As a counselor educator, I could have done more to prepare counseling students for involvement with the court system. Pertinent discussions were usually limited to child custody, records, privileged communication, subpoenas and counselors’ vulnerability in the courtroom. I had experienced depositions and had written clinical summaries, but I had never appeared in court. My own preparation had included nothing about being an external expert witness.
Then I had an experience that underscored the importance of teaching and learning about court involvement. Although attorneys might not think of counselor educators and school and mental health counselors first when needing an expert witness, a counseling perspective might be crucial to an outcome. Apparently, mine was.
A bit of history
During the 1980s and early 1990s, a number of articles and monographs addressed court involvement for helping professionals. During that era, psychologists were growing in number, assessment was valued and psychological witnesses were increasingly used. In addition, media outlets were discussing “recovered memory,” and a high-profile case led to criteria for admissible expert testimony. However, conceptual literature noted that attorneys did not always appreciate the expertise and objectivity of therapists in the courtroom, and, because expertise was not standardized, lawyers and experts with stronger credentials could challenge witnesses.
Roles and behaviors related to court processes were also being clarified for counselors. I paid attention to Ted Remley Jr., a helpful legal voice in the field. I learned that both general and expert witness roles are possible, with the former providing facts and the latter providing opinions. An expert witness educates judge and jury by reviewing and interpreting facts and records, making inferences and then informing in neutral, understandable language. School and mental health counselors are more likely to be general, or fact, witnesses, although experience and special training might make them desirable as expert witnesses.
Journal articles about counselors’ involvement have been rare since then, but thanks to contributors such as Carolyn Stone, school counselors can access guidelines related to subpoenas, court orders and privileged communication, for example. However, media interest in bullying and the growing number of states with pertinent statutes suggest that courts will increasingly be involved in cases related to school safety. In such cases, a school counselor or counselor educator may be asked to serve as an expert witness, examining counselors’ and others’ roles or perhaps providing an opinion about the climate or culture of a school.
A surprising request
Eventually, I was contacted from a distance by the attorney for Wendy (pseudonym), a bright 22-year-old, in a civil case against a school district. Alleged negligence in the wake of extreme harassment had contributed to two extended traumatic experiences for Wendy.
My purpose here, in describing my experience as an expert witness, is to provoke thought about counselor court involvement, roles and behaviors, institutional cultures, ethical behavior, systemic contributors to harassment, and potential developmental impact of harassment and retaliation after reporting. Details about the process and time involved might lessen counselors’ concerns if asked to be involved.
I was told that, during ninth grade, Wendy was assaulted physically and harassed with graphic sexual language by a school bus driver almost daily for several months. Allegedly, he had groped her when she entered and exited the bus, jerked her clothing to expose her underwear and asked about her sexual behavior. Wendy observed another student’s similar experiences.
Wendy realized that her younger sister, beginning to mature physically, soon would be vulnerable. She talked with her sister, who talked with the elementary school counselor, who contacted Wendy’s mother, who in turn contacted the school principal, superintendent and sheriff.
The second traumatic experience occurred after Wendy’s parents filed a complaint. Allegedly, the bus driver began drug- and sex-related rumors about Wendy, which were then perpetuated by students who considered the driver an ally. Their unrestricted behavior on sports-team buses (e.g., beer, pornography) matched the driver’s voyeuristic interest in their social lives. He talked with them about Wendy’s parents’ complaint, and, according to an interview during the investigation, encouraged one student to lie on his behalf. At school, Wendy, who formerly had enjoyed social ease, was harassed and marginalized. At the end of her junior year, she transferred to another school.
During the criminal case, which took place after Wendy’s transfer, the bus driver was acquitted. According to Wendy’s new attorney, who contacted me, adolescent witnesses for the prosecution had not presented themselves well in court, even in how they were dressed. Wendy would tell me later that she herself was “not prepped.” This new attorney was now preparing a civil case, focusing on the school system.
I was initially surprised to be contacted. Then I considered my professional background. I was knowledgeable about school culture. When the attorney met with me, I told him I had been a teacher, counselor or group specialist in schools for 25 years and a counselor educator for 15, supervising school- or agency-based field experiences. I had worked closely with school administrators in several schools.
