Bryant v. New York State Education Dept.
Filing
OPINION, affirmed, by DJ, RCW, RJS, D.J., FILED.[696587] [10-4029]
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10-4029-cv
Bryant v. N.Y. State Educ. Dep’t
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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2011
(Argued: October 21, 2011
Decided: August 20, 2012)
Docket No. 10-4029-cv
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CHARLES BRYANT, individually and as next friend
and guardian of D.B., AVA GEORGE, individually
and as next friend and guardian of B.G., CHANIN
HOUSTON-JOSEPHAT, individually and as next
friend and guardian of A.J., LISA HUGHES,
individually and as next friend and guardian of
J.R., CARMEN PENA, individually and as next
friend and guardian of G.T., VIVIAN PRESLEY,
individually and as next friend and guardian of
D.P., JAMIE TAM, individually and as next
friend and guardian of S.T.,
PLAINTIFFS-APPELLANTS,
- v. NEW YORK STATE EDUCATION DEPARTMENT, DAVID M.
STEINER, in his capacity as Commissioner of the
New York State Education Department, THE NEW
YORK STATE BOARD OF REGENTS,
DEFENDANTS-APPELLEES.
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Before:
1
JACOBS, Chief Judge, WESLEY, Circuit
Judge, and SULLIVAN, District Judge.1
The Honorable Richard J. Sullivan, United States
District Judge for the Southern District of New York,
sitting by designation.
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1
Plaintiffs--the parents and/or legal guardians of seven
2
children with disabilities, who bring this suit on behalf of
3
themselves and the children--appeal the judgment of the
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United States District Court for the Northern District of
5
New York (Sharpe, J.), dismissing their suit for failure to
6
state a claim upon which relief can be granted, and denying
7
their motion for a preliminary injunction.
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equitable relief preventing New York from enforcing a
9
prohibition on the use of aversive interventions, which are
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negative consequences or stimuli administered if a child’s
11
disruptive behavior impedes the child’s education.
12
Plaintiffs seek
We conclude that prohibiting one possible method of
13
dealing with disorders in behavior, such as aversive
14
intervention, does not undermine a child’s right to an
15
individualized, free and appropriate public education, and
16
that New York’s law represents the State’s considered
17
judgment regarding the education and safety of its children
18
that is consistent with federal education policy and the
19
United States Constitution.
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The judgment of the district court is affirmed.
Judge
21
Sullivan has filed a separate opinion in which he concurs in
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part and in part dissents.
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Michael P. Flammia, Eckert Seamans
Cherin & Mellott, LLC, Boston, MA.
(Jeffrey J. Sherrin, O’Connell and
Aronowitz, P.C., Albany, NY, and
Meredith H. Savitt, Law Office of
Meredith Savitt, P.C., Delmar, NY, on
the brief), for PlaintiffsAppellants.
Andrew B. Ayers, Assistant Solicitor
General (Barbara D. Underwood,
Solicitor General, Benjamin N.
Gutman, Deputy Solicitor General, on
the brief), for Eric T. Schneiderman,
Attorney General of the State of New
York, for Defendants-Appellees.
DENNIS JACOBS, Chief Judge:
Plaintiffs--the parents and/or legal guardians of seven
21
children with disabilities, who bring this suit on behalf of
22
themselves and the children--appeal a judgment of the United
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States District Court for the Northern District of New York
24
(Sharpe, J.), dismissing their suit for failure to state a
25
claim upon which relief can be granted, and denying their
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motion for a preliminary injunction.
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equitable relief preventing the New York Board of Regents
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(“Board of Regents”), the New York State Education
29
Department (“Education Department”), and the Commissioner of
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the Education Department (David M. Steiner, in his official
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capacity) from enforcing a prohibition on the use of
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aversive interventions.
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consequences or stimuli administered to children who exhibit
Plaintiffs seek
Aversive interventions are negative
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problematic and disruptive behavior that impedes their
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education.
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Plaintiffs contend that New York’s prohibition of
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aversive interventions undermines their children’s right to
5
a free and appropriate public education (“FAPE”), which is
6
guaranteed by federal law.
7
prohibition of one possible method of reducing the
8
consequences of a child’s behavioral disability does not
9
undermine the child’s right to a FAPE or prevent
We conclude that the State’s
10
administrators from enacting an individualized plan for the
11
child’s education.
12
Plaintiffs also contend that the State’s prohibition
13
violates the children’s constitutional rights and the
14
Rehabilitation Act of 1973 because the prohibition is
15
arbitrary and oppressive, the product of gross misjudgment
16
by State policymakers, and an infringement on the
17
individualized assessment and treatment of students with
18
disabilities.
19
considered judgment by the State of New York regarding the
20
education and safety of its children that is consistent with
21
federal education policy and the United States Constitution.
22
We conclude that New York’s law represents a
Affirmed.
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BACKGROUND
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I
3
The Individuals with Disabilities Education Act (“the
4
IDEA”) “is the most recent Congressional enactment in ‘an
5
ambitious federal effort to promote the education of
6
handicapped children.’”
7
Dist., 142 F.3d 119, 122 (2d. Cir. 1998) (quoting Bd. of
8
Educ. v. Rowley, 458 U.S. 176, 179 (1982) (interpreting the
9
Education for All Handicapped Children Act, which was
Walczak v. Fla. Union Free Sch.
10
subsequently amended and renamed the IDEA)).
The IDEA
11
provides federal funds to states that “develop plans to
12
assure all children with disabilities the right to a free
13
appropriate public education.”
14
marks omitted).
15
at least annually, an individualized education program
16
(“IEP”)2 detailing “special education and related services”
17
tailored for the particular needs of the child, 20 U.S.C.
18
§ 1401(9), that are “reasonably calculated to enable the
Id. (internal quotation
The IDEA requires that each child receive,
2
The IEP is “a written statement that [inter alia]
‘sets out the child’s present educational performance,
establishes annual and short-term objectives for
improvements in that performance, and describes the
specially designed instruction and services that will enable
the child to meet those objectives.’” D.D. v. N.Y.C. Bd. of
Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (quoting Honig v.
