Bryant v. N.Y. State Educ. Dep’t

10-4029-cv
Bryant v. N.Y. State Educ. Dep’t
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2011 5
6
7
(Argued: October 21, 2011 Decided: August 20, 2012) 8
9
Docket No. 10-4029-cv 10
11
- - - - - - - - - - - - - - - - - - - - - - - x 12
13
CHARLES BRYANT, individually and as next friend 14
and guardian of D.B., AVA GEORGE, individually 15
and as next friend and guardian of B.G., CHANIN 16
HOUSTON-JOSEPHAT, individually and as next 17
friend and guardian of A.J., LISA HUGHES, 18
individually and as next friend and guardian of 19
J.R., CARMEN PENA, individually and as next 20
friend and guardian of G.T., VIVIAN PRESLEY, 21
individually and as next friend and guardian of 22
D.P., JAMIE TAM, individually and as next 23
friend and guardian of S.T., 24
25
PLAINTIFFS-APPELLANTS, 26
27
- v. - 28
29
NEW YORK STATE EDUCATION DEPARTMENT, DAVID M. 30
STEINER, in his capacity as Commissioner of the 31
New York State Education Department, THE NEW 32
YORK STATE BOARD OF REGENTS, 33
34
DEFENDANTS-APPELLEES. 35
36
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Before: JACOBS, Chief Judge, WESLEY, Circuit 38
Judge, and SULLIVAN, District Judge.1
39
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 1
children with disabilities, who bring this suit on behalf of 2
themselves and the children--appeal the judgment of the 3
United States District Court for the Northern District of 4
New York (Sharpe, J.), dismissing their suit for failure to 5
state a claim upon which relief can be granted, and denying 6
their motion for a preliminary injunction. Plaintiffs seek 7
equitable relief preventing New York from enforcing a 8
prohibition on the use of aversive interventions, which are 9
negative consequences or stimuli administered if a child’s 10
disruptive behavior impedes the child’s education. 11
We conclude that prohibiting one possible method of 12
dealing with disorders in behavior, such as aversive 13
intervention, does not undermine a child’s right to an 14
individualized, free and appropriate public education, and 15
that New York’s law represents the State’s considered 16
judgment regarding the education and safety of its children 17
that is consistent with federal education policy and the 18
United States Constitution. 19
The judgment of the district court is affirmed. Judge 20
Sullivan has filed a separate opinion in which he concurs in 21
part and in part dissents. 22
2

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Michael P. Flammia, Eckert Seamans 1
Cherin & Mellott, LLC, Boston, MA. 2
(Jeffrey J. Sherrin, O’Connell and 3
Aronowitz, P.C., Albany, NY, and 4
Meredith H. Savitt, Law Office of 5
Meredith Savitt, P.C., Delmar, NY, on 6
the brief), for Plaintiffs- 7
Appellants. 8
9
Andrew B. Ayers, Assistant Solicitor 10
General (Barbara D. Underwood, 11
Solicitor General, Benjamin N. 12
Gutman, Deputy Solicitor General, on 13
the brief), for Eric T. Schneiderman, 14
Attorney General of the State of New 15
York, for Defendants-Appellees. 16
17
DENNIS JACOBS, Chief Judge: 18
19
Plaintiffs--the parents and/or legal guardians of seven 20
children with disabilities, who bring this suit on behalf of 21
themselves and the children--appeal a judgment of the United 22
States District Court for the Northern District of New York 23
(Sharpe, J.), dismissing their suit for failure to state a 24
claim upon which relief can be granted, and denying their 25
motion for a preliminary injunction. Plaintiffs seek 26
equitable relief preventing the New York Board of Regents 27
(“Board of Regents”), the New York State Education 28
Department (“Education Department”), and the Commissioner of 29
the Education Department (David M. Steiner, in his official 30
capacity) from enforcing a prohibition on the use of 31
aversive interventions. Aversive interventions are negative 32
consequences or stimuli administered to children who exhibit 33
3

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problematic and disruptive behavior that impedes their 1
education. 2
Plaintiffs contend that New York’s prohibition of 3
aversive interventions undermines their children’s right to 4
a free and appropriate public education (“FAPE”), which is 5
guaranteed by federal law. We conclude that the State’s 6
prohibition of one possible method of reducing the 7
consequences of a child’s behavioral disability does not 8
undermine the child’s right to a FAPE or prevent 9
administrators from enacting an individualized plan for the 10
child’s education. 11
Plaintiffs also contend that the State’s prohibition 12
violates the children’s constitutional rights and the 13
Rehabilitation Act of 1973 because the prohibition is 14
arbitrary and oppressive, the product of gross misjudgment 15
by State policymakers, and an infringement on the 16
individualized assessment and treatment of students with 17
disabilities. We conclude that New York’s law represents a 18
considered judgment by the State of New York regarding the 19
education and safety of its children that is consistent with 20
federal education policy and the United States Constitution. 21
Affirmed. 22
4

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BACKGROUND 1
I 2
The Individuals with Disabilities Education Act (“the 3
IDEA”) “is the most recent Congressional enactment in ‘an 4
ambitious federal effort to promote the education of 5
handicapped children.’” Walczak v. Fla. Union Free Sch. 6
Dist., 142 F.3d 119, 122 (2d. Cir. 1998) (quoting Bd. of 7
Educ. v. Rowley, 458 U.S. 176, 179 (1982) (interpreting the 8
Education for All Handicapped Children Act, which was 9
subsequently amended and renamed the IDEA)). The IDEA 10
provides federal funds to states that “develop plans to 11
assure all children with disabilities the right to a free 12
appropriate public education.” Id. (internal quotation 13
marks omitted). The IDEA requires that each child receive, 14
at least annually, an individualized education program 15
(“IEP”)2 detailing “special education and related services” 16
tailored for the particular needs of the child, 20 U.S.C. 17
§ 1401(9), that are “reasonably calculated to enable the 18
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 1
207. 2
3
II 4
The facts are taken from the well-pleaded factual 5
allegations of the complaint, Bell Atl. Corp. v. Twombly, 6
550 U.S. 544, 555, 570 (2007), and from information of which 7
this Court can take judicial notice, see Taylor v. Vt. Dep’t 8
of Educ., 313 F.3d 768, 776 (2d Cir. 2002) (determining that 9
a reviewing court can consider the complaint, documents 10
attached to the complaint, documents incorporated by 11
reference in the complaint, and public records when 12
considering a motion to dismiss). 13
Plaintiffs are the parents or legal guardians of seven 14
children, each of whom has a long history of severe behavior 15
problems, including aggressive, self-injurious, destructive, 16
and non-compliant behavior. These behavioral disabilities 17
cause the children to engage in behaviors such as: yanking 18
out their own teeth, attempting to stab themselves, tying 19
ropes around their necks, scratching themselves, banging 20
their heads on walls and other things, and assaulting 21
teachers and staff members. These behaviors have impeded 22
their education and development. 23
Plaintiffs have tried a number of measures to treat and 24
educate these children, including: special education, day 25
6

