A Refresher on Bullying and IEPs

In a 2011 decision, T.K. v. New York City Dep’t of Ed., 779 F. Supp.2d 289 (E.D.N.Y. 2011), the U.S. District Court determined that there may be times when a Committee on Special Education (“CSE”) is required to address bullying in a student’s Individualized Education Plan (“IEP”) and that failure to do so may deny the student a “free appropriate public education.” The New York State Office of State Review, in an administrative appeal from an impartial hearing officer decision, recently revisited this issue. In Application of a Student with a Disability, Decision No. 20-111, the State Review Officer (“SRO”) echoed the Court in T.K. which stated that “‘students have a right to be secure in school’ under the IDEA and that bullying may constitute denial of a FAPE if ‘it is likely to affect the opportunity of the student for an appropriate education’.” Decision No. 20-111, pg. 26 citing T.K., 779 F.Supp.2d at 308, 316-17. According to the SRO, the district denied the student a FAPE because it did not “determine the extent additional or different special education or related services are needed to address the student’s individual needs and to modify the IEP to include appropriate anti-bullying support.” Decision No. 20-111, pg. 30.

Although the cases before the SRO are always fact specific, the rulings often provide instructive guidance. The facts in this case, as in T.K., involved repeated acts of violence, including bodily injury, generally away from school, against — and sometimes by — the student. The student was involved in multiple instances of violence with a gang over more than a 2 year span of time, which resulted in multiple suspensions of the student and one hospitalization. DASA claims were made and the student was disciplined for his involvement in the altercations. Although manifestation determination meetings were conducted, no manifestation was found for any incident. Despite the severity of the incidents and the convening of multiple CSE meetings, the DASA complaints and behavior warranting discipline were not noted on the student’s IEPs for years. When the CSE finally acknowledged it, it was by IEP notation that simply stated “that the student had been suspended from school due to negative peer interactions.” The SRO noted that the CSE had concluded in the IEP that the student “did not need strategies, including positive behavioral interventions, supports and other strategies to address behaviors that impeded his learning or that of others.” Decision No. 20-111, pg. 32.

The SRO addressed the fact that several of the violent incidents occurred away from school. According to the SRO, “the salient point of inquiry is whether bullying of the student by fellow students with whom he continued to attend school had an impact on his ability to access educational benefit from his special education programming such that the district was obligated to address the bullying issue through CSE meetings and the IEP development process and whether the district, if the student’s needs were demonstrably affected by the bullying, continued to provide the student with an appropriate education according to the relevant FAPE standards.” Decision No. 20-111, pg. 26. The SRO found that the bullying impacted the student’s ability to access educational benefit, the CSE did not address this impact and, therefore, the district failed to provide the student a FAPE.

The SRO found that the district “inappropriately responded to the bullying by placing the student on home instruction for portions of the 18-19 and 19-20 school years, and [the student] did not receive related services during those periods of time.” Decision No. 20-111, pg. 41. As a result, compensatory related services were awarded to the student.

Our takeaway: (1) a CSE should entertain a parent’s concern about bullying and not dismiss it as not a CSE matter; and (2) if there is evidence that bullying adversely impacts the student’s ability to gain meaningful educational benefit, the CSE should note that in the IEP and take it into consideration as it determines those IEP supports and services reasonably calculated to enable the student to receive meaningful educational benefit. Like so much in special education, there is no test or bright line rule, and the analysis is student and fact specific. What is clear, however, is that a CSE cannot rely solely on DASA procedures.

If you have questions about bullying and IEPs, please contact us.