1. 2012 Le gal &
Ethical Update for
LPCsSaturday,PSCs Nov. 17, 2012
& 1:00-4:00 PM,
Tennessee Counseling Association’s 55th Annual Conference
Pre-conference workshop:
Jeri Lee, Ed.D., J.D.,
Licensed Professional School Counselor; Licensed Teacher;
Licensed Counseling Psychologist, HSP; Licensed Attorney
Associate Professor/Coordinator
Professional School Counseling
Tennessee State University

2. Proactive Steps to
Dealing with:
 Cyberbullying
 After hours (Non-dischargeable) duties
 Pregnant minors
 Dual licensure conflicts
 Assessing lethality

3. Hierarchy for All
Decisions
 Legal
 Ethical
 (Moral)
 5 L’s:
 Life
 Liberty
 License
 Livelihood (current position)
 Likeability

4. Cyber-
.
bullying

5. What would you do..
 If your client/student told you he had been
threatened and harassed on several occasions
while in school, on the school bus, at sports events,
& at a school dance, & that he had been bumped,
tripped, called names, threatened with beatings and
was threatened to have others beat him up.
 He & his parents had already told the director of
schools, the principal, the asst. principal, & several
of his teachers; bully was warned to stop and some
effort made to separate them, but the bullying just
continued.

6. These were the actual
facts in a 2011
Tennessee Court Case re:
Bullying
 Moore v. Houston County Board of
Moore v. Houston County Board of
Education, 358 S.W.3d 612 (Tenn. Ct.
App., M.S., Dinkins, 2011)

7. Trevor bullied by Tyler
 Threatened and harassed on several
occasions 2006-7 in school, on bus, at
sports events, & at a school dance.
Bumped, tripped, called names,
threatened to beat him up and to have
others beat him up. He & his parents
told the director of schools, principal,
asst. principal, & teachers; bully was
warned to stop and some effort made to
separate them.

8. Tyler paid Bradley to
beat up Trevor
 Jan. 2007: Bradley severely
beat Trevor for $5 that Tyler
paid him, resulting in a broken
nose and jaw, surgery, mouth
wired shut, and sustained
trouble breathing and severe
headaches.

9. Student assaulted at
Houston County Middle
School while school
was in session
5 defendants named:
Houston County Board of Education
Bradley who committed the assault;
Tyler who paid for the assault (therefore his agent)
Mothers of the two students (vicarious liability)

10. Bench trial found:
 $ 50,578.97 in damages;
 The boys & their mothers 75% at fault; and
 The school board 25% at fault but
immune under the discretionary function
exception of the Tennessee
Governmental Tort Liability Act

11. On appeal, the school
lost defenses of
 Non-responsibility for the non-
governmental, intentional tortfeasors’
financial obligations because there were
more non-governmental, intentional
tortfeasors than there were
governmental, negligent tortfeasors
and
 Governmental Immunity

12. Can the school as
merely a NEGLIGENT
tortfeasor be held
responsible for an
INTENTIONAL
tortfeasor? harm arising from the
 Yes, because the
attack against Trevor was a foreseeable
risk created by the negligence of the
Board, so the school is jointly and
severally liable, & the school may be
called upon to pay 100% of the

13. Court relied on:
Limbaugh v. Coffee
Medical Center, 59
S.W.3d 73, 85 (Tenn.
2001)
 Rule of Law: Where the intentional actor
and the negligent actor are both named
defendants and each is found to be
responsible for the plaintiff’s injuries,
each defendant will be jointly and
severally responsible for the plaintiff’s
total damages.

14. When are schools
denied governmental
immunity?
 Negligent hiring
 Negligent supervision
 Negligent Breach of Duty to Protect when
at school and on notice of foreseeable
harm (applied to PSC in Gammon)

15. 2012 Change in the
law to expand
immunity (=statutory immunity)
 Chapter 687, Public Act 2012, amending TCA
49-6-4016 eff. July 1, 2012:
 “It is a defense against a civil action for
damages [for assault] under this section that a
teacher, principal, school employee or school
bus driver in the exercise of the person’s lawful
authority used reasonable force under TCA 49-
6-4107 that was necessary to restrain the
student or to prevent bodily harm or death to
another person.”

16. What is cyberbullying?
 utilizing any type of electronic device such as
computers and cellular phones to harass
another person, including sending text
messages, utilizing the various social media
web cites, and using video to humiliate other
people (Cyberbullying, 2012).

17.  Amanda Todd, the lonely B.C. 12 year old
whose Oct. 10th suicide after “privately”
flashing her breasts at the urging of a stranger
online resulting in the YouTube presentation of
her (with 11 million viewings)
 Alexis Pilkington, Long Island, N.Y.
 Seth Walsh, California
 Phoebe Prince, Massachusetts
 Megan Meier, Missouri
 Jamey Rodemeyer, Buffalo
 Asher Brown, San Antonio, Tex.
 James Hubley, Ottawa

18. Precise statistics are
hard to come by
 with the number of teens reporting they
were cyberbullied varying wildly from
20 per cent to 75 per cent
in various U.S. and British studies
The Gazette Montreal, October 27, 2012

19. What would you do…
 if your middle school principal called you in to
ask what to do regarding a suspension
decision:
 Student had created, on a weekend and on her home computer, a
MySpace "profile" making fun of him, with adult language and sexually
explicit content, such as, “HELLO CHILDREN: yes, it’s your oh so
wonderful, hairy, expressionless, sex addict […] PRINCIPAL. I have come to
myspace so I can pervert the minds of other principals to be just like me.”
 The site was not viewable at school and had as of yet caused no disruption
in school because the student had limited access to her 22 close friends.
She used the principal's picture from a website, not his name, school, or
location.