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and residential programs, psychiatric hospitalization, 1
counseling, physical restraints, paraprofessional support, 2
home instruction, sensory tents, positive-only programs of 3
behavioral modification, and anti-psychotic and other 4
psychotropic medications. None has been successful, and the 5
children continue to pose physical risks to themselves and 6
others. As a result, they have been foreclosed from public 7
schools and private institutions or confined in psychiatric 8
wards and detention centers. Each child’s IEP now suggests 9
they receive residential special-education services. 10
Accordingly, each child is enrolled at the Judge Rotenburg 11
Educational Center, Inc. (“JRC”) in Massachusetts. 12
JRC provides residential, educational, and behavioral 13
services to individuals with severe behavioral disorders, 14
and is often a placement of last resort for those who have 15
proven resistant to other forms of psychological and 16
psychiatric treatment. Although JRC is out of state, the 17
children are permitted to attend under a New York law that 18
allows New York students with disabilities who are unable to 19
obtain an appropriate education in-state to attend an out- 20
of-state facility that, in the judgment of the Education 21
Department, can meet the needs of the child. N.Y. Educ. Law 22
§§ 4407(1)(a), 4401(2)(f), (h). 23
At JRC, each student starts with a non-intrusive, 24
positive-only, treatment program in which students receive 25
7

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rewards (e.g., treats, video games, music, field trips) for 1
maintaining positive behaviors, including learning. The 2
complaint alleges that these positive-only measures are 3
effective for most of JRC’s school-age students. For other 4
students, JRC may also employ negative-consequence 5
interventions known as aversives or aversive interventions. 6
According to the complaint, aversive interventions have 7
been used to deal with behaviors that pose significant 8
dangers to the student or others, or significantly interfere 9
with a student’s education, development, or appropriate 10
behavior. The techniques aim to stop the behavior and 11
thereby enable the student to receive an appropriate 12
education, to enjoy safety and well-being, and to develop 13
basic skills for learning and daily living. The complaint 14
alleges that aversive interventions have helped many JRC 15
students to participate in activities with peers and helped 16
some to attend college, join the armed forces, obtain 17
employment, and go on extended family visits. 18
The types of aversive interventions used by JRC include 19
helmets with safeguards that prevent removal, manual and 20
mechanical restraints, and food-control programs. But, 21
according to the complaint, JRC’s “principal form” of 22
aversive intervention is electric skin shock, in which a 23
low-level electrical current is applied to a small area of 24
the student’s skin (usually an arm or a leg). The shock 25
8

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lasts approximately two seconds, and is administered, on 1
average, less than once a week. The complaint alleges that 2
severe problematic behavior decreases with this regime, thus 3
alleviating an impediment to academic progress. Possible 4
side effects include temporary redness or marking, which 5
clears up within a few minutes (or a few days at most), and 6
a rare occurrence of blistering. 7
Clinicians have opined that it is necessary to 8
supplement these children’s ongoing educational and 9
treatment programs with aversives. However, none of the 10
children has yet received an IEP that authorizes such 11
interventions. 12
13
III 14
The Education Department, which is governed by the 15
Board of Regents, regulates educational services and 16
programs for New York residents. See N.Y. Educ. Law 17
§ 4403(3). It promulgates “regulations concerning standards 18
for the protection of children in residential care from 19
abuse and maltreatment,” id. § 4403(11), and periodically 20
inspects, reports on, and “make[s] recommendations 21
concerning instructional programs or special services for 22
all children with handicapping conditions who reside in or 23
attend any . . . state financed . . . social service 24
facilities, youth facilities, health facilities, [or] mental 25
9

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health, mental retardation and developmental disabilities 1
facilities,” id. § 4403(4). 2
In 2006, the Board of Regents promulgated a regulation 3
prohibiting schools, including “approved out-of-state day or 4
residential schools” (such as JRC), from using aversive 5
interventions. N.Y. Comp. Codes R. & Regs. tit. 8, 6
§ 19.5(b)(1) (2012). The regulation defines an “aversive 7
intervention” as an intervention “intended to induce pain or 8
discomfort to a student for the purpose of eliminating or 9
reducing maladaptive behaviors,” such as the contingent 10
application of painful, intrusive, or similar stimuli or 11
activity. Id. § 19.5(b)(2). 3
12
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 1
aversives to be administered in exceptional cases in the 2
three school years following the enactment of the 3
prohibition (2006-2007, 2007-2008, 2008-2009), and a 4
grandfather clause provides “that a student whose IEP 5
includes the use of aversive interventions as of June 30, 6
2009”--three years after the enactment of the prohibition-- 7
“may be granted a child-specific exception in each 8
subsequent school year . . . .” N.Y. Comp. Codes R. & Regs. 9
tit. 8, § 200.22(e). 10
Neither exception applies to the children in the 11
instant case because the initial three years of limited 12
aversive interventions has now ended, and none of these 13
children had an IEP that authorized aversives prior to June 14
30, 2009. 15
16
DISCUSSION 17
Plaintiffs raised below and press on appeal numerous 18
challenges to New York’s prohibition of aversive 19
interventions and seek declaratory and injunctive relief 20
preventing its enforcement. Specifically, Plaintiffs 21
contend that New York’s regulation violates: [1] the IDEA; 22
[2] the Rehabilitation Act of 1973; and [3] the Due Process 23
and Equal Protection clauses of the United States 24
Constitution. 25
11

