I chose this topic because I believe one of the most difficult things to balance while being a school counselor is protecting student confidentiality, but at the same time being a mandatory reporter. I believe that respecting students' confidentiality is important, however, it is also vital that school counselors report if harm is happening for a particular student. This topic explores the importance of building trust with clients/students, while also protecting them and following legal and ethical guidelines.

In regard to student confidentiality, the federal level has one important law, FERPA, however, there is little information about protecting student confidentiality beyond that.

At the state level, FERPA is enforced due to the federal mandate, and there are more laws for schools counselors and schools within the Texas Education Code pertaining to student confidentiality.

U.S. Constitution Link

The 14th Amendment states, should not deny "any person within its jurisdiction the equal protection of the laws" (U.S. Const. amend. XIV). This amendment ensures that when looking at any laws, federal or state, ALL students are protected regardless of gender, race, religion, and/or background.

Texas Constitution Link

The Texas Constitution guarantees the establishment and maintenance of efficient public schools in Texas in order to preserve the rights and liberties of its people (Tex. Const. art. 7, § 1). This implies that the state will continue to create schools that are compliant with other laws and policies, and the state is working to maintain ALL schools in Texas.

Link to Texas Education Code

Here are a list of laws that apply to the topic at hand:

• §33.005 (2): The School Counselor should design the comprehensive school counseling program with a section designated to responsive services, meaning the school counselor would intervene if a student has a problem that puts them at risk (Texas Education Code, 2019).

• §33.006 (c): Nothing previously written in the Texas Education Code exempts the school counselor from being a mandatory reporter (Texas Education Code, 2021).

• §36.004 (b): A parent or guardian is entitled access to all records concerning their student, including but not limited to, counselor records, psychological records, and teacher/counselor evaluation records (Texas Education Code, 2017).

• §38.009 (b): "A school administrator, nurse, or teacher who views medical records under this section shall maintain the confidentiality of those medical records" (Texas Education Code, 1995).

• §38.351 (3): Intervention should be carried out for students at risk of suicide or "displaying early warning signs and a possible need for early mental health or substance abuse intervention" (Texas Education Code, 2023).

Link to Texas Administrative Code

• § 247.2 Standard 3.1: "The educator shall not reveal confidential information concerning students unless disclosure serves lawful professional purposes or is required by law" (Texas Administrative Code, 2018).

• § 247.2 Standard 1.7: "The educator shall comply with state regulations, written local school board policies, and other state and federal laws" (Texas Administrative Code, 2018).

• create a program that includes responsive services, which would include intervening if there is a self harming situation.

• Follow federal, state, and local jurisdiction on reporting.

• Keep confidentiality of students medical records, unless disclosing serves a lawful purpose.

• Carry out intervention if student is at risk of suicide.

• Give parents access to school records, which may include counseling records.

In this court case, Maria Grant, mother of Jason Grant filed a wrongful death action lawsuit against the Board of Trustees of the Valley View School District and the school counselor, Jean Owen (Grant v. Board of Trustees, 1997).

Jason Grant showed many symptoms of suicidal ideation and was seen by Jean Owen, the school counselor. Owen alerted the mother, but only expressed urgency to get him into the hospital for drug overdose, and did not mention his suicidal thoughts. On the way to the hospital, Jason tried to commit suicide and was unsuccessful, and the next day later passed away due to suicide. Suit was brought against the district and counselor on three different counts (Grant v. Board of Trustees, 1997).

• First, they should have exercised care for his safety and called for medical help, let Maria know of Jason's ideation, and followed through with a suicide prevention plan (Grant v. Board of Trustees, 1997).

• Second, "plaintiff pleads defendants' breach of an ordinary negligence standard" (Grant v. Board of Trustees, 1997).

• Third, failure to take precaution or notify parents was intentional and "constituted willful and wanton conduct" (Grant v. Board of Trustees, 1997).

The District and counselor were not held liable for any claims because:

• The special duty doctrine did not apply since he was in parental care at the time of his suicide (Grant v. Board of Trustees, 1997).

• The state of Illinois does not require schools to create or carry out a suicide prevention plan (Grant v. Board of Trustees, 1997).

• Schools are immune from ordinary negligence claims relating to mental health exams or diagnosis (Grant v. Board of Trustees, 1997).

