T.K. v. New York City Department of Education
32 F. Supp. 3d 405
E.D.N.Y2014Background
- L.K., reclassified as learning disabled (previously on autism spectrum), attended a Collaborative Team Teaching (CTT) class at P.S. 6 with SEIT and related services; she experienced repeated bullying during 2007–08.
- Parents repeatedly complained to school staff; incident reports were not provided and parents were rebuffed when seeking school action. L.K. showed emotional withdrawal, high lateness/absences, and other adverse effects.
- Parents sought and obtained admission to Summit (a private special-education school) and placed L.K. there for 2008–09, then sought DOE reimbursement.
- Administrative history: initial IHO and SRO decisions found either no deliberate indifference or that L.K. was not substantially restricted; remand followed this court’s earlier directive adopting a substantive bullying FAPE standard.
- On remand the IHO found deliberate indifference and lack of substantial benefit; the SRO reversed on deliberate indifference and agreed there was adequate progress. This court reviewed the record de novo and held DOE failed to offer a FAPE and ordered reimbursement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether bullying that school knew about deprived L.K. of a FAPE | Bullying was severe, pervasive, and caused substantial restriction of educational opportunities; school was deliberately indifferent | School had zero-tolerance policies and took appropriate steps; L.K. made academic/social progress so no substantial restriction | Court: bullying substantially threatened L.K.’s opportunities and school was deliberately indifferent; IEP failed to address bullying, so no FAPE offered |
| Whether the IEP team was required to consider bullying when drafting L.K.’s IEP | IEP team refused to consider bullying, denying parents meaningful participation | Team argued existing goals/BIP addressed social needs and progress showed adequacy | Court: where bullying legitimately threatens FAPE, IEP team must consider it; refusal deprived parents of meaningful participation |
| Whether the June 2008 IEP substantively addressed bullying | IEP/BIP goals were abstract and focused on changing L.K.’s behavior rather than preventing peer harassment; no anti-bullying program included | DOE argued social/pragmatic goals and counseling would reduce vulnerability and were adequate | Court: IEP lacked an anti-bullying program and used abstract language parents could not understand; substantively inadequate to ensure FAPE |
| Whether unilateral placement at Summit was appropriate and equities favor reimbursement | Summit matched expert recommendations, provided supportive low-ratio setting, and L.K. made progress—thus appropriate; parents promptly objected and pursued reimbursement | DOE argued Summit lacked some services listed in IEP (less speech/PT), and parents sought private placement before site identified; equities disfavorable | Court: Summit was an appropriate placement; equities favor parents; reimbursement awarded |
Key Cases Cited
- T.K. v. New York City Dep’t of Educ., 779 F. Supp. 2d 289 (E.D.N.Y. 2011) (establishes bullying-based FAPE standard for disabled students)
- R.E. v. New York City Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012) (deference to administrative decisions and two-part IEP adequacy inquiry)
- C.F. ex rel. R.F. v. New York City Dep’t of Educ., 746 F.3d 68 (2d Cir. 2014) (Burlington/Carter reimbursement framework)
- Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006) (parents may unilaterally place and seek reimbursement when FAPE denied)
- Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (U.S. 1982) (definition of FAPE and IEP’s role)
- Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 (2d Cir. 2005) (IEP need only be reasonably calculated to enable progress)
- Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007) (standard for appropriateness of unilateral placement)