The folks in the Central School District in New York called it a “safety plan” rather than a “stop the bullying plan.” They developed the plan at a meeting that the parents attended and participated in, but it was not an IEP Team meeting and the safety plan was not incorporated into the student’s IEP. Later, when the parents placed the child in a private school and sought reimbursement for tuition, the parents alleged that these were fatal errors by the school amounting to a denial of FAPE.
In New York, cases go to an IHO (Impartial Hearing Officer) and SRO (State Review Officer) before they can go to court. The court deferred to the findings of the IHO and SRO that the safety plan the district put in place adequately addressed concerns over bullying, it did not have to be developed at an IEP Team meeting or incorporated into an IEP. There are many ways to address bullying, and the substance matters more than the form.
As to whether the bullying denied the student FAPE, the court relied on the four-part test set out by the 2nd Circuit:
- Was the student a victim of bullying;
- Did the school have notice of substantial bullying of the student;
- Was the school deliberately indifferent to the bullying, or did it fail to take reasonable steps to prevent the bullying; and
- Did the bullying substantially restrict the student’s educational opportunities.
This is not the test for whether bullying occurred. It’s the test for whether bullying denied the student FAPE. Different issue. Since the district did address the bullying, there was no denial of FAPE.
Except for one problem. The IHO held that the district was late in addressing bullying and on that basis held that the district denied FAPE for a part of the school year. The IHO ordered the district to reimburse the parents for 25% of the tuition they paid that year.
On appeal, the federal court had the good sense to notice that the safety plan was put in place on September 6, which was exactly four days into the school year. Thus the denial of FAPE lasted four days—not one-quarter of the year. The federal judge was better at arithmetic than the IHO. Four days equals 25% of the semester? Nope.
It’s the IHO decision demonstrating poor math skills that gets this one on the infamous Sheesh-O-Meter.
It’s B.D. v. Eldred Central School District, decided by the federal court for the Southern District of New York. It’s published at 83 IDELR 31.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: HB 3928 and the TEA FAQs…