Spring 2016
The Mayerson Report 


In This Issue
A Piece of My Mind
Our Landmark "Bullying" Decision
Our Challenge to Westhampton's Discriminatory "Separate But Equal" Policy
The District Court's Decision in S.B.
Upcoming Speaking Engagements and Interviews
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 Jean Marie Brescia 



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Doris Fernandez


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Sean LeVan

Randy Richardson

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A Piece of My Mind ...
Mayerson & Associates Sets  National Precedent With Landmark "Bullying" Win --- What The Second Circuit's T.K. Decision Really Means For Students And Their Parents
Once again, Mayerson & Associates is ahead of its time, establishing legal precedents and protections that are helping countless families. More than 65 reported federal court decisions attest to this fact.  I am proud to report that the Second Circuit's recent landmark decision in T.K. v. NYCDOE (discussed below) can now be added to the list, this time addressing the problem of "bullying."
As professionals who have represented more than a thousand families in more than thirty states, we believed that the T.K. matter had to be brought to change the law. At the time, the IDEA statute did not recognize any relationship between bullying and the federal right to a "free and appropriate public education." We knew, however, that students with special needs were at least three to four times more likely to be at risk to be bullied than "typical" students. And in terms of an adverse impact, we saw firsthand that bullying had the power to "shut down" and disempower students, rendering them unavailable for learning.
The Second Circuit's decision in T.K. is ushering in a new era of transparency, accountability and attitudinal change. The decision stands as a beacon, telling all concerned that the scourge of bullying is finally being kicked to the curb. Students with autism and other special needs now have the right to expect to be able to attend school free from physical or psychological abuse. Parents, on the other hand, now have the right to expect that if they communicate concerns about bullying to teachers or administrators, those concerns must be investigated and addressed in a timely and meaningful manner. Otherwise, the school district can expect serious financial and other consequences.  At its essence, the T.K. decision represents a giant step forward in protecting our children. 
  The Second Circuit's Decision in T.K.
Click Here  To See March 22, 2016
PBS Interview With Student's Father
In a 21-page Decision  (click here for decision)  that is resonating nationwide, a three-judge panel of the Second Circuit Court of Appeals has ruled that the "severe bullying" of L.K., a New York City public school (P.S. 6) student, over the course of a two-year time frame, deprived L.K. of a "free and appropriate public education," thus entitling L.K.'s parents to tuition reimbursement for the private, state-approved special education school that L.K. was then forced to transfer to when her parents' repeated complaints of bullying fell on deaf ears. In so doing, the Court affirmed earlier decisions to the same effect rendered by United States District Court Judge Jack Weinstein, now 94.
As the Court observed, "L.K.'s teachers appear to have done little to stop the bullying [and] neither intervened nor punished the students who bullied her." The Court further observed that the bullying made L.K. "unavailable to learn" and thus, adversely affected her academic performance. To add insult to injury, "plaintiffs' several attempts to raise the issue of bullying with L.K.'s school were consistently rebuffed." The Court ruled that the City's school administrators had "stonewalled" the student's parents. The Second Circuit thus ruled that "[the NYC Department of Education] deprived L.K. of a FAPE by violating her parents' procedural right to participate in the development of the IEP."
L.K.'s case attracted the attention and support of the United States Department of Justice. Having emerged from all the proceedings as the "prevailing party," L.K. and her parents have filed an application for attorneys' fees and costs. We hope that you are inspired by the Court's decision as we are. 
Our Federal Court Challenge to Westhampton's Discriminatory "Separate But Equal" Policy

More than 60 years ago, in  Brown v. Board of Education , the Unites States Supreme Court struck down "separate but equal" as constituting unlawful discrimination. 

On December 18, 2015, our office filed a Complaint in the United States District Court for the Eastern District of New York alleging that the Westhampton Beach School District, a "receiving" school district for the Remsenburg School District, unlawfully discriminates against more seriously impaired special needs students who require "alternate assessments." The Complaint alleges that, for decades, Westhampton has refused to educate "alternately assessed" students with special needs, and instead, has diverted them to other school districts. Our suit seeks to prove that Westhampton's policy and practice is discriminatory and violates the Americans with Disabilities Act (ADA), and other related civil rights statutes. Click on the link below to see a copy of the Complaint: Complaint
Federal Court Reverses SRO On Student's Need for Intensive, One-To-One Instruction
It takes a compelling evidentiary presentation and record to prove that a student needs intensive, one-to-one instruction in order to learn. In our case, S.B. v. NYCDOE, in a March 30 decision, the federal district court reversed the State Review Officer to find that a student attending a dual program at the McCarton Center and Children's Academy required precisely such a program. As the district court reasoned:

"In short, the SRO's conclusion that S.B. does not require "1:1 support at all times in order to benefit from instruction" is not supported by the weight of the evidence. (SRO Decision at 23). R.E. 694 F.3d at 193-94 (2d Cir. 2012) ("Because the SRO's conclusion was against the weight of the evidence and thus flawed, deference to it is not warranted. But having reviewed the record, we conclude that the IHO's decision was sufficiently supported, and we therefore defer to the IHO's conclusion that the IEP was not reasonably calculated to create educational benefit for [the student].") Accordingly, the SRO's decision does not deserve deference. This Court agrees with the well-reasoned determination of the IHO that S.B. requires 1:1 instruction. Because the 6:1:1 class ratio specified in the IEP constitutes a substantive violation, the DOE denied S.B. a FAPE."

Gary Mayerson's Upcoming Speaking Engagements and Interviews 

Date: April 1, 2016
Time: 1:00 p.m.
Place: Yale Medical School
Topic: "The Capacity Of Individuals With Disabilities to Tell The Truth"
Date: April 7, 2016
Time: 7:00 p.m.
Place: Steven Wise Synogogue ( 30 W. 68th Street)   
Topic: Housing For The Adult Population And Related School Supports
Date: April 26, 2016
Time: 6:30 p.m.
Place: New York Law School
Topic: School Safety-The Passage of Avonte's Law
Date: [Anticipated first week of April]
Placement: The Economist
Topic: The Availability of Autism Resources In the U.S. As Compared To Other Nations

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