In a landmark United States District Court decision, Judge Jack Weinstein has ruled that bullying can cause a child with a disability to be denied a Free Appropriate Public Education (FAPE). The case, T.K. versus New York City Department of Education, established a legal test that can be applied to future cases in the Eastern District of New York. The lengthy 51 page decision not only established a baseline test on whether bullying can deprive a child of FAPE but it also analyzed the current standards discussed in the 2nd, 3rd, 7th and 9th Court of Appeals. The methodology used by these four Courts is not uniformed leading the way for a potential Supreme Court case regarding IDEA and bullying in the future.
The rule that Judge Weinstein created is:
“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.”
It’s interesting to note that the 9th Circuit Court of Appeals bullying test differs from this decision because the bullying and the abuse need to be so severe that a child can derive NO educational benefit. Judge Weinstein’s decision stated that the 9th Circuit Court of Appeals test “…. is too rigid and too narrow. It fails to acknowledge that a student may have her academic success stunted as a result of harassment, but still achieve some success. A student who received some educational benefit despite bullying might have received more if not faced with the serious obstacle of peer harassment.”
In my opinion, Judge Weinstein’s decision and analysis was in depth, comprehensive and hopefully the first of many similar decisions. When and if the Supreme Court agrees to hear an IDEA case regarding bullying I am hopeful that the outcome will be similar and that a national standard can be created for all States to follow.
As a parent of a child with a disability I am always concerned about bullying. This concern is exacerbated because my son is small and has growth issues. This decision gives me hope that he and all children with a disability will be better protected in the future. While bullying affects all children one of the most commonly targeted groups are children with a disability. Being able to remedy the difficult situation of bullying through IDEA gives parents an avenue to protect their children if the School doesn’t take the appropriate steps to stop the bullying.