Disability Based Bullying: Using T.K v. NYC Dept. of Education as a tool to understand a school’s liability
By Tyler S St Cyr, M.S, CAGS
This article is the first in a three part series about school based bullying. In this article, we will be discussing legal actions a parent can take under the Individuals with Disabilities Education Act (IDEA), using a state’s special education due process hearing system as well as the federal courts.
While at least 45 states have adopted legislation recognizing that students have a legal right to be free from bullying and harassment[fn. 1], some courts have even held that the first amendment further guarantees students the right to be free from abuse in schools[fn. 2]. For disability based bullying the United States Circuit Court of Appeals for the Second, Third, Seventh and Ninth Circuits have directly held that bullying of disabled students may also amount to a failure to provide a free and appropriate education (FAPE)[fn. 3]. IDEA requires schools to provide students with disabilities a FAPE in the least restrictive environment (LRE). When bringing a claim under IDEA, the two most common types are: 1) the school’s failure to prevent bullying caused the student to suffer an educational loss that was so severe, that it stopped the student from receiving FAPE and/or 2) even though the school intervened when the student was bullied, the actions the school took to prevent further bullying caused the student to be placed in a setting that was not the least restrictive environment.
A recent case originating from the United States District Court for the Eastern District of New York is illustrative of the liability a school district assumes when it has failed to take disability based bullying seriously. In T.K v. New York City Department of Education, 779 F.Supp.2d 289 (E.D.N.Y, 2011), the student, referred to as L.K, was a 12–year–old girl who was receiving special education services due to a learning disability. Id. at 294. During the 2007-2008 and 2009-2010 school years, L.K was repeatedly bullied by her school peers. A school paraprofessional testified that this included “being ridiculed as well as other children […] intentionally stay[ing] away from L.K. and [..] physically push[ing] her away for fun.” The paraprofessional also witnessed other students trying to trip L.K and “then if she fell, well, then the teachers would get upset with her for making a scene.” Id. at 296. Another paraprofessional testified that students in her class would refuse to touch pencils after L.K. had touched them, as well as students laughing at her when she attempted to speak in class. Id. L.K.’s parent, T.K., believed that this “caused her daughter to resist attending school, hurt her academic performance, and damaged her emotional well-being.” Id. at 297.
During both school years, her parents attempted to enlist the school personnel at P.S 6, in solving this problem, without success. Court records show that her father reported to the principal, Lauren Fontana, “both in person and in writing” that his daughter was being bullied, but the issue was ignored. Id. at 294. The principal only acknowledged receiving two letters where bullying was specifically reported. Id. at 297. Beyond this, she could not recall taking any investigative action. At a special education meeting, the principal refused to discuss the matter because she did not believe it was salient to the student’s special education programming. Id. at 297. A school paraprofessional also approached Ms. Fontana to report that she believed the student was being bullied, but again, the principal failed to intervene. Id.
Inevitably, L.K’s parents removed her from P.S. 6 and enrolled her in the Summit School, a private school that had been accredited by the State of New York to provide educational and therapeutic services to learning-disabled students. Later, her parents sought reimbursement for tuition expenses paid to the Summit school, from the NYC Department of Education, through a special education due process hearing. Id. at 294. The state hearing officer as well as an appellate review officer found that the bullying did not stop L.K. from receiving FAPE. At this point, her parents had satisfied IDEA’s exhaustion requirement and were permitted to file a court complaint in the federal district court. As discussed in my previous article titled When damages from IDEA violations are not really damages under IDEA, for claims involving remedies that could be sought under IDEA, individuals must first pursue the claim at the state hearing level. IDEA grants federal district courts jurisdiction over special education claims only after a parent has exhausted this mechanism.
After L.K’s parents had satisfied IDEA’s exhaustion requirement, they filed a complaint in the United States District Court for New York. (see copy of complaint). In it, the parents alleged that the district’s failure to intervene to stop the bullying deprived L.K. of FAPE, as guaranteed under IDEA. The School District responded by requesting a summary judgment, which means the court had to decide on whether a factual dispute actually exists between both parties. The Court denied the summary judgment for the claims relating to bullying, which meant that the parents were entitled to a trial to prove their case. The court held that the district’s failure to intervene amounted to an actionable claim under IDEA, citing four key factors in its analysis: 1) Whether the student was bullied, and if so, did it occur because the student had a disability. 2) The school’s awareness of the bullying 3) Whether the school failed to take steps to stop the bullying and 4) Whether the school’s failure to intervene prohibited the student from receiving a free and appropriate public education, as guaranteed under IDEA.
