The Increasingly Complex Nature of Working with Minors in Schools
Share
Author(s): Carolyn Stone, Ed.D.
January 1, 2020
Recent questions to ASCA’s Ethics Committee and recent court rulings demonstrate the increasingly complex legal and ethical nature of being a school counselor. Following are some questions from recent inquiries and recent court rulings. Complicated legal and ethical work requires consideration of all the angles and a willingness to tolerate ambiguity. Exhaustive answers aren’t possible in the context-dependent world of school counseling. It is dangerous to try and reduce legal and ethical dilemmas to a sound bite within the confines of a column, but below are some guiding principles, which need to be given full consideration in context of the state and district laws, policies, procedures, and the nature and culture of the individual school in which you work.
As part of your internship experience, you tape individual counseling sessions and share them in your university class. You adhere to the directives that only you and not the student will be seen on the video. You do not use the student’s name nor any identifying information. You obtain parental permission, explaining the tape will be destroyed right after it is shown in a university course and their child’s identity will be protected. Following a taping the parents demand to see the video. Must you relinquish the video?
ASCA responds daily to Family Educational Rights and Privacy Act (FERPA) question. The Family Policy Compliance Office (FPCO), an arm of the U.S. Department of Education, governs FERPA. Parents are allowed to review educational records, and FPCO defines what counts as an educational record. Technically, the intern must allow the parents to see the tape if the parents won’t relent or compromise. Guidance from FPCO on case notes versus educational records hasn’t been concretely defined, and it’s unclear when memory aid/sole possession notes become an educational record. However, FPCO has provided this guidance.
“Education records include a range of information about a student that is maintained in schools in any recorded way, such as handwriting, print, computer media, video or audio tape, film, microfilm and microfiche” (FPCO, 2019). “Personal notes made by teachers and other school officials that are not shared with others are not considered education records” (FPCO, 2019). The problem with calling the tape a “personal note” is that it doesn’t meet the criteria of a personal note according to FPCO. The definition of personal note or sole possession record is: “Records that are kept in the sole possession of the maker, are used only as a personal memory aid and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.”
From the guidance we have been given thus far, the counseling tape is an educational record and the intern or supervising school counselor needs to use his or her relationship power to try and reason with the parents or reach a compromise. Assuming the student doesn’t want the tape released to the parents, a compromise might include getting the parents to agree to:
You are working with a student when the police and administration show up at your door to pull the student for alleged sexual assault of a fellow student. They allowed you to accompany the student to a conference room, where the police began to question him. He was not read his Miranda rights, and now you wonder if you should have spoken up on his behalf. Was he entitled to Miranda protection?
When police question students in schools without parent or legal counsel, there is a considerable imbalance in power. Students are mandated to attend school, and once there they are expected to move about the school with permission only and to obey school officials. Does this lack of freedom to leave equate to being in custody for the purposes of Miranda rights? Prior to police interrogation, people in custody must be read their right to remain silent and to have legal counsel. If the student doesn’t feel free to refuse or end the questioning is the student essentially in custody? Given minors’ developmental levels, they are considered more vulnerable, and in the case of minors, judges have considered not only their physical custody for Miranda purposes but whether they were psychologically coerced.
Law scholars have wrestled with the question of Miranda rights for students. There is considerable agreement among law scholars writing on the subject that students should be treated as if they are in custody and entitled to Miranda rights, and anything said prior to students’ complete understanding and competence to give consent to waive their rights should not be used against them. “If school administrators rather than police officers are handling the questioning, they do not need to provide Miranda warnings unless they are working for or with law enforcement. However, the authority of school administrators can make the situation feel coercive” (Justia, 2019). Even if a student waives the right to remain silent, a judge may still question whether incriminating evidence can be admitted due to the vulnerability of minors, their emotional state, their intellectual ability and/or how likely they were to be intimidated by the situation (Justia, May 2019).
Scholars argue that the adolescent brain is more vulnerable to shows of authority. The nature of the school environment includes consequences for noncompliance, which can include criminal charges, therefore, setting up an inherently coercive environment requiring the adults in the school to exercise protection of the rights of the student. The Supreme Court’s acceptance of these adolescent brain development studies in Roper v. Simmons, Graham v. Florida and J.D.B. v. North Carolina demonstrates that the courts understand that vulnerable adolescents need special protections as adolescents are more likely to falsely confess, make immature decisions and a strong propensity to comply with authority” (Emory-Law, 2019).