In addition, principals-in-training at the university were required to enroll in my Introduction to School Counseling course, and they interacted with the school counseling students formally and informally about their respective professional roles. As a counselor educator, I had led a national study of bullying and was acquainted with trauma literature through a 15-year qualitative study of a survivor of trauma. Beyond that were coursework and clinical experiences in family therapy. I had licenses in school and mental health counseling. Thinking about these experiences gave me confidence. Still, I had anxiety: I would be a first-time expert witness.
An educational experience
What I was asked to do fit my expertise. Training and experience in school counseling were important for my first formal opinion, whereas experience in counselor education was important for my second. The attorney initially traveled to meet with me for two hours. He described what he had learned about the bus harassment and the responses of school personnel after Wendy’s parents filed the formal complaint.
We soon communicated again by phone. I explained relevant concepts, including the developmental lens I routinely used as a counselor, examining developmental tasks (e.g., identity, direction, relationships and autonomy), “stuckness” and task accomplishment. I described findings in my study of trauma and noted literature related to posttraumatic stress disorder (PTSD). We discussed the bullying study and my study with John Littrell of a school counselor who transformed a school culture from bloody fights to harmony. In the latter, the school culture was deemed to be malleable, and a strong counselor-principal partnership was essential to the positive change. I assumed that principal and counselor roles and relationship, school culture and climate, bullying and PTSD all would be important to this case.
At that point, I formally agreed to be involved and was asked to keep track of hours. I said I would ascertain whether bullying legislation existed in that state when the alleged harassment occurred, and the attorney agreed to locate student handbooks of the school from that time. I subsequently met with a faculty member in educational administration at the university and consulted by email with a superintendent who was a former middle school principal, asking how he would respond to an anonymous scenario resembling Wendy’s. His details were helpful as the attorney and I considered what administrators did and did not do in Wendy’s case. I also received university permission to engage in the court process. This permission included a formal admonition that I be clear, both in oral and written testimony, that I did not represent the university or its perspective.
The attorney later sent me a thick loose-leaf binder containing documents and resources for me to study, including:
- The student handbooks and the school district’s anti-harassment policies
- Depositions from the superintendent and a teacher for the earlier trial and Wendy’s affidavit
- Wendy’s mother’s formal complaint
- Summaries of student statements in the sheriff’s investigation report
- Polygraph results for Wendy and the bus driver
- A letter regarding the bus driver’s disciplinary record and his responses to two sets of interrogatories
- Wendy’s school attendance, academic performance and psychological evaluation records
I studied these materials in preparation for my upcoming meeting with Wendy. The attorney’s assistant arranged for my in-person interview with Wendy and clarified my focus:
1) Wendy’s experiences during the harassment
2) How experiences with the bus driver, students and staff affected her mentally, emotionally and psychologically
3) How she was treated by school counselors
4) Whether permanent damage had occurred
I then developed an interview protocol. The interview lasted 3 1/2 hours.
As I asked about Wendy’s experiences, including during the criminal case, I included questions about development. I also assessed her morale, alert to possible depression, suicidal ideation and PTSD. As directed, I asked about contact with school counselors, whether and how much administrators were aware of her distress, the responses of teachers and peers, and attendance and classroom achievement. Subsequently, I submitted a report to the attorney. Over the next three months, we conferred four times by phone as I prepared to write an affidavit.
Writing the actual affidavit required about seven hours. I needed to peruse the binder materials and notes from my interview with Wendy, communicate once with her by phone to verify details and develop a carefully written, facts-based document. In it, I first presented my credentials and professional employment record as well as a list of the documents I had examined. I explained that I had conducted an interview of a specific length, and I asserted that the information I had gathered from Wendy was the kind counselors rely on during assessment of concerns. Then I presented two formal “opinions.”
The first opinion was that the district failed to exercise reasonable care to protect Wendy from a backlash of ridicule and retaliation by faculty and students that was foreseeable under the circumstances. Both action and inaction were part of this neglect. I then discussed pertinent aspects of school administration, school counseling and school culture. I first described some differences in the roles and training of principals and counselors. Pertinent to this case, a head principal sets the tone and establishes the professional culture and climate, including expectations of ethical behavior from counselors and institutional tendencies to ignore or address conflict and other systemic concerns.
