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Article Excerpt
Counselor educators today are faced with a difficult dilemma. They are mandated to dismiss students they judged to be unfit and irremediable, yet they risk legal action whenever executing a student dismissal decision. Their duty to protect the public must be weighed against the liabilities of costly litigation to institutions, programs, and themselves. This article describes 1 counselor education program's decision to dismiss a student and endure a lengthy, although unsuccessful, lawsuit and jury trial in federal court. The strengths and weaknesses of the program's remediation and dismissal protocol are examined as they emerged under court scrutiny.
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Counselor education programs are ethically obligated to identify students whose academic, clinical, and personal performance in training suggests that they are unfit for professional counseling practice. Furthermore, programs are mandated to dismiss those students when they are unresponsive to appropriate remedial efforts. The American Counseling Association's (ACA; 2005) ACA Code of Ethics requires that supervising counselors "through ongoing evaluation and appraisal, are aware of the academic and personal limitations of their students and supervisees that may impede their performance" (p. 14). Additionally, the ACA Code of Ethics requires that "counselors assist students and supervisees in securing remedial assistance when needed, and dismiss from the training program supervisees who are unable to provide competent service due to academic or personal limitations" (p. 14). Similar to ACA, the Association for Counselor Education and Supervision (ACES) has published requirements for the screening, remediation, and, if necessary, discontinuation of counselor trainees whom supervisors deem are unfit for professional practice. The ACES (2003) Ethical Guidelines for Counseling Supervisors state,
Supervisors, through ongoing supervisee assessment and evaluation, should be aware of any personal or professional limitations of supervisees which are likely to impede future professional performance. Supervisors have the responsibility of recommending remedial assistance to the supervisee and of screening from the training program, applied counseling setting or state licensure those supervisees who are unable to provide competent professional services. (Section 2.12.)
For accreditation by the Council for Accreditation of Counseling and Related Educational Programs (CACREP), counselor education programs must show evidence of compliance with a standard of "conducting a developmental, systematic assessment of each student's progress throughout the program, including consideration of the student's academic performance, professional development, and personal development" (CACREP, 2001, Section VI.B.). Although a specific response to identified performance deficiencies is not defined, a requirement for ongoing assessment of students in counselor preparation programs is clearly implied in this standard.
The Legal Risks of Compliance
Given their direct role in the initial preparation and supervision of student counselors, counselor educators are inherently responsible for providing the evaluative functions defined in the ACES (2003) Ethical Guidelines for Counseling Supervisors. They are mandated to serve as the initial "gatekeepers" for the profession, protecting the rights of counseling service consumers by ensuring that only those students who are qualified are permitted to matriculate toward a graduate degree and licensure (Bernard & Goodyear, 2004).
Despite this mandate, counselor educators are subject to legal confrontation whenever they execute a student dismissal decision. Under litigation, a dismissal action, dutifully taken to protect the consumer's right to competent service, will likely be represented by the dismissed student's counsel as a malicious and punitive action and challenged as a violation of the dismissed student's right to fair and just treatment. The honesty and integrity of the counselor education faculty, the counselor education program, and the college or university as a whole, as well as their ability to fulfill their contracted responsibilities to the student, can be expected to be called into direct question. Although the burden of proving malfeasance lies with the accuser, under the law, the burden of legal defense (i.e., costs, personnel requirements, time consumed, psychological/emotional impact) will more than likely rest with the educational institution. Should the court ultimately find in favor of the accuser (i.e., the dismissed student), court costs and compensatory and punitive damage awards will be added to the institution's expenses.
The Dismissal Decision Dilemma
When a student's performance necessitates dismissal action, counselor educators are faced with a difficult and seemingly no-win dilemma in responding. They can dismiss the student, thus opening the door for litigation and, given the uncertainty of any court outcome, placing the well-being of their program and institution at considerable risk. Or they can retain the unfit student, thus avoiding litigation, but violating their professional ethics and responsibility to protect the public.
This was the dilemma faced by the authors and their colleagues in early 2002. Confronted with a student's misconduct during the clinical practicum and the student's subsequent failure to respond to a semester-long remedial action plan, a dismissal decision was made that was legally challenged by the student. Ultimately, the court upheld the decision of the program. The remainder of this article describes the basis and process for the dismissal decision; the charges levied against the faculty, program, and institution; the points and process of the legal defense; and the findings of the court. It summarizes the strengths and weakness of our design and implementation of the professional performance evaluation protocol that became clear under legal analysis. Finally, it describes the profound and pervasive impact of the experience for everyone involved. The events, as presented in this article, have been reviewed and approved by the university's legal counsel.
Basis and Process for the Dismissal Decision
In February 2002, the community counseling practicum instructor and a doctoral supervisor intern at a CACREP-accredited counselor education program (in which the authors are full-time faculty members) were notified by a practicum field site that it was considering removing a community counseling practicum student because of misconduct. Reportedly, the student had, without supervisory authorization, attempted to solicit individual clients from an ongoing therapy group at the practicum site by promising them greater benefit from individual counseling than from the group counseling they were receiving. It became evident to the instructor that the student had misrepresented the field site when presenting it for approval. The student had claimed that the site would provide opportunities for individual counseling experiences (a requirement for site approval) when, in fact, it only offered group counseling services.
As required by CACREP, a protocol for evaluating and addressing professional performance issues, the Professional Performance Review Policy (PPRP; http://www.wm.edu/education/programs/space/ BulletinBoard/BulletinBoard.html), was in place at the time of the reported misconduct. A review of the literature, guidelines, and ethical standards of professional organizations guided the PPRP's initial development and ongoing evaluation. The literature is not replete with descriptions of policies at specific institutions; however, the PPRP was modeled upon one of the first published for a CACREP-accredited institution (Frame & Stevens-Smith, 1995), and it appears consistent with recent publications. Specifically, the current literature emphasizes that policies clarify standards using behaviorally specific student evaluation categories, that they provide for early and ongoing performance assessment using a full faculty review, and that there be ongoing evaluation of the policy to ensure consistency with current published practices and within the context of institutional evolution and program development (Frame & Stevens-Smith, 1995; Hensley, Smith, & Thompson, 2003; Kerl, Garcia, McCullough, & Maxwell, 2002; Lumadue & Duffey, 1999).
The PPRP identifies 10 professional performance assessment criteria as well as the standards and process by which students will be evaluated. It also indicates the methods by which deficiencies are to be...
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