School Law- a Review, & Counselor as a Professional

CED614Session II

Associate Professor Harvey HoyoNational University- Costa Mesa

Objectives

Influences on School Laws

Laws & student rights

Special Education &

Laws

The Ethical Test

The Professional

School Counselor

Quick Write # 1:From your perspective, what are the key

influences of school law?

The influences on school law

Constitution

Statutes (Legislation)

Regulations (Codes)

Legal Decisions (Case Law)

Quick Write #2:

From your previous session, write the Constitutional Amendment you feel most impactful to the role of the school counselor? Why?

Constitutional Amendments and Schools1st Amendment

Freedom of press, religion, assembly, petition

4th AmendmentSearch and seizure

5th AmendmentDue process

Constitutional Amendments and Schools10th Amendment

Powers left to the states14th Amendment

Due process and equal protection for citizens

Quick Write # 3What were the two case laws that impacted student rights from the standpoint of gender equity and discrimination?

Federal CASE Laws Impacting Discrimination

Civil Rights Act of 1964No person in the United States shall on

the grounds of race, color, or national origin, be excluded from participation in or be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.

Title IXProhibits discrimination on the basis of

gender 9

Quick Write # 4There are two ways to categorize laws.

One of them is statutes- write down the other type.

Your Answer is . . . . .

Case Law – refers to principles of law established by courts; based

on legal precedents.

Statute – a state or federal law.

Quick Write # 5In the last session you studies several examples of

case law that impacted the schools:Select one from the following which you feel will have

the most impact on your in your role as a school counselor.Was it…

Tinker v. Des Moines Bethel School District v. Fraser

Hazelwood School District v. KuhlmeierGoss v. Lopez

WHY?

Your answer: deals with the rights of school to limit student expression

Tinker v. Des Moines – Students’ rights to

freedom of speech and freedom of expression

Bethel School District v. Fraser – upheld public schools’ authority to

punish students and to prohibit students’ use of

vulgar, obscene, lewd and offensive speech in public

discourse.

Hazelwood School District v. Kuhlmeier – upheld

authority of school officials to censor school

newspaper written by students as a curricular

activity.

Goss v. Lopez – upheld students’ rights to due

process prior to exclusion from school in cases of

suspension and expulsion in public schools.

STUDENTS AND THE LAW:

Corporal Punishment – violation of California

Education Code.

New Jersey v. T.L.O. – justifies

student searches based on reasonable

suspicion.

Jeglin v. San Jacinto -

California Dress Code prohibits students from wearing gang

related clothing in public high

schools.

SCHOOL DESEGREGATIONPlessy v. Ferguson established doctrine of

“separate but equal.”Brown v. Topeka overturned Plessy v. Ferguson.Brown decision formed basis for mainstreaming

in Special Education.

De facto – must be accepted, but does not have sanction of laws. (In fact).

De jure – legitimate state of affairs that has force of law behind it. (By right).

Quick Write # 6Key Legal Concepts

“Substantial Educational Disruption”

Due ProcessZero Tolerance

LiabilityMisfeasanceMalfeasanceNonfeasance

Elements of NegligenceDuty to Protect

Counselors have a duty to anticipate foreseeable dangers and take necessary precautions to protect students in their care. Specifically,

counselor’s duties include: adequate supervision, maintenance of equipment and facilities, and heightened supervision of high-risk

activities.  

Failing to Exercise a Reasonable Standard of CareThe degree of care exercised by a "reasonable" counselor is

determined by factors such as: (a) the training and experience of the counselor in charge, (b) the student’s age, (c) the environment in which

the injury occurred, (d) the type of instructional activity, (e) the presence or absence of the supervising counselor, and (f) a student’s

disability, if one exists. Proximate Cause

Was there a connection between the breach of duty by the counselor and the student’s injury? Was the injury a natural and probable cause of the wrongful act (i.e., failure to supervise), and ought to have been foreseen in light of the attendant circumstances?" (Scott v. Greenville,

1965).  Actual Injury

Was there an actual physical or mental injury.

