In this post I will address a decision out of the U.S. Court of Appeals for the Second Circuit: T.K. and S.K. on behalf of L.K. v. New York City Department of Education (http://law.justia.com/cases/federal/appellate-courts/ca2/14-3078/14-3078-2016-01-20.html). The highest court that has yet addressed bullying of a student with disabilities, heard this case. This decision, which was announced on January 20, 2016, is a very important decision because the courts of appeals are under only the U.S. Supreme Court in terms of influence. Although decisions from the second circuit are only controlling in the states of Connecticut, New York, and Vermont, this decision is likely to have great persuasive influence on lower court throughout the country.

In this case the New York City Department of Education appealed a judgment for the United States District Court for the Eastern District of New York. The district court held that the NYC Department of Education had denied a student, L.K. a free appropriate public Education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA).

L.K. was a third grade student who had a disability and was receiving special education services as well as services in a “Collaborative Team Teaching” class, which was taught by both a special education and general education teacher. She was making progress during the school year but she started being bullied by other students. There was some physical abuse but primarily the bullying involved name- calling, avoiding physical touch, drawing demeaning pictures of her, and making prank phone calls. L.K.’s teachers apparently did little to stop the bullying. The bullying began to affect L.K.’s academic and nonacademic performance.

L.K.’s parents made several attempts to raise the issue of bullying with her teachers. For example, her parents requested copies of all bullying incidence reports. They also attempted to address the bullying with L.K.’s teachers and the principal of the school but received no response. The parents actually wanted to discuss the bullying during a meeting in which L.K.’s individualized education program (IEP) and behavior intervention plan (BIP) were being developed. Unfortunately, the school principal said that the IEP team meeting was not the proper place to discuss bullying. At a later IEP team meeting held in the summer, L.K.’s parents again tried to discuss bullying.

L.K.’s parents decided to place L.K. in a private school rather than risking more bullying. Her parents requested a due process hearing in which they requested tuition reimbursement. L.K.’s parents argued that the school district had violated the IDEA by refusing to discuss their concerns regarding bullying. The parents lost at the due process level and later at the state review board. The parents’ appealed to the U.S. District Court.

The district court judge noted that students with disabilities have a right to be secure in school and that bullying that is not addressed could constitute a denial of a FAPE. The district court also developed a four-part test to determine whether the bullying resulted in a denial of a FAPE: (1), was the student a victim of bullying, (2) Did school personnel have notice of substantial incidence of the student being bullied, (3) were school personnel deliberately indifferent to the bullying or did they fail to take reasonable steps to prevent the bullying, and (4) did the bullying substantially restrict the student’s educational opportunities? The court remanded the case back to the hearing officer to consider L.K.’s parents’ claims under this test. The hearing officer and state review officer found for the school district, so the parents again appealed to the District Court.

The District Court granted a judgment in favor of L.K.’s parents. The district court judge also held that the school district’s principal and IEP teams refusal to permit L.K.’s parents’ to discuss bullying during the IEP development was a denial of FAPE in violation of the IDEA. The court also ordered tuition reimbursement.

The school district appealed to the U.S. Court of Appeals for the Second Circuit. The circuit court affirmed the lower court’s decision holding the New York City Department of Education had denied L.K. a FAPE by refusing to discuss the issue of bullying, even though it substantially interfered with L.K.’s learning opportunities. The circuit court also affirmed the award of tuition reimbursement. Essentially, the circuit court held that the school district had committing a serious procedural violation of not allowing L.K.’s parents the right to participate in the development of her IEP.

What does this decision mean for school district personnel? First, all administrators, teachers, and staff should be on the lookout for incidences of bullying. Detecting and responding to bullying when it first occurs is extremely important. This is critical if the victim is being bullied because of his or her disability, race, color, national origin, or sex. When there is a complaint from a student’s parents, peers, or teaches, administrators need to act quickly to address the potential problem. School officials should remember that when students in a protected class (e.g., disability, race, color, national origin, sex) is the target of bullying, the school district is responsible for addressing bullying incidence about which it knows, or should have know. Additionally, all investigations should be thoroughly documented.

Second, when incidences of bullying are recognized, administrators and teachers need to respond quickly and effectively. In responding to bullying, school personnel should do more than simply disciplining the offender. School personnel, including IEP and Section 504 teams need to (a) eliminate the hostile environment created by the bullying, (b) address the effects of the bullying on the victim (e.g., providing counseling), and (c) take steps to ensure that the bullying does not reoccur.