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Published in Print: February 27, 2002, as Statements to School Counselor Not Protected, Mich. Court Rules

Statements to School Counselor Not Protected, Mich. Court Rules

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Statements made by two male high school students to a school counselor about the sexual assault of a female student were not protected by teacher-student confidentiality, a Michigan appeals court has ruled.

The Feb. 8 ruling by a three-judge panel of the Michigan Court of Appeals concerned two of four former River Rouge High School football players charged in the sexual assault of a 14-year-old girl in 2000.

A state trial-court judge had suppressed the statements made by Lamar Toney, who was 17 at the time of the assault, and Justine Garrett, who was 16, in front of a school counselor in the 2,700-student River Rouge district.

The judge ruled the statements were coerced because the students were ordered to report to the counselor's office, and they were not given so-called Miranda warnings before they spoke.

But the appeals court held that the counselor was not acting as an agent of the police, and therefore was not required to give the young men, who voluntarily discussed the incident, the warnings required under the landmark 1966 U.S. Supreme Court decision on apprising criminal suspects of their rights.

And while Michigan law establishes a privilege for teacher-student communication that includes school counselors, it "protects only confidential communications," the appeals court said.

The two defendants discussed the incident with the counselor when other students and an administrative assistant were present, so the communication was not confidential, the court held.

Levels of Confidentiality

Students' conversations with school counselors are generally confidential, except when there are legal considerations, said Richard Wong, the executive director of the American School Counselor Association, based in Alexandria, Va.

"We do recognize that confidentiality is not held at the same level" as that of a physician and patient, for example, said Mr. Wong.

The Michigan appellate court's decision was unpublished, which means that it cannot be cited in future cases as a precedent.

But even so, the decision does not seem out of line with similar rulings elsewhere in the country, said Edwin Darden, a senior staff lawyer with the National School Boards Association, based in Alexandria, Va.

"Even though it is a local case, it seems to be pretty consistent with the principles that go on in school discipline cases nationwide," he said.

According to the Michigan court's opinion, the school counselor called both defendants' parents in an effort to protect the defendants "from making further incriminating statements." And there is no evidence that the questioning was prolonged or provoked, the court said.

The four former football players pleaded guilty in December to a lesser charge of assault with intent to do great bodily harm. They were sentenced to probation and eight months at a "boot camp" correctional program.

A spokeswoman for the Wayne County prosecutor's office said she did not believe the appeals court ruling would affect the plea agreement.

The Court of Appeals is not the state's highest court, but it was unclear last week whether the ruling would be appealed to the state supreme court.

Vol. 21, Issue 24, Page 9

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