Bryant v. N.Y. State Educ. Dep't

692 F.3d 202

284 Ed. Law Rep. 1

45 NDLR P 234

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.

Docket No. 10–4029–cv.

United States Court of Appeals, Second Circuit.

Argued: Oct. 21, 2011.

Decided: Aug. 20, 2012.

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 Plaintiffs–Appellants.

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.

Before: JACOBS, Chief Judge, WESLEY, Circuit Judge, and SULLIVAN, District Judge.¹

DENNIS JACOBS, Chief Judge:

Plaintiffs—the parents and/or legal guardians of seven children with disabilities, who bring this suit on behalf of themselves and the children—appeal a judgment of the United States District Court for the Northern District of New York (Sharpe, J.), dismissing their suit for failure to state a claim upon which relief can be granted, and denying their motion for a preliminary injunction. Plaintiffs seek equitable relief preventing the New York Board of Regents (“Board of Regents”), the New York State Education Department (“Education Department”), and the Commissioner of the Education Department (David M. Steiner, in his official capacity) from enforcing a prohibition on the use of aversive interventions. Aversive interventions are negative consequences or stimuli administered to children who exhibit problematic and disruptive behavior that impedes their education.

Plaintiffs contend that New York's prohibition of aversive interventions undermines their children's right to a free and appropriate public education (“FAPE”), which is guaranteed by federal law. We conclude that the State's prohibition of one possible method of reducing the consequences of a child's behavioral disability does not undermine the child's right to a FAPE or prevent administrators from enacting an individualized plan for the child's education.

Plaintiffs also contend that the State's prohibition violates the children's constitutional rights and the Rehabilitation Act of 1973 because the prohibition is arbitrary and oppressive, the product of gross misjudgment by State policymakers, and an infringement on the individualized assessment and treatment of students with disabilities. We conclude that New York's law represents 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.

Affirmed.

BACKGROUND

I

The Individuals with Disabilities Education Act (“the IDEA”) “is the most recent Congressional enactment in ‘an ambitious federal effort to promote the education of handicapped children.’ ” Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (interpreting the Education for All Handicapped Children Act, which was subsequently amended and renamed the IDEA)). The IDEA provides federal funds to states that “develop plans to assure all children with disabilities the right to a free appropriate public education.” Id. (internal quotation marks omitted). The IDEA requires that each child receive, at least annually, an individualized education program (“IEP”) ² detailing “special education and related services” tailored for the particular needs of the child, 20 U.S.C. § 1401(9), that are “reasonably calculated to enable the child to receive educational benefits,” Rowley, 458 U.S. at 207, 102 S.Ct. 3034.

II

The facts are taken from the well-pleaded factual allegations of the complaint, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and from information of which this Court can take judicial notice, see Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir.2002) (determining that a reviewing court can consider the complaint, documents attached to the complaint, documents incorporated by reference in the complaint, and public records when considering a motion to dismiss).

Plaintiffs are the parents or legal guardians of seven children, each of whom has a long history of severe behavior problems, including aggressive, self-injurious, destructive, and non-compliant behavior. These behavioral disabilities cause the children to engage in behaviors such as: yanking out their own teeth, attempting to stab themselves, tying ropes around their necks, scratching themselves, banging their heads on walls and other things, and assaulting teachers and staff members. These behaviors have impeded their education and development.

Plaintiffs have tried a number of measures to treat and educate these children, including: special education, day and residential programs, psychiatric hospitalization, counseling, physical restraints, paraprofessional support, home instruction, sensory tents, positive-only programs of behavioral modification, and anti-psychotic and other psychotropic medications. None has been successful, and the children continue to pose physical risks to themselves and others. As a result, they have been foreclosed from public schools and private institutions or confined in psychiatric wards and detention centers. Each child's IEP now suggests they receive residential special-education services. Accordingly, each child is enrolled at the Judge Rotenburg Educational Center, Inc. (“JRC”) in Massachusetts.

JRC provides residential, educational, and behavioral services to individuals with severe behavioral disorders, and is often a placement of last resort for those who have proven resistant to other forms of psychological and psychiatric treatment. Although JRC is out of state, the children are permitted to attend under a New York law that allows New York students with disabilities who are unable to obtain an appropriate education in-state to attend an out-of-state facility that, in the judgment of the Education Department, can meet the needs of the child. N.Y. Educ. Law §§ 4407(1)(a), 4401(2)(f), (h).

At JRC, each student starts with a non-intrusive, positive-only, treatment program in which students receive rewards ( e.g., treats, video games, music, field trips) for maintaining positive behaviors, including learning. The complaint alleges that these positive-only measures are effective for most of JRC's school-age students. For other students, JRC may also employ negative-consequence interventions known as aversives or aversive interventions.

According to the complaint, aversive interventions have been used to deal with behaviors that pose significant dangers to the student or others, or significantly interfere with a student's education, development, or appropriate behavior. The techniques aim to stop the behavior and thereby enable the student to receive an appropriate education, to enjoy safety and well-being, and to develop basic skills for learning and daily living. The complaint alleges that aversive interventions have helped many JRC students to participate in activities with peers and helped some to attend college, join the armed forces, obtain employment, and go on extended family visits.

The types of aversive interventions used by JRC include helmets with safeguards that prevent removal, manual and mechanical restraints, and food-control programs. But, according to the complaint, JRC's “principal form” of aversive intervention is electric skin shock, in which a low-level electrical current is applied to a small area of the student's skin (usually an arm or a leg). The shock lasts approximately two seconds, and is administered, on average, less than once a week. The complaint alleges that severe problematic behavior decreases with this regime, thus alleviating an impediment to academic progress. Possible side effects include temporary redness or marking, which clears up within a few minutes (or a few days at most), and a rare occurrence of blistering.

Clinicians have opined that it is necessary to supplement these children's ongoing educational and treatment programs with aversives. However, none of the children has yet received an IEP that authorizes such interventions.

III

The Education Department, which is governed by the Board of Regents, regulates educational services and programs for New York residents. SeeN.Y. Educ. Law § 4403(3). It promulgates “regulations concerning standards for the protection of children in residential care from abuse and maltreatment,” id. § 4403(11), and periodically inspects, reports on, and “make[s] recommendations concerning instructional programs or special services for all children with handicapping conditions who reside in or attend any ... state financed ... social service facilities, youth facilities, health facilities, [or] mental health, mental retardation and developmental disabilities facilities,” id. § 4403(4).

In 2006, the Board of Regents promulgated a regulation prohibiting schools, including “approved out-of-state day or residential schools” (such as JRC), from using aversive interventions. N.Y. Comp.Codes R. & Regs. tit. 8, § 19.5(b)(1) (2012). The regulation defines an ...