Doe, 484 U.S. 305, 311 (1988)); accord 20 U.S.C.
§ 1414(d)(1)(A) (defining IEP).
5
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child to receive educational benefits,” Rowley, 458 U.S. at
2
207.
3
4
5
II
The facts are taken from the well-pleaded factual
6
allegations of the complaint, Bell Atl. Corp. v. Twombly,
7
550 U.S. 544, 555, 570 (2007), and from information of which
8
this Court can take judicial notice, see Taylor v. Vt. Dep’t
9
of Educ., 313 F.3d 768, 776 (2d Cir. 2002) (determining that
10
a reviewing court can consider the complaint, documents
11
attached to the complaint, documents incorporated by
12
reference in the complaint, and public records when
13
considering a motion to dismiss).
14
Plaintiffs are the parents or legal guardians of seven
15
children, each of whom has a long history of severe behavior
16
problems, including aggressive, self-injurious, destructive,
17
and non-compliant behavior.
18
cause the children to engage in behaviors such as: yanking
19
out their own teeth, attempting to stab themselves, tying
20
ropes around their necks, scratching themselves, banging
21
their heads on walls and other things, and assaulting
22
teachers and staff members.
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their education and development.
24
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These behavioral disabilities
These behaviors have impeded
Plaintiffs have tried a number of measures to treat and
educate these children, including: special education, day
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and residential programs, psychiatric hospitalization,
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counseling, physical restraints, paraprofessional support,
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home instruction, sensory tents, positive-only programs of
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behavioral modification, and anti-psychotic and other
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psychotropic medications.
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children continue to pose physical risks to themselves and
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others.
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schools and private institutions or confined in psychiatric
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wards and detention centers.
None has been successful, and the
As a result, they have been foreclosed from public
Each child’s IEP now suggests
10
they receive residential special-education services.
11
Accordingly, each child is enrolled at the Judge Rotenburg
12
Educational Center, Inc. (“JRC”) in Massachusetts.
13
JRC provides residential, educational, and behavioral
14
services to individuals with severe behavioral disorders,
15
and is often a placement of last resort for those who have
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proven resistant to other forms of psychological and
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psychiatric treatment.
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children are permitted to attend under a New York law that
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allows New York students with disabilities who are unable to
20
obtain an appropriate education in-state to attend an out-
21
of-state facility that, in the judgment of the Education
22
Department, can meet the needs of the child.
23
§§ 4407(1)(a), 4401(2)(f), (h).
Although JRC is out of state, the
N.Y. Educ. Law
24
At JRC, each student starts with a non-intrusive,
25
positive-only, treatment program in which students receive
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rewards (e.g., treats, video games, music, field trips) for
2
maintaining positive behaviors, including learning.
3
complaint alleges that these positive-only measures are
4
effective for most of JRC’s school-age students.
5
students, JRC may also employ negative-consequence
6
interventions known as aversives or aversive interventions.
7
The
For other
According to the complaint, aversive interventions have
8
been used to deal with behaviors that pose significant
9
dangers to the student or others, or significantly interfere
10
with a student’s education, development, or appropriate
11
behavior.
12
thereby enable the student to receive an appropriate
13
education, to enjoy safety and well-being, and to develop
14
basic skills for learning and daily living.
15
alleges that aversive interventions have helped many JRC
16
students to participate in activities with peers and helped
17
some to attend college, join the armed forces, obtain
18
employment, and go on extended family visits.
19
The techniques aim to stop the behavior and
The complaint
The types of aversive interventions used by JRC include
20
helmets with safeguards that prevent removal, manual and
21
mechanical restraints, and food-control programs.
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according to the complaint, JRC’s “principal form” of
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aversive intervention is electric skin shock, in which a
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low-level electrical current is applied to a small area of
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the student’s skin (usually an arm or a leg).
8
But,
The shock
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lasts approximately two seconds, and is administered, on
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average, less than once a week.
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severe problematic behavior decreases with this regime, thus
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alleviating an impediment to academic progress.
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side effects include temporary redness or marking, which
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clears up within a few minutes (or a few days at most), and
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a rare occurrence of blistering.
The complaint alleges that
Possible
8
Clinicians have opined that it is necessary to
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supplement these children’s ongoing educational and
10
treatment programs with aversives.
However, none of the
11
children has yet received an IEP that authorizes such
12
interventions.
13
14
15
III
The Education Department, which is governed by the
16
Board of Regents, regulates educational services and
17
programs for New York residents.
18
§ 4403(3).
19
for the protection of children in residential care from
20
abuse and maltreatment,” id. § 4403(11), and periodically
21
inspects, reports on, and “make[s] recommendations
22
concerning instructional programs or special services for
23
all children with handicapping conditions who reside in or
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attend any . . . state financed . . . social service
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facilities, youth facilities, health facilities, [or] mental
See N.Y. Educ. Law
It promulgates “regulations concerning standards
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health, mental retardation and developmental disabilities
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facilities,” id. § 4403(4).
3
In 2006, the Board of Regents promulgated a regulation
4
prohibiting schools, including “approved out-of-state day or
5
residential schools” (such as JRC), from using aversive
6
interventions.
7
§ 19.5(b)(1) (2012).
8
intervention” as an intervention “intended to induce pain or
9
discomfort to a student for the purpose of eliminating or
N.Y. Comp. Codes R. & Regs. tit. 8,
The regulation defines an “aversive
10
reducing maladaptive behaviors,” such as the contingent
11
application of painful, intrusive, or similar stimuli or
12
activity.
