Legal & Ethical: Collaborating with Stakeholders: Cautionary Tales from the Courts
Author(s): Caroline Stone, Ed.D.
January 1, 2022
School counselors practice in a unique setting, with responsibility not only to students but also to other adults inside and outside the school. Although we owe students confidentiality, some instances (such as student harm to self or others) require us to collaborate with adult stakeholders. The test for collaboration is to always ask yourself if your actions will help students. Removing barriers to collaboration is best done by using your ability to build bridges, as well as depending on case law, state and federal statutes, and the ASCA Ethical Standards for School Counselors.
When collaborating, it rarely ends well to enter into a power struggle with administrators, teachers, parents or other stakeholders. Use your relationship-building skills, as well as facts and legal muscle to best serve students. Know your state’s statutes on child abuse and court case law to aid in collaboration. People listen to advocacy that comes from state legislation and federal agencies.
Collaborating Legally with Principals
Your principal doesn’t believe in classroom curriculum, a cornerstone of a comprehensive school counseling program. Despite frequent conversations with him, you remain in a limited role, unable to reach all students in your charge. Is it time to go over your principal’s head to fight for your program?
Building-level principals, with few exceptions, are school counselors’ direct-line supervisor. Therefore, they establish the school counselor’s role in their buildings to a large degree. In Woodlock v. Orange Ulster B.O.C.E.S. (2006/2008), a school counselor found herself in a conflict with her principal that ended with the loss of her job and a federal civil rights lawsuit. N.W., a school counselor, tried to advocate with her administrator for programs for her students without success. Eventually, she went over the principal’s head to the district’s pupil services administrator. A power struggle between the principal and N.W. ensued. The principal recommended against N.W. receiving tenure, and N.W.’s response was to file a civil rights suit in federal court alleging adverse administrative actions that violated her First Amendment freedom of expression. The Second Circuit Court of Appeals eventually ruled in the school district’s favor.
Negotiating with administrators can be complex, but school counselors must find alternate routes to collaborate and compromise without going into battle with administrators. Frustration with assignments and practices limiting your ability to provide a comprehensive program is understandable, but failure to understand the political climate and act in appropriate ways to advocate is just as damaging as not advocating at all. Effective change agents are school counselors who use finesse, diplomacy and data to navigate the political landscape and to determine the most astute way to get what is needed for students.
Your school psychologist routinely places you as a “related service” on individualized education programs (IEPs) to deliver weekly counseling (primarily social skills) that can last for years. You need your principal to intervene. How might you go about this?
School counselors want to support special education students, but school counselors’ services are being misused when they’re included in IEPs for regular counseling. Parents, principals, school psychologists, social workers and others who misunderstand the school counselor’s role will sometimes impose unrealistic expectations on school counselors to address clinical topics. Long-term therapy as dictated on IEPs is a growing phenomenon aimed at supporting a few students, and the fallout is the exclusion of a school counseling program for all students. The Education for All Handicapped Children Act of 1975 and the subsequent Individuals with Disabilities Education Improvement Act (IDEA) of 2004 are being misinterpreted in such a way as to hold school counselors responsible for counseling sessions being written into IEPs with very prescriptive parameters of how many minutes per week a student is to receive counseling, often for the duration of the entire school year or the active period of the IEP.
ASCA is collaborating with the U.S. Department of Education Office of Special Education Programs, which governs the Education for All Handicapped Children Act and IDEA, to address how the ASCA Student Standards: Mindsets & Behaviors for Student Success can help all students and that classroom curriculum is a way to support special education students while also supporting the rest of the student body.
The principal calls you to the conference room, and when you arrive, the child’s parents for whom you called in a child abuse report the day before are there with the principal. What do you do?
Federal and state laws are written to protect the educator’s role in reporting child abuse. The closing of schools during the pandemic underscored how vital educators are to child abuse reporting. State after state reported a significant decline in child abuse reports when educators didn’t have their eyes on students except virtually. For example, according to the Michigan Health and Human Services Department, reports dropped by 45% during the first month of virtual school from the same month the year before.
