Field of Education: School Counseling

The Legal and Ethical Guide of Confidentiality can be used as a reference and guide for professional school counselors and administrators.

Perspective: As an educator and future professional school counselor, I believe confidentiality plays a vital role in how school counselors conduct themselves. A school counselor and all educators are bound by a code of ethics that ensures that they follow confidentiality. There can be times when a school counselor is unsure of if they are breaking confidentiality regarding student privacy rights. Furthermore, it is my perspective that a school counselor needs to stay up to date with changes to the ethics code and ensure that student information is confidential at all times unless legally permitted or a student expresses harm to themselves or others.

I chose this topic because confidentiality is an ongoing ethical dilemma for all school counselors. School counselors face confidentiality dilemmas every day of their job and if a counselor is unsure if providing certain information is breaking confidentiality, they may have already broken it before. Therefore, it is vital that all school counselors know the dos and don'ts of confidentiality.

• The Due Process Clause prohibits an individual from being deprived of life, liberty, or property without due process of law (U.S. Const. art. XIV, § 1).

• A school counselor is legally and ethically obligated to keep all student information confidential. The only time a counselor should legally and ethically disclose information about a student is when the safety, safety of others, and the student's well-being are at stake.

• Failure to uphold confidentiality per the U.S. Constitutional Law, can result in the counselor losing certification, legal action, loss of trust from students, reputation and credibility being tarnished, and even financial penalties.

Source: U.S. Constitution

Link: https://www.law.cornell.edu/constitution/amendmentxiv

• FERPA protects the privacy of student education records

• Gives parents/guardians and eligible students (18 years of age) the right to inspect and review student educational records (20 U.S.C. § 1232g; 34 CFR Part 99).

• Counselors have the responsibility to safeguard student records and the information they obtain during counseling sessions.

• Signed Written Consent from parents/guardians or eligible students to release student records

  
  

Source: United States Code & Code of Federal Regulations

Link: https://www.ecfr.gov/current/title-34/subtitle-A/part-99

Federal Administrative Law: The Privacy Act of 1974 is a federal administrative law that governs school counselors.

• The Privacy Act of 1974 focuses on the access, correction, limits, and safeguards for individual student records (5 U.S.C. § 552a).

• While the Privacy Act of 1974 is more for federal agencies, it however aligns with FERPA.

• It is an important federal law for school counselors to know and follow when it comes to confidentiality and student records whether it is with student attendance, disciplinary information, student data, and delegate information gained through counseling in the educational setting.

Source: United States Code

Link: https://www.govinfo.gov/content/pkg/USCODE-2018-title5/pdf/USCODE-2018-title5-partI-chap5-subchapII-sec552a.pdf

• A school counselor and principal were being accused of failing to report and investigate allegations that a student's step-father was sexually abusing the student and the student's privacy was broken when a board member discussed the situation with their spouse (D. Kan. 2003).

• The school counselor and principal were not found neglecting to report student abuse since the student did not speak to the school counselor about the sexual abuse and the counselor never told the student she would take care of the situation.

• The case shows how each state has different obligations when it comes to reporting student abuse.

• While Kansas believes that the school counselor did not have to report the sexual abuse a student had told their friends about, I believe that the school counselor should have reported it.

• As a school counselor, we must protect our students. Even if we do not hear about the abuse directly from the student, we can also investigate the situation and even pull the student in and ask the student one-on-one about the alleged abuse. Based on the conversation with the student, the counselor can decide the ethical and proper way to deal with the situation.

