Confidentiality in Schools by Grace Henderson

1. Professional Perspective

ghenderson10 — 2023-02-26 22:56:08 UTC

This guide is being created to encourage other school counselors to utilize their tools at hand, while also considering the legal and ethical implications. According to the American School Counselor Association (ASCA), the role of a school counselor is to "protect the confidentiality of students’ records and release of personal data in accordance with prescribed federal and state laws and district and school policies" (ASCA, 2016, A.2.j.). Confidentiality will play a part throughout every aspect of a school counselor’s career. Whether it is academics, discovery and exploration of sexual orientation, social interactions, and familial relations - the need for confidentiality will be present. I chose this topic because confidentiality is an area I am still unsure of. There appears to be many gray areas in which to make a mistake and that idea is very nerve-wracking as a future school counselor. I wanted to make sure I did my best to learn about the different laws and policies that outline the appropriate times to maintain confidentiality and breaching of confidentiality.

2. Governing Agency

ghenderson10 — 2023-02-26 22:56:23 UTC

1. American Association of School Counselors (ASCA) - The school counselor “specifies the obligation to the principles of ethical behavior necessary to maintain the highest standards of integrity, leadership and professionalism” (American Association of School Counselors, 2016). This association was established through collaboration of school counselors, state school counselor associations, as well as school counseling district and state leaders in order to identify what ethical norms a school counselor will follow (ASCA, 2016).
2. Texas School Counselor Association (TSCA) - This was created to give Texas school counselors a place to grow individually and as a profession, and “to serve as a state organization concerned with the professional needs of school counselors in the state of Texas; to develop, implement, and/or foster interest in college/career development programs” (Texas School Counselors Association By-Laws, 2022, p. 3).
3. Texas Education Agency (TEA) - TEA (2018) is an agency established through the Texas State Government and has created the Texas Model for Comprehensive School Counseling Programs that outlines the requirements and standards of a school counseling program in Texas public schools.

4. U.S. Department of Education - the U.S. Department of Education is an agency enlisted with the responsibility to promote student achievement while also nurturing a standard of excellence and equality among American public schools (United States Department of Education, n.d.).

These governing agencies are responsible for maintaining laws and regulations in the world of education. Specifically in this case, rights to privacy in students.

3. Federal & State Laws

ghenderson10 — 2023-02-26 22:56:38 UTC

U.S. Constitutional Law: Confidentiality
According to the Fourteenth Amendment, citizens have the right to privacy. This impacts confidentiality in a school counselor setting because it prevents the government from infringing on citizens privacy rights
(U.S. Const. amend. XIV).

Texas Constitutional Law: Confidentiality
Tex. Gov't. Code § 552.001(a), (b) mandates confidentiality of student records. School counselors must maintain confidentiality of student records throughout the schooling process.

Tex. Gov't. Code

*This is enforced by the Texas Education Agency (TEA) and the school districts themselves.
*Though the fourteenth amendment does not address education specifically, it is still used in conjunction with other privacy laws to maintain students' right to privacy.

4. Statute/Administrative

ghenderson10 — 2023-02-26 22:56:54 UTC

State Level
1. According to the Texas Education Code (TEC), if a student tells the counselor something that requires reporting, the counselor has 24 hours to report it to the proper authorities (2 Tex. Educ. Code § 33.004). The important caveat here is that the subject “requires reporting.” To protect confidentiality, the requirement must be that the student is a danger to themselves or another person.

Federal Level
1. The Privacy Act (1974), serves as protection for a person's records by preventing knowledge of any kind of personal identifier. These identifiers could be name, social security number, or any other means of identification (The Privacy Act of 1974, 2017).
The Privacy Act of 1974

*Although the school counselor deals with primarily school environments, the federal mandates are imperative to the overarching laws of maintaining confidentiality.
*There are both state and federal laws that protect an individual's right to privacy.

5. Common or Case Law

ghenderson10 — 2023-02-26 22:57:14 UTC

STATE vs. Thorgerson - In this court case, the defendant, Kenneth Thorgerson was accused and charged with four counts of child molestation. Thorgerson molested his stepdaughter, who came forward 10 years after the fact. She told her high school boyfriend, brother, best friend, and finally the high school counselor, Lisa Carson. In this case, confidentiality was obsolete due to the nature of the report and the fact that Carson is a mandatory reporter for child abuse cases and cases in which the child is in danger of hurting themselves or someone else.

*According to ASCA (2016), “serious and foreseeable harm is different for each minor in the school setting and is determined by students’ developmental and chronological age, the setting, parental rights and the nature of harm” (A.2.e). In this instance, Thorgerson was convicted despite the lack of physical evidence or eyewitness testimony.
*The precedent set by this case was the fact that a case could be decided in the plaintiff’s favor without physical evidence or eyewitness testimony (State v. Thorgerson, 2011).
*School counselors must follow ethical and legal obligations when it comes to reporting information, especially from minors.