All states have laws requiring school counselors to report suspected child abuse, and all states provide immunity from criminal and civil liability in good-faith reporting. Educators shouldn’t have to face the alleged perpetrator and discuss or defend their report. A typical state statute says a child abuse report is confidential, the reporter is to remain confidential, the reporter is not to be held criminally or civilly liable for good-faith reporting, an employer cannot hinder the employee reporting, and the reporter’s employer cannot discriminate or retaliate against the reporter. Check to see if your state’s statute has these elements.
Regardless of the motive for the meeting, the principal has stepped on the intent of confidentiality for mandated reporters, who are to be protected and not subjected to having to justify their report or breach the victim’s confidence. Parents often can correctly deduce who called child protective services (CPS), but their suspicions shouldn’t be confirmed or denied, nor should you discuss an open case with the alleged perpetrator. According to the U.S. Department of Health and Human Services, “It is critical to remember that the educator should not reveal any information pertinent to the report made to CPS or law enforcement.” Administrators shouldn’t express or imply that a meeting with parents accused of child abuse and the person who reported the suspected abuse is expected or even desired.
As politically astutely as possible, the school counselor should request a private conversation with the principal, who then should be the one to explain to the parents that the meeting cannot go forward. If parents shift to asking for information outside the child abuse report, it is difficult to refuse, but don’t allow yourself to be cornered into listening to or discussing why the parents are innocent. The fallout when reporters’ confidentiality is trampled is to risk reticence in reporting. It is completely counter to the spirit of the law to require the reporter to face the alleged perpetrator.
Your principal wants to make the decision as to whether something meets the criteria of child abuse. The principal wants to build relationships with families by explaining to them what is considered unacceptable discipline of their child and avoiding calls to CPS. How should you respond?
Unfortunately, this scenario occurs all too frequently, leaving school counselors trying to work with their administrators while also meeting their mandated responsibilities to call in suspected child abuse. A principal cannot legally make this a school practice. Your path is straight and clear; you must report. However, the catch-22 is trying to protect the relationship with your principal while sharing court cases and the state statute. Share with your principal what has happened to other principals who didn’t call in child abuse. The list is long of those who have been fired or charged with felonies and misdemeanors. You can find details of a few cases by researching the names that follow. Many of these cases involved the principal protecting the reputation of the school instead of protecting children.
- Georgia principal Dority, Tapp Middle School and school counselor Yatta Collins
- Ohio principal King and school counselor Stephanie Winters
- Georgia principal Donovan
- South Carolina principal Idasa Cobb
- Nebraska principal Eric Nelson
- Florida principal Abdulaziz Yalcin
- Virginia principal Yusef Azimi
- California principal Lyn Vijayendran
Collaborating Legally with Parents/Guardians
You are providing diversity and anti-bullying curriculum lessons to include celebrating the diversity of students and their families. The lessons talk about how families differ, such as those headed by a single mom or dad or those headed by two moms or two dads. Your principal has allowed parents who have objected to opt their child out of your lessons, but you believe your curriculum should be a requirement, just as math and science are requirements. Can you make this case?
Two families in Lexington, Mass., objected to their elementary school children’s curriculum on celebrating diversity, which depicted a variety of family structures, including a family with two dads and one with two moms. In dismissing the ensuing lawsuit against the school district, the district court judge wrote, “Parents do have a fundamental right to raise their children. The Parkers and Wirthlins may send their children to a private school … . They may also educate their children at home… . However, the Parkers and Wirthlins have chosen to send their children to the Lexington Public Schools with its current curriculum. The Constitution does not permit them to prescribe what those children will be taught” (Parker v. Hurley, 2007).
In Morrison v. Board of Education of Boyd County, 2006, parents were not allowed to opt their children out of a court-ordered anti-harassment training that the parents viewed as violating their religious rights. The training was judge-ordered because of widespread anti-gay harassment in the school. U.S. District Judge David L. Bunning wrote that students and staff have no religious right to opt out of such training, since the training did not force students to change their religious views.
