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The Courts and Academic Advising

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The Courts and Academic Advising
Carolyn Stone
Ryan, a talented basketball player, was enticed to your school from out-of-district by the basketball
coaches and his own interest in being part of a winning team. The transcript he presented to his new
school counselor had course titles and descriptions that were not offered at his new school. The school
counselor did her due diligence, and matched Ryan courses as best as possible. The summer after
graduation Ryan learned he did not have enough English credits for NCAA eligibility. The matched course
was not on his new school’s approved list for NCAA courses. Is the school district and/or school
counselor liable?
It has been more than a decade since we first learned about the court cases Sain vs. Cedar Rapids
Community School District (2001) and Ryan Scott vs. Savers Property and Casualty Insurance Company
(2003). Where are we today regarding academic advising and the courts? Has much if anything changed
in the decade since Sain and Scott? Provided is a brief recap of the Sain and Scott cases followed by a
dissection of the dispositions of the cases, the courts and the current landscape for academic advising,
as well as implications for school counselors.
In his senior year, Bruce Sain was awarded a five-year basketball scholarship to Northern Illinois
University but lost his National Collegiate Athletic Association (NCAA) eligibility to play when his senior
English was changed to technical communications, a course not on the list of classes his high school
submitted to the NCAA for eligibility. Sain and his high school district requested a waiver from the NCAA,
but it was denied. Sain lost his scholarship, and his family filed suit citing the school district and the
school counselor, Larry Bowen, as guilty of negligence when Bowen changed Sain’s schedule and failed
to submit the course, technical communications, to the NCAA for approval.
The suitability of the course was not at issue, since technical communications had been approved for
other schools as a core English course. The problem was that it was not on the school’s submitted list to
NCAA Clearinghouse. The trial court fell in line with dozens of previous cases, rejecting the notion that
school counselors owe a duty to a student to give competent academic advice. On appeal, the Iowa
Supreme Court found that the claim of “negligent misrepresentation” possibly had merit and should not
have been dismissed by the lower court but deserved a jury trial. Justice Mark Cady of the Iowa
Supreme Court in finding that the case had merit wrote for the 5-2 majority that school counselors could
be held accountable for providing accurate information to students about credits and courses needed to
pursue post-high-school goals. The erroneous advice given by the school counselor was equated to
negligent misrepresentation in professions such as accounting, the law and others whose businesses
require they give accurate and appropriate information.
Justice Linda K. Neuman, speaking on behalf of the minority vote, wrote that the Iowa Supreme Court’s
decision “spells disaster for the law,” explaining that the decision would open the floodgates and could
be applied broadly to students in a variety of situations and not just athletes who need counsel on NCAA
rules. The dissenting justices argued that the long-standing tradition of the courts’ refusal to interfere
with the student/school counselor advising relationship should have been respected even in this case
and that the lower court dismissal should have remained in force. Neuman noted that the decision
exalts logic over experience; it might appear logical that school counselors should give correct advice,
but the reality of the expectations placed on school counselors makes this logic impossible. School
counselors cannot have a command of everything there is to know about colleges and universities,
admissions requirements, NCAA rules, financial aid and scholarships and a multitude of other facts that
change daily. Ultimately, the Sain case settled out of court. There was no jury trial, and the settlement is
not published. However, many have written that had Larry Bowen gotten his day in court would have
been exonerated.
Ryan Scott vs. Savers Property and Casualty Insurance Company (2003) made its way to the Supreme
Court of Wisconsin. Scott, a talented hockey player, earned a four-year scholarship to play Division 1
hockey for the University of Alaska. Allegedly, Scott’s school counselor had erroneously advised him that
broadcast communication was an NCAA-approved course, and Scott was declared ineligible for an NCAA
student-athlete scholarship. The family sued maintaining that the school counselor was negligent in
advising Scott, and the district violated its legal obligation to provide their son with competent school
counseling services. The negligence claim hinged entirely on whether the district was immune from
liability for negligence under Wisconsin’s governmental immunity statute.
Governmental immunity has its roots in the ancient principle of sovereign immunity, meaning you
cannot sue the king, who can do no wrong. Governmental immunity was extended to governmental
entities to protect them from lawsuits while performing a publicly funded public service. All states have
variations of governmental immunity, which outlines monetary limits and exceptions. Find your state
statute at: www.ncsl.org/research/transportation/state-sovereign-immunity-and-tort-liability.aspx.
State Supreme Court justices have expressed frustration that governmental immunity is often too
protective. Tangled labels provide confusion as to immunity, but typical governmental immunity
protects educators in the course of doing their jobs unless their actions are: 1) an excessive use of force
in the discipline of students; (2) negligence resulting in bodily injury to students; 3) an absolute duty
without discretion such as a duty with certainty, specificity, and prescriptive in time, mode and occasion
with nothing remaining for judgment or discretion. If your state statute allows discretionary acts to be
protected by governmental immunity, academic advising will often be considered a discretionaryministerial approach, and the injured student and his or her family will have a mountain to climb to
overcome the fact that their case does not fall under the governmental immunity protection.
