Bullying a student with a disability can the basis for a denial of a free and appropriate education (FAPE) claim under the Individuals with Disabilities Education Act (IDEA). However, three factors must be present:
1) The acts against the student with a disability must be severe enough to rise to the level of bullying.
As per the United States Department of Education’s Office of Special Education and Rehabilitative Services (OSERS), bullying is “characterized by aggression … where the aggressor(s) has more real or perceived power than the target, and the aggression is repeated, or has the potential to be repeated, over time.” OSERS, Dear Colleague Letter, August 20, 2013.
Bullying can be “overt physical behavior or verbal, emotional, or social behaviors,” such as “excluding someone from social activities, making threats, withdrawing attention, [and] destroying someone’s reputation.” Id. Bullying also includes “[c]yberbullying, or bullying through electronic technology,” and “can include offensive text messages or e-mails, rumors or embarrassing photos posted on social networking sites, or fake online profiles.” Id.
Unfortunately, fear or speculation of potential bullying is not enough to meet this first factor. (See J.E. v. Boyertown Area Sch. Dist., 834 F. Supp. 2d 240 (E.D.P.A. 2011), affirmed by J.E. by J.E. and A.E. v. Boyerton Area Sch. Dist., 452 F. App’x 172 (3rd Cir. 2011) (upholding a District’s program as appropriate for a student with autism, poor social skills, and sensory processing issues, and finding “the Mother hear[ing] students discussing bullying is an insufficient basis for her to determine that J.E. would be bullied at BAHS,” and the “basis for [the parents’] concerns were impressionistic and not based upon any expertise[,] [just] in drawing inferences from the brief, episodic observations the Mother had been able to make while observing the [Autism Support] class at BAHS.” Id.))
2) The bullying of the student with a disability must interfere with, or will interfere with, that student’s ability to make meaningful progress.
Examples of when bullying might impact a student’s ability to make meaningful progress are: if his/her grades begin to suffer as a result of the bullying, if he/she refuses to go to school or attend his/her related services as a result of the bullying, or if he/she begins to have emotional issues, or experiences an increase in emotional issues, as a result of the bullying.
3) The student’s school fails to address the bullying in order to ensure the student continues to receive (or begins to receive) appropriate programs and services, so that they can make meaningful progress
If a District takes appropriate steps to address and/or remedy the bullying, then there likely is no FAPE claim. For instance, in an Alabama case, a hearing officer found the District investigated every alleged incident of bullying and it took steps to prevent any potential bullying actions from taking place going forward. The District’s solutions after each investigation ranged from: discipline for the other student; an apology from the other student; behavior reduction training for the other student; and nothing when it was determined no inappropriate behavior occurred. In addition, the administration informed teachers and staff of the situation and told them to keep an eye on certain students in case any bullying might occur, and the school also made safety plans for the student in case bullying did occur. Blount County Board of Education, 116 LRP 14556 (AL SEA 10/22/15).
The T.K. Matter – New York’s Seminal Case on Bullying1
The Second Circuit’s T.K. v. New York City Department of Education case demonstrates when acts constitute bullying under the first factor. There, students physically bullied L.K. as well as socially and emotionally bullied her by excluding her from groups, moving away from her, and refusing to touch class materials she touched. L.K.: returned home from school every day crying due to her bullying; another student pinched L.K. and “stomped on her toes”; students laughed at L.K.; students moved in order to avoid touching L.K.; students “constantly teased [and] excluded [her] from groups”; and students refused to touch a pencil L.K. used. T.K. v. New York City Department of Education, No. 14-CV-3078, 2016 WL 229842, at *1, *4.
In addition, the second factor was met in T.K., where the Court found as a result of the bullying L.K.: was late to school because of “her fear of interacting with her classmates”; one of L.K.’s teachers “reported that bullying negatively affected L.K.’s ‘ability to initiate, concentrate, attend and stay on task with her homework assignments and activities after school’”; “[a] doctor familiar with L.K. testified that her classroom behavior and demeanor had regressed from the prior year”; and L.K.’s class participation diminished after the bullying began. T.K. at *2. Therefore, the bullying “interfere[d] with L.K.’s ability to receive meaningful educational benefits,” – she refused to attend school, her ability to participate in class and complete work assignments diminished, and her behavior worsened. T.K. at *4.
The third factor was also met in the T.K. case, where L.K.’s parents attempted to discuss L.K.’s bullying multiple times with the New York City Department of Education (DOE), but the DOE always refused, and refused to discuss the bullying when creating L.K.’s IEP to determine what services and programs she required to make progress.
The Court found the DOE denied L.K.’s a FAPE, as “L.K.’s parents had reason to believe that the bullying would interfere with L.K.’s ability to receive meaningful educational benefits and could prevent L.K.’s public education from producing ‘progress, not regression.’” T.K. at *4.
If your child with a disability is being bullied, it is important to make sure the District is aware of the incidents. If, however, the bullying continues, you might want to consider reaching out to an attorney to determine if there are FAPE denials taking place that are impacting your child’s ability to make academic and functional progress.
Written by Alison K. Morris, Esq. of the Westchester Office.
1 In T.K. v. New York City Department of Education, No. 14-CV-3078,2016 WL 229842 (January 20, 2016), the Court held that the Department of Education’s failure to prevent bullying deprived a student of a FAPE, and that if bullying is an issue for a student it must be addressed on a student’s individualized education program (IEP). It also held that the District’s failure to discuss the student’s bullying at her IEP meeting “not only potentially impaired the substance of the IEP but also prevented [the parents] from assessing the adequacy of their child’s IEP.” Id.