From student safety and confidentiality to interactions with parents/guardians and administrators, school counselors encounter a range of legal and ethical issues every day. Here we’ve gathered some frequently asked legal and ethical questions to help guide you in your daily work. If students or staff have been victims of harassment or retaliation, they can formally file a complaint with the U.S. Department of Education, Office of Civil Rights.
Case Notes/Student Records
What do I do if I receive a subpoena for my testimony or case notes?
Let your principal know, and contact your district legal team to get advice on how to proceed. Work with the district legal team to get the subpoena quashed if possible. If you can't do this, then you are compelled to testify. When giving a testimony, provide only facts and omit any subjective information that may make room for doubt. Check your state statutes to see if your state give students privileged communication, which means they can render the school counselor incapable of testifying about their communications. In most cases, the courts are entitled to your testimony, and even in the states awarding privilege communication to minors, judges can exercise discretion if they need the information for the safety and health of the minor.
How do I know if my personal notes meet the criteria for case notes?
Parents/guardians have a federal right to see anything you write down or record that refers to their child so, as a general rule of thumb, keep your notes in a way you would be comfortable with a parent reading. Anything that refers to a student, even using initials, ID numbers or personal descriptors, if specific enough, is an educational record that belongs primarily to the parent/guardian. You can keep personal notes as a memory aid, but if anyone knows the notes exist they are then covered under the Family Education and Privacy Act (FERPA). According to FERPA, case notes are “sole-possession records” and not educational records if they: serve as a memory aid, aren't accessible or shared in verbal or written form, are a private note created solely by the individual possessing it and include only observations and professional opinions.
I've taken a job in another district. What do I do with my personal case notes? What notes should I keep?
Personal notes, as in those notes only you are aware of, are kept for the purpose of supporting the student through long-term knowledge of a student’s experience. If you are comfortable with your school counseling replacement, you may choose to leave the notes with the new school counselor. Case notes can always be purged except when there is knowledge that a subpoena is likely or the notes may be needed to help the courts convict a perpetrator such as in the case of child sexual abuse. Exercise judgment as to when notes need to remain and when they can be purged. If in doubt, consult.
Can school counselors take home educational records if asked to do so by an administrator?
There is no prohibition against teachers and school counselors taking home educational records, assuming the school counselors/teachers are school officials with legitimate educational interests, which they probably are. They should just be sure to protect the information they take home and ensure other people who are not school officials or parents don’t see the information.
When do I share information about students with parents/guardians and with administrators or other school staff?
Sharing information with parents/guardians is important when a student’s safety is in question. Notify administrators of any threats to self or others and when you've made a human services report or called the police. Sharing information with the remainder of your team, such other school counselors, psychologists or social workers, is helpful for consultation but also provides additional eyes on students in case you are out of the building when a student needs assistance. Sharing general information when you are concerned about a student – such as a student who has been struggling with a loss or depression -- can be helpful so teachers can notify you of changing behavior in class or with peers. Typically, just asking teachers to notify you if they see any behaviors from the student that are different from the student’s normal behavior is enough.
What do I do if my administrator asks for the names of the students I see and the reasons I’m working with them?
Prepare the information in a general way, using descriptors such as “academic,” “career” or “social/emotional” or in another way where personal information is removed. If administrators want to know specifics, explain FERPA’s “legitimate educational interest” and your ethical obligation to protect the information. If the information is relevant to building safety or school programming, it is important to share that with administration. However, remind administration the information is sensitive and that it must be kept confidential to preserve the student’s dignity and rights, as well as your relationship with the students.
My central office supervisor wants me to provide copies of the action plans we create for students who express suicidal ideation. Is that breaking confidentiality?
Because of the health and safety concerns, districts have the right to require school counselors to follow policy regarding providing copies of action plans for suicidal students. The confidentiality breach comes when these plans are indiscriminately kept without regard to when they should be purged, where they should be kept and if they are necessary beyond just the district’s need to ward off liability. The action plan is an educational record, but the plan should be kept outside the actual folder for certain eyes only and purged at the appropriate time.
What do I do if a student tells me she thinks she is pregnant?
It is important to know your state laws around this topic (i.e., age of consent, issues around pregnancy decision-making, etc.) as well as your school board policies and community norms. Find out how or if the student has confirmed her pregnancy. Other issues to consider include whether the sex was consensual and the age difference of both parties. Understanding the student’s relationship with her parents/guardians will provide insights for how you might advise the student to tell her parents/guardians.
Article: Negotiating Neutrality
What confidentiality considerations should I keep in mind during virtual individual and group counseling?
The same limits of confidentiality apply (serious and foreseeable harm) virtually as well as in-person, and you should discuss them with students before counseling begins. To limit others overhearing you and your students, you should be in a private space and use a headset if possible. Also be sure to use a district-approved, secure platform. Make sure the student understands you can only control confidentiality on your end. If a parent, sibling, family member, friend, repairman or anyone else is on their end, that person potentially can hear what the student is saying. The same goes for a group setting. You don't know who else may be in the room with other members, so encourage students to wear headphones for some privacy.
Do I need to provide notification to parents and families when a student is involved in a small group I lead?