6. Federal/State Regulation

ghenderson10 — 2023-02-26 22:57:24 UTC

U.S. Federal Regulation: Texas Education Code: Confidentiality
According to the Texas Education Code (TEC), students' personal identifiable information is to be kept private, regardless of format or media presentation. Information covered by the TEC include anything provided by the student's parent through the use of a website, online service, application, or mobile use, as well as any information created by a school/district employee for use in school. Finally, student educational record, email, full name, home address and telephone number, including any discipline or special education records, grades, and demographics (Tex. Educ. Code § 32.151 et seq.).

Tex. Educ. Code § 32.151 et seq.

Texas Education Code

7. Local Policy

ghenderson10 — 2023-02-26 22:57:35 UTC

A school in Paris ISD has a confidentiality policy regarding the free and reduced lunch program. According to T.G. Givens Student and Parent Handbook, “we maintain strict confidentiality as to whether students participate in the program” (2022, p. 25).

*A school counselor will be responsible for helping students sign up for the free and reduced lunch program as well as provide any other resources involving lower income to families at the school.
*All of this will need to be done without breaching confidentiality and protecting the students’ privacy.
*This is a part of the Texas Education Code (TEC) as well. All information regarding the identification of a student will be kept private, regardless of the manner in which it is collected (Tex. Educ. Code § 32.151 et seq.).

8. Three Risk Management Strategies

ghenderson10 — 2023-02-26 22:57:53 UTC

1. School counselors (and districts in general) need to ensure that parents, students, and other school
staff are aware of the confidentiality requirements of the job. Teachers cannot request information
about students that falls under confidentiality concerns, and the same goes for parents and other
students as well.
2. Legally speaking, if confidentiality is breached, the school counselor could be facing a lawsuit with
potential jail time or fines, or any combination of the two.
3. On a daily basis, students are trusting the counselor to maintain their privacy. If that
confidentiality is broken, the student’s trust will be broken as well. This can happen even if
confidentiality is broken out of necessity due to potential self-harm or harm to others.

9. Ethical Principle

ghenderson10 — 2023-02-26 22:58:03 UTC

The American School Counselors Association (ASCA) provides ethical standards for school counselors to follow. For example, according to ASCA (2016), school counselors are responsible for raising awareness of the ethical
standards of confidentiality as well as the appropriate policies and procedures for the disclosure of student
information and releasing that information to other school staff and parents. A school counselor is also required to “keep information confidential unless legal requirements demand confidential information be revealed or a breach is required to prevent serious and foreseeable harm to the student or others” (ASCA, 2016, A.2.f.).

American School Counselors Association (ASCA) Ethical Standards

10. Personal Connection

ghenderson10 — 2023-02-26 22:58:22 UTC

My personal teaching philosophy has always included an "Open Door Policy," for my students. Because of this, I am told a lot of things by students to which most teachers are not privy. These topics have ranged from things as seemingly simple as a new relationship to exploring sexuality, to abuse at home or cyberbullying, even teenage pregnancy. The couch in my office has always gotten a lot of use. Through these experiences, I have had a lot of trouble navigating the waters of confidentiality. I have utilized resources around my schools like the school counselors, nurses, or administration to understand what needs to be shared and what does not. It has taken several years to be comfortable withholding information from people to maintain a student's confidentiality. One of the hardest situations I was put in involved a pregnant student of mine who did not want her parents to find out. We talked a lot about next steps and she knew her parents needed to know. To this day, I am unsure if I handled it appropriately. I held onto the information for several weeks, checking in on the student each day. She stopped eating. That was when I finally told her that I was uncomfortable holding onto her secret and that a parent needed to know. I gave her the choice of which parent I called and then made the tough call to her dad; tears were shed, questions were asked, and I know that I helped this student in the long run. I feel this was a bit of a gray area since I did not have physical proof of the pregnancy, but once it started affecting her physical health, it was time. This instance became a mandatory reporting issue because the student was at risk of causing harm to themselves. According to ASCA (2016), the school counselor is required to report "to prevent serious and foreseeable harm to the student or others. Serious and foreseeable harm is different for each minor in schools and is determined by a student’s developmental and chronological age, the setting, parental/guardian rights and the nature of the harm" (A.2.f.). I am now very careful and unafraid to ask the tough questions in order to determine the severity of the situation. Taking this knowledge into my future career as a school counselor will be crucial because the things I will encounter will involve private information and the decision whether or not to breach that confidentiality.

