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House Ed Kills HB 1077, Protects Counselor-Student Confidentiality from Lawyers

Some legislators want to boost student privacy online at school. Others sought to reduce student privacy with school counselors. House Bill 1077 would have allowed parents to waive the confidentiality between a school counselor and their children under age 16.

As I understand it, lawyers brought HB 1077 to get counselor-student confidentiality out of the way and allow them to use counseling records in custody battles. Spearfish school counselor Brady Sumners tells me that this confidentiality is essential for doing his job. Confidentiality is not about keeping secrets from parents but building trust so students will explain their problems to him. Sumners says such trust allows him to build a professional relationship with students. Far from seeking to supplant parents with that relationship, Sumners says that once students explain to him what's wrong, he encourages them to bring parents into the loop and involve them in seeking solutions.

One would think that lawyers, who enjoy their own legally protected confidence, would understand the necessity of trust in such a close professional relationship. At least nine members of House Education understand: they voted yesterday to defer House Bill 1077 to the 41st day, which means we won't be hearing any more about it, and counselors may continue to offer students their confidence.


  1. leslie 2015.02.11

    lawyers job: zealously pursue client's goal.

  2. mike from iowa 2015.02.11

    How is it jails are allowed to record lawyer/client phone calls? What happened to confidentiality between lawyers and clients? Student/counselor records should remain privileged.

  3. bearcreekbat 2015.02.11

    mfi, jails have security concerns that are used to justify listening in on telephone conversations. Inmates and their attorneys are informed that such calls will be monitored and even recorded, hence both know that any conversation will not be confidential.

    When a lawyer and inmate talk in person at a jail, however, they are given a private room and anything said in that room remains confidential or privileged and may not be used against the inmate in court. .

  4. Anne Beal 2015.02.11

    One thing I found out personally, the hard way, is that those confidentiality deals only protect the counselor, who cannot be compelled to testify about what he or she has learned in sessions.
    There is no protection for a client who doesn't want the counselor testifying. The client cannot prevent a counselor from testifying if he or she wants to.
    So if a counselor WANTS to testify in a child custody case, there's nothing the child or his parents can do to prevent it.

  5. larry kurtz 2015.02.11

    So, protection for a minor seeking abortion rights counseling has been breached?

  6. larry kurtz 2015.02.11

    What about protection for a clergy member who has committed a crime against a minor and confesses it to another priest: is that still protected privilege?

  7. Roger Elgersma 2015.02.11

    I am not sure about here but in Minnesota if a professional(pastor, counselor, teacher etc.) hears about a child getting molested they are required by law to report it to the authorities.
    But in divorce, if a Dad has great values and the mother does not, it becomes impossible for Dad to get any information since they all think that would 'cause trouble'. So it becomes impossible to become a responsible parent or to teach your child to be responsible if they can escape to mom and school to continue their fun and games. Then if Dad wants rights as a parent he is blamed for putting his own wishes ahead of the child.

  8. leslie 2015.02.11

    i have a real problem using an adversarial dispute system like the courts to resolve custody. it seems the antithesis to "best interests of the child".

  9. caheidelberger Post author | 2015.02.11

    Wants to testify, Anne? The statute HB 1077 sought to weaken, SDCL 19-13-21.1, seems pretty clear: school counselors don't get to pick what and whether they divulge in court. The law says they cannot divulge anything they learn in their professional interaction with students unless the student waives the privilege, the information was intended to be shared, or the counselor suspects physical abuse or danger of some sort. As Mr. Sumners explained it to me, he tells kids he has to keep confidence unless someone is harming them, they are harming someone else, or they are harming themselves. If you had a counselor divulge information outside of those conditions, that counselor violated this statute.

  10. caheidelberger Post author | 2015.02.11

    Roger, South Dakota has the same reporting mandate for counselors, teachers, etc. If I suspect a child in my classroom is being abused, I am required by law to report that suspicion.

  11. Deb Geelsdottir 2015.02.11

    2 Things:

    Cory is right about what is referred to as the Mandated Reporter Law and the conditions it refers to.

    Clergy are Mandated Reporters.

  12. bearcreekbat 2015.02.11

    Deb, Hummmm, I wonder why there is no religious conscience exception?

  13. Deb Geelsdottir 2015.02.11

    I'm not sure what you mean BCB. Religious exception to mandated reporting? Are you wondering if religious types should have certain exceptions from their mandate to report?

    Roman Catholics have sought exceptions based on confessional confidentiality. Perhaps other Christian denominations and other religions have done or are doing the same in this country.

    In my understanding, Mandated Reporter laws in SD, MN, and most other states do not allow exceptions to the requirement to report suspected child abuse to civil law enforcement.

    I think the RCC offenses that are being civilly litigated at this time preceded mandated reporter laws. I don't know why RCC leadership, bishops and archbishops are allowed to decide which reports they will forward to police and which not. I am not aware of any other entity that is allowed to do that.

    The law says it is not my responsibility to evaluate the validity of any suspicions. I am required to report it and law enforcement is required to investigate it.

    Maybe Troy has more information on this exception. I do not believe there should be any exceptions when it comes to child abuse.

  14. caheidelberger Post author | 2015.02.12

    Hmm... the list of persons required to report suspected child abuse or neglect in South Dakota—SDCL 26-8A-3—includes school counselors and "religious healing practitioners" but not clergy. Our mandaotry reporting laws also specifically supersede school counselor privilege, doctor-patient privilege... but oh! The mandatory reporting law leaves religious privilege intact! See SDCL 19-13-16, 19-13-17, and 19-13-18.

    (Boy, I love reading statute for breakfast. :-) )

  15. bearcreekbat 2015.02.12

    Deb and Cory, my comment about a religious exemption was a little tongue in cheek and a little bit of wondering about the ultimate impact of the Hobby Lobby argument regarding a religious exemption from the ACA birth control rules, as well as the kerfuffle about baking cakes for gay weddings.

    I wonder if those folks advocating for such absolute exemptions recognize the dangers of overbroad religious exemptions that could cause different types of harm. After all, if it is okay to harm women and gays in the name of religion, why not others? And if the religious exemption is required by the 1st amendment, then doesn't that trump a state's statutory disclosure laws?

  16. Deb Geelsdottir 2015.02.12

    BCB said, " . . . dangers of overbroad religious exemptions . . . "

    I feel that is the point that those on the right are missing. Their belief seems to be that their fundamentalist/conservative brand of Christianity will remain dominant in the USA by virtue of political power. Their denial of impending white minority fuels this certainty.

    I strongly believe that the best way to ensure continued religious freedom is to make sure it exists now, while Christians in this country maintain majority status. If that's not done, those suppressed groups will have plenty of fuel to fire revenge seeking. Look at the Middle East right now.

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