The Wisconsin Supreme Court dismissed, but not happily, the lawsuit against the school counselor and
district because of the discretionary clause in the governmental immunity statute. Justice Bablitch of the
Scott case stated, “A doctrine of governmental immunity that has caused such injustice and inequity, in
this case and others, cannot, and I predict, will not, stand much longer. In light of these sentiments,
which appear to have growing support in many state courts, school districts should keep a watchful eye
on the seemingly unstable future of the state’s government immunity law.”
What’s Changed?
Back to our questions, “Where are we today regarding academic advising and the courts? Has much
changed in the decade since Sain?” In the years following the Sain case, the majority of the academic
advising cases have involved university advisor/student relationships, and much of what we have
learned from these cases can extend to inform school counselor/student relationships. Courts continue
their reluctance to intrude on the student/advisor relationship and side with the school
counselor/academic advisor. When school counselors have acted in good faith without willful, malicious
intent, the courts have protected them. Only higher education advisors and institutions in cases
involving gross negligence, fraud; arbitrary behavior; or willful, malicious intent have been deemed
liable.
Courts continue to follow governmental immunity in their opinions even when they believe their
decision was an injustice and governmental immunity offers too broad of protection. The Sain case
continues to represent an unusual tort claim that was allowed to proceed to court but did not, as
feared, establish a pattern of interference from the courts. Courts are maintaining the traditional
posture of deference to the institutions’ autonomy and expertise, and courts are rejecting educational
malpractice claims. Justices recognize the difficult, complicated role of academic advocacy, especially
when school counselors are managing large numbers of students, constantly changing rules and
regulations, and fluctuating admissions and financial aid criteria.
Following are lessons learned and recommendations for school counselors in their role of academic
advisor:
Acknowledge what you do and don’t know. The Sain justices voting in the majority acknowledged that
the ruling could be paralyzing; however, they explained that negligent misrepresentation is confined to
students whose reliance on information is reasonable. In other words, if a student relies on your for
information, and you give that information as if it is fact but it turns out not to be true, that could be
negligence. Not knowing information is not the problem. The problem is giving information as if it is true
when it later turns out to be false. When in doubt and with limited time, school counselors should
encourage students to self-advocate, or if possible, seek help from others to gather information about
college admissions, scholarships, NCAA eligibility and financial aid. Be comfortable not being the allseeing, all-knowing school counselor.
Don’t be paralyzed by the Scott case, as governmental immunity continues to be a protection for many
school counselors providing academic advisement.
Don’t be deterred from your advising role by the Sain or Scott case. Continue to offer academic advising
sessions to students. School counselors can help close the information gap between those students who
know what they need to do to successfully access postsecondary education leading to wider economic
opportunities and those students who have not received even the most basic information. Students
without a significant adult in their lives helping them understand how to access and be successful in
postsecondary opportunities need the school counselor to be an advocate.
Act as the reasonably competent professional would. Hold yourself to a high standard-of-care. The
courts are not asking for extraordinary care, only reasonable care. By exercising skill and care in every
action taken as a professional, school counselors can demonstrate they are behaving as reasonably
competent professionals.
Stay abreast of information needed for competent academic advising. Demonstrate good faith by
staying informed of procedures, policies, laws, ethical standards and the school district’s policies.
Seek professional development in the area of academic advising.
Empower others to take responsibility for having and giving the right information. You can teach
students to be their own advocates through classroom lessons in the computer lab, where students can
conduct Internet searches and locate information on their own. As a manager of resources, the school
counselor can equip others to be a key presence in the career and academic advising roles.
Widely publicize academic information for all students and parents/guardians. Make use of newsletters,
form letters and e-mail discussion groups in your advising role, thus demonstrating a proactive stance to
disseminating critical, timely information.
Require students and parents/guardians to sign off when they receive critical information.
Consult, consult, consult. Seek supervision. School counselors never stand alone when they consult with
others who are in a position to help.
Establish and disseminate student responsibilities in publications to parents and to students.
Establish consistencies regarding quality academic advising making it easier to defend and show good
faith effort in keeping all students informed; your best defense against allegations of negligence.
Follow your ethical guidelines regarding equity for all. Disaggregate data to see who is being left out of
the success equation. Put forth efforts to remedy inequities in academic advising.
Take comfort in the knowledge that you have held yourself to a high standard and your chances of being
sued are very minimal.
Carolyn Stone, Ed.D., is chair of ASCA’s Ethical Committee and a professor at the University of North
Florida. She can be reached at cstone@unf.edu.
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