Summary

The following case study discusses ethical considerations when career center professionals seek opinions and feedback of other career center staff on challenging student situations. The Principles for Ethical Professional Practice are used to address this scenario, incorporating Principles 2, 4, and 5. This case study provides insight on the following:

• Student/counselor confidentiality and Family Educational Rights and Privacy Act (FERPA).
• When/how it is appropriate for counselors to ask for feedback from other career center professionals.
• Managing staff, including professional and student staff members.

The Case

Scenario: The career center director has encouraged the staff to interact and brainstorm with each other when problem student situations arise. The interaction could occur in person or via email.

Several of the counselors have been emailing each other about Raheem, a student who has had problems landing a job. Jill, the counselor with whom the student has been working, has pinpointed the problem as his poor presentation during interviews. Jill has been emailing Joe and Joyce, other staff members, about the problem and how the issue should be addressed with the student. These individuals know the student and have worked with him in the past. Some of the emails refer to the student’s dress as “pimp-like” and to his communication abilities as if “he were high on drugs.” Jim opines that “Maybe if Raheem didn’t look like he’d been up all night working at a gas station, he would do a better job at the interview.”

Pam, a student intern in the office, happens to see one of these emails and tells Raheem. Raheem is furious and storms into the office demanding an explanation. Pam also becomes concerned about what is being put in writing about her and demands to see all of the emails among the counselors pertaining to her.

Questions:

• What are the ethical/legal issues that this scenario raises?
• Are diverse perspectives and identities valued in the office or among the staff?
• Does “counselor confidentiality” have any significance in this scenario?
• Would your response be any different if this exchange occurred in the context of a staff meeting? If so, why? If not, why not?
• What about the intern’s access to the email?
• How do you handle this situation?

Analysis: This issue most certainly needs to be addressed by the career center director with the student, student workers, and all staff members. We know that, as the supervisor, you have encouraged your staff to discuss student situations in person or by email, and more of the discussions are now being conducted by email, especially since the COVID-19 pandemic commenced. One of the counselors, Jill, has been emailing two other counselors, Joe and Joyce, about Raheem, a student with whom she has been working. Some of this email communication contains derogatory comments about Raheem. A student intern, Pam, sees these derogatory emails and informs Raheem. Both Pam and Raheem are upset. Pam demands to see all of the email communications concerning her, and Raheem demands an explanation from you.

The following information is not known: Were the comments about Raheem based on fact or merely speculative opinions? Which counselor said what? How did the student intern obtain access to the counselors’ email communication about Raheem?

Ethically, this scenario raises the issue of maintaining confidentiality of student information. As outlined in Principle 5, all personal information related to candidates and their interviews, and their engagement with services, programs, and resources, must be protected. While information about Raheem was not shared outside of the career center, the staff members in question did not exercise sound judgment and fairness in maintaining the confidentiality of student information. Also, the fact that some of the counselors made derogatory comments about Raheem calls into question their professional competence and whether they have appropriate counseling skills. The comments further expose the office to potential liability for discrimination if they were based upon Raheem’s race or gender.

Further, as outlined in Principle 2, career services professionals shall “act without bias when advising, servicing, interviewing, or making employment decisions.” The counselors’ comments are troubling because they stem from differences in values with Raheem and may not be based on fact. In addition, expressions such as “pimp-like” and “as if he were high on drugs” as factors that compromised Raheem’s abilities are judgmental statements and speculative in nature and may constitute discrimination. All counselors should recognize this language as inappropriate. However, even the subtler language Jim uses, about working all night at a gas station, could reflect bias. Many students need to work long hours to pay tuition. In this case, bias against students with greater financial need is distracting the counselors from doing their job. Raheem may very well need to work all night; the counselors should be looking for ways to help him succeed despite this challenge, rather than criticizing Raheem. According to NACE’s Diversity, Equity, and Inclusion Statement, inclusion is a core value. Accordingly, as NACE members and organizations engage in the career development and/or recruitment of the future workforce, members should “show respect for individual, cultural, or other identity-based differences while valuing and acknowledging unique skills and experiences.”

Principle 4 is also called into question as the student intern’s access to student information may violate the Family Educational Rights and Privacy Act (FERPA), a federal law that restricts access to student records in order to protect students’ privacy. FERPA’s protections may extend to notes or comments about a student. As such, the comments made by the counselors may be protected by FERPA and therefore the disclosure of the information would be contrary to the requirements of the law. Principle 4 states that career services shall “comply with laws associated with local, state, and federal entities, including but not limited to EEO compliance, immigration, and affirmative action, and to respond to complaints of non-compliance in a timely and prudent manner.”