20. Ask:
Is it a violation of:
 School policy?
 State penal code?
 State civil code?
 (Why not a civil rights issue?)

21. "on-campus" vs.
"off-campus" speech
 Today, students commonly carry cell phones with
internet capabilities onto school grounds;
 66 % of students receive a cell phone before the
age of 14;
 75 % of high school students have cell phones;
 23 % of teenagers between the ages of 12 and 17
who own cell phones use them to access social
networking sites like MySpace and Facebook; and
 Most students believe their hostile and offensive
online speech directed at school officials will not
reach the school.
 Lenhart, et al., (2010).

22. Lenhart, et al, 2011
found:
 95% of 12-17 year olds are online;
 80% of these use social media;
 88% of teens using social media have
witnessed someone being mean or cruel to
someone else;
 41% experienced at least one negative
outcome on a social network site; and
 15% report being the target of harassment.

23. When offensive and malicious
speech is directed at school
officials and disseminated
online to the student body,
it is reasonable to anticipate
an impact on the classroom
environment.

24. Student’s First
Amendment rights vs.
jeopardizing schools'
ability to maintain an
orderly learning
environment while
protecting teachers and
school officials against
harmful attacks:
 .

25. J.S. v. Blue Mountain School Distr.
(2011).
(US Ct of Appeals 3 rd Circuit, USSCt
denied certiorari)
 J.S was suspended for creating, on a weekend and on her home
computer, a MySpace "profile" making fun of her middle school principal,
with adult language and sexually explicit content.
 But, it indisputably caused no substantial disruption in school and could not
reasonably have led school officials to forecast substantial disruption. The
student limited access to her and her friends. She used the principal's
picture, not his name, school, or location. It was never taken seriously and
was not viewable at school.
 J.S. made the profile "private" & limited access to 22 friends from school.
The School District's computers block access to MySpace, so no Blue
Mountain student was ever able to view the profile from school.
 The principal learned of it through a student and he included the 2
school counselors in on determining how to handle the situation.

26. Appellate Court
Finding
 J.S’s suspension was not upheld because the
school’s undifferentiated fear of disturbance was
insufficient to overcome the student's
First Amendment free speech rights.
 The school policy was upheld because her
Fourteenth Amendment claim failed. The student
handbook was explicitly limited to in-school speech,
thus, the policies were not unconstitutionally
overbroad or vague. The policies clearly defined
when and where they applied, with specific
examples, and articulated a comprehensible
normative standard.

27. J.S. used Tinker
Standard for allowing 1 st
amendment deprivation
for a substantial
disruption in school
 Standard: Conduct closely akin to pure speech
is entitled to comprehensive protection under
the First Amendment, absent facts that might
reasonably have led school officials to forecast
substantial disruption of or material interference
with school activities.

28. What would you do…
 if a student asked for your
assistance when repeatedly
bullied by 8 students and also
denied migraine headache
medicine by teachers and
school nurse?

29. Follow school policy
 And if no relevant policy,
help write it.

30. Reyna v. Putman City Schools, 2012.
 A victim of bullying at Middle School sued the school superintendent, an assistant
superintendent, the principal, an assistant principal, a school counselor, a nurse, and four
teachers.
 8 students bullied K.M.R. at school and at non-school events by subjecting her to taunting,
threats, battery, vandalism, forming a hate club, and other acts of bullying, which caused K.M.R.
to suffer depression and severe migraine headaches. School employees, including the school
counselor, failed in various ways to assist K.M.R. and her mother in efforts to stop the bullying.
Also, three teachers and the nurse allegedly denied K.M.R. timely access to medication for
migraine headaches, a condition to which she was susceptible due to a prior illness, despite two
letters from treating physicians.
 Ms. Reyna alleges she was forced to quit a job to care for K.M.R., and abandon her home and
move to a rental house in another school district so that K.M.R. could attend a different school
because a psychotherapist diagnosed K.M.R. with severe depression and recommended that
she be removed from school. Ms. Reyna obtained homebound status for K.M.R. until enrolling
her in a private school for the remainder of the school year.
 Plaintiff argued DeShaney v. Winnebago County Dep't of Social Services, (1989), arising under
the Due Process Clause. Specifically, an individual's right to substantive due process may
entitle the individual to governmental protection from third parties or to governmental aid in
limited circumstances.

31. Special Relationship
 Plaintiffs claimed K.M.R. was entitled to
assistance with accessing her medications
under the "special relationship" doctrine, so
when prevented from accessing the
medications by school policies that prohibited
self-administration by K.M.R. and required her
to obtain them from the school nurse, they
blocked her access to the medications & limited
K.M.R.'s ability to care for herself.

