This guide is intended for educators, administrators, new school counselors, school counseling interns, and any school staff that may interact with students and need to understand the critical importance of confidentiality within this setting. My goal is to provide a clear and accessible overview of how confidentiality is defined, how it is and isn’t upheld, and when it may be ethically or legally breached.

I chose this topic because confidentiality is a foundational component in the counseling relationship and is sometimes misunderstood by those outside of the counseling profession. As a current 5^th grade teacher, I have seen first-hand how educators or school staff may inadvertently pressure the school counselor to share protected or sensitive information and are unaware of the legality as to why the counselor must withhold this information. By educating all stakeholders in the school setting, we can promote a school culture that respects and understands student privacy while complying with ethical standards.

The U.S. Department of Education enforces federal laws like FERPA (Family Educational Rights and Privacy Act). FERPA protects the privacy of student education records.

Currently, the U.S. Department of Education still exists, but many changes have occurred with plans to eventually dismantle under Trump administration. If this occurs, federal laws and regulations will then be enforced at the state and local level.

The State Board for Educator Certification (SBEC) also oversee public education in Texas and govern professional standards for school counselors, teachers, and administrators. SBEC not only issues professional licenses and certifications, they can investigate ethical violations and enforce continuing training and education requirements to uphold certifications and licenses.

(U.S. Const. amend. XIV)

Link: https://constitution.congress.gov/constitution/amendment-14/

• Ensures public education is accessible to all students on an equal basis.

• Ensures due process, equal protection, and student privacy under the law.

• Provides a foundation for challenging a breach of confidentiality when student rights are violated.

(Tex. Const. art. I, § 19)

Link: https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm

• Ensures due process rights similar to the U.S. Constitution.

• Supports student rights to privacy and protection from arbitrary actions.

• Can be invoked when confidentiality is breached without legal justification.

  
  

20 U.S.C. § 1232g

Link: https://studentprivacy.ed.gov/ferpa

• Federal law that protects the privacy of student education records in public schools.

• States that parents have the right to access or request corrections to their child's educational records.

• Counseling notes can remain confidential under FERPA if they are considered "sole possession records."

• Schools must have written consent from a parent or guardian before disclosing personal identifiable information (with the exception of a health/safety emergencies.)

• School counselors must comply with FERPA when disclosing information to others or handling specific student records.

19 Tex. Admin. Code § 247.2

Link: https://www.law.cornell.edu/regulations/texas/19-Tex-Admin-Code-SS-247-2#:~:text=(3)%20Ethical%20Conduct%20Toward%20Students,(B)%20Standard%203.2.

• Protects student's privacy by outlining that educators/school counselors must maintain confidentiality of student information unless disclosure is required by law.

• While maintaining confidentiality, educators/school counselors have a duty to report if a child is in harm or being abused, harming themselves, or harming others.

Source of Law: Federal District Court Case (U.S. District Court for the District of Kansas)

(Doe v. Unified Sch. Dist. No. 233, 255 F. Supp. 2d 1239, D. Kan. 2003)

Link to full text: https://law.justia.com/cases/federal/district-courts/FSupp2/255/1239/2562555/

• A student named Barbara Doe and her mother contended that the school and school counselor negligently failed to report or investigate allegations that Barbara Doe's stepfather had sexually abused her. The mother also contended that the school district and principal negligently supervised and retained the school counselor (whom was not certified), who knew of these allegations to Barbara Doe. The defendants also invaded the student's right to privacy when a school board member discussed the abuse with his spouse.

• The idea of whether a school and its employees, specifically school counselors, owe a common law duty to investigate or report allegations of sexual abuse were explored with this case.

• School counselors are mandated reporters, and are legally obligated to report suspected child abuse to the appropriate authorities. School counselors have a legal and ethical duty to report, even if it means breaking student confidentiality. This duty is mandated by state law, federal guidelines, and ethical codes.

  
  

20 U.S.C. § 1232g; 34 CFR Part 99

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

• This federal regulation protects student confidentiality through FERPA, which protects the privacy of student educational records, including counseling-related documents.

• Counseling documents and notes are not considered education records and do not have to be disclosed to parents under FERPA.

• This federal regulation outlines the limitations of disclosing information without consent, such as significant threats to the health or safety of the student.

• School counselors must stay up to date and follow all FERPA regulations as they provide the legal foundation for maintaining confidentiality.

Link: https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

A.2.b - "Inform students of the purposes, goals, techniques, rules and procedures under which they may receive counseling. Disclosure includes informed consent and clarification of the limits of confidentiality" (ASCA, 2022, A.2.b.).

• School counselors must inform students about confidentiality and its limitations. This supports risk management practices by ensuring students understand what information may have to be disclosed if the need arises.

A.2.e - "Explain the limits of confidentiality in developmentally appropriate terms through multiple methods, such as student handbooks; classroom lessons; verbal notification to individual students; and school counseling department websites, brochures and social media accounts" (ASCA, 2022, A.2.e).

• School counselors must ensure students fully understand what limits of confidentiality means.

Referece:

American School Counselor Association. (2022). ASCA ethical standards for school counselors. https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

Source of Law: Local School District Policy

(San Saba ISD Board Policy FL (Local), 2024)

Link: https://pol.tasb.org/PolicyOnline/PolicyDetails?key=1058&code=FL#legalTabContent

• The local policy states that San Saba ISD complies with FERPA and ensures that personally identifiable student information is kept confidential. This information is only shared in accordance with legal exceptions and with the authorized personnel.

• The policy also outlines that counseling records taken by a certified school counselor are qualified as sole possession records, and are not considered part of the educational records under FERPA.

• Parents have the right to view their child's education records, but not counselor notes. Information will only be disclosed without the appropriate consent if it is necessary to protect the health or safety of the student, or if required by court orders, child abuse reporting laws, or law enforcement investigations.

• San Saba ISD's policy is aligned with FERPA and state laws to protect student confidentiality. School counselors must abide by their district policy, which outlines when confidentiality can be maintained and when it can/must be broken.

  
  

I now feel more empowered to uphold student rights and build student trust. These legal and ethical practices have given me a stronger sense of purpose and professionalism in my journey to becoming a future school counselor. I have a stronger respect for the legal framework that guides our field and understand the responsibility I will have to stay knowledgable and up to date on these practices and laws.

I have taken note that I will need to ensure I describe clearly what the limits of confidentiality are to my students and their parents, when the need arises. I have also noted that I need to implement a safe way to take counseling notes and how I securely store them. This will ensure I am mindfully making my students aware of my job as a counselor and that I am protecting their safety the best I can.