Bullying is on the rise, and students with disabilities are often victims of bullying. As a result of bullying – and the failure of districts to take affirmative steps to stop or prevent the bullying – students eligible for special education and related services may be denied a free and appropriate public education (FAPE). In order to determine whether the bullying of a student with a disability is grounds for a denial of FAPE claim under the Individuals with Disabilities Education Act (IDEA), three factors must be present:
- When acts against a student with a disability are severe enough to rise to the level of bullying;
- When the bullying of a student with a disability interferes with, or will interfere with, that student’s ability to make meaningful progress;
3. The District fails to address the bullying in order to ensure the student
continues to receive (or begins to receive) appropriate programs and
services, so that he can make meaningful progress.
- Factor One: Acts Must Be Severe Enough to Amount to Bullying for an IDEA Claim Against a School
As per the United States Department of Education’s Office of Special Education and Rehabilitative Services (OSERS), bullying is “characterized by aggression … where the aggressor(s) has more real or perceived power than the target, and the aggression is repeated, or has the potential to be repeated, over time.” OSERS, Dear Colleague Letter, August 20, 2013. Bullying can be “overt physical behavior or verbal, emotional, or social behaviors,” such as “excluding someone from social activities, making threats, withdrawing attention, [and] destroying someone’s reputation.” Id. Bullying also includes “[c]yberbullying, or bullying through electronic technology,” and “can include offensive text messages or e-mails, rumors or embarrassing photos posted on social networking sites, or fake online profiles.” Id. OSERS further declared that “bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of a [FAPE] under the IDEA that must be remedied . . . ” (emphasis added) Id.
The Second Circuit’s T.K. v. New York City Department of Education demonstrates when acts constitute bullying. In T.K., the student L.K.: returned home from school every day crying due to her bullying; another student pinched L.K. and “stomped on her toes”; students laughed at L.K.; students moved in order to avoid touching L.K.; students “constantly teased [and] excluded [her] from groups”; and students refused to touch a pencil L.K. used. T.K. v. New York City Department of Education, No. 14-CV-3078,2016 WL 229842, at *1, *4. Therefore, the first factor was met: the Court determined these acts constituted bullying of L.K., a student with a disability. Students physically bullied L.K. as well as socially and emotionally bullied her by excluding her from groups, moving away from her, and refusing to touch class materials she touched.
Unfortunately, fear or speculation of potential bullying is not enough to meet this first factor. That is, parental fear that a child might be bullied is likely not sufficient grounds to support a FAPE claim. In J.E. v. Boyertown Area Sch. Dist., 834 F. Supp. 2d 240 (E.D.P.A. 2011), affirmed by J.E. by J.E. and A.E. v. Boyerton Area Sch. Dist., 452 F. App’x 172 (3rd Cir. 2011), the Court upheld a ruling that a District’s program was appropriate. There, the parents of a student diagnosed with Autism, poor social skills, and sensory processing issues, who had previously placed their child in a private school, rejected the District’s individualized education program (IEP) because they “feared the public school environment for J.E.” While the parents wanted to place their child in a private school again, the Court held “the Mother hear[ing] students discussing bullying is an insufficient basis for her to determine that J.E. would be bullied at BAHS,” and further held the “basis for [the parents’] concerns were impressionistic and not based upon any expertise[,] [just] in drawing inferences from the brief, episodic observations the Mother had been able to make while observing the [Autism Support] class at BAHS.” Id.
2. Factor Two: The Bullying Must Interfere with the Student’s
Ability to Make Meaningful Progress
In keeping with the Second Circuit T.K. case, the Court found that L.K.’s bullying did interfere with, or would likely interfere with, her progress, and the second factor was met. This is because as a result of the bullying L.K.: was late to school because of “her fear of interacting with her classmates”; one of L.K.’s teachers “reported that bullying negatively affected L.K.’s ‘ability to initiate, concentrate, attend and stay on task with her homework assignments and activities after school’”; “[a] doctor familiar with L.K. testified that her classroom behavior and demeanor had regressed from the prior year”; and L.K.’s class participation diminished after the bullying began. T.K. at *2. Therefore, the bullying “interfere[d] with L.K.’s ability to receive meaningful educational benefits,” – she refused to attend school, her ability to participate in class and complete work assignments diminished, and her behavior worsened. T.K. at *4.
