Adam Dayan, Esq.
Does Bullying Deprive A Child Of The Right To A Free And Appropriate Education
In T.K. v. NYC Department of Edcuation, the U.S. District Court for the Eastern District of New York (EDNY) considered the following question: "If a child with a disability is bullied in school such that it interferes with academic progress, can that be construed as a denial of a free, appropriate education under the Individuals with Disabilities Education Act (IDEA)." This issue was not conclusively decided previously in the 2nd Circuit and was therefore a case of first impression. Oftentimes when we talk about a denial of FAPE, it is the school district that failed to provide this or that program or service. The issue of bullying is slightly different because it involves the acts of one (or some) student(s) toward another student. The school's potential liability here would be for its failure to prevent harm (or failure to provide a safe environment).
Quick synoposis of the facts: 12 year old girl is classified by the CSE as having a disability. The CSE recommends a collaborative team teaching program for the 2007-2008 school year with supports. During that year, the girl complains to her parents constantly about being bullied at school. The parents attempt to address the issue in person and in writing but those efforts were dismissed by the school. After meeting to discuss the child's needs for the 2008-2009 school year, the CSE recommends the same program with fewer supports. At this meeting, the parents attempted to discuss bullying of their daughter but the principal said it was not an appropriate time to discuss the matter. No meeting was scheduled to address the issue and no investigation was ever conducted. The persistent bullying and the school's lack of concern compels the parents to remove their daughter and place her in the Summit School, a private special education school. The parents filed a claim asserting that the bullying resulted in a denial of FAPE and seeking reimbursement. That claim was denied by the impartial hearing officer who determined that the bullying was separate from the issue of the appropriateness of the "program." The SRO upheld that decision.
The EDNY reviewed cases and standards from other circuits (including 1st Amendment cases showing a student's right to be free from attack by others) and attempted to articulate its own standard for determining whether bullying results in a denial of FAPE under the IDEA. The court provided a 4-part test: (a) the plaintiff is an individual with a disability who was harassed; (b) the harassment was sufficiently severe that it substantially restricted his/her education; (c) the school knew about the harassment; and (d) the school was deliberately indifferent to the harassment. The court made a significant distinction that "[t]he bullying need not be a reaction to or related to a particular disability" (presumably because children with disabilities are inherently more vulnerable to bullying and it shouldn't matter whether or not the harassment is because of that specific learning issue). The court also noted that "[i]t is not necessary to show that the bullying prevent all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education."
The court rejected the school district's argument that this would open the floodgates for litigation by anyone who has ever been bullied, stating that this only requires them to do what they were already obligated to do - i.e. address harassment incidents about which they know or reasonably should have known.
The judge concluded that the IHO erred in determining that the bullying had nothing to do with the adequacy of the program. The IHO did not determine whether school personnel had notice of substantial bullying, whether they took reasonable steps to address the harassment, or whether the harassment rose to the level of depriving the child of an educational benefit. Therefore, a new evidentiary hearing would be required (not exactly the conclusive determination the parents were hoping for). Although the judge suggested that the case would be remanded for that purpose, he did not state so explicitly ("the issue requires a court evidentiary hearing, and, a possible remand to the state authorities for a rehearing"). The judge did, however, clearly leave the door open for recovery in this case ("The IDEA gives a court broad authority to grant appropriate relief") pending additional proceedings.