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College and Career Advising: The Court of Justice and the Court of Public Opinion
11/1/2016
Carolyn Stone, Ed.D.
Tuesday November 01, 2016
by: Carolyn Stone, Ed.D.

Section: Inside Insight


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Advocating Legally and Politically 
In a recent survey, 78 percent of your students indicated they would like to go to college, with 44 percent of them identifying finances as their biggest obstacle. You are trying to make certain your economically disadvantaged students are aware of financial aid and scholarships. Matt is one of your students with the odds stacked against him as his financial challenges are greater than just the costs associated with a college education. He feels an obligation to continue to help his younger siblings financially. He is ineligible for an especially lucrative scholarship since he doesn’t quite have the required 3.5 GPA. One grade change is all he needs. You decide to use your ability to manipulate the student information system to up his B grade in physical education to an A. Does the end justify the means? 

Advocate, advocate, advocate but do so legally and politically astutely. There are a number of options in a case like this; falsifying grades is not one of them. For example, help Matt find the right approach to talk to the physical education teacher about extra credit to raise his B grade. If his self-advocacy fails perhaps there is another teacher you and/or Matt can approach about extra work to raise his grade. Call the scholarship funders and ask for an exception to the 3.5 GPA. Show Matt how to use his own advocacy muscle, and continue to work on his behalf. 

The joy that comes from making the impossible possible for Matt is tainted when done illegally, and he may well pay the price if the lie is discovered as happened to former Auburn running back Jovon Robinson. Robinson was ruled ineligible to play at Auburn by the NCAA when it was discovered his high school counselor made “substantial changes” to his grades. A teacher noticed a grade change from a D to a C. The school counselor admitted her part and resigned. Robinson and several coaches came under scrutiny but were never implicated. Although the school counselor was trying to help Robinson, she hurt him. The end is never a justification to falsify records; don’t do it. Do all you can to make magic for each and every student on your caseload as these are the moments that feed our professional souls. In the court of public opinion Robinson had a long road back, and the school counseling profession took quite a hit with this high-profile case. 

Challenging School Practices that Stratify Opportunities 
You are a new school counselor in a large high school. You are shocked to learn the tradition has been that only the top five students in each graduating class are allowed to apply to an Ivy League school. One of your seniors comes to you and requests your help with her application to Harvard. This senior is 11th in the class, is on the yearbook staff, has spent two years on the track team and is enrolled in four Advanced Placement classes. You decide to break with the tradition and unwritten rules and provide this student with a transcript and all she needs to apply. The registrar catches the aberration and tells the principal, who calls you in to scold you for “wasting time on fruitless applications.” What do you do? 

In the New York Times article “Amid Policy Confusion, Senior Is Allowed to Apply to Harvard” a public high school senior was told she could not apply to Harvard as only the five top-ranking students could apply to an Ivy League school. Senior Kimberly Cummins was ranked 11 out of 400 seniors in her class, with a solid academic and extracurricular activity record. When she was denied the opportunity to even try for her reach school, she and her sister raised the issue with school and government officials and advocacy groups, and the resulting pressure from the publicity eliminated the school’s practice of only allowing the top five students to apply to an Ivy League school. 

This case represents one school with a policy that stratified opportunities, but there are numerous polices existing in schools all over the country that defer dreams. The school counselor worked to advantage her student, but it is not just about one student at a time but also one school at a time. The entire system needed to be addressed and changed. School counselors as change agents refuse to quietly and blindly follow rules and practices, written and unwritten, that stratify students’ opportunities. Broken systems cannot be allowed to operate without challenge. However, the challenge should be addressed with political acumen in ways that raise and not diminish one’s ability to influence needed change. 

School counselors promote students’ autonomy and work with them to make informed, solid decisions. Cummins had a right to apply to Harvard with the ultimate admissions decision being Harvard’s and not the high school’s. In the court of public opinion, the principal, who defended the practice, was vilified and resigned, but the school counseling profession also took a hit. Even though it may not have been the case, it appeared as if the school counselors followed the practice without protest. 

Duty Owed in Academic Advising 
William was lured to your school by the basketball coaches. His school counselor was not able to match his courses from his previous school and advised him to take a particular science class. He lost his NCAA eligibility when it was determined that the science course was not on the school’s list of NCAA courses. He sued his school counselor and school district. Should he prevail? 