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The district court granted Defendants’ motion to 1
dismiss all those claims for relief. We review that 2
decision de novo, “construing the complaint liberally, 3
accepting all factual allegations in the complaint as true, 4
and drawing all reasonable inferences in the plaintiff[s’] 5
favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 6
(2d Cir. 2002). Although all factual allegations in the 7
complaint must be assumed true for the purposes of a motion 8
to dismiss, this principle is “inapplicable to legal 9
conclusions” and “‘formulaic recitation[s] of the elements 10
of a cause of action.’” Ashcroft v. Iqbal, 556 U.S. 662, 11
678 (2d Cir. 2009) (quoting Twombly, 550 U.S. at 555). To 12
survive a motion to dismiss, a complaint must allege “enough 13
facts” to “raise a right to relief above the speculative 14
level” and “state a claim to relief that is plausible.” 15
Twombly, 550 U.S. at 555, 570; accord id. at 555 n.3. 16
In addition to dismissing Plaintiffs’ complaint under 17
Rule 12(b)(6), the district court also denied Plaintiffs’ 18
motion for a preliminary injunction. We review that ruling 19
for abuse of discretion. Ashcroft v. Am. Civil Liberties 20
Union, 542 U.S. 656, 664 (2004); Malletier v. Burlington 21
Coat Factory Warehouse Corp., 426 F.3d 532, 537 (2d Cir. 22
2005). “A district court abuses its discretion when (1) its 23
decision rests on an error of law . . . or a clearly 24
erroneous factual finding, or (2) its decision--though not 25
12

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necessarily the product of a legal error or a clearly 1
erroneous factual finding--cannot be located within the 2
range of permissible decisions.” Mullins v. City of New 3
York, 626 F.3d 47, 51 (2d Cir. 2010) (internal quotation 4
marks omitted; ellipsis in original). 5
6
I 7
A standing question has arisen. While this appeal was 8
pending, the Massachusetts Department of Developmental 9
Services promulgated a regulation that governs JRC (as a 10
school in the Commonwealth), and bars it from using some 11
aversives on these children and others. 12
The Massachusetts regulation, 115 Mass. Code Regs. 13
5.14 (2012), prohibits the use of certain aversive 14
interventions--including “contingent application of physical 15
contact aversive stimuli such as spanking, slapping, hitting 16
or contingent skin shock,” id. 5.14(3)(d)1.; see also id. 17
5.14(3)(d)--unless the child had a court-approved treatment 18
permitting the use of aversives before September 1, 2011 19
(which none of the children at issue in this case had). The 20
Massachusetts regulation permits other aversive 21
interventions--including “[c]ontingent application of 22
unpleasant sensory stimuli such as loud noises, bad tastes, 23
bad odors, or other stimuli which elicit a startle 24
response,” and “delay of [a] meal for a period not exceeding 25
13

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30 minutes,” id. 5.14(3)(c)1.c.-d.--if they are contained in 1
the student’s written behavior modification plan and if that 2
behavior modification plan meets certain special 3
requirements. See id. 5.14(4)(c). 4
Because certain aversive interventions, such as the 5
electric skin shock--the “principal form” of aversive 6
intervention used by JRC--are no longer permitted in 7
Massachusetts, Defendants contend that Plaintiffs’ claims 8
are moot. We disagree. 9
First, the question is not one of mootness. New York’s 10
prohibition on aversive interventions remains in effect and 11
applicable to these children. Accordingly, the case and 12
controversy is not moot. Cf. Lamar Advertising of Penn, LLC 13
v. Town of Orchard Park, 356 F.3d 365, 375-76 (2d Cir. 2004) 14
(explaining that, in the case of a statute or regulation, a 15
claim usually becomes moot when a statute or regulation is 16
amended). 17
The question is whether Plaintiffs retain standing, for 18
which: [1] “the plaintiff must have suffered an injury in 19
fact” that is both “concrete and particularized” and “actual 20
or imminent, not conjectural or hypothetical”; [2] “there 21
must be a causal connection between the injury and the 22
conduct complained of” such that the injury is “fairly 23
traceable to the challenged action of the defendant”; and 24
[3] “it must be likely, as opposed to merely speculative, 25
14

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that the injury will be redressed by a favorable decision.” 1
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) 2
(internal quotation marks, citations, brackets, and ellipsis 3
omitted). Defendants contend that redressability has been 4
foreclosed by Massachusetts’ new regulation. 5
We conclude that a decision favorable to Plaintiffs 6
would likely redress their injury for several reasons. 7
First, if Plaintiffs prevailed, the children could receive 8
the aversives that the new Massachusetts regulation 9
continues to permit; whereas the New York regulation 10
prohibits all aversives for these children, the 11
Massachusetts regulation does not. Compare N.Y. Comp. Codes 12
R. & Regs. tit. 8, § 19.5(b), with 115 Mass. Code Regs. 13
5.14(3)(c), (3)(d). True, electric skin shocks are the 14
“principal form” of aversive interventions used by JRC; but 15
if Plaintiffs prevail, the children may be able to receive 16
other aversives at JRC. 17
Second, Defendants erroneously assume that if these 18
children are unable to receive aversive interventions at 19
JRC, they will be unable to obtain aversives anywhere. The 20
complaint seeks an injunction preventing Defendants’ from 21
enforcing New York’s prohibition on aversives and a 22
declaration that the prohibition violates the U.S. 23
Constitution and federal law. The prayer for relief is not 24
25
15

