The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:
Bryant v. N.Y. State Educ. Dep't
Before: JACOBS, Chief Judge, WESLEY, Circuit
Judge, and SULLIVAN, District Judge.*fn1
Plaintiffs--the parents and/or legal guardians of seven 2 children with disabilities, who bring this suit on behalf of 3 themselves and the children--appeal the judgment of the 4 United States District Court for the Northern District of 5 New York (Sharpe, J.), dismissing their suit for failure to 6 state a claim upon which relief can be granted, and denying 7 their motion for a preliminary injunction. Plaintiffs seek 8 equitable relief preventing New York from enforcing a 9 prohibition on the use of aversive interventions, which are 10 negative consequences or stimuli administered if a child's 11 disruptive behavior impedes the child's education.
12 We conclude that prohibiting one possible method of 13 dealing with disorders in behavior, such as aversive 14 intervention, does not undermine a child's right to an 15 individualized, free and appropriate public education, and 16 that New York's law represents the State's considered 17 judgment regarding the education and safety of its children 18 that is consistent with federal education policy and the 19 United States Constitution.
20 The judgment of the district court is affirmed. Judge 21 Sullivan has filed a separate opinion in which he concurs in 22 part and in part dissents.
Plaintiffs--the parents and/or legal guardians of seven 21 children with disabilities, who bring this suit on behalf of 22 themselves and the children--appeal a judgment of the United 23 States District Court for the Northern District of New York 24 (Sharpe, J.), dismissing their suit for failure to state a 25 claim upon which relief can be granted, and denying their 26 motion for a preliminary injunction. Plaintiffs seek 27 equitable relief preventing the New York Board of Regents 28 ("Board of Regents"), the New York State Education 29 Department ("Education Department"), and the Commissioner of 30 the Education Department (David M. Steiner, in his official 31 capacity) from enforcing a prohibition on the use of 32 aversive interventions. Aversive interventions are negative 33 consequences or stimuli administered to children who exhibit 1 problematic and disruptive behavior that impedes their 2 education.
Plaintiffs contend that New York's prohibition of 4 aversive interventions undermines their children's right to 5 a free and appropriate public education ("FAPE"), which is 6 guaranteed by federal law. We conclude that the State's 7 prohibition of one possible method of reducing the 8 consequences of a child's behavioral disability does not 9 undermine the child's right to a FAPE or prevent 10 administrators from enacting an individualized plan for the 11 child's education.
Plaintiffs also contend that the State's prohibition 13 violates the children's constitutional rights and the 14 Rehabilitation Act of 1973 because the prohibition is 15 arbitrary and oppressive, the product of gross misjudgment 16 by State policymakers, and an infringement on the 17 individualized assessment and treatment of students with 18 disabilities. We conclude that New York's law represents a 19 considered judgment by the State of New York regarding the 20 education and safety of its children that is consistent with 21 federal education policy and the United States Constitution.
3 The Individuals with Disabilities Education Act ("the 4 IDEA") "is the most recent Congressional enactment in 'an 5 ambitious federal effort to promote the education of 6 handicapped children.'" Walczak v. Fla. Union Free Sch. 7 Dist., 142 F.3d 119, 122 (2d. Cir. 1998) (quoting Bd. of 8 Educ. v. Rowley, 458 U.S. 176, 179 (1982) (interpreting the 9 Education for All Handicapped Children Act, which was 10 subsequently amended and renamed the IDEA)). The IDEA 11 provides federal funds to states that "develop plans to 12 assure all children with disabilities the right to a free 13 appropriate public education." Id. (internal quotation 14 marks omitted). The IDEA requires that each child receive, 15 at least annually, an individualized education program 16 ("IEP")*fn2 detailing "special education and related services" 17 tailored for the particular needs of the child, 20 U.S.C. 18 § 1401(9), that are "reasonably calculated to enable the 1 child to receive educational benefits," Rowley, 458 U.S. at 2 207.
The facts are taken from the well-pleaded factual 6 allegations of the complaint, Bell Atl. Corp. v. Twombly, 7 550 U.S. 544, 555, 570 (2007), and from information of which 8 this Court can take judicial notice, see Taylor v. Vt. Dep't 9 of Educ., 313 F.3d 768, 776 (2d Cir. 2002) (determining that 10 a reviewing court can consider the complaint, documents 11 attached to the complaint, documents incorporated by 12 reference in the complaint, and public records when 13 considering a motion to dismiss).
14 Plaintiffs are the parents or legal guardians of seven 15 children, each of whom has a long history of severe behavior 16 problems, including aggressive, self-injurious, destructive, 17 and non-compliant behavior. These behavioral disabilities 18 cause the children to engage in behaviors such as: yanking 19 out their own teeth, attempting to stab themselves, tying 20 ropes around their necks, scratching themselves, banging 21 their heads on walls and other things, and assaulting 22 teachers and staff members. These behaviors have impeded 23 their education and development.
Plaintiffs have tried a number of measures to treat and 25 educate these children, including: special education, day 1 and residential programs, psychiatric hospitalization, 2 counseling, physical restraints, paraprofessional support, 3 home instruction, sensory tents, positive-only programs of 4 behavioral modification, and anti-psychotic and other 5 psychotropic medications. None has been successful, and the 6 children continue to pose physical risks to themselves and 7 others. As a result, they have been foreclosed from public 8 schools and private institutions or confined in psychiatric 9 wards and detention centers. Each child's IEP now suggests 10 they receive residential special-education services. 11 Accordingly, each child is enrolled at the Judge Rotenburg 12 Educational Center, Inc. ("JRC") in Massachusetts.
13 JRC provides residential, educational, and behavioral 14 services to individuals with severe behavioral disorders, 15 and is often a placement of last resort for those who have 16 proven resistant to other forms of psychological and 17 psychiatric treatment. Although JRC is out of state, the 18 children are permitted to attend under a New York law that 19 allows New York students with disabilities who are unable to 20 obtain an appropriate education in-state to attend an out- 21 of-state facility that, in the judgment of the Education 22 Department, can meet the needs of the child. N.Y. Educ. Law 23 §§ 4407(1)(a), 4401(2)(f), (h).
At JRC, each student starts with a non-intrusive, 25 positive-only, treatment program in which students receive 1 rewards (e.g., treats, video games, music, field trips) for 2 maintaining positive behaviors, including learning. The 3 complaint alleges that these positive-only measures are 4 effective for most of JRC's school-age students. For other 5 students, JRC may also employ negative-consequence 6 interventions known as aversives or aversive interventions.
According to the complaint, aversive interventions have 8 been used to deal with behaviors that pose significant 9 dangers to the student or others, or significantly interfere 10 with a student's education, development, or appropriate 11 behavior. The techniques aim to stop the behavior and 12 thereby enable the student to receive an appropriate 13 education, to enjoy safety and well-being, and to develop 14 basic skills for learning and daily living. The complaint 15 alleges that aversive interventions have helped many JRC 16 students to participate in activities with peers and helped 17 some to attend college, join the armed forces, obtain 18 employment, and go on extended family visits.
19 The types of aversive interventions used by JRC