32. No “special relationship” in
schools
 The Court was not persuaded by this argument because
although the special relationship doctrine is not limited to
custodial prisoners and mental patients, "[t]his doctrine applies
'when the state assumes control over an individual sufficient to
trigger an affirmative duty to provide protection to that
individual. There is no legal authority, however, for the
proposition that middle school children attending public school
enjoy a special relationship with their teachers or other school
employees. Instead, federal appellate courts addressing the
issue have found no special relationship between school
officials and students, even elementary school children,
entrusted to their care. (
Maldonado v. Josey, 975 F.2d 727, 733 (10th Cir. 1992) ("the
state does not confine school children in the same way that it
confines prisoners, the institutionalized, or children in foster
homes").

33. § 1983 State Created
Danger
 To state a prima facie case, under Civil Action for
Deprivation of Rights (§ 1983), show:
 (1) state actors created the danger or increased the
plaintiff's vulnerability to the danger
 (2) plaintiff was a member of a limited and specifically
definable group,
 (3) defendants' conduct put the plaintiff at substantial risk
of serious, immediate, & proximate harm,
 (4) the risk was obvious or known,
 (5) the defendants acted recklessly in conscious
disregard of that risk, and
 (6) the conduct, when viewed in total, shocks the
conscience.

34. No state created danger in this
case
 Plaintiff asserted she was entitled to protection from bullies
under the “danger creation” exception:
 State actors (schools) may only be held liable under § 1983
for their own acts, not the acts of third parties (bullies). The
"danger creation" exception to this rule applies only when a
state actor affirmatively acts to create, or increases a
plaintiff's vulnerability to, or danger from private violence.
 “The facts don’t support that employee consciously disregarded
a substantial risk of serious harm to K.M.R. Further, Plaintiffs
have failed to present properly-supported facts to establish
conduct by school employees that would satisfy the
conscience-shocking standard established
by existing case law.”

35. No Deliberate
Indifference to Known
 Threat
Based on
Sutton v. Utah State School for the Deaf and Blind, 173 F.3d 122
, the court of appeals held that the plaintiff in that case, the
mother of a severely disabled child who was sexually abused
by another student, stated a § 1983 claim against a school
principal under a "danger creation" theory, based on the
principal's failure to adopt a protective policy and his
inadequate training of school employees "so as to enhance the
danger of sexual assault to [the victim]."
 The court found that, “Clearly, school officials who were aware
of some incidents described by K.M.R., or who were
subsequently informed by her mother, might have done more
to assist her.” However there are insufficient facts from which

36. What would you do if…
 A student/client told you
a nude picture of her
was being circulated at
school resulting in
bullying?

37. Logan v. Sycamore, 2012
May 5th: Jessica Logan & a friend told her PSC Intern that her
nude picture was being circulated at school; PSC intern
referred her to PSC Fisher who referred her to the Resource
Officer Payne. (Fisher did not recall the meeting, but it was
notated on her calendar.); they claim they told RO the names
of the harassing students & he said he’d make them erase
the pictures off their phones. He filed an incident report.
May 6: They approached PSC Canter who was unavailable so
referred them to RO Payne who investigated the bullies
(although he later denied that the bullies had been identified)
and reported the incidents to the principals.
May 7th: They approached PSC Warm who was unavailable that
day.
Later Jessica was interviewed on tv as a victim of sexting turned
into harassment; bullying increased & students even threw
things at her during her graduation. She then committed
suicide.

38. From Sexting to
Harassment to Suicide to
Lawsuit, 2012
Students settled; Resource Officer was granted
Qualified Immunity
No report after trial scheduled for Aug., 2012 re: Title
IX & Section 1983 claim to determine if:
 School officials knew that a naked photograph of
plaintiff’s daughter was circulated at the high school;
 Whether appropriate persons had actual notice of
the harassment; and
 Whether the school board was deliberately
indifferent to the harassment.

39. Court denied Negligent
Infliction of Emotional
Distress claim
 Due to school’s immunity as a political
subdivision, and the 5 exceptions do not apply:
 negligent operation of a motor vehicle;
 negligent performance of a proprietary function;
 negligent failure to keep public roads open & in repair;
 negligence of employees due to physical defects in
grounds or buildings; and
 express imposition of liability by statute.

40. In 2012, Tennessee expanded
Criminal Harassment Law to cover
images
 Chapter 992, Public Acts 2012, amending TCA 39-
17-308 eff. July 1, 2012:
 “[A person commits an offense who intentionally]
[c]ommunicates with another person or transmits or
displays an image without legitimate purpose with the
intent that the image is viewed by the victim by any
method described in subdivision (a)(1) and the
person:
 (A) Maliciously intends the communication to be a threat of
harm to the victim; and
 (B) A reasonable person would perceive the
communication to be a threat of harm.”

