The TK decision which we featured in our recent series on bullying is the leading case on bullying and which I think articulates a new FAPE BULLYING standard came back to the District Court The case came back to the District Court after having been remanded to the State Review Officer, and the court issued its decision in late July, 2014. 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. TK & SK ex rel LK v. New York City Dept of Educ 63 IDELR 256 (EDNY 7/24/14)
Wow that's a lot to digest. What do you think about the standard articulated by the court? You can read the second district court opinion here.