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TK v. New York City Department of Education, = Dist.=20 Court, ED New York 2011

Highlighting T.K. bully  Remove=20 highlighting
 
TK v. New York = City Department=20 of Education, Dist. Court, ED New York 2011

T.K. AND S.K.,=20 INDIVIDUALLY AND ON BEHALF OF L.K. = Plaintiff-Appellant,
v.
NEW YORK=20 CITY DEPARTMENT OF EDUCATION, Defendant.

No. 10-CV-00752.

United States District Court, E.D. New = York.

April 25, 2011.

GARY S. MAYERSON, Mayerson and Associates, New York, NY, for=20 Plaintiff.

BRIANNE NICOLE DOTTS, Mayerson and Associates, New York, NY. = Michael A.=20 Cardozo, Corporation Counsel of the City of New York, By: JOHN = MICHAEL=20 BUHTA, Of Counsel, ABIGAIL LYNNE GOLDENBERG, Of Counsel, for the=20 Defendant.

MEMORANDUM & ORDER

JACK B. WEINSTEIN, Senior District Judge.

I. Introduction

This case presents the largely unresolved issue of the extent = to which=20 bullying by other students inhibits a disabled child from being = educated=20 appropriately, and what her school must do about it. A strict = legal test=20 is developed and applied.

Plaintiff L.K. acting through her parents, challenges her = public school=20 placement by the New York City Department of Education ("DOE") = under the=20 Individuals with Disabilities Education Act. After exhausting her=20 administrative remedies, she brings this action arguing that the = placement=20 was procedurally and substantively inappropriate, and her parents = seek=20 reimbursement for private school tuition. The DOE moves for = summary=20 judgment.

The primary complaint is that L.K. was deprived of an = appropriate=20 education because her assigned public school did nothing to = prevent her=20 from being so bullied by other students as to seriously reduce the = opportunity for an appropriate education. Such a contention, under = the=20 Individuals with Disability Education Act ("IDEA") provisions that = require=20 a proper school placement and appropriate education, apparently = have not=20 yet been ruled upon by the Court of Appeals for the Second = Circuit. For=20 the reasons stated below, the issue requires a court evidentiary = hearing,=20 and, a possible remand to the state authorities for a = rehearing.

Access to a free and appropriate education for all students = remains one=20 of the central issues for our time. For children with = disabilities, the=20 struggle for equal access to education at their local public = schools is=20 now decades old. Thirty-five years ago, passage of the Individuals = with=20 Disabilities Education Act required communities to provide equal = access=20 for students with special needs.

In 1970, before the IDEA's passage, United States schools = provided=20 special education to only one in five children with a disability. = U. S.=20 Dep't of Educ., Thirty-five Years of Progress in Educating = Children=20 With Disabilities Through IDEA 3 (2010), available at=20 = http://www2.ed.gov/about/offices/list/osers/idea35/history/idea-35-histor= y.pdf=20 By 2008, 95 percent of children with disabilities received special = education in their neighborhood public schools. Id. at 2. = But an=20 effective and appropriate education may be negated by child = bullying. When=20 a school fails to take reasonable steps to prevent such = objectionable=20 harassment of a student, it has denied her an educational benefit=20 protected by statute.

No one gains from ignoring school bullying =E2=80=94 not even = the bullies=20 themselves. The students who are bullied may suffer lasting scars = in the=20 form of an inferior education, emotional damage, and decreased=20 self-confidence; the bullies are left to continue on a path that = may lead=20 to future violence. See Gayle 1. Macklem, Bullying and = Teasing:=20 Social Power in Children's Groups 42-47 (2003) (noting that = bullying=20 may lead to sexual harassment and an increased likelihood of being = convicted of a felony). Bullying and inappropriate peer harassment = in its=20 many forms provides an unacceptable toxic learing environment. For = the=20 reasons stated below defendant's motion for summary judgment is = denied.=20 Defendant's motion to dismiss plaintiffs predetermination claim is = granted.

II. Facts

A. Party's Contentions

Plaintiff presents two arguments. First, that bullying made = L.K.'s=20 educational environment hostile =E2=80=94 a factor not properly = taken into account=20 during the administrative process. Plaintiff's Memorandum of Law = in=20 Support of Motion for De Novo Review ("Pl's Mem. Supp. Mot. De = Novo Rev.")=20 at 11, November 17, 2010, Docket Entry No. 18.

L.K. argues that in considering bullying during the = administrative=20 review, the test for determining if a school district is liable = for sexual=20 harassment of a student developed in Davis=20 v. Monroe County Bd. of Educ., 526 U.S. 629 (1999) = should be=20 applied. Id. Plaintiff alleges that she was subjected to = repeated=20 bullying at school as a result of her disability, that the school = was=20 aware of this conduct, and that the school stonewalled her = parents'=20 attempts to address the issue, establishing its deliberate = indifference.=20 Id. at 12-13.

Second, L.K. contends that the school improperly predetermined = her=20 Individualized Education Plan ("IEP") and did not provide a = meaningful=20 opportunity for her parents to participate. Id. at 15-17. = She=20 supports this argument by pointing to the school's withholding of=20 documents and failure to discuss bullying as it related to her = IEP.=20 Id.

As an initial matter, defendant urges this court to defer to = the=20 opinions rendered by the Independent Hearing Officer and the State = Review=20 Officer that L.K. was not denied a free, appropriate public = education=20 ("FAPE"). Defendant's Memorandum of Law in Opposition to = Plaintiffs Motion=20 for De Novo Review ("Def. Mem. Opp. Mot. De Novo Rev.") at 2, Dec. = 17,=20 2010, Docket Entry No. 29. It asserts that bullying as a denial of = a FAPE=20 is "unsupported by any law, and is not relevant. . . . "Id. = at 6.=20 It contends that L.K.'s parents not only had the chance to = participate in=20 developing the IEP, but they played an active role in the = deliberations of=20 the Committee on Special Education ("CSE") that developed the = program.=20 Id. at 11-14.

Finally, Defendant argues that the IEP was "reasonably = calculated to=20 enable the child to receive educational benefits" and thus = provided L.K.=20 with a FAPE. Defendant's Memorandum of Law in Support of Motion = for=20 Summary Judgment ("Def. Mem. in Supp. of Mot. Summ. J.") at 10, = November=20 17, 2010, Docket Entry No. 23. In particular, the DOE contends = that the=20 IEP was likely to produce progress because it was the result of=20 appropriate input from L.K.'s parents, teachers and school staff = and=20 accounted for the student's performance, goals for the future, and = ways to=20 measure achievement. Id. at 11-14.

The facts set out below are based on filed documents in the = case. For=20 the purposes of this summary judgment motion, they are assumed to = be=20 true.

B. L.K.'s Academic Program

L.K. is a 12-year-old girl who was originally diagnosed as = autistic,=20 but has since been re-classified as learning disabled. Pl.'s Ex. J = at=20 36-37, 72. During the 2007-2008 school year, the DOE placed her in = a=20 "Collaborative Team Teaching" ("CTT") classroom, which involved = teaching=20 students who are learning disabled alongside those who are not.=20 Defendant's Rule 56.1 Statement of Material Facts ("Defs Rule 56.1 = Statement") at =C2=B6 2, November 17, 2010, Docket Entry No. 22; = Plaintiffs=20 Rule 56.1 Statement of Material Facts ("Pl.'s Rule 56.1 Statement" = at =C2=B6 2,=20 November 17, 2010, Docket Entry No. 19. To assist L.K. with her = studies,=20 she was provided a teacher's aide on a one-to-one basis. She = received=20 additional school services including speech therapy, occupation = therapy,=20 and physical therapy. Pl.'s Rule 56.1 Statement at =C2=B6 2; = Pl.'s. Ex. NN at=20 1;Pat 1.

On June 4, 2008 a meeting was held to develop L.K.'s IEP for = the=20 2008-2009 school year. L.K.'s parents requested all documents used = to=20 evaluate their daughter in advance of the meeting. Pl.'s Ex. T at = I. They=20 were given a single piece of paper. Pl.'s Ex. 0; Impartial Hearing = Officer=20 Hearing Transcript ("IHO Tr.") 1722, Sept. 3, 2008-March 13, 2009. = As a=20 result of the meeting the Committee of Special Education = recommended that=20 L.K. continue in the same CIT setting at the same school. The = classroom=20 would contain two teachers, one student teacher and two aides = assigned to=20 specific students other than L.K. It had a 12: I student to = teacher ratio.=20 PI.'s Ex. D at I. The plan called for continued speech therapy,=20 occupational therapy, and physical therapy. Def.'s Rule 56.1 = Statement at=20 =C2=B6 12; PI.'s Ex. D at I. The 2008-2009 plan was the first = under which L.K.=20 did not have a 1: 1 aide at all times in the classroom. IHO Tr.=20 1707-08.

During this CSE meeting, L.K.'s parents sought to discuss = bullying of=20 their daughter, but were rebuffed by the school's principal. PI.'s = Ex. J=20 at 45-46. The principal stated that it was not the appropriate = time to=20 discuss bullying, but the matter could be discussed later. = Id.; IHO=20 Tr. 1702-03, 1734. No future meeting was scheduled or took place. = IHO Tr.=20 1703. L.K.'s parents contend that this failure to address their = concerns=20 is just one example of many where bullying was brought the = school's=20 attention and nothing was done. PI's Mem. Supp. Mot. De Novo Rev. = at=20 13.

Prior to the CSE meeting, L.K.'s parents placed a deposit to = secure a=20 place for her at the Summit School, a private institution. PI's = Ex. UU.=20 After the IEP meeting, the parents rejected the proposed placement = at P.S.=20 6, where L.K. had been the year before, and instead enrolled her = in the=20 Summit School. A not-for-profit organization approved by the New = York=20 State Education Department; it provides educational and = therapeutic=20 services for learning disabled students. See The Summit = School,=20 http://www. summitschoolqueen.com/about (last visited April 14, = 2011);=20 Def. Rule 56.1 Statement at =C2=B6 38; PIs. Rule 56.1 Statement at = =C2=B6 50.

The instant action is brought to recover tuition and related = expenses=20 only for the 2008-2009 school year. Since that school year, the = family has=20 moved outside of the New York City Department of Education = District.=20 See Plaintiffs Opposition to Defendant's Motion to Quash, = at n. 2,=20 Feb. 22, 2011, Docket Entry No. 37.

L.K.'s parents appealed from the DOE administrative decision to = an=20 Impartial Hearing Officer (IHO) and then to a State Review Officer = (SRO).=20 Both appellate officers sided with the DOE. See Part = III.C.2,=20 infra.

C. Evidence of Bullying

During the 2007-2008 school year, L.K complained to her parents = almost=20 daily about being bullied at school. IHO Tr. 1706. Her father = insists that=20 this constant bullying made her "emotionally unavailable to = learn."=20 Id. at 1697. L.K.'s parents contend that their attempts to = address=20 the bullying issue with the school principal both in person and in = writing=20 were summarily dismissed. Id. at 1696-97.

Throughout the 2007-2008 school year, L.K. had one-on-one = teacher's=20 aide help in her classroom during the day. This support was = supplied by=20 two women who worked on alternate days. Both report that L.K. was=20 ostracized in the `classroom and the subject of ridicule from = other=20 students. See IHO Tr. 1477-85, 1555-66.