41. § 39-17-308.
 Harassment
(a) A person commits an offense who intentionally:
(1) Threatens, by telephone, in writing or by electronic communication,
including, but not limited to, text messaging, facsimile transmissions,
electronic mail or Internet services, to take action known to be unlawful
against any person and by this action knowingly annoys or alarms the
recipient;
(2) Places one (1) or more telephone calls anonymously, or at an hour or
hours known to be inconvenient to the victim, or in an offensively repetitious
manner, or without a legitimate purpose of communication, and by this
action knowingly annoys or alarms the recipient;
(3) Communicates by telephone to another that a relative or other person
has been injured, killed or is ill when the communication is known to be
false; or
(4) Communicates with another person or transmits or displays an image
without legitimate purpose with the intent that that the image is viewed by
the victim by any method described in subdivision (a)(1) and the person:
(A) Maliciously intends the communication to be a threat of harm to the
victim; and
(B) A reasonable person would perceive the communication to be a threat of
harm.

42. What would you do
differently if…
A child with a
disability reported
being bullied?

43. T.K. & S.K. v. New York City Dept. of Ed.
2011
 This case:
 Contains a good description of bullying, even cyber
bullying and bullying of students with disabilities;
 Presents the largely unresolved issue of the extent to
which bullying by other students inhibits a disabled
child from being educated appropriately, and what her
school must do about it.
 Child was diagnosed as autistic, then learning
disabled and was bullied, which her parents claim
made her emotionally unable to learn.

44. Plaintiff’s two
arguments
 First, that bullying made L.K.'s educational
environment hostile — a factor not properly
taken into account during the administrative
process.
 Second, that the school improperly
predetermined her Individualized Education
Plan ("IEP“)

45. The test for determining if a
school district is liable for
sexual harassment of a
student
 Davis v. Monroe County Bd. of Educ., (1999):
 Title IX Private damages against a school board for student-
on-student violence only when:;
 1) school board acted with deliberate indifference to known acts of
harassment
 2) harassment was so severe, pervasive, and objectively offensive
that it effectively barred the victim’s access to an educational
opportunity or benefit

46. In this case, the court found
that
The Plaintiff was subjected to repeated bullying at school as
a result of her disability;
The school was aware of this conduct; and
the school stonewalled her parents' attempts to
address the issue, establishing its deliberate
indifference.
 The court found that where bullying reaches a level where a
student is substantially restricted in learning opportunities she
has been deprived a FAPE. Whether bullying rose to this
level is a question for the fact finder (and in this case not
appropriate for a summary judgment.)

47. Bullying of students
with disabilities may
.
constitute a denial of
FAPE under IDEA

48. Second, that the school improperly
predetermined her Individualized
Education Plan ("IEP")
 and did not provide a meaningful
opportunity for her parents to participate
by withholding and failing to discuss
bullying as it related to her IEP.
 The court found that there was a
meaningful discussion about what was
the best plan for L.K.

49. What actions, if any, is
a school required to
take to stop bullying of
students with
disabilities?
 The Due Process Clause forbids the state from itself
depriving citizens of life, liberty, and property rights.
 BUT generally, the
Due Process Clause of the Constitution does not
require that the state "protect the life, liberty, and
property of its citizens against invasion by private
actors." Deshaney v. Winnebago County (1989), because its purpose

50. After
hours (Non-
dischargeable)
duties
 .

51. Non-dischargeable
duties
 Due to its imminent nature, the Duty to Warn
of the danger your client presents to self or to
others is non-dischargeable, and must result in
the safety of a potentially self-harming client
OR the actual notification to the identifiable
victim (or if a minor, to their responsible
guardian). You may not leave the office until
this is accomplished.

52. Pregnant
minors
 .

53. WHY DO WE NEED TO
BE AWARE OF THE
RISKS OF SEXUALLY
ACTIVE STUDENTS?
 Because of its medical & psychological
implications
 Because of its litigious nature

54. What to KNOW before
working with sexually
 active values & limitations;
Your own
students…
 Litigious nature of sex/reproductive counseling;
 Your population’s sexual behavior trends;
 Your school’s position on intervention &
parental notification;
 Prevailing community standard regarding
sexually active students;
 Consultation sources for you;
 Referral sources for students;
 Your school board policies; and
 Tennessee law

55. U.S. has highest rate
of teen pregnancy,
.
birth & abortion
(UNICEF, 2001)

56. Princeton Survey
http://msnbcmedia.msn.com/i/msnbc/Sections/TVNews/Dateline
%20NBC/NBCTeenTopline.pdf
 3 in 10 13-16 year olds are sexually active.
 68% report being in love before having sex is
very important.
 54% believe you can be a virgin if only having
oral sex, but only 30% use protection.
 75% of students participate in oral sex because
“the other person wanted to”

57. Relevant ASCA Ethical
Standards
 Disclose limits of confidentiality up front
(A.2.a)
 Consult before breaching confidentiality
(A.2.b)
 Inform parents/authorities when student’s
sexual behavior is danger to self/others
(A.7.a)

58. Sexual activity must
be reported to parents
if
 A health risk is present.
 Find out if:
 Pregnant (always a health risk to minors)
 Protection used (if not, std health risk)
 Consensual (if not, criminal act)
 Age of partner (could indicate a criminal act)

59. What would you do…
 Your vice principal asks you for a list of all students in the
school that you know are pregnant. He says he wants to
notify these students about an alternative school for pregnant
and parenting teens and encourage them to go there. The
vice principal tells you the school board doesn’t want
pregnant girls on the school campus, and board members
have adopted a policy of transferring pregnant students out of
the regular school program.