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limited to treatment at JRC or in Massachusetts; JRC is not 1
mentioned in the prayer for relief. 2
As all the parties concede, no facility other than JRC 3
is currently treating New York children with aversive 4
interventions. But this is hardly surprising since New York 5
largely bans the use of aversive interventions. If New 6
York’s prohibition was declared invalid, it is “likely” that 7
other facilities in New York would provide aversives. See 8
Lujan, 504 U.S. at 561 (internal quotation marks omitted). 9
It is also likely that these children could go to a facility 10
in another state. See N.Y. Educ. Law §§ 4407(1)(a), 11
4401(2)(f), (h) (providing that New York students with 12
disabilities who cannot obtain an appropriate education in 13
New York may attend an out-of-state facility that the 14
Education Department determines can meet the child’s 15
needs).4
16
Finally, Plaintiffs would have standing to challenge 17
the New York prohibition even if, as Defendants argue, the 18
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), 38-
2561.01. 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 1
aversive interventions for these children. First, 2
Plaintiffs are prevented by issues of personal jurisdiction, 3
service, and venue from challenging the Massachusetts and 4
New York prohibitions in a single lawsuit; but their need to 5
invalidate the Massachusetts regulation would not deprive 6
them of standing to challenge the regulation in New York. 7
See Khodara Envt’l, Inc. v. Blakey, 376 F.3d 187, 194-96 (3d 8
Cir. 2004) (as amended) (Alito, J.); accord Lamar Adver. of 9
Penn, 356 F.3d at 374 (holding that the plaintiff had 10
standing to challenge a law blocking its posting of certain 11
advertising even though the plaintiff had not sought a 12
permit, which was an additional impediment to the 13
advertising). Second, Plaintiffs’ claimed injury is not (as 14
Defendants contend) that these children are unable to obtain 15
aversives generally, but rather that the New York 16
prohibition prevents them from receiving aversives. Viewed 17
properly, Plaintiffs can obtain redress in this litigation: 18
authority to obtain aversive interventions under New York 19
law. Accordingly, Plaintiffs continue to enjoy standing 20
because a favorable judgment would make it “likely” that 21
they could ultimately obtain the treatment they seek. See 22
Lujan, 504 U.S. at 561 (internal quotation marks omitted). 23
17

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II 1
Two types of claims lie under the IDEA: [1] a 2
procedural claim challenging the State’s compliance with the 3
procedures set forth in the IDEA, and [2] a substantive 4
claim challenging whether the IEP is reasonably calculated 5
to enable the student to receive educational benefits. See 6
Walczak, 142 F.3d at 129. 5 Plaintiffs assert both kinds of 7
claim. 8
9
A 10
Plaintiffs’ procedural claim is that prohibiting 11
aversive interventions prevents these children from 12
obtaining a truly individualized education program because 13
they are categorically barred from getting an IEP that 14
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 1
individual needs. See D.D. v. N.Y.C. Bd. of Educ., 465 F.3d 2
503, 511 (2d Cir. 2006) (explaining “that the right to a 3
free appropriate public education [FAPE] is afforded to each 4
disabled child as an individual”). 5
Nothing in New York’s regulation prevents 6
individualized assessment or precludes educators from 7
considering a wide range of possible treatments. The 8
regulation prohibits consideration of a single method of 9
treatment without foreclosing other options. In so doing, 10
the regulation follows the goals and emphasis of the IDEA. 11
See 20 U.S.C. § 1400(c)(5)(F) (“Almost 30 years of research 12
and experience has demonstrated that the education of 13
children with disabilities can be made more effective by 14
. . . positive behavioral interventions and supports”); 64 15
Fed. Reg. 12406, 12589 (Mar. 12, 1999) (“[T]he primary focus 16
must be on ensuring that the behavioral management 17
strategies in the child’s IEP reflect the [IDEA’s] 18
requirement for the use of positive behavioral interventions 19
and strategies to address the behavior that impedes the 20
learning of the child or that of other children.”). 6
21
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 1
aversives, see 20 U.S.C. § 1414(d)(3)(B)(i), it cannot be 2
said that a policy that relies on positive behavioral 3
interventions only is incompatible with the IDEA. 4
Plaintiffs argue that, because the regulation 5
eliminates one possible method from the students’ IEP, it 6
amounts to a predetermination that violates the procedural 7
guarantees of the IDEA, as explained in Deal v. Hamilton 8
Cnty. Bd. of Educ., 392 F.3d 840 (6th Cir. 2004). However, 9
there is a distinction between a policy that affects 10
individual cases on a categorical basis (such as the policy 11
at issue here) and a local predetermination that rejects 12
preemptively a measure that is permitted as a matter of 13
state law. 14
In Deal, a school district refused to consider a 15
particular teaching approach. Id. at 845-46. The Sixth 16
Circuit concluded that foreclosure of a program without 17
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 1
the IDEA because it deprived the parents of meaningful 2
participation in the IEP process. Id. at 857. We need not 3
pass on the reasoning of Deal because unlike the instant 4
challenge to a statewide prohibition enacted by a state 5
government, Deal involved a challenge to an unofficial 6
district policy involving a particular child’s specific IEP 7
as to which the parents had a statutory right of input, 20 8
U.S.C. § 1414(d)(1)(B). 9
The distinction is significant. See Alleyne v. N.Y. 10
State Educ. Dep’t, 691 F. Supp. 2d 322, 333 n.9 (N.D.N.Y. 11
2010) (distinguishing between authorities considering 12
predetermination in IEPs and the promulgation of statewide 13
regulations). “The IDEA was enacted to assist states in 14
providing special education and related services to children 15
with disabilities . . . not [to] usurp the state’s 16
traditional role in setting educational policy.” Taylor, 17
313 F.3d at 776-77. “Congress did not prescribe any 18
substantive standard of education” in the IDEA. J.D. v. 19
Pawlet Sch. Dist., 224 F.3d 60, 65 (2d Cir. 2000). Instead, 20
the IDEA “‘incorporates state substantive standards as the 21
governing federal rule’ if they are consistent with the 22
federal scheme and meet the minimum requirements set forth 23
by the IDEA.” Taylor, 313 F.3d at 777 (quoting Mrs. C. v. 24
Wheaton, 916 F.2d 69, 73 (2d Cir. 1990)). 25
21

