Legal and Ethical Guide by

1. Professional Perspective/ Audience/ Topic

Yanneli_Bustos — 2023-12-12 00:34:10 UTC

Brown et al. (2017) emphasize maintaining school counselor and student confidentiality. Confidentiality is crucial and embedded within various ethical issues regarding student privacy, parental rights, or administrators/teachers requesting information. Nonetheless, it may be challenging for first-year counselors to differentiate between breaking or maintaining confidentiality.

The Texas Education Agency provides the Texas Model (2018), and the American School Counselor Association (ASCA) provides the Ethical Standards for School Counselors’ responsibilities and ethical duties. However, it does not explicitly state the rights of students regarding confidentiality, which can cause ethical concerns for first-year school counselors. Conducting ethical decisions from the field of education can be challenging and overwhelming for first-year school counselors due to limited experience and professional development. The ethical and legal guide educates first-year school counselors to conduct ethical decision-making.

2. Governing Agencies

Yanneli_Bustos — 2023-12-12 00:34:28 UTC

Federal Agency: The United States Department of Education (1979) is the federal agency that oversees educational policies for administrators, school counselors, and educators in education in the United States (US Department of Education (ED), n.d.). The federal agency provides and reinforces the president’s policies legislated by Congress to serve students in the United States to strive for success and student achievement. The president appoints the Secretary of Education to oversee the Department of Education and reinforce the policies and regulations within the federal education programs. The US Department of Education (1979) includes nine program departments such as the,

Institute of Education Sciences
English Language Acquisition, Language Enhancement and Academic Achievement for Limited English Proficient Students
Elementary and Secondary Education
Innovation and Improvement
Postsecondary Education
Safe and Drug-Free Schools
Special Education and Rehabilitative Services
Federal Student Aid
Vocational and Adult Education

State Agency: The Texas Education Agency (TEA) is a state government agency that leads and oversees PK-12th public education in Texas. The agency aims to provide public education services, including leadership services, guidance, and support (TEA, 2023). There is a chain of command within TEA. For instance, the Commissioner of Education oversees the public education system, including the chief deputy, deputy commissioner, associate commissioners, division directors, and agency staff (TEA, 2023). Within the TEA, the State Board of Education (SBOE) and the State Board of Educator Certification monitor and facilitate programs related to public education.

TEA implements and reinforces the Texas Administrative Code (TAC) for all Texas public school educators to comply with the state agency rules and regulations. The TAC includes 17 titles with subject categories for each corresponding section. The Texas Secretary of State provides the TAC online for the community. However, the school district’s policies enforce and interpret the TAC’s rules (Texapedia, 2023). Texas school counselors are responsible to understand and comply with the TAC. Failure to comply with the TAC can lead to consequences such as suspension or termination, depending on the severity of the incident.

Ultimately, school counselors, including all educators, must be aware of the federal and state agencies that oversee educational policies to promote student achievement and advocate for students’ and educators’ rights.

3. Federal and State Constitutional Laws

Yanneli_Bustos — 2023-12-12 00:34:58 UTC

United States Constitution: The Fourteenth Amendment, Section 1 states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (U.S. Const. amend. 14, § 1., pg. 34-35).

The Fourteenth Amendment aligns with the right to confidentiality and privacy and reinforces the state government to provide equal protection for anyone within the jurisdiction (Teach Democracy, n.d.). According to the Fourteenth Amendment, educators and school counselors must continuously advocate and support students’ rights. The students in the United States have a right (Your Right to Equality in Education | American Civil Liberties Union, 2005):

To receive an equitable education
Protection from discrimination based on race/ethnic background, economic status, sexual orientation, prejudice, or stereotypes
(U.S. Const. amend. 14, § 1.)

United States Constitution Link: https://www.senate.gov/civics/resources/pdf/US_Constitution-Senate_Publication103-21.pdf

Texas Constitution: Texas Constitution: Article VII, Section 1 of the Texas Constitution states, "A general diffusion of knowledge being essential to the preservation of the rights and liberties of the people, it shall be the duty of the legislature of this State to make suitable provision for the support and maintenance of public schools" (Tex. Const. art. 7, § 1., pg. 102, 1876).

The Texas Constitution abides by and reinforces educators in Texas to provide equitable public education for students. Therefore, Texas provides free public education for students prohibiting discrimination. Educators need to comply with federal and state laws to prevent facing legal consequences.

Texas Constitution Link: https://tlc.texas.gov/docs/legref/TxConst.pdf

4. Statue and Administrative Laws

Yanneli_Bustos — 2023-12-12 00:35:12 UTC

Federal Statute: The Family Educational Rights and Privacy ACT (FERPA) (1974) protects the privacy of student educational records (20 U.S. Const. § 1232g; 34 (CFR Part 99, 1974).