Shannon Maloney was L.K.'s teacher's aide on Tuesdays and = Thursdays=20 beginning in November 2007. When she arrived at the school, she = described=20 it as a "hostile environment" in which she was simply "just trying = to get=20 . . . [L.K.] by each day." Id. at 1555. Maloney reported = that there=20 was a great deal of teasing of L.K., with other children = physically=20 backing away to avoid her. Id. at 1556-58.

Dominique Faber was L.K.'s aide on Mondays, Wednesdays, and = Fridays=20 during the 2007-2008 school year. She testified that there was = "constant=20 negative interaction" between L.K. and other students on a daily = basis.=20 Id. at 1472. Other children would intentionally stay away = from L.K.=20 and at times physically push her away for fun. Id. at = 1472-74,=20 1477. "She would be tripped, where she was walking by and they = would stick=20 out their feet just to see what would happen. And then if she = fell, well,=20 then the teachers would get upset with her for making a scene." = Id.=20 at 1477-78.

Testimony from a substitute aide supports these contentions. = Sharifa=20 Wiggins worked as a substitute aide for L.K. four times during the = 2007-2008 school year. lHO Tr. 1292, 1324. Her reaction was that = "[L.K.]=20 was isolated by girls and boys in her classroom. There was an = incident in=20 the classroom when there was a group of students at one table that = [L.K.]=20 was sitting at, where they had to write an assignment, and there = was a=20 pencil that [L.K.] touched. And for some reason, she put it down = and no=20 one wanted to touch the pencil." Id. at 1319. This behavior = continued when L.K. tried to participate in class. "And a question = was=20 asked of the class . . . to give an opinion about a situation. And = [L.K.]=20 raised her hand and kind of people laughed at her." Id. at=20 1320-21.

Others at the school for brief periods of time noticed the same = isolation. Mary Kutch, who was the director OK's school program = referred=20 to an incident where a student refused to take a paper from L.K. = to grade=20 it, requiring an aide to intervene. lHO Tr. 1454.

Specific incidents of bullying include: a drawing in the record = made by=20 a student in L.K.'s class depicting L.K. in a disparaging light; a = student=20 chasing L.K. with what he claimed was blood but was in fact = ketchup; other=20 students refusing to touch things once L.K had; and a prank phone = call=20 made to L.K.'s home, which the school was informed about. = See PI.'s=20 Ex. MM; Tr. 941, 1305, 1320. No incident reports were generated by = the=20 school relating to these occurences. This lack of records is = significant=20 because it raises questions about whether the school was actually = on=20 notice, or if it was, whether it was deliberately indifferent.

The DOE has no incident reports of bullying where L.K. was the = victim.=20 It has, however, provided several reports where the school alleges = she was=20 the aggressor, including one where she is accused of hitting her = teacher.=20 See Pl.' Ex. CCC at 9. These documents were furnished after = repeated requests by the plaintiff, leading the State' Review = Office to=20 find a procedural violation of the IDEA, but not one that rose to = the=20 level of a denial of FAPE.

L.K.'s parents maintain that bullying caused their daughter to = resist=20 attending school, hurt her academic performance, and damaged her = emotional=20 well-being. PI's Mem. Supp. Mot. De Novo Rev. at 12. The DOE = points to=20 progress reports showing L.K.'s academic progress and portraying = her as an=20 enthusiastic classroom participant. Def.'s Rule 56.1 Statement at = =C2=B6 3.

D. School's Knowledge of Bullying

L.K.'s parents sent several letters to her school about her = being=20 bullied, which the school principal says she responded to via = telephone=20 call. IHO Tr. 853-55, 932-34; 1695-1702; 1718. The principal = recalls=20 receiving letters from L.K.'s parents specifically reporting two = acts of=20 bullying. Id. at 875, 893.

During the 2007-2008 school year, L.K.'s parents brought her to = the=20 school principal's office to discuss bullying in the school. IHO = Tr. at=20 847-48. After showing them into her office, the principal asked = L.K.'s=20 parents to have the conversation outside OK's presence. Id. = When=20 L.K.'s parents continued to try to discuss the matter, the = principal asked=20 them to leave. As the parent's continued to try to discuss their=20 daughter's problem the principal opened the door to her office and = said=20 she would call security if they did not leave. Id.

No subsequent meeting about bullying with school personnel took = place.=20 The principal does not recall what she did to investigate any = claims of=20 bullying. IHO Tr. 851-52. ("Question: What, if anything, did you = do to=20 investigate [caims of bullying] internally? Answer: I can't = recall.").=20 When L.K.'s parents, tried raising the issue of bullying during a = meeting=20 to set the educational plan at issue they were rebuffed. = Id. at=20 876-77. The school principal did not permit this discussion = because she=20 said she thought it was not appropriate for a CSE meeting. = Id. at=20 877.

Maloney, the school aide, testified that when she brought = incidents of=20 bullying to the attention of classroom teachers, it was ignored. = IHO Tr.=20 1556-58. When trying to discuss a particular incident with the = principal,=20 Maloney says that she was turned away and told there was no time = for a=20 meeting. Id. at 1559.

E. Bullying in America

Were bullying characterized as a disease affecting America's = youth, a=20 team from the Center for Disease Control charged with = investigating=20 epidemics would have been called in to study it. Joseph 1. Wright, = Address=20 at American Medical Association Educational Forum on Adolescent = Health:=20 Youth Bullying 23 (2002), available at=20 http://www.ama-assn.org/amal/pub/upload/mm/39/youthbullying.pdf. = ("If=20 [bullying] were a medical issue, for example an infectious disease = in my=20 pediatrics practice, we would have the Epidemic Intelligence = Service=20 people from the Centers for Control and Prevention investigate it. = The=20 prevalence and epidemiology is striking."). The problem is = pervasive; it=20 is perceived by educators as serious, particularly in the middle = school=20 years. Michaela Gulemetova, Darrel Drury, and Catherine P. = Bradshaw,=20 Findings Form the National Education Association's Nationwide = Study of=20 Bullying: Teachers' and Education Support Professionals' = Perspectives,=20 in White House Conference on Bullying Prevention, at 11-12 = (March 10,=20 2011), available at=20 = http://www.stopbullying.gov/references/white_house_conference/index.html.= =20 ("Over 40 percent of [teachers and support staff surveyed] = indicated that=20 bullying was a moderate or major problem in their school, with 62 = percent=20 indicating that they witnessed two or more incidents of bullying = in the=20 last month, while 41 percent witnessed bullying once a week or = more,"). It=20 is the most common type of violence in our schools. Macklem, = supra,=20 at 7.

The issue first seized the attention oft the American public = after the=20 1999 shooting at Columbine High School that killed fifteen = students and=20 wounded two dozen more. Susan P. Limber, Addressing Youth = Bullying=20 Behaviors, in American Medical Association Educational Forum = on=20 Adolescent Health: Youth Bullying 5 (2002), available at=20 = http://www.ama-assn.org/amal/pub/upload/mm/39/youthbullying.pdf. As=20 part of the investigation that followed the Columbine massacre, = the Secret=20 Service examined thirty-seven shooting incidents. They determined = that in=20 two-thirds of those cases, the shooter described feeling bullied,=20 persecuted, or threatened at school. Bill Dedman, Secret = Service=20 Findings Overturn Stereotypes, Chicago Sun-Times Report, Oct. = 15-16,=20 2000, at 9; Limber, supra, at 5. "I just remember life not = being=20 much fun, a shooter recalls. `Reject, retard, loser.' I remember = stick boy=20 a lot `cause I was so thin." Dedman, supra, at 9.

More recently, stories of bullied victims taking their own = lives have=20 become common. See, e.g., John Schwartz, Bullying, = Suicide and=20 Punishment, N.Y. Times, Oct. 3, 2010, at Al (discussing the = suicides=20 of three teens as a result of online bullying); Limber, = supra, at 5=20 (noting that internationally the study of bullying was triggered = by the=20 suicides of three young boys in Norway in the 1980s). Some one = third of=20 students are engaging in aggressive behavior directed at their = peers,=20 oftentimes with the goal of increasing their popularity. Tara = Parker-Pope,=20 Web of Popularity, Achieved by Bullying, N.Y. Times blog, = (Feb. 14,=20 2011, 5:03 p.m.), available at=20 = http://well.blogs.nytimes.com/2011/02/14/web-of-popularity-weaved-by-bull= yingl?scp=3D=20 1 &sq=3DTara%20Parker-Pope%20bully&st=3Dcse.

National leaders and educators continue to work toward a = solution.=20 President Obama held a summit and announced new federal programs = that=20 aimed at "dispel[ing] the myth that bullying is just a harmless = rite of=20 passage or inevitable part of growing up." Jackie Calmes, Obama = Focuses=20 on Antibullying Efforts, N.Y. Times, March 10, 2011, at A = 18.

Presidential summits and school shootings achieve headlines, = but the=20 day-to-day adverse affects of bullying in damaging educational=20 opportunities to students are as real as they are unnoticed. It is = a=20 problem that affects the school performance, emotional well-being, = mental=20 health, and social development of school children throughout the = United=20 States. Tonja R. Nansel et. aI., Cross-national Consistency in = the=20 Relationship Between Bullying Behaviors and Psychosocial = Adjustment,=20 158 Archive of Pediatric and Adolescent Med. 730, 733-35 (2004). = Whether a=20 child is the victim, aggressor, or merely a bystander, research = shows that=20 those in a close vicinity to bullying are adversely marked. Id. = See=20 also, Macklem, supra, at 44, 90-92.

1. What Constitutes Bullying

Bullying is not a new phenomenon; literature is blotted with = bullies,=20 and many people have had personal experience with a schoolyard = antagonist.=20 Dan Olweus, Bully=20 at School: What We Know and What We Can Do 1 (1993). The bully-victim = relationship=20 is characterized by a real or perceived imbalance of power and = encompasses=20 a variety of negative acts that are carried out repeatedly over = time.=20 Id. at 9; Nels Ericson, U.S. Dep't of Justice Office of = Juvenile=20 Justice and Delinquency Prevention Fact Sheet, Addressing the = Problem=20 of Juvenile Bullying 1 (2001), available at=20 http://www.ncjrs.gov/pdffiles1/ojjdp/fs200127.pdf. Negative = actions can=20 broadly be described as inflicting or attempting to inflict = discomfort=20 upon another. Olweus, supra, at 9. Bullying takes three = forms:=20 physical (e.g. hitting); verbal (e.g. taunting); and psychological = (e.g.=20 engaging in social exclusion). Ericson, supra, at 1. = Indirect,=20 psychological bullying, in the form of exclusion and isolation is = often=20 less visible, but not less corrosive. Olweus, supra, at = 10.

"The consensus among physicians and social scientists, = educators and=20 youth development organizations, civil rights advocates and law=20 enforcement is that bullying is neither inevitable nor normal. . . = .=20 "Julie Sacks and Robert S. Salem, Victims Without Legal = Remedies: Why=20 Kids Need Schools to Develop Comprehensive Anti-Bullying = Policies, 72=20 Alb. L. Rev. 147, 147-48 (2009). Despite this consensus, bullying=20 continues to occur at an alarming rate. A study by a group of=20 psychologists provides an illustration. While observing groups of=20 kindergarten and first grade students, researches noted an = incident of=20 bullying on the playground every three to six minutes. James = Snyder et.=20 al., Observed Peer Victimization During Early Elementary = School:=20 Continuity, Growth. and Relation to Risk for Child Antisocial = Depressive=20 Behavior, 74 Child Dev. 1881, 1885 (2003).