Id. § 19.5(b)(2).3
3
In full, the regulation defines “aversive
intervention” as
an intervention that is intended to induce pain or
discomfort to a student for the purpose of eliminating
or reducing maladaptive behaviors, including such
interventions as:
(i)
contingent application of noxious,
painful, intrusive stimuli or activities;
strangling, shoving, deep muscle squeezes
or other similar stimuli;
(ii)
any form of noxious, painful or intrusive
spray, inhalant or tastes;
(iii)
contingent food programs that include the
denial or delay of the provision of meals
or intentionally altering staple food or
drink in order to make it distasteful;
(iv)
movement limitation used as a punishment,
including but not limited to helmets and
mechanical restraint devices; or
(v)
other stimuli or actions similar to the
interventions described in subparagraphs
(i) through (iv) of this paragraph.
N.Y. Comp. Codes R. & Regs. tit. 8, § 19.5(b)(2) (2012).
10
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A child-specific exemption allows pre-approved
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aversives to be administered in exceptional cases in the
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three school years following the enactment of the
4
prohibition (2006-2007, 2007-2008, 2008-2009), and a
5
grandfather clause provides “that a student whose IEP
6
includes the use of aversive interventions as of June 30,
7
2009”--three years after the enactment of the prohibition--
8
“may be granted a child-specific exception in each
9
subsequent school year . . . .”
10
11
N.Y. Comp. Codes R. & Regs.
tit. 8, § 200.22(e).
Neither exception applies to the children in the
12
instant case because the initial three years of limited
13
aversive interventions has now ended, and none of these
14
children had an IEP that authorized aversives prior to June
15
30, 2009.
16
17
DISCUSSION
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Plaintiffs raised below and press on appeal numerous
19
challenges to New York’s prohibition of aversive
20
interventions and seek declaratory and injunctive relief
21
preventing its enforcement.
22
contend that New York’s regulation violates: [1] the IDEA;
23
[2] the Rehabilitation Act of 1973; and [3] the Due Process
24
and Equal Protection clauses of the United States
25
Constitution.
Specifically, Plaintiffs
11
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The district court granted Defendants’ motion to
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dismiss all those claims for relief.
We review that
3
decision de novo, “construing the complaint liberally,
4
accepting all factual allegations in the complaint as true,
5
and drawing all reasonable inferences in the plaintiff[s’]
6
favor.”
7
(2d Cir. 2002).
8
complaint must be assumed true for the purposes of a motion
9
to dismiss, this principle is “inapplicable to legal
Chambers v. Time Warner, Inc., 282 F.3d 147, 152
Although all factual allegations in the
10
conclusions” and “‘formulaic recitation[s] of the elements
11
of a cause of action.’”
12
678 (2d Cir. 2009) (quoting Twombly, 550 U.S. at 555).
13
survive a motion to dismiss, a complaint must allege “enough
14
facts” to “raise a right to relief above the speculative
15
level” and “state a claim to relief that is plausible.”
16
Twombly, 550 U.S. at 555, 570; accord id. at 555 n.3.
17
Ashcroft v. Iqbal, 556 U.S. 662,
To
In addition to dismissing Plaintiffs’ complaint under
18
Rule 12(b)(6), the district court also denied Plaintiffs’
19
motion for a preliminary injunction.
20
for abuse of discretion.
21
Union, 542 U.S. 656, 664 (2004); Malletier v. Burlington
22
Coat Factory Warehouse Corp., 426 F.3d 532, 537 (2d Cir.
23
2005).
24
decision rests on an error of law . . . or a clearly
25
erroneous factual finding, or (2) its decision--though not
We review that ruling
Ashcroft v. Am. Civil Liberties
“A district court abuses its discretion when (1) its
12
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necessarily the product of a legal error or a clearly
2
erroneous factual finding--cannot be located within the
3
range of permissible decisions.”
4
York, 626 F.3d 47, 51 (2d Cir. 2010) (internal quotation
5
marks omitted; ellipsis in original).
Mullins v. City of New
6
7
8
9
I
A standing question has arisen.
While this appeal was
pending, the Massachusetts Department of Developmental
10
Services promulgated a regulation that governs JRC (as a
11
school in the Commonwealth), and bars it from using some
12
aversives on these children and others.
13
The Massachusetts regulation, 115 Mass. Code Regs.
14
5.14 (2012), prohibits the use of certain aversive
15
interventions--including “contingent application of physical
16
contact aversive stimuli such as spanking, slapping, hitting
17
or contingent skin shock,” id. 5.14(3)(d)1.; see also id.
18
5.14(3)(d)--unless the child had a court-approved treatment
19
permitting the use of aversives before September 1, 2011
20
(which none of the children at issue in this case had).
21
Massachusetts regulation permits other aversive
22
interventions--including “[c]ontingent application of
23
unpleasant sensory stimuli such as loud noises, bad tastes,
24
bad odors, or other stimuli which elicit a startle
25
response,” and “delay of [a] meal for a period not exceeding
13
The
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30 minutes,” id. 5.14(3)(c)1.c.-d.--if they are contained in
2
the student’s written behavior modification plan and if that
3
behavior modification plan meets certain special
4
requirements.
5
See id. 5.14(4)(c).
Because certain aversive interventions, such as the
6
electric skin shock--the “principal form” of aversive
7
intervention used by JRC--are no longer permitted in
8
Massachusetts, Defendants contend that Plaintiffs’ claims
9
are moot.
10
We disagree.
First, the question is not one of mootness.
New York’s
11
prohibition on aversive interventions remains in effect and
12
applicable to these children.
13
controversy is not moot.
14
v. Town of Orchard Park, 356 F.3d 365, 375-76 (2d Cir. 2004)
15
(explaining that, in the case of a statute or regulation, a
16
claim usually becomes moot when a statute or regulation is
17
amended).
18
Accordingly, the case and
Cf. Lamar Advertising of Penn, LLC
The question is whether Plaintiffs retain standing, for
19
which: [1] “the plaintiff must have suffered an injury in
20
fact” that is both “concrete and particularized” and “actual
21
or imminent, not conjectural or hypothetical”; [2] “there
22
must be a causal connection between the injury and the
23
conduct complained of” such that the injury is “fairly
24
traceable to the challenged action of the defendant”; and
25
[3] “it must be likely, as opposed to merely speculative,
14
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that the injury will be redressed by a favorable decision.”
