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| Some states in the United States have implemented laws to address school bullying.(Photo credit: Wikipedia) |
I guess that this is a prequel to our upcoming series on bullying of kids with disabilities. But there has been a significant development and I didn't want to wait until after the series to get you the information.
The TK decision which is the leading case on bullying and which I think articulates a new FAPE BULLYING standard and which is the focus of our upcoming series has risen again. The case came back to the District Court after having been remanded and the court issued its decision in late July. For clarity, I'm calling the remand decision TK II.
On remand, the SRO found that the parents had not
shown that the bullying substantially affected the student’s educational performance
and denied reimbursement for a unilateral placement, but the district court
reversed. The court held that the FAPE bullying standard is as follows: A
disabled student is deprived of a FAPE when school personnel are deliberately
indifferent to or fail to take reasonable steps to prevent bullying that
substantially restricts a child with learning disabilities in her educational
opportunities. The conduct does not need to be outrageous in order to be
considered a deprivation of rights of a disabled student. It must, however, be
sufficiently severe, persistent, or pervasive that it creates a hostile
environment. 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. The rule does not
require that the bullying would have prevented all opportunity for an
appropriate education, only that it was likely to affect the opportunity of the
student for an appropriate education. Applying this standard, the court ruled
that the student’s educational opportunities were substantially restricted by
bullying and that the IEP team substantively denied FAPE by failing to address
bullying.
Wow that's a lot to digest. What do you think about the standard articulated by the court? You can read the district court opinion here.
Such a great read! I plan on reading this to potentially defend my students with administration.
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