1. A Guide for School Counselors
Elaine Daniel
Angelo State University

2. Parent Disclosure
• TEC 26.001
Parents are considered “partners with educators, administrators,
and school district boards of trustees in their child’s education.”
• TEC 26.004 & 26.006
Parents are entitled to “all written records” in regards to their
child. These records include attendance records, test scores, counseling
records, reports about behavioral patterns, and teaching materials.
Parents are given access to their child’s records,
including counseling session notes, upon request.

3. Confidential Counselor-Patient Relationship
• Attorney General John Cornyn ruled in 2002, that
counseling records can be withheld from a parent under
certain circumstances.
1. A licensed professional counselor (LPC) is in possession of
the records, not a certified school counselor.
2. According to the Family Educational Rights and Privacy Act
(FERPA), these records are not disclosed to any other person (sole
possession records).
3. The LPC determines that the release of the records would be
harmful to the student’s physical, mental, or emotional health.
Parents are not entitled to confidential records provided the person in
possession of such records is a licensed professional counselor.

4. Higher Degree of Confidentiality
• Texas Health and Safety Code 611.004 (a)
Counseling records are to be kept confidential,
but may be released for disclosure to a governmental
agency provided the disclosure is required or authorized
by law.
Because FERPA allows release of confidential information
to those with legitimate educational interest, disclosure is
permitted by the Texas Health and Safety Code.

5. Duty to Disclose Confidential
Information
Tarasoff v. Regents of the University of California (1976)
The Supreme Court of California held that a legal duty to
use reasonable care to protect third parties from serious bodily
injury or death does exist.
Eisel v. Montgomery County Board of Education
School counselors have a duty to use reasonable means to
attempt to prevent a suicide when they are on notice of a child or
adolescent student’s suicidal intent.

6. Duty to Disclose Confidential
Information
• TFC 32.004 (b)
(2) with or without the consent of a child
who is a client, advise the child’s parents or, if
applicable, managing conservator or guardian of the
treatment given to or needed by the child;
A counselor has a duty to notify parents of a child’s
intent to do harm to themselves.

7. Parental Consent to Treat
• TFC 32.004
Parental consent is not needed if the
counseling concerns physical, emotional, or sexual
abuse, drug dependency, or suicide prevention.
A counselor does not have to have written consent
to treat a student when counseling is sought for any
of the reasons above.

8. Suspected Abuse
• TFC 261.101
Suspected abuse should be reported within 48 hours
of discovery.
• TFC 261.106
“Professional” encompasses any person who is
licensed or certified by the state, or who works for a facility
with children.
As a professional, a counselor has the responsibility to
report suspected abuse. It is better to be safe and report the
suspected abuse, and be wrong, than do nothing. Failure to
report suspected abuse may lead to criminal liability.

9. Wrongful Disclosure of Confidential
Information
• Gonzaga University v. Doe, 2002
No private right of action to sue for damages
under FERPA. However, an institution could forfeit
federal funds and the individual could lose his/her
job.
• McGilvray v. Moses, 1999
Termination for wrongful disclosure of
confidential information was upheld.

10. Release of Information to a
Nonparent
• TFC 153.377
Allows a nonparent who is appointed as the
possessory conservator (the parent with visitation rights) the
same right of access to medical, dental, psychological, and
educational records of the child as the managing conservator
(the one with custody), without regard to whether the right is
specified in the court order (Walsh, Kemerer, & Maniotis, p.
369).
• Page v. Rotterdam-Mohonasen Central School District
Unless a court order is in place, non-custodial
parents enjoy the same rights as custodial parents.

11. Maintained Records
• Owasso Public Schools v. Falvo
Under FERPA guidelines, homework,
tests, and grades are not educational records
until they are maintained by the school or its
personnel.
Once the grades are recorded in the
grade book, they are considered part of the
student’s educational record and therefore,
maintained.

12. Release of Personal Identifiable
Information
• 34 C.F.R. 99.3
Personally identifiable information includes
not only information directly related to the student,
but also indirect identifiers such as the student’s
date and place of birth, mothers’ maiden name,
presence on campus, participation in
videoconference, satellite, Internet, or other
electronic information and telecommunications
technologies.

