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.

8th Circuit holds that private placement need not satisfy a least-restrictive environment requirement

CB v. Special School District No. 1 (8th Circuit 2011): IHO awarded reimbursement to parents for the costs of a private placement. The district court reversed the IHO finding that although the public school had not provided the student with a FAPE, the private school was not appropriate because the student body was comprised mostly of students with disabilities. The 8th Circuit reinstated the IHO’s ruling.

We conclude that the mainstreaming preference of the IDEA does not make Groves an inappropriate private placement under the circumstances. The statute calls for educating children with disabilities together with children who are not disabled "[t]o the maximum extent appropriate." Id. (emphasis added). Here, the School District failed to develop an IEP that made available a free appropriate public education. At that point, C.B.'s parents had a "right of unilateral withdrawal," Florence Cnty., 510 U.S. at 13, and a right to reimbursement for private tuition, so long as the placement was "proper under the Act," Burlington, 471 U.S. at 369, and the award "furthers the purposes of the Act." Forest Grove, 129 S. Ct. at 2493 n.9.

The overriding purpose of the Act is to provide an education for disabled children that is both free and appropriate. The Act was designed, as the hearing officer noted, "to open the door of public education to handicapped children on appropriate terms." Rowley, 458 U.S. at 192. But once the School District failed to fashion an IEP that made available a free appropriate public education, it did not frustrate the purposes of the Act for C.B.'s parents to enroll him at Groves, where he could receive the educational benefit that was lacking in the public schools.

The parents were not required to allow the District another opportunity to try yet again with a different IEP that featured the CLASS program when the District did not propose that alternative in any of the IEPs that preceded C.B.'s withdrawal. Reimbursement for the costs of enrollment in a private school is authorized if the hearing officer finds that the District "had not made a free appropriate public education available to the child in a timely manner prior to that enrollment." 20 U.S.C. § 1412(a)(10)(C)(ii)(emphasis added). A less restrictive environment is the ideal, but C.B.'s move to Groves after years of frustration in the public schools is a far cry from "the apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special classes" that concerned Congress. See Burlington, 471 U.S. at 373. We thus join the Third and Sixth Circuits in concluding that a private placement need not satisfy a least-restrictive environment requirement to be "proper" under the Act. See Warren G. v. Cumberland Cnty. Sch. Dist., 190 F.3d 80, 83-84 (3d Cir. 1999); Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 399-400 (6th Cir. 1998).

Aside from the concern that Groves educates primarily children with disabilities, there is no doubt that it was a proper placement for C.B. As the hearing officer summarized:

Groves offers the Student teaching methods and programs that the School District has not provided. In addition to these methods and programs, the ability to group and re-group students throughout the day to ensure reading skills are reinforced across subjects sets Grove[s] apart. Moreover, the District's own teachers thought that Groves is an appropriate place for the Student. His mother has seen an "explosion" of learning since the Student entered Groves.
We conclude that the placement at Groves was proper under the Act, and that reimbursement for tuition paid by C.B.'s parents to Groves for the 2008-2009 academic year is not precluded by the statute's preference for education in the least restrictive environment.