60. These were the facts
in: Holt vs. Bellflower
Unified School
District., CA, 2002
 Mary Beth Holt, a school counselor, filed suit
against the Bellflower Unified School District for
wrongful termination after she refused to
disclose the names of pregnant students at her
high school. Holt wasn’t re-hired, and the
district did not make a case for not rehiring her.

61. In appeals court,
 Holt’s complaint was remanded back to
the lower court to be heard again. The
results of the lower court’s decision are
not published and the case may have
been settled.

62. How can PSCs avoid such emotional
and monetary cost & still maintain
credibility & ethical obligations to
students?
 First, give your opinion & assist in writing the
school policy on referrals to the academic
program provided by the alternative school,
hopefully BEFORE a conflict arises.
 Then, tell administrators you will consult with
the students and seek the students’
permission to be included on a list to the
administration & that you will make certain
these students know transferring is not
mandatory but optional and, depending on
the context of the situation.

63. Pregnant teen
counseling must
balance:
 A pregnant girl’s reproductive rights
(Supreme Court’s No Undue Burden
Standard)
 Parents’ right to control their children’s
upbringing and to have a voice in the
abortion decision

64. Consent for Abortion by
Minors Act
(TCA 37-10-301– 37-10-
307)
 Parental consultation is usually desirable and in
the best interests of the minor.
Based on:
(1) Protecting minors against their own immaturity;
(2) Fostering the family structure and preserving it as
a viable social unit; and
(3) Protecting the rights of parents to rear children who
are members of their household.

65. Rationale
(1) Immature minors often lack the ability to make fully
informed choices & grasp short & long-range
consequences;
(2) The medical, emotional & psychological
consequences of abortion are serious and can be
lasting;
 (3) The capacity to become pregnant and the capacity
for mature judgment concerning abortion are not
necessarily related;
(4) Parents ordinarily possess information essential to a
physician; and
(5) Parents who are aware that their minor daughter
has had an abortion may better ensure medical
attention after the abortion.

66. Consent of parents or
legal guardian; waiver
 37-10-303 (a)(1) (2)
No person shall perform an abortion (Note: includes U-486) on an un-
emancipated minor unless such person or such person's agent first obtains
the written consent of parent or the legal guardian of the minor.
 Failure of the person performing the abortion to obtain or retain the
documentation and consent is a Class B misdemeanor, punishable only by a
fine, unless the failure of the person performing the abortion to retain the
required documentation was due to a bona fide, imminent medical
emergency to the minor, in which case there is no violation.
A person commits a Class A misdemeanor who impersonates the parent or
legal guardian of an un-emancipated minor for the purpose of circumventing
the requirements.

67. Bypasses
 If neither a parent nor a legal guardian is available to the
person performing the abortion or such person's agent, or the
party from whom consent must be obtained pursuant to this
section refuses to consent to the performance of an abortion, or
the minor elects not to seek consent of the parent or legal
guardian whose consent is required, then the minor may
petition, on the minor's own behalf, or by next friend, the
juvenile court of any county of this state for a waiver of the
consent requirement.
(c) If a criminal charge of incest is pending against a parent, the
written consent of such parent is not required.

68. Ayotte v. Planned Parent
.
 U.S. Supreme Court found a law requiring
parent notification for minors seeking an
abortion, that offered judicial bypass and a
narrow life of the mother exception (but no
health exception) unconstitutional
because due process requires…

69. finding a law unconstitutional
when
 parental notification is required
without exception for medical
emergencies, remedies,
permanent injunction against
enforcement or injunction
prohibiting unconstitutional
applications.

70. Ohio v. Akron Center for
4 criteria for Parental Consent laws:
 Minor’s opportunity to show maturity to
make own decision;
 Abortion is in her best interests;
 Anonymity is guaranteed; and
 Bypass procedure is expeditious.

71. Tennessee & Judicial
Bypass
 Judicial bypass of parental consent
requirement to petition juvenile court in
minor's county of residence or in county
in which abortion was sought did not
impose undue burden on minor seeking
judicial bypass in violation of due
process.
Memphis Planned Parenthood, Inc. v. Sundq

72. May school counselors
be held liable for
abortion advice?
Arnold v. Board of Education of Escambia County, 1989
 Kay Rose, the PSC Counselor & the
Asst. Principal of the school were
accused of depriving free will, coercing to
get abortion and not tell parents, slavery
(students worked at school to earn
money to pay for abortion) under Section
1983 which creates a private right of
action when: 1) defendant’s conduct
causes a constitutional violation; 2) under
the color of state law.

73. The Court found the
school responsible for:
 invasion of familial privacy rights;
 violation of female’s privacy
rights; and
 violation of both minors’ equal
protection and free exercise
rights.