School counselors want to build, not erode, credibility and maintain a strong working relationship with parents/guardians. This mission is forwarded when school counselors inform parents their child is to be a group member, as some parents/guardians may view small-group counseling as moving away from classroom instruction to a social/emotional focus; therefore, you should inform parents/guardians. This notification gives you a chance to explain the connection small groups have to academic success, and it gives parents/guardians a chance to opt out.
What are a student’s rights to confidentiality, especially in terms of sharing information with parents/guardians?
School counselors recognize parents’/guardians’ inherent rights to be the guiding voice in their children’s lives. School counselors inform parents/guardians of the confidential nature of the school counseling relationship with the student, while also recognizing that parents/guardians have legal rights to student information. FERPA defines who has access to students’ educational records and allows either parents/guardians or eligible students the right to review the records. School counselors are bound by FERPA, as well as state laws and district policies regarding student confidentiality.
What are a student’s rights in terms of confidentiality related to gender identity?
School counselors’ goal is to ensure the safety, comfort, and healthy development of all students, maximizing inclusion and social integration while minimizing exclusion and stigmatization. Requiring school counselors to “out” students could prevent school counselors from being a safe haven to listen to and support students. Students are in the best position to predict their parents’ reaction and to gauge when they are ready to broach the subject with them. It isn’t the school counselor’s role to “out” students, but to listen, support, and provide unconditional positive regard. Lawmakers have recognized this as well. Florida’s “Parental Rights in Education” bill, for example, “permits school personnel to withhold such information from a parent if a reasonably prudent person would believe the disclosure would result in abuse, abandonment, or neglect…”
Under what circumstances should I breach student confidentiality?
School counselors keep student information confidential unless legally required or if a breach of confidentiality is required to prevent serious and foreseeable harm to the student or others, or if dictated by school policy. Additionally, this breach of confidentiality is to be done after careful consultation with appropriate professionals, such as the school’s administrator, other school counselors, the school nurse, school psychologist, school social worker, school resource officer, and/or child protective services. Sharing information with parents/guardians is particularly important when a student’s safety is in question.
Confidentiality related to each student’s unique situation should be addressed on a case-by-case basis, using a student-centered approach that includes ongoing student and parent/guardian engagement (as appropriate) and school personnel with a legitimate educational interest per FERPA.
VIRTUAL: Is it necessary to get parent/guardian consent for individual counseling in a virtual setting?
Despite the complications of providing virtual school counseling services, it is important to adhere to the same ethical guidelines as you would in person. Some school districts have specific policies and procedures around parent/guardian consent. Best practice is to inform parents/guardians when you are providing individual counseling for a student over more than one or two sessions.
My school and district have an electronic management system and want me to include the names of the students I see and the reasons I am working with them. Does that break confidentiality?
It is in your best interest to maintain these records as well. And, if you keep the reasons vague enough, you are still protecting student confidentiality while also informing parents/guardians, teachers and/or administrators that the student is accessing you for support. Avoid using software programs without the technological capabilities to protect student information based upon currently acceptable security standards and the law.
Webinar: Professional Distance, Dual Relationships and Boundaries
I live in a small, rural community and have my LPC and run a private practice after school hours. Does it create a dual relationship if I see current or previous students in my private practice?
School counselors do not refer or accept a referral to counsel a student from their school if they also work in a private counseling practice.
My son will be a student at my school next year. What do I need to do to avoid a dual relationship?
If a dual relationship is unavoidable, the school counselor is responsible for taking action to eliminate or reduce the potential for harm to the student through use of safeguards, which might include informed consent, consultation, supervision and documentation. The best way to minimize any negative impact is to assign the family member to a different school counselor. If the school counselor is the only one in the building, then the school counselor must work to ensure there isn’t even an appearance of gaining any unfair advantages for the school counselor’s son.
My principal has asked me to teach a class and assign grades to the students. Is that permitted? Does that create a dual relationship?
Remind your administrator that teaching a class puts students at risk, as you will need to prioritize any crisis or suicidal ideation over the class you’re teaching, which could leave your classroom students unsupervised and potentially unsafe. Additionally, being responsible for assigning grades to students leads to a dual relationship and should be avoided to minimize potential harm to students.
On several student IEPs, the special education director has noted that weekly counseling be provided. This prevents me from fully implementing a comprehensive program. What do I do?
School counselors serve all students in their charge; it is unethical and professionally questionable when others define school counselors’ role as acting outside their scope of practice and serving a small percentage of their population to the exclusion of hundreds of other students in their caseload. You can support regular education and special education students in brief group counseling or behavior management programs, but a long-term approach is an inappropriate use of school counselors’ time.
Student Harmful Behavior
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My district recently purchased a software package that sends alerts to the school and district when students engage in potentially harmful behavior online. As the school counselor, I’m expected to follow up with all the students for whom alerts were received. What do I do and what are the liabilities?
If schools choose to use this type of software, it’s important to bypass the school and send alerts directly to the parents, guardians or family members if a student’s online activity yields red flags. This direct line of communication should also convey to parents the reason the software generated concern and possible referral resources. If the software developers continue to put educators into the loop instead of going straight to parents/guardians with alerts, the school district and its designees could face unneeded and unwarranted liability.
