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In Loco Parentis, Substantial Interest, and Qualified Privilege
Rhonda Williams, Ed.D., LPC, NCC
Friday September 01, 2006
by: Rhonda Williams, Ed.D., LPC, NCC

Section: Inside Insight

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One of your ninth-grade students (A.J.) was sexually abused by a cousin from the time he was in seventh grade. The cousin gave A.J. elaborate gifts, watched pornographic videos with him and provided him with prostitutes. The cousin’s conduct escalated to sexual molestation. The cousin was arrested, tried and with the help of A.J.’s testimony, sentenced to six years in prison. Following the conclusion of the court case, A.J.’s parents asked that you bring A.J. before the Student Evaluation Team for possible placement into the emotionally handicapped class. A.J.’s parents and his social worker attended the SET meeting, and during discussion, you revealed the details of A.J.’s sexual abuse to the social worker and later to the school psychologist evaluating A.J. Was your behavior legal? Ethical?

In this case, which has been adapted from N.C. vs. Bedford Central School District, N.Y., A.J.’s parents had a strong interest in keeping the details of their child’s abuse private because of the nature of the offense and their fear that his peers or other members of the community would find out about the abuse. The parents, named N.C. in the lawsuit, sued the school counselor, the social worker, and the school district. The parents alleged that the school counselor and social worker didn’t have permission to reveal such sensitive, private information about their son. How will the court rule?

In the fact finding in N.C. vs. Bedford, it was determined that A.J. did indeed have a legal right to privacy. However, the court had to determine if the defendants (the school counselor and the social worker) had a substantial interest in revealing the sexual abuse and if that interest outweighed A.J.’s right to privacy. In order to outweigh A.J.’s right to privacy, the counselor and social worker’s interest in disseminating the information concerning A.J.’s sexual abuse history must be substantial and must be balanced against A.J.’s right to confidentiality.

The court found that all of the protested communications of the social worker and the school counselor occurred during the course of fulfilling the evaluation process for the student. Communications were between the educators only in order to adequately determine A.J.’s needs for the emotionally handicapped class. The court found in favor of the school district citing that the school counselor and the social worker had a substantial interest in revealing the communication about A.J. sexual abuse. The social worker and the school counselor weren’t engaging in gossip but rather professional communication. No communications had occurred outside a professional setting or outside the scope of A.J.’s psychological evaluation. The sexual abuse was considered relevant in discussing details that may have affected A.J.’s emotional well-being. Therefore, the court found that the defendants’ interest in professional communication, for A.J.’s benefit, outweighed A.J.’s and the parents’ rights to confidentiality.

The implications for this and other court case on school counselors’ practice of respecting confidentiality is discussed through the following concepts: 1) in loco parentis; 2) substantial interest or the need to know and 3) qualified privilege.

In loco parentis is a legal doctrine holding that educators assume custody of students in school because they are deprived of protection from their parents or guardians. Educators stand in loco parentis or translated, in place of the parent. The courts never intended that school authorities, teachers or school counselors would fully stand in place of the parent in relationship to their children. More current thinking suggests it is more appropriate to view the school as an extension of the state rather than as a substitute parent. The school counselor owes a special duty to exercise reasonable care to protect students from harm, and this includes protecting their right to privacy and respecting their confidences. Was it absolutely necessary to share A.J.’s abuse in order to secure emotionally handicapped placement for him?

If the information about A.J.’s sexual abuse had not occurred during professional discussions intended to help him, then it is unlikely the court would have ruled in favor of the school counselor. In order to avoid painful lawsuits, it is best practice to share private and potentially prejudicial information with parent permission. Sensitive information should only be given to other educators when there is substantial interest or the need to know and then only in a formal educational setting. School counselors should stand ready to defend their actions as critical to optimize a student’s educational opportunities.

Substantial interest or the need to know rule requires that school counselors only reveal sensitive information with great reluctance and care to make certain the recipients of the information have a need to know and are in a position to benefit the student if they have the shared information. Confidentiality for school counselors does not follow the standard an uplifted knife poised six inches from the heart. Clear, imminent danger for school counselors follows more along the lines of substantial interest and is influenced by our in loco parentis and qualified privilege responsibilities. What is clear, imminent danger for a minor in a school setting that is designed for academic instruction? Is clear, imminent danger a seven year old smoking cigarettes or a 17 year old who tells you she is pregnant?

We owe our students a trusting relationship. The ASCA Ethical Standards for School Counselors dictate that school counselors have a primary obligation and loyalty to students. Yet, we also have an obligation to parents, teachers, administrators, the school district and the community. School counselors respect students’ confidences and balance minors’ rights with their parents’ rights. Knowing when to invoke confidentiality at the expense of a parent’s right to know is a daily struggle.

Like parents, teachers are often in need of sensitive information about a student in order to optimize the student’s educational opportunities. As a school counselor, we may be able to see a student for only a few minutes a week, but, a sincere, thoughtful, talented and high-functioning teacher may be able to support a student much more intensely and for many more hours and in a variety of highly effective ways. For especially high-functioning teachers it is usually enough to say, “Can you give Joe special attention today as his home-life struggles are likely to spill over to school this week?” At times it is appropriate to proceed without student and/or parent permission but seek this route if at all possible as it is the most respectful, ethical, and legal approach.

Qualified privilege protects educators to share unpleasant or unflattering information about a student in order to fulfill our obligations to educate and care for the student. Parents accused a counselor of defamation because she said during a parent conference that their son was "lazy” and failed because “he never completed any work.” While lazy was not the best choice of words, it was legally tolerable since it was, in the opinion of the counselor, a true statement based on her observations. When this counselor was named in a larger court case involving many other issues, the counselor’s case was thrown out with due speed because, as educators, we have qualified privilege, or the right to make unflattering statements about students in the course of fulfilling our professional responsibilities, but we must be careful to do so only in the context of the situation at hand. Professionalism requires us to choose our words judiciously in an effort to maintain optimal communication with parents and students. Failure to recognize the power of words in conveying difficult information diminishes opportunities for growth and moves people away from rather than toward good resolutions.

Gossiping about a student’s behavior in the teacher’s lounge is defamation of character and not qualified privilege. Information should not be conveyed to other teachers or administrators unless the motive and purpose is to assist and enhance the pupil’s educational opportunities. Transmittal should be made in the proper channels and to persons assigned the responsibility for the relevant educational function. The school counselors’ professional standing and the fact that we receive sensitive information on a regular basis means we must be vigilant in each word we convey that breaches confidentiality.

Our unique position makes us privy to sensitive information and requires that we work fervently to provide a safe and secure environment for students in which trust can be established and maintained. Without the assurance of confidentiality, many students would not seek our help. Counselors keep confidential information unless disclosure meets the requirement of substantial interest. Breaching student confidentiality with teachers, parents and administrators requires continuously balancing the rights of students and parents against the criteria of substantial interest and the need to know.

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.