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

State Statute: The Texas Student Data Privacy Act (TSPA) (2017) limits online platforms, including websites and applications, from obtaining student information for school purposes. TSPA mandates the protection of student privacy that aligns with respecting students' confidential information (Student Data Privacy Act of 2017, Tex. Educ. Code. § 32).

State Statute Link: https://www.tasb.org/services/legal-services/tasb-school-law-esource/business/documents/student-data-privacy-third-party-online-service-providers.pdf

Federal Administrative Law: The Children's Online Privacy Protection Act of 2002 (COPPA) provides operations and platform requirements to protect children under the age of 13 privacy (15 U.S. Const. § 6501–6506). School counselors must be aware of providing consent for children to use specific online platforms.

Federal Administrative Law Link: https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter91&edition=prelim

State Administrative Law: The Texas Administrative Code Title 22, Chapter 465 provides the importance of maintaining information confidential and respecting patients' and clients' information (22 Tex. Admin. Code § 465.12). As per TAC, licensees must inform patients and clients of all information changes and abide by federal and state law when sharing confidential information without consent.

State Administrative Law 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=22&pt=21&ch=465&rl=12#:~:text=(g)%20Licensees%20may%20share%20information,of%20the%20patient%20or%20client.

5. Common or Case Law

Yanneli_Bustos — 2023-12-12 00:35:28 UTC

Eisel v. Board of Education of Montgomery County (1991) is a court case where the school counselor did not report nor notify the appropriate agencies about a student’s suicidal ideation that resulted in the death of a student. The common law on privacy emphasizes the individuals’ right to privacy and maintaining information confidential.

However, there are limitations based on maintaining information confidential explicitly dealing with abuse, neglect, suicidal ideation, or suicide in professional settings. For instance, the Texas Family Code § 261.101 states that educators are mandated reporters and must break confidentiality and report any suspected abuse or neglect to the appropriate agencies within 48 hours (Tex. Fam. Code § 261.101). Depending on the case’s severity, there are severe consequences if an educator fails to report suspected abuse or neglect, including misdemeanors, termination, suspension, or jail time.

Texas Family Code § 261.101 Link: https://statutes.capitol.texas.gov/Docs/FA/htm/FA.261.htm

6. Federal Regulation

Yanneli_Bustos — 2023-12-12 00:35:40 UTC

The Texas Education Code § 32.151 protects private student information and reinforces educators to comply (Tex. Educ. Code § 32.151). Therefore, any student information shared must not be directly linked to identify the individual. The mandated regulation protects student information, including (Tex. Educ. Code § 32.151):

social security identification
email address
physical address
discipline records
student educational records
special education data
criminal records

Nevertheless, school counselors must understand and be aware of mandated and federal regulations to prevent incidents that may affect students' education or face legal consequences for sharing confidential information.

Texas Education Code § 32.151 Link: https://statutes.capitol.texas.gov/Docs/ED/htm/ED.32.htm

7. Local Administrative Law/Policy/Rule

Yanneli_Bustos — 2023-12-12 00:36:04 UTC

Local policies can refer to a school district’s policy. The Texas Administrative Code provides the regulations and rules for school districts to interpret and reinforce. Therefore, school policies may vary throughout school districts. The Consolidated School District of Edinburg (CISD) reinforces the policy that states “student records are confidential and protected from unauthorized individuals,” meaning school counselors should not share any confidential information without consent unless it is within the limitations of confidentiality (ECISD Handbook, pgs. 44-45, 2023).

ECISD Employee Handbook Link: https://4.files.edl.io/bbc6/07/29/23/150554-797f73ff-84de-499e-bcb3-955015ada76d.pdf

8. Risk Management Strategies

Yanneli_Bustos — 2023-12-12 00:36:20 UTC

Risk management includes several steps that can facilitate the ethical decision-making process. However, there are specific factors that school counselors must be aware of when making an ethical decision. The following three risk management strategies can assist school counselors in conducting effective decision-making regarding ethical concerns.

School counselors should be aware of and understand the limitations of confidentiality.
School counselors should seek mentors' assistance or legal assistance to protect the students.
School counselors should be aware of the organization's policies and facilitate an ethical decision-making model to identify the risk, analyze, evaluate, and then apply the intervention necessary.

Brown et al. (2017) emphasize the importance of understanding and being aware of the federal and state laws to protect students' rights. As educators, it is essential to understand the right to privacy and the limitations of confidentiality to ensure student achievement and minimize students' harm.

9. Ethical Principle

Yanneli_Bustos — 2023-12-12 00:36:34 UTC

It is an essential ethical concern as the limitations of confidentiality can often save a student's life. For instance, if a school counselor meets with a student for group or individual counseling, the school counselor must comply with informed consent forms and explain the limitations of confidentiality. If the student discloses abuse, neglect, or suicidal ideation, the school counselor is mandated to report it within 48 hours for the child's safety.

