School districts must deal with disability-related bullying in the IEP's

One category of civil rights law does not get much attention: students with disabilities. Their rights are protected under the Individuals with Disabilities in Education Act. This is a complicated law that requires public schools to give disabled students a free and appropriate public education, or a FAPE. The districts must also work with the parents to ensure that the kids get a FAPE. If the district fails to do that, the parents can enroll their children in private schools at the district's expense.

The case is TK v. New York City Department of Education, decided on January 20. If you are not familiar with student disabilities law, the bottom line is this: the Court of Appeals holds that if in-school bullying affects a disabled student's education, the school must address that bullying in discussing the student's Individualized Education Plan with the parents.

The disabled student in this case was bullied at school so badly that it destroyed her emotionally. The school did not appear to stop the bullying. Her parents asked the school to address the bullying problem in her Individualized Educational Program, or IEP, which the IDEA requires the school to prepare for disabled students with input from the parents. An IEP covers the student's educational goals for the year and how the district will meet them. According to the Court of Appeals (Lohier, Lynch and Carney), "school officials ... refused to discuss bullying, concluding that it was an inappropriate topic to consider when developing LK's IEP."

The district court granted the parents summary judgment in this case, and the Court of Appeals affirms, holding for the first time that "the bullying of a student with a disability is an appropriate consideration in the development of an IEP and can result in the denial of a FAPE under the IDEA." This holding is consistent with the US Department of Education's view that bullying can interfere with a student's ability to receive an appropriate public education.

We conclude that the Department denied L.K. a FAPE by violating her parents’ procedural right to participate in the development of her IEP. At two separate meetings, both of which were integral to the development of L.K.’s IEP, Plaintiffs sought to discuss L.K.’s bullying, but school officials refused to do so. The undisputed record evidence confirms that, in asking to speak with the officials about the bullying, L.K.’s parents had reason to believe that the bullying would interfere with L.K.’s ability to receive meaningful educational benefits and could prevent L.K.’s public education from producing “progress, not regression.”

. . .

The Department’s persistent refusal to discuss L.K.’s bullying at important junctures in the development of her IEP “significantly impede[d]” Plaintiffs’ right to participate in the development of L.K.’s IEP. This constituted a procedural denial of a FAPE similar to other procedural violations that our sister circuits have held to constitute denials of a FAPE, such as the predetermination of an issue prior to an IEP meeting, or the failure to inform parents about a face significant to the development of an IEP.