Mar 17

Can Bullying Result in a Denial of a FAPE?

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T.K. v. N.Y.C. Dept. of Ed. is a significant federal case dealing with the issue of whether bullying can result in a FAPE denial. The case was brought by L.K.’s parents against the New York City Department of Education. They claimed that the school failed to respond to their concerns about pervasive bullying and that the bullying, coupled with the lack of response, denied their child of a FAPE for the then current 2007-2008 school year and in the IEP developed for school year 2008-2009. They had unilaterally enrolled their child in a private school and sought tuition reimbursement.

A brief description of the facts:

L.K. was classified under the IDEA and enrolled in a collaborative team teaching (“CTT”) class with a special education itinerant teacher (“SEIT”) for the 2007-2008 school year. The parents observed negative effects of pervasive bullying on their child. She became reluctant to attend school, became withdrawn, gained weight and started bringing her dolls to school. But it wasn’t just the parents who testified to the negative impact of bullying. The SEITs who worked with the child testified to classroom incidents and their negative impact. Among other things, children in the class laughed at L.K. when she tried to participate in class. The SEITs observed L.K. becoming increasingly sad, frustrated and unable to pay attention. Judge Weinstein explicitly stated that the school’s responses to bullying “…might have given other students in the class the impression that their behavior was appropriate.” 32 F.Supp.3d at 420. The school’s principal refused to discuss the bullying in private or at the IEP meeting. In one instance, when the parents tried to meet to discuss the bullying problem, the principal threw the parents out of her office and threatened to call security. Id.

The case trail:

First, you have to understand the procedural path of this case. The parents initiated their claim and lost at the impartial hearing and on appeal to the State Review Officer (“SRO”). The IHO held that there was no denial of FAPE and that refusal to discuss bullying issue in the IEP meeting was appropriate, since it “didn’t go to the heart” of the discussion about the educational program. S.R.O. Op. 09-097 at p. 12. The SRO held that the record showed that the student had engaged in inappropriate behavior, that the child’s language skills improved, that she kept up academically and that she had some friends, concluding that there was no denial of a FAPE. The parents appealed to federal district court, which resulted in an absolutely beautifully written decision by Judge Jack B. Weinstein, 779 F. Supp.2nd 289 (E.D.N.Y.2011). Judge Weinstein set forth a four-part test to determine when bullying results in a deprivation of FAPE and then sent the case back down for a second impartial hearing so that the test could be applied. The second impartial hearing found again for the school district and was affirmed by the SRO. The parents appealed again and a second decision was rendered by Judge Weinstein on July 23, 2014. It’s jaw dropping and may be found at 32 F.Supp.3d 405 (E.D.N.Y. 2014). and truly worth reading. The school district, however, has appealed to the Second Circuit.

Judge Weinstein’s tests:

In his first decision, Judge Weinstein set forth the following test:
1) the plaintiff is an individual with a disability who was harassed because of that disability;
2) the harassment was sufficiently severe or pervasive that it altered the condition of his or her education and created an abusive environment;
3) the defendant knew about the harassment;
and
4) the defendant was deliberately indifferent to the harassment.

779 F. Supp.2nd at 314 Judge Weinstein held that the IHO and SRO applied the improper standard and the case was remanded to the impartial hearing level.

On remand, the impartial hearing officer held that L.K. was a victim of bullying, that the school authorities knew or reasonably should have known about the bullying, that they failed to fully investigate or adequately respond the situation and that the school was deliberately indifferent. However, the IHO found that, despite the bullying, the child was not restricted in her learning opportunities or denied of a FAPE. The SRO found that the IHO findings were supported by the evidence and affirmed. Specifically, the SRO noted that the child’s private school application didn’t mention bullying and said that the child was generally happy. SRO Op. 12-140 at 20. The SRO also determined that L.K.’s learning was not “…stunted as a result of harrassment.” Id. at 21. The IHO had determined that he school was deliberately indifferent, but he SRO reversed. Finally, the SRO attributed L.K.’s tardiness and numerous absences to private school visits and time spent out of school for private evaluations. Id. at 38. Again, the parents appealed to the district court and Judge Weinstein rendered his second decision.

In his second (magnificent) decision, Judge Weinstein found that, as a matter of law, L.K. was deprived of a FAPE during the 2007-2008 school year and there was a substantial probability that the bullying would continue to deprive L.K. of a FAPE during the 2008-2009 school year. Judge Weinstein held that the bullying substantially restricted L.K.’s educational opportunities, that the school was deliberately indifferent to the problem. He also held that failure to consider bullying in formation of the 2008-2009 IEP. I can’t best Judge Weinstein, so here is what he wrote:

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. Language and explanations understandable to parents must be used in developing
an anti-bullying program.

32 F.Supp.3d at 411. Applying the legal rules to the facts, Judge Weinstein held that the school district failed to consider bullying in formulating L.K.’s IEP for the 2008-2009 school year and that the school district obstructed the parents’ meaningful participation in the process.

