Negligence in academic advising and abortion counseling: courts rulings and implications - Special issue: legal and ethical issues in school counseling

Professional School Counseling, Oct, 2002 by Carolyn Stone

In most states with regard to negligence or civil liability, individual employees are protected from personal liability if they are not acting in a willful or wanton way. Most states have legislation declaring that public employers must defend, indemnify, and hold harmless any employee who is named in a civil suit for an act of omission arising out of the employee's job (Collins, 2001). Further, according to these statutes, the employee cannot be fired because of an unintentional act that has harmful effects. This obligation does not extend to criminal acts or acts where the employee is intentionally harmful.

Negligence in Academic Advising

Until 2001, no jurisdiction had recognized that negligence could occur in the context of a school counselor giving academic advice to a student (Zirkel, 2001a). In reversing a lower court's decision and remanding the case to trial, the Iowa Supreme Court in Sain v. Cedar Rapids Community School District (2001) determined that a duty was owed by a school counselor in this situation to advise a student with due care and attention.

Bruce Sain, a senior in Cedar Rapids, Iowa, was a talented all-state basketball player. In 1996, he was awarded a 5-year basketball scholarship to Northern Illinois University. In the summer prior to his freshman year, Sain was notified in a letter that he did not meet the National Collegiate Athletic Association (NCAA) regulations for incoming freshman athletes at Division I schools. The letter explained that he fell one-third credit short in the required English credits because his one-third English credit in Technical Communications was not on the list of classes his high school submitted to the NCAA for approval. Sain lost his scholarship and his family filed suit against the Cedar Rapids School District citing the school district as negligent and the school counselor, Larry Bowen, as guilty of negligent misrepresentation in his role as an academic advisor (Sain v. Cedar Rapids Community School District, 2001). How did a scholarship opportunity for Bruce Sain turn into shambles and how did Larry Bowen find himself at the center of a lawsuit?

Larry Bowen was Bruce Sain's school counselor at Jefferson High School. Sain, who was in his senior year, needed three trimesters of English. Sain was dissatisfied with the second trimester English course and asked Bowen to place him in another English class. Bowen suggested Technical Communications and explained to Sain that it was being offered at the school for the first time but that the Initial Eligibility Clearinghouse would approve the high school course. Without further concern, Sain completed Technical Communications and graduated in the spring of 1996 with the prospect of a 5-year scholarship at Northern Illinois University. Then the letter arrived from the NCAA Clearinghouse declaring Sain ineligible based on academic grounds. Sain and Jefferson High School requested reconsideration from the NCAA but their request for a waiver was denied (Parrott, 2001; Reid, 2001; Sain v. Cedar Rapids Community School District, 2001; Zirkel, 2001a).