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Wednesday, April 27, 2011

EDNY addresses whether bullying could result in the denial of FAPE

T.K. v. NYC (EDNY 2011): This case presents the interesting and timely issue of whether bullying can result in a denial of FAPE. Parent placed child privately and sought reimbursement. The IHO and the SRO ruled against the parent. Judge Weinstein of the EDNY examined the issues from a variety of different angles, ultimately denying the District’s motion for summary judgement and adopting a test as follows: “under IDEA the question to be asked is whether school personnel were deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in her educational opportunities.” Judge Weinstein determined that “the issue requires a court evidentiary hearing, and, a possible remand to the state authorities for a rehearing.”

Conduct need not be outrageous to fit within the category of harassment that rises to a level of deprivation of rights of a disabled student. The conduct must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment. Id. Where a student is verbally abused repeatedly and suffers other indignities such as having his property taken or is struck by his fellow students, and a school does nothing to discipline the offending students despite its knowledge that the actions have occurred, the student has been deprived of substantial educational opportunities. Id. The rule to be applied is as follows: When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if the harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination. Compare, DOE Bullying and Harassment Letter, supra, to Werth v. Bd. of Dirs. of Pub. Schs., 472 F. Supp.2d 1113, 1127 (E.D. Wisc. 2007); K.M. v. Hyde Park Cen. Sch. Dist., 381 F. Supp. 2d 343, 358-60 (S.D.N.Y. 2005) (citing Davis, 526 U.S. at 640-53). It is not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education. The bullying need not be a reaction to or related to a particular disability.

To be denied educational benefit a student need not regress, but need only have her educational benefit adversely affected. Academic growth is not an all-or-nothing proposition. There are levels of progress. A child may achieve substantial educational gains despite harassment, and yet she still may have been seriously hindered. Growth may be stunted providing an education below the level contemplated by IDEA. In New York, IEP's are required to give children more than an opportunity for just "trivial advancement." Mamaroneck Union Free Sch. Dist., 554 F.3d at 254. The law recognizes that a student can grow academically, but still be denied the educational benefit that is guaranteed by IDEA. Where bullying reaches a level where a student is substantially restricted in learning opportunities she has been deprived a FAPE. Whether bullying rose to this level is a question for the fact finder.

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