You are fairly certain a student has provided false information on a college application. You question the student, and her parents come roaring into the school and berate you for throwing doubt on their daughter’s integrity. Is it your obligation to ferret out the truth and alert the college if you discover a student provided false information?
More than 300 school counselors answered this question in surveys at five 2019 legal and ethical workshops for school counselors and college admissions officers. The majority of school counselors felt the onus wasn’t on them but on students to ensure college admission applications contain honest information. Transcripts and application material generated by the school district must, of course, be accurate, but out-of-school activities aren’t something school counselors should be required to verify. Students must be certain their application materials are accurate and must sign a disclaimer on their application stating the information is truthful.
Mossimo Giannulli and Lori Loughlin, parents of Olivia Jade, stand accused of paying Rick Singer $500,000 to package their daughter as an athlete to the University of Southern California for the sake of side-door admissions. The college coach is also accused of conspiring with Singer, the mastermind of the Varsity Blues plot. Allegedly, the school counselor questioned Olivia Jade about the accuracy of her college application rowing claim, and Giannulli came to the school and took issue with the school counselor for doubting his daughter’s claim. The school counselor wasn’t under any obligation to find conclusive evidence that Olivia Jade was a rower. The onus is squarely on the student’s shoulders to report only truthful information. If a school counselor chooses to research and/or reach out to admissions representatives with facts that can be substantiated, this is a professional decision made in context and should be respected, but it shouldn’t be required.
If you write a letter in good faith based on what is on a student’s brag sheet, are you liable if this information is found to be false?
School counselors have to rely on students to self-report outside activities. These activities can’t be found on students’ educational records but help school counselors paint a picture of a well-rounded student. In another Barsity Blues scandal, a school counselor wrote that a student was a nationally ranked athlete only to find out later that the student had lied on the brag sheet. Again, this school counselor behaved appropriately in relying on the student to give honest responses. It is unrealistic to think a school counselor can verify everything on a brag sheet. One approach is to require students to list a contact following each activity on the brag sheet. School counselors shouldn’t be expected to personally speak with all the contacts, but this small accountability step may be enough to encourage student honesty and accuracy.
As part of your internship experience, you tape individual counseling sessions and share them in your university class. You adhere to the directives that only you and not the student will be seen on the video. You do not use the student’s name nor any identifying information. You obtain parental permission, explaining the tape will be destroyed right after it is shown in a university course and their child’s identity will be protected. Following a taping the parents demand to see the video. Must you relinquish the video?
ASCA responds daily to Family Educational Rights and Privacy Act (FERPA) question. The Family Policy Compliance Office (FPCO), an arm of the U.S. Department of Education, governs FERPA. Parents are allowed to review educational records, and FPCO defines what counts as an educational record. Technically, the intern must allow the parents to see the tape if the parents won’t relent or compromise. Guidance from FPCO on case notes versus educational records hasn’t been concretely defined, and it’s unclear when memory aid/sole possession notes become an educational record. However, FPCO has provided this guidance.
“Education records include a range of information about a student that is maintained in schools in any recorded way, such as handwriting, print, computer media, video or audio tape, film, microfilm and microfiche” (FPCO, 2019). “Personal notes made by teachers and other school officials that are not shared with others are not considered education records” (FPCO, 2019). The problem with calling the tape a “personal note” is that it doesn’t meet the criteria of a personal note according to FPCO. The definition of personal note or sole possession record is: “Records that are kept in the sole possession of the maker, are used only as a personal memory aid and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.”
From the guidance we have been given thus far, the counseling tape is an educational record and the intern or supervising school counselor needs to use his or her relationship power to try and reason with the parents or reach a compromise. Assuming the student doesn’t want the tape released to the parents, a compromise might include getting the parents to agree to:
- A meeting wherein the confidentiality is explained, the trusting relationship emphasized and the parents implored to respect their child’s need to have the school counselor as a nonthreatening listening ear with the assurance they will be kept informed as the need arises.
- A verbal summary or synopsis of the tape using general information and focusing on the nature of school counseling, which is to help the child be a successful student.
- An offer to provide excerpts only. Although this is unlikely it might be possible to show the tape is nonthreatening by playing just a portion.
