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Thursday, February 4, 2016

Second Circuit Rules that Failing to Address Bullying May Violate IDEA

From the Education Law Prof Blog

By Derek Black and Mark Weber
February 2, 2016

"... where there is a substantial probability that bullying will severely restrict a disabled student’s educational opportunities, as a matter of law an anti-bullying program is required to be included in the IEP..."

The Second Circuit issued a major decision on January 20 in T.K. v. New York City Department of Education, No. 14–3078–CV, 2016 WL 229842, --- F.3d --- (2d Cir. Jan. 20, 2016).

The court ruled that the city school system denied a child free, appropriate public education (FAPE) by refusing to discuss severe bullying that she experienced at school, when her parents raised the issue in meetings in connection with her individualized education program (IEP).

The child made academic progress and performed at close to grade level in a public school class that had both a special education and a general education teacher.

But staff who assisted in the instruction testified that the child’s classmates constantly bullied her. She was tripped, had her toes stomped on, was pinched hard enough to cause bruising, and was routinely called ugly, stupid, and fat. She came home crying almost on a daily basis. The teachers did not intervene, nor did they punish the harassers.

Writing for a unanimous court, Judge Lohier reasoned that the refusal to discuss the bullying and address it in the education program was a procedural violation of the Individuals with Disabilities Education Act (IDEA) that denied the child the right to appropriate education.

Relying on a concession by the defendant, the court assumed without deciding that bullying is a proper consideration when it substantially restricts child’s learning opportunities. The court stated:

“Here, Plaintiffs were reasonably concerned that bullying severely restricted L.K.'s educational opportunities, and that concern powerfully informed their decisions about her education. By refusing to discuss that bullying during the development of the IEP, the Department significantly impeded Plaintiffs' ability to assess the adequacy of the IEP and denied L.K. a FAPE.” (at *5).

The court affirmed an award of tuition reimbursement for the private placement the parents made for the child when they did not succeed in having the public school address their concerns.

The decision affirmed a ruling by Judge Jack Weinstein, who had issued two extensive opinions in the case.

The first opinion, 779 F. Supp. 2d 289 (E.D.N.Y. 2011), collected vast empirical information about bullying, surveyed the law regarding IDEA and other potential remedies for bullying, and held that an IDEA violation occurs when bullying is likely to affect child’s opportunity for appropriate education and the public school fails to take appropriate steps to prevent it in future, even if the bullying is not due to the specific disability of the child.

The second opinion, 32 F. Supp. 3d 405, 411 (E.D.N.Y. 2014), which followed a remand to the state administrative process, ruled that the school officials had been deliberately indifferent to the bullying, and summarized the IDEA’s requirements in this context as:

“FIRST, where there is a legitimate concern that bullying will severely restrict a disabled student’s educational opportunities, as a matter of law the IEP team is required to consider evidence of bullying in developing an appropriate IEP . . . .

SECOND, where there is a substantial probability that bullying will severely restrict a disabled student’s educational opportunities, as a matter of law an anti-bullying program is required to be included in the IEP. . . .

THIRD, if a school district purports to address bullying in an IEP, it may not, as a matter of law, do so in abstract terms incomprehensible to lay parents, effectively preventing them from meaningful participation in developing the IEP and from comprehending that the issue was addressed.”

The Second Circuit did not specifically adopt Judge Weinstein’s language, but it affirmed that the school needs to address bullying when parents raise the concern, and it did not require a showing of deliberate indifference.

Advocates for students recognize bullying and other mistreatment of children with disabilities as a pervasive problem, and a number of writers have suggested approaches to address it (the list includes me; see Disability Harassment in the Public Schools, 43 Wm. & Mary L. Rev. 1079 (2002)). 
The Second Circuit’s recognition that ignoring parents’ complaints about bullying denies a child appropriate education is a major development towards effective legal remedies.

It is my view, however, that claims for compensatory damages would in most cases be a more effective deterrent than the more limited tuition reimbursement remedy available under IDEA. Further judicial development of claims under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act are the next step to dealing with the problem.

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