13. Release of Personal Identifiable
Information
• 34 CFR 99.30(b)
Requires a signed and dated consent form by the parent or
eligible student and:
1. specify the records that may be disclosed
2. state the purpose of the disclosure, and
3. identify the party or class to whom the disclosure
may be made.

14. Release of Personal Identifiable
Information Tips
• Verify the identity of persons requesting information
using reasonable methods.
• The Texas Public Information Act incorporates FERPA’s
provisions, so the TPIA must be read in harmony with the
federal statute.
• If a situation arises and the release of the information is
placed in question, it is best to request an open records
decision from the Texas Attorney General.
(Walsh, Kemerer, & Maniotis, 2010)

15. Common Sense Tips
• When releasing personal identifiable
information consult the law and use
common sense.
• Do not release information to parent about
a student other than their own child.
• If a legitimate educational interest in the
student is not established, do not release
any information.

16. Sharing of Confidential Information
• FERPA allows for the sharing of information
provided a legitimate educational interest is
shown.
Counselors may share information with
administrators and fellow teachers, provided there
is a legitimate educational interest. If the
information is needed to best serve the student, the
information may be shared without parental
consent.

17. Higher Education
• TEC 33.007
(a) Counselors shall advise students and their parents or guardians
regarding the importance of higher education, coursework designed to prepare
students for higher education….
Sain v. Cedar Rapids School District
A guidance counselor has a duty to provide accurate information to
students when advising students about college entrance requirements. Providing
inaccurate information when knowing the student is counting on the correct
information, may result in negligent misrepresentation.
Brown v. Compton Unified School District
Courts are reluctant to find educational malpractice based on
inaccurate guidance information.

18. Letters of Recommendation
• Counselors can include any information in
the letter that is common knowledge or
observable.
When writing letters of recommendation for
students, it is best to leave out confidential or
sensitive information about the student,
unless parental permission is obtained.
(Stone)

19. Resources
Doe v. Rains County Independent School District No. 94-41113 (1995). Retrieved from
http://caselaw.findlaw.com/us-5th-circuit/1321079.html
Eisel v. Montgomery County Board of Education
Retrieved from http://www.4school.com/torts/eisel/shtml
Gonzaga University v. Doe (01-679) 536 U.S. 273 (2002). Retrieved from
http://www.law.cornell.edu/supct/html/01
McGilvray v. Moses No. 2-99-092-CV, 8 S.W. 3rd 761, 141 (1999). Retrieved from
http://www.campus.westlaw.com.easydb.angelo.edu/result/documenttext.aspx
?method=TNC&db
Oswasso Public Schools v. Falvo 534 U.S. 426 (2002). Retrieved from
http://www.law.cornell.edu/supct/html/00-1073.ZS.html
Page v. Rotterdam-Mohonasen Central School District 109 Misc.2d 1049, 441 N.Y.S. 2d 323
(1981). Retrieved from http://www.campus.westlaw.com.easydb.angelo.edu

20. Resources
Sain v. Cedar Rapids School District 626 N.W.2d 115 (2001). Retrieved from
http://www.campus.westlaw.com.easydb.angelo.edu
Stone, C. (n.d). Case studies: legal and ethical issues in working with minors in schools. Unpublished
manuscript. Department of Education, University of North Florida, Jacksonville, Florida.
Retrieved from http://www.wsca.timberlakepublishing.com
Texas Constitution and Statutes, Texas Education Agency. (n.d.). Texas education code
Retrieved from http://www.statutes.legis.state.tx.us/Index.aspx
Texas Constitution and Statutes, Texas Family Code. Retrieved from
http://www.statutes.legis.state.tx/Docs/FA/htm/FA.261.htm
U. S. Department of Education, Family Policy Compliance Office. (Nod). Family educational
rights and privacy act ((20 U.S.C. 1234g; 34 CFR Part 99). Washington, DC:
Government Printing Office. Retrieved from
http://www2.ed.gov/print/policy/gen/guid/fpco/ferpa/index.html
Walsh, J, Kemerer, F, & Maniotis, L. (2010). The educator's guide to Texas school law: seventh
edition. Austin, Texas: Univ of Texas Pr.