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The Courts and Academic Advising
Carolyn Stone, Ed.D.
Saturday November 01, 2014
by: Carolyn Stone, Ed.D.

Section: Inside Insight

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Ryan, a talented basketball player, was enticed to your school from out-of-district by the basketball coaches and his own interest in being part of a winning team. The transcript he presented to his new school counselor had course titles and descriptions that were not offered at his new school. The school counselor did her due diligence, and matched Ryan courses as best as possible. The summer after graduation Ryan learned he did not have enough English credits for NCAA eligibility. The matched course was not on his new school’s approved list for NCAA courses. Is the school district and/or school counselor liable?

It has been more than a decade since we first learned about the court cases Sain vs. Cedar Rapids Community School District (2001) and Ryan Scott vs. Savers Property and Casualty Insurance Company (2003). Where are we today regarding academic advising and the courts? Has much if anything changed in the decade since Sain and Scott? Provided is a brief recap of the Sain and Scott cases followed by a dissection of the dispositions of the cases, the courts and the current landscape for academic advising, as well as implications for school counselors.

In his senior year, Bruce Sain was awarded a five-year basketball scholarship to Northern Illinois University but lost his National Collegiate Athletic Association (NCAA) eligibility to play when his senior English was changed to technical communications, a course not on the list of classes his high school submitted to the NCAA for eligibility. Sain and his high school district requested a waiver from the NCAA, but it was denied. Sain lost his scholarship, and his family filed suit citing the school district and the school counselor, Larry Bowen, as guilty of negligence when Bowen changed Sain’s schedule and failed to submit the course, technical communications, to the NCAA for approval.

The suitability of the course was not at issue, since technical communications had been approved for other schools as a core English course. The problem was that it was not on the school’s submitted list to NCAA Clearinghouse. The trial court fell in line with dozens of previous cases, rejecting the notion that school counselors owe a duty to a student to give competent academic advice. On appeal, the Iowa Supreme Court found that the claim of “negligent misrepresentation” possibly had merit and should not have been dismissed by the lower court but deserved a jury trial. Justice Mark Cady of the Iowa Supreme Court in finding that the case had merit wrote for the 5-2 majority that school counselors could be held accountable for providing accurate information to students about credits and courses needed to pursue post-high-school goals. The erroneous advice given by the school counselor was equated to negligent misrepresentation in professions such as accounting, the law and others whose businesses require they give accurate and appropriate information.

Justice Linda K. Neuman, speaking on behalf of the minority vote, wrote that the Iowa Supreme Court’s decision “spells disaster for the law,” explaining that the decision would open the floodgates and could be applied broadly to students in a variety of situations and not just athletes who need counsel on NCAA rules. The dissenting justices argued that the long-standing tradition of the courts’ refusal to interfere with the student/school counselor advising relationship should have been respected even in this case and that the lower court dismissal should have remained in force. Neuman noted that the decision exalts logic over experience; it might appear logical that school counselors should give correct advice, but the reality of the expectations placed on school counselors makes this logic impossible. School counselors cannot have a command of everything there is to know about colleges and universities, admissions requirements, NCAA rules, financial aid and scholarships and a multitude of other facts that change daily. Ultimately, the Sain case settled out of court. There was no jury trial, and the settlement is not published. However, many have written that had Larry Bowen gotten his day in court would have been exonerated.

Ryan Scott vs. Savers Property and Casualty Insurance Company (2003) made its way to the Supreme Court of Wisconsin. Scott, a talented hockey player, earned a four-year scholarship to play Division 1 hockey for the University of Alaska. Allegedly, Scott’s school counselor had erroneously advised him that broadcast communication was an NCAA-approved course, and Scott was declared ineligible for an NCAA student-athlete scholarship. The family sued maintaining that the school counselor was negligent in advising Scott, and the district violated its legal obligation to provide their son with competent school counseling services. The negligence claim hinged entirely on whether the district was immune from liability for negligence under Wisconsin’s governmental immunity statute.

Governmental immunity has its roots in the ancient principle of sovereign immunity, meaning you cannot sue the king, who can do no wrong. Governmental immunity was extended to governmental entities to protect them from lawsuits while performing a publicly funded public service. All states have variations of governmental immunity, which outlines monetary limits and exceptions. Find your state statute at: www.ncsl.org/research/transportation/state-sovereign-immunity-and-tort-liability.aspx.
State Supreme Court justices have expressed frustration that governmental immunity is often too protective. Tangled labels provide confusion as to immunity, but typical governmental immunity protects educators in the course of doing their jobs unless their actions are: 1) an excessive use of force in the discipline of students; (2) negligence resulting in bodily injury to students; 3) an absolute duty without discretion such as a duty with certainty, specificity, and prescriptive in time, mode and occasion with nothing remaining for judgment or discretion. If your state statute allows discretionary acts to be protected by governmental immunity, academic advising will often be considered a discretionary-ministerial approach, and the injured student and his or her family will have a mountain to climb to overcome the fact that their case does not fall under the governmental immunity protection.

