Yes, at least according to the Second Circuit Court of Appeals. Just last month, in T.K. v. New York City Dep’t of Education, the Second Circuit ruled that a student who was severely bullied was denied a Free Appropriate Public Education (FAPE), as required by the Individuals with Disabilities Education Act (IDEA), when a school district refused to discuss the bullying with the student’s parents during the development of her Individualized Education Plan (IEP).
In that case, the student at issue, L.K., was a third-grade special education student placed in classrooms with both general and special education students. Though L.K. performed at or near grade level academically, it was undisputed that she was severely bullied on a daily basis, and there was significant evidence that her classroom teachers didn’t intervene or punish those students who bullied her. The bullying negatively affected L.K.’s progress, academically, emotionally, and socially. Her parents repeatedly attempted to discuss the bullying with school officials, but were consistently rebuffed. During L.K.’s IEP meeting, L.K.’s parents again tried to revisit the bullying issue, but school officials refused and told her parents that it was not appropriate to discuss bullying when developing L.K.’s IEP. Soon thereafter, L.K.’s parents decided to place L.K. in a private school in order to escape the bullying and later sought tuition reimbursement from the school district.
The parents filed an administrative complaint to recoup L.K.’s tuition expenses. They lost at the administrative level, but appealed to the U.S. District Court for the Eastern District of New York. After concluding that significant, unremedied bullying could constitute a denial of FAPE, the district court developed a four-part test to determine if such had occurred: (1) was the student a victim of bullying; (2) did the school have notice of substantial bullying; (3) was the school deliberately indifferent to the bullying, or did it fail to take reasonable steps to prevent the bullying; and (4) did the bullying substantially restrict the student’s educational opportunities? The district court remanded the case to the administrative judges to consider the case against this rubric. Again, the parents lost at the administrative level and appealed to the district court. There, the district court ruled for the parents, finding that the school district’s refusal to discuss L.K.’s bullying during the development of her IEP violated the IDEA and that private placement for L.K. was appropriate. The school district appealed.
The Second Circuit Court of Appeals affirmed the district court’s ruling and held that the school district denied L.K. a FAPE by refusing to discuss the issue of bullying. The Court explained that parents may seek tuition reimbursement for unilateral private placement in at least two situations: (1) where the IEP as developed by the school district is substantively deficient; and (2) where the school district fails to afford the parents certain procedural safeguards, such as, most notably, the denial of the opportunity to participate in the decision-making process regarding the FAPE to the child. The school district conceded that severe bullying is an appropriate consideration in determining whether a child has received a FAPE, and the evidence was undisputed that the school officials had refused to discuss the issue of bullying with L.K.’s parents. However, the school district argued that the parents suffered no harm because L.K.’s IEP addressed bullying by including goals for improving L.K.’s behavior in a manner that might reduce future bullying. It also contended that bullying is best addressed outside the IEP process. The Court disagreed, concluding that the district denied L.K. a FAPE by violating her parents’ procedural rights to participate in the development of her IEP. The Court found that the parents were reasonably concerned that bullying severely restricted L.K.’s educational opportunities, and that by refusing to discuss bullying during the IEP process, the school district significantly impeded the parents’ ability to assess the adequacy of the IEP, thus denying L.K. a FAPE. In addition, the Court found that the parents’ choice of private placement was appropriate, as L.K.’s progress while in the private school satisfied the parents’ burden to prove that the private school was reasonably calculated to enable L.K. to received educational benefits. Furthermore, the Court concluded that the balance of equities favored the parents, and as such, they were entitled to tuition reimbursement.
It’s important to note two things about this decision. First, because the school district conceded that severe bullying can impede a student’s ability to receive a FAPE, the Court did not have to rule on that issue. Second, the Court did not rule on the specific issue of whether L.K. was bullied so severely as to deny her a FAPE. It didn’t have to, as the Court was able to rule for the parents based on the school district’s procedural violations.