I explained that a school counselor can be an oasis for troubled individuals while also staying alert to general student morale. Trained to be nonjudgmental, objective, proactive, collaborative and not a disciplinarian, the counselor is skilled in listening and responding and helping students cope with stressors and live effectively. The American Counseling Association’s 2014 code of ethics, which makes respecting the dignity and promoting the welfare of clients the counselor’s primary responsibility, guides decision-making and behavior. The American School Counselor Association’s ethical standards state clearly that school counselors’ primary obligation is to the student and that they are to inform officials about conditions that are potentially disruptive or damaging to school mission or personnel. All of these aspects were pertinent to the case against the school.
Inaction: Administrators’ inaction suggested a school culture not geared to ensuring a safe environment for learning. School became a hostile and dangerous place for Wendy. Her parents were her only adult advocates.
1) Administrators did not take Wendy’s situation seriously, even though they were aware of the sheriff’s interviews at school and an earlier complaint about the bus driver. According to a deposition, a key administrator did not read students’ statements.
2) Administrators did not suggest that Wendy see a school counselor, who could have focused on her emotional health, and did not partner with school counselors to ensure her protection after the retaliation began.
3) Administrators ignored the bullying. According to Wendy, “About 15 [students] routinely harassed me.”
4) Administrators did not direct teachers to be alert for situations needing intervention, an action that might have given teachers permission to support Wendy. She sensed distance from formerly approachable teachers. Only two teachers, over the course of two years, offered a supportive comment (e.g., “Sorry to hear about everything”).
5) The harassment was visible to teachers. On one occasion, a clique of high-profile students interrupted a class, asked for Wendy and bullied her in the hall with threats of rape.
6) An administrator did not honor Wendy’s request to see a counselor after she was accosted by the girl whom Wendy had witnessed being assaulted. The girl would not acknowledge being assaulted and denied that Wendy had been assaulted. Only Wendy was sent home.
7) Administrators and teachers never asked why Wendy was often absent in the afternoons (“because I couldn’t take it anymore”), even when they had seen her earlier in the day. One of Wendy’s parents usually came to the office while she signed out, in full view of a principal.
8) The bus driver continued to drive his school route for several weeks after the complaint.
The inaction of the counselor Wendy consulted was also pertinent. Wendy’s well-being was at issue, and an alleged sexual abuser/harasser was under investigation prior to the first trial.
1) The counselor did not intervene with the bullies/harassers (e.g., talking with them individually) and was not active on behalf of a student in crisis, especially in a complex situation that involved threats and a distressed target.
2) When Wendy wanted to talk with the counselor after being accosted (“I’d done the right thing and gone to him”), he did not advocate for her when the principal sent her home.
3) Unlike her sister’s counselor, who appropriately called Wendy’s mother, Wendy’s counselor listened during their several meetings after the retaliation began (“I was often red-faced and crying”), but did not validate feelings or speak of reporting the situation to administrators. The collaborative aspect of addressing serious problems was missing.
4) The counselor did not contact child protective services or discuss that possibility with administrators. The situation involved a school employee with responsibilities for minors (“full power,” according to the student handbook), alleged sexual harassment of a student and implied danger for other students.
Actions: The superintendent was not receptive to Wendy’s parents’ complaint and was not respectful when they initially met with him. Administrator actions suggested a toxic school culture that gave permission to school personnel to treat Wendy and the situation inappropriately.
1) After Wendy’s mother complained about the incident in which harassers/bullies asked that Wendy come into the hallway, the teacher who had deferred to them said to Wendy, “I can no longer trust you.” The implicit school-culture message was that students should not tell parents about distressing incidents.
2) Wendy’s mother learned that one junior high teacher had commented to a neighbor that “[the bus driver] always liked the young girls. … I thought it was consensual.” This indicated that at least one teacher was aware of the bus driver’s behavior and normalized it.
3) In class, a teacher compared “the bus driver thing to the McDonald’s hot-coffee case.”
The second opinion was that Wendy suffered long-lasting psychological injury — PTSD, depression and developmental stuckness — as a result of the school district’s failure to protect her.
Scholars have theorized that bullying inherently involves a power differential. The bully or someone with more power than the bully is responsible for stopping bullying, not the person with relatively little power. Wendy said the bus driver had “total control.” She said, “I tried to sit in back. If called to the front … I tried to laugh it off, told myself that I was just being oversensitive.”
Wendy’s behaviors make sense in that context. In addition, many adolescents do not report harassment because much is at stake, and they are not likely to know how to handle that level of embarrassment, especially in front of peers. The lack of a supportive and protective response from school administrators during the bullying had an impact on Wendy’s well-being and development.
