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Education and school counseling play crucial roles in students' academic and personal growth. The field of education covers a wide range of disciplines that aim to facilitate learning and development across all age groups, including formal schooling, higher education, vocational training, and lifelong learning opportunities. School counselors within the educational system provide vital support to address students' social, emotional, and academic needs. Counselors work within educational settings to offer counseling, guidance, and assistance to students on various issues such as academic challenges, career planning, personal growth, and mental health concerns. Collaborating with students, teachers, parents, and administrators, school counselors strive to create a positive and nurturing environment that fosters learning and development.

A legal guide on education and school counseling would target school counselors, educators, administrators, policymakers, legal experts, and other stakeholders in the education sector. The guide would address legal matters relevant to school counseling, including confidentiality laws, student privacy rights, mandated reporting obligations, and ethical standards.

The selection of this topic stems from the importance of legal compliance for school counselors to deliver effective student support while adhering to legal boundaries. Understanding legal requirements and regulations is essential for counselors to safeguard students' rights, handle legal issues effectively, and maintain ethical practices. Providing a comprehensive legal guide can equip educators and stakeholders with the necessary knowledge to make informed decisions and ensure adherence to legal standards in school counseling.

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Federal Law: Family Educational Rights and Privacy Act (FERPA)

20 U.S.C. § 1232g; 34 CFR Part 99

FERPA restricts the sharing of students' educational records and personally identifiable information without explicit parental consent, except for certain permissible disclosures in specific situations.

FERPA requires schools to protect student privacy by obtaining consent before sharing information outside of defined exceptions. This rule aligns with ethical principles promoting privacy and confidentiality in educational settings.

Failure to comply with FERPA could result in legal consequences and the potential loss of federal funding, emphasizing the importance of adhering to this law for both legal and ethical considerations.

Texas State Law: Texas Education Code - Student Records

Tex. Educ. Code Ann. § 26.009(b)

The Texas Education Code supplements FERPA by prohibiting educational institutions from disclosing a student's contact information without parental consent.

This regulation provides additional protection for details like email addresses, physical addresses, and phone numbers.

Emphasizing the significance of privacy, especially in situations involving safety and security, this state law prioritizes safeguarding specific data types.

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In the United States, school counseling is usually regulated by federal and state agencies, each with their own rules, guidelines, and standards. The Texas Education Agency (TEA) at the federal level has a major role in supervising education policies and programs. However, there isn't a specific federal agency solely responsible for overseeing school counseling. The Texas Education Code (TEC) provides an outlines the primary role of a school counselor as follows: to guide students in academic, career, personal, and social development. They contribute to a comprehensive guidance program, collaborate with parents, offer referrals, coordinate resources, interpret assessment data, conduct classroom activities, and mediate student conflicts (Texas Education Code § 23.006, p. 989-990).

The American School Counselor Association (ASCA) offers guidance and establishes standards for school counseling programs across the country. Many schools and districts follow ASCA's National Model framework to organize their counseling programs efficiently. Although ASCA lacks regulatory power, its suggestions play a significant role in shaping the field (2022).

At the state level, the regulation of school counseling shows significant variation. Each state delegates the responsibility of setting guidelines and prerequisites for school counselors to its education department or board. These regulations typically encompass processes for licensure or certification, ongoing educational obligations, and ethical guidelines that counselors must follow.

Navigating the realm of governing bodies and accountability in school counseling requires staying updated on federal policies as well as state-specific regulations. It is essential for counselors to grasp the expectations outlined by both levels of government to comply with regulations and deliver top-notch services to students.

Federal accountability measures often focus on broader education goals such as graduation rates, college readiness, and academic achievement. State agencies may supplement these with more specific guidelines related to counseling practices, such as student-to-counselor ratios, professional development requirements, and ethical guidelines.

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Statute:

House Bill No. 2087, also referred to as the Student Privacy Act, is among the various bills concerning data privacy and cybersecurity that the Texas Legislature approved in 2017.

The Student Privacy Act safeguards students' personally identifiable information when utilized with websites, online services, applications, or mobile apps for educational purposes (Tex. Educ. Code § 32.151).

The Act targets "operators," specifically those who are aware that their platforms are predominantly used for educational purposes and were created and promoted for such intentions (Tex. Educ. Code § 32.151).

