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Family Educational Rights and Privacy Act (FERPA) (1974)

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Family Educational Rights and Privacy Act (FERPA) (1974)

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Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g

Statutory Law

FERPA

FERPA outlines student privacy and under what circumstances students and their parents have an explicit right to privacy. FERPA also defines such circumstances in which this privacy may be broken, such as with other school officials who have an educational interest in the student and the information is pertinent to their well-being. Parents also have the right, under FERPA to request school records regarding their student. This would include records kept by the school counselor.

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Clash over parents' and students' rights at hearing about school counselor rules by Joe Lawlor (April 7, 2023)

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Clash over parents' and students' rights at hearing about school counselor rules by Joe Lawlor (April 7, 2023)

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Parents' Rights advocates intend to block a Maine Department of Education ruling that directs school counselors to respect student privacy.

The core concern is how to balance student confidentiality with parents' rights.

The exception to Maine's Department of Education ruling would be in cases where the student or others are in imminent danger of harm.

Students are less likely to confide in their school counselor if they feel that their conversation with the school counselor will likely be shared with their parents.

This would create a lacking of support for the students and could cause more harm.

Clash over parents' and students' rights at hearing about school counselor rules

Lee, K. (2023, April 7). Clash over parents’ and students’ rights at hearing about school counselor rules. Press Herald. https://www.pressherald.com/2023/04/06/rights-of-parents-and-students-clash-at-hearing-about-school-counselor-rules/

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1. Informed Consent - make certain that each student knows their rights while confiding in the school counselor. The student also needs to know under what circumstances the school counselor must break confidentiality.

2. Keep dutiful records of all required interactions, but where allowed be brief and keep in mind what information is pertinent to the record (ie. time and date of meeting and a brief description of the need addressed). All notes officially recorded can be summonsed.

3. Make parents aware of any circumstances that may cause harm to their child, unless there is reasonable thought that sharing this information might cause more harm than good to the student (ie. if the student has come out to you as gay or transgender).

4. Try to walk the student through having a conversation with their parents about the issue. Offer to be present if needed.

5. Abide by the law of reporting danger of harm to the student or others even if the school counselor has doubt that the presumed danger is a true threat. It is better to be safe than sorry.

6. Remember that school counselors' role only intends counseling to be brief, not long term. If a situation requires more lengthy or intensive care the school counselor is obligated to reach out to outside resources when possible.

7. It is best practice to have the parents as partners in their child's success. Be transparent where and when possible and involve the student in these discussions.

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Texas School Counselor Association

Texas School Counselor Association is a subsidiary of the Texas Counselor Association built as a guide to support school counselors implement their comprehensive school counseling program. This association utilizes the Texas Model as its backbone. Through their advocacy, TSCA supports the professional work of the school counselor including guiding through issues of confidentiality.

Home - Texas School Counselor Association. (n.d.). http://txca.org/tsca/

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Educators Code of Ethics, 19 Tex. Admin. Code § 247.2

Texas Administrative Code

Texas Educators Code of Ethics

Texas’ Code of Ethics for educators outlines appropriate behavior and actions of professionals in the public education system. This code includes what is considered private and confidential information. Also, it includes circumstances in which a breach of this confidentiality can be broken such as with a court order or to “serve a lawful educational purpose”.

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Burnet Consolidated ISD Employee Handbook: Employee Conduct and Welfare 

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Burnet Consolidated ISD Employee Handbook: Employee Conduct and Welfare 

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Burnet Consolidated ISD Standards of Conduct (2022) p.33.

Administrative Law

Burnet Consolidated ISD Employee Handbook

Burnet Consolidated ISD Employee handbook outlines the responsibilities of district employees. Their policies state that all employees must respect and uphold the privacy of their students and fellow staff. This policy also quotes Texas Education Code which enforces the responsibilities of school district employees when it comes to privacy and mandatory reporting to the appropriate authorities.

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Eisel v. Board of Education of Montgomery County (Md.)

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Eisel v. Board of Education of Montgomery County (Md.)

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Stephen Eisel v. Board of Education of Montgomery County, Maryland, et al, 324 Md. 376 (Md. 1991) 597 A.2d 477

Judicial Law

Eisel v. Board of Education of Montgomery County (Md.)

