“The Shape of Free Appropriate Public Education to Come: How Courts are Finding that Bullying Denies Students with Disabilities their Right to Education”
- Free Appropriate Public Education Denied: an IntroductionImagine that you are a twelve-year-old student with a learning disability. No question, your daily ability to learn presents challenges. Now, add another obstacle to your ability to learn, bullying. Students ridicule you daily. Your classmates physically push you and they exclude you from your peer groups. When you are assigned to work on a group project, other students refuse to touch the pencil you have used. On one occasion, a fellow classmate refuses to hand in your paper to be graded. On another occasion, you attempt to participate in class discussion, but the other children laugh at you. You walk past your classmates, only for one of them to stick out their foot to trip you. Your teacher blames you for being tripped and requests that you not disrupt the class.Under this constant torment, you are unable to focus, as your learning environment becomes increasingly hostile. The bullies make school a place where you cannot learn. The chorus of jeering classmates destroys any hopes of meaningful participation. Your best hope is to try “to get by,” but you are not receiving an education. Rather, the school is allowing the bullies to act as a functional barrier to learning. The school, through its lack of interference, discriminates against you, a student with a disability. This story, which may have happened to your child, is what happened to L.K., a twelve-year-old girl with a learning disability. [FN.1.].
- The Path Ahead: T.K. and S.K. v. New York City Department of EducationIn 2011, the U.S. District Court for the Eastern District of New York found that a school district’s failure to stop bullying amounted to a denial of Free Appropriate Public Education (FAPE). In T.K. and S.K. v. New York City Department of Education, the court held that under the Individuals with Disabilities Education Act (IDEA), a school district that permits bullying to persist, denies the victim of the bullying FAPE. The court observed, “[a]cess to a free appropriate education is one of the central issues of our time.” When a school district fails to stop bullying, it denies the student access to education, which IDEA guarantees.Bullying gave L.K. a sense that she “did not belong in the classroom.” The constant torment from classmates disrupted her ability to focus. The court cited studies on bullying, which revealed that bullying results in lower grades, impaired concentration, poorer academic performance, and the victim exhibiting behavior issues. [FN. 2]. Studies further show that bullying results in emotional outbursts and missed time in the classroom. Based on the court’s findings, as well as the lived experiences of students, bullying disrupts students’ ability to learn. Bullying, therefore, denies the student their right to FAPE. [FN. 3]
- How Such Legal Rationale Affects Your ChildCases, such as T.K. and S.K., and programs, such as the “Dear Colleague” letter, signify that bullying denies FAPE. Case law and the “Dear Colleague” letter further compel districts to remedy the denial of FAPE. The letter, which is published by the Office of Civil Rights, asserts that following an incident of bullying, the district must convene an IEP or 504 team meeting.The district must determine whether the bullying denied the student an educational benefit. Ideally, the district should keep the student in the original placement (same classroom), unless this would result in the student not receiving FAPE. [FN. 4] At the IEP or 504 meeting, the district must determine whether the “the student’s educational needs” have changed due to the bullying, whether the bullying interfered with the IDEA or 504 services, and whether “additional or different services” are needed address the changes resulting from the bullying. Viewing bullying as a denial of FAPE, places the burden on the school district to eliminate bullying. These changes within the special education law landscape show that both courts and policy makers are viewing bullying as a denial of FAPE. [FN. 5.]
[FN.1.] See T.K. and Individually and on Behalf of L.K., v. NEW YORK CITY DEPARTMENT OF EDUCATION, (2011).
[FN. 2] Id.
[FN. 3.] See Generally, “Study Examines Impact of State Anti-Bullying Laws on School-based Incidents,” in Special Education Today.
[FN. 4]. See generally, Dear Colleague Letter, available at,http://www.ed.gov/policy/speced/guid/idea/memosdcltrs/bullyingdcl-8-20-13.doc.
[FN. 5.] Id.
If your child has been bullied in school and the District is not appropriately responding, contact an education lawyer at Montgomery Law today. Note that nothing in this post or on this website is intended to be taken as legal advice. Every case is unique.