From the New York Law Journal
By Mark Hamblett
January 21, 2016
Parents of a third-grade girl who was removed from public school because of severe bullying should be reimbursed for her placement in a private school, a federal appeals court said Wednesday.
The U.S. Court of Appeals for the Second Circuit affirmed that the New York City public schools are liable for failing to address the "reasonable concerns" of the parents who repeatedly saw their child come home from school in tears.
The case of the child, referred to as L.K., drew the attention of the U.S. Department of Justice and Department of Education, which supported the family's position in an amicus brief in T.K. v. New York City Department of Education, 14-3078-cv.
L.K. is a child with a disability who was placed in a "Collaborative Team Teaching" class at P.S. 6 on Manhattan's Upper East Side with both general and special education students.
She spent third grade in a public school in 2007-2008, and her parents said it was misery—she was pinched and stepped on, ostracized, called "ugly," "fat" and "stupid" and treated as if she was contaminated.
The girl withdrew emotionally and began bringing dolls to school for support. Her parents say teachers were unsympathetic and administrators were unresponsive when they complained.
When the parents met with the school principal to develop an individualized education plan (IEP) in March 2008 and again in June 2008, Principal Lauren Fontana refused to discuss the bullying, saying it was an inappropriate topic to consider in developing the plan.
The parents decided to reject the IEP offered by the school and instead signed an enrollment contract with a private school.
They filed a New York state administrative action seeking reimbursement; when that was denied, they filed suit in the Eastern District, where Judge Jack Weinstein granted summary judgment for the parents, and approved placing L.K. in private school for the 2008-2009 year.
Weinstein found that students have a "right to be secure" in school, and that significant bullying ignored by teachers and administrators could result in the denial of "Free Appropriate Public Education" (FAPE) in violation of the Individuals With Disabilities Act (IDEA), 20 U.S.C. §1400.
Weinstein developed a four-part test, asking first whether the child was a victim of bullying, then whether the school had notice of significant bullying, whether it was "deliberately indifferent" to the bullying or failed to take reasonable steps to prevent it and, finally, whether the bullying incidents "substantially restrict" the student's educational opportunities.
The Department of Education appealed to the Second Circuit, where Judges Raymond Lohier, Gerard Lynch and Susan Carney heard oral argument on Sept. 10, 2015.
Writing for the court, Lohier said the department denied the girl an appropriate public education "by refusing to discuss an issue that, as we note below, it acknowledges may substantially interfere with a child's learning opportunities."
Lohier said the court didn't have to decide the issue of whether bullying can rise to the level of denying a Free Appropriate Public Education, because it was denied as a result of procedural violations—the parents' right to participate in the development of the IEP.
But it noted the department's concession recognizes that "a child with disability who is severely bullied by her peers may not be able to pay attention to her academic tasks or develop the social and behavioral skills that are an essential part of any education"—and that's the position the United States made in its brief.
The circuit said three special education itinerant teachers confirmed that L.K. was constantly teased, excluded and subjected to a hostile environment, and a doctor testified that her classroom behavior and demeanor had regressed.
"And given the school's lack of cooperation about the bullying, plaintiffs could not reasonably be confident that they had been informed about the full scope of the bullying or its effects on L.K.," Lohier said.
The circuit rejected the department's argument that the plaintiffs were not harmed because the IEP had addressed bullying in that it had goals for L.K. to change her behavior in a way that might reduce bullying. In any event, the department argued, there were better channels than the IEP for addressing the problem.
"We are not persuaded," Lohier said. "Denying L.K.'s parents the opportunity to discuss bullying during the creation of the IEP not only potentially impaired the substance of the IEP but also prevented them from assessing the adequacy of their child's IEP."
Gary Mayerson of Gary Mayerson & Associates, a six-attorney civil rights firm that focuses exclusively on representing students with developmental disabilities, argued for the family.
Mayerson said his client completed her education at the Summit School in Queens. He said Weinstein's decision got the attention of school officials.
"They [the court] seemed to assume the victimization occurred, but they were most offended that the school district rebuffed every attempt by the parents to discuss it," Mayerson said. "It does chasten somewhat the arrogance of any school official who says 'I'm not going to discuss bullying. Get out of my office.'"
Assistant Corporation Counsel Ronald Sternberg and Richard Dearing represented the Department of Education.
"The DOE has no tolerance for bullying or discrimination and has policies to address this," Law Department spokesman Nicholas Paolucci said. "The court found a procedural error in this particular case. DOE is reviewing the decision."