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Confidentiality is a legal and ethical issue that affects all aspects of our public school system.  From protecting their students' academic and personal data to using discretion and making judgment calls when notifying parents about social emotional issues their children are struggling with; school employees are tasked with upholding laws and ethical decision making when dealing with students' confidentiality on a daily basis.  School counselors are at the forefront of upholding students' confidentiality.  School counselors are often the gatekeepers for guarding student’s personal information.

I chose confidentiality as my topic for this assignment because as an elementary school counselor who services a pre-kindergarten through second grade campus I am tasked with protecting students personal data and using discretion when dealing with students every day.  The topic of confidentiality in schools is of the utmost importance to parents, guardians, teachers, administration and all school stakeholders. We are all tasked with protecting our most vulnerable populations, our youth.  This presentation will provide valuable, pertinent information for all school stakeholders in regards to protecting student’s confidentiality.

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State Governing Agency: Texas Education Agency (TEA)

TEA is legally required to comply with the Family Education Rights and Privacy Act (FERPA).  FERPA was designed to protect student’s personal information and keep their identities safe.  TEA is responsible for making sure school districts are compliant with FERPA guidelines.

Federal Governing Agency: United States Department of Education

In 1974 Senator James Buckley sponsored the Family Education Rights and Privacy Act (FERPA).  FERPA laws are still used today as guiding principles for protecting student’s identities and personal data in school systems throughout the United States.

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Slide 3: Federal and State Constitutional Laws

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Slide 3: Federal and State Constitutional Laws

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State Constitutional Law

Texas Education Code chapter 26 states that parents may access a student's records. (TEC, 2021)

https://statutes.capitol.texas.gov/Docs/ED/htm/ED.26.htm

Parents are entitled to view all written records including but not limited to

Academic

Attendance

Disciplinary

Counseling

Psychological

Health and Immunization

Federal Constitutional Law

FERPA law requires that a student's personal information be protected by a school. (FERPA, 1974)

https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

Parent and eligible students (18 and older) rights through FERPA include:

Inspect and review educational records

Request correction to student records

Schools must obtain written consent before releasing student information with the exception of parties that have an educational interest in the student

School may only disclose directory information without consent

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Statute

The Empower Parents to protect Their Kids Act of 2023 states that schools can not withhold information relating to their child’s gender identity.  (The Empower Parents to protect Their Kids Act, 2023)

https://www.congress.gov/bill/118th-congress/house-bill/3462?s=2&r=94

Schools must comply with student confidentiality guidelines to receive federal funds

School employees must not withhold information about transitioning students or a students sexual identity from parents

Administrative Law

The Strengthening Protection for Domestic Violence and Stalking Survivors Act of 2023 protects the identities of victims of domestic violence abuse.  This protection extends to minors in the care of the protected.  (The Strengthening Protection for Domestic Violence and Stalking Survivors Act, 2023)

https://www.congress.gov/bill/118th-congress/senate-bill/321/text

Protects the identities of the children of domestic abuse victims that have relocated due to an abuse relationship

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Balderas v. Google

In the case of Balderas v. Google (2020), New Mexico’s attorney general sued Google alleging that G Suite for Education (GSFE), an educational Google product failed to obtain the proper parental release for student’s data.  The courts ruled in favor of Google, declaring that it was the responsibility of school districts to obtain parental consent.  (Balderas v. Google, 2020)

https://www.govinfo.gov/app/details/USCOURTS-nmd-1_20-cv-00143

Owasso Public Schools v. Falvo

In the case of Owasso Public Schools v. Falvo (2021), a mother sued a school district for allowing her student’s grades to be called out aloud in class.  The mother argued that this was a breach of the student’s personal data.