The Wisconsin Supreme Court dismissed, but not happily, the lawsuit against the school counselor and district because of the discretionary clause in the governmental immunity statute. Justice Bablitch of the Scott case stated, “A doctrine of governmental immunity that has caused such injustice and inequity, in this case and others, cannot, and I predict, will not, stand much longer. In light of these sentiments, which appear to have growing support in many state courts, school districts should keep a watchful eye on the seemingly unstable future of the state’s government immunity law.”

What’s Changed?
Back to our questions, “Where are we today regarding academic advising and the courts? Has much changed in the decade since Sain?” In the years following the Sain case, the majority of the academic advising cases have involved university advisor/student relationships, and much of what we have learned from these cases can extend to inform school counselor/student relationships. Courts continue their reluctance to intrude on the student/advisor relationship and side with the school counselor/academic advisor. When school counselors have acted in good faith without willful, malicious intent, the courts have protected them. Only higher education advisors and institutions in cases involving gross negligence, fraud; arbitrary behavior; or willful, malicious intent have been deemed liable.

Courts continue to follow governmental immunity in their opinions even when they believe their decision was an injustice and governmental immunity offers too broad of protection. The Sain case continues to represent an unusual tort claim that was allowed to proceed to court but did not, as feared, establish a pattern of interference from the courts. Courts are maintaining the traditional posture of deference to the institutions’ autonomy and expertise, and courts are rejecting educational malpractice claims. Justices recognize the difficult, complicated role of academic advocacy, especially when school counselors are managing large numbers of students, constantly changing rules and regulations, and fluctuating admissions and financial aid criteria.

Following are lessons learned and recommendations for school counselors in their role of academic advisor:

Acknowledge what you do and don’t know. The Sain justices voting in the majority acknowledged that the ruling could be paralyzing; however, they explained that negligent misrepresentation is confined to students whose reliance on information is reasonable. In other words, if a student relies on your for information, and you give that information as if it is fact but it turns out not to be true, that could be negligence. Not knowing information is not the problem. The problem is giving information as if it is true when it later turns out to be false. When in doubt and with limited time, school counselors should encourage students to self-advocate, or if possible, seek help from others to gather information about college admissions, scholarships, NCAA eligibility and financial aid. Be comfortable not being the all-seeing, all-knowing school counselor.

Don’t be paralyzed by the Scott case, as governmental immunity continues to be a protection for many school counselors providing academic advisement.

Don’t be deterred from your advising role by the Sain or Scott case. Continue to offer academic advising sessions to students. School counselors can help close the information gap between those students who know what they need to do to successfully access postsecondary education leading to wider economic opportunities and those students who have not received even the most basic information. Students without a significant adult in their lives helping them understand how to access and be successful in postsecondary opportunities need the school counselor to be an advocate.

Act as the reasonably competent professional would. Hold yourself to a high standard-of-care. The courts are not asking for extraordinary care, only reasonable care. By exercising skill and care in every action taken as a professional, school counselors can demonstrate they are behaving as reasonably competent professionals.

Stay abreast of information needed for competent academic advising. Demonstrate good faith by staying informed of procedures, policies, laws, ethical standards and the school district’s policies.
Seek professional development in the area of academic advising.

Empower others to take responsibility for having and giving the right information. You can teach students to be their own advocates through classroom lessons in the computer lab, where students can conduct Internet searches and locate information on their own. As a manager of resources, the school counselor can equip others to be a key presence in the career and academic advising roles.
Widely publicize academic information for all students and parents/guardians. Make use of newsletters, form letters and e-mail discussion groups in your advising role, thus demonstrating a proactive stance to disseminating critical, timely information.

Require students and parents/guardians to sign off when they receive critical information.
Consult, consult, consult. Seek supervision. School counselors never stand alone when they consult with others who are in a position to help.

Establish and disseminate student responsibilities in publications to parents and to students.
Establish consistencies regarding quality academic advising making it easier to defend and show good faith effort in keeping all students informed; your best defense against allegations of negligence.
Follow your ethical guidelines regarding equity for all. Disaggregate data to see who is being left out of the success equation. Put forth efforts to remedy inequities in academic advising.

Take comfort in the knowledge that you have held yourself to a high standard and your chances of being sued are very minimal.

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