2
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
3
(internal quotation marks, citations, brackets, and ellipsis
4
omitted).
5
foreclosed by Massachusetts’ new regulation.
6
Defendants contend that redressability has been
We conclude that a decision favorable to Plaintiffs
7
would likely redress their injury for several reasons.
8
First, if Plaintiffs prevailed, the children could receive
9
the aversives that the new Massachusetts regulation
10
continues to permit; whereas the New York regulation
11
prohibits all aversives for these children, the
12
Massachusetts regulation does not.
13
R. & Regs. tit. 8, § 19.5(b), with 115 Mass. Code Regs.
14
5.14(3)(c), (3)(d).
15
“principal form” of aversive interventions used by JRC; but
16
if Plaintiffs prevail, the children may be able to receive
17
other aversives at JRC.
Compare N.Y. Comp. Codes
True, electric skin shocks are the
18
Second, Defendants erroneously assume that if these
19
children are unable to receive aversive interventions at
20
JRC, they will be unable to obtain aversives anywhere.
21
complaint seeks an injunction preventing Defendants’ from
22
enforcing New York’s prohibition on aversives and a
23
declaration that the prohibition violates the U.S.
24
Constitution and federal law.
The
The prayer for relief is not
25
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limited to treatment at JRC or in Massachusetts; JRC is not
2
mentioned in the prayer for relief.
3
As all the parties concede, no facility other than JRC
4
is currently treating New York children with aversive
5
interventions.
6
largely bans the use of aversive interventions.
7
York’s prohibition was declared invalid, it is “likely” that
8
other facilities in New York would provide aversives.
9
Lujan, 504 U.S. at 561 (internal quotation marks omitted).
But this is hardly surprising since New York
If New
See
10
It is also likely that these children could go to a facility
11
in another state.
12
4401(2)(f), (h) (providing that New York students with
13
disabilities who cannot obtain an appropriate education in
14
New York may attend an out-of-state facility that the
15
Education Department determines can meet the child’s
16
needs).4
17
18
See N.Y. Educ. Law §§ 4407(1)(a),
Finally, Plaintiffs would have standing to challenge
the New York prohibition even if, as Defendants argue, the
4
A number of other states have substantially limited
or outright prohibited the use of aversive interventions in
schools and with students. See Cal. Educ. Code
§ 56520(a)(3); 22 Pa. Code § 14.133(e); Mont. Admin. R.
10.16.3346(4); N.C. Gen. Stat. § 155C-391.1(b)(2), (h); Nev.
Rev. Stat. § 388.5265; Wash. Admin. Code § 392-172A-03125;
22 Va. Admin. Code. § 40-151-820; N.H. Code Admin. R. Ed.
§§ 1113.04, 1113.06; D.C. Code §§ 38-2561.03(b)(1), 382561.01. However, there is no indication that these
children would not be able to attend a school in some other
state that could provide them aversive interventions, if
necessary.
16
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Massachusetts law would be an additional impediment to
2
aversive interventions for these children.
3
Plaintiffs are prevented by issues of personal jurisdiction,
4
service, and venue from challenging the Massachusetts and
5
New York prohibitions in a single lawsuit; but their need to
6
invalidate the Massachusetts regulation would not deprive
7
them of standing to challenge the regulation in New York.
8
See Khodara Envt’l, Inc. v. Blakey, 376 F.3d 187, 194-96 (3d
9
Cir. 2004) (as amended) (Alito, J.); accord Lamar Adver. of
First,
10
Penn, 356 F.3d at 374 (holding that the plaintiff had
11
standing to challenge a law blocking its posting of certain
12
advertising even though the plaintiff had not sought a
13
permit, which was an additional impediment to the
14
advertising).
15
Defendants contend) that these children are unable to obtain
16
aversives generally, but rather that the New York
17
prohibition prevents them from receiving aversives.
18
properly, Plaintiffs can obtain redress in this litigation:
19
authority to obtain aversive interventions under New York
20
law.
21
because a favorable judgment would make it “likely” that
22
they could ultimately obtain the treatment they seek.
23
Lujan, 504 U.S. at 561 (internal quotation marks omitted).
Second, Plaintiffs’ claimed injury is not (as
Viewed
Accordingly, Plaintiffs continue to enjoy standing
17
See
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II
Two types of claims lie under the IDEA: [1] a
3
procedural claim challenging the State’s compliance with the
4
procedures set forth in the IDEA, and [2] a substantive
5
claim challenging whether the IEP is reasonably calculated
6
to enable the student to receive educational benefits.
7
Walczak, 142 F.3d at 129.5
8
claim.
See
Plaintiffs assert both kinds of
9
10
11
A
Plaintiffs’ procedural claim is that prohibiting
12
aversive interventions prevents these children from
13
obtaining a truly individualized education program because
14
they are categorically barred from getting an IEP that
5
An IEP sets out in writing, inter alia, (1) the
child’s present levels of academic achievement and
functional performance; (2) the short-term academic and
functional objectives; (3) the measurable annual goals for
the child, including academic and functional goals; (4) the
specific educational and related services to be provided to
the child and the extent to which the child will be able to
participate in general educational programs and curriculum;
(5) the transition services needed for the child to leave
the school setting; (6) the projected commencement for and
duration of proposed services; and (7) objective criteria
and evaluation procedures and schedules for determining, on
at least an annual basis, whether academic and functional
objectives are being achieved. 20 U.S.C. § 1414(d)(1)(A).
The IEP is developed by a school official qualified in
special education, at least one special education teacher,
at least one general education teacher, other qualified
individuals, the child’s parents, and (where appropriate)
the child. Id. § 1414(d)(1)(B).
18
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includes aversive interventions without regard to their
2
individual needs.
