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School Counseling is a State-by-State Practice
Carolyn Stone, Ed.D.
Wednesday July 01, 2015
by: Carolyn Stone, Ed.D.

Section: Inside Insight

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You are a veteran school counselor but have recently started working in a new district. You are finding that your job is quite different in this new state/district. You are continually trying to act as you did in your old district, but there is often push back from administration. The most recent fight has been over a directive to you to substitute failing grades for incompletes so students who have all the necessary credits but do not have the 2.0 grade-point average can graduate. This smacks of illegal and unethical behavior. Is it?

Schools are governmental agencies. The legal authority of schools is as diverse as the 50 states that enact laws to govern those schools. America has a “unique education system with over 2,000 individual operating systems called school districts, yet, also governed by the statutes of 50 different states. This complexity and multi-formity creates the basis for justice on which the entire educational and legal systems are founded. The constitution, state statutes and judge-made law (case law), administrative law (rules, regulations, applications, licenses, permits, available information, hearings, appeals and decision-making not usually found in statute) all combine to form the legal structure on which the public schools are based (Alexander & Alexander, 2012).

Changing failing grades to a designation of “incomplete” is not illegal if the district’s school board has approved this as part of the student progression plan for the district, making it as much a part of the student progression plan as any other policy, and it is not treated as an arbitrary act. State legislators give school boards authority to create their own rules and regulations, and once the regulations are established school boards must act in accordance with their own requirements or change them if they need to do so. For example, a school district that allowed first-offender drug users to seek counseling instead of discipline failed to follow its own policy when it expelled a first-offender student. The expulsion was overturned in court because the school district failed to follow its own policy (Camlin vs. Beecher Community School District, 2003).

Another shocking finding for you in this new district is how the district regards confidentiality. You have recently been subpoenaed to testify in a custody case. You believe your confidentiality to your student is to be preserved even though the student is the subject of the custody battle. You believe your administration is wrong in telling you that you don’t have confidentiality in this situation. Is the administration correct?

Generally speaking, school counselors are required to testify in court proceedings when subpoenaed. Although school counselors have confidentiality requirements, school counselors cannot deny the courts their testimony unless their students are given privileged communication in state statutes. Privileged communication is a creature of statute and only applies to court proceedings. Privilege is given to students in a few states and usually renders the school counselor incapable of testifying in court about the student’s confidential communications unless the student gives the school counselor permission to do so. In most states where statutes give privileged communication, there are many caveats about when a judge can decide that the needs of the state outweigh the right to privileged communication, and child welfare always trumps privilege and confidentiality. Approximately one-third of our states have statute language giving privilege to school counselors’ students in various degrees.

Even when there is privilege language in a state statute, the judge may be reluctant to extend the privilege to students of school counselors because of the age of their clients and the setting in which they work. Another problem with privilege is the definition of what constitutes counseling. The court’s tendency is to interpret privileged communication statutes for school counselors very narrowly. Counseling can take place in hallways, playgrounds, bus loading zones, virtually all over the school, but courts do not always recognize this as “counseling.” Currently, there are no court cases to give authoritative guidance on this matter. A school counselor may believe that an exchange with a student in the cafeteria is counseling, intending all communication in that meeting to be counseling, and thereafter the student tries to invoke privilege. However, the judge may or may not rule that privilege applies in the situation. Whereas, if an attorney and client exchange any information anywhere – the subway, sauna, tennis court – every utterance is privilege. For the school counseling profession, the interpretation is much more confined, with nearly every state statute offering exceptions to school counselor/student privilege to be interpreted as the judges see fit.

For states that don’t extend privilege communication to students, the school counselors have to try to find other ways to keep their students’ confidences. When the breach would involve other than child abuse, the school counselor should consult the school board attorney to see if the attorney can get a motion to quash the subpoena. A motion to quash makes the subpoena null and void and cancels the requirement to testify. The school counselor should inform the attorney who sent the subpoena that there is no information to help the case (if this is true). The school counselor should explain that his or her obligations are to the student. Cite ethical codes, which support the student’s confidences, and stay out of court if possible.

Kentucky and Indiana are two states that offer examples of privileged communication with exceptions. Check your own state statutes to see if school counselors in your state have privilege.

Kentucky: “A ‘counselor’ includes … A certified school counselor who meets the requirements of the Kentucky Board of Education and who is duly appointed and regularly employed for the purpose of counseling in a public or private school of this state …
(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of counseling the client, between himself, his counselor and persons present at the direction of the counselor, including members of the client’s family. …
(d) Exceptions. There is no privilege under this rule for any relevant communication. … (2) If the judge finds:
(A) That the substance of the communication is relevant to an essential issue in the case;
(B) That there are no available alternate means to obtain the substantial equivalent of the communication; and,
(C) That the need for the information outweighs the interest protected by the privilege. The court may receive evidence in camera to make findings under this rule” (Kentucky Revised Statutes, 2004, § 506).

Indiana: “A school counselor is immune from disclosing privileged or confidential communication made to the counselor as a counselor by a student… [Privilege] is not a ground for excluding evidence in any judicial proceeding resulting from a report of a child who may be a victim of child abuse or neglect or relating to the subject matter of the report or failing to report as required by IC 31-33” (Ind. Code Ann., 2004a, 2004b, § 31-33).

