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School Violence and Bullying
The following is a de-identified composite of calls made to the ACA Risk Management Helpline, operated by Anne Marie “Nancy” Wheeler, J.D., an attorney licensed in Maryland and the District of Columbia. This information is presented for educational purposes. For specific legal advice, please consult your own local attorney.
Question: I am a school counselor and am concerned about the continuing violence and bullying that is taking place in our nation’s schools. Do you have any suggestions for what my colleagues and I can do to lessen our liability risk?
Answer: You are wise to think proactively about the problems of school violence and bullying. As we consider this question, there are reports in the media of school shootings in the first two months of 2012 in Ohio and Texas as well as a hammer attack by a 14-year-old girl at Columbine High School, the scene of a notorious mass shooting in 1999. It’s been estimated that approximately 160,000 children miss school every day in the United States out of fear of being bullied.1 Furthermore, as texting and social media use increase, especially among younger children, the risk of impulsive behavior based on the content of such communication may also rise.
As a school counselor, you should be aware that the Family Educational Rights and Privacy Act (FERPA)2 does not stop you from releasing relevant counseling information in order to protect the health and safety of students or other individuals. Additionally, in certain emergency situations, relevant information may be released to law enforcement and trained medical personnel.3 Confidentiality does bend where a client notifies a counselor of an intention to harm a third party.
School counselors will not automatically face liability every time a student commits a violent act. They can’t predict with certainty which student will necessarily become violent. However, school counselors, like counselors in private practice, can take steps to mitigate the risk of harm to third parties as well as the liability risk to themselves. The following guidelines may help on both counts:
Apprise clients of the limits of confidentiality at the outset of counseling and give periodic reminders. In the school context, it may be wise to build a statement regarding confidentiality and its limits into the school handbook so both parents and students are informed.
Consult with a trusted colleague and/or supervisor.
Know the law in your state and whether it requires a communicated threat against a specifically identifiable victim or if it encompasses a broader duty. If there is a statute that provides immunity for good faith acts on your part, know what it says about actions you must take. Your state counseling association, school district or local attorney may be able to help you understand your legal obligations.
Review the 2005 ACA Code of Ethics, ASCA Code of Ethics or other ethics codes applicable to your practice.
Consult with your attorney or your school’s attorney if you are concerned about your exposure or if your legal duty is unclear.
Make referrals where appropriate. School counselors cannot legally provide medication or actual psychological services and must sometimes suggest in-depth mental health services for troubled students.
Obtain prior history. Has the client acted out violently in the past? What were the circumstances? Was it premeditated? Does the client frequently make impulsive decisions? Is substance abuse an issue? Is there reason to believe the client is only discussing a fantasy, not a real threat?
Inquire about the client’s access to weapons, homicidal ideation, and current plans if potential dangerous behavior is at issue.
Consider all appropriate clinical responses and the consequences of each (warning the potential victim(s); calling the police; involving a psychiatrist to do a medication evaluation, etc.). If clinically appropriate, involve the client in your decision making. Do not reveal confidential information that is not necessary to protect potential victim(s).
Know and follow applicable institutional policy. School counselors may be held liable for a failure to uphold the school district’s policy on potentially dangerous or suicidal students.
Document all actions you take, those you reject, and the rationale behind each decision. In the school setting, policy on documentation and record-keeping may differ from rules for private practice counselors.4
Printed with permission from the American Counseling Association (counseling.org)
- Zeff, T. Six Warning Signs that Your Child Is Being Bullied. Retrieved from http://www.drtedzeff.com/news/warningsigns.php.
- Family Educational Rights and Privacy Act of 1974 (FERPA or Buckley Amendment), 20 U.S.C. § 1232g. See also regulations at 34 C.F.R. § 99.31 (a)(10) and § 99.36.
- 34 C.F.R. § 99.31 (a)(10) and § 99.36.
- These guidelines were adapted for school counselors from Wheeler, A.M. & Bertram, B. (2012). The Counselor and the Law: A Guide to Legal and Ethical Practice (6th ed.). Alexandria, VA: American Counseling Association.