3
503, 511 (2d Cir. 2006) (explaining “that the right to a
4
free appropriate public education [FAPE] is afforded to each
5
disabled child as an individual”).
6
See D.D. v. N.Y.C. Bd. of Educ., 465 F.3d
Nothing in New York’s regulation prevents
7
individualized assessment or precludes educators from
8
considering a wide range of possible treatments.
9
regulation prohibits consideration of a single method of
The
10
treatment without foreclosing other options.
In so doing,
11
the regulation follows the goals and emphasis of the IDEA.
12
See 20 U.S.C. § 1400(c)(5)(F) (“Almost 30 years of research
13
and experience has demonstrated that the education of
14
children with disabilities can be made more effective by
15
. . . positive behavioral interventions and supports”); 64
16
Fed. Reg. 12406, 12589 (Mar. 12, 1999) (“[T]he primary focus
17
must be on ensuring that the behavioral management
18
strategies in the child’s IEP reflect the [IDEA’s]
19
requirement for the use of positive behavioral interventions
20
and strategies to address the behavior that impedes the
21
learning of the child or that of other children.”).6
6
See also 20 U.S.C. § 1411(e)(2)(C)(iii) (allowing
states to reserve federal funding “[t]o assist local
education agencies in providing positive behavior
interventions and supports”); id. § 1414(d)(3)(B)(i)
(providing that the IEP team should “consider the use of
positive behavioral interventions and supports, and other
19
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Although the IDEA does not prohibit alternatives such as
2
aversives, see 20 U.S.C. § 1414(d)(3)(B)(i), it cannot be
3
said that a policy that relies on positive behavioral
4
interventions only is incompatible with the IDEA.
5
Plaintiffs argue that, because the regulation
6
eliminates one possible method from the students’ IEP, it
7
amounts to a predetermination that violates the procedural
8
guarantees of the IDEA, as explained in Deal v. Hamilton
9
Cnty. Bd. of Educ., 392 F.3d 840 (6th Cir. 2004).
However,
10
there is a distinction between a policy that affects
11
individual cases on a categorical basis (such as the policy
12
at issue here) and a local predetermination that rejects
13
preemptively a measure that is permitted as a matter of
14
state law.
15
In Deal, a school district refused to consider a
16
particular teaching approach.
Id. at 845-46.
17
Circuit concluded that foreclosure of a program without
The Sixth
strategies, to address” “behavior [that] impedes the child’s
learning or that of others”); id. § 1454(a)(3)(B)(iii)(I)
(allowing states to use federal grants to train educators in
methods of “positive behavioral interventions and supports
to improve student behavior in the classroom”); id.
§ 1462(a)(6)(D) (authorizing the Secretary of Education to
enter into contracts with entities to ensure training in
“positive behavioral supports.”); id. § 1465(b)(1)(B)-(C)
(permitting the Secretary of Education to support effective,
research-based practices through training educators in
“positive behavioral interventions and supports” and
“effective strategies for positive behavioral
interventions”).
20
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regard for its effectiveness was a procedural violation of
2
the IDEA because it deprived the parents of meaningful
3
participation in the IEP process.
4
pass on the reasoning of Deal because unlike the instant
5
challenge to a statewide prohibition enacted by a state
6
government, Deal involved a challenge to an unofficial
7
district policy involving a particular child’s specific IEP
8
as to which the parents had a statutory right of input, 20
9
U.S.C. § 1414(d)(1)(B).
10
Id. at 857.
The distinction is significant.
We need not
See Alleyne v. N.Y.
11
State Educ. Dep’t, 691 F. Supp. 2d 322, 333 n.9 (N.D.N.Y.
12
2010) (distinguishing between authorities considering
13
predetermination in IEPs and the promulgation of statewide
14
regulations).
15
providing special education and related services to children
16
with disabilities . . . not [to] usurp the state’s
17
traditional role in setting educational policy.”
18
313 F.3d at 776-77.
19
substantive standard of education” in the IDEA.
20
Pawlet Sch. Dist., 224 F.3d 60, 65 (2d Cir. 2000).
21
the IDEA “‘incorporates state substantive standards as the
22
governing federal rule’ if they are consistent with the
23
federal scheme and meet the minimum requirements set forth
24
by the IDEA.”
25
Wheaton, 916 F.2d 69, 73 (2d Cir. 1990)).
“The IDEA was enacted to assist states in
Taylor,
“Congress did not prescribe any
J.D. v.
Instead,
Taylor, 313 F.3d at 777 (quoting Mrs. C. v.
21
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Moreover, Plaintiffs’ interpretation of the IDEA would
2
effectively strip state governments of the ability to adopt
3
statewide policy because it is impossible to consider each
4
student’s circumstances before adopting statewide policy.
5
For this reason, New York collects input--by parents,
6
professionals, and the public--when the Education Department
7
publishes a proposed regulation and an opportunity is
8
afforded for notice and comment.
9
Rule Making Activities, Nov. 15, 2006.
10
See N.Y. State Register,
In this case, New York adopted the ban of aversives
11
only after the Education Department made site visits,
12
reviewed reports, and considered complaints from parents as
13
well as school districts and others raising concerns about
14
aversive techniques.
15
Proposed Rulemaking, N.Y. State Educ. Dep’t, June 20, 2006.
16
It concluded that aversive interventions are dangerous and
17
may backfire and that positive behavioral interventions are
18
sufficiently effective to provide a FAPE.
19
Notice of Emergency Adoption &
Id.
The prohibition therefore represents a considered
20
judgment; one that conforms to the IDEA’s preference for
21
positive behavioral intervention.
22
§ 1400(c)(5)(F).
23
standing bar on corporal punishment.
24
R. & Regs. tit. 8, § 19.5(a).)
25
categorically bar such statewide regulations that resolve
See, e.g., 20 U.S.C.
(Another such New York policy is the long-
22
See N.Y. Comp. Codes
The IDEA does not
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problems in special education; otherwise, the IDEA would be
2
transformed from a legislative scheme that preserves the
3
states’ fundamental role in education to one that usurps the
4
role of the states.
