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
- - - - - - - - - - - - - - - - - - - - - - - x
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.
- - - - - - - - - - - - - - - - - - - - - - - x
Before:

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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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Plaintiffs--the parents and/or legal guardians of seven

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children with disabilities, who bring this suit on behalf of

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themselves and the children--appeal the judgment of the

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United States District Court for the Northern District of

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New York (Sharpe, J.), dismissing their suit for failure to

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state a claim upon which relief can be granted, and denying

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their motion for a preliminary injunction.

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equitable relief preventing New York from enforcing a

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prohibition on the use of aversive interventions, which are

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negative consequences or stimuli administered if a child’s

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disruptive behavior impedes the child’s education.

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Plaintiffs seek

We conclude that prohibiting one possible method of

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dealing with disorders in behavior, such as aversive

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intervention, does not undermine a child’s right to an

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individualized, free and appropriate public education, and

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that New York’s law represents the State’s considered

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judgment regarding the education and safety of its children

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that is consistent with federal education policy and the

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United States Constitution.

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The judgment of the district court is affirmed.

Judge

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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

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children with disabilities, who bring this suit on behalf of

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themselves and the children--appeal a judgment of the United

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States District Court for the Northern District of New York

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(Sharpe, J.), dismissing their suit for failure to state a

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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

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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

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a free and appropriate public education (“FAPE”), which is

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guaranteed by federal law.

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prohibition of one possible method of reducing the

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consequences of a child’s behavioral disability does not

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undermine the child’s right to a FAPE or prevent

We conclude that the State’s

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administrators from enacting an individualized plan for the

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child’s education.

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Plaintiffs also contend that the State’s prohibition

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violates the children’s constitutional rights and the

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Rehabilitation Act of 1973 because the prohibition is

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arbitrary and oppressive, the product of gross misjudgment

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by State policymakers, and an infringement on the

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individualized assessment and treatment of students with

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disabilities.

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considered judgment by the State of New York regarding the

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education and safety of its children that is consistent with

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federal education policy and the United States Constitution.

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We conclude that New York’s law represents a

Affirmed.

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BACKGROUND

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The Individuals with Disabilities Education Act (“the

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IDEA”) “is the most recent Congressional enactment in ‘an

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ambitious federal effort to promote the education of

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handicapped children.’”

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Dist., 142 F.3d 119, 122 (2d. Cir. 1998) (quoting Bd. of

8

Educ. v. Rowley, 458 U.S. 176, 179 (1982) (interpreting the

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Education for All Handicapped Children Act, which was

Walczak v. Fla. Union Free Sch.

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subsequently amended and renamed the IDEA)).

The IDEA

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provides federal funds to states that “develop plans to

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assure all children with disabilities the right to a free

13

appropriate public education.”

14

marks omitted).

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at least annually, an individualized education program

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(“IEP”)2 detailing “special education and related services”

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tailored for the particular needs of the child, 20 U.S.C.

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§ 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).
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child to receive educational benefits,” Rowley, 458 U.S. at

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207.

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II
The facts are taken from the well-pleaded factual

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allegations of the complaint, Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555, 570 (2007), and from information of which

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this Court can take judicial notice, see Taylor v. Vt. Dep’t

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of Educ., 313 F.3d 768, 776 (2d Cir. 2002) (determining that

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a reviewing court can consider the complaint, documents

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attached to the complaint, documents incorporated by

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reference in the complaint, and public records when

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considering a motion to dismiss).

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Plaintiffs are the parents or legal guardians of seven

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children, each of whom has a long history of severe behavior

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problems, including aggressive, self-injurious, destructive,

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and non-compliant behavior.

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cause the children to engage in behaviors such as: yanking

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out their own teeth, attempting to stab themselves, tying

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ropes around their necks, scratching themselves, banging

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their heads on walls and other things, and assaulting

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teachers and staff members.

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their education and development.

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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

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they receive residential special-education services.

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Accordingly, each child is enrolled at the Judge Rotenburg

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Educational Center, Inc. (“JRC”) in Massachusetts.

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JRC provides residential, educational, and behavioral

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services to individuals with severe behavioral disorders,

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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

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obtain an appropriate education in-state to attend an out-

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of-state facility that, in the judgment of the Education

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Department, can meet the needs of the child.

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§§ 4407(1)(a), 4401(2)(f), (h).

Although JRC is out of state, the

N.Y. Educ. Law

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At JRC, each student starts with a non-intrusive,

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positive-only, treatment program in which students receive
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rewards (e.g., treats, video games, music, field trips) for

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maintaining positive behaviors, including learning.

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complaint alleges that these positive-only measures are

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effective for most of JRC’s school-age students.

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students, JRC may also employ negative-consequence

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interventions known as aversives or aversive interventions.

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The

For other

According to the complaint, aversive interventions have

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been used to deal with behaviors that pose significant

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dangers to the student or others, or significantly interfere

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with a student’s education, development, or appropriate

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behavior.

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thereby enable the student to receive an appropriate

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education, to enjoy safety and well-being, and to develop

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basic skills for learning and daily living.

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alleges that aversive interventions have helped many JRC

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students to participate in activities with peers and helped

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some to attend college, join the armed forces, obtain

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employment, and go on extended family visits.

