February 18, 2016, Trial News
Second Circuit rules bullied student was denied right to a free public education
The Second Circuit has ruled that a New York City public school denied a student with learning disabilities access to a free appropriate public education and must pay her tuition at a private school. The student’s parents claimed that the school refused to discuss repeated, severe bullying against their daughter in violation of the Individuals with Disabilities Education Act.
The Second Circuit has ruled that a New York City public school denied a student with learning disabilities access to a free appropriate public education (FAPE) and must pay her tuition at a private school. The student’s parents claimed that the school refused to discuss repeated, severe bullying against their daughter in violation of the Individuals with Disabilities Education Act (IDEA). The Eastern District of New York found that the school’s actions prevented the student from receiving a FAPE, that the parents chose an appropriate alternate school for their daughter, and that the parents were entitled to reimbursement of one year of their daughter’s private school tuition. The Second Circuit affirmed. (T.K. and S.K., individually and on behalf of L.K. v. N.Y. City Dep’t of Educ., No. 14-3078-ck (2d Cir. Jan. 20, 2016).)
L.K. was a third-grader in a classroom with both general and special education students and teachers. She also had one-on-one support from “special education itinerant teachers.” She had been doing well academically, but bullying from her classmates became so intense that she regularly came home from school in tears. Instances of bullying included one student “pinch[ing] L.K. hard enough to cause a bruise and stomp[ing] on her toes” and classmates refusing to touch a pencil L.K. had used as if it were contaminated. L.K.’s peers teased her, laughed at her, and called her demeaning names. Her school performance deteriorated, and she was sometimes late to school because she was afraid of the bullying. She became increasingly withdrawn and relied on dolls she brought to school to cope.
The school did not take steps to address the bullying, despite the parents’ repeated attempts to call attention to it. When they tried to discuss the issue during meetings about L.K.’s individualized education plan (IEP)—required under the IDEA to chart a student’s progress and devise goals and plans for the future—school officials refused to talk about it. L.K.’s parents enrolled her in a private school for students with learning disabilities and went through the administrative process to have the city pay for a year’s tuition. After exhausting their administrative options, they appealed to the Eastern District of New York.
The district court found that “students ‘have a right to be secure’ in school and that significant, unremedied bullying could constitute the denial of a FAPE.” The court laid out a four-point test to determine whether a denial existed: whether the student had been bullied, whether the school had notice of the bullying, whether the school was “deliberately indifferent” or failed to reasonably act to prevent the bullying, and whether the bullying “‘substantially restricted’ the student’s ‘learning opportunities.’” When the hearing officer failed to find for the family on remand, they appealed again to the district court, which granted them summary judgment.
On appeal by the city, the Second Circuit focused on the parents’ procedural right to have their concerns about the bullying heard and considered in the development of L.K.’s IEP. The court did not comment on whether L.K. had been severely bullied, nor did it discuss the district court’s four-step test. It found that the IDEA provides parents with a right to participate in creating the IEP and “significantly impeding” their participation violates that right. The court did not decide whether severe bullying should be considered in an IEP but deferred to the city’s own concession that bullying that could interfere with a child’s ability to perform in school may be an appropriate topic to discuss. The U.S. Departments of Justice and Education filed a joint amicus brief in support of the parents, which echoed the argument that bullying could block a student’s access to a FAPE. Based on this, the court reasoned that the parents should have been able to discuss L.K.’s bullying during the IEP’s development.
After finding a procedural denial of a FAPE, the court considered whether the chosen private school was an appropriate alternative and whether the parents were entitled to tuition reimbursement. The school was approved by the state for someone with L.K.’s needs and was a reasonable option to improve her educational situation, the court concluded. It also found that the parents were owed the tuition because they engaged in a good faith effort to work with school officials on the IEP and adequately notified them about sending L.K. to a different school.
Washington, D.C. attorney Adele Kimmel noted that courts are starting to address the issues presented in this case, but that much is unresolved: “Courts are in the early stage of grappling with the issue of when bullying of a disabled student may deny his or her right to a FAPE. In fact, there isn’t yet an authoritative legal standard for determining when school bullying may constitute a substantive denial of a FAPE. The Second Circuit’s decision in T.K. is important because it sends a strong message to schools that they may violate the IDEA if they fail to address bullying issues when developing a plan to address a student’s disabilities. The decision also sends a strong message to disabled students and their families that they should press schools to address bullying concerns as part of the IEP process. Schools that refuse to discuss bullying concerns when developing an IEP do so at their peril. They not only fail their students, but risk legal liability. The court also signaled that a school’s failure to address bullying concerns during the IEP process could amount to a substantive violation of a FAPE, though it didn’t decide this issue.”
As to whether the court’s ruling could apply beyond the IDEA, Kimmel said, “Although the decision involved a student with an IEP under the IDEA, the court’s reasoning may help disabled students with a plan under §504 of the Rehabilitation Act. They could similarly argue that their §504 plan should address school bullying concerns and that the failure to do so violates their rights under §504.”