"(T)he highest prevalence of bullying is among = elementary-school aged=20 children." Gwen M. Glewet et. al., Bullying Psychological = Adjustment,=20 and Academic Performance in Elementary School, 159 Archives of = Pediatric and Adolescent Med.1026, 1026 (2005). Younger students = of both=20 sexes are the most likely to be singled out as victims. J.F. Devoe = and S.=20 Kaffenberger, U.S. Dep't of Educ., Student Reports on Bullying: = Results=20 from 2001 School Crime Supplement to the National Crime = Victimization=20 Survey 14 (2005), available at=20 http://nces.ed.gov/pubs2005/2005310.pdf.Children who struggle = academically=20 are more likely to be victims or be both victim and aggressor. = Glew,=20 supra, at 1030. Bullying can be carried out by an = individual or a=20 group. Olweus, supra, at 9 victim of school bullying is = most often=20 a single person. Id.

Initially, victimization is situational; "only over time does = the field=20 of children who are consistently victimized become narrowed on the = basis=20 of ongoing experience." Snyder, supra, at 1881; Macklem,=20 supra, at 66 (finding that once a child is labeled a = victim, his=20 status within the peer group drops). This leads to a subset of = children=20 being caught up in a "vicious cycle in which victimization and=20 maladjustment feed off one another." Snyder, supra, at = 1881. In=20 particular, girls who are unable to develop supportive peer, = relationships=20 are at an increased risk for persistent ostracism and rejection.=20 Id. at 1895.

"Youth who are victimized are likely marginalized from the = mainstream=20 peer group, lacking access to pro social peers who provide role = models of=20 appropriate social skills, and also protection against bullying." = Nansel,=20 supra, at 735. The most common place for victimization in=20 elementary school is the playground, followed by the classroom and = gym=20 class. Glew, supra, at 1029.

a. Cyberbullying

With changes in technology, the Internet has become the venue = where=20 widespread hurtful bullying is inflicted by and on young people.=20 See Jan Hoffman, As Bullies Go Digital, Parents = Play=20 Catch-up, N.Y. Times, Dec. 5, 2010, at A 1 (examining the = widespread=20 nature of bullying on the Internet and difficulties schools have = in=20 stopping it); Schwartz, supra (discussing the suicides of = three=20 teens as a result of online bullying).

The Internet has become a fertile area for bullying behavior.=20 Cyber-bullying is defined as "willful and repeated harm inflicted = through=20 the use of computer, cell phones and other electronic devices." = Sameer=20 Hinduja and Justin W. Patchin, Overview of Cyberbullying, = in White=20 House Conference on Bullying Prevention, at 21 (March 10, 2011),=20 available at=20 = http://www.stopbullying.gov/references/white_house_conference/index.html.= =20 About 20 percent of eleven to eighteen year-olds have been = cyberbullied at=20 some point in their lives. Id.

Cyberbullying differs from traditional bullying in several = ways. First,=20 a cyberbully can attack anonymously. Id. at 22. Second, the = bullying can go viral, with many people harassing the same target = at once.=20 Id. Third, the bully does not = see the=20 emotional toll his bullying creates, allowing the culprit to push = further=20 than he or she might in a face-to-face relationship where the = adverse=20 effects are clearly perceived. Id. at 23. Fourth, many = parents and=20 teachers do not have the technological know-how to monitor these = actions.=20 Id.

b. Increased State Efforts to Address Bullying

Legislatures across the country have been taking note of the = problem in=20 schools. In recent years, forty-five states have passed laws = dealing with=20 bullying and harassment in schools. Arne Duncan, Secretary of = Education,=20 Secretary of Education Bullying Law and Policy Memo, Dec. = 16, 2010,=20 available at=20 http://www2.ed.gov/policy/gen/guid/secletter/101215.html. In = September=20 2010, New York's Dignity for Students Act was enacted; it goes = into effect=20 in July 2012. See New York Education Law, =C2=A7=C2=A7 = 10-17 (2010) (protects=20 students against discrimination on the basis of race, color, = nation of=20 origin, ethnic group, religion, disability, sexual orientation, or = gender). See also, New York Civil Liberties Union, The = Dignity=20 For All Students Act (2010), available at=20 http://www.nyclu.org/files/publications/OnePager_DASA.pdf. The Act = requires incidents of bullying to be reported to the state = Department of=20 Education on at least an annual basis and the development of = appropriate=20 codes of conduct. Id. at =C2=A7 12. ("No student shall be = subjected to=20 harassment by employees or students on school property or at a = school=20 function; nor shall any student be subjected to discrimination = based on a=20 person's actual or perceived race, color, weight, national origin, = ethnic=20 group, religion, religious practice, disability, sexual = orientation,=20 gender, or sex by school employees or students on school property = or at a=20 school function."); Id. at =C2=A7 13 ("The board of = education and the=20 trustees or sole trustee of every school district shall create = policies=20 and guidelines that shall include, but not be limited to . . . = [p]olicies=20 intended to create a school environment that is free from = discrimination=20 or harassment. . . ."); Id. at =C2=A7 15 ("The commissioner = shall create=20 a procedure under which material incidents of discrimination and=20 harassment on school grounds or at a school function are reported = to the=20 department at least on an annual basis. . . ."). See also, = Erin=20 Cargile, Lawmakers Move Education Bill Forward, Austin = News, April=20 14, 2011, available at=20 = http://www.kxan.com/dpp/news/texas_lege/Lawmakers-move-bullying-bill-forw= ard.

2. Distinguishing Bullying From Horseplay

Every disagreement among children does not amount to bullying. = "What=20 distinguishes bullying from other forms of childhood aggression, = whether a=20 hard-fought basketball game or rough-and-tumble play, is unequal = and=20 coercive power." Philip C. Rodkin, Bullying and Children's Peer = Relationships, in White House Conference on Bullying = Prevention, at 33=20 (March 10, 2011), available at=20 http://www.stopbullying.gov/references/white_house _=20 conference/index.html. See also, Olweus, supra, at = 10 ("It=20 must be stressed that the term bullying is not . . . used when two = students of approximately the same strength . . . are fighting or=20 quarreling."). Increased power need not be actually present, but = there=20 must be at least a perceived advantage for the bully either = physical or=20 psychological. Id.; Bonnie Bell Carter and Vicky O. = Spencer, "The=20 Fear Factor and Students With Disabilities," 21 Int'l J. of = Special Educ.=20 11, 12 (2006).

The bully-victim=20 connection can be viewed as the opposite of a healthy peer = relationship.=20 Peers are equals on the same social standing, while a bullying = nexus lacks=20 equality of standing. Rodkin, supra, at 33. It is the = inequality,=20 abuse,' and unfairness associated with bullying that makes it = incompatible=20 with what we conceive of as the appropriate "American character."=20 Id.

3. How Bullying Differs Between Boys and Girls

Children of both genders experience the gamut of bullying = behavior.=20 Olweus, supra, at 18. Boys are more likely to bully and to be = bullied=20 than girls. Id. When they do bully, boys are = inclined=20 to engage in direct bullying such as hitting or taunting, while = bullying=20 among girls most often takes the indirect forms of social = exclusion or=20 rejection. Id.; Macklem, supra, at 55; Devoe, = supra,=20 at 4. Boys physically striking one another and girls harassing = with their=20 words has become "an accepted part of peer culture." Rodkin, = supra,=20 at 35. Girls often bully by = slandering a=20 classmate, spreading rumors about her, and manipulating = friendships to=20 harass their target. Olweus, supra, at 19. Because bullying = among=20 girls is most often more subtle, it is underreported. Macklem,=20 supra, 55. Girls know that these actions are "mean," but = they are=20 unlikely to report them as bullying. Id. Such harassment = enables=20 the bully to = have=20 "power over others by controlling relationships and friendships." = Macklem,=20 supra, at 56. This form of bullying brings with it the = ability to=20 damage the victim's reputation or status within the peer group. = Id.=20 It is a behavior among girls developed early. Children are able to = use=20 this method as early as five years old, and as they get older = continue to=20 rely on it. Id. at 57. This may be because it is the most = effective=20 and tolerated form of bullying. Id. "Girls use relational = bullying=20 earlier than boys, which may be due to the more sophisticated = nature of=20 relational aggression." Id. at 60.

4. Why Kids Bully

Children interact in various settings: school, home, church,=20 neighborhoods. Within each there are risk factors. Swearer, = supra,=20 at 3. How children interact in these various backgrounds helps to = define=20 bullying and why children engage in it. Id. "There is no = one single=20 causal factor for bullying." Id.

When asked why certain children are selected for ridicule, = students=20 typically point to external differences such as "obesity, red = hair, an=20 unusual dialect, or wearing glasses." Olweus, supra, at 30. = Research does not support this conclusion. Id. The one = external=20 characteristic that is likely to play a role in whether a male = child will=20 be bullied is lack of physical strength. Id. This does not = hold=20 true for girls, however, who are more likely to bully those who = are=20 actually physically stronger than they are. Macklem, supra, = at 55.=20 Differences among students in areas such as religion, disability, = or=20 ethnicity have the ability to affect the struggle for power among = young=20 people and lead to a student being singled out as an object of = harassment.=20 Rodkin, supra, at 35.

Several other factors play a major role in determining what = makes=20 students more likely to bully. One is = the climate=20 of the school. When a school is not supportive or is negative, = bullying=20 thrives. Swearer, supra, at 5. When teachers downplay = bullying or=20 view it as kids being kids, bullying rates are higher. Macklem,=20 supra, at 27-29.

One study suggests that the aura of the school with respect to = bullying=20 has more to do with whether bullying occurs than the behavior of = the=20 victim. Id. at 26. The school's atmosphere includes the=20 disciplinary system, preventive policies, the architecture of the = building=20 itself, resources, support services, and morale. Id. School = control=20 is at its worst when staff and dominant students model this = behavior,=20 bullying is ignored or reinforced, or it is accepted as normal and = expected. Id.

Parents play a role in determining whether someone is likely to = bully. Bullies = tend to=20 come from homes with "low cohesion, little warmth, absent fathers, = high=20 power needs [that] permit aggressive behavior, physical abuse, = poor family=20 functioning, and authoritarian parenting. [Those who are both bully and = victim] come=20 from families with physical abuse, domestic violence, hostile = mothers,=20 powerless mothers, uninvolved parents, neglect, low warmth, = inconsistent=20 discipline, and negative environment." Swearer, supra, at = 6. See=20 also, Macklem, supra, at 15-20 (discussing the = potential=20 correlation between family environment and bullying.)

Bullying may also be the result of a life cycle where students = believe=20 it is simply their turn to play the abusing role. Kathy Liguori, = Time=20 to Get to the Heart of Bullying, Newsday, March 21, 2011, at = A36=20 (quoting a student who explained he was bullying a younger student = because=20 he thought it was his turn to do so). Children use bullying to = demonstrate=20 to their peer group that they are able to dominate. Olweus, = supra,=20 at 35; Macklem, supra, at 38-39; Rodkin, supra, at = 33. In=20 this way, bullying becomes a social event where the dominance of = the bully is put on = display=20 for an audience. Research demonstrates that in 90 percent of = observed=20 cases, a bully was=20 playing to an audience. Rodkin, supra, at 36. See = also,=20 Deborah A. Pepler et.al., Peer Process in Bullying, in = Handbook=20 of Bullying in Schools: An International Perspective 472 = (2010) ("Even=20 though a vast majority of students report that they find it = unpleasant to=20 report bullying, the vast majority of bullying episodes have an=20 audience."). "Thus the problem of bullying is also a problem of = the=20 unresponsive bystander, whether that bystander is a classmate who = finds=20 the harassment to be funny, or a peer who sits on the sidelines = afraid to=20 get involved, or an educator who sees bullying as just another = Part of=20 growing up." Rodkin, supra, at 36.

