Reporting Student Criminal Activity

In addition to teaching language arts, I am in charge of an advisory group. My 14 advisees come from all three “grades” at the school (I say “grades” because we do not have 10th, 11th, and 12th, but Core, Focus, and Transition “houses”). Some have been in the school for five weeks; others have been there for five years. My “on-paper” responsibilities include maintaining the advisees’ transcripts, registering them for their classes, monitoring attendance and academic performance, and keeping in close contact with their parents or guardians regarding their schoolwork and behavior. Additionally, I sign them in and out of school every day and work with them in advisory sessions three days per week. These sessions focus on everything from art history to nutrition to community activism to self-image.
What are not spelled out in my job description are the less clerical, less academic, more emotional and inter-personal relationships that advisors form with their advisees. For some students, their advisee is often the only adult they can count on to speak plainly with them, to be there every day, to act with their best interests in mind. For some students, the advisor becomes a father or mother figure and thus a player in a complex transferential exchange. Due to these bonds, students feel comfortable and encouraged to open up to their advisors about experiences in their lives or practices that are less than legal. Let’s say an advisee, John, speaks freely to his advisor about his girl troubles; about how proud he is that his mother, who was homeless when he was born, is now a college graduate and a nurse practitioner; about his family’s struggles to make ends meet; and about how these struggles led him to a lucrative and ongoing career selling drugs and guns.
The advisor has been told by the school’s administration that these conversations will come up and that the advisor’s discretion is the best guide in handling such conversations. As keen as an advisor’s discretion may be, however, the laws that draw a line between the black and the white for reporting abuse do not exist for handling a student’s open discourse about illegal activity. The resulting gray area leaves open the possibility that an advisor might be called to testify against an advisee. What laws (either explicitly or implicitly drawn?) determine an advisor’s role when the student opens up about criminal activity? What precautions should teachers take to protect themselves and students from the possible consequences of such knowledge?
An overview of legal issues in education from Foundations of American Education (Johnson et al., 2008) illustrates the difficulty of answering such questions. While the overview touches upon reporting laws for abuse, dress codes, sexual harassment, and the separation of church and state, there is no discussion of a teacher or advisor’s obligations when a student discloses criminal activity. At the federal level, the Family Educational Rights and Privacy Act (FERPA) protects the privacy of student records. FERPA dictates that a school must have student and/or parent permission to disclose records and the records of student/teacher conversations. There are exceptions, however, for situations wherein the school must comply with a judicial order or lawfully issued subpoena (http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html). New York State law determines that licensed staff must report the student’s contemplation of a crime or the intention to do harm, but “licensed staff” comprises social workers, school nurses, and psychologists, not teachers, guidance counselors, or advisors (www.capregboces.org/instrucservices/STUDENT%20CONFIDENTIALITY%20ISSUES.doc). Finally, from a legal perspective, the relationship between an advisor and an advisee is not a privileged one, so there is no legal recourse to confidentiality protection.
One might argue that the answer is simple: Report the conversations to licensed staff and let the school’s policies and the reporting laws do their work. The policy in some schools, for example, maintains that a student found to be affiliated with a recognized gang is to be expelled or that any student admitting to criminal activity is subject to a parent conference, suspension, or expulsion. (It should be noted that these policies do not always match with the state and federal laws, so it is not exactly legal to expel a student for gang affiliation.)
And yet, taking into account the complex and complicated socioeconomic factors that can motivate criminal activity, along with the best interests of the students, makes the simple argument somewhat intractable. An expulsion from school would most likely increase the need for criminal activity. Christopher Murray (2002) reminds us that, “socially supportive relationships can have powerful and lasting effects on the lives of children and youth (Cassidy & Shaver, 1999; Richman, Rosenfeld, & Bowen, 1998). During transitional periods and times of stress, social relationships may take on particular significance, as they can buffer the effects of stressful life events (Eckenrode, 1991)” (http://findarticles.com/p/articles/mi_qa3614/is_200201/ai_n9057936). The relationships established in school and built on trust and confidentiality can go far in moving students away from both criminal activity and the socioeconomic factors that motivate them. Finally, advisors and teachers, especially in schools with large populations of African-American and Latino students, must take into account a judicial culture that is prejudiced against students from these populations.
References
Johnson, J., et al. (2008). Foundations of American Education: Perspectives on Education
in a Changing World. New York: Pearson.
Murray, C. (2002). “Supportive teacher-student relationships: Promoting the social and
emotional health of early adolescents with high incidence disabilities.” Retrieved July 28, 2008, from B-Net Business Network, http://findarticles.com/p/articles/mi_qa3614/is_200201/ai_n9057936.
United States Department of Education (2008). Federal Education Rights and Privacy
Act. Retrieved July 28, 2008, from http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html.