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Bullying Can Lead to Denial of Fape

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Warshaw Law Firm, advocating for the educational rights of special needs children, is dedicated to protecting the rights of children with disabilities and children who are the victims of or accused of bullying, and assisting families in crisis through mediation and collaborative divorce.

Bullying Can Lead to Denial of Fape

  • Julie Warshaw
  • June 28, 2017

bullying can lead 300x143 - Bullying Can Lead to Denial of Fape
Bullying has been a hot topic among schools and students across the nation and now it may become more prevalent in the area of special education. A recent Court of Appeals case may not only allow parents to argue that bullying resulted in a denial of a free and appropriate public education (FAPE), it may also require that the school district pay for an out of district placement when a special education student has been bullied. Even if your child does not have special needs, bullying can be detrimental to their educational experience and there are steps that can be taken to address the bullying.

In T.K. v. New York City Dep’t of Education, 810 F. 3d 869 ( 2d. Cir. 2016), the Court of Appeals for the Second Circuit held that the New York City Department of Education violated the Individual with Disabilities Education Act (IDEA) by denying T.K.’s parents’ request to discuss their concern that severe bullying interfered with T.K.’s ability to receive a free and appropriate public education. In affirming the district court’s prior determination that un-remedied bullying could constitute denial of FAPE, the Court of Appeals affirmed that when bullying “reaches a level where a student is substantially restricted in learning opportunities” it is an appropriate consideration in development of an IEP and can result in denial of FAPE. See T.K., 810 F.3d at 876. Further, the Court of Appeals held that a private placement was appropriate for T.K. and that T.K.’s parents were entitled to reimbursement for such placement.

This view is supported by the position of the United State Department of Education which issued guidance to all public schools in August of 2013 stating that instances of bullying of students with disabilities that results in the students not receiving meaningful educational benefit constitutes a denial of a FAPE under IDEA.

Although the T.K. case provides guidance for Courts in New Jersey, it is not binding on New Jersey Courts. However, it is likely that if given the same fact situation as the T.K. Court, a New Jersey Court would also find that bullying of a student with disabilities denied the student a FAPE. The Supreme Court of New Jersey has already indicated its desire to address the significant problem of bullying in its State educational system by holding that a cause of action alleging student-on-student sexual harassment that is not reasonably addressed by the school district is cognizable under the Law Against Discrimination. See L.W. V. Toms River Reg’l Schools Board of Education, 915 A.2d 535, 553 (2007).

The New Jersey Anti-Bullying Bill of Rights statute does not distinguish between special education and general education students and school districts must ensure that all students are safe at school. This statute, although it has its flaws, is one of the strongest in the country. School districts must comply with the requirements set forth in the statute. This includes providing appropriate notice and information to parents and to follow through with consequences for the alleged bullying, which includes bullying by a school administrator, staff member, or teacher. There are also mechanisms to enforce the statutory mandates when a school district is not in compliance.

Bullying is a serious problem for all students. If your child feels he/she is being bullied or if you would like more information on what constitutes bullying, please feel free to contact Julie Warshaw, Esq. at (973) 433-2121 or at jwarshaw@warshawlawfirm.com.

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Bullying Can Lead to Denial of Fape
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Bullying Can Lead to Denial of Fape
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Even if your child does not have special needs, bullying can be detrimental to their educational experience and there are steps that can be taken to address the bullying.
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Warshaw Law Firm, LLC
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