For those students who are connected with their social group, = bullying=20 serves as a way to control their peers. Id. at 33. For = those=20 bullies who are excluded by their peers, bullying represents a way = to lash=20 out at a social system that keeps them on the periphery. = Id. A=20 majority of bullies who are marginalized are male; students being=20 controlled by their peer group are evenly split between both = genders.=20 Id. at 34.

These bullies who are integrated within their peer social = groups are=20 easy to ignore or mischaracterize =E2=80=94 leading two = researchers to describe=20 them as "hidden in plain sight." Id. at 36. They have a = variety of=20 friends and possess strengths such as good social skills, = athleticism, and=20 attractiveness. Id. at 34.

Culture is weighty in determining why someone will bully. = Television, video=20 games, and the Internet may be linked to increased aggression and = an=20 increased likelihood for bullying behavior. Macklem, supra, = at=20 21-23. These influences, if they have any affect at all, are not = as strong=20 as other cultural influences such as the neighborhood and the = environment=20 in which the child is raised. Id. at 24.

5. Bullying and Students With Disabilities

The United States Department of Education has defined = disability=20 harassment as "intimidation or abusive behavior based on = disability that=20 creates a hostile environment." U.S. Dep't of Educ., Reminder of=20 Responsibility Under Section 504 of the Rehabilitation Act of 1973 = and=20 Title II of the Americans with Disabilities Act July, 25 2000,=20 available at=20 = http://www2.ed.gov/about/offices/list/ocr/docs/disabharassltr.html(herein= after=20 DOE Reminder of Responsibilities Letter). Studies have shown that = students=20 with a disability, whether it is visible or non-visible, are = subject to=20 increased bullying that is often directed at the disability. John = Young,=20 Ari Ne'eman, and Sara Geiser, Bullying and Students With = Disabilities,=20 in White House Conference on Bullying Prevention, at 74 (March = 10,=20 2011), available at=20 = http://www.stopbullying.gov/references/white_house_conference/index.html.= =20 These students are also at more risk for bullying directed at = factors=20 other than their disability. Id. at 77. Harassing conduct = may take=20 many forms, including verbal acts and name-calling, as well as = nonverbal=20 behavior, such as graphic written statements, or conduct that is=20 physically threatening, harmful, or humiliating. DOE Reminder of=20 Responsibilities Letter, supra.

Overall, students with disabilities are less popular, have = fewer=20 friends, and struggle more with loneliness and peer rejection, = increasing=20 the likelihood they will become the victim of bullying. Carter,=20 supra, at 12-21 (noting a study that indicated child with = even mild=20 learing disorder had fewer friends and another that indicated = those who=20 are bullied are more likely to be alone at play time); Young,=20 supra, at 74 ("Many students with disabilities have = significant=20 social skills challenges, either as a core trait of their = disability or as=20 a result of social isolation due to segregated environments and/or = peer=20 rejection. Such students may be at particular risk for bullying = and=20 victimization."). Students who suffer from learning disabilities = and=20 emotional disorders often lack social awareness, which makes them = more=20 vulnerable. Carter, supra, at 12. Other research concludes = that=20 disabled students themselves are more likely to perpetuate = bullying=20 behavior in response to being bullied. Swearer, supra, at = 4.

Despite an increased focus in recent years on instructing = special=20 education students in general education classrooms, there has not = been a=20 corresponding concern about the way these children integrate = socially in=20 the classroom. Carter, supra, at II. Without healthy social = interaction, students with disabilities become targets of = harassment.

One study found that four factors were predictive of a student = being=20 bullied: 1) receiving extra help in school; 2) being alone at = playtime; 3)=20 having fewer than two friends; and 4) being male. Id. at = 14. While=20 disabled students often receive extra help, they sometimes = struggle to=20 make friends. In one study, learning disabled children reported = that they=20 were threatened, assaulted, or had their possessions taken away = from them=20 with greater frequency than non-learning disabled students. = Id. at=20 18.

Some states have recognized that students who' suffer from a = learning=20 disability are at a greater risk for bullying than their = non-disabled=20 peers and that IEPs should take this into account. In passing a=20 comprehensive law dealing with school bullying, Massachusetts = recently=20 adopted the following requirement:

Whenever the evaluation of the Individualized = Education=20 Program team indicates that the child has a disability that = affects=20 social skills development or that the child is = vulnerable to=20 bullying, harassment or teasing because of the child's=20 disability, the Individualized Education Program shall = address the=20 skills and proficiencies needed to avoid and respond to = bullying,=20 harassment or teasing.

Mass. Senate No. 2404 (2010) (emphasis added).

Massachusetts Advocates for Children sought to determine how = often=20 children along the autism spectrum are harassed at school. = Eighty-eight=20 percent of those parents who responded indicated their child was = bullied=20 while at school. Massachusetts Advocates for Children, = Targeted.=20 Taunted, Tormented: the Bullying of Children with Autism Spectrum = Disorder=20 2 (2009), available at=20 http://www.massadvocates.org/documents/Bullying-Report.pdf. = (finding that=20 verbal harassment was the most common form reported at 88.7 = percent).

F. Effects on Children

If nothing is done to rectify the situation, a bully is likely = to=20 continue bullying and victimization continues. Olweus, = supra, at=20 27. Thus, without a change in the dynamic, a child who suffers at = the=20 hands of a tormentor, is unlikely to be able to escape. And the = effects of=20 bullying are likely to continue unabated. Id. at 28. Each = child can=20 be bully, = victim, or=20 bystander. And with each of those labels comes different, but = often=20 related consequences.

1. Victim

The typical victim of bullying is more anxious and insecure = than her=20 peers. Olweus, supra, at 32. She is more likely to be = quiet,=20 sensitive, and have low self-esteem. Id It is important to = note,=20 however, that not all victims react in the same way. Macklem,=20 supra, at 63.

"Students who are bullied in schools have no escape from = bullying other=20 than feigning illness and staying home which is a very temporary=20 reprieve." Id. at 61. Not surprisingly, being a victim is = most=20 strongly associated with a feeling that one did not belong at = school and=20 an increase in the classroom days missed. Id. at 70; Glew,=20 supra, at 1030. "Feeling as though one did not belong at = school was=20 most strongly associated with being the victim; the odds of = members of=20 this group being a victim were 4.1 times higher than those who = felt they=20 belonged at school" Glew, supra, at 1030. "For students who = felt=20 sad most days, their odds of being a victim were 1.8 times higher = than the=20 odds of being a victim among those who did not feel sad most = days."=20 Id Being sad most days is known to be a precursor to = diagnoses of=20 major depression. Id.

"The take-home message is that elementary school-aged children = . . .=20 who struggle academically are more likely to be victims or bully-victims." = Id. (defining a "bully-victim" = as one who=20 both is the victim of bullying and the bully at = different=20 times). Bullying brings with it a whole host of other issues. It = impairs=20 concentration and leads to poorer academic performance. Id. = Additionally, victims are more likely to engage in antisocial = behavior,=20 have increased health problems, and struggle to adjust = emotionally.=20 See Macklem, supra, at 68 ("Being the victim of = bullying is=20 related to sliding grades, absenteeism, poor academic achievement, = being=20 lonely, exhibiting withdrawal behaviors, difficulty acting = assertively, or=20 being aggressive."); Snyder, supra, at 1881, 1887; Nansel,=20 supra, at 733-34 ("Youth involved in bullying =E2=80=94 as = bully, victim, = or both =E2=80=94=20 consistently reported significantly higher levels of health = problems,=20 poorer emotional adjustment, and poorer school adjustment than=20 non-involved youth. Victims and bully victims = also=20 consistently reported significantly poorer relationships with = classmates=20 than uninvolved youth.")

Victims who are friends of a non-victim peer are less likely to = internalize problems such as feelings of depression and sadness. = Rodkin,=20 supra, at 36. Even children as young as those in first = grade who=20 have one friend and do not suffer in isolation, have fewer = problems than=20 children who have no peer to rely upon. Id. "The victims = are lonely=20 and abandoned at school. As a rule, they do not have a single good = friend=20 in their class." Olweus, supra, at 32. This solitude = perpetuates=20 feelings of shame and unattractiveness, and a belief that the = victim is=20 stupid. Id.

Children with feelings of rejection and Loneliness, withdraw = and have=20 trouble making new friends. Macklem, supra, at 68. "Withdrawal = because a=20 child is rejected by peers places the child at a greater risk [of=20 isolation 1 than is the case for children who prefer to play alone = or who=20 are socially anxious." Id. Victims have lower self-esteem = and begin=20 blaming themselves for what is happening. Id. at 69 = ("Self-esteem=20 drops once a child becomes a victim. . . . They blame themselves = for being=20 victimized, and give in quickly or respond in a disorganized = manner when=20 they are teased or bullied."). "Self-views are unlikely to change = for the=20 better, unless the child who has been victimized becomes more = accepted in=20 the group." Id.

The end of school does not bring an end to the damage done by = years of=20 harassment. As a result of this trapped setting, where harassment = is a=20 repeated occurrence, victims carry lasting emotional and = psychological=20 scars into adulthood: id. at 68 (citing Olweus study that = found=20 those who were bullied for at least three years in grades six = through nine=20 had higher rates of depressive symptoms and lower self-esteem when = they=20 were twenty-three years old.)

2. Bully

Not surprisingly, a bully is likely = to have=20 an aggressive attitude. Olweus, supra, at 34. He will = probably have=20 a positive attitude toward violence and a strong self-image. = Id=20 Typically, he will be of average popularity and often will be = surrounded=20 by a small group of friends who support him. Id at 35.

"The bullies don't do well later on." Macklem, supra, at = 42.=20 Despite his center position in the school social hierarchy, the = impact of=20 being the bully will=20 leave a lasting adverse mark. Perpetrators of bullying report = being sad=20 most days, and have somewhat the same depressive symptoms as = victims.=20 Glew, supra, at 1030 ("Students who felt unsafe and sad = most days=20 had 2.5 and 1.5 times the odds of being a bully . . ."). = Bullies=20 themselves typically have more health problems and a poorer = emotional=20 adjustment than students not involved in bullying. Nansel, = supra,=20 at 733-34; Macklem, supra, at 43; Glew, supra, at = 1031.

Females who bully=20 are more likely to have hostile inter-personal interactions in = their=20 adulthood. Macklem, supra, at 43. They also may have more = trouble=20 adjusting to the role of parent than students who were not = bullies.=20 Id

Bullying behavior may simply be the beginning of an antisocial=20 behavioral pattern that will endure during the tormentor's entire = life.=20 Id at 42. Those students who start bullying early on in = their=20 academic lives are more likely to assault or sexually harass their = classmates in high school. Id As young people continue to = grow up,=20 bullying may be a precursor to violence in dating. Id at = 43.

