Thursday, April 28, 2011
Judge Jack Weinstein recently issued a major decision concerning a case of first impression. Namely, whether a disabled student can be denied a Free and Appropriate Public Education because of bullying. In a lengthly decision which extensively reviews the IDEA, Judge Weinstein concludes, yes and he refuses to follow the New York IHO decision as well as the New York SRO decision below. TK v. NYC Department of Education, Index No. 10-CV-00752 (E.D.N.Y. April 28, 2011) (available here), (free registration required).
The plaintiff was a 12 year old with autism. The key part of the decision is the court's holding that "[A]n effective and appropriate education may be negated by child bullying." Judge Jack B. Weinstein also stated: "When a school fails to take reasonable steps to prevent such objectionable harassment of a student, it has denied her an educational benefit protected by statute."
Law review commentary on this novel issue would be most welcome.
Mitchell H. Rubinstein