciate how all the laws are connected. I more clearly see now how important it is to understand the laws and not just the ethical standards for my field. Understanding the laws will help me better understand how to fulfill my role as a school counselor and better serve my students and school.

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1. Know the signs of physical, sexual, and emotional abuse.

2. Know the signs of physical, medical, and educational neglect.

3. Know what your state's laws says about reporting (i.e. 48 hour rule).

4. Know what the ethical standards say about reporting.

5. Remember what could happen if you do not report (i.e. student endures more harm, student loses life, counselor loses certification and faces prosecution)

6. When in doubt, make the report.

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2 Tex. Edu. Code § 33.006

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

Civil Rights Act of 1964, Pub. L. No. 880352, 78 Stat. 241 (1964). https://www.govinfo.gov/content/pkg/STATUTE-78/pdf/STATUTE-78-Pg241.pdf

Eastland ISD. (2014). Eastland ISD 2022-2023 employee handbook. Retrieved May 10, 2023, from https://core-docs.s3.amazonaws.com/documents/asset/uploaded_file/1457243/EISD_Employee_Handbook_22-23.pdf

Horvath, I. (2023). Five steps of risk management process. Invensis Learning Blog. https://www.invensislearning.com/blog/risk-management-process-steps/

Hughes v Stanley County School District, (1999). https://law.justia.com/cases/south-dakota/supreme-court/1999/432.html

Investigation of Report of Child Abuse or Neglect, 5. Tex. Fam. Code § 261.001

Reporting Child Abuse or Neglect, Including Trafficking of a Child, 19. Tex. Admin. Code § 16.1051

TX. Const. sect. 19.

U.S. Const. amend. XIV.

US Department of Education (ED). (2010). An overview of the U.S. Department of Education. https://www2.ed.gov/about/overview/focus/what.html#:~:text=The%20U.S.%20Department%20of%20Education%20is%20the%20agency%20of%20the,implementing%20laws%20enacted%20by%20Congress.