-- 21 of 43 --

Moreover, Plaintiffs’ interpretation of the IDEA would 1
effectively strip state governments of the ability to adopt 2
statewide policy because it is impossible to consider each 3
student’s circumstances before adopting statewide policy. 4
For this reason, New York collects input--by parents, 5
professionals, and the public--when the Education Department 6
publishes a proposed regulation and an opportunity is 7
afforded for notice and comment. See N.Y. State Register, 8
Rule Making Activities, Nov. 15, 2006 . 9
In this case, New York adopted the ban of aversives 10
only after the Education Department made site visits, 11
reviewed reports, and considered complaints from parents as 12
well as school districts and others raising concerns about 13
aversive techniques. Notice of Emergency Adoption & 14
Proposed Rulemaking, N.Y. State Educ. Dep’t, June 20, 2006 . 15
It concluded that aversive interventions are dangerous and 16
may backfire and that positive behavioral interventions are 17
sufficiently effective to provide a FAPE. Id. 18
The prohibition therefore represents a considered 19
judgment; one that conforms to the IDEA’s preference for 20
positive behavioral intervention. See, e.g., 20 U.S.C. 21
§ 1400(c)(5)(F). (Another such New York policy is the long- 22
standing bar on corporal punishment. See N.Y. Comp. Codes 23
R. & Regs. tit. 8, § 19.5(a).) The IDEA does not 24
categorically bar such statewide regulations that resolve 25
22

-- 22 of 43 --

problems in special education; otherwise, the IDEA would be 1
transformed from a legislative scheme that preserves the 2
states’ fundamental role in education to one that usurps the 3
role of the states. Cf. Rowley, 458 U.S. at 208 (explaining 4
that “Congress’ intention was not that the [IDEA] displace 5
the primacy of States in the field of education, but that 6
States receive funds to assist them in extending their 7
educational systems to the handicapped”). 7
8
In sum, New York’s regulation prohibits only 9
consideration of a single method of treatment without 10
foreclosing other options. Nothing in the regulation 11
prevents individualized assessment, predetermines the 12
children’s course of education, or precludes educators from 13
considering a wide range of possible treatments. Therefore, 14
the district court correctly dismissed the procedural IDEA 15
claim. 16
17
B 18
Plaintiffs contend that the prohibition on aversive 19
interventions is a substantive violation of the IDEA because 20
aversives are necessary to control the severe behavioral 21
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

-- 23 of 43 --

disorders that undermine the children’s education. 1
Plaintiffs allege that a positive-only program is effective 2
with 70% of students but that each of these children fall 3
within the 30% who are not sufficiently treated with 4
positive-only interventions. 5
For many of the reasons discussed above, Plaintiffs 6
cannot state a substantive IDEA claim. The prohibition on 7
aversive interventions does not prevent these students from 8
obtaining an IEP specifically aimed at providing them an 9
appropriate education. Moreover, the Education Department 10
has decided to focus its special-education programs on 11
positive-only behavioral interventions, which is the clear 12
(although not exclusive) methodology favored by the IDEA. 13
Even if we assumed that permitting these children to 14
receive aversive interventions would help them fulfill their 15
potential, Plaintiffs’ substantive claim would still fail. 16
The “IDEA does not require states to develop IEPs that 17
‘maximize the potential of handicapped children.’” Walczak, 18
142 F.3d at 132 (quoting Rowley, 458 U.S. at 189); accord 19
Rowley, 458 U.S. at 197-98 & n.21. The IDEA “guarantees” 20
only that students with disabilities are provided an 21
“‘appropriate’ education, not one that provides everything 22
that might be thought desirable by loving parents.” 23
Walczak, 142 F.3d at 132 (internal quotation marks omitted). 24
A state satisfies its obligation to provide a free 25
24

-- 24 of 43 --

appropriate public education if it “provide[s] a disabled 1
child with meaningful access to an education” even if the 2
state “cannot guarantee totally successful results.” Id. at 3
133 (citing Rowley, 458 U.S. at 192); accord Rowley, 458 4
U.S. at 195 (explaining that the IDEA “imposes no clear 5
obligation upon recipient States beyond the requirement that 6
handicapped children receive some form of specialized 7
education”). 8
Defendants provide these students with meaningful 9
access to education opportunities by authorizing and funding 10
their specialized education and behavioral modification 11
treatment at an out-of-state residential facility that has 12
expertise in treating children with severe behavioral 13
disorders. Aversive interventions may help maximize the 14
children’s potential, but the IDEA does not require such 15
measures. 8
16
Moreover, we decline Plaintiffs’ invitation to review 17
and second guess New York’s education policy. Although the 18
IDEA provides for some judicial review, “the Supreme Court 19
has cautioned[] . . . that this ‘independent’ review ‘is by 20
no means an invitation to the courts to substitute their own 21
8 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

-- 25 of 43 --

notions of sound educational policy for those of the school 1
authorities they review.’” See Walczak, 142 F.3d at 129 2
(quoting Rowley, 458 U.S. at 206). We will not “simply 3
rubber stamp” the decisions of the states and locals, but we 4
must be “mindful that the judiciary generally lacks the 5
specialized knowledge and experience necessary to resolve 6
persistent and difficult questions of educational policy.” 7
Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d 8
Cir. 2005) (internal quotation marks omitted); accord 9
Rowley, 458 U.S. at 207 (“[C]ourts must be careful to avoid 10
imposing their view of preferable educational methods upon 11
the States.”). 12
There is an ongoing debate among the experts regarding 13
the advantages and disadvantages of aversive interventions 14
and positive-only methods of behavioral modification. The 15
judiciary is ill-suited to decide the winner of that debate. 16
See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 383 17
(2d Cir. 2003) (as amended) (reversing a district court 18
decision finding IEPs inadequate because the district court 19
“impermissibly chose between the views of conflicting 20
experts on a controversial issue of educational policy”). 21
Our deference to the Education Department’s decision is 22
further justified in this instance because New York adopted 23
the regulation after the Education Department obtained 24
information raising concerns regarding the potential health 25
26

