Counselor Who Treated Teen Pregnancy As Confidential Reinstated

A school guidance counselor was improperly dismissed from her employment after protecting the confidentiality of a pregnant 15-year-old student, according to a decision of the New Hampshire Supreme Court.

[Counselor] McKaig suggested that Student A tell her mother about the pregnancy, but Student A refused. Student A and her boyfriend told McKaig that they did not want Student A’s mother to know about the pregnancy because they were afraid for their safety. McKaig researched Student A’s options and found New Hampshire’s parental notification and judicial bypass laws for minors seeking an abortion. See RSA 132:33, :34, II (2015).

After meeting with Student A, McKaig and the other guidance counselor met with the principal and other school staff to discuss the issue of Student A’s pregnancy. The principal expressed his view that the school should inform Student A’s mother about the pregnancy. McKaig disagreed, asserting that Student A had a right to keep the pregnancy confidential. The meeting concluded without a decision about whether to contact Student A’s mother.

After the meeting, McKaig spoke with Attorney Barbara Keshen of the New Hampshire Civil Liberties Union about Student A’s situation. McKaig provided Keshen with Student A’s initials, age, and grade. McKaig and Keshen also discussed Student A’s potential privacy rights. Keshen’s opinion was that the judicial bypass law protected the confidentiality of Student A’s pregnancy and the fact that she was contemplating an abortion. McKaig relayed this opinion to Student A, and Student A made an appointment with a health center and another attorney to assist her with the judicial bypass proceedings.

On December 3, 2012, the principal instructed the school nurse to meet with Student A to tell her that the school would inform her mother about her pregnancy by December 5. That same day, McKaig told the principal about her conversation with Keshen and urged him to contact Keshen to discuss Student A’s rights. The principal did not contact Keshen; however, on December 4, Keshen contacted him. He told Keshen that he had reviewed the parental notification and judicial bypass laws and determined that they did not prevent him from telling Student A’s mother about the pregnancy.

Keshen instituted a petition for a temporary restraining order (TRO) against the principal in superior court to prevent the principal from contacting Student A’s mother. McKaig was named as the petitioner “ON BEHALF OF [Student A]”; she was not named in her individual capacity. The petition did not include Student A’s name. It instead referred to Student A by her initials and mentioned her age and grade, and that she was pregnant.

The district board had agreed with the decision not to renew the counselor’s employment and appealed the decision of the state board to reinstate her.

 The court majority

Apart from the unique circumstances giving rise to this case, there is nothing remarkable about our analysis; rather, it is based upon a reasoned application of legislative enactments, and employs well-established principles of judicial review, according proper deference to the state board’s decision. We are disappointed by the tone of the dissent and its incorrect assumptions about our motivations. In contrast, we do not choose to speculate upon the motivations of the dissent; rather, after giving due consideration to the legal points raised by the dissent, we reject its substantive criticisms of our analysis…

We acknowledge, as did the district, that, without the ability to order reinstatement, the state board’s authority to reverse a local board’s decision not to renew a teacher or, in the instant case, a guidance counselor, would be meaningless. See RSA 189:14-b. We therefore affirm the state board’s reversal of the local board’s decision, and order that McKaig be reinstated to her former employment. We also remand to the state board the issue of whether McKaig is entitled to additional remedies, which issue should be addressed by the state board in the first instance.

Justice Lynn dissented.

 The majority’s holding, that the State of New Hampshire Board of Education (state board) could have reasonably concluded that McKaig was not insubordinate, is based upon two flawed premises. First, the holding is based upon the implicit (albeit unstated) determination that the principal’s decision to disclose Student A’s pregnancy to her parents was in some manner at least arguably unlawful or wrong. Second, it also accepts that, because McKaig disagreed with the principal’s decision to tell the parents, she had a right, not simply to advise the student of her disagreement with his decision, but to become an adversary in a court proceeding against him. Neither of these premises, however, can withstand scrutiny. Additionally, the majority allows the state board to impermissibly act as fact finder regarding McKaig’s breach of Student A’s right to confidentiality per district policy. Had the state board given the required deference to the Farmington School Board’s (local board) decision, it would have been required to uphold the decision not to renew McKaig’s contract. For these reasons, I respectfully dissent…

although the majority studiously avoids saying as much, the only plausible explanation for its holding is that the majority believes McKaig’s action in suing her principal was not insubordinate because the principal’s decision to tell Student A’s parents about her pregnancy was not simply one with which McKaig disagreed, but was in some way wrongful or unlawful. Stated differently, if the principal was properly within his rights to tell the parents about the student’s pregnancy, then it is hard to imagine how the majority could hold that it was not insubordinate for McKaig to participate in a lawsuit against the principal because she disagreed with that otherwise correct decision.

(Mike Frisch)