CONFIDENTIALITY

Ethical Concept

What is said between two people will remain secret and will not be shared

without consent

PRIVILEGED COMMUNICATION

Legal Concept

Protects from Forced Disclosure

YES: School Counselors & School Social Workers

NO: School Nurses & School Psychologists

LEGAL EXCEPTIONS TO CONFIDENTIALITY

Child Abuse & Neglect

Potential harm to self and/or others

RECORDS

Educational Records (FERPA)

Private Records - “kept in sole possession of the maker” (no FERPA)

Confidentiality

FEDERAL FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT Educational Records – records that are directly related to a student and maintained by an educational agency (does not include records that are “kept in the sole possession of the maker of the record.” Parents (and eligible students) have the right to: Inspect and review the student’s records Seek amendment of the student’s records that are inaccurate Consent to disclosures of personally identifiable information

Schools may charge a fee for a transcript copy Consent is not required when disclosure is: to other school officials with legitimate interests to officials of another school or postsecondary institution connected to financial aid for which the student has applied to the juvenile justice system organizations conducting studies for educational agencies or

institutions (no personal identification) accrediting organizations to the parents to comply with a subpoena in connection with a health or safety emergency

FERPA

NO FEDERAL OR STATE LAWS REQUIRING

PARENT PERMISSION FOR STUDENT

ASSISTANCE SERVICES

SPECIAL EDUCATION AND SECTION 504 REQUIRE PARENT

NOTIFICATION

RECOMMENDATION

Involve parents at the earliest time and fullest

extent possible.

Long term solutions depend on parent support.

Parent Permission / Notification

Counselor Guidelines

● Check with your principalprior to advising to parentsthe need for outsideassessments or services

COUNSELOR GUIDELINES

● Rather than recommending that a family seek assistance in the community, present outside assistance as an option. Provide the family with a list of many providers.

Seeking for Outside Services

SPECIAL EDUCATION / INDIVIDUALS WITH DISABILITIES

Least Restrictive Environment – initially identified special education children should be placed in the most basic special ed program (RSP) which may include participation in regular education classes for part of the day unless IEP requires other arrangements to deal with more restrictive needs.

Americans with Disabilities Act (ADA) extends antidiscrimination protections for disabled students in a school setting.

Hudson v. Rowley – child performs better than average child in her class. Court rules that she is receiving adequate services.

Thomas v. Atascadero – exclusion of student based on HIV/AIDS violates Rehabilitation Act, Section 504. Student entitled to services required for handicapped persons.

Students’ Rights in Disciplinary Actions

Students have a right to an education; in suspension situations that last longer than 10 days, the following due process must be met:

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A written notice specifying charges and the time and

place of a fair, impartial hearing

A description of the procedures to be

used, including the nature of evidence

and names of witnesses

The right of students to legal

counsel; to cross-examine; to present their own evidence

A written or taped record of the

proceedings as well as the findings and recommendations

The right of appeal

Students’ Rights in Disciplinary Actions (continued)

Suspensions of students with exceptionalities must take into

account whether the behavior was linked to the exceptionality.

Manifestation Determination

Quick Write #7:

When up for a possible suspension, why must a special education student be treated

differently?

Response to Quick Write # 7“By consulting with the case carrier, we have confirmed that the disability does not impair the student’s judgment in this case.- manifestation determination”

Counselors & Professionalism

Adherence: laws & policies

Ethical Standards

Community Standards

How is Professional Behavior Developed?Professiona

l Organizatio

n

Continuing Education

Principal’s Annual

Evaluations

District Due

Process Procedures

The Courts

Professionalism

“You are always on

duty”

Professionalism: Dual Relationships

A dual relationship exists when a counselor serves in the capacity of both a counselor and at least one other role with the same student or parent.

Keeping Professional: Stadler’s 3 Step Ethical Test

Ethical Test

Test of Justice

Test of Publicity

Test of Universality

ConclusionYou’re a professional school counselor- act like one!

The goal of the National University School Counseling Program = think like a counselor