Federal Court Finds Bullying Can Deny Student FAPE

In two decisions rendered recently, the United States District Court for the Eastern District of New York found that the Hearing Officer should have considered the alleged bullying of the student when making his decision of whether the student was denied a free appropriate public education (FAPE). T.K. v. New York City Department of Education, 10-CV-00752 (E.D.N.Y. April 25, 2011).

Noting the pervasiveness of bullying in schools across the nation, the Court explained that “where bullying reaches a level where a student is substantially restricted in learning opportunities she has been deprived a FAPE.”

A four part test was established as a means to determine when the bullying of a student denies that student a free appropriate public education. First, the student must be the victim of bullying. Second, the school district must have notice of the bullying. Third, the school district must have failed to take prompt and appropriate steps to prevent bullying in the future. Fourth, the student must have suffered adverse educational effects as a result of the bullying.

In response to the school district’s “suggestion” that this four part test would “open the floodgates to litigation since bullying is so pervasive in our schools,” the Court rejected the idea stating:

First, this test requires that a student have a disability since recovery is under the IDEA. Second, this test merely requires schools do what the Department of Education has told them to do for years. Application of the test is unlikely to substantially increase the cost of special education.

Despite finding some factual support for each part of the test, the Court remanded the case to the Hearing Officer to make the ultimate factual findings. T.K. v. New York City Department of Education, 10-CV-00752 (E.D.N.Y. April 28, 2011). While the final outcome may yet to be determined, the Court legitimized what has seemed obvious to many of us in the special education arena for years: bullying must be taken into account when determining whether an educational program will provide a student with FAPE. This article is merely a brief comment of the Court’s thoughtful decision regarding the complex issue of bullying. If your special needs child is the victim of bullying and your school district has refused to address it, contact Cahill & Associates before the new school year begins.

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