5
that “Congress’ intention was not that the [IDEA] displace
6
the primacy of States in the field of education, but that
7
States receive funds to assist them in extending their
8
educational systems to the handicapped”).7
Cf. Rowley, 458 U.S. at 208 (explaining
9
In sum, New York’s regulation prohibits only
10
consideration of a single method of treatment without
11
foreclosing other options.
12
prevents individualized assessment, predetermines the
13
children’s course of education, or precludes educators from
14
considering a wide range of possible treatments.
15
the district court correctly dismissed the procedural IDEA
16
claim.
Nothing in the regulation
Therefore,
17
18
B
19
Plaintiffs contend that the prohibition on aversive
20
interventions is a substantive violation of the IDEA because
21
aversives are necessary to control the severe behavioral
7
Plaintiffs direct our attention to Kalliope R. v.
N.Y. State Dep’t of Educ., 827 F. Supp. 2d 130 (E.D.N.Y.
2010), which concerned the State’s foreclosure of a
particular intensive teaching technique. Kalliope, however,
is an interlocutory opinion, never appealed, that relied on
Deal.
23
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disorders that undermine the children’s education.
2
Plaintiffs allege that a positive-only program is effective
3
with 70% of students but that each of these children fall
4
within the 30% who are not sufficiently treated with
5
positive-only interventions.
6
For many of the reasons discussed above, Plaintiffs
7
cannot state a substantive IDEA claim.
8
aversive interventions does not prevent these students from
9
obtaining an IEP specifically aimed at providing them an
The prohibition on
10
appropriate education.
11
has decided to focus its special-education programs on
12
positive-only behavioral interventions, which is the clear
13
(although not exclusive) methodology favored by the IDEA.
14
Even if we assumed that permitting these children to
Moreover, the Education Department
15
receive aversive interventions would help them fulfill their
16
potential, Plaintiffs’ substantive claim would still fail.
17
The “IDEA does not require states to develop IEPs that
18
‘maximize the potential of handicapped children.’”
19
142 F.3d at 132 (quoting Rowley, 458 U.S. at 189); accord
20
Rowley, 458 U.S. at 197-98 & n.21.
21
only that students with disabilities are provided an
22
“‘appropriate’ education, not one that provides everything
23
that might be thought desirable by loving parents.”
24
Walczak, 142 F.3d at 132 (internal quotation marks omitted).
25
A state satisfies its obligation to provide a free
24
Walczak,
The IDEA “guarantees”
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appropriate public education if it “provide[s] a disabled
2
child with meaningful access to an education” even if the
3
state “cannot guarantee totally successful results.”
4
133 (citing Rowley, 458 U.S. at 192); accord Rowley, 458
5
U.S. at 195 (explaining that the IDEA “imposes no clear
6
obligation upon recipient States beyond the requirement that
7
handicapped children receive some form of specialized
8
education”).
9
Id. at
Defendants provide these students with meaningful
10
access to education opportunities by authorizing and funding
11
their specialized education and behavioral modification
12
treatment at an out-of-state residential facility that has
13
expertise in treating children with severe behavioral
14
disorders.
15
children’s potential, but the IDEA does not require such
16
measures.8
17
Aversive interventions may help maximize the
Moreover, we decline Plaintiffs’ invitation to review
18
and second guess New York’s education policy.
19
IDEA provides for some judicial review, “the Supreme Court
20
has cautioned[] . . . that this ‘independent’ review ‘is by
21
no means an invitation to the courts to substitute their own
8
Although the
Significantly, none of these students received an IEP
that authorized use of aversive interventions before the
enactment of the regulation in 2006 or during the
grandfathering period when a child-specific exception was
available.
25
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notions of sound educational policy for those of the school
2
authorities they review.’”
3
(quoting Rowley, 458 U.S. at 206).
4
rubber stamp” the decisions of the states and locals, but we
5
must be “mindful that the judiciary generally lacks the
6
specialized knowledge and experience necessary to resolve
7
persistent and difficult questions of educational policy.”
8
Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d
9
Cir. 2005) (internal quotation marks omitted); accord
See Walczak, 142 F.3d at 129
We will not “simply
10
Rowley, 458 U.S. at 207 (“[C]ourts must be careful to avoid
11
imposing their view of preferable educational methods upon
12
the States.”).
13
There is an ongoing debate among the experts regarding
14
the advantages and disadvantages of aversive interventions
15
and positive-only methods of behavioral modification.
16
judiciary is ill-suited to decide the winner of that debate.
17
See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 383
18
(2d Cir. 2003) (as amended) (reversing a district court
19
decision finding IEPs inadequate because the district court
20
“impermissibly chose between the views of conflicting
21
experts on a controversial issue of educational policy”).
22
The
Our deference to the Education Department’s decision is
23
further justified in this instance because New York adopted
24
the regulation after the Education Department obtained
25
information raising concerns regarding the potential health
26
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and safety implications of aversives.
2
Emergency Adoption & Proposed Rulemaking, N.Y. State Educ.
3
Dep’t, June 20, 2006.
4
concerned that aversive interventions can result in
5
“aggressive and/or escape behaviors” and can foster the
6
development of “negative attitudes toward [one’s] self and
7
school programs,” id.--concerns raised by reports and
8
complaints by parents, school districts, and others.
9
such source of concern was a lawsuit alleging abuse at JRC,
10
see Nicholson v. New York, 872 N.Y.S. 2d 846 (Ct. Cl. 2008),
11
which prompted a site visit on which the Education
12
Department “identified significant concerns for the
13
potential impact on the health and safety of New York
14
students,” see Notice of Emergency Adoption & Proposed
15
Rulemaking, N.Y. State Educ. Dep’t, June 20, 2006.
16
Court is not institutionally suited to now second guess the
17
policy decision made by experts charged with formulating
18
education policy in New York.
19
See Notice of
The Education Department was
One
This
See Cerra, 427 F.3d at 192.