"Bullies and bully-victims = [but not=20 victims 1 consistently reported significantly more frequent = alcohol use."=20 Nansel, supra, at 734; Olweus, supra, at 35-36 = ("Bullying=20 can also be viewed as a component of a more generally antisocial = and=20 rule-breaking (,conduct disordered') behavior pattern. From this=20 perspective, it is natural to predict that youngsters who are = aggressive=20 and bully = others, run=20 a clearly increased risk of later engaging in other problem = behaviors such=20 as criminality and alcohol abuse. A number of recent studies = confirm their=20 general prediction.") Additionally, bullies are more likely than=20 non-bullies to commit a felony in the future. Olweus, = supra, at 36;=20 Macklem, supra, at 44 (finding in one longitudinal study = that "[b=20 ]ullying was clearly a precursor to later violent behavior for = this group,=20 although, of course, not all bullies would persist along this = pathway=20 toward violence"). In one study, 60 percent of boys identified as = bullies=20 in grades six to nine had at least one conviction by age 24, and = 35 to 40=20 percent of them had three or more convictions. Olweus, = supra, at=20 36. This is a four-fold increase in the level of criminality over = that of=20 non-bullies. Victims had an average or below-average chance of = engaging in=20 future criminality:' Id.

"Chronic bullying has a cost for society as well as for the = individual=20 and, of course, the victim." Macklem, supra, at 43. The = children=20 who they harass are left to try to move on after years of = uncontroverted=20 harassment. The bullies themselves, through their own actions, are = then=20 more likely to require social services, educational services, and = criminal=20 justice services. Id.

3. Bystander

Bullies typically operate in front of a crowd, and the students = who act=20 as onlookers do not escape the effects of bullying. These = students, who=20 often watch, or even step away from the bullying actions, are more = likely=20 to feel powerless and to be fearful at school. Macklem, = supra, at=20 91-92. Bystanders feel as though they are incapable, of = controlling the=20 situation, and thus are not themselves safe. Id. at 91.

Students may go along with the group in the bullying behavior = out of=20 fear that if they were to speak up they might lose their space = within the=20 peer group and open themselves up to be the next victim. = Id. As=20 time goes on, if bulling persists at a high level, bystanders = become=20 desensitized and are less willing to step in to prevent the = harassment.=20 Id.

III. Law

A. Summary Judgment Standard

Summary judgment in an IDEA case is "mote than looking into = disputed=20 issues of fact; rather, it is a `pragmatic procedural mechanism' = for=20 reviewing administrative decisions." T.P.=20 v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d = Cir.=20 2009). A district court must base its decisions on the = preponderance=20 of the evidence and give due weight to the prior administrative=20 proceedings. Id.

While the parties may call an IDEA action a motion for summary=20 judgment, it is in substance an appeal of an administrative = determination.=20 Lilibask=20 v. Conn. Dep'f of Educ., 397 F.3d 77, 83 n.3 (2d Cir. = 2005). The=20 court is not ruling in a typical summary judgment setting, but = instead it=20 is determining whether the administrative record, combined with = additional=20 evidence taken, establishes compliance with the IDEA. Wall=20 v. Mattituck-Cutchogue Sch. Dist., 945 F.Supp. 501, 508 = (E.D.N.Y.=20 1996). ("[S]ummary judgment appears to be the most pragmatic=20 procedural mechanism in the Federal Rules for resolving IDEA = actions=20 where, as here, in addition to the record at the administrative = level,=20 `additional evidence' is submitted to the court. The inquiry, = however, is=20 not directed to discerning whether there are disputed issues of = fact, but=20 rather, whether the administrative record, together with any = additional=20 evidence, establishes that there has been compliance with IDEA's = processes=20 and that the child's educational needs have been appropriately=20 addressed.").

B. Obligations of Schools to Remedy Bullying

1. Due Process

The central question raised by this case is what actions, if = any, a=20 school is required to take to stop bullying of disabled students.=20 Generally, the Due Process Clause of the Constitution does not = require=20 that the state "protect the life, liberty, and property of its = citizens=20 against invasion by private actors." Deshaney=20 v. Winnebago County Dep't o/Soc. Services, 489 U.S. 189, 195=20 (1989). The Due Process Clause forbids the state from itself = depriving=20 citizens of those rights, but it does not require the state to = provide=20 aid, even when it may be necessary. Id. at 195-96. ("The = Clause is=20 phrased as a limitation of the State's power to act, not as a = guarantee of=20 certain minimal levels of safety and security. . . . Its purpose = was to=20 protect the people from the State, not to ensure that the state = protected=20 them from each other.").

Nevertheless, there are limited circumstances where the state = has=20 created a danger or has a special relationship with an individual, = when it=20 will be required to protect a person's right to personal = inviolability=20 from private or public abuse. See Estelle=20 v. Gamble, 429 U.S. 97 (1976) (holding that a state is = required to=20 provide medical care to incarcerated individuals); Youngberg=20 v. Romeo, 457 U.S. 307 (1982) (holding that the state must = provide=20 involuntarily committed mental patients with services that insure = their=20 reasonable safety). See also, Yin=20 Jin Gang v. City o/New York, 996 F.2d 522, 533-35 (2d Cir. = 1993)=20 (explaining the difference between claims that arise out of a = special=20 relationship and those that arise when the state has created the = danger).=20 If it removes an individual's ability to care for himself, "it is = only=20 just that the state be required to care for him." Deshaney,=20 489 U.S. at 198-99 (quoting Estelle,=20 429 U.S. at 103-104).

The Court of Appeals for the Second Circuit apparently has not = squarely=20 been presented with a claim that by failing to prevent harm to a = student=20 in their care, school officials have violated substantive due = process.=20 DiStiso v. Wolcott, No. 3:05-cv-1910, 2010 WL 4365670, at = *20 (D.=20 Conn. Oct. 19, 2010); Bungert=20 v. City of Shelton, No. 3:02-CV-01291, 2005 WL 2663054, at *4 = (D.=20 Conn. Oct. 14, 2005). Where such claims have been brought = elsewhere,=20 they have not been successful. See, e.g. Hasenfaus=20 v. LaJeunesse, 175 F.3d 68, 71-74 (1st Cir. 1999) = (rejecting due=20 process claim and finding a lack of a constitutional duty to = protect.=20 Noting that the court was "loath to conclude now and forever that, = inaction, by a school toward a pupil could never give rise to a = due=20 process violation" . . . perhaps in narrow circumstances there = might be a=20 `specific' duty."); Wyke v, Polk County Sch Bd., 129 = F.3d=20 560, 569 (11th Cir. 1997) (relying on Deshaney to find that = a=20 school had no duty to protect a student in its care).

Where an elementary school student is required to attend = school, and=20 truancy laws forcing attendance are in effect, that student may be = "owed=20 some duty of care." Pagano v, Massapequa Pub, = Schs"=20 714 F.Supp. 641, 643 (E.D.N.Y. 1989) ("We consider elementary = school=20 students who are required to attend school, the truancy laws still = being=20 in effect, to be owed some duty of care by defendants which = mayor=20 may not rise to the level required. . . ."). (emphasis in = original).

The Court of Appeals for the Second Circuit has considered = involuntary=20 custody sufficient for a finding of a special relationship. Matican=20 v. City of New York, 524 F.3d 151, 156 (2d Cir. 2008) = ("Our own=20 opinions have also focused on involuntary custody as the linchpin = of any=20 special relationship exception.").

It is uncertain whether under the Due Process Clause, a public = school=20 has the duty to protect an elementary school student from bullying = where=20 truancy laws are in effect. This question need not be answered now = since=20 students have a right to be secure in school and schools have a = duty to=20 prevent students from harassment under IDEA and Title IX.

2. Guaranteed Right to Be Protected From Abuse in School

Students can find a right to "be secure and to be let alone" in = Supreme=20 Court school First Amendment jurisprudence. Tinker=20 v. Des Moines Independent School District, 393 U.S. 503=20 (1969); see also, Daniel B. Weddle, You're On = Your=20 Own, Kid. . . . But You Shouldn`t Be, 44 Val. U. L. Rev 1083, = 1090=20 (2010). Tinker addressed the question of when a school = could=20 discipline a student for private expression. In assessing the = claim, the=20 Supreme Court ruled that the proper test is whether the student's=20 expression created a material or substantial disruption of school = work or=20 infringed on a student's right to be let alone. 393=20 U.S. at 508, 512-13.

First Amendment cases have held that "there is no = constitutional right=20 to be a bully." Sypniewski=20 v. Warren Hills Reg.l Bd. of Educ., 307 F.3d 243, 264 (3d Cir. = 2002). "Intimidation of one student by another, including = intimidation=20 by name calling, is the kind of behavior school authorities are = expected=20 to control or prevent." Id. One First Amendment case found = that the=20 right to be let alone includes the right to be free from physical=20 intrusions as well as psychological attacks. Harper=20 v. Poway Unified Sch. Dist., 445 F.3d 1166, 1178 (9th Cir. = 2006),=20 vacated as moot, 549=20 U.S. 1262 (2007) ("Public school students who may be injured = by verbal=20 assaults on the basis of a core identifying characteristic such as = race,=20 religion, or sexual orientation, have a right to be free from such = attacks=20 while on school campuses. As Tinker clearly states, = students have=20 the right to be secure and to be let alone. Being secure involves = not only=20 freedom from physical assaults but from psychological attacks that = cause=20 young people to question their self-worth and their rightful place = in=20 society.") (internal quotations and citation omitted).

3. Title IX of the Civil Rights Act and Individuals with = Disability=20 Education Act (IDEA)

Title IX, IDEA, and Section 504 of the Rehabilitation Act place = upon=20 schools the affirmative duty to address bullying and harassment. = The=20 United States Department of Education has been advising schools of = their=20 obligations, and possible liability under these statutes, for at = least ten=20 years. DOE Reminder of Responsibilities Leter, supra. = "Where the=20 institution learns that disability harassment may have occurred, = the=20 institution must investigate the incident(s) promptly and respond=20 appropriately." Id.

Section 504 of the Rehabilitation Act is distinct from the = Individuals=20 with Disability Education Act, but both statutes require the same = outcome=20 =E2=80=94 recipients of federal funds must provide students with a = free,=20 appropriate public education. See 29 U.S.C. =C2=A7701(c); = McAdams=20 v. Ed. ofEduc. Of Rocky Point Union Free Sch. Dist., 216 F. = Supp.2d=20 86, 93 (E.D.N.Y. 2002) ("the ADA and the Rehabilitation Act = claims=20 seek relief for the alleged failure to provide [the student] with=20 appropriate educational services. The IDEA is precisely intended = to remedy=20 these types of claims.").

Proof of a violation of Section 504 requires a plaintiff to = prove: I) a=20 disability; 2) that the defendant was subject to the relevant = statute; and=20 3) that plaintiff was denied an opportunity to benefit = scholastically=20 because of the disability. See E.H. v. Ed. ofEduc. of = Shenendehowa=20 Cent. Sch. Dist., No. 08-4857-cv, 2009 WL 3326627 at * 4 (2d = Cir. Oct.=20 16, 2009). Guidance provided under Section 504 is applicable to = IDEA.