11. Best Practices

ghenderson10 — 2023-02-26 22:58:33 UTC

*Build a trusting relationship. This one seemingly goes without saying, but can be tricky to follow due to many reasons. According to Carlson (2017), "one way a counselor can build that trust is by not telling others - especially parents - every last detail of what was said in a counseling session" (p. 15, para. 2).
*Maintain the responsibility of mandatory reporting when a student is in danger of hurting themselves or someone else (Carlson, 2017).
*Stay up-to-date on ethical codes (Carlson, 2017).
*Use the ethical decision-making model (Carlson, 2017).
*If a breach in confidentiality is necessary, it is still important to "do everything in their power to limit the disclosure and educate the parties concerned about the benefits of maintaining student confidentiality" (Carlson, 2017, p. 16, para. 3).
*When working with diverse populations, the school counselor must remain culturally sensitive, especially when working with limited English proficiency families (Carlson, 2017).
*Take into consideration the minor's developmental and chronological age, as well as what the perceived threat is and where it is happening (Carlson, 2017).

References

ghenderson10 — 2023-02-27 17:27:17 UTC

*American School Counselor Association (2016). ASCA ethical standards for school counselors. Retrieved from
https://www.schoolcounselor.org/asca/media/asca/ Ethics/EthicalStandards2016.pdf

*Armstrong, S.A., Bore, S., Brown, T., & Simpson, C.. (2017). Using an ethical decision-making model to address ethical dilemmas in school counseling. Journal of School Counseling (2017),1-31. https://eds-p-ebscohost com.easydb.angelo.edu/eds/pdfviewer/pdfviewer vid=2&sid=a637a389-57e5-4dde-8b51 93c46199a673%40redis

*Greene, J.H., Griffith, C., Lambie, G.W., & Mullen, P.R. (2014). Social media and professional school counselors: Ethical and legal considerations. Journal of School Counseling (2014). 1-39

*Morrow v. Balaski, 719 F.3d 160 (The United States Court of Appeals, Third Circuit, June 14, 2013), https://www.casemine.com/judgement/us/5914f9dbadd7b049349a4ba1

*National Archives. 2017. The Privacy Act of 1974. [online] Available at: [Accessed 8 May 2017].

*Nuckols, G. & Steele, T. (2020). Technology trends in school counseling. Journal of School Counseling (2020). 1-31
Paris Independent School District employee guidelines for acceptable use of technology resources (2012).

*School Counselors and Counseling Programs, 2 Tex. Educ. Code § 33.002-33.007

*Sivis-Cetinkaya, R. (2018). Confidentiality of adolescent risk-taking behaviors: A survey of Turkish school counselors. Ethics and Behavior, 29(6), 459-472. DOI: https://doi.org/10.1080/10508422.2018.1469089
State v. Thorgerson, 172 Wn.2d 438 (The Supreme Court of Washington, August 25, 2011),
https://www.casemine.com/judgement/us/5914f9ecadd7b049349a50a8

*Technology-Based Instruction. Tex. Admin. Code. §70.1003. (2015).

*Texas Education Agency. (2018). The Texas model for comprehensive school counseling programs (5th ed.). Texas
Counseling Association. https://tea.texas.gov/sites/default/files/Pub_2018_Texas-Model_5th-Edition.pdf.

*Technology, Education, and Copyright Harmonization Act, 17 U.S.C. § 110b (2001). https://www.congress.gov/bill/107th-congress/senate-bill/487/text

*Tex. Educ. Code § 32.151 et seq.

*Tex. Gov't. Code § 552.001(a), (b)

*Texas School Counselor Association Division By-Laws- Section 3 (2022). https://www.txca.org/docs/TSCA_Revised_Bylaws_3-1 22_6.pdf

*T.G. Givens student and parent handbook (2022)

*The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. §1232g (1974). https://www.govinfo.gov/app/details/USCODE-2011-title20/USCODE-2011-title20-chap31-subchapIII-part4-sec1232g

*U.S. Const. amend. XIV

*United States Department of Education. (n.d.). Home. Home | U.S. Department of Education. Retrieved March 1, 2023, from https://www.ed.gov/

*US Department of Education (ED). (2021, August 25). Family educational rights and privacy act (FERPA). Home. Retrieved February 22,
2023, from https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.htmlCarlson, N. (2017). To tell or not to tell: The fine line between minors' privacy and others' right to know. ct.counseling.org (2017), pp. 15-17. https://www.counseling.org/docs/default-source/ethics/ethics-columns/ethics_october-2017_minor-privacy.pdf?sfvrsn=a25522c_6#:~:text=School%20counselors%20must%20keep%20in,by%20school%20or%20district%20policy.