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Bullying and FAPE

Posted Dec 23 2011 9:58pm

Did you know that failing to address bullying can be the cause of schools having to pay for private placement of students with Learning Disabilities? Bullying has justified parents’ decisions to move their children to private schools and seek reimbursement for tuition. So, bullying isn’t only something that educators should address because it’s the right thing to do. Bullying might be a reason that a student can claim she is denied access to a free and appropriate public education (FAPE).

In the case of a high school sophomore with ADHD who was quite small for his age (Smith v. Guilford Board of Education), Jeremy Smith was teased about his size. Peers held him in their arms like a baby, zipped him into a backpack and carried him about the school campus, and so forth. The court of appeals in the second circuit of the US held that the harassment was related to the student’s size and not his ADHD. I have not examined the records to see whether the attorneys called experts who discussed the relationship between stature and ADHD and the social ostracism that might accrue to ADHD regardless of stature; such arguments might have added weight to Jeremy’s case.

In other cases, however, the findings have been stronger, however. For example, in Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381, P.S. was a young man who was bullied. Here’s a description of the bullying from the court records:

Most of the harassment of P.S. focused on his lack of athleticism, his physique, and his perceived effeminacy. Bullies constantly called P.S. names such as “faggot,” “gay,” “homo,” “transvestite,” “transsexual,” “slut,” “queer,” “loser,” “big tits,” and “fat ass.” Bullies told new students not to socialize with P.S. Children threw rocks at P.S., and one student hit him with a padlock in gym class. When P.S. sat down at a cafeteria table, the other students moved. Despite repeated complaints, the school administration failed to remedy the situation.

A state administrative law judge held that the school district’s plan to have P.S. in the same school with the same peers failed to provide him a FAPE, a district court overturned that holding, and the US 3rd Circuit Court of Appeals reversed the district court (written, by the way, by Judge Samuel Alito, since then appointed as a justice on the US Supreme Court). The local education agency had to pay for P.S. to attend a private school.

In another case reported in the Individuals with Disabilities Education Law Reporter (T.K. and S.K. ex rel. L.K. v. New York City Dep’t of Educ.), the parents of a 12-year-old girl with Learning Disabilities placed her in a private school after the public school failed to respond to bullying by her peers. Her parents contended that her peers “ostracized her, pushed her, refused to touch items she touched, and ridiculed her daily.” After a series of actions and counter actions, US District Judge Jack B. Weinstein ultimately held that “where bullying reaches a level where a student is substantially restricted in learning opportunities she has been deprived a FAPE.”

In March 2011, Jim Gerl discussed these same cases about bullying (see part one and part two ).

Ferster, D. E. (2008). Deliberately different: Bullying as a denial of a free appropriate public education under the individuals with disabilities education act. Georgia Law Review, 43, 191-207.

Zirkel, P. (2008, September-October). It’s the law: Bullying . Principal, 64-68.

M.L. v. Fed. Way Sch. Dist., 394 F.3d. 634 (9th Cir. 2005).

Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194 (3d Cir. 2004).

Smith v. Guilford Bd. of Educ., 226 Fed. Appx. 59 (2d Cir. 2007).

T.K. and S.K. ex rel. L.K. v. New York City Dep’t of Educ., 56 IDELR, 228 (E.D.N.Y. 2011)

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