January 25, 2016
By Susan Edelman
A learning-disabled third-grader who was cruelly bullied by classmates at highly rated PS 6 on the Upper East Side was deprived of her educational rights — and the city must pay for her tuition at a private school, a top appellate court has ruled.
The landmark decision by the US Court of Appeals for the Second Circuit found that Principal Lauren Fontana “stonewalled” the girl’s parents, refusing to discuss the bullying or address it in her special-education plan.
The three-member appellate panel unanimously upheld a ruling by federal Judge Jack Weinstein that the city Department of Education violated the US Individuals with Disabilities Education Act.
“I think it’s an important decision, not only for my family, but for all children with special needs who have faced these issues before,” the girl’s dad, Tracy Klestadt, a bankruptcy lawyer, told The Post.
His daughter, then 10 in a class mixed with general-ed and special-ed students, was taunted and abused daily during the 2007-08 school year, while teachers did little to stop it, the court found.
One student pinched the girl — whom The Post is not identifying — hard enough to cause a bruise and stomped on her toes.
Classmates ostracized the little girl, once refusing to touch a pencil she had used, saying it had “cooties.”
Others tripped her, laughed at her, and called her “ugly,” “smelly,” “stupid” and “fat.”
A teacher found a crude drawing demeaning the child, and tossed it in the trash. But a special-education aide retrieved it and showed it to her parents.
The girl repeatedly told her parents about the abuse. She dreaded going to class, they said, brought dolls for support, and cried when she came home. She lost her ability to function in class and focus on homework.
Fontana refused to discuss the bullying and the “stonewalling continued” while the school developed the girl’s Individual Education Plan, the court found.
The parents finally pulled their daughter out of PS 6. They enrolled her in the private Summit School in Queens, for children with learning disabilities, and sued for reimbursement of the $28,000 tuition. Even though the DOE itself would be reimbursed by the state, it refused.
During the seven-year court battle, Klestadt said he forked out about $280,000 in legal fees, which he will now ask the courts to make the city pay.
Klestadt said the ordeal at PS 6 partly led them to move to Long Island, where the school district willingly agreed to pay for the girl’s tuition at Summit. Now a senior at age 17, she has “flourished.”
The parents’ lawyer, Gary Mayerson, said the ruling sets a precedent.
“Students have the right to expect they can attend school free from physical or psychological abuse,” he said. “And parents can expect that if they raise or communicate concerns about bullying, that those concerns will be acted upon in a timely manner and addressed.”
Nick Paolucci, a spokesman for the city Law Department, said the court “found a procedural error.” He added, “The DOE has no tolerance for bullying or discrimination and has policies to address this.”