For the first factor, the court held that witnesses’ reports were enough to reasonably establish a claim that bullying occurred. For the second factor, the court held that there was enough information offered by the school as well as the parents to conclude that the school knew of the bullying. This included “The principal acknowledge[ing] knowing about an incident of bullying … admit[ing] receiving letters that reveal incidents of bullying.” Id. at 316.
For the third factor, the court held that there was enough evidence to establish that even though the school knew of bullying occurring, it failed to act. This included the principal “acknowledge[ing] asking L.K.’s parents to leave a meeting designed to discuss concerns about bullying. … [as well as] Aides who stated that they tried to bring the bullying to the attention of their superiors but were ignored.” Id. at 316. The court reasoned that
“[w]hen 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 … occurred. If harassment occurred, the school must take appropriate steps to prevent it in the future. These duties exist… regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination.” Id. at 316.
The court also cited an administrative guidance letter by the United States Department of Education Office of Civil Rights titled, Dear Colleague Letter: Bullying and Harassment, at 2 (Oct. 26, 2010), stating that the “[c]onduct need not be outrageous to fit within the category of harassment that rises to a level of deprivation of rights of a disabled student. The conduct must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment.”
For the fourth factor, the court held that there was enough evidence that the child experienced social withdrawal coupled with the fact that she was isolated from her peers, to the point that it inhibited academic growth, to reasonably conclude that she suffered an educational loss. In making this determination, the court reasoned that “[i]t is not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education.” Id. The court further reasoned that “[a]cademic growth is not an all-or-nothing proposition. There are levels of progress. A child may achieve substantial educational gains despite harassment, and yet she still may have been seriously hindered.” Citations omitted Id. at. 316.
What should T.K mean to parents?
1) If a student is being bullied, a parent needs to be as vocal as possible to school employees, regarding the bullying. This is important for two reasons. The first is if more people know about the problem, the greater chances that more people will be on the lookout and be able to intercede. If your primary contact at the school has been a teacher, let at least several administrators in on the problem. While most good teachers will have already alerted school administrators, this is not always the case and cannot be taken for granted that it has occurred. The more individuals who are on notice of a student being bullied tend to result in more people trying to do the right thing, by intervening. It is also important because the school needs to be on notice about bullying each time it occurs. Don’t compile a laundry list of instances to present to the school. The longer one waits to report it, the more difficult it is for the school to take effective action to prevent. Also, with each new report of a bullying act, a parent should expect the school to conduct another inquiry, looking into the facts and circumstances as well as alternative solutions to prevent it from reoccurring.
2) A common response by schools that handle bullying poorly and are being litigated against, is that they were unaware of bullying. The reason schools make this argument is that one of the essential elements to a school being held liable in civil complaints brought under IDEA is that a parent must prove that persistent and severe bullying occurred and also that the school knew about it and failed to intervene. If a school successfully argues that it didn’t have any knowledge of it, its duty to intervene evaporates. T.K was a good example of multiple school employees knowing about bullying, including the building administrator, yet failing to intervene appropriately. Even though several paraprofessionals tried to take action, the school failed to intervene from a systems level, causing the bullying to persist. In T.K, to the parent’s credit, they used multiple modes of communication, with the school, that included verbal and written reports. The parents also used every meeting with the school as an opportunity to communicate their concerns. The parents’ persistence illuminated the school’s knowledge of the bullying and its failure to respond to it from a system-based perspective.
3) When communicating these issues to the school, be respectful, but persistent. Despite any bad feelings that have arisen, it is likely that you will be interacting with the school for some time to come. Work hard at preserving a productive relationship.
 See Administrative Guidance Letter by Arne Duncan, Secretary of Education, titled Secretary of Education Bullying Law and Policy Memo, Dec. 16, 2010,
 See Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1178 (9th Cir.2006), vacated as moot, 549 U.S. 1262, 127 S.Ct. 1484, 167 L.Ed.2d 225 (2007) a first amendment case holding that the right to be left alone includes the right to be free from not only physical attacks but “ but from psychological attacks that cause young people to question their self-worth and their rightful place in society.”) (internal quotations and citation omitted)
 See T.K v. New York City Department of Education, 779 F.Supp.2d 289,312-313 (E.D.N.Y, 2011) for a circuit by circuit analysis of the applicable standards used in finding that disability based bullying may amount to a failure to provide FAPE.