Jan 21

Second Circuit Did Not Affirm District Court’s Test to Assess Whether Bullying Results in FAPE Deprivation in T.K.

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My March 17, 2015 blog entry is a detailed discussion T.K. v. N.Y.C. Dept. of Educ., Civ. 14-3078 (2nd Cir. Jan. 20, 2016) and the two lower court decisions. But to recap, the parents alleged that their daughter was denied a FAPE because she was bullied and the school refused to address the parents’ concerns or share information the parents requested. Yesterday’s Second Circuit decision explicitly stated that the court would not address the issue of whether bullying of a child with a disability can ever be shown to result in a deprivation of a FAPE because that issue was conceded by the school district and acknowledged by the United States Education Department in a “Dear Colleague” letter dated August 20, 2013. Additionally, the district court had set forth a four-part test (set out in my March 17, 2015 blog entry) to be used in determining whether bullying of a classified student results in a FAPE deprivation. The Second Circuit stated that it ‘expressed no opinion’ about that test. In other words, the criteria weren’t necessarily rejected, but nor were they embraced. So, what this case tells us about bullying is that children who are classified under the IDEA might be able to prove that bullying has had a negative impact on their education that rises to a FAPE deprivation, but the more important issue is whether school districts have responded to parents’ concerns.

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