74. May PSCs (& LPCs) be
held liable for
abstinence only
guidance?
ACLU Foundation of Northern California

filed a lawsuit earlier this year on behalf
of two parents, the American Academy of
Pediatrics California District IX and the
Gay-Straight Alliance Network because
the textbook LIFETIME HEALTH did not
meet the legal requirements of a 2003
law requiring public schools provide
medically accurate AIDS prevention.

75. The adopted textbook
LIFETIME HEALTH
 instructs that only abstinence, respecting
yourself, going out in group, and getting
“plenty of rest” can help prevent STDs;
 does not mention condoms; and
 compares a non-virgin female to a dirty
shoe.

76. Resulting in a $1
Million Settlement
 against Clovis Independent School
District.

77. Ethically, evidence-based
treatment is required of
PSCs & LPCs,
 & congressionally mandated research
has found that abstinence-only
instruction does nothing to reduce teen
sexual activity, and has resulted in
students who were less likely to believe
that condoms are effective than students
who had no sex education at all.
 Burlingham, 2012

78. Duties of LPC vs. PSC
re: pregnant minors
 Both should treat according to medical
model as it is an inherently risky
condition & litigious issue
 LPCs will counsel
 PSCs usually will refer

79. PSCs refer pregnant
teens because:
enlisting other trusted members of the community
to assist pregnant teenagers should:
 1) prevent PSC from extending beyond their
scope of practice (Lee & Putman, 2008);
 2)“assuage those who want to guarantee that
adolescents consult with an adult in a time of
crisis, while also protecting teenagers who
reasonably fear discussing pregnancy with their
parents” (Manian, 2012).

80. This referral process
is even more critical in
the four states that
allow …
 girls to obtain consent from a healthcare
professional in lieu of parental consent or
judicial bypass.

81. Dual
licensure
conflicts
 .

82. Why require licensure?
 PROTECTION OF THE PUBLIC
 Minimal assurances of provider competency
 Malpractice reporting mechanism
 PROTECTION OF THE PROFESSION
 Identity & status of profession
 Economic competitiveness, resulting in
restrictions on the use of a title (title act) or on
the specific practice (practice act)
 Policing of colleagues’ unethical actions

83. Licensure Differences:
LPC vs. PSC
 Setting
 Referral vs. Treatment
 Conflict of interest
 Ethical Standards (ACA v. ASCA)
 Licensure Standards/Licensing Board
(Board of Licensed Professional Counselors, Licensed Marital &
Family Therapists and Licensed Pastoral Therapists v. Board of
Education)

84. Avoid problems with
dual licensure as LPC
and PSC: Avoid
confusing the public
 Don’t overlap populations or hang shingle in
your school district;
 Adhere to the higher standard; and
 Don’t overreach your scope of practice in the
setting in which you are practicing (don’t offer
long-term therapy in the school setting or refer
to your LPC status).

85. What are the limitations of
individual counseling in the
school setting?
 Can promote counselor’s caregiver needs rather than
student’s autonomy;
 Is not in right setting for complex issues or long-term
intervention;
 Requires abbreviated MSE to determine if brief,
solution-oriented intervention or referral is best;
 Monopolizes time for a few rather than including all
students;
 Must recognize parents’ right to lead their children in
decision-making;
 Should avoid counselor’s personal values; and
 Allows for little documentation or measure of
effectiveness.
 (Lee, J. & Putman, S., 2008)

86. Paradox of PSC’s
training
 A Professional School Counselor’s
training prepares them to screen for DSM
IV-TR (soon to be DSM-V) diagnoses for
REFERRAL not TREATMENT;
 Our professional observations should
remain IN OUR HEADS as RULE-OUTS,
not as diagnoses and not written.

87. Statutory privileged
communication for LPCs
 1. T. C. A. § 63-22-114:
The confidential relations and
communications between licensed
marital and family therapists, licensed
professional counselors or certified
clinical pastoral therapists and clients
are placed upon the same basis as
those provided by law between
attorney...

88. But no statutory
privileged
communication for:
 Tennessee Professional
School Counselors

89. Assessing
lethality
 .

90. School systems and school
faculty and staff may be legally
responsible for failing to
intervene with students who
are at-risk for suicidal
behaviors (Ward & Odegard,
2011).
 Because of this legal liability, the state of
Tennessee has enacted legislation that
requires annual in-service training in
suicide prevention for school personnel.

91. LPC’s vs. PSC’s Role in
suicide & school
violence prevention?
 LPCs focus on individual
assessment & treatment,
while the PSCs focus on
screening to identify and
serve the highest risk
students.

92. Ward & Odegaro, 2011
 School based suicide assessment &
intervention strategies help ensure school
safety.
 All school personnel are responsible to
ensure school safety by assessing the
potential for suicide and responding to
crisis through:
 suicide education/prevention programs
 crisis management programs, and
 coordinating services with community mental
health agencies to address at-risk behaviors.

93. Latzman, et al, 2010
 found that the rates of self injurious behaviors
vary greatly as a function of gender,
race/ethnic background and availability of
services.
 Recommended:
 1) designing & implementing more targeted
prevention & intervention efforts especially in rural
areas or other areas with limited resources; and
2) identifying the highest risk groups to facilitate
the appropriate allocation of resources.