C. IDEA and Guarantees of a Free and Appropriate = Education

1. General Requirements

IDEA provides procedural and substantive safeguards for special = education children with respect to the education programs tailored = for=20 them. The requirements in New York are well established. The = precise=20 scheme governing students with special needs in New York was = recently=20 summarized as follows:

"Under the IDEA, states receiving federal funds are = required=20 to provide `all children with disabilities' a `free appropriate = public=20 education [(,FAPE')].'" Gagliardo=20 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. = 2007)=20 (quoting 20 U.S.C. =C2=A7 1412(a)(I)(A)); Bd.=20 of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 = L.Ed.2d=20 690 (1982)). "To meet these requirements, a school = district's=20 program must provide special education and related services = tailored to=20 meet the unique needs of a particular child, and be reasonably=20 calculated to enable the child to receive educational benefits." = Id. (quoting Walczak=20 v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. = 1998) (internal quotation marks omitted)). "Such services = must be=20 administered according to an [Individualized Education Plan = ('IEP')],=20 which school districts must implement annually." Id. The = IEP is=20 "[t]he centerpiece of the IDEA's educational delivery system." = D.D.=20 ex rel. V.D. v. NY. City Bd. of Ed., 465 F.3d 503, 507 (2d = Cir.=20 2006). It is "a written statement that `sets out, `the = child's=20 present educational performance, establishes annual and = short-term=20 objectives for improvements in that performance, and describes = the=20 specially designed instruction and services that will enable the = child=20 to meet those objectives.'" Id. at 508 (quoting Honig=20 v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686=20 (1988)). "The IEP must provide `special education and = related=20 services tailored to meet the unique needs of a particular = child, and be=20 reasonably calculated to enable the child to receive educational = benefits.'" A.D. & MD. ex rel. E.D. v. Bd. of Ed., = No. 08=20 Civ. 9424, 2010 WL 447371, at *2 (S.D.N.Y. Feb. 9, 2010) = (quoting Gagliardo,=20 489 F.3d at 107). Substantively, the IEP must be "likely to = produce=20 progress, not regression, and [must] afford[] the student with = an=20 opportunity greater than mere trivial advancement." TP.=20 ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d = 247, 254=20 (2d CiT. 2009).
New York "has assigned responsibility for developing=20 appropriate IEPs to local Committees on Special Education = (,CSE'), the=20 members of which are appointed by school boards or the trustees = of=20 school districts." Gagliardo, 489 F.3d a at 107 (quoting = Walczak,=20 142 F.3d at 123). "In developing a particular child's IEP, a = CSE is=20 required to consider four factors: (I) academic achievement and = learning=20 characteristics, (2) social development, (3) physical = development, and=20 (4) managerial or behavioral needs." Id. at 107-08. = "[T]he CSE=20 must also be mindful of the IDEA's strong preference for=20 `mainstreaming,' or educating children with disabilities to the = maximum=20 extent appropriate alongside their non-disabled peers." = Id. at=20 108.
"New York parents who disagree with their child's IEP = may=20 challenge it in an `impartial due process hearing' before an = [impartial=20 hearing officer (,IHO') 1 appointed by the local board of = education."=20 Id (citations omitted). The IHO's decision may be = appealed to a=20 State Review' Officer' ("SRO"), "and the SRO's decision in turn = may be=20 challenged in either state or federal court." Id The = district=20 court may "receive the records of the administrative = proceedings" and=20 also "hear additional evidence." 20 U.S.C. =C2=A7 1415(i)(2)(C). = It conducts=20 a "modified de novo" review of the administrative proceedings, = MN=20 v. NY City Dep't of Educ., ___ F.Supp.2d ___, No. 09 Civ. = 20, 2010=20 WL 1244555, at *4 (S.D.N.Y. Mar. 25, 2010), and must base = its=20 determination "on the preponderance of the evidence," =C2=A7 = 1415(i)(2)(C).=20 The court has "broad authority to grant `appropriate' relief, = including=20 reimbursement for the cost of private special education when a = school=20 district fails to provide a FAPE." Forest=20 Grove Sch. Dist. v. TA., ___ U.S. ___, 129 S.Ct. = 2484, 2492,=20 174 L.Ed.2d 168 (2009); see Sch.=20 Comm. of Burlington v. Dep't of Ed of Mass., 471 U.S. 359, = 369, 105=20 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (holding that IDEA = authorizes=20 reimbursement).

MH and E.K. v. New York City Department of Education, = 712 F.=20 Supp. 2d 125, 130-131 (S.D.N.Y. 2010); MS. v. New York City = Dep't=20 ofEduc.; 734 F. Supp. 2d 271,273-74 (E.D.N.Y. 2010).

Parents have a right to be involved in the decision-making = process=20 regarding their child's IEP. Specifically, they must be given an=20 opportunity to participate in meetings regarding the education of = their=20 child and must be part of a group that makes decisions about that=20 educational placement. 20 U.S.C. =C2=A7 1414(e); 34 C.F.R. =C2=A7 = 300.501 (b)(J)(i);=20 34 C.F.R. =C2=A7 300.501(c)(J). Educational placement refers to = the=20 individualized education plan developed and not a specific = location or=20 program. K.L.A. v. Windham Southeast Supervisory Union, No. = 08-1225-cv, 2010 WL 1193082, at *2 (2d Cir. Mar. 30, 2010).

IDEA has four purposes: 1) assure that children with = disabilities have=20 a free appropriate education, which emphasizes special education = and=20 related services designed to meet their unique needs; 2) assure = that the=20 rights of children with disabilities and their parents are = protected; 3)=20 assist states and local governments in providing education of all = children=20 with disabilities; and 4) assess and assure the effectiveness of = efforts=20 to educate all children with disabilities. See P.L. 94-142 = (1975);=20 Us. Dep't of Educ., Thirty-five Years of Progress in Educating = Children=20 With Disabilities Through IDEA 5 (2010) (discussing the = purpose of=20 statue when it was passed); 34 C.F.R. =C2=A7 300.1.

If the state fails to provide a free and appropriate public = education,=20 parents may enroll their child in a private school and seek = reimbursement.=20 Frank=20 G. v. Bd of Educ., 459 F.3d 356, 363 (2d Cir. 2006). When = an IEP=20 is inappropriate, the parents of the child have the burden of = proving=20 their alternative placement was appropriate. Id The = question posed=20 is whether the private placement is reasonably calculated to = enable a=20 child to receive an appropriate educational benefit, which was not = accorded in the public schools. Id at 364.

2. Exhaustion of Administrative Remedy

Before a district court may exercise subject matter = jurisdiction over=20 an IDEA case, a plaintiff must first exhaust the administrative = process.=20 See 20 U.S.C. =C2=A71415(f); Smith v. Guilford Bd of = Educ., No.=20 06-1094-cv, 2007 WL 1725512, at *5 (2d Cir. June 14, 2007); Polera=20 v. Bd of Educ., 288 F.3d 478, 483 (2d Cir. 2002). A = plaintiff need=20 not pursue administrative remedies if doing so would be futile, or = if the=20 administrative process would not provide an appropriate remedy.=20 Id

Here, administrative remedies have been exhausted.

L.K.'s parents filed an administrative appeal of the June 4, = 2008 IEP=20 to an independent hearing officer arguing that the placement of = L.K. in a=20 CTT classroom at P.S. 6 was inappropriate. The IHO found that the = school=20 had complied with both the procedural and substantive requirements = of the=20 IDEA. Impartial Hearing Officer Op. at 26-31, July 21, 2009. The = hearing=20 officer determined that the IEP was reasonably calculated to = enable the=20 student to receive educational benefits and thus denied the = appeal. It=20 found that the issue of bullying did not bear on the = appropriateness of=20 the education program and related services, but rather on whether = the=20 particular location was appropriate =E2=80=94 and thus touched = upon a different=20 issue. Id. at 27. ("In this case, the issue of bullying is = really a=20 separate issue since it does not go to the heart of whether the = CTT=20 program and related services recommended on the IEP were = appropriate. At=20 best, it places in question the location of where such educational = programs and related services should be provided to the = child.")

L.K. next appealed the decision of the IHO to the State Review = Officer.=20 The SRO affirmed the IHO ruling, finding that the educational plan = was=20 designed to confer appropriate educational benefits on L.K. State = Review=20 Officer Op. at 24, Oct. 22, 2009.

I find that the hearing record demonstrates that the=20 district's recommended fourth grade CTT class included many of = the=20 programmatic elements that the student's private neurologist,=20 school-based SEIT, and private speech-language pathologist = testified=20 were necessary for the student to learn and that the district's=20 recommended program was designed to confer educational benefits = to the=20 student. . . .

Id.

The hearing officer passingly referred to the issue of bullying = in his=20 decision. SRO Op. at 20, 24-26. When bullying was discussed the = focus was=20 on how the student had been progressing academically despite these = claims=20 of bullying. Id. at 24-26. Ultimately, the SRO determined = that=20 bullying did not deprive L. K. of a FAPE, though no specific test = appears=20 to have been used in arriving at this conclusion. Id. at = 26.

Although the student's school-based SEIT testified = that=20 following incidents of inappropriate school interactions in the=20 schoolyard and classroom, the student's demeanor would decline = and she=20 then had a harder time attending to class tasks and would focus = on what=20 happened, I find that the hearing record does not support a = finding that=20 these incidents rendered the recommended CTT program for the = 2008-2009=20 school year inappropriate to meet the student's = needs.

Id.

D. Bullying and IDEA

While the general requirements of IDEA are well established, = the=20 question of whether bullying can be grounds for finding that a = school=20 district deprived a student of a free and appropriate education is = an open=20 question in the' Second Circuit. There is, however, some = indication from=20 this circuit's court of appeals that it might be willing to extend = FAPE=20 protections to bullying. See Smith v. Guilford Board of = Education,=20 No. 06-1094-cv, 2007 WL 1725512 (2d Cir. June 14, 2007). Three = other=20 circuit courts of appeals have expressly noted that bullying can = be a=20 basis for denial of a FAPE, but a common framework under which to = analyze=20 the issue has not emerged. See ML. v, Fed. Way. Sch. = Dist.,=20 394 F.3d. 634 (9th Cir. 2005); Shore=20 Regional High Sch. Bd of Ed v. P.S., 381 F.3d 194 (3d Cir. = 2004);=20 Charlie F. ex reI. Neil=20 F. v. Bd of Educ., 98 F.3d 989, 993 (7th Cir. 1996). = See=20 also, Note, "Deliberately Different: Bullying as a Denial of a = Free=20 Appropriate Public Education Under the Individuals with = Disabilities=20 Education Act," 43 Ga. L. Rev. 191 (2008).

1. Court of Appeals for the Second Circuit

In Smith v. Guilford Board of Education, the Second = Circuit=20 Court of Appeals vacated the district court's granting of a motion = for=20 summary judgment in a FAPE case where the allegations involved a=20 diminutive student being bullied. No. 06-1094-cv, 2007 WL 1725512 = (2d Cir.=20 June 14, 2007). The court reasoned that the district court had = "failed to=20 consider whether Plaintiffs sufficiently alleged a violation of = the=20 student's statutory right to a FAPE; instead, the court = considered=20 his right to a FAPE only to the extent that it might constitute a = property=20 interest protected by procedural due process." Id. at *4. = Though=20 the student did suffer from attention deficit hyperactive = disorder, his=20 complaint alleged that the bullying was the result of his = diminutive size,=20 and not his learning disability. Id. at *5. The court found = that it=20 was unable to determine whether and to what extent liability may = arise out=20 of behavior unrelated to a student's disability because the = student's=20 education plan was not before it. Id. It suggested that = liability=20 might be founded on disability. Id. ("The underlying events = described in the amended complaint . . . surround [the student's]=20 diminutive stature, not his ADHD. Because [the student's] = individual=20 education plan is not before us on this appeal from the granting = of a Rule=20 12(c) motion, we are unable to determine whether and to what = extent=20 liability may arise from conduct unrelated to the triggering = disability=20 under the IDEA.").