Personally identifiable information (PII) or information associated with PII that is not publicly available and meets the following criteria according to the Tex. Educ. Code § 32.151:

Generated or provided by a student or their parent when using the operator's website, online service, online application, or mobile application for educational purposes.

Created by a school district or campus employee for educational purposes and shared with the operator.

Collected by the operator through the operation of the website, online service, online application, or mobile application for educational purposes, which can identify a student.

The Act gives examples of such information, which include discipline records, health records, biometric data, disabilities, food purchases, and geolocation information.

The Act restricts website, online service, online application, or mobile application operators from conducting targeted advertising based on information obtained for educational purposes.

Operators are not allowed to create student profiles unless it serves an educational purpose. Additionally, selling or renting any student's covered information is prohibited.

Administrative Law:

COPPA, which stands for the Children's Online Privacy Protection Act, is a federal legislation that places obligations on website and online service operators who gather personal data from children under 13. While COPPA mainly focuses on online privacy, its guidelines can be valuable in establishing protocols to safeguard student privacy in different scenarios, such as school counseling (Federal Trade Commission, 2013).

Under COPPA regulations, it is mandatory for entities to secure verifiable parental consent prior to gathering any personal details from children below the age of 13. This includes names, addresses, email addresses, phone numbers, and any other information that can be used to identify or communicate with a child.

COPPA mandates that covered entities must offer transparent and easily accessible privacy policies detailing their data collection methods. They should also establish processes for parents to examine and erase their child's information upon request. Furthermore, it bars these entities from linking a child's online involvement to disclosing excessive personal details.

Not adhering to COPPA can lead to severe consequences, such as fines enforced by the Federal Trade Commission (FTC), the body tasked with upholding COPPA.

Federal Trade Commission. (2013). Children’s Online Privacy Protection Rule (pp. 1–44). https://www.ftc.gov/system/files/2012-31341.pdf

Student and Privacy Act, H.B. 2087 (2017). https://www.legis.state.tx.us/tlodocs/85R/billtext/html/HB02087F.HTM

Texas Education Code § 32.151, p. 977-979

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The Protection of Pupil Rights Amendment, 34 CFR Part § 98(1984):

The Protection of Pupil Rights Amendment (PPRA) is a federal law enacted in 1978. PPRA governs the administration of surveys, analysis, or evaluations funded by the U.S. Department of Education that solicit information about students' beliefs or practices concerning various sensitive topics, including political affiliations, mental or psychological problems, sexual behavior and attitudes, illegal or self-incriminating behavior, religious practices or beliefs, and income (34 CFR Part § 98, 1984).

Under PPRA, schools must obtain written consent from parents before students are required to participate in any of these activities if they are funded by the U.S. Department of Education. PPRA also provides parents with the right to inspect any instructional materials used as part of these activities (1984).

The Protection of Pupil Rights Amendment, 34 CFR Part 98 (1984). https://www.ecfr.gov/current/title-34/part-98

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Brownwood ISD has designated the following items as directory information for School Sponsored

Purposes:

Brownwood ISD, Student Directory Information Notice Brownwood, TX 2022

Name, Address, Telephone Listing, Email Address, Photograph, Date/Place of Birth, Major Field of Study, Degrees, Honors/Awards Received, Dates of Attendance, Grade Level, Recent School Attended, Participation in Activities/Sports, and Athletic Weight/Height, Enrollment Status and Student Identification Numbers or Identifiers that cannot be used alone to gain access to electronic education records.

This would include District publications, website productions, press releases, or social media that is distributed by the Brownwood ISD Public Relations department.

If BISD does NOT have your permission to list your child’s name in district publications, no information will be listed in graduation commencement programs, awards programs, performances, etc. (Brownwood ISD, Student Directory Information Notice Brownwood, TX 2022).

Brownwood ISD, Student Directory Information Notice (Brownwood, TX 2022). https://www.brownwoodisd.org/site/handlers/filedownload.ashx?moduleinstanceid=5732&dataid=6808&FileName=English%20Student%20Directory%20Information%20Notice.pdf

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The legal and ethical liability related to confidentiality stems from mishandling or unauthorized disclosure of sensitive information, especially regarding student records and personal data. This liability is rooted in legal obligations set by statutes like the Family Educational Rights and Privacy Act (FERPA) at the federal level and state laws like the Texas Education Code and school policies.