The court ruled in the school district's favor, stating that graded papers were not yet considered student records therefore were not protected.

https://supreme.justia.com/cases/federal/us/431/816/

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Federal Regulation

Children’s Online Privacy Protection Rule

Websites targeted at children younger than 13 must obtain parental consent before using children’s personal data.  (Children’s Online Privacy Protection Rule, 2013)

This regulation was created to protect children’s privacy on the web.

https://www.ftc.gov/business-guidance/privacy-security/childrens-privacy

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Slide 7: Local Administrative Law/Policy/Rule

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Slide 7: Local Administrative Law/Policy/Rule

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Local Administrative Law

Medical Care and Educational Services for Children in Conservatorship of Department of Family and Protective Services

An authorized person may give consent for a minor to receive treatment or services.  (Medical Care and Educational Services for Children in Conservatorship of Department of Family and Protective Services, 2023)

This includes a counselor or any health care provider.

https://statutes.capitol.texas.gov/Docs/FA/htm/FA.266.htm

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Risk Management Strategies

Management of Databases

Almost all schools across the state of Texas have transitioned to storing student data on online databases.  This makes the transition of student records transfer much easier from campus to campus within district and when transferring out of district.  Databases are convenient but not without risk.  Data breaches are a common concern for Texas schools.  Schools go to great lengths to ensure their students’ personal data is protected and safe.   In the event a data breach occurs:

First a school must validate the breach then assign a team to investigate and determine the scope of the breach.   (PTAC-CL, 2012b)

Next, stakeholders must be made aware of the breach.  This includes students’ parents and other school employees.  (PTAC-CL, 2012b)

After notification a determination must be made whether to contact the proper authorities.   (PTAC-CL, 2012b)

Finally, the risk assessment team must determine a plan moving forward to prevent future breaches.  (PTAC-CL, 2012b)

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Ethical Principle

Informed Consent

Texas school counselors adhere to the American Counseling Association’s code of ethics.  This code is referred to as the 2014 ACA Code of Ethics.

Informed consent is one of the greatest ethical standards when considering confidentiality in school counseling.

Prior to counseling with a student it is the duty and obligation of the counselor to make it known the limitations of their confidentiality.

Since school counselors most often counsel with minors, assent is given in lieu of consent and makes them part of the decision making process when appropriate.  (ACA Code of Ethics, 2014)

https://www.counseling.org/docs/default-source/default-document-library/ethics/2014-aca-code-of-ethics.pdf?sfvrsn=55ab73d0_1

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Slide 10: Personal Connection to Legal and Ethical Standards

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Slide 10: Personal Connection to Legal and Ethical Standards

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Personal Connection

Since I have taken on the role of school counselor at an elementary school I have found myself in ethical dilemmas involving confidentiality and its limits.  I serve a small, rural school district and have been a member of this community for 20 years.  The fact that I have dual relationships with many of our staff, students and their families puts confidentiality at the forefront of my priorities and obligations to my students.

Connection to the Law

Through my research and reference guides such as the 2014 ACS Code of Ethics and the Family Educational Rights and Privacy Act (FERPA), I have a firm understanding of the school’s obligation to keep student’s personal data confidential and information shared with me during visits with students private.  Laws such as FERPA were designed to protect students and keep their personal data private.  Without these rules and guidelines there would be breach of trust and school counselors could not effectively serve their students.

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Slide 11: Recommendations/Best Practices for Compliance

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Slide 11: Recommendations/Best Practices for Compliance

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Best Practices for Confidentiality Compliance

All written records may be subject to review.

Any written counseling records may be made available to parents or guardians upon request.  Written records are also subject to being subpoenaed in a court of law.

Dual relationships may compromise confidentiality.

School counselors, especially those serving in rural or small schools, often find themselves deeply involved in the community outside of school.  School counselors must avoid relationships that will impair their objectivity and professional obligation to the students they serve.

School counselors should always implement informed assent before counseling with minors.

By making students aware that there are limitations to your confidentiality you remain above reproach when making decisions that involve their safety.

School counselors limitation to confidentiality.

School counselors are bound both legally and ethically to uphold student confidentiality except in cases where the counselor fears for the student’s safety or the safety of others.

School counselors should be well versed in FERPA laws as they pertain to students.

FERPA law requires educators and school officials to grant access to student records and also protect a student’s identity.

Be familiar with your school’s local confidentiality policies.

My school district’s student handbook states that a child’s artwork, special projects, and photographs may be displayed within the school without parental consent, but the district must obtain parental consent before displaying any student’s work or photographs on the school’s website or other public forum.