2. Court of Appeals for the Third Circuit

In finding that a student was denied a free and appropriate = public=20 education due to bullying, the Court of Appeals for the Third = Circuit did=20 not provide the rubric under which it analyzed the plaintiff's = claims.=20 See Shore=20 Regional High Sch. Ed. of Ed. v. P.S., 381 F.3d 194 (3d Cir.=20 2004). Instead it looked at the alleged conduct to find that = the lack=20 of a school environment free from harassment was grounds for = finding a=20 denial of FAPE. P.S.,=20 381 F.3d at 197, 201-202.

P.S. was socially isolated from his classmates and the victim = of=20 relentless physical and verbal abuse. Id. at 195. The focus = of=20 ridicule was P.S.'s perceived effeminate nature and lack of = athletic=20 prowess. Id. A long list of derogatory words were directed = to P.S.=20 Many times the words turned into violence. Id. When new = students=20 came to school, they were told not to associate with him. When = P.S. sat=20 down for lunch at a table, he quickly found himself sitting alone. = Id. The school administration was informed, but nothing = happened.=20 Ultimately, after an IEP was developed that would have sent P.S. = back to=20 school with the same bullies who had tormented him, P.S.'s parents = sent=20 him to another school and sought reimbursement for their expenses. = Id at 196.

The appellate court credited an administrative law judge's = assessment=20 that P.S. was deprived of a FAPE because of legitimate and real = fears that=20 harassment would continue in the future. Id. at 197. = Conclusive=20 testimony at the administrative hearing established that the = school "would=20 not have been able to remedy the problem because, among other = things, the=20 same bullies would be present at [the school]; bullies generally = do not=20 stop on their own; even `intensive interventions' are often not = effective=20 when they are not begun until after a course of harassment has = continued=20 for some time. . . . "Id. at 201. In reaching its = conclusion, the=20 court recognized, but did not consider, knowledge of the school = district.=20 It did note the improved educational performance of P.S. upon = switching=20 schools, but it did not expressly factor this into its decision. = Instead,=20 as a basis for reversing the district court, it relied on a lack = of due=20 weight given to expert testimony. Id at 199.

Some commentators have pointed to the P.S. case as the = model for=20 the IDEA being used to protect children with disabilities from = harassment=20 in their schools. Paul M. Secunda, At the Crossroads of Title = IX and a=20 New "IDEA"; Why Bullying Need Not be "A Normal Part of Growing Up = "for=20 Special Education Children, 12 Duke J. Gender L. & Pol'y 1 = (2005).=20 It is a model in need of a rule under which to analyze future = claims.

3. Court of Appeals for the Seventh Circuit

The Seventh Circuit Court of Appeals found that "at least in = principle"=20 harassment can be a denial of a FAPE. Charlie F, 98=20 F.3d at 993. The case involved a teacher who invited students = to list=20 their complaints about another student, which led to his loss of=20 confidence, self-esteem, and fistfights. Id. at 990. The = court was=20 unable to delve deeper into the merits of the claims because the = parents=20 bringing the case on behalf of the child had not exhausted their=20 administrative remedies. Id. at 993. ("Both the genesis and = the=20 manifestations of the problem are educational; the IDEA offers=20 comprehensive educational solutions; we conclude, therefore, that = at least=20 in principle relief is available under the IDEA. . . . The case is = remanded with instructions to dismiss for failure to use the = IDEA's=20 administrative remedies.").

4. Court of Appeals for the Ninth Circuit

The Court of Appeals for the Ninth Circuit has developed a = test, which=20 asks whether a teacher was deliberately indifferent to bullying = and the=20 abuse so severe that a child can derive no educational = benefit.=20 ML., 394 F.3d at 650. ("If a teacher is deliberately = indifferent to=20 teasing of a disabled child and the abuse is so severe that the = child=20 can derive no benefit from the services that he or she is = offered by=20 the school district, the child has been denied a FAPE.") (emphasis = added).=20 The court based its reasoning on the gender discrimination case of = Davis=20 v. Monroe County Board of Education, 526 U.S. 629 (1999), = but=20 seemingly modified Davis by requiring a finding that = no=20 educational benefit was received. In Davis, the test = required a=20 showing that harassment bars access to an educational opportunity = or=20 benefit. Id. See also Part III. D.5. a., infra for a = discussion of Davis.

The student involved in ML. only remained in his = elementary=20 school for five days, which failed to give the school a chance to = remedy=20 the teasing. Id. at 651. Additionally, the court found that = the=20 plaintiff had not demonstrated that the bullying interfered with = his=20 education. Id. (describing testimony that the student was = "happy as=20 a little lark").

This test is too rigid and too narrow. It fails to acknowledge = that a=20 student may have her academic success stunted as a result of = harassment,=20 but still achieve some success. A student who received some = educational=20 benefit despite bullying might have received more if not faced = with the=20 serious obstacle of peer harassment.

5. Possible Legal Standards

In recent years, stories of bullying have led to clilims under = state=20 and federal law with limited success. See Susan L. Pollet,=20 Bullying in Our Schools: Is there any Legal Help in = Sight?,=20 N.Y.L.J. 4, col. 4, (May 3, 2007). Students have unsuccessfully = brought=20 cases under Title IX, substantive due process, equal protection, = and state=20 tort law. See Sacks and Salem, supra; Daniel B. = Weddle,=20 Bullying in Schools: The Disconnect Between Empirical = Research=20 and Constitutional, Statutory, and Tort Duties to Supervise, = 77 Temp.=20 L. Rev. 641 (2004). Part of the problem has been the way courts = have=20 looked at these issues as incident based rather than as = institutional=20 deficits:

Current legal theories and approaches to bullying = suffer=20 from a common flaw: they view bullying from an incident-based=20 perspective rather than from a school culture perspective. They = focus on=20 what school officials knew about a specific bullying incident = rather=20 than addressing what school officials have done to ensure a = culture=20 where bullying is unacceptable to everyone in the school. A = serious gap=20 exists between what educational research reveals about bullying=20 prevention and what the law defines as adequate supervision. As = a=20 result, victims are left without protection in schools they must = attend;=20 and then, under both state and federal law, they are left = without=20 redress when their tormenters inflict serious and long-lasting=20 injury.

Weddle, supra, at 658-59.

Because the federal appellate courts have not articulated a = uniform=20 test, legal theories used in the context of Title IX, substantive = due=20 process and equal protection must be examined to test their = applicability=20 in determining if bullying can be, a basis for a denial of a = FAPE.

a. Title IX of the Civil Rights Act

Students' claims of sexual harassment under Title IX against = schools=20 are analyzed under a test developed in Davis=20 v. Monroe, which requires an examination of the = basis for=20 the harassment, its severity and whether the school had actual = notice. Davis,=20 526 U.S. at 640-53. A plaintiff is required to prove I) that = she was=20 harassed due to her gender; 2) that it was severe, pervasive and=20 objectively offensive so that it altered her education; 3) the = school=20 district had actual notice of the gender-based harassment; and 4) = the=20 school was deliberately indifferent to the harassment. Id. See = also,=20 Doe=20 v. East Haven Bd. of Educ., No. 05-2709-cv, 2006 WL 2918949, = at *1 (2d=20 Cir. Oct. 10, 2006).

At least two district courts have modified this test and = applied it to=20 situations where students are being abused in school because of = their=20 disabilities. This modified test requires an inquiry into whether: = 1) the=20 plaintiff is an individual with a disability who was harassed = because of=20 that disability; 2) the harassment was sufficiently severe or = pervasive=20 that it altered the condition of his or her education and created = an=20 abusive environment; 3) the defendant knew about the harassment; = and 4)=20 the defendant was deliberately indifferent to the harassment. = See=20 Werth=20 v. Bd. of Dirs.of Pub. Schs., 472 F. Supp.2d 1113, 1127 (E.D. = Wisc.=20 2007); K.M=20 v. Hyde Park Cen. Sch. Dist., 381 F. Supp. 2d 343, 358-60 = (S.D.N.Y.=20 2005). See also Secunda, supra, at 14.

Deliberate indifference requires a finding that the state = entity had=20 actual knowledge of the harassment and failed to respond = adequately. Hayut=20 v. State Univ. ofN y., 352 F.3d 733, 750 (2d. Cir. 2003).=20 ("[Plaintiff] must also provide evidence that one or more of the=20 individual defendants, who admittedly are vested with authority to = address=20 the alleged discrimination and to institute corrective measures on = [plaintiffs] behalf, had actual knowledge of the discrimination = and failed=20 adequately to respond.") (internal quotations and citations = omitted). In=20 applying Davis, the Court of Appeals for the Second Circuit = has=20 stated that a school's failure to respond to sexual harassment = must be=20 "clearly unreasonable in light of known circumstances." D. = T. v.=20 Summers Cent. Sch. Dist., No. 08-6207-cv, 2009 WL 3316419, = at *2=20 (2d Cir. Oct. 15, 2009) (quoting Davis,=20 526 U.S. at 648). The deliberate indifference of the school = must cause=20 students to be harassed or make them more vulnerable to such = conduct. D.=20 T., 2009 WL 3316419, at *2.

The principles behind this Title IX test are applicable to the = case at=20 hand. But they must be interpreted to comport with IDEA, a = distinct=20 statute designed to protect student learning opportunities. = Reliance on=20 the expert guidance provided to school districts by the Federal = Department=20 of Education is appropriate. See references to United = States=20 Department of Education directives in Part III.D.5.d., = infra.

b. Due Process Under Section 1983

The right to be free from unjustified intructions on personal = security=20 is a historic liberty protected by the Due Process Clause of the=20 Fourteenth Amendment. Ingrham=20 v. Wright, 430 U.S. 651, 673 (1977); Matican=20 v. City of New York, 524 F.3d 151, 155 (2d. Cir. 2008) = ("Among the=20 liberties protected by the Due Process Clause of the Fourteenth = Amendment=20 is a right to be free from . . . unjustified intrusions on = personal=20 security.") (internal quotations and citation omitted). This right = must be=20 examined in light of DeShaney, which does not require the=20 government to protect against intrusions from third parties absent = a=20 special relationship or state created danger. See DeShaney,=20 489 U.S. at 196; Part III.B. 1., supra.

Merely proving an obligation is not enough to state a claim = under=20 Section 1983, but it is a predicate for doing so. The plaintiff = must also=20 prove that the behavior at issue was "so egregious, so outrageous, = that it=20 may fairly be said to shock the contemporary consciousness." Matican,=20 524 F.3d at 155 (quoting County=20 of Scar amen to v. Lewis, 523 U.S. 833, 448 n.8 (1998)). = This=20 rigorous standard assures that the Constitution is not demoted to = the=20 equivalent of tort law. Id.

