Image: David Castillo Dominici/

This is a big deal.

In a decision that was handed down yesterday, on January 20, 2016, a federal appeals court affirmed the lower court's determination holding New York City responsible to cover the private school tuition for a disabled third-grade girl, on the grounds that the school effectively denied her the Free Appropriate Public Education she was entitled to by law (in legal shorthand, known as "FAPE"), by failing to address appropriately, or otherwise stem, the bullying she repeatedly endured.

The underlying facts of this case (L.K. and S.K. v. NYC Dept. of Education, are, to say the least, disturbing.

How this Disabled Child Was Bullied

L.K., a disabled child, spent her third-grade year in a NYC public school, where she was placed in a "Collaborative Team Teaching" class, where she and other disabled students were integrated with other maintstream students.

Academically, L.K. made "progress throughout the school year" and performed at or approaching grade level in all subjects. But at a certain point L.K.'s schoolmates bullied her so severely and pervasively that she was almost constantly crying. 

This version of events was backed up by her three SEITs, who testified that her classmates were "constantly" bullying her, one of whom went so far as to call the classroom as a "hostile environment" for L.K. 

These claims weren't just generalized claims of bullying; L.K. was pinched hard enough to cause a bruise; her classmates refused to touch a pencil, treating it as contaminated merely because L.K. had touched it. On other occasions they pushed L.K., tripped her, laughed at her; and called her "ugly," "stupid," and "fat."

L.K.'s teachers, showing remarkably poor judgment, reinforced the offending students' behavior by labeling the pencil with L.K.'s name, purportedly because of L.K.'s poor hygiene, and "blaming the victim" by chastising her for "making a scene" when she had been tripped by fellow students.

Not surprisingly, L.K. suffered academically, and in dramatic fashion.

The Parents' Pleas for Help to Address the Bullying Are Ignored

L.K.'s parents approached the school on several occasions, asking for help to address the severe bullying their daughter was enduring, only to be ignored, or on occasion, were told by the school principal, without explanation, "No, we're not going to discuss the bullying."

Shortly thereafter, the parents pulled their daughter out of the public school, and placed her in a private school that was more appropriate for her educational needs, and where they would have greater (or at least some) input in making sure their disabled daughter's Individualized Education Protocol ("IEP") was followed.

The Appellate Court's Decision

In rendering its decision, the appellate court summarized its reasoning as follows:

We conclude that the Department's refusal to discuss the bullying of L.K. with her parents during the process of developing L.K.'s "individualized education program," or "IEP," violated the IDEA. Because Plaintiffs have also met their burden to show that their choice of a private placement for L.K. was appropriate and that the equities favored reimbursing them, we affirm the judgment of the District Court."

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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