James Brown’s basketball scholarship was revoked at the University of Southern California because he did not meet the NCAA requirements in science. The ensuing court case Brown v. Compton Unified School District named Brown’s high school counselor and the school district for misadvising him and costing him his scholarship. Previous to the court case the principal sent a letter to the NCAA Academic Requirements Committee admitting it was the school counselor’s mistake. The letter said, in part: “Brown’s failure to take the required science class is completely the result of misadvisement on the part of one of our school’s academic counselors. Dominguez High School must assume responsibility for misadvising James Brown. It is true that our counselors are overworked and not experts in interpreting NCAA rules; however, this is a mistake that should not have been made. James simply followed the advise [sic] given to him by a school authority.” 

Brown’s lawyers argued that a special relationship existed between Brown and the school district because the district induced him to transfer and assured him he would be able to satisfy the NCAA requirements for athletic eligibility. Brown further contends that he relied on the promise he would be placed in courses that satisfy NCAA requirements. 

The judicial system found that under California’s governmental immunity the school counselor and district were immune from liability. Governmental immunity means you cannot sue the government; however, the statutes differ state by state and define exceptions to the rule. Exceptions to governmental immunity usually involve serious wanton disregard for someone’s safety. 

In Sain v. Cedar Rapids Community School District, a case involving similar circumstances, no such governmental immunity was in place. Bruce Sain had his basketball scholarship voided when he lacked one-third credit in English. Sain maintained that his school counselor erroneously told him technical communications was an English course on the approved list of NCAA courses for his school. The Iowa Supreme Court Justice Mark Cady 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 postsecondary 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 Cady issued sound advice for the school counseling profession. Use reasonable care in providing specific infor.mation to a student when (a) the school counselor has knowledge of the specific need for the information, (b) the school counselor provides the information to the student in the course of a school counselor/student relationship and (c) the student reasonably relies upon the information in circumstances where the school counselor knows or should know of the student’s reliance. In many states govern.mental immunity would not have saved the school counselor from legal liability. Negligent representation is a real possibility when a student’s reliance on the school counselor’s advice is reasonable, such as an inquiry as to whether a course meets NCAA eligibility. School counselors do not have to know everything, but they have to be cautious not to give information as if it were fact unless they are certain it is indeed accurate. 

Facts not Hearsay in the College Admission Process 
It has long been rumored that Rodney uses his charm, position as a star basketball player and his good looks to persuade academically talented students to do his course work. It is even rumored that the students who do his work vie to see which ones can get him the highest grades. It was also rumored that a stand-in took his SAT. You have heard these rumors and have repeated them to teachers and administrators. The rumors reached the College Board and also his college, which rescinded his admission and basketball scholarship. You are sued. How should the courts rule? 

Joshua Fisher filed a lawsuit against his Washington high school counselor and school district for defamation, false light, invasion of privacy, tort of outrage and a violation of his civil rights because a school counselor allegedly told people it was “well known” for Fisher “not to do his own schoolwork.” Fisher claimed his basketball career was damaged when the false rumors were spread to officials at Pepperdine, and he lost the opportunity to play basketball and to attend Pepperdine University. Allegedly, the school counselor later wrote to Fisher’s attorney that she mentioned to an admissions person at Pepperdine that Fisher’s scores were questionable and the word on the street was that he might have had help. “This was an unsubstantiated rumor that I should not have repeated.” Those comments and others led to an investigation of Fisher’s SAT scores, which were later validated by the College Board. The judge ruled Fisher’s civil rights were not violated. 

Can school counselors repeat rumors? Qualified privilege allows school counselors to provide information about students even if the information might be damaging to a student’s reputation if the information is made in good faith, with.out malice, upon reasonable grounds, in answer to an inquiry and made with regard to assisting or protecting the interest of either of the parties involved or in performing a duty to society. First-hand knowledge and not rumors or hearsay provides back-up support in cases involving a defamation accusation. 

School counselors are in an important position in schools and should always hold themselves to a high standard of care. The law is the minimum standard of care, and the ethical standards are aspirational. Through ethical behavior, school counsel.ors are looking to provide extraordinary care in every action they undertake. 

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.