Counselors making the right call

School counselors and other Texas educators are routinely confronted with issues involving the confidentiality of student records and related information. Decisions must be made — especially by school counselors — concerning receipt of, safekeeping and distribution of such information.

This article addresses common student confidentiality guidelines that counselors and other educators must carefully observe, as well as certain situations that may present counselors with difficult decisions to make. Unlike a baseball umpire required to make a quick judgment call without benefit of instant replay, counselors should have the opportunity to ask the proper questions, use available resources and ultimately make the “right call” regarding student confidentiality issues.

FERPA

All educators must observe the Family Educational Rights and Privacy Act or FERPA. This federal law requires educators to provide proper parties access to student records and personally identifiable student information, while strictly maintaining their confidential status.

An educational record is defined as information directly related to a student and held by an educational institution or its representative. In many school districts, policy FL [LOCAL] provides a lengthy, but not exhaustive list of such records. Most counselors, teachers and other school employees dealing with student records understand that this information may only be shared with the student and/or parent or legal guardian OR just the student when he/she is 18 years old or older. Educational records may also be shared with another educator with a legitimate
educational interest. Still questions may and do arise.*

*Several years ago, the U.S. Supreme Court was asked to decide if having student work graded in class by fellow students and calling out grades for the teacher to record violated FERPA. In a very common sense and educator-friendly decision, the Court held that such a time-honored practice did not violate FERPA and though not deciding the point, hinted that for purposes of FERPA, this practice may not even involve “student records.”

Personally identifiable student information is exactly what it sounds like: any information found in a student’s educational record that would make it easy to identify the particular student, e.g., his/her name, parents’ names, Social Security or student ID number.

FAQs

Does a grandparent have a right of access to student records?

Only if the grandparent is a properly designated legal guardian or if written permission has been provided by a parent or eligible student.

As a counselor, must I provide educational records and discuss student information with a non-custodial parent?

Generally, yes. Custody is not the issue. A parent may be denied access only if his/her rights have been terminated by a court of law or a court order otherwise expressly prohibits access.

I received a subpoena requesting student records. What does this entail?

Since the wording of the subpoena is crucial, it should be reviewed by an administrator or records custodian prior to releasing any records. Legal counsel may be necessary in many instances to assure proper compliance with the subpoena.

Texas Education Code (TEC) Chapter 26

Chapter 26 was enacted by the Legislature in 1995 and was intended to promote parents’ rights regarding participation in their child’s education. TEC Section 26.004 restates FERPA’s requirement that school districts must provide parental access to all written records maintained by the district pertaining to their child. Though not exhaustive, the list of such records does specify “counseling records” and “psychological records.” This particular provision provides a good segue to another issue that school counselors sometimes face, especially concerning “counseling records.”

Troubled students (especially teens) may seek out a counselor (or teacher) as a confidante regarding personal matters. Some counselors may consider this part of their job. After all, the Texas Education Code states that “The primary responsibility of a school counselor is to counsel students to fully develop each student’s academic, career, personal and social abilities.”

A problem frequently arising involves a minor student’s desire for a “confidential” relationship with the school counselor. A student may simply assume that this exists, while at other times the student and the school counselor may believe that such a relationship is possible simply by agreeing to this. The student may then disclose personal matters to the counselor which he/she is not willing to disclose to his/her parents, and which the student believes must remain confidential. A counselor must always be wary of such matters.

In most cases involving situations like this, there is no legal basis for a confidential relationship between the student and counselor. The school counselor will be legally obligated to share information the student has provided with parents upon request, including written records (per TEC Section 26.004). Also and importantly, the counselor must make sure he/she does not, or does not appear to, encourage or coerce the student to withhold any information from parents. TEC Chapter 26 provides that such is grounds for termination of a school district employee’s contract.

Any exceptions?

There is a limited exception that applies to the student records discussed in the immediately preceding paragraph. If the records are kept in the sole possession of the counselor, are used only as a memory aid, and are generally accessible only to the counselor (who must also be a Texas-licensed mental health practitioner, e.g., (Licensed Professional Counselor), and the counselor has made a determination that the release of such records would be harmful to the student’s physical, mental or emotional health, then and only then, may the records be withheld from parents. Certainly seeking legal counsel would be advisable prior to withholding records under these very limited circumstances.

Finally, Chapter 26 does specifically provide an exception allowing counselors and other educators to withhold information concerning the report of suspected child abuse from parents. Note however that there is no provision that allows an educator to direct or encourage a student to withhold such information from his/her parents.

Hopefully this brief discussion of some of the issues will assist school counselors in making the correct call regarding student confidentiality issues. Batter Up!

This article is provided for general information purposes only, and is not intended to replace the advice of an attorney. TCTA members with questions or concerns related to confidentiality of students' records should contact the TCTA Legal Department at 888-879-8282.