Principles That Apply:

• Principle 2: Act without bias when advising, servicing, interviewing, or making employment decisions.
• Principle 4: Comply with laws associated with local, state, and federal entities, including but not limited to EEO compliance, immigration, and affirmative action and to respond to complaints of non-compliance in a timely and prudent manner.
• Principle 5: Protect confidentiality of all personal information related to candidates and their interviews, and their engagement with services, programs, and resources; protect confidentiality of student information related to professional plans.

Options for Resolution: Several questions need to be addressed. They include:

Are diverse perspectives and identities valued in the office or among the staff?
No. In this case, assumptions were made regarding Raheem based upon his dress and demeanor. According to the NACE’s Diversity, Equity, and Inclusion Statement, in creating a supportive learning environment for all students, it is critical to that the environment “encompasses communication of diverse perspectives, experiences, and realities.” Thus, it is imperative to value Raheem’s unique experiences. Facts should be used to discuss the student. As such, it would have been acceptable to describe Raheem’s appearance and behaviors in the email instead of labeling them, provided such information is relevant to the discussion and to assisting the student. Descriptors would allow for those receiving the information to identify changes in Raheem’s appearance and behaviors that are outside of his norm. Accordingly, Jill, Joe, and Joyce can use this information to validate their concerns about Raheem. If necessary, counselors could present their concerns to the director for additional consideration and feedback. The counselors’ comments could be viewed as discriminatory, based on Raheem’s race, gender, or other protected classification.

Does “counselor confidentiality” have any significance in this scenario?
Clients, or students, as in Raheem’s case, share information with counselors with the understanding that their confidences will not be compromised. It would have been permissible for Jill to discuss Raheem’s situation with other staff members if she had obtained his permission to do so. At a minimum, however, student interns should not have access to these confidential discussions.

Would your response be any different if this exchange occurred in the context of a staff meeting? If so, why? If not, why not?
No. While there may not be documented evidence of the comments had the conversation occurred in a meeting instead of in email, and assuming no minutes were taken, there were still witnesses to the inappropriate comments and discussion. Accordingly, the potential liability is not negated merely because the words are not documented.

As more counselors are working remotely, offices should identify ways that a student’s privacy might be violated and develop methods to protect confidentiality and comply with FERPA. Besides discussing students via email, counselors may be discussing confidential matters during video calls while others are within earshot.

What about the intern’s access to the email?
It is possible that interns may, at times, have access to confidential student information, regardless of the source, but student interns, just as counselors, must be trained in the proper use of this information and abide by office policies and guidelines and must be provided with information related to FERPA.

This is another example of the need for offices to identify ways that a student’s privacy might be violated. In this case, Pam had access to email. As offices operate remotely, they should confirm that their new procedures adequately protect students. For example, a student intern who previously worked with confidential files under the direct supervision of a counselor may now have virtual access to confidential files at all times.

What is the director to do?
The career center director should apologize to the student and offer to reassign him to another counselor, or, given the seriousness of the situation and his discomfort, offer to work with Raheem personally.

In addition, the director should speak with career center staff, individually and collectively, to document the situation, explain why this type of communication is unacceptable, and provide discipline if necessary. Then, the director should require the staff to complete professional development/training specifically designed to counter microaggressions and bias for the purpose of creating a more inclusive, respectful, and productive counseling/coaching and workplace environment.

What about Pam’s request to review her emails?
Pam’s request to review her emails brings up a few different issues for the career center and educational institution to address. As an initial matter, the determination has to determine whether FERPA is applicable. FERPA generally provides that the eligible student must be given the opportunity to “inspect and review” her education records. (34 C.F.R. § 99.10(a))

Although the phrase “inspect and review” is not defined in the regulations, the regulations provide that, if “circumstances effectively prevent the…eligible student from exercising the right to inspect or review the student’s education records,” the educational agency or institution shall: 1) provide the eligible student with a copy of the records requested; or 2) “[m]ake other arrangements” for the eligible student to inspect and review the requested records.” (34 C.F.R. § 99.10(d))

Whether the emails constitute educational records requiring the school to provide Pam the ability to inspect and review the documents is the issue. Courts have found that emails that are not contained in the central student file may not constitute an educational record and are therefore not subject to inspection and review. Nevertheless, the institution’s policies and procedures may designate such emails as “educational records” and they would therefore be subject to review. Regardless, Pam’s request cannot merely be denied; the institution should review the request and consult with legal counsel to determine if Pam will be provided access to inspect and review the emails at issue.

The director should also work with staff to formulate a policy and guidelines about the dissemination of confidential student information in the context of counseling sessions.

Reviewed and revised by the 2020-21 Principles for Ethical Professional Practice Committee. Posted October 2021.