Bullying, Tuition Reimbursement, and the IDEA
In a carefully written and extremely well researched 51-page opinion, a New York federal court held that when a student with a disability experiences “substantial restrictions in learning opportunities” due to severe or persistent bullying, she has been deprived of a Free and Appropriate Education under the Individuals with Disabilities in Education Act (“IDEA”).
Starting on page 1 of its opinion in T.K. and S.K. o/b/o L.K. v. New York City Dept. of Ed. (10-CV-00752) (April 25, 2011), the court recognized that bullying is a serious issue that must be addressed head-on:
No one gains from ignoring school bullying, not even the bullies themselves. The students who are bullied may suffer lasting scars in the form of an inferior education, emotional damage, and decreased self-confidence; the bullies are left to continue on a path that may lead to future violence. (p.4)
The court recalled the Columbine High School massacre of 1999 and offered a somber overview of students who commit suicide as a result of peer-on-peer bullying.
Were bullying characterized as a disease affecting America’s youth, a team from the Center for Disease Control charged with investigating epidemics would have been called in to study it. (p. 11)
The court’s sincere interest in the history of bullying, the types of bullying that exist, the impact of bullying on children, and how bullying affects society, is absolutely extraordinary. The court’s research of peer-on-peer bullying in school comprises roughly two-thirds of the entire opinion. It is painfully obvious that the court would like school bullying to stop and that children be safe at school.
Demonstrating its concern for children with disabilities who are bullied, the court noted:
Despite an increased focus in recent years on instructing special education students in general education classrooms, there has not been a corresponding concern about the way these children integrate socially in the classroom. Without healthy social interaction, students with disabilities become targets of harassment. (p. 22; internal citation omitted)
With that background, let us briefly turn to the facts of the case.
L.K. is a 12-year old girl with a learning disability. (p. 6) She had an IEP that provided various special education services, including a one-to-one aide, at a school in New York. (p. 6)
During the 2007-2008 school year, L.K. was subject to bullying and “complained to her parents almost daily…” (p. 8) Among the bullying incidences:
- A drawing made by a student in casting L.K. in a disparaging light;
- A student chasing L.K. with what he claimed was blood but was in fact ketchup; and
- Students refusing to touch things that L.K once had. (p. 9)
If these things were not enough, L.K.’s one-to-one aides also reported that L.K. was “ostracized in the classroom and the subject of ridicule from other students.” (p. 8) The students in school would either stay away from L.K. or “physically push her away for fun.” One of the aides testified that L.K. “would be tripped, where she was walking by and they would stick out their feet just to see what would happen. And then if she fell, well, then the teachers would get upset with her for making a scene.” (pp. 8-9).
When L.K.’s parents wanted to discuss the bullying issues, the principal asked the parents to leave; and if they would not leave, the principal would call security. (p. 6, 10) Consistent with the principal’s behavior towards L.K.’s parents, the principal did not even “recall what she did to investigate any claims of bullying.” (pp. 10-11)
As a result of these bullying incidences and the school’s failure to address these bullying incidences, L.K.’s academic performance declined and she resisted going to school; ultimately, L.K. withdrew emotionally and suffered emotional scars. (pp. 10, 48-49).
Subsequently, L.K.’s parents placed L.K. at a private school for learning disabled students.
L.K.’s parents then filed suit against L.K.’s public school for private school tuition reimbursement under the IDEA. (p. 7)
Unlike New Jersey, New York is a “two-tier” state. In New York, education due process cases are first heard before an Impartial Hearing Officer. If the Impartial Hearing Officer does not rule in favor of the parent, the parent may appeal to the State Review Officer. If, again, the parent is unhappy with the outcome, the parent may appeal in federal court.
In this case, both the Impartial Hearing Officer and the State Review Officer found that L.K. received a Free and Appropriate Education (“FAPE”). The Impartial Hearing Officer only “passingly referred to the issue of bullying.” (p. 36) The State Review Officer offered “no specific test” for why he determined that the bullying did not deprive L.K. of a FAPE. (p. 36)
Determined not to let the State Review Officer have the last word, L.K. appealed in federal court. Not surprisingly, the school board moved for summary judgment.
In addressing the legal claims, the New York federal court held that “students have a right to be secure in school and schools have a duty to prevent students from harassment under IDEA and Title IX.” (p. 30) The court further held that students have a right to be free from physical assaults and psychological attacks. (p. 31) (citing Sypniewski v. Warren Hills Reg. Bd of Educ., 307 F.3d 243, 264 (3d. Cir. 2002)).
The court held that Title IX, IDEA, and Section 504 of the Rehabilitation Act “place upon schools the affirmative duty to address bullying and harassment.” (p. 31)
The court further held that when bullying reaches a point where a student with a disability experiences “substantial restrictions in learning opportunities she has been deprived a FAPE.” (p. 49)
The court then went on to develop a test to determine whether a student with a disability who has been bullied may be entitled to relief under the IDEA if she was deprived of a FAPE. In summary, the test requires that:
- The student has a disability;
- The student was bullied because of her disability;
- School personnel was aware of the bullying and failed to take “prompt and appropriate action” to prevent the bullying;
- School personnel’s failure to prevent the bullying resulted in a deprivation of a FAPE.
Interestingly, the court noted that although the student-victim is required to show that the conduct was “severe, persistent, or pervasive that it create[d] a hostile environment,” the student-victim “is not required to prove that she was denied all educational benefit.” (pp. 46, 48-49; emphasis mine) (citing United States Department of Education Office of Civil Rights, Dear Colleague Letter: Bullying and Harassment (Oct. 26, 2010)).
In applying the facts to this case, the court determined that L.K. satisfied the test and denied the defendant’s motion for summary judgment.
The entire 51-page opinion is definitely worth the read. Also highly recommended is an earlier case from 2004 in the United States Court of Appeals for the Third Circuit, Shore Regional High School Bd. of Ed. v. P.S. o/b/o P.S., 381 F.3d 194 (3d Cir. 2004).