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The techniques aim to stop the behavior and

The complaint

The types of aversive interventions used by JRC include

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helmets with safeguards that prevent removal, manual and

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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).
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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

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Clinicians have opined that it is necessary to

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supplement these children’s ongoing educational and

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treatment programs with aversives.

However, none of the

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children has yet received an IEP that authorizes such

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interventions.

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III
The Education Department, which is governed by the

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Board of Regents, regulates educational services and

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programs for New York residents.

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§ 4403(3).

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for the protection of children in residential care from

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abuse and maltreatment,” id. § 4403(11), and periodically

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inspects, reports on, and “make[s] recommendations

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concerning instructional programs or special services for

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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).

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In 2006, the Board of Regents promulgated a regulation

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prohibiting schools, including “approved out-of-state day or

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residential schools” (such as JRC), from using aversive

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interventions.

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§ 19.5(b)(1) (2012).

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intervention” as an intervention “intended to induce pain or

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discomfort to a student for the purpose of eliminating or

N.Y. Comp. Codes R. & Regs. tit. 8,
The regulation defines an “aversive

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reducing maladaptive behaviors,” such as the contingent

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application of painful, intrusive, or similar stimuli or

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activity.

Id. § 19.5(b)(2).3

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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).
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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

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prohibition (2006-2007, 2007-2008, 2008-2009), and a

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grandfather clause provides “that a student whose IEP

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includes the use of aversive interventions as of June 30,

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2009”--three years after the enactment of the prohibition--

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“may be granted a child-specific exception in each

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subsequent school year . . . .”

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N.Y. Comp. Codes R. & Regs.

tit. 8, § 200.22(e).
Neither exception applies to the children in the

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instant case because the initial three years of limited

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aversive interventions has now ended, and none of these

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children had an IEP that authorized aversives prior to June

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30, 2009.

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DISCUSSION

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Plaintiffs raised below and press on appeal numerous

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challenges to New York’s prohibition of aversive

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interventions and seek declaratory and injunctive relief

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preventing its enforcement.

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contend that New York’s regulation violates: [1] the IDEA;

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[2] the Rehabilitation Act of 1973; and [3] the Due Process

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and Equal Protection clauses of the United States

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Constitution.

Specifically, Plaintiffs

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The district court granted Defendants’ motion to

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dismiss all those claims for relief.

We review that

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decision de novo, “construing the complaint liberally,

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accepting all factual allegations in the complaint as true,

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and drawing all reasonable inferences in the plaintiff[s’]

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favor.”

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(2d Cir. 2002).

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complaint must be assumed true for the purposes of a motion

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to dismiss, this principle is “inapplicable to legal

Chambers v. Time Warner, Inc., 282 F.3d 147, 152
Although all factual allegations in the

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conclusions” and “‘formulaic recitation[s] of the elements

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of a cause of action.’”

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678 (2d Cir. 2009) (quoting Twombly, 550 U.S. at 555).

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survive a motion to dismiss, a complaint must allege “enough

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facts” to “raise a right to relief above the speculative

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level” and “state a claim to relief that is plausible.”

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Twombly, 550 U.S. at 555, 570; accord id. at 555 n.3.

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Ashcroft v. Iqbal, 556 U.S. 662,
To

In addition to dismissing Plaintiffs’ complaint under

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Rule 12(b)(6), the district court also denied Plaintiffs’

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motion for a preliminary injunction.

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for abuse of discretion.

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Union, 542 U.S. 656, 664 (2004); Malletier v. Burlington

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Coat Factory Warehouse Corp., 426 F.3d 532, 537 (2d Cir.

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2005).

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decision rests on an error of law . . . or a clearly

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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

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necessarily the product of a legal error or a clearly

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erroneous factual finding--cannot be located within the

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range of permissible decisions.”

4

York, 626 F.3d 47, 51 (2d Cir. 2010) (internal quotation

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marks omitted; ellipsis in original).

Mullins v. City of New

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I
A standing question has arisen.

While this appeal was

pending, the Massachusetts Department of Developmental

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Services promulgated a regulation that governs JRC (as a

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school in the Commonwealth), and bars it from using some

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aversives on these children and others.

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The Massachusetts regulation, 115 Mass. Code Regs.

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5.14 (2012), prohibits the use of certain aversive

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interventions--including “contingent application of physical

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contact aversive stimuli such as spanking, slapping, hitting

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or contingent skin shock,” id. 5.14(3)(d)1.; see also id.

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5.14(3)(d)--unless the child had a court-approved treatment

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permitting the use of aversives before September 1, 2011

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(which none of the children at issue in this case had).

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Massachusetts regulation permits other aversive

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interventions--including “[c]ontingent application of

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unpleasant sensory stimuli such as loud noises, bad tastes,

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bad odors, or other stimuli which elicit a startle

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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

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the student’s written behavior modification plan and if that

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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

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Massachusetts, Defendants contend that Plaintiffs’ claims

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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

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must be a causal connection between the injury and the

23

conduct complained of” such that the injury is “fairly

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traceable to the challenged action of the defendant”; and

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[3] “it must be likely, as opposed to merely speculative,
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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

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declaration that the prohibition violates the U.S.

24

Constitution and federal law.

The

The prayer for relief is not

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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.
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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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1

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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1

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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1

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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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.

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