An interesting case in Pennsylvania, which made it all the way up to the US District Court there, stands for the proposition that fears about bullying are insufficient to prove that there was a lack of FAPE (Free Appropriate Public Education).  The plaintiffs in this case (J.  E. et al. v. Boyertown Area School District, 10 – 2958 (E.D. Pa., 2011)), made a unilateral placement of the student at a private school that they believed would provide the child with a FAPE.  The student had been diagnosed with Asperger’s Syndrome.  They claimed that the placement proposed by the school district would subject their child to bullying.  The student had previously been subjected to bullying at a previous school district placement, but not at the placement that was then being proposed by the school district.  The parents were simply fearful of potential bullying at the school district’s proposed placement.  The court determined that a fear of bullying is not sufficient to prove a lack of FAPE.  “The Hearing Officer concluded that the AS program could appropriately deal with any bullying that occurred and that this concern was only prospective. There is no reason for the Court to find otherwise. J.E. may face bullying, but a fair appropriate public education does not require that the District be able to prove that a student will not face future bullying at a placement, as this is impossible.”

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