Because Plaintiffs have not and cannot allege that
20
these children have been deprived of a FAPE, they cannot
21
prevail on their substantive IDEA claim.9
9
The dissent concludes that a reasonable justification
for preventing use of aversive therapies cannot be located
in the record. We respectfully disagree. But even if there
were no express justification, some justifications are
implicit in the policy.
27
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III
2
In addition to their procedural and substantive IDEA
3
claims, Plaintiffs also assert a claim under the
4
Rehabilitation Act.
5
provides: “No otherwise qualified individual with a
6
disability . . . shall, solely by reason of her or his
7
disability, be excluded from the participation in, be denied
8
the benefits of, or be subjected to discrimination under any
9
program or activity receiving Federal financial assistance
10
11
. . . .”
Section 504 of the Rehabilitation Act
29 U.S.C. § 794(a).
To establish a prima facie case under the
12
Rehabilitation Act, a plaintiff must allege: [1] that he or
13
she is a person with disabilities under the Rehabilitation
14
Act, [2] who has been denied benefits of or excluded from
15
participating in a federally funded program or special
16
service, [3] solely because of his or her disability.
17
Mrs. C., 916 F.2d at 74.
18
that the regulation banning aversive interventions denies
19
them benefits on the basis of disability: The regulation
20
applies to all students, regardless of disability.10
See
Plaintiffs, however, do not argue
10
Plaintiffs also cannot state a Rehabilitation Act
claim for discrimination against people with disabilities
who are students. See J.D., 224 F.3d at 70. Under the
Rehabilitation Act, states receiving federal funds must
“‘provide a free appropriate public education to each
qualified handicapped person.’” Id. (quoting 34 C.F.R.
§ 104.33(a)). This obligation can be satisfied by, inter
alia, providing the student an IEP. 34 C.F.R.
28
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Plaintiffs contend, however, that they state a claim
2
under Rehabilitation Act because New York’s ban on aversives
3
was promulgated in bad faith or is the result of gross
4
mismanagement.
5
979 F. Supp. 147, 152 (N.D.N.Y. 1997) (relying on Brantley
6
v. Indep. Sch. Dist. No. 625, 936 F. Supp. 649, 657 (D.
7
Minn. 1996) (citing Monahan v. Nebraska, 687 F.2d 1164,
8
1170-71 (8th Cir. 1982))).
9
claim exists under the Rehabilitation Act, but even assuming
See Wegner v. Canastota Cent. Sch. Dist.,
We have never held that such a
10
that it does, Plaintiffs’ complaint fails to state such a
11
claim.
12
Plaintiffs’ allegations of bad faith and gross
13
mismanagement are refuted by the facts (of which we have
14
taken judicial notice) that the Education Department [1]
15
investigated the matter before offering the regulation for
16
public comment and [2] received the public’s comments before
17
promulgating the regulation.
18
Adoption & Proposed Rulemaking, N.Y. State Educ. Dep’t, June
19
20, 2006; N.Y. State Register of Rule Making Activities,
20
Nov. 15, 2006.
21
22
See Notice of Emergency
Plaintiffs’ response that bad faith or gross
mismanagement is manifest because there is no scholarly
§ 104.33(b)(1). As explained previously, the prohibition on
aversives does not prevent educators from implementing IEPs
for these children nor does it preclude their receipt of a
FAPE.
29
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1
support for banning aversives is similarly refuted by the
2
Education Department’s citation to scholarly literature
3
discussing the dangers of aversives and the benefits of
4
positive-only treatment.
5
Proposed Rulemaking, N.Y. State Educ. Dep’t, June 20, 2006.
6
In any event, such a dispute (regarding which education
7
policy is the most scientifically sound and effective
8
approach that is least likely to present health, safety, and
9
moral and ethical concerns) is best left for resolution by
See Notice of Emergency Adoption &
10
the policymakers and education administrators, not the
11
judiciary.
12
U.S. at 206-07; Walczak, 142 F.3d at 129.
See Cerra, 427 F.3d at 192; see also Rowley, 458
13
14
15
IV
In addition to their statutory claims, Plaintiffs also
16
contend that New York’s prohibition of aversives deprives
17
them of their constitutional rights to substantive and
18
procedural due process and equal protection.
19
addressed in turn.
Each claim is
20
21
22
A
Plaintiffs contend that the ban on aversive
23
interventions deprives these children of substantive due
24
process.
Plaintiffs cannot prevail on such a claim because
30
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there is no substantive due process right to public
2
37
education.
3
“[T]he Due Process Clause of the Fourteenth Amendment
4
embodies a substantive component that protects against
5
‘certain government actions regardless of the fairness of
6
the procedures used to implement them.’”
7
Neck Sch. Dist., 73 F.3d 454, 460 (2d Cir. 1996) (quoting
8
Daniels v. Williams, 474 U.S. 327, 331 (1986)).
9
examining whether a government rule or regulation infringes
Immediato v. Rye
In
10
a substantive due process right, “the first step is to
11
determine whether the asserted right is ‘fundamental,’”--
12
i.e., “implicit in the concept of ordered liberty, or deeply
13
rooted in this Nation’s history and tradition,” Leebaert v.
14
Harrington, 332 F.3d 134, 140 (2d Cir. 2003) (internal
15
quotation marks omitted).
16
fundamental, the regulation must be narrowly tailored to
17
serve a compelling government interest.
18
at 460.
19
governmental regulation need only be reasonably related to a
20
legitimate state objective.”
21
Where the right infringed is
Immediato, 73 F.3d
Where the right infringed is not fundamental, “the
Id. at 461.
The right to public education is not fundamental.
22
Handberry v. Thompson, 446 F.3d 335, 352 (2d Cir. 2006)
23
(citing Plyler v. Doe, 457 U.S. 202, 221 (1982); San Antonio
24
Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973)).
