Second Circuit Sends Message to Public Schools
Bullying is a serious and widespread problem in American schools. It affects the school performance, emotional well-being, mental health, and social development of school children throughout the United States. Tonja R. Nansel et. al., Cross-national Consistency in the Relationship Between Bullying Behaviors and Psychosocial Adjustment, 158 Archive of Pediatric and Adolescent Med. 730, 733-35 (2004). Studies have shown that students with disabilities are subject to increased bullying that is often directed at the disability.
In a case of first impression, the United States Second Circuit Court of Appeals in T.K., S.K., individually and on behalf of L.K., v. NEW YORK CITY DEPARTMENT OF EDUCATION, affirmed the decision of a United States District Court, which ordered the New York City Department of Education to pay for a disabled student’s private education because it failed to provide a free appropriate public education (FAPE) in accordance with the Individuals with Disabilities Education Act (IDEA).
L.K., was a third grade 9-year-old girl suffered from a learning disability. As such, she was placed in a Collaborative Team Teaching (CTT) classroom, which involved teaching students who are learning disabled alongside those who are not. Her Individualized Education Program (IEP) required a 1:1 special education itinerant teacher (SEIT), and speech, physical and occupational therapy. During the school year, L.K. suffered from multiple incidents of repeated bullying by classmates such as: pinching, pushing, tripping, stomping on her toes and teasing, laughing at her and refusing to have contact with her. Over the course of the school year, L.K. became increasingly unhappy, withdrawn and, as L.K.’s father described, “emotionally unavailable to learn” due to classmates’ bullying. L.K. came home crying and complained to her parents on an almost daily basis about being bullied by other students. L.K.’s tardiness and absenteeism was becoming a major disruption to her ability to learn. It reached a point that L.K. brought dolls to school for support on a more frequent basis due to the bullying and ostracism by others.
According to L.K.’s SEITs, L.K. internalized negative comments by peers, and expressed her sadness, frustration, anxiety and discomfort with her being bullied. Often times, L.K and her SEIT would count the days to the end of the school year. Accordingly, L.K.’s SEITs believed that the bullying adversely affected L.K.’s academics and her social and emotional well-being. Also, several doctors observed that many students constantly ignored L.K., and found that the minimal interactions L.K. did have with her classmates were mostly negative. They found that L.K. seemed anxious, sad and frustrated as her head was often down. She was not volunteering in class, as she had done before the bullying had started, and she needed more prompting from an aide. Moreover, medical experts observed that the teachers neither intervened nor delivered consequences to students. Hence, a private physician who knew L.K. for several years assessed her and recommended a different, more supportive educational environment than her current classroom.
L.K.’s parents sent letters to the school’s principal and tried to speak with her about the issue. The principal acknowledged receiving the letters and admitted having knowing about an incident of bullying; however, she could not recall what, if anything, she did to investigate it. Not satisfied with the school’s district’s response, L.K.’s parents applied for L.K.’s admission to the Summit School, a private school that specializes in providing educational services for children with learning and emotional challenges. L.K. was accepted and her parents made a deposit. In the meantime, public school representatives met with L.K.’s parents to discuss a behavior intervention plan (BIP) for L.K. that would create strategies for her behavioral difficulties that interfered with learning. During this meeting, the parents requested copies of any incident reports regarding harassment of L.K., but none were provided. The school officials rejected L.K.’s parents’ attempt to discuss the bullying. The principal refused to discuss classmates’ bullying with L.K.’s parents, and did not identify any alternative time to discuss it. The IEP team met to develop L.K.’s IEP and during this meeting, school officials again refused to discuss the bullying. The parents objected generally to L.K.’s same type of placement, and specifically to placement with the same students who were bullying her. No other placement was offered and L.K.’s parents were not aware of any option other than the same class L.K. attended. The parents rejected the IEP and placed L.K. at the Summit School the next school year. L.K.’s parents filed an administrative complaint demanding that the school district pay for L.K.’s private school tuition. After exhausting all administrative remedies, L.K. and her parents brought the case before Judge Jack B. Weinstien, Senior United States District Judge.
The central question raised by this case was whether school personnel was deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in her educational opportunities in violation of the IDEA. After completing an exhaustive analysis of: First Amendment cases, Title IX of the Civil Rights Act and IDEA, Section 504 of the Rehabilitation Act, Due Process cases under Section 1983 and various similar cases decided by the 2nd, 3rd, 7th and 9th U.S. Circuit Court of Appeals, the U.S. District Court held that when responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if the harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. Having applied L.K.’s facts to this rule, the U.S. 2nd Court of Appeals, affirmed the District Court’s finding that the school district did not take appropriate steps to prevent L.K. from being bullied, and therefore, affirmed the District Court’s ruling that the school district must pay for L.K.’s private tuition.
Gary Mayerson, the attorney who represented the L.K. and her parents throughout all stages of the litigation, hailed the result in T.K. as a landmark civil rights decision that will go far to address the nation’s bullying problem: “The Second Circuit’s courageous decision affirming Judge Weinstein’s Judgment stands for the proposition that every student has the right to attend school free from physical or psychological abuse and every parent has the right to expect that when they communicate concerns about bullying, those concerns will be timely addressed and acted upon.”
