Here Are 5 Tips Every South Dakota School Administrator Should Know About The Student-Counselor Privilege
Tip #1 - What are “confidential” communications and “privileged” communications?
“Confidentiality” refers to a school counselor’s duty not to disclose to anyone the substance of communications shared in confidence. “Privilege” is a rule of evidence that protects school counselors from having to testify in judicial proceedings about communications made to them in confidence while acting in their professional capacity.
Tip #2 - Does every state recognize a “privilege” for school counselors?
No. The precise details of privileges vary considerably from state to state. South Dakota has a very strong “privilege” law for school counselors.
Tip #3 - Does South Dakota recognize a privilege for elementary or secondary school counselors, school psychologists, and students?
Yes. In our state, the privilege provides:
“No counselor or school psychologist, certified in accordance with the certification regulations of the South Dakota Board of Education Standards and regularly employed as counselor or school psychologist for a private or public elementary or secondary school or school system in the State of South Dakota, may divulge to any other person, or be examined concerning any information or communication given to the counselor or school psychologist in the counselor’s or school psychologist’s official capacity by a student.”
Tip #4 - Are there any exceptions to this privilege?
Yes. There are three exceptions to this privilege:
- The privilege can be waived in writing by the student; or
- The privilege can be waived if the information or communication was made to the counselor or school psychologist for the express purpose of being communicated or of being made public; or
- The privilege can be waived if the counselor or school psychologist has reason to suspect, as a result of that information or communication, that the student or some other persons have been subjected to child abuse or that the student’s physical or mental health or the physical or mental health of other persons may be in jeopardy.
Tip #5 - Can a parent waive this privilege on behalf of their child?
No. In 2015, the South Dakota Legislature attempted to amend the student-counselor privilege by allowing a parent or legal guardian of any student under the age of 16 to waive the privilege. This proposed amendment was rejected.
For more information about school counseling law, see Chapter 40 of the South Dakota School Law Deskbook™.