Source: Kansas District Court Case

Link: https://casetext.com/case/doe-v-unified-school-district-dkan-2003

The 19 Tex. Admin. Code §239.15 is the standard required for the School Counselor Certificate. The standard V.11 of the mandate states that all school counselors will adhere to the legal and ethical standards (19 Tex. Admin. Code §239.15 V.11, Revised 2017). While this mandate outlines all the responsibilities of a school counselor, it also ensures that counselors handle sensitive information appropriately by ensuring that all information is confidential and disclosed only when appropriate or is legally required to do so. The Texas Administrative Code helps counselors understand the importance of maintaining professional boundaries, and confidentiality in the school setting. Furthermore, guides counselors to know the local, state, and federal laws, and school/district policies to help protect and inform students and their families. A school counselor's job is to not only provide the students with a comprehensive counseling program that promotes their academic, career, social, and personal development but to also build trust. To build trust with students, they must feel like the information they tell the counselor will stay between them and the counselor. The counselor must ensure that their students know that all information is kept confidential unless they are a danger to themselves and others. The 19 Tex. Admin. Code §239.15 helps guide counselors to be an exemplary counselors for all students and maintain confidentiality.

Source: Texas Administrative Code

Link: 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=7&ch=239&rl=15

• San Angelo Independent School District policy for student records impacts the school counselors of SAISD confidentiality.

• The policy covers the disclosure of student records with and without consent.

• SAISD ensures that students' records remain confidential.

• Parents/Guardians or eligible students must provide the district with a dated and signed written consent for the district to release any personally identifiable information (Student Records Policy, 2023).

• The policy impacts confidentiality for SAISD school counselors by ensuring that they follow FERPA guidelines for all student information.

Source: SAISD Records Policy

Link: Student records policy. (2023). San Angelo Independent School District. https://pol.tasb.org/PolicyOnline/PolicyDetails?key=1139&code=FL#legalTabContent

• Confidentiality is a major ethical issue within school counseling that school counselors face daily. There are risk management steps that a school counselor can implement to help them be proactive in handling sensitive student information.

• The biggest and most proactive step a school counselor can take is to understand the laws and policies on confidentiality.

• School counselors can attend professional development and training on confidentiality and how to be proactive.

• A school counselor should also ensure that they are using informal consents, confidentiality agreements, and disclosure as other safeguards for confidentiality.

• By implementing these risk management steps, a school counselor can mitigate the risks associated with confidentiality and maintain the protection of students.

Importance of having Risk Management Strategies:

• There are potential legal liabilities for a school counselor breaking confidentiality. These can be lawsuits by students and parents/guardians, fines, and even legal sanctions against both the counselor and the school/district. Furthermore, when a school fails to comply with FERPA, it can face the potential of losing federal funding and accreditation, and individual employees can be fined (Muscad, 2022).

The American School Counselor Association (ASCA) is the code of ethics that all school counselors should follow and abide by. When it comes to confidentiality, the ASCA has several guidelines for school counselors to follow. The ASCA Ethical Code Standard A. 2, Confidentiality (2022) emphasizes the importance of maintaining confidentiality in the school counseling setting while putting extra emphasis on the counselor's duty to protect sensitive information that was gained during any interactions with students.

Ethical Code Item: A.2 Confidentiality

Citation: Asca ethical standards for school counselors. (Revised 2022). ASCA Ethical Standards for School Counselors - American School Counselor Association (ASCA). https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCAEthical-Standards-for-School-Counselors-(1)#A

Link: https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCAEthical-Standards-for-School-Counselors-(1)#A

As an educator, I have gone through many trainings about confidentiality. Through the many trainings and information, I continue to learn and grow when it comes to confidentiality. This will help me in my future as a professional school counselor. I have gained a better understanding of the standards and ethics for all educators at the federal, state, and local levels of law.

These connections have paved the way for my educational goals:

• I feel more confident in the Code of Ethics for Texas Educators, especially school counselors.

• I will be able to ensure that I uphold the Code of Ethics for confidentiality for a school counselor.

• I will be able to be an exemplary counselor for my students by being able to ensure that confidentiality is upheld.

Confidentiality is a vital part of ensuring that all sensitive student information and student educational records are not disclosed unless written and signed consent is provided by parents/guardians or eligible students or if a student's safety and the safety of others are at risk.

