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Bullying of Disabled Student May Violate Individuals with Disabilities Education Act

September 27, 2011

John Stone, Senior Attorney

According to a federal district court that was recently considering a case of alleged bullying of a disabled adolescent girl at school, if bullying were a medical issue, it would be characterized as a disease affecting America's youth, and a team from the Centers for Disease Control charged with investigating epidemics would be called in to study it.  The problem is pervasive and serious, particularly in the middle school years.  It is the most common type of violence in our schools.  T.K. v. N.Y.C. Dep't of Educ., No. 10-CV-00752, 2011 WL 1549243, at *5 (E.D.N.Y. Apr. 25, 2011).  (T.K. is one of the parents of the student, who is referred to in the case only as "L.K.")

As the court considered in T.K., when the student victim of bullying is also disabled within the meaning of the federal Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, a school district's response, or its lack thereof, can raise the prospect that the student has been deprived of the "free appropriate public education" to which he or she is entitled under the IDEA.  In a lengthy memorandum and order, the court in T.K. set out to answer this "largely unresolved issue."  Id. at *1.  Not only did the court find in principle that the IDEA can be violated in such circumstances, but it also found that the particular school district in the case before it was not entitled to summary judgment on the IDEA claim brought by the disabled student's parents.

In T.K., the bullying took the form of repeated instances of the student's being ostracized, isolated, and teased by fellow students.  In addition, she was sometimes pushed or intentionally tripped by other students.  Other specific incidents of bullying included a classmate's drawing depicting L.K. in a disparaging light; a student's chasing L.K. with what he claimed was blood but was in fact ketchup; other students' refusing to touch things once L.K. had; and a prank phone call made to L.K.'s home, which the school was informed about.

To be sure, "bullying" is a somewhat subjective term, and it must be distinguished from less serious or harmful conduct, such as horseplay.  Every disagreement or conflict among children does not amount to bullying.  What distinguishes bullying from other forms of childhood aggression is unequal and coercive power.  Referring to authorities on the subject, the court observed that the bully/victim connection can be viewed as the opposite of a healthy peer relationship.  Peers are equals on the same social standing, while a bullying nexus lacks equality of standing. It is the inequality, abuse, and unfairness associated with bullying that makes it unacceptable in law as well as in education.  Id. at *9.

In determining whether school bullying has deprived a disabled child of a free appropriate public education under the IDEA, the question to be asked is whether school personnel were deliberately indifferent to, or failed to take reasonable steps to prevent, bullying that substantially restricted a child in his or her educational opportunities.  The applicable standard takes into account administrative advice that has long been given to schools in how to apply the IDEA and other child-protective legislation.  Referencing a document from the U.S. Department of Education, Office of Civil Rights, the court stated that for at least 10 years, schools have been on notice of their obligations in this area:

"A school is responsible for addressing harassment incidents about which it knows or reasonably should have known. In some situations, harassment may be in plain sight, widespread or well‑known to students and staff, such as harassment occurring in hallways, during academic or physical education classes, during extracurricular activities, at recess, on a school bus, or through graffiti in public areas. In these cases, the obvious signs of the harassment are sufficient to put the school on notice. In other situations, the school may become aware of misconduct, triggering an investigation that could lead to the discovery of additional incidents that, taken together, may constitute a hostile environment."

Id. at *26 (quoting U.S. Dep't of Educ., Office of Civil Rights, Dear Colleague Letter:  Bullying and Harassment, at 2 (Oct. 26, 2010), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf).

Conduct need not be outrageous to fit within the category of harassment that rises to a level of deprivation of a disabled student's rights.  The conduct must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment.  Where a student is repeatedly verbally abused and suffers other indignities, such as having his or her property taken or being struck by fellow students, and a school does nothing to discipline the offending students despite its knowledge that the actions have occurred, the student has been deprived of substantial educational opportunities.  It is not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education.  The bullying also need not be a reaction to, or related to, a particular disability.

As for the T.K. case itself, the parents of L.K. had evidence that school personnel had been deliberately indifferent to, or failed to take reasonable steps to prevent, the bullying of L.K., as required to maintain the parents' claim under the IDEA.  The child had been isolated from, and repeatedly made a victim of harassment by, her peers.  There was also evidence that her parents had sent letters and tried to speak to the principal about the issue, that the school had failed to take reasonable steps to address the harassment, and that the child had suffered emotional and social scars as a  result of the bullying.

Finally, addressing and rejecting broader concerns raised by the defendant school district, the court stated:

The suggestion that the rule applied here will open the floodgates to litigation since bullying is so pervasive in our schools is rejected. 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.

Id. at *28.

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