In Smith, a student was persistently harassed and = bullied by=20 other students. 2007 WL 1725512 at * 1. The school board knew = about some=20 or all of the abuse. The Court of Appeals for the Second Circuit = described=20 this type of abuse as "highly unfortunate," but not "so brutal and = offensive to human dignity as to shock the consciousness." = Id. at 2=20 (quoting Smith=20 v. Half Hollow Hills Cent. Sch. Dist, 298 F.3d 198, 173 (2d = Cir.=20 2002)). Most importantly, while deciding Smith the = court=20 distinguished a due process property interest from an IDEA = statutory=20 interest. Id. at 4. To rely on the due process test would = make=20 indistinguishable L.K.'s property interest in education and her = statutory=20 rights to a free appropriate education =E2=80=94 a notion the = Court of Appeals for=20 the Second Circuit rejected.

c. Equal Protection Under Section 1983

The Equal Protection Clause requires that similarly situated = people be=20 treated alike. Prestopnik v. Whelan, No. 06-3186-cv, 2007 = WL=20 2389678, at *2 (2d Cir. Aug. 17, 2007). Such a claim may be the = result of=20 membership in a protected class or result from an individual being = a=20 member of a class of one. Id. To succeed on an equal = protection=20 claim in the harassment context, a student must show that he was = afforded=20 a lower level of protection as opposed to other students, and that = this=20 lower level of protection was the result of his disability. Nabozny=20 v. Podlesny, 92 F.3d 446, 454 (7th Cir. 1996) (finding a=20 reasonable fact-finder could determine that a student was denied = Equal=20 Protection due to harassment based on his gender and = homosexuality);=20 Weddle, supra, at 670-72 (referencing cases where students = have=20 brought Equal Protection claims as a result of bullying and = finding that=20 students often are unable to demonstrate that they are part of an=20 identifiable class or that inaction was the result of membership = in that=20 class).

A student seeking to succeed on a claim of violation of the = Equal=20 Protection Clause against a school district must show that the = harassment=20 was the result of a government custom, policy, or practice.=20 Fitzgeraldv. Barstable Sch. Com., 129 S. Ct. 788, 797 = (2009)=20 (distinguishing sexual harassment claims brought against a school = under=20 Title IX of the Civil Rights Act and similar claims brought = against the=20 school under Section 1983 for Equal Protection).

Applying this test to bullying under the IDEA suffers from = inadequacies=20 similar to those in applying the test developed under Due Process. = To=20 adopt it would take an IDEA violation outside of the realm of its=20 statutory protections and into that of more difficult to prove=20 constitutional violations.

d. Applicable Standard

The applicable standard should take into account administrative = advice=20 that has long been given to schools in how to apply the IDEA and = other=20 child protective legislation. By giving weight to this guidance, = the=20 expectations of the parties are not upset, and precise notice of = expected=20 conduct is provided. To that end, under IDEA the question to be = asked is=20 whether school personnel was deliberately indifferent to, or = failed to=20 take reasonable steps to prevent bullying that substantially = restricted a=20 child with learning disabilities in her educational = opportunities.

This standard does not impose a new obligation on schools. For = at least=20 ten years the Department of Education has informed schools that = they are=20 legally obligated to comply with it.

A school is responsible for addressing harassment = incidents=20 about which it knows or reasonably should have known. In some=20 situations, harassment may be in plain sight, widespread or = well-Known=20 to students and staff, such as harassment occurring in hallways, = during=20 academic or physical education classes, during extracurricular=20 activities, at recess, on a school bus, or through graffiti in = public=20 areas. In these cases, the obvious signs of the harassment are=20 sufficient to put the school on notice. In other situations, the = school=20 may become aware of misconduct, triggering an investigation that = could=20 lead to the discovery of additional incidents that, taken = together, may=20 constitute a hostile environment.

U.S. Dep't of Educ., Office of Civil Rights, Dear: Colleague = Letter:=20 Bullying and Harassment, at 2 (Oct. 26, 2010), available at = = http://www2.ed.gov/about/offices/listJocr/letters/colleague-201010.pdf=20 (hereinafter DOE Bullying and Harassment Letter).

Earlier, the Department of Education had advised schools that = "[w]hen=20 disability harassment limits or denies a student's ability to = participate=20 in or benefit from an educational institution's programs or = activities,=20 the institution must respond effectively. Where the institution = learns=20 that disability harassment may have occurred, the institution must = investigate the incident promptly and respond appropriately." DOE = Reminder=20 of Responsibilities Letter, supra.

Conduct need not be outrageous to fit within the category of = harassment=20 that rises to a level of deprivation of rights of a disabled = student. The=20 conduct must, however, be sufficiently severe, persistent, or = pervasive=20 that it creates a hostile environment. Id. Where a student = is=20 verbally abused repeatedly and suffers other indignities such as = having=20 his property taken or is struck by his fellow students, and a = school does=20 nothing to discipline the offending students despite its knowledge = that=20 the actions have occurred, the student has been deprived of = substantial=20 educational opportunities. Id.

The rule to be applied is as follows: When responding to = bullying=20 incidents, which may affect the opportunities of a special = education=20 student to obtain an appropriate education, a school must take = prompt and=20 appropriate action. It must investigate if the harassment is = reported to=20 have occurred. If harassment is found to have occurred, the school = must=20 take appropriate steps to prevent it in the future. These duties = of a=20 school exist even if the misconduct is covered by its = anti-bullying=20 policy, and regardless of whether the student has complained, = asked the=20 school to take action, or identified the harassment as a form of=20 discrimination. Compare, DOE Bullying and Harassment = Letter,=20 supra, to Werth v. Ed. of Dirs.of Pub. Schs., 472 F. = Supp.2d 1113,=20 1127 (E.D. Wisc. 2007); K.M=20 v. Hyde Park Cen. Sch. Dist., 381 F. Supp. 2d 343, 358-60 = (S.D.N.Y.=20 2005) (citing Davis,=20 526 U.S. at 640-53).

It is not necessary to show that the bullying prevented all = opportunity=20 for an appropriate education, but only that it is likely to affect = the=20 opportunity of the student for an appropriate education. The = bullying need=20 not be a reaction to or related to a particular disability.

In its October 2010 Bullying and Harassment letter, the = Department of=20 Education provides an illustration of when a school is required to = act,=20 and what type of response is required. It is useful in applying = the above=20 test. A hypothetical student with a disability is verbally teased = by other=20 students and on one occasion is tackled, hit with a binder, and = has his=20 personal affects thrown in the garbage. DOE Bullying and = Harassment Letter=20 at 8-9. The student approaches teachers and guidance counselors = who=20 suggest counselling, but they do nothing to punish the bullies. = Id.=20 The bullying then continues and the student, who was once doing = well,=20 begins showing the signs of victimization at the hands of other = children.=20 Id. at 9. The school in this hypothetical responded in part = to the=20 bullying, in offering the student counseling to deal with what he = was=20 going through. But it did not respond adequately. It did not fully = investigate the bullying or punish those who were perpetrating the = harassment. In this example, the school deprived the student of = his=20 educational benefit.

IV. Application of Law to Facts

T.K. has = provided=20 evidence of each element of the test. First, her parents have = produced=20 witnesses who have testified that L.K., a disabled student, was = isolated=20 and the victim of harassment from her peers. The school denies = these=20 allegations. The IHO erred in finding that bullying went to = placement and=20 not to the adequacy of a program, and in making judgment about the = veracity of the witnesses' accounts. A fact finder Could conclude = on this=20 record that L.K. was the victim of bullying.

Second, the parents allege that they sent letters and tried to = speak to=20 the principal about the issue. There is evidence on both sides. = The=20 principal acknowledged knowing about an incident of bullying but = cannot=20 recall what she did to investigate it. She admits receiving = letters that=20 reveal incidents of bullying. She acknowledges asking L.K.'s = parents to=20 leave a meeting designed to discuss concerns about bullying. This = meeting=20 was never rescheduled. Aides who helped L.K. state that they tried = to=20 bring the bullying to the attention of their superiors but were = ignored.=20 No determination was made by the IHO about whether school = personnel had=20 notice of substantial bullying.

Third, L.K. presents evidence that could reasonably be = construed as=20 proving the school's failing to take reasonable steps to address = the=20 harassment. The school has not provided documentation that it = either=20 investigated claims of bullying or took steps to remedy the = conduct. This=20 evidence was not touched upon by the fact finder.

Fourth, L.K.'s parents state that she withdrew emotionally, did = not=20 want to go to school, and suffered social scars as a result of the = bullying. The school district refutes this by pointing to academic = progress for L.K. Whether the harassment rose to a level that = deprived=20 L.K. of an educational benefit was not decided in the = administrative=20 hearings. A student is not required to prove that she was denied = all=20 educational benefit. She may not be deprived of her entire = educational=20 benefit, but still may suffer adverse educational effects as a = result of=20 bullying. See DOE Reminder of Responsibilities Letter, = supra=20 ("Harassment of a student based on disability may decrease = the=20 student's ability to benefit from his or her education and amount = to a=20 denial of FAPE."). To be denied educational benefit a student need = not=20 regress, but need only have her educational benefit adversely = affected.=20 Id.

Academic growth is not an all-or-nothing proposition. There are = levels=20 of progress. A child may achieve substantial educational gains = despite=20 harassment, and yet she still may have been seriously hindered. = Growth may=20 be stunted providing an education below the level contemplated by = IDEA. In=20 New York, IEP's are required to give children more than an = opportunity for=20 just "trivial advancement." Mamaroneck=20 Union Free Sch. Dist., 554 F.3d at 254. The law recognizes = that a=20 student can grow academically, but still be denied the educational = benefit=20 that is guaranteed by IDEA. Where bullying reaches a level where a = student=20 is substantially restricted in learing opportunities she has been = deprived=20 a FAPE. Whether bullying rose to this level is a question for the = fact=20 finder.

The suggestion that the rule applied here will open the = floodgates to=20 litigation since bullying is so pervasive in our schools is = rejected.=20 First, this test requires that a student have a disability since = recovery=20 is under the IDEA. Second, this test merely requires schools do = what the=20 Department of Education has told them to do for years. Application = of the=20 test is unlikely to substantially increase the cost of special=20 education.

These are the same concerns faced when the Supreme Court found = in=20 Davis that a school can be responsible for failing to = remedy sexual=20 harassment. There, the Court acknowledged the burdens placed on = school=20 administrators, but stated "the standard set out here is = sufficiently=20 flexible to account both for the level of disciplinary authority = available=20 to the school and for the potential liability arising from certain = forms=20 of disciplinary action." Davis,=20 526 U.S. at 649.

The IHO and the SRO both touched upon the issue of bullying, = but they=20 did not apply the proper standard. The IDEA gives a court broad = authority=20 to grant appropriate relief. See Forest=20 Grove Sch. Dist., 129 S.Ct. at 2492. The motion of = defendant for=20 summary judgment dismissing the case is denied.

V. Predetermination

There was no error in the IHO and SRO rejection of L.K.'s = contention=20 that her IEP was predetermined, and her parents did not have an=20 opportunity to take part in the creation of her plan. L.K.'s = parents did=20 have a chance to take part in the special education committee = meeting that=20 developed her IEP. The transcript of this meeting shows that there = was a=20 meaningful discussion about what was the best plan for L. K. = Experts=20 stated their professional opinions about what was needed for L.K. = to have=20 the best chance of developing academically. See Pis. Ex. J=20 (eighty-one page transcript of the discussion that took place = during=20 L.K.'s IEP meeting). Changes to L.K.'s plan did in fact take place = during=20 this meeting. At the request OK's parents, it was during this = meeting that=20 she was reclassified from autistic to learning disabled. Pis. Ex. = J at=20 72.

Defendant's motion to dismiss plaintiff's claim for = predetermination=20 without an opportunity for her parents to be heard is granted.

VI. Conclusion

The motion of the defendant for summary judgment is granted in = part and=20 denied in part.

SO ORDERED.

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