Breaching confidentiality obligations can:

erode trust

harm relationships with students, parents, and other stakeholders, tarnish our organization's reputation

trigger regulatory scrutiny, fines, or sanctions.

To mitigate these risks, Brownwood ISD must adhere to pertinent confidentiality laws, enact robust data protection policies, train staff on confidentiality requirements, and establish monitoring and auditing mechanisms to ensure compliance.

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A middle school student named Sara arranges a meeting with me, the school counselor. In the session, Sara discloses her challenges with depression and thoughts of self-harm. She shares her fear of discussing these issues with her parents due to concerns about causing them worry or facing judgment.

As a school counselor, the primary responsibility is to ensure the safety and well-being of your students while respecting their confidentiality to the extent allowed by law and professional ethics.

Maintaining their confidentiality within legal and ethical limits is crucial. When faced with a situation like Sarah's, it's important to find a balance between her confidentiality and safety. The ASCA Code of Ethics emphasizes the duty of counselors to safeguard student information while also intervening when a student's safety is in jeopardy (ASCA, 2016).

Explaining to Sarah that while you respect her privacy, there are limits to confidentiality, especially when someone's safety is at risk is crucial. According to the ASCA Code of Ethics (2016), counselors have a responsibility to maintain the confidentiality of student information, except when disclosure is required to prevent clear and imminent danger to the student or others (ASCA, A.2.b).

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

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Throughout my academic journey, particularly in the realms of psychology and counseling studies, I have grappled with the intricate balance between confidentiality and ethical responsibilities. Delving into legal and ethical frameworks has provided me with valuable insights into managing complex scenarios, amplifying my understanding of the importance of upholding confidentiality within the profession. Recognizing the critical role of confidentiality has sharpened my ethical discernment and deepened my commitment to preserving the trust and well-being of individuals. This commitment has served as a driving force behind my pursuit of further education and training in the field of counseling.

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Regularly review and update school policies and procedures regarding confidentiality to ensure alignment with state and federal laws, as well as professional ethical standards.

Provide ongoing training and professional development for school staff, including teachers, counselors, and administrators, on the importance of confidentiality and their obligations under relevant laws and regulations.

Establish clear protocols for obtaining informed consent from students and parents regarding the sharing of confidential information, particularly in cases involving sensitive issues such as mental health or behavioral concerns.

Implement robust data security measures to safeguard student records and sensitive information, including encryption, password protection, and restricted access controls.

Foster a culture of trust and open communication within the school community, encouraging students to feel comfortable seeking support while also respecting their privacy rights.

Develop collaborative partnerships with external agencies and service providers, such as mental health professionals and community organizations, to ensure seamless coordination of care while maintaining confidentiality.

Regularly assess and monitor compliance with confidentiality requirements through audits, reviews, and feedback mechanisms, adjusting practices as needed to address any identified gaps or concerns.

Provide clear channels for students, parents, and staff to raise questions or report breaches of confidentiality, ensuring prompt investigation and resolution of any issues that arise.

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In the case of Sutliff v. Clifton Bd. of Education, the school counselor was suing the district because of anxiety and depression she felt was caused by the school district because of a confidentiality case that dealt with a student- H.W. H.W went to Sutliff during counseling hours and admitted to her that she had been sexually assaulted. Sutliff asked the student if the incident happened on campus and H.W.  said it had not. H.W. felt safe at home and the assailant did not live with her. Sutliff told the school principal- Doktor, who then told her she needed to report said incident to the Division of Child Protection and Permanency (DCPP). Sutliff felt uncomfortable with this and felt she would breach confidentiality because the incident took place between two minors and was not on school property. Doktor disagreed and pushed Sutliff to report the incident. After a meeting with the school board and superintendent, they were furious the incident wasn’t reported right away. The school board recommended the principal withhold the salary increase from the teacher, which was never carried through (Sutliff v. Clifton Bd. of Educ., 2023).

Sutliff felt anxious returning to school and ultimately resigned from her position.

This legal case highlights the significance of confidentiality and the need to address situations promptly. When uncertain, it is crucial to report the matter. In this instance, Sutliff was compelled to report by her principal, shifting the responsibility from Sutliff to the principal.