94. Scott, et al, 2009
 advocate the use of voluntary universal
screening as a method of early identification of
students at risk for suicide by:
 1). Monitoring issues that can be associated
with suicidal behavior such as school
absences, substance abuse and behavioral
problems to bring students to the attention of
school staff; and
 2). Implementing universal screening using the
Columbia Suicide Screener so personnel can
identify the students at elevated risk for suicide
even though their symptoms are less overt.

95. Joe & Bryant, 2007
 Suicide prevention screening in the schools
must be evidence based
 3 main categories of programming:
curriculum programs,
in-service training for teachers and staff,
&
school-wide suicide screening.
Resistance to suicide screenings due to
concerns that suicidal thoughts and
behaviors will increase.

96. 2012 Update:
.
New
Tennessee
Laws & Court
Cases re:
minors

97. 2011 Tennessee Court
Case re: Bullying
 Moore v. Houston County Board of
Education, 358 S.W.3d 612 (Tenn. Ct.
App., M.S., Dinkins, 2011)
 discussed earlier

98. Re A.M.K., 36 TAM 35-
11 (Tenn. Ct. App.,
E.S., Swiney, Aug. 11,
2011
 FACTS: The father filed a petition to establish
parentage and co-parenting time and to have
the child bear his surname.
 FINDING: A supportive, unmarried father can
get his surname added to the birth certificate
as a hyphenated name if it is determined by
the court to be in the best interest of the child,
such as affirming his bond to his father.

99. Chapter 811, Public
Acts 2012, amending
T.C.A. § 10-7-504(a) eff.
Apr. 25, 2012
 “All records containing the results of individual
teacher evaluations administered pursuant to
the policies, guidelines, and criteria adopted by
the State Board of Education under 49-1-302
shall be treated as confidential and shall not be
open to the public. Nothing in this subdivision shall
be construed to prevent the LEA, public charter
school, State Board of Education, or Department of
Education from accessing and utilizing such records
as required to fulfill their lawful functions.”

100. Chapter 670, Public
Acts 2012, adding
T.C.A. § 49-6-1030 eff
Apr. 10, 2012 “prohibit any
 [the school system shall not]
teacher in a public school system of this state
from helping students understand, analyze,
critique, and review in an objective manner the
scientific strengths and weaknesses of existing
scientific theories covered in the course being
taught within the curriculum framework
developed by the state board of education.
(cont.)

101. Cont.
 This section only protects the teaching of
scientific information, and shall not be
construed to promote any religious or
non-religious doctrine, promote
discrimination for or against a particular
set of religious beliefs or non-beliefs, or
promote discrimination for or against
religion or non-religion.”

102. Chapter 690, Public
Acts 2012, adding
T.C.A. § 49-6-2907 eff
 “Apr. 10, 2012
(a) LEAs and school administrators may not
prohibit personnel from participating in religious
activities on school grounds that are initiated by
students at reasonable times before or after the
instructional day so long as such activities are
voluntary for all parties and do not conflict with
the responsibilities or assignments of such
personnel.
 (cont.)

103. (b)
 Nothing in this section shall prohibit LEAs and
school administrators from allowing personnel
to participate in other constitutionally
permissible religious activities on school
grounds.”

104. Ethical PSCs recognize
 Freedom OF religion:
 The student’s freedom of religion
 The student’s family’s upbringing right to oversee
religious decision
 Freedom FROM religion, which involves the
PSC protecting students from:
 All adults’ religious beliefs and
 Other students’ religious beliefs that are
proselytizing, sectarian, or coercive

105. Ethical LPCs recognize
 Freedom OF religion:
 Their minor client’s freedom of religion
 Their minor client’s family’s upbringing right to
oversee religious decisions
 Freedom FROM religion, which involves the
LPC not imposing personal religious beliefs on
clients

106. Chapter 781, Public
Acts 2012, adding
T.C.A. § 49-6-4018 eff.
July An LEA shall include in its student
 “(a) 1, 2012.
discipline code a provision prohibiting
students from wearing, while on the
grounds of a public school during the
regular school day, clothing that exposes
underwear or body parts in an indecent
manner that disrupts the learning
environment.
 (cont.)

107. Cont.
 (b) an LEA shall specify in its student
discipline code the disciplinary actions
that shall be taken against a student for a
violation of subsection (a).
 (c) Subsection (a) shall not be enforced
in a manner that discriminates against a
student on the basis of race, color,
religion, sex, disability, or national origin.”

108. 2012 Change in the
law to expand
immunity (=statutory
immunity)
 Chapter 687, Public Act 2012, amending TCA
49-6-4016 eff. July 1, 2012:
 Discussed earlier.