The American School Counselor Association (ASCA )Ethical Standards for School Counselors (2022) provides the following policies for school counselors to comply with regarding confidentiality. Section A.2. (a-p) explains the responsibilities and limits of confidentiality for school counselors, including the importance of informed consent, protecting individuals' privacy, recognizing confidentiality obligations, and advocacy (ASCA, 2023). Therefore, school counselors must inform students and the school community about the importance of maintaining student information confidentiality but emphasize confidentiality's limitations. It is an essential ethical concern as the limitations of confidentiality can often save a student's life. For instance, if a school counselor meets with a student for group or individual counseling, the school counselor must comply with informed consent forms and explain the limitations of confidentiality. If the student discloses abuse, neglect, or suicidal ideation, the school counselor is mandated to report it within 48 hours for the child's safety.

ASCA Ethical Standards for School Counselors Link: https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

10. Personal Connection

Yanneli_Bustos — 2023-12-12 00:36:50 UTC

As a future school counselor, understanding the laws, policies, and regulations at the federal and state levels paves the way for advocacy. For instance, I learned how to read and interpret the rules or guidelines and apply them to education. As the years pass, it is essential to keep up to date with laws and regulations as they can affect a student's education, depending on the case, primarily if state laws do not support federal rules or vice versa.

Reading, interpreting, and analyzing laws can be conflicting and overwhelming but can ultimately make a difference in advocating or protesting educational rights and beliefs. Therefore, learning how to research federal and state laws provided an eye-opening experience, encouraging educators to understand students' rights to provide an equitable, safe, and inclusive environment that promotes student achievement and success. Ultimately, understanding federal and state laws can facilitate ethical decisions that minimize any harm to either party of conflict.

11. Best Practices for Compliance

Yanneli_Bustos — 2023-12-12 00:37:06 UTC

School counselors should monitor the policies, laws, or regulations at the federal and state levels.
School counselors should collaborate and seek assistance from a mentor, advisor, supervisor, or professional development to comply with ethical and professional standards.
School counselors should understand the ethical standards, professional standards, and competencies to comply with appropriate counseling practice.
School counselors should understand the limitations of confidentiality based on the local or organization's policies.
School counselors must comply with the state's mandated reporting responsibilities.
School counselors should advocate and ensure they comply with the laws and ethics within the counseling field.
School counselors should complete the appropriate steps and apply an ethical decision-making model to make ethical decisions.

12. References

Yanneli_Bustos — 2023-12-12 00:37:14 UTC

ASCA Ethical Standards for School Counselors - American School Counselor Association (ASCA). (n.d.). https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)

Brown, T., Armstrong, S. A., Bore, S., & Simpson, C. (2017). Using an Ethical Decision-Making Model to Address Ethical Dilemmas in School Counseling. Journal of School Counseling, 15(13), EJ1158281. https://eric.ed.gov/?id=EJ1158281

Children's Online Privacy Protection Act of 2002, U.S. Const. § 6501–6506

Eisel v. Board of Education of Montgomery County, 324 Md. 376 (1999), https://casetext.com/case/eisel-v-board-of-education

Family Educational Rights and Privacy Act (FERPA, 20 U.S. Const. § 1232g; 34. https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.htmlYour right to equality in Education | American Civil Liberties Union. (2005, September 14). American Civil Liberties Union. https://www.aclu.org/documents/your-right-equality-education

Student Data Privacy Act of 2017, Tex. Educ. Code. § 32

Tex. Const. art. 7, § 1.

Teach democracy. (n.d.). https://www.crf-usa.org/bill-of-rights-in-action/bria-7-4-c-education-and-the-14th-amendment#:~:text=While%20education%20may%20not%20be,denied%20equal%20access%20to%20schooling.

Texapedia. (2023, April 11). Texas Administrative Code. https://texapedia.info/law/administrative-code/

Texas Education Agency. (n.d.-a). About TEA. https://tea.texas.gov/about-tea#:~:text=The%20Texas%20Education%20Agency%20is,and%20support%20to%20school%20systems.

Tex. Educ. Code § 32.151

Tex. Fam. Code § 261.101

U.S. Const. amend. 14, § 1.

US Department of Education (ED). (n.d.-a). An overview of the U.S. Department of Education-- PG 1. https://www2.ed.gov/about/overview/focus/what.html#whatis

20 U.S. Const. § 1232g; 34 (CFR Part 99, 1974

22 Tex. Admin. Code § 465.12

2023-2024 employee handbook. (n.d.). https://4.files.edl.io/bbc6/07/29/23/150554-797f73ff-84de-499e-bcb3-955015ada76d.pdf