The 13-year-old daughter of the plaintiff entered into a murder-suicide pact with another 13-year-old student at Sligo Middle School. Another student was told about the pact by the decedent and informed the school counselors of the pact. After interviewing both of the 13-year-olds, who denied the pact, the school counselors found that the information was a non-issue and took no further action. The courts found that the school counselors were negligent in their actions for not communicating with the parents about their knowledge of the murder-suicide pact.

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Texas Health & Safety Code - Mental Health Records

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Texas Health & Safety Code - Mental Health Records

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Tex. Health & Safety Code § 611.0045

Statutory Law

Under certain circumstances, a school counselor may deny access to records requested by the parent of a student. These certain circumstances include if the "professional determines that release of that portion of records would be harmful to the patient's physical, mental, or emotional health". This allows continued protection of the student's safety and well-being and maintains that as the top priority in the counseling relationship.

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Tex. Edu. Code § 26.004 (b)

Statutory Law

Parental Rights

The Texas Education Code defines parental rights when it comes to their students in public or charter schools in Texas. This portion of the code identifies the records that a parent has access to upon request. Section (b) states that "a parent is entitled to access to all written records of a school district concerning the parent's child", including but not limited to counseling and psychological records. When recording counseling sessions with students processional and concise notes of the interaction will be sufficient in a pull of records, but anything pertaining to the student will be accessed.

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Maine Mom: School Wrong to Help, Hide Gender Transition by David Sharp (April 6, 2023)

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Maine Mom: School Wrong to Help, Hide Gender Transition by David Sharp (April 6, 2023)

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A Maine mom is suing the school counselor and the Great Salt Bay School District for hiding her child's gender transition stating that the school counselor encouraged the transition, provided chest binders, and the school was using a new name and pronouns for her child without the parent being informed.

The article also states that the school district has violated the mother's Constitutional Rights by not discussing any of these changes with her.

Civil Rights activists have argued that schools have an obligation to protect the privacy of their students.

On the other side of the argument, a 2022 Arizona law is aimed at ensuring that parents have the right to any information their student shares with teachers or counselors at the school.

This situation highlights the fine line that school counselors must walk in order to do right by their students, follow the laws as required for privacy, and protect their students from harm.

Main Mom: School wrong to help, hide gender transition

Sharp, D. (2023, April 7). Maine Mom: School wrong to help, hide gender transition | AP News. AP News. https://apnews.com/article/transgender-lawsuit-school-maine-8003272a6c8b1111010ba42bea2ceb8e

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American School Counselor Association - Confidentiality

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American School Counselor Association - Confidentiality

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School Counselor Professional Standards and Competencies

American School Counselor Association (2019). ASCA School Counselor Professional Standards & Competencies. Alexandria, VA: Author.

Administrative Law

ASCA Professional Standards and Competencies

The American School Counselor Association set the standards and competencies for which school counselors must abide. These rules specifically outline the mindsets and behaviors appropriate for school counselors to follow. ASCA states that students should be informed that situations may arise that compel a school counselor to disclose information to protect the student or others from harm.

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While it may seem simple to abide by confidentiality requirements as a school counselor, it can be detrimental to student services for the school counselor to know the exact parameters of such confidentiality. All school records can be accessed under specific circumstances. It is the responsibility of the school counselor to know how to handle each situation with care for the student. The student must be notified at the beginning of the counseling relationship about what possible circumstances might break their presumed confidentiality.

Over the last several years, mostly post-COVID, we have watched as our educational systems are under fire. Social and News Media have allowed the voices of the many to chime in on the responsibilities of educational professionals. School counselors must be vigilant and know their professional parameters. New and emerging topics related to what is discussed in the meeting with students and what is to be shared with parents come up often through these two mediums. Discussions regarding sexual orientation, preferred pronouns, suicidal ideations, and self-harm are very prevalent topics discussed in public, and opinions on the handling of these discussions vary from person to person and region to region.

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Confidentiality: When are school counselors obligated to break confidentiality?

As a school counselor, becoming educated on all aspects of the professional responsibilities associated with the role. One of the more important responsibilities that a school counselor will grapple with is the fine line of confidentiality when working with students. The school counselor must first establish an understanding of confidentiality with the student. This informed consent must include circumstances with which the school counselor must break confidentiality. Some examples include a court order, parental request, or threat of harm to self or others. This legal guide will help fellow school counselors better understand the circumstances for breaking confidentiality and why this must happen.