• Documentation and record-keeping an ethical decision-making strategies that can help school counselors ensure that they are upholding the ethical and legal standards for confidentiality.

• Have a system to ensure that all records are only accessible to proper personnel.

• Knowing and referring to federal, state, and local laws on confidentiality.

• Knowing and Referring to the school district's policies on confidentiality.

• Obtaining written and signed consent and disclosure statements before releasing student information.

• Understanding legal and ethical guidelines for responsibilities of a school counselor and confidentiality.

• Establishing trust and boundaries with students and parents.

• Continued Professional Development to learn more best practices for confidentiality.

• Tex. Const. art. I, § 9 states that individuals have the right to deny all unreasonable searches or seizures without a warrant or probable cause.

• The Search and Seizures Texas Constitutional Law can impact a school counselor when handling sensitive information about a student.

• The counselor is legally and ethically bound to keep all information shared confidential, this is protecting and respecting the student’s right to privacy.

• If a counselor were to break the Texas Constitutional Laws, they could face legal actions, lose others' trust, reputation be tarnished, financial penalties, and professional consequences such as loss of certification.

Source: The Texas Constitution Bill of Rights

Link: https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm#:~:text=10.,to%20have%20a%20copy%20thereof.

• The Tex. Educ. Code § 26.004 addresses the roles and responsibilities of the school counselor.

• It provides counselors with guidance on how to handle student information and maintain the professional standard of confidentiality while respecting student’s privacy rights.

Source: Texas Education Code

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

State Administrative Law: The Texas Administrative Code impacts confidentiality for a school counselor.

• 19 Tex. Admin. Code §239.15 states that school counselors will adhere to and model ethical, professional, and legal standards at all times.

• 19 Tex. Admin. Code §239.15 does not detail confidentiality, it encompasses school counselors to maintain confidentiality and ethical behavior across various aspects of their roles.

• Counselors understanding the ethical standards helps to guide them in making responsible decisions when dealing with confidentiality.

Source: Texas Administrative Code

Link: 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=7&ch=239&rl=15

Access to Student Records, Tex. Educ. Code §26.004. (Revised 2017). https://statutes.capitol.texas.gov/Docs/ED/htm/ED.26.htm

American School Counselor Association. (Revised 2022). 2022 ASCA code of ethics. https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)#A

Doe v. Unified School District, 255 F. Supp. 2d 1239 (Kan, 2003). https://casetext.com/case/doe-v-unified-school-district-dkan-2003

Equal Protection Rights and Due Process, U.S. Const. Amend. XIV §1. (1868). https://www.law.cornell.edu/constitution/amendmentxiv

Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (1974). https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html?src=rn

Family Education and Privacy Act of 1974, 34 C. F. R. Part 99 (1974). https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html?src=rn

Freedom of Speech and Press, Tex. Const. Art. I §8. (1876). https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm#:~:text=10.,to%20have%20a%20copy%20thereof.

Muscad, O. (2022). The ultimate guide to ferpa: Everything you need to know. Datamyte. https://datamyte.com/blog/guide-to-ferpa/#:~:text=Schools%20that%20fail%20to%20comply,FERPA's%20provisions%20are%20reasonably%20straightforward

Standards Required for the School Counselor Certificate, 19 Tex. Admin. Code §239.15. (Revised 2017). https://texreg.sos.state.tx.us/public/readtac%24ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=19&pt=7&ch=239&rl=15

Searches and Seizures, Tex. Const. Art. I §9. (1876). https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm#:~:text=10.,to%20have%20a%20copy%20thereof.

Student records policy. (2023). San Angelo Independent School District. https://pol.tasb.org/PolicyOnline/PolicyDetails?key=1139&code=FL#legalTabContent

The Privacy Act of 1974, 5 U.S.C. §552a. (1974). https://www.govinfo.gov/content/pkg/USCODE-2018-title5/pdf/USCODE-2018-title5-partI-chap5-subchapII-sec552a.pdf