- A hearing of the tape with the intern, school counselor and the studen ptresent to offer explanations (if the student wants to be present). This is of course a last resort.
You are working with a student when the police and administration show up at your door to pull the student for alleged sexual assault of a fellow student. They allowed you to accompany the student to a conference room, where the police began to question him. He was not read his Miranda rights, and now you wonder if you should have spoken up on his behalf. Was he entitled to Miranda protection?
When police question students in schools without parent or legal counsel, there is a considerable imbalance in power. Students are mandated to attend school, and once there they are expected to move about the school with permission only and to obey school officials. Does this lack of freedom to leave equate to being in custody for the purposes of Miranda rights? Prior to police interrogation, people in custody must be read their right to remain silent and to have legal counsel. If the student doesn’t feel free to refuse or end the questioning is the student essentially in custody? Given minors’ developmental levels, they are considered more vulnerable, and in the case of minors, judges have considered not only their physical custody for Miranda purposes but whether they were psychologically coerced.
Law scholars have wrestled with the question of Miranda rights for students. There is considerable agreement among law scholars writing on the subject that students should be treated as if they are in custody and entitled to Miranda rights, and anything said prior to students’ complete understanding and competence to give consent to waive their rights should not be used against them. “If school administrators rather than police officers are handling the questioning, they do not need to provide Miranda warnings unless they are working for or with law enforcement. However, the authority of school administrators can make the situation feel coercive” (Justia, 2019). Even if a student waives the right to remain silent, a judge may still question whether incriminating evidence can be admitted due to the vulnerability of minors, their emotional state, their intellectual ability and/or how likely they were to be intimidated by the situation (Justia, May 2019).
Scholars argue that the adolescent brain is more vulnerable to shows of authority. The nature of the school environment includes consequences for noncompliance, which can include criminal charges, therefore, setting up an inherently coercive environment requiring the adults in the school to exercise protection of the rights of the student. The Supreme Court’s acceptance of these adolescent brain development studies in Roper v. Simmons, Graham v. Florida and J.D.B. v. North Carolina demonstrates that the courts understand that vulnerable adolescents need special protections as adolescents are more likely to falsely confess, make immature decisions and a strong propensity to comply with authority” (Emory-Law, 2019).
You are fairly certain a student has provided false information on a college application. You question the student, and her parents come roaring into the school and berate you for throwing doubt on their daughter’s integrity. Is it your obligation to ferret out the truth and alert the college if you discover a student provided false information?
More than 300 school counselors answered this question in surveys at five 2019 legal and ethical workshops for school counselors and college admissions officers. The majority of school counselors felt the onus wasn’t on them but on students to ensure college admission applications contain honest information. Transcripts and application material generated by the school district must, of course, be accurate, but out-of-school activities aren’t something school counselors should be required to verify. Students must be certain their application materials are accurate and must sign a disclaimer on their application stating the information is truthful.
Mossimo Giannulli and Lori Loughlin, parents of Olivia Jade, stand accused of paying Rick Singer $500,000 to package their daughter as an athlete to the University of Southern California for the sake of side-door admissions. The college coach is also accused of conspiring with Singer, the mastermind of the Varsity Blues plot. Allegedly, the school counselor questioned Olivia Jade about the accuracy of her college application rowing claim, and Giannulli came to the school and took issue with the school counselor for doubting his daughter’s claim. The school counselor wasn’t under any obligation to find conclusive evidence that Olivia Jade was a rower. The onus is squarely on the student’s shoulders to report only truthful information. If a school counselor chooses to research and/or reach out to admissions representatives with facts that can be substantiated, this is a professional decision made in context and should be respected, but it shouldn’t be required.
If you write a letter in good faith based on what is on a student’s brag sheet, are you liable if this information is found to be false?
School counselors have to rely on students to self-report outside activities. These activities can’t be found on students’ educational records but help school counselors paint a picture of a well-rounded student. In another Barsity Blues scandal, a school counselor wrote that a student was a nationally ranked athlete only to find out later that the student had lied on the brag sheet. Again, this school counselor behaved appropriately in relying on the student to give honest responses. It is unrealistic to think a school counselor can verify everything on a brag sheet. One approach is to require students to list a contact following each activity on the brag sheet. School counselors shouldn’t be expected to personally speak with all the contacts, but this small accountability step may be enough to encourage student honesty and accuracy.