-- 26 of 43 --

and safety implications of aversives. See Notice of 1
Emergency Adoption & Proposed Rulemaking, N.Y. State Educ. 2
Dep’t, June 20, 2006. The Education Department was 3
concerned that aversive interventions can result in 4
“aggressive and/or escape behaviors” and can foster the 5
development of “negative attitudes toward [one’s] self and 6
school programs,” id.--concerns raised by reports and 7
complaints by parents, school districts, and others. One 8
such source of concern was a lawsuit alleging abuse at JRC, 9
see Nicholson v. New York, 872 N.Y.S. 2d 846 (Ct. Cl. 2008), 10
which prompted a site visit on which the Education 11
Department “identified significant concerns for the 12
potential impact on the health and safety of New York 13
students,” see Notice of Emergency Adoption & Proposed 14
Rulemaking, N.Y. State Educ. Dep’t, June 20, 2006. This 15
Court is not institutionally suited to now second guess the 16
policy decision made by experts charged with formulating 17
education policy in New York. See Cerra, 427 F.3d at 192. 18
Because Plaintiffs have not and cannot allege that 19
these children have been deprived of a FAPE, they cannot 20
prevail on their substantive IDEA claim. 9
21
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

-- 27 of 43 --

III 1
In addition to their procedural and substantive IDEA 2
claims, Plaintiffs also assert a claim under the 3
Rehabilitation Act. Section 504 of the Rehabilitation Act 4
provides: “No otherwise qualified individual with a 5
disability . . . shall, solely by reason of her or his 6
disability, be excluded from the participation in, be denied 7
the benefits of, or be subjected to discrimination under any 8
program or activity receiving Federal financial assistance 9
. . . .” 29 U.S.C. § 794(a). 10
To establish a prima facie case under the 11
Rehabilitation Act, a plaintiff must allege: [1] that he or 12
she is a person with disabilities under the Rehabilitation 13
Act, [2] who has been denied benefits of or excluded from 14
participating in a federally funded program or special 15
service, [3] solely because of his or her disability. See 16
Mrs. C., 916 F.2d at 74. Plaintiffs, however, do not argue 17
that the regulation banning aversive interventions denies 18
them benefits on the basis of disability: The regulation 19
applies to all students, regardless of disability. 10
20
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

-- 28 of 43 --

Plaintiffs contend, however, that they state a claim 1
under Rehabilitation Act because New York’s ban on aversives 2
was promulgated in bad faith or is the result of gross 3
mismanagement. See Wegner v. Canastota Cent. Sch. Dist., 4
979 F. Supp. 147, 152 (N.D.N.Y. 1997) (relying on Brantley 5
v. Indep. Sch. Dist. No. 625, 936 F. Supp. 649, 657 (D. 6
Minn. 1996) (citing Monahan v. Nebraska, 687 F.2d 1164, 7
1170-71 (8th Cir. 1982))). We have never held that such a 8
claim exists under the Rehabilitation Act, but even assuming 9
that it does, Plaintiffs’ complaint fails to state such a 10
claim. 11
Plaintiffs’ allegations of bad faith and gross 12
mismanagement are refuted by the facts (of which we have 13
taken judicial notice) that the Education Department [1] 14
investigated the matter before offering the regulation for 15
public comment and [2] received the public’s comments before 16
promulgating the regulation. See Notice of Emergency 17
Adoption & Proposed Rulemaking, N.Y. State Educ. Dep’t, June 18
20, 2006; N.Y. State Register of Rule Making Activities, 19
Nov. 15, 2006. 20
Plaintiffs’ response that bad faith or gross 21
mismanagement is manifest because there is no scholarly 22
§ 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

-- 29 of 43 --

support for banning aversives is similarly refuted by the 1
Education Department’s citation to scholarly literature 2
discussing the dangers of aversives and the benefits of 3
positive-only treatment. See Notice of Emergency Adoption & 4
Proposed Rulemaking, N.Y. State Educ. Dep’t, June 20, 2006. 5
In any event, such a dispute (regarding which education 6
policy is the most scientifically sound and effective 7
approach that is least likely to present health, safety, and 8
moral and ethical concerns) is best left for resolution by 9
the policymakers and education administrators, not the 10
judiciary. See Cerra, 427 F.3d at 192; see also Rowley, 458 11
U.S. at 206-07; Walczak, 142 F.3d at 129. 12
13
IV 14
In addition to their statutory claims, Plaintiffs also 15
contend that New York’s prohibition of aversives deprives 16
them of their constitutional rights to substantive and 17
procedural due process and equal protection. Each claim is 18
addressed in turn. 19
20
A 21
Plaintiffs contend that the ban on aversive 22
interventions deprives these children of substantive due 23
process. Plaintiffs cannot prevail on such a claim because 24
30

-- 30 of 43 --

there is no substantive due process right to public 1
education. 2
“[T]he Due Process Clause of the Fourteenth Amendment 3
embodies a substantive component that protects against 4
‘certain government actions regardless of the fairness of 5
the procedures used to implement them.’” Immediato v. Rye 6
Neck Sch. Dist., 73 F.3d 454, 460 (2d Cir. 1996) (quoting 7
Daniels v. Williams, 474 U.S. 327, 331 (1986)). In 8
examining whether a government rule or regulation infringes 9
a substantive due process right, “the first step is to 10
determine whether the asserted right is ‘fundamental,’”-- 11
i.e., “implicit in the concept of ordered liberty, or deeply 12
rooted in this Nation’s history and tradition,” Leebaert v. 13
Harrington, 332 F.3d 134, 140 (2d Cir. 2003) (internal 14
quotation marks omitted). Where the right infringed is 15
fundamental, the regulation must be narrowly tailored to 16
serve a compelling government interest. Immediato, 73 F.3d 17
at 460. Where the right infringed is not fundamental, “the 18
governmental regulation need only be reasonably related to a 19
legitimate state objective.” Id. at 461. 20
The right to public education is not fundamental. 21
Handberry v. Thompson, 446 F.3d 335, 352 (2d Cir. 2006) 22
(citing Plyler v. Doe, 457 U.S. 202, 221 (1982); San Antonio 23
Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973)). 24
Thus, even if Plaintiffs alleged that these children were 25
31