109. References
Arnold v. Board of Education of Escambia County , US Court of Appeals 11th Circuit, 880 F. 2d 305; 1989 U.S.
App.
Ayotte v. Planned Parenthood of Northern New England , 2006, 126 S.Ct. 961.
Burlingham, P. (2012). Resources for parents and community members about sex education in California, ACLU
of Northern California Website, August 21, 2012.
Chapter 670, Public Acts 2012, adding T.C.A. § 49-6-1030 eff Apr. 10, 2012.
Chapter 690, Public Acts 2012, adding T.C.A. § 49-6-2907 eff Apr. 10, 2012.
Chapter 781, Public Acts 2012, adding T.C.A. § 49-6-4018 eff. July 1, 2012.
Chapter 811, Public Acts 2012, amending T.C.A. § 10-7-504(a) eff. Apr. 25, 2012.
Cyber bullying. (2012). Retrieved from http://www.stopbullying.gov/topics/cyberbullying/index.html on February
22, 2012.
Gammon v. Edwardsville Community Unit School District , 82 Ill. App.3d 586 (1980) 403 N.E.2d 43.
Genshaft, J. & Wisniewski, J. (1988). Present credentialing and prospects for the future, Professional School
Psychology, 3 (3), 187-194.
Holt v. The Superior Court of the State of California , 2002 WL 1399106.

110. References, continued
Joe, S. & Bryant, H. (2007). Evidence Based Suicide Prevention Screening in Schools. Children and Schools,
29(4), 219-227.
J.S. v. Blue Mountain School District , 650 F.3d 915; 2011 U.S. App. LEXIS 11947 (2011).
Latzman, R.D., Gratz, K.L., Young, J., Heiden, L.J., Damin, J.D., and Hight, T.L. (2010). Self Injurious
Thoughts and Behaviors Among Youth In An Underserved Area of the Southern United States: Exploring and
Moderating The Roles of Gender, Racial/Ethnic Background and School Level. Journal of Youth and
Adolescence, Vol. 39, 270-280.
Lee, J. & Putman, S. (2008). Individual counseling as intervention in the schools. In H.L.K. Coleman and C.
Yeh (Eds.), Handbook of school counseling (pp. 397-408). New York: Taylor & Francis Group, LLC.
Lenhart, A., Madden, M., Smith, A., Purcell, K., Zickuhr, K., & Rainie, L. (2011). Teens, kindness, and cruelty on
social network sites. Pew Internet & American Life Project. Retrieved November 12, 2012.
Lenhart, A., Purcell, K., Smith, A., & Zickuhr, K. (2010). Social media & mobile Internet use among teens and
young adults. Pew Internet & American Life Project. Retrieved October 30, 2012 from
http://pewinternet.org/Reports/2010/.
Lepage, M. (2012). Cyber-bullies cower behind fists of anonymity. The Gazette Montreal, October 27, 2012).
Logan v. Sycamore Cmty. Sch. Bd. of Educ., 780 F. Supp. 2d 584, 2011 U.S. Dist. LEXIS 10505 (S.D. Ohio, 2011).
Maldonado v. Josey, 975 F .2d 727, 733 (10th Cir. 1992).

111. References, continued
Manian, M. (2012). Functional parenting and dysfunctional abortion policy: Reforming parental involvement legislation. Association
of Family and Conciliation Courts Family Court Review, 50 Fam. Ct. Rev. 241, April, 2012, 241-250.
Memphis Planned Parenthood v. Sundquist, 97-6239, United States Court of Appeals for the Sixth Circuit, 184 F. 3d 600; 1999 U.S.
App. LEXIS 18895, 1999.
Moore v. Houston County Board of Education, 358 S.W.3d 612 (Tenn. Ct. App., M.S., Dinkins, 2011).
Education,
Re A.M.K., 36 TAM 35-11 (Tenn. Ct. App., E.S., Swiney, Aug. 11, 2011.
A.M.K.,
Reyna v. Independent School District Number 1 of Oklahoma County, Oklahoma, commonly referred to as PUTNAM CITY
SCHOOLS, Case No. CIV-09-1223-D UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
U.S. Dist. LEXIS 41863, 2012.
Schneider, S. K., O'Donnell, L., & Stueve, A. (2012, January). Cyber bullying, School Bullying, and Psychological Distress: A
Regional Census of High School Students. American Journal of Public Health, 102(1), 171-177.
Health, 102(1),
Scott, M., Wilcox, H., Schonfeld, I.S., Davies, M., Hicks, R.C., Turner, J.B., and Schaffer, D. (2009). School Based Screening To
Identify At-Risk Students Not Already Known to School Professionals: The Columbia Suicide Screen. American Journal of
Public Health, 99(2), 334-339.
Health,
Tennessee Code Annotated 63-22-114.
Tinker et al. v. Des Moines Independent Community School District et al. 393 U.S. 503; 89 S. Ct. 733, 1969.
T.K. & S.K. v. New York City Dept. of Ed., 10-CV-00752, 779 F. Supp. 2d 289; 2011 U.S. Dist. LEXIS 44682.
UNICEF INNOCENTI RESEARCH CENTRE, A League Table of Teenage Births in Rich Nations, 2 (2001).
CENTRE,
Ward, J. and Odegaro, M.A. (2011). A proposal for increasing student safety through suicide prevention in schools. The Clearing
House, 84(4), 144-149.
House,