Bullying and a Discussion of T.K. and S.K., individually and on behalf of L.K. v. New York City Department of Education

    Bullying is universal.  You and everyone you know have been involved in bullying-- either as the victim, the aggressor, as a bystander, or as all three. No one thinks bullying is “good,” but when is bullying an actual denial of a free appropriate public education (FAPE) for a child with a disability?  When your child with special needs is being bullied in their public school, make sure that you report the bullying to the principal (in writing, such as an email), keep copies of the email exchange, and demand that the school district investigate the bullying and address it at your child’s next individualized education program (IEP) meeting. Bullying can be a FAPE violation depending on what the public school knows and whether it takes adequate steps to remedy the problem.

    Students with disabilities are entitled to a FAPE under the federal Individuals with Disabilities Education Improvement Act (commonly known as IDEA).  A federal court in New York has applied a legal test to determine whether bullying by other students impedes a disabled child from being educated appropriately, and what a school must do about it.  In T.K. and S.K., Individually and on Behalf of L.K. v. New York City Department of Education, (T.K.), Judge Jack B. Weinstein wrote what is essentially the legal treatise on bullying, instructing courts on how they should analyze whether or not a school district has denied a student a FAPE.  The court found that, “an effective and appropriate education may be negated by child bullying. When a school fails to take reasonable steps to prevent such objectionable harassment of a student, it has denied her an educational benefit protected by statute.”

    Each of us can recall bullying situations from our childhood.  I grew up in an Irish immigrant enclave in the Bronx and attended the local parochial school.  I can distinctly remember a boy in my elementary school who was repeatedly bullied.  He was a quiet and gentle boy with red hair and glasses.  I remember his mother and could clearly see how much she loved him. Perhaps he was perceived as a “mamma’s boy”-- I do not know.  His name was Johnny and his tormentor was another boy, named Joe.  Joe routinely and repeatedly teased Johnny and physically abused him whenever a teacher walked out of the room, or when we were in the schoolyard.  (Joe, by the way, had a father who was physically abusing him, his siblings and his mother).  The other boys would laugh and join Joe in the ridicule.  I was what we call a “bystander.”  One day, I decided to intervene and demanded that Joe stop abusing Johnny. Unfortunately, that only made it worse for Johnny, because a “girl” had stood up for him. I did not realize then, that by intervening that I was actually doing more harm than good.   

    I had wonderful teachers in that parochial school, but as is the case everywhere, there were a few rotten ones, too - especially the teachers who bullied students.  Those teachers helped create the fertile ground for bullying allowing it to germinate and thrive.  My fifth grade math teacher, “Mrs. C,” would make one of my classmates, Catherine, stand at the blackboard to solve a math problem that she clearly was unable to do. This happened during several math classes and it always resulted in Catherine crying.  Mrs. C even threw an eraser at Catherine’s head and called her “dummy.”  Catherine could not do any of the math problems – even the easy ones.  Looking back, I realize now that Catherine may have had a learning disability.  Dyscalculalia, for example, is a disability that affects a person’s ability to perform math calculations.  Unfortunately,  Mrs. C. thought in her infinite (and likely ignorant) wisdom that if she humiliated Catherine enough, she would “get it.”  That approach did not work.  Instead, we all dreaded when Catherine was called upon as it was painful for all of us to sit by and watch the torture.

    My sixth grade English teacher, “Sister H,” also had a less than compassionate approach to students with learning difficulties.  Whenever a student failed one of Sister H’s tests, she would post it on the bulletin board in the hallway, for everyone to see.  Public humiliation was de rigueur for Sister H.  I remember the stress and discomfort and the utter helplessness I felt watching other kids being humiliated and bullied by our teachers and endeavored to avoid being subjected to a similar fate.
    
    In those days, we grew up amidst a school atmosphere where bullying was not only tolerated, but modeled. Today, we know that bullying has no place in our schools and most states have passed laws dealing with bullying and harassment.

    “Whether a child is the victim, aggressor, or merely a bystander, research shows that those in a close vicinity to bullying are adversely marked.”  Bullying is hot topic in our country today.  We are shocked and saddened by stories of death and suicides resulting from bullying.  Megan Meier, a 13 year old, committed suicide in response to “cyberbullying” (bullying via Internet).  Tyler Clementi also committed suicide after his roommate posted on the Internet a video recorded by a secret webcam of Clementi having a homosexual relationship.  Bullying can and does have devastating effects on the victims.

    In another incident, in the world of disabilities, the parents of a 17-year old boy with autism who committed suicide have filed suit against their school district claiming that it failed to prevent the bullying that led to their son’s suicide.  Tina Long, the boy’s mother, reported that he hated school because the bullies “would spit in his food, call him ‘gay,’ smack him and say, ‘I can't wait until you are six feet under!' A lot of [the] time he would go to the counselor’s office and call me.  We complained, but nothing much was done.”

    In the T.K. case, L.K., a student classified with a disability, has an IEP and is accordingly afforded certain rights and protections under the IDEA, which includes being entitled to a FAPE.  L.K. attended P.S. 6, a New York City Public School, in a classroom with typically developing peers.   

    L.K. complained almost daily about being bullied at school.  L.K.’s parents complained to the school principal at P.S. 6 and other school staff that L.K. was being bullied and was suffering from school avoidance.  At one of L.K.’s IEP meetings, L.K.’s parents asked the IEP team to discuss the bullying problem.  The principal at P.S. 6 refused to allow the team to consider the issue of bullying and took the position that bullying was not an appropriate topic of discussion.  At no time did the principal have any type of meeting to discuss L.K.’s bullying allegations.  The school did nothing, absolutely nothing, about L.K.’s bullying reports.

    Since P.S. 6 failed to remedy, or even address the bullying problem, L.K.’s parents removed L.K. from P.S. 6 and unilaterally placed her in a private school. L.K.’s parents sued the New York City Department of Education (NYCDOE) seeking tuition reimbursement, alleging that NYCDOE deprived L.K. of a FAPE, because, among other claims, the bullying L.K. suffered made L.K.’s educational environment hostile and inappropriate.  At the conclusion of the administrative due process proceeding, the Impartial Hearing Officer (IHO) found that bullying did not deny a student of a FAPE, largely because there was no legal precedent to make such a finding.  L.K. appealed the IHO’s decision to the State Review Office (SRO), who also found that  there was no denial of FAPE because of bullying.  “Ultimately, the SRO determined that bullying did not deprive L.K. of a FAPE, though no specific test appears to have been used in arriving at this conclusion.” L.K.’s parents then appealed to the district court in the Eastern District of New York.  Judge Weinstein held that “under IDEA the question to be asked is 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.”  The court further explained:

  “The rule to be applied is as follows: 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.  These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination."

    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 need not be a reaction to or related to a particular disability.”

Judge Weinstein remanded T.K. back to the IHO for further evidentiary inquiry into the bullying allegations. The matter is still ongoing.

Tracey Spencer Walsh, focuses her practice on legal issues related to students and adults with disabilities, and is a featured speaker at national autism conferences and parent groups.  She litigates education issues regularly at the administrative and federal levels.  Ms. Walsh also served as a Dean of Students for a private school in Rye, New York, where she had the opportunity to advocate for students with learning differences.