-- 31 of 43 --

unable to receive a public education at all because they can 1
no longer receive aversives, the bar on aversive 2
interventions would still comport with due process if it was 3
reasonably related to a legitimate government objective. 4
The regulation rises to that low threshold because it serves 5
a legitimate government objective: preventing students from 6
being abused or injured by aversive interventions. 7
Realizing that there is no fundamental right to public 8
education, Plaintiffs contend they have been deprived of the 9
substantive due process because the ban on aversives is 10
arbitrary and capricious (because, as Plaintiffs argue, 11
aversives are effective and there is no scientific support 12
for banning them). This argument is addressed above. 13
Moreover, we decline Plaintiffs’ invitation to engage in 14
policymaking decisions that are best left to the political 15
branches. See Cerra, 427 F.3d at 192. In any event, safety 16
and ethical concerns as well as the potential for abuse 17
suffice to establish that New York’s prohibition is not 18
arbitrary and capricious--even if, as Plaintiffs contend, 19
aversives are the best and, perhaps, only way to effectively 20
treat these children’s severe behavior disorders. 21
22
23
24
25
32

-- 32 of 43 --

B 1
Plaintiffs’ procedural due process claim largely 2
duplicates the procedural IDEA claim and fails for the same 3
reasons. 4
A procedural due process claim is composed of two 5
elements: (1) the existence of a property or liberty 6
interest that was deprived and (2) deprivation of that 7
interest without due process. See Narumanchi v. Bd. of 8
Trustees, 850 F.2d 70, 72 (2d Cir. 1988). As a general 9
matter, Plaintiffs may have a property interest in public 10
education. See Handberry, 446 F.3d at 353 (discussing New 11
York law). The prohibition on aversives, however, does not 12
prevent these children from obtaining a public education, 13
even if, as Plaintiffs allege, these children would receive 14
a better education if aversive interventions were permitted. 15
Instead, Plaintiffs contend that they have an interest 16
in individualized assessments under the IDEA and that this 17
interest is undermined by the prohibition on aversive 18
interventions. This claim mirrors the procedural IDEA claim 19
and fails for the same reason: Plaintiffs have not alleged 20
that the prohibition on aversive interventions prevents an 21
individualized assessment, education, or treatment of these 22
children. The prohibition merely removes one possible form 23
of treatment from the range of possible options. Each child 24
is still able to receive an education plan that is tailored 25
33

-- 33 of 43 --

to his or her specific needs in all other respects. 1
In addition, this claim fails because Plaintiffs do not 2
possess a property interest in any particular type of 3
education program or treatment. See Handberry, 446 F.3d at 4
352. Plaintiffs contend that their property right 5
originates in the IDEA but, given the IDEA’s strong 6
preference for positive behavioral intervention, see, e.g., 7
20 U.S.C. § 1400(c)(5)(F), the IDEA does not create a 8
property interest in the possible receipt of aversive 9
interventions as part of an IEP. 10
11
C 12
Plaintiffs contend that the prohibition on aversive 13
interventions violates equal protection by treating them 14
differently than other students who had IEPs permitting them 15
to receive aversives before June 30, 2009--the cut-off date 16
for the grandfather clause. 17
Laws that discriminate on the basis of disability are 18
subject to rational-basis review and upheld so long as there 19
is a “rational relationship between the disparity of 20
treatment and some legitimate governmental purpose.” See 21
Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 22
98, 109 (2d Cir. 2001). And, as explained above, there is 23
at least a rational basis to support the prohibition on 24
aversives. 25
34

-- 34 of 43 --

Plaintiffs’ contention that the prohibition 1
distinguishes between students with disabilities who had 2
IEPs authorizing aversives prior to June 30, 2009, and 3
students with disabilities who did not have IEPs permitting 4
aversives, does not save the claim. Classifications that do 5
not “proceed[] along suspect lines . . . must be upheld 6
against equal protection challenge if there is any 7
reasonably conceivable state of facts that could provide a 8
rational basis for the classification.” FCC v. Beach 9
Commc’ns, Inc., 508 U.S. 307, 313 (1993). Classification on 10
the basis of authorization to administer aversive 11
interventions in a student’s IEP is, of course, a non- 12
suspect classification subject to rational basis review. 13
Defendants’ decision to grandfather the prohibition of 14
aversives so that students already authorized to receive 15
aversives could continue their treatment easily withstands 16
rational-basis review. Grandfathering bans aversive 17
interventions without interrupting education programs where 18
aversives were already being used or already authorized to 19
be used. It also avoids the tremendous labor of replacing 20
the IEPs of all students who had IEPs authorizing aversives. 21
Plaintiffs argue that the exception authorizing some 22
aversive interventions disproves that the ban was motivated 23
by safety. Not so. Although it is true that an outright 24
ban would better protect against any harms from aversives, 25
35

-- 35 of 43 --

reducing the use of aversives can still provide a benefit by 1
decreasing the number of students subjected to aversive 2
interventions and the harms potentially associated with such 3
interventions. 4
In the end, Plaintiffs’ argument is that they disagree 5
with Defendants’ policy choice to ban aversive 6
interventions. As long as Defendants had a rational reason, 7
however, the prohibition must be upheld against an equal 8
protection challenge. Here, the safety of the students 9
coupled with an attempt to minimize the impact of the 10
prohibition on students already receiving aversives provided 11
a rational basis for the prohibition and the use of a 12
grandfather provision to implement it. 13
14
V 15
Plaintiffs contend that the district court erred in 16
denying their request for a preliminary injunction. Because 17
the district court correctly dismissed the suit, it did not 18
err in denying Plaintiffs’ request for a preliminary 19
injunction. See Monserrate v. N.Y. State Senate, 599 F.3d 20
148, 154 & n.3 (2d Cir. 2010) (holding that a party cannot 21
satisfy the requirements for a preliminary injunction-- 22
including “likelihood of success on the merits”--if that 23
party cannot sustain any of its claims for relief). 24
25
36