• Since the counselor did suggest taking him to the hospital, that negates the claim that she was intentionally failing to act (Grant v. Board of Trustees, 1997).

FERPA 34 F.C.R. § 99.36 (1988)

• (a): "An educational agency or institution may disclose personally identifiable information from an education record to appropriate parties, including parents of an eligible student, in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals" (F.C.R., 1988)

FERPA 34 F.C.R. § 99.5 (1988)

• (a)(1): "When a student becomes an eligible student, the rights accorded to, and consent required of, parents under this part transfer from the parents to the student" (F.C.R., 1988).

The Austin ISD Board Policy Manual informs decision making within the Austin ISD School District. The manual serves as a guide for all staff to follow the policies set by the district.

Austin ISD Board Policy Manual FFB Student Welfare: Crisis Intervention:

• "The board shall establish a threat assessment and safe and supportive school team to serve at each campus of the district and shall adopt policies and procedures for the teams" (Austin ISD Board Policy Manual, 2022).

• Each team should:

  • Conduct a threat assessment

  • Report individuals if a harm to others or themselves

  • Refer a student for a mental health assessment and implement deescalation procedures

  • Before performing the threat assessment notify the parents of the student, and offer them an opportunity to participate in the assessment process.

  • After the assessment, results must be shared with the parent.

  • The team may NOT provide mental health services to the student (if under 18) without written consent from the parents (Austin ISD Board Policy Manual, 2022).

Possible things to document:

• The report that was made (if made by others document what was reported. If reported by the student, document what they told you)

• Threat assessment/mental health assessment

• Communication with parents: Time, duration, conversation, medium (phone, email, etc.)

• Safety plans

• Communication with administration or other parties involved if applicable

You should:

• Notify parents once you notice a threat assessment is necessary BEFORE performing it.

  • Allow parents to be involved in part of the process if they want (Austin ISD Board Policy Manual, 2022).

• After the assessment, share results with the parent (Austin ISD Board Policy Manual, 2022).

• Get written consent from parents to provide mental health services to the student. (This applies if the student is under 18)(Austin ISD Board Policy Manual, 2022).

The ASCA Ethical Standards state the school counselor should, “explain the limits of confidentiality in developmentally appropriate terms through multiple methods…” (ASCA, 2022, p. 2).

In explaining the limitations, you are ensuring that the student does not feel blindsided or betrayed if you do have to report something they told you. If student's don't know a school counselor is a mandatory reporter there could be extreme trust broken and you may no longer have a counselor/client relationship with them. With that in mind, communicating upfront and being honest is the best course of action.

ASCA Ethical Standards

In summary it states that school counselors should:

• understand mandatory responsibilities of their district and state

• explain limits to confidentiality to students

• keep all information confidential UNLESS you legally have to disclose it

• Prioritize protecting the student's confidentiality, however, that must balanced with informing parents in certain capacities.

• Collaborate with students and IF confidentiality does have to be broken, do so in the least intrusive way to the student.

• Communicate sensitive information through more personal contact rather than email or message (ASCA, 2022, p. 10).

1. Communicate limits to student confidentiality to students.

2. Document communication and action taken

3. Report students who are at risk of harming themselves and follow district protocol, which should also be aligned with state and federal laws.

4. Communicate with parents/guardians as necessary. If a student is at risk, parents must be notified.

5. If confidentiality must be broken, do so in the least intrusive way for the student.

6. Complete a risk or mental health assessment if a student is showing signs of self harm or suicidal ideation. Follow necessary district methods for this.

7. Consult with administration and/or mental health experts within the district for expert opinions if necessary and is of the interest of protecting the student's safety.

8. Stay informed on legal and ethical principles to guide decision making

Austin ISD Board Policy Manual § 34 C.F.R. (2022). https://pol.tasb.org/PolicyOnline/PolicyDetailskey=1146&code=FFH#legalTabContent

Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (1974).

Texas Administrative Code, Title 19, §247.2 (2018). 

Tex. Const. art. 7, § 1

Texas Education Code, Title 2, § 33.005 (2019). 

Texas Education Code, Title 2, § 33.006 (2021). 

Texas Education Code, Title 2, § 33.009 (1995).

Texas Education Code, Title 2, § 36.004 (2017).  

Texas Education Code, Title 2, § 38.351 (2023). 

U.S. Const. amend. XIV