Advocate that your curriculum be a requirement by using the ASCA Student Standards: Mindsets & Behaviors for Student Success, the ASCA Ethical Standards for School Counselors and The School Counselor and Equity for All Students position statement to show how you are adhering to your ethical imperative to help all students develop the mindsets and behaviors of productive citizens who are willing to embrace the differences in others.
School counselors respect the rights of parents/guardians to ask questions about curriculum work, but it is really up to the school district/administration in collaboration with the school counselor to determine if it is imperative to the overall well-being of all students for each child to participate in the lessons. It becomes a more difficult decision to refuse a parent/guardian request when it involves value-laden issues; therefore, securing administration support ahead of the lessons is a critical step.
The pandemic has raised more concerns about your students’ mental health, so you have decided to require all students to complete a survey about depression, suicidal ideation and any psychological problems. Are there any legal and ethical considerations in conducting this survey?
The Protection of Pupil Rights Amendment (PPRA) is a federal law that expressly 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
If the survey isn’t required but asks questions about one of these eight areas, then an opt out or passive parental permission is acceptable. If the survey doesn’t ask anything under the eight protected categories and isn’t required, then parents don’t need to be notified or opt out unless the survey was created by a third party. In Fields v. Palmdale School District, Ninth Circuit, 2005, the school system also won in court. The school had informed parents of a voluntary and anonymous survey but failed to disclose the sexual nature of some of the questions. In C.N. v. Ridgewood, Third Circuit, 2005, the school system prevailed. A parent and her three children claimed a survey was involuntary and not anonymous but couldn’t prove the claim.
PPRA refers to surveys, not individual counseling. School counselors can ask any questions about mental health with an individual student if there is a reason that triggers these questions, such as a peer report that their friend is considering suicide. When feasible, it’s appropriate to obtain written permission from parents/guardians in advance of asking their child about suicidal ideation.
Screening activities also carry consent and notification requirements. Districts must explain that the tool can help identify if the student has a social/emotional challenge and let parents know they will be notified if any concerns are revealed on the screening instrument. Parents/guardians must know the instrument is completely voluntary.
Collaboration with Other Stakeholders
The bus driver calls you to tell you one of her normally boisterous students is withdrawn and staring blankly out the window. What do you do?
School counselors can peel away the layers to try and determine if the change in a child’s behavior is related to adverse childhood experiences (ACES). For example, witnessing domestic violence can result in emotional difficulties similar to those of children who are direct victims of abuse and is reportable as child abuse in 24 states. The Department of Justice is but one of dozens of resources to help school counselors find ways to support children who witness domestic violence. Laws aside, the school can become a
safe haven for children whose world is collapsing due to domestic abuse.
Student homelessness is another issue school counselors often come across. School counselors and other educators can rely on the McKinney-Vento Homeless Assistance Act for help. This federal act protects the right of homeless children and entitles the family to remain in their home school with transportation being furnished from their temporary housing.
Bullying may also lead to students exhibiting different behavior than usual. All 50 states have anti-bullying legislation. Additionally, the Office of Civil Rights (OCR) makes bullying a civil rights violation if it is based on race, color, sex, national origin or disability. Statutes protecting a student’s civil rights include:
- Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color or national origin
- Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex
- Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of one’s disability
- Title II of the Americans with Disabilities Act, which also prohibits discrimination on the basis of one’s disability
Community violence; living in warlike conditions; terrorism; racism; fears of the undocumented; child abuse; parental incarceration, divorce or separation; the overidentification of black males for emotionally handicapped services; and many other instances all contribute to ACES.
School counselors skillfully negotiate their collaboration with partners in education by using their legal and ethical imperatives. The dividends go to the student. “If you want to go fast, go alone. If you want to go far, go together.” – African Proverb.
Carolyn Stone, Ed.D., is a professor at the University of North Florida and the chair of ASCA’s Ethics Committee. Send your ethical questions to email@example.com.