A student told me another student is expressing suicidal thoughts. What are my obligations?
If something prompts you to question a student about suicide, then you should talk to the parents/guardians as well. In-school suicide assessments are dangerous if relied on for conclusive answers. If a school district performs suicide assessments, these assessments should only be used to alert parents/guardians to the need to monitor their child’s safety and to get them professional mental health care to evaluate and, if necessary, treat the suicide risk. The standard of care for school counselors when informally assessing students who are identified as a potential suicide risk is to employ these assessments with extreme caution, with a follow-up assessment completed by a mental health professional who has been trained to assess the risk. School counselors who rely on an in-school suicide assessment for definitive answers are not only negligent but reckless in their evaluation.
A student told me she cuts herself. Do I need to tell her parents?
Self-harm can feel like a tricky situation because research is unclear of the intent or impact. Ultimately, cutting is a form of self-harm, and best practice and the ASCA Ethical Standards for School Counselors advise school counselors to inform parents/guardians so they have the opportunity to intervene. This helps ensure the student’s overall safety and can help the student get additional help outside of school.
What do I do if a student tells me she has heard another student brought a firearm to school?
As a school employee, your obligation is to the safety of all students. Inform administration and the school resource officer or police, and allow them to move forward from there.
What is the school counselor’s responsibility when a student may be a risk to self and a parent/guardian cannot be located?
In a brick-and-mortar setting, good practice is to keep the student with you until you can make contact with the parent. At times, the student may have to stay with you after school until the parent/guardian can be reached. If the school day has ended and all attempts to contact a parent have been unsuccessful, it may be necessary to contact law enforcement and/or child protective services to take custody of the student and keep the student safe.
If counseling is being provided remotely, it is critical to always know the physical address of your student’s location. In the event of risk of harm to self or another, the school counselor should attempt to keep the student online while simultaneously trying to contact a parent or guardian. In the event a parent or guardian is unable to be reached, law enforcement should be sent to the student’s location to ensure the student’s safety.
What do I do if my school district requires me to indicate a student's level of risk on suicide risk assessment paperwork?
It is impossible for a school counselor to know a student’s level of suicide risk with certainty, but some districts still require school counselors to document a student’s level of risk as low, medium, or high. Although it is important to comply with mandated district procedures, do not document or indicate to a parent/guardian that a student is low risk for suicide since you have no way of knowing with assurance that this is the case. The best approach is to consider noting “unable to determine” if a child falls under the low risk category on a district suicide risk assessment form. In addition, always notify a parent/guardian that you conducted suicide risk assessment on a student (at any risk level) and support parents/guardians in obtaining mental health services for the child.
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Webinar: Title IX Changes and Sexual Harassment
What do I do if a student tells me he was inappropriately touched by an adult several years earlier or by another student more recently?
Follow your school district’s protocol regardless of the amount of time that has passed. You still have a duty to report. If the student was touched by another student, go through a Title IX protocol. Contact your administration and local police department to investigate; your district may have an identified Title IX officer at the district level who can assist. In the case of young children, you may need to call child protective services. Do not ever question if the student is being honest. It isn’t a school counselor’s job to investigate, only to report and support the student.
Webinars: School Counseling in a Virtual Setting (Part 1)
School Counseling in a Virtual Setting (Part 2)
Can I use my personal cell phone to talk with students and families?
It is recommended to use school-issued devices. However, if the school has not provided you with devices, you may need to discuss the possibility of using your own devices. If it is decided that you will use your personal device, it’s important to develop boundaries around your working hours and communicate this to students and families. In addition, be sure you maintain these boundaries, such as not answering the phone at times you are not able to assist a student. It would be helpful to use away messages or other communications to direct students to where they may get help outside of your available working hours.
Do I have to use the computer the school issued me, or can I use my much superior laptop?
You must use the school-issued computer unless the district offers you an exception. Again, it is about safety and security. There are privacy settings that protect district computers that your personal computer may not have. Advocate for your equipment needs, but be careful not to go against school district dictates regarding equipment.
Webinar: Legal/Ethical Implications of the Hatch Amendment
Article: Protecting Pupil Rights
I want to require all students to complete a survey about any mental health problems, suicidal ideation, counseling needs, psychological problems and family mental health issues they may have. Are there any legal and ethical considerations in conducting this survey?
If a school district wants to require students to reveal personal information about themselves or their family, the school must first obtain written parental consent. The Protection of Pupil Rights Amendment (PPRA) requires schools receiving federal funding to obtain written consent from parents/guardians and non-federally funded schools to give notice before requiring minor students to participate in any “survey, analysis or evaluation that reveals information concerning the following areas:
- Political affiliations
- Mental and psychological problems potentially embarrassing to the student and the student’s family
- Sex behavior and attitudes
- Illegal, anti-social, self-incriminating and demeaning behavior;
- Critical appraisals of other individuals with whom respondents have close family relationships
- Legally recognized privileged or analogous relationships, such as those of lawyers, physicians and ministers
- Religious practices, affiliations or beliefs of the student or student’s parent
- Income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program”