On January 20, 2016, the influential Second Circuit court of appeals affirmed the seminal TK bullying decision by the District Court for the eastern District of New York. The TK decision is the leading case on bullying and IDEA. You can read our previous posts on the TK decision here, and here.
The Second Circuit affirmed the district court decision below. Significantly, however, the appellate court did not decide whether the failure of a school district to consider bullying in the development of an IDEA can constitute a violation of IDEA because the school district in this case conceded the issue. Given that concession, the Second Circuit found a procedural violation by the district not considering the bullying in the IEP development that was a significant impairment of the parent's right to participate and, therefore, a denial of F.APE. Because the parent's private school was appropriate and because the equities did not compel a different result, the court affirmed the award of reimbursement of private school tuition.
One more important note. Although the Second Circuit affirmed the decision of the district court, it mentioned in footnote 3 that it expressed no opinion concerning the four part test articulated by the district court as to whether bullying violates IDEA. {The test was as follows: (1) was the student a victim of bullying; (2) did the school have notice of substantial bullying of the student; (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}
You can read the entire Second Circuit decision here.
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