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Lynn Brown Writes “Federal Court Finds That Disabled Students Who Are Bullied May Be Denied FAPE”

Brown_LynnDisabled students and their parents were handed a major victory by Federal District Court Judge Jack B. Weinstein on April 25, 2011 in T.K. v. New York City Dept. of Education, 10 CV 00752 (S.D.N.Y.).   Addressing what the court called ‘the largely unresolved issue of the extent to which bullying by other students inhibits a disabled child from being educated appropriately, and what her school must do about it,’ the court found that schools cannot turn their back on bullying perpetrated upon disabled students and may face severe legal consequences (including having to pay for private school) for failing to address harassment about which it knows or reasonably should know.  Furthermore, the court found that the bullying need not be reaction to or related to any particular disability.

Under IDEA, the Individuals with Disabilities Education Act, the federal law applicable to all public schools in New York State, a school district is required to provide a disabled student with a free, appropriate, public education, or “FAPE.”  To meet the requirements of IDEA, a school district’s program must ‘provide special education and related services tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.’   T.K. v. New York City Dep’t of Education, quoting Walczak v. Florida Union Free School District, 142 F.3d 119, 122 (2d Cir. 1998).  The Committee on Special Education (“CSE”) is charged with the responsibility of designing and implementing a disabled student’s special education and related services calculated to enable a disabled student to receive educational benefits.

The court in T.K. ruled that under IDEA, ‘the question to be asked is whether school personnel was deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in her educational opportunities.’ In determining whether such deliberate indifference occurred, the court determined that a ‘school is responsible for addressing harassment incidents about which it knows or reasonably should have known.’    Furthermore, the conduct must ‘be sufficiently severe, persistent, or pervasive that it creates a hostile environment.’  Some examples provided by the court of such severe, persistent or pervasive conduct are ‘[w]here a student is verbally abused repeatedly and suffers other indignities such as having his property taken or is struck by his fellow students, and the school does nothing to discipline the offending students despite its knowledge that the actions have occurred.’  When put on notice of such conduct, a school must take ‘prompt and appropriate action’ to investigate and, if it finds such occurred, it must ‘take appropriate steps to prevent it in the future.’  The school must act regardless of whether the misconduct is covered by an already existing anti-bullying policy, and regardless of whether the student has complained, asked the school to take action or claimed the harassment is a form of discrimination.

Significantly, the court held that it is not enough for the disabled student to have been bullied; the disabled student must also be deprived of ‘substantial educational opportunities.’   This does not mean, however, that the student or his parents must show that he or she was denied all educational benefit by reason of the bullying.  As noted by the court, ‘[t]he law recognizes that a student can grow academically, but still be denied the educational benefit that is guaranteed by the IDEA.   Where bullying reaches a level where the student is substantially restricted in learning opportunities, she has been deprived of a FAPE.

This decision is important because, up until now, whether or not a disabled student was subjected to bullying was not considered in determining whether that student was denied a FAPE.  Rather, the entire issue of bullying was something that was considered outside the scope of the CSE, but rather something dealt with by the school administration generally.

This decision makes clear that the CSE cannot turn its back on bullying and the effect it may have on a disabled student’s receipt of educational benefits.  Like considering whether a student needs help in reading or math, the CSE must now address whether it must modify a student’s placement or provide other special education services to ameliorate the effect of bullying.  Parents of disabled students who are the victims of unaddressed bullying should consult legal counsel to identify a strategy that will protect their child and ensure that he or she receives the educational benefits to which he or she is entitled by law.
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Lynn M. Brown is Of Counsel to Meyer, Suozzi, English & Klein, P.C., and is a part of the Litigation & Dispute Resolution and Education Law practice groups located in Garden City, Long Island, N.Y.