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In the case of T.K. v. New York City Department of Education, a disabled child and his parents provided evidence of each element of developed test proving, under the Individuals with Disabilities Act (IDEA), whether school personnel was deliberately indifferent to or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in her educational opportunities. In law, Title IX, the Individuals with Disability Education Act (IDEA), and § 504 of the Rehabilitation Act place upon schools the affirmative duty to address bullying and harassment. The United States Department of Education has been advising schools of their obligations, and possible liability under these statutes, for at least ten years. Where the institution learns that disability harassment may have occurred, the institution must investigate an incident promptly and respond appropriately.
The Legal Issues: IDEA and § 504 of the Rehabilitation Act
A major component of the authority behind IDEA stems from Section 504 of the Rehabilitation Act, which requires recipients of federal funds to provide student with a free, appropriate public education. . To prove the school’s violation of its § 504 obligations, the parents must prove: 1) a disability; 2) that the school was subject to the relevant law; and 3) that the disabled student was denied an opportunity to benefit scholastically because of the disability. The full law can be found in 29 United States Code Service § 701 (c). Under the Individuals with Disability Education Act, the question to be asked is whether school personnel was deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in her educational opportunities. Bullying 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. Where a disabled student is verbally abused repeatedly and suffers other indignities such as having his property taken or is struck by his fellow students, and a school does nothing to discipline the offending students despite its knowledge that the actions have occurred, the student has been deprived of substantial educational opportunities.
The Court's Conclusion
In the case at hand, the parents produced witnesses who testified that the child was isolated and victim of harassment from her peers, and presented evidence that could reasonably be construed as proving the school's failing to take reasonable steps to address the harassment. “Academic growth is not an all-or-nothing proposition. There are levels of progress” explained the court. “A child may achieve substantial educational gains despite harassment, and yet she still may have been seriously hindered. Growth may be stunted providing an education below the level contemplated by IDEA.” Id. at 31.
If you have a child with a disability and have questions about special education law, please contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com, to schedule a free consultation.
Source: T.K. v. New York City Dep't of Educ., 779 F. Supp. 2d 289, 2011 U.S. Dist. LEXIS 44682 (E.D.N.Y. 2011)