25
Thus, even if Plaintiffs alleged that these children were
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unable to receive a public education at all because they can
2
no longer receive aversives, the bar on aversive
3
interventions would still comport with due process if it was
4
reasonably related to a legitimate government objective.
5
The regulation rises to that low threshold because it serves
6
a legitimate government objective: preventing students from
7
being abused or injured by aversive interventions.
8
9
Realizing that there is no fundamental right to public
education, Plaintiffs contend they have been deprived of the
10
substantive due process because the ban on aversives is
11
arbitrary and capricious (because, as Plaintiffs argue,
12
aversives are effective and there is no scientific support
13
for banning them).
14
Moreover, we decline Plaintiffs’ invitation to engage in
15
policymaking decisions that are best left to the political
16
branches.
17
and ethical concerns as well as the potential for abuse
18
suffice to establish that New York’s prohibition is not
19
arbitrary and capricious--even if, as Plaintiffs contend,
20
aversives are the best and, perhaps, only way to effectively
21
treat these children’s severe behavior disorders.
This argument is addressed above.
See Cerra, 427 F.3d at 192.
22
23
24
25
32
In any event, safety
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B
Plaintiffs’ procedural due process claim largely
3
duplicates the procedural IDEA claim and fails for the same
4
reasons.
5
A procedural due process claim is composed of two
6
elements: (1) the existence of a property or liberty
7
interest that was deprived and (2) deprivation of that
8
interest without due process.
9
Trustees, 850 F.2d 70, 72 (2d Cir. 1988).
See Narumanchi v. Bd. of
As a general
10
matter, Plaintiffs may have a property interest in public
11
education.
See Handberry, 446 F.3d at 353 (discussing New
12
York law).
The prohibition on aversives, however, does not
13
prevent these children from obtaining a public education,
14
even if, as Plaintiffs allege, these children would receive
15
a better education if aversive interventions were permitted.
16
Instead, Plaintiffs contend that they have an interest
17
in individualized assessments under the IDEA and that this
18
interest is undermined by the prohibition on aversive
19
interventions.
20
and fails for the same reason: Plaintiffs have not alleged
21
that the prohibition on aversive interventions prevents an
22
individualized assessment, education, or treatment of these
23
children.
24
of treatment from the range of possible options.
25
is still able to receive an education plan that is tailored
This claim mirrors the procedural IDEA claim
The prohibition merely removes one possible form
33
Each child
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to his or her specific needs in all other respects.
2
In addition, this claim fails because Plaintiffs do not
3
possess a property interest in any particular type of
4
education program or treatment.
5
352.
6
originates in the IDEA but, given the IDEA’s strong
7
preference for positive behavioral intervention, see, e.g.,
8
20 U.S.C. § 1400(c)(5)(F), the IDEA does not create a
9
property interest in the possible receipt of aversive
10
See Handberry, 446 F.3d at
Plaintiffs contend that their property right
interventions as part of an IEP.
11
12
C
13
Plaintiffs contend that the prohibition on aversive
14
interventions violates equal protection by treating them
15
differently than other students who had IEPs permitting them
16
to receive aversives before June 30, 2009--the cut-off date
17
for the grandfather clause.
18
Laws that discriminate on the basis of disability are
19
subject to rational-basis review and upheld so long as there
20
is a “rational relationship between the disparity of
21
treatment and some legitimate governmental purpose.”
22
Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d
23
98, 109 (2d Cir. 2001).
24
at least a rational basis to support the prohibition on
25
aversives.
See
And, as explained above, there is
34
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Plaintiffs’ contention that the prohibition
2
distinguishes between students with disabilities who had
3
IEPs authorizing aversives prior to June 30, 2009, and
4
students with disabilities who did not have IEPs permitting
5
aversives, does not save the claim.
6
not “proceed[] along suspect lines . . . must be upheld
7
against equal protection challenge if there is any
8
reasonably conceivable state of facts that could provide a
9
rational basis for the classification.”
Classifications that do
FCC v. Beach
10
Commc’ns, Inc., 508 U.S. 307, 313 (1993).
11
the basis of authorization to administer aversive
12
interventions in a student’s IEP is, of course, a non-
13
suspect classification subject to rational basis review.
14
Classification on
Defendants’ decision to grandfather the prohibition of
15
aversives so that students already authorized to receive
16
aversives could continue their treatment easily withstands
17
rational-basis review.
18
interventions without interrupting education programs where
19
aversives were already being used or already authorized to
20
be used.
21
the IEPs of all students who had IEPs authorizing aversives.
22
Grandfathering bans aversive
It also avoids the tremendous labor of replacing
Plaintiffs argue that the exception authorizing some
23
aversive interventions disproves that the ban was motivated
24
by safety.
25
ban would better protect against any harms from aversives,
Not so.
Although it is true that an outright
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37
1
reducing the use of aversives can still provide a benefit by
2
decreasing the number of students subjected to aversive
3
interventions and the harms potentially associated with such
4
interventions.
5
In the end, Plaintiffs’ argument is that they disagree
6
with Defendants’ policy choice to ban aversive
7
interventions.
8
however, the prohibition must be upheld against an equal
9
protection challenge.
As long as Defendants had a rational reason,
Here, the safety of the students
10
coupled with an attempt to minimize the impact of the
11
prohibition on students already receiving aversives provided
12
a rational basis for the prohibition and the use of a
13
grandfather provision to implement it.
14
15
V
16
Plaintiffs contend that the district court erred in
17
denying their request for a preliminary injunction.
Because
18
the district court correctly dismissed the suit, it did not
19
err in denying Plaintiffs’ request for a preliminary
20
injunction.
21
148, 154 & n.3 (2d Cir. 2010) (holding that a party cannot
22
satisfy the requirements for a preliminary injunction--
23
including “likelihood of success on the merits”--if that
24
party cannot sustain any of its claims for relief).
See Monserrate v. N.Y. State Senate, 599 F.3d
25
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2
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CONCLUSION
Accordingly, the judgment of the district court is
affirmed.
37
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