Emotional development: Stuck in sadness, anger. With her experiences invalidated, Wendy said, “I analyzed myself to death.” Reflecting feelings of hopelessness, she said, “I feel like it’s never going to end. Why can’t I be done with this?” She was “nervous about the future,” asking, “Will I ever be able to move on?”
I concluded that her symptoms of depression did not reflect a neurological predisposition: “Other than this, nothing in my life could be called ‘unhappy’ — boyfriend, family.” All of her sad language was related to the situation with the bus driver and the consequent bullying. She felt deep anger about the situation being “pushed aside” even by people who were supportive in public. When asked to elaborate on her statement about “the system,” she referred to the school failing her and the bus driver being acquitted. She then said, “I can understand why people … seek violence instead of authority.”
PTSD: Stuck in reactivity. Wendy described symptoms associated with PTSD in my study of trauma: hypervigilance; extreme, confusing emotions; and high reactivity to contextual reminders. She was “afraid I’ll run into the principal at a public event.” She was “terrified” when she saw the bus driver in the lobby at her worksite: “I wanted to hide in the back.” When seeing a school bus, “my hands become sweaty.”
Social development: Stuck in not trusting. Workplace relationships and friendships had been affected. In the past, she had “friends all over the place.” Now it was “hard to let people get close.”
Physical/sexual development: Uncomfortable, self-conscious. Wendy’s responses to my questions about physical and sexual development fit the literature about sexual abuse: “My body image was fine. … I wore anything, happy with myself.” Now there was doubt: “Maybe I let too much show.” She said she currently wore T-shirts and jeans with “nothing showing.” She worried, “Will they see me as provocative?” The bus driver’s comments had led to reactivity to even playful sexual comments, which affected her relationship with her boyfriend: “I’m still uncomfortable with sexuality.”
Career development: Stuck. This former honor student said her vision of her future was “absent.” When I asked where she might be now without this experience, she said, “I’d be a teacher.” About higher education, she said, flatly, “I thought about college, but I don’t know what I could do forever [as a job] to make me happy.”
Outcome and implications
After the attorney studied the affidavit, we had two conversations. Eventually, he reported that the school district had refused to settle out of court and that the defense would probably want a deposition from me. However, three months later, he sent news that the case had been resolved. The terms would remain confidential, but he added, “I do believe this case will do some good down the road for similarly situated students.” He said I could reference the case in the future, and he approved the manuscript for this article. He indicated that he had learned from me.
Wendy’s parents’ persistence and the attorney’s investment and instincts about school-system culpability were advantageous. During several years of struggle, Wendy and her parents demonstrated courage, first at school and then during two court cases. This case is a reminder to counselors and counselor educators of the potential impact of receptivity and nonreceptivity of school personnel to frustrated parents and distressed students. It also underscores the potential impact of adult and peer aggression on development.
I encouraged the attorney, when a trial was expected, to incorporate the concept of school culture, not just climate, into his argument. Cultures have norms, protocols, actual and de facto leaders, and implicit and explicit rules. Behaviors at many levels here reflected well-established constraints, permissions and toxicity. Wendy’s experiences in her new school were in stark contrast to those in the school she had left.
Counselor educators can raise awareness in their teaching that institutional cultures differ, reflect leadership and affect students’ and clients’ well-being. A school counselor’s actions and inaction can affect school culture just as any other school leader’s behavior can. Counselors elsewhere can similarly contribute to and be affected by institutional culture.
More situations such as Wendy’s are likely to generate court cases. State laws now define bullying and require school districts to address bullying behavior, giving children and their parents leverage for complaints. However, counseling professionals’ knowledge and experience, especially related to development, ethical behavior and systems, can be applied beyond bullying cases. Their expertise is potentially valuable across a wide range of cases with similar overtones.
I am now an expert witness for the second time, for another case involving bullying. Regardless of whether it goes to trial, I am reminded that counselors and counselor educators can indeed be expert witnesses. I believe that discussing such court involvement during counselor preparation can help counseling professionals be confident in that role if asked, and I hope that first-person accounts such as this one might help counselors embrace the process.
Jean Peterson, professor emerita at Purdue University, focused most of her clinical work and research on the social and emotional development of gifted youth, with special interest in those not fitting common stereotypes. She received 10 national awards related to research and 12 at Purdue for teaching, research or service. Among her several books is Talk With Teens About What Matters to Them. Contact her at firstname.lastname@example.org.
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