-- 36 of 43 --

CONCLUSION 1
Accordingly, the judgment of the district court is 2
affirmed. 3
37

-- 37 of 43 --

DISSENT
RICHARD J. SULLIVAN, District Judge, concurring in part and
dissenting in part:
I concur in the majority’s opinion with regard to
Appellants’ Rehabilitation Act, Due Process, and Equal
Protection claims, but I respectfully dissent insofar as the
Court’s opinion relates to the dismissal of Appellants’ IDEA
claims because I believe that Appellants’ complaint alleged
sufficient facts to survive a motion to dismiss, and because
I find that the materials outside the complaint relied on by
the majority do not establish, as a matter of law, the
reasonableness of the State’s ban on aversive interventions.
In dismissing Appellants’ complaint, the district court
held that “the allegations demonstrate that the NYSED and
the Board of Regents explored the available data, studies,
and literature before making a reasoned decision that
aversives should be generally prohibited.” However, nowhere
in the opinion did the district court actually cite from the
pleadings to support this conclusion. Instead, the district
court merely observed that “plaintiffs do not allege that
[d]efendants did not consider the use of aversive
interventions before adopting § 200.22” and then concluded

-- 38 of 43 --

that “[t]he [c]ourt is not willing to second guess that
policy decision.” Id. (emphasis added).
While it is of course true that courts are not to
second guess state authorities in matters relating to
educational policy, the law is equally clear that federal
courts may not merely “rubber stamp administrative
decisions” of this kind. Cerra v. Pawling Cent. Sch. Dist.,
427 F.3d 186, 192 (2d Cir. 2005). Indeed, this Court has
recognized that, notwithstanding “our deferential position
with respect to state educational authorities crafting
educational policy,” “our review must be searching, and we
must recognize that even when educational authorities act
with the best intentions they may sometimes fall short of
their obligations under the IDEA, and courts must then act
to ensure compliance with Congress’s directives.” P. ex
rel. Mr. & Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111,
120-21 (2d Cir. 2008) (internal citations omitted). This is
particularly the case at the pleading stage, where a
plaintiffs’ allegations are presumed to be true. See Fed.
R. Civ. P. 12(b)(6); ATSI Commc’ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007). Here, the district
court’s conclusion that the prohibition of aversive
2

-- 39 of 43 --

interventions was reasonable is particularly problematic,
because Appellants alleged in their complaint that the
scientific literature, which the district court mentioned
(but did not cite) in its opinion, actually “supports the
use of aversive interventions and their vital role in
providing a FAPE to students with severe behavior
disorders.”
The majority affirms the district court’s dismissal of
Appellants’ suit, finding that the prohibition of aversive
interventions reflects “a considered judgment by the State
of New York regarding the education and safety of its
children that is consistent with federal education policy
and the United States Constitution.” In reaching this
conclusion, the majority relies not on the pleadings or on
the district court’s opinion, but rather on four pages from
the Education Department’s Notice of Emergency Adoption and
Proposed Rule Making, of which it has taken judicial notice.
While the Court can certainly take judicial notice of facts,
these four pages, standing alone, are insufficient to
justify the district court’s dismissal of Appellants’ claims
at this early stage of the litigation. Indeed, the first
two of those pages simply note the Department’s “concerns”
3

-- 40 of 43 --

with aversive interventions based on “site visits, reports
and complaints filed by parents, school districts and
others,” Notice of Emergency Adoption & Proposed Rulemaking,
N.Y. State Educ. Dep’t, June 20, 2006; the latter two merely
catalog scientific studies that purportedly support the
proposed rule.
Importantly, the scientific studies summarized in the
Notice of Emergency Adoption and Proposed Rule Making do not
directly call for the prohibition of aversive interventions.
To the contrary, these studies presuppose the use and
utility of aversive interventions at least in certain
contexts and merely set forth “standards” and “strategies to
improve an ABI’s [aversive behavioral intervention’s]
effectiveness and acceptability.” Id. It is worth noting
that of the several studies cited in the Notice of Emergency
Adoption and Proposed Rule Making, the two included in full
in the record actually describe the need for aversive
interventions in certain instances. See Dorothy C. Lerman &
Christina M. Vondram, On the Status of Knowledge for Using
Punishment: Implications for Behavior Disorders, 35 J. A PPL.
B EHAV. A NAL., 431, 456 (2002) (noting that “punishment is
still sometimes needed to reduce destructive behavior to
4

-- 41 of 43 --

acceptable levels”); Sarah-Jeanne Salvy et al., Contingent
Electric Shock (SIBIS) and a Conditioned Punisher Eliminate
Severe Head Banging in a Preschool Child, 19 B EHAV. I NTERVENT.
59, 70 (2004) (noting that ABIs “can sometime be necessary,
although not sufficient, to eliminate severe and harmful
[self-injurious behavior] in the natural environment”).
Consequently, I am unpersuaded that the Notice of Emergency
Adoption and Proposed Rule Making cited by the majority
provides a sufficient basis for upholding the district
court’s dismissal.
Of course, like the majority, I am “mindful that the
judiciary generally lacks the specialized knowledge and
experience necessary to resolve persistent and difficult
questions of educational policy.” Cerra, 427 F.3d at 192.
However, it seems to me that the appropriate course would be
to return this action to the district court, which could
then review a fuller record, beyond the pleadings, to assess
the regulation and its compliance with the IDEA. If my
cursory review of the literature in the field is any
indication, it seems likely that Appellees will be able to
demonstrate that “the regulations represent an informed,
rational choice between two opposing schools of thought on
5

-- 42 of 43 --

the use of aversives,” Alleyne v. N.Y. State Educ. Dept.,
691 F. Supp. 2d 322, 333 (N.D.N.Y. 2010), and that
Appellants will therefore have difficulty overcoming the
“substantial deference” accorded to the review of state
policy-making agencies, Wasser v. N.Y. State Office of Voc.
& Educ. Servs. for Individuals With Disabilities, 602 F.3d
476, 477 (2d Cir. 2010). Nevertheless, while the outcome
may ultimately be the same, it is important that the result
be based on a careful assessment of the merits, founded on a
well-developed record. In my view, the district court’s
dismissal – and the majority’s affirmance – takes an
unnecessary short cut to reach an outcome that cannot be
justified at this stage of the proceedings. For these
reasons, I respectfully dissent.
6

-- 43 of 43 --