A school counselor in your new state was recently fired. A student told the school counselor she’d been abused the previous year by her mother’s boyfriend, who used to hold her head under water as punishment. But by the time the student talked to the school counselor, the boyfriend had moved out of their home. Although the student begged the school counselor not to tell anyone, the school counselor told her administrator, who did not report the abuse. In your mind the school counselor should have been off the hook once she reported it to her administrator, which is the way it is in your previous state. Are you correct?

A statute of limitations is a law that sets the time within which criminal charges or civil claims can be filed and after which one loses the right to sue or make a claim (Child Welfare Information Gateway, 2007b). The statute of limitations of child abuse in most states is between five and 10 years. However, for some states such as New Jersey, there is no statute of limitations (Aronson, 2002).

The legal determination of the statute of limitations, however, is not part of the duty to report to which school counselors must adhere. If a situation of abuse is reported, the school counselor must contact the authorities, which will then pursue the matter and make the necessary legal determinations. In your advocacy role, you can support this student through any legal proceedings, but you are not able to honor her request “not to tell anyone.”

Kentucky’s Supreme Court strictly adhered to the state’s reporting statute in Commonwealth vs. Allen (1998) by holding a teacher and a school counselor criminally liable for failing to report suspected child abuse to proper authorities, despite making a report to their supervisor. Two sixth-grade girls attending an elementary school in Kentucky reported to Betty Allen, one of the teachers, and Pamela Cook, the school’s counselor, that another teacher, Donald Mullins, sexually assaulted them earlier that fall. Both Allen and Cook then reported the matter to the school’s principal, feeling, in good faith, that doing so discharged their legal duty to report. Yet none of the three reported the suspected abuse to state or local law enforcement officials. In March 1993, another sixth-grade girl, along with several eyewitnesses, reported to an assistant principal that Mullins had recently sexually abused her. At that point, the school reported all three instances to the proper authorities. Shortly thereafter, the state charged the teacher and the school counselor with a Class B misdemeanor for failure to properly report suspected child abuse in violation of the Kentucky child-abuse reporting statute.

This case demonstrates that school counselors cannot abdicate their responsibilities unless the state statute specifically says they can. Wyoming statute states you must report the abuse to a designated agent, who will then be responsible for making the report. However, this statute does not relieve the person of his/her responsibility to make certain the report is made (Child Protective Services Act, Wyoming Code. § 14-3-2 (1999)). In Wyoming, as in many states, the teacher and the school counselor are just as responsible as the assistant principal to make certain a report is made. Most state statutes demand that the person who receives the first outcry must report the abuse, and in many instances this is the teacher. When the teacher tells you of the abuse, you should both report unless your state statute demands otherwise. Always err on the side of caution, and report the abuse even if you think someone else has.

Good-faith reporting is assumed when a professional reports child abuse. “The term ‘good-faith reporting’ refers to the assumption that the reporter, to the best of his or her knowledge, had reason to believe the child in question was being subjected to abuse or neglect. Even if the allegations made in the report cannot be fully substantiated, the reporter is still provided with immunity. There is a presumption of good faith. “All states, the District of Columbia, Puerto Rico, American Samoa, Guam, the Northern Mariana Islands and the U.S. Virgin Islands provide some form of immunity from liability for persons who in good faith report suspected instances of child abuse or neglect under the reporting laws. Immunity statutes protect reporters from civil or criminal liability that they might otherwise incur. This protection is extended to both mandatory and voluntary reporters" (Child Welfare Information Gateway, 2012, p. 2).

In your previous state a 15-year-old student living at home with her parents and her 21-year-old boyfriend is not a reportable offense. But at your new job, you’re told you must report this. Do you have to?

It depends on the state and their definition of age of consent as to whether or not a crime is being committed. In some states, the age differential of three or more years for minors makes sexual relationships a crime, such as a 14 year old and a 17 year old having a sexual relationship. Depending on the state, an adult 18 or older having a sexual relationship with a minor of certain ages is statutory rape; the age of both victim and perpetrator are variable depending on the state. Even when parents/guardians are aware and blessing a union, this is still considered statutory rape if one party is an adult and the minor is under a certain age. Some educators believe if parents/guardians know, then it is not our place to report illegal sexual relations. However, law enforcement agencies and Child Protective Services do not agree. To protect yourself, report if the ages by statute constitute statutory rape.

There is contradiction in the literature as to whether school counselors have to report statutory rape. This is one of those situations where a school counselor should err on the side of caution. Bernard James, professor of constitutional law at Pepperdine University, states, “All 50 states make of school officials mandated reporters of all factual and suspected conditions that compromise the safety and development of children, including rape. Reporting for all acts is a ministerial duty, not a discretionary one, with immunity for the reporting educator and a penalty for the under-reporter” (personal communication, September 2012). Further, James states, “The laws of the 50 states on child protection preempt the common law confidentiality exception of clear and imminent danger. It is a misunderstanding in the field of counseling to think that reporting statutory rape is a choice. In law, a codified statute controls the question under discussion and reshapes common law (as well as professional guidelines for a field of endeavor such as counseling). Reporters, including counselors, are given immunity purposefully to emphasize the point that discretion (and possible failure to report) is not to be exercised by the reporter. Only a federal law would place counselors above the law of the states on this matter” (personal communication, September 12, 2012).

To determine appropriate action for a specific situation, seek help from your school board’s legal counsel, Child Protective Services, sheriff’s office and/or police headquarters. School counselors are in a position of trust and must know their state laws and school district policies.

Carolyn Stone, Ed.D., is a professor at the University of North Florida and chair of ASCA’s Ethics Committee. She can be reached at cstone@unf.edu.