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Confidentiality and the Need to Know
1/1/2006
Carolyn Stone, Ed.D.
Sunday January 01, 2006
by: Carolyn Stone, Ed.D.

Section: Inside Insight


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Your assistant principal asks you for a list of all students in the school that you know are pregnant. He says he wants to notify these students about an alternative school for pregnant and parenting teens and encourage them to go there. Do you have any concerns about this request? Must you comply with this request?

This scenario describes an all-too-common ethical dilemma, challenging school counselors to use their best political and collaborative skills to demonstrate respect for school administrators’ authority, yet adhering to the counseling profession’s obligation to protect a student’s confidential and sensitive information. To simply refuse an administrator’s request outright is to set up a power struggle that will result in the counselor losing time, energy and, in the case of a few lawsuits, money.

What is the answer to these ethical dilemmas short of losing caring ethical counselors? There are no hard and fast rules. School counselors should make their decisions based on their history, relationship and trust with their administrators.

A good place to start this discussion would be to consider a 2002 California court case, Holt vs. Bellflower Unified School District. Mary Beth Holt, a school counselor, filed suit against the Bellflower Unified School District for wrongful termination after she refused to disclose the names of pregnant students at her high school. Holt wasn’t re-hired, and the district did not give her “case” for not rehiring her.

The allegations of the case are the vice principal ordered Holt assistant principal to disclose the names of pregnant students so they could be transferred to a school for pregnant and parenting students. The vice principal told Holt the reason for the request was because the school board didn’t want pregnant girls on the school campus, and board members had adopted a policy of transferring pregnant students out of the regular school program. However, many considered the alternative school to be inferior to the home school. Holt explained that the information was confidential, having been disclosed during private counseling sessions protected under California statute for school counselors and confidentiality. Holt contacted the state department of education about the situation and allegedly received verbal support. Her employers at Bellflower informed her that her employment would not be continued the following year and told her there was “no cause” for her firing.

Holt sued the school district, the principal, vice principal and each member of the Bellflower Board of Education. The appeal revealed that the Bellflower Unified School District didn’t initially plead its case either in the written complaint or in testimony before the court regarding its “need to know” this information so students could participate in the program for pregnant students. Therefore, the appeal court found that the case brought by Holt wasn’t heard accurately, and therefore, Holt was allowed to proceed further with her complaint, meaning the case went back to the lower court to be heard again. The results of the lower court’s decision are not published and may have been settled.

In cases such as these there are usually no “winners.” Even though the school counselor on appeal got her day in court, she and the school district both paid a high price. As school counseling professionals can we avoid such emotional and monetary cost to ourselves and our school districts and still maintain our credibility and ethical obligations to students?

Avoiding Conflict
It may be possible to avoid conflict with administrators by telling them you will consult with the students and seek the students’ permission to be included on a list to the administration. It would also be ethical to tell administration you will make certain these students know transferring is not mandatory but optional and, depending on the context of the situation, give your opinion on the academic program provided by the alternative school. Holt’s willingness to put her students above the system is admirable. However, we must remember we are employed by a system designed for academic instruction, and the rules are different than in a system designed exclusively for counseling. Confidentiality is much harder to respect with the competing interests in a school setting. In most all states, administration is entitled to information on students that is deemed “need to know” to optimize a student’s learning. Also, the Family Education Rights and Privacy Act (FERPA) significantly affects our work.

FERPA controls written information on a student. Not all student information collected and maintained by schools and school employees is subject to the access and disclosure requirements under FERPA. One of the five categories exempt from the definition of “education records” under FERPA is records made by teachers, supervisors, counselors, administrators and other school personnel that “are kept in the sole possession of the maker of the record and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.” Professional and legal interpretations tell us this means school counselors’ case notes are “sole possession records” and not educational records, which parents are entitled to see, if the records meet specific criteria: 1) a memory aid, 2) not accessible or shared in either verbal or written form, 3) a private note created solely by the individual possessing it and 4) include only observations and professional opinions. For more on item four, see the November/December 2003 edition of ASCA School Counselor.

The onus is on school counselors to figure out how to promote students’ autonomy while also letting administrators know we are listening and respecting their requests.

Things to Think About
When teachers or administrators request confidential information, consider the following points:

• Look for opportunities to interject information about your confidentiality imperative before it becomes an issue. The worst time to initially broach the subject of confidentiality is when an administrator or teacher comes to you with a request for confidential information. To deny a request with the words “That information is confidential” can set up a power struggle or may make the people requesting the information think you don’t trust them.
• Early on establish a trusting relationship with your teachers and administrators by letting them know you will immediately involve them in information affecting students’ safely and well-being. If you believe the person requesting confidential information would support and advantage a student with the proper information, then ask the student if you can share what the requester “needs to know.” Sometimes we may need to give out information without consulting a student, but this will be the rare exception. Be sure to promote a student’s autonomy, independence and trust; if at all feasible consult even the youngest children before discussing or breaking their confidences.

If you do provide information, then provide only the necessary information and nothing more. For example, if a student has witnessed domestic violence and comes to school the next morning traumatized and ready to fight it out with everyone in his or her path, it would help if the teacher understood the student has been through a great deal and may need extraordinary support and understanding from the teacher or administrator. We do not have to give the details of the domestic violence.

• Learn to deflect or address requests for confidential information in such a way that the teacher or administrator feels supported. Use sentences such as: “Is there a particular issue I can help you solve?” “Rather than have you labor through my notes, would it help you if I make a list of the most common problems students bring me?” “Can you and I talk about my professional opinions and observations about this particular student?” Be sure to stick to “need to know” information in the final example.
• Ask yourself if you are using confidentiality as a weapon to find a position of power over an administrator that perhaps you are at odds with over other issues.
• Give your principal a copy of the ASCA Ethical Standards of School Counselors and offer to highlight the most salient points of the standards. These standards are available on the ASCA Web site at www.schoolcounselor.org.

Teachers and administrators who are true professionals care about students and would not misuse confidential information. These professionals can be tremendous allies in support of students’ personal and emotional problems. Some students see their teacher as much as 35 hours a week whereas we may only be able to spend a few minutes each week with them. Sharing “need to know” information with skilled teachers and administrators can be a great support for students.

Carolyn Stone, Ed.D., is an associate professor and school counseling program leader, University of North Florida; chair of ASCA’s Ethics Committee; and president-elect on ASCA’s Governing Board. She can be reached at cstone@unf.edu. E-mail her with your thoughts on how you would respond to the administrator in this case study; results will be published on the ASCA listserv.