Current status:

This case is on appeal to the Second Circuit Court of Appeals. Judge Weinstein’s decisions are remarkably well reasoned and incredibly thorough. The first one reads like a dissertation on the negative consequences of bullying. Plus, plaintiffs have support in an amicus brief filed by the United States Education Department, which oversees implementation of the Individuals with Disabilities in Education Act. All of the briefs are in and oral argument is the next step. Who can predict what the Second Circuit will do. As Judge Weinstein noted, three other circuits considered the issue of whether bullying can result in a deprivation of FAPE. M.L. v. Federal Way S.D., 392 F.3d 634 (9th Cir. 2005)(parents failed to establish threats resulting in FAPE denial); Shore Reg. H.S. v. P.S., 381 F.3d 194 (3d Cir. 2004)(District Court failed to give due weight to administrative determination that FAPE denial resulted from severe and prolonged harassment); Charlie F. v. Bd. of Educ., 98 F.3d 989 (7th Cir. 1996)(though teacher let students express complaints about disabled student, parents sought money damages, which are not permitted by IDEA). None of these cases contain tests that could be replicated in application to other situations, whereas the Weinstein decisions contain tests that are both applicable prospectively and retrospectively. I haven’t read the record, but it appears that the great weight of the evidence favors L.K. and the logic of the Weinstein decisions is irrefutable. Perhaps the floodgates will be opened, but perhaps this case will motivate schools to be more responsive to bullying in general for the betterment of both victims, the bullies and society at large.

  1. Cinta 3 May 2015 | reply

    I agree with your tips. I would add two points:1) Evaluations need to be drvein by diagnostic questions, but rarely are. Parents (and teachers) need to ask the right questions to get the right answers. Here are a few sample questions:# What are my son’s strengths?# What are his weaknesses?# What services does he need to support and extend his strengths?# What services does he need to overcome his weaknesses?# If the recommended services are organized by sessions, how frequently should he get the services and how long should each session last?# What does he have to learn (academically, socially, emotionally, recreationally, vocationally, behaviorally) to succeed in general education classes, with the general education curriculum?# What services does he need to master the general education curriculum?# What services does he need to do well in general education classes?# What services does he need to do benefit from special education?# Specifically and explicitly, how should his progress be measured?# How frequently should his progress be measured so any difficulties can quickly be eradicated and his progress accelerated?# What annual goals and quarterly objectives would produce important progress without overwhelming or frustrating him?# How much repetition and novelty does he need in order to master what’s taught?# What has diagnostic teaching revealed about his learning and the kinds of lessons he needs?2) Testing is rarely enough to produce needed answers. Diagnostic teaching, observations of the child doing well and poorly, and ongoing monitoring of progress are critical parts of a valid evaluation.

  2. Human 19 May 2015 | reply

    I’m so sorry to hear that you are having a dcfiifult time with your son’s school. While most schools try very hard to work collaboratively with parents, there are sometimes cases where both parties can’t agree. This is the reason parents are provided with copies of their Procedural Safeguards over and over again. Schools are required to inform parents that they have a TON of rights. Keep this in mind going into your meeting. Mediation and due process aren’t fun, but they are there for a reason. As far as your question on who/what determines need , this should be a team decision following an evaluation. Services can’t really be determined before an evaluation is done. That being said, there needs to be evidence that suggests your son might have a disability interfering with his education in order to proceed with an evaluation. Teams (including the parent) should look at previous report cards, state testing, classroom work samples, office referrals/disciplinary actions (for behavioral concerns), outside medical reports basically anything that provides information on how the child is functioning within the school setting. I’m assuming that since your son’s school offered a 504 Plan, he has an identified medical condition. The question then becomes, does he require specially designed instruction in order to progress in school. The reason to implement a 504 Plan over an IEP is if he is capable of performing at grade level, but requires specific accommodations in the classroom in order to be successful. Hopefully this answers your question. If not, or if you want to dialogue about this further, feel free to email me at . Good luck with your upcoming meeting!

    • Bonnie Schinagle 22 May 2015 | reply

      Thank you for reading my blog. I was a little confused by your response to a reader’s comment. The reader didn’t state that they were having a problem with their own child; they used the word “he” in a general sense. Also, 504 doesn’t necessarily respond to a medical condition only. Also, grade level performance is absolutely not an indicator of the need for a 504 versus IDEA classification. Both the Federal and New York Regulations state that students with classifiable disabilities who are attaining passing grades are entitled to a FAPE. Also, read footnote 25 to Rowley, which clearly states that the passing grade criteria was specific to that case only. This is a very important distinction. In point of fact, there are highly gifted students who nonetheless qualify for classification. The reason school districts give students 504 plans instead of IEPs is because they know that one of the permissible remedies available under the IDEA is private school tuition reimbursement. They know that that remedy is NOT available under 504.

  3. Thanks for the blog article.Much thanks again. Keep writing.

  4. tom & jerry 16 Sep 2015 | reply

    Thank you for sharing your thoughts. I really appreciate your efforts and I am waiting for your next post thanks once again.

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