Constant Bullying Deprives Disabled Girl of Appropriate Education, Says Court

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A federal judge in New York has ordered a hearing to determine if a 12-year-old girl with learning disabilities was deprived of "a free and appropriate education" by the constant bullying she allegedly endured at a Manhattan public school.

"An effective and appropriate education may be negated by child bullying," Eastern District Judge Jack B. Weinstein said in L.K. v. New York City Department of Education. "When a school fails to take reasonable steps to prevent such objectionable harassment of a student, it has denied her an educational benefit protected by statute."

Weinstein denied New York City's motion for summary judgment dismissal of a suit filed by L.K.'s parents under the federal Individuals with Disabilities Education Act seeking reimbursement of $28,906 in private school tuition.

L.K. had attended P.S. 6 on East 81st Street since kindergarten and by third grade in the 2007-08 school year, when she was 10, she was in a class with students who had disabilities and those who did not. L.K., who was originally thought to have autism but was re-diagnosed as learning disabled, had a teacher's aide and received additional treatment, such as speech therapy.

According to her parents, she complained almost daily about bullying at school. Teaching aides testified that classmates would not touch pencils she used and laughed at her when she raised her hand. The children usually refused to go near her, but sometimes tripped her.

But L.K.'s parents claimed school officials were "deliberately indifferent" to their daughter's plight and "stonewalled" them when they complained. They eventually took her out of public school and enrolled her at the private Summit School in Queens, during the 2008-09 school year. The family has since left the city.

In his decision, Weinstein noted the prevalence of bullying among the nation's youth.

"Were bullying characterized as a disease affecting America's youth, a team from the Center for Disease Control charged with investigating epidemics would have been called in to study it," he wrote.

He included in his 51-page opinion an extended discussion of topics like "what constitutes bullying," "distinguishing bullying from horseplay," "how bullying differs between boys and girls," "why kids bully," "bullying and students with disabilities" and bullying's impact on perpetrators, victims and bystanders.

But Weinstein noted that the extent to which bullying can interfere with a disabled child's education and how schools should react is a "largely unresolved issue." He then sketched a test of his own for evaluating the problem and the response of school officials.

"No one gains from ignoring school bullying - not even the bullies themselves," the judge observed. "The students who are bullied may suffer lasting scars in the form of an inferior education, emotional damage, and decreased self-confidence; the bullies are left to continue on a path that may lead to future violence. ... Bullying and inappropriate peer harassment in its many forms provides an unacceptable learning environment."

Weinstein's April 25 decision followed a July 2009 ruling by an impartial hearing officer and an October 2009 ruling by a state review officer. Both agreed with the city that L.K. had not been denied an appropriate education. L.K.'s parents filed suit in February 2010 seeking to reverse the administrative rulings.

In court papers, the city argued that the complaint's depictions of a hostile environment were "grossly overstated." Moreover, it contended that there was no legal justification for the parents' theory, which "appears to be that any student who is picked on is entitled to placement at a private school at DOE expense."

The city also rebutted L.K's parents' claims that their daughter's education and wellbeing had been harmed by citing progress reports showing L.K.'s growth and enthusiasm. The decision notes no incident reports were written when L.K. was bullied, but the city did offer reports of incidents in which L.K. was the aggressor. In one case, she was accused of hitting a teacher.

WEIGHING SCHOOL LIABILITY

Weinstein rejected the city's arguments, concluding that the administrative proceedings had not sufficiently explored the possibility that bullying had occurred and damaged L.K.

Although "the question of whether bullying can be grounds for finding that a school district deprived a student of a free and appropriate education is an open question in the 2nd Circuit," he said that the 3rd, 7th and 9th circuits have all ruled that bullying can result in the denial of an educational opportunity.

However, since "a common framework under which to analyze the issue has not emerged," he offered his own guidelines for determining if school personnel had taken adequate steps to prevent severe bullying.

Weinstein said the conduct had to be "sufficiently severe, persistent, or pervasive that it creates a hostile environment."

Where this occurs, and the school does nothing to fix the problem, the student is "deprived of substantial educational opportunities," he said.

"If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future," he said. "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."

To show an impact on a student's learning abilities, Weinstein said it was necessary only to show "that [bullying] is likely to affect the opportunity of the student for an appropriate education." He added that the bullying did not have to be linked to a particular disability.

L.K.'s case met every element of the test, the judge said.

First, he said that the parents had produced testimony that L.K. was isolated and the victim of harassment by other students.

"A fact finder could reasonably conclude on this record that L.K. was the victim of bullying," the judge said.

Secondly, the parents alleged that they sent letters and tried to speak to the school principal about their concerns. There was evidence on both sides about the school's response, but no determination was made by the hearing officer whether school personnel had notice of "substantial bullying," the judge wrote.

Third, the evidence could "reasonably be construed" as proving the school did not take reasonable steps to address the harassment.

Finally, the judge said that L.K.'s parents stated that "she withdrew emotionally, did not want to go to school and suffered social scars as a result of the bullying."

L.K.'s parents were not required to show that she had been deprived of all educational benefit. In New York, Weinstein pointed out, plans for special education students require more than an opportunity for "trivial advancement."

"Academic growth is not an all-or-nothing proposition," he wrote. "The law recognizes that a student can grow academically, but still be denied the educational benefit that is guaranteed by" the Individuals With Disabilities Education Act.

The judge rejected "the suggestion that the rule applied here will open the floodgates to litigation since bullying is so pervasive in our schools."

He said that his test only required the city to adopt the "prompt and appropriate" measures federal education officials had required for years to address bullying. And he denied that his guidelines would "substantially increase" the cost of special education.

Weinstein will conduct the fact-finding hearing, which had not yet been scheduled on Thursday. If he finds that the city did not respond properly to bullying by L.K.'s schoolmates, he still would have to determine whether the Summit School was the appropriate placement and whether her parents had cooperated with school officials before ordering reimbursement.

Gary S. Mayerson, of Mayerson & Associates in Manhattan, has represented L.K. and her parents since the administrative rulings.

"I was very gratified to see the court took the time to do the analysis that was necessary on a relatively novel issue," he said.

Assistant Corporation Counsels John Michael Buhta and Abigail Lynne Goldenberg represented the city.

Goldenberg, senior counsel in the general litigation division of the Law Department, said in a statement, "The court's decision denying the DOE's summary judgment motion is consistent with its earlier ruling that a further evidentiary hearing is needed in this case. While the DOE takes bullying very seriously, the DOE intends to present evidence that, in this case, the student's rights under the IDEA were not violated."

Andrew Keshner is a reporter for the New York Law Journal , a Legal affiliate.

If you have a child with a disability and have questions about special education law, please contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com, to schedule a free consultation.

Source: Andrew Keshner, Judge Offers Test for Impact of School Bullying, 243 The Legal Intelligencer 83 at 4.