In Harrisburg City School District, 110 LRP 45552 (PA SEA 05/26/10), however, the hearing officer not only found there was no bullying, but even if there were bullying, “[t]he preponderance of the evidence in the record shows that the [student’s] attendance problems were not caused by bullying.” Id. In Harrisburg, while the parents alleged that bullying caused the student to be late and absent from school because the student was scared of being bullied, the student’s attendance issues began before the alleged bullying took place. Id. It is important to remember bullying itself is not enough for an IDEA claim – the bullying must cause interference with a student’s ability to make educational progress.
3. Factor Three: If a District Takes Immediate Steps to End the
Bullying, Prevent the Bullying, and Remedy the Bullying (if
Necessary), Then There Is Likely No FAPE Denial Claim
Continuing with the Second Circuit T.K. case, L.K.’s parents attempted to discuss the bullying multiple times with the District but the District always refused, and the District refused to discuss the bullying when creating L.K.’s IEP to determine what services and programs she required to make progress. L.K.’s parents then unilaterally placed L.K. in a private school, and the Court found that the District had to reimburse L.K.’s parents as a result of its FAPE denial, as “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.’” T.K. at *4. Therefore, the third and final factor was present in T.K; the District failed to address the student’s bullying issues at all to ensure L.K. continued to make, and could make, meaningful progress.
It must further be noted that even if bullying occurs, if a District takes appropriate steps to address and/or remedy it, then there likely is no FAPE claim. In Blount County Board of Education, 116 LRP 14556 (AL SEA 10/22/15), the hearing officer held if there is bullying, “the school system must take prompt and effective steps that are reasonably calculated to end the bullying, eliminate the hostile environment, prevent it from reoccurring, and as appropriate, remedy its effect.” Id. In Blount County, the hearing officer found the District investigated every alleged incident of bullying and it took steps to prevent any potential bullying actions from taking place going forward. The District’s solutions after it investigated each bullying claim ranged from: discipline for the other student; an apology from the other student; behavior reduction training for the other student; and nothing, when it was determined no inappropriate behavior occurred. In addition, the administration apprised teachers and staff of the situation and told them to keep an eye on certain students in case any bullying might occur. The school also made safety plans for the student just in case bullying did occur. According to the hearing officer in Blount County, even if bullying did occur, the family could not meet the second factor: the District addressed the incidents to ensure they did not and would not interfere with the student’s ability to make meaningful progress.
If a child is subjected to bullying and it is impacting his/her ability to make educational progress, and the District does not take affirmative steps to address the bullying, a family may be able to raise a claim against a District for a denial of FAPE. As is always true in cases brought under the IDEA, each case is fact-specific and requires analysis before finding a determination as to the impact of bullying on a student’s educational progress, and on the delivery of special education and related services.
 Examples of when bullying might be impacting a student’s ability to make meaningful progress are: if his/her grades begin to suffer as a result of the bullying, if he/she refuses to go to school or attend his/her related services as a result of the bullying, or if he/she begins to have emotional issues, or experiences an increase in emotional issues, as a result of the bullying.
 The Office of Special Education issues policy letters to “provide information, guidance and clarification regarding implementation of the IDEA.” https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/index.html).
 T.K. v. New York City Department of Education, No. 14-CV-3078,2016 WL 229842, at *5 (January 20, 2016) (holding that the District’s failure to prevent bullying deprived a student of a FAPE, and that if bullying is an issue for a student, it must be addressed on a student’s individualized education program (IEP). Also holding that the District’s failure to discuss the student’s bullying at her IEP meeting “notonly potentially impaired the substance of the IEP but also prevented [the parents] from assessing the adequacy of their child’s IEP.” Id.).
 Id. at *4. In Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988 (2017), the Supreme Court held the standard for whether a District’s program is appropriate is whether the “IEP
reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Id. at 999.
 See also Shore Reg’l High Sch. Bd. of Educ. v. P.S. ex rel. P.S., 381 F.3d 194 (3rd Cir. 2004) (awarding tuition reimbursement based on the finding that the school district could not appropriately address a student’s continuous and severe bullying going forward into high school, because it had not been able to do so during middle school).
 The hearing officer in Blount County Board of Education held the standard for when bullying leads to an IDEA claim is the same as when there is a hostile environment: the bullying “conduct was sufficiently serious to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by the school. In that situation, the school system must take prompt and effective steps that are reasonably calculated to end the bullying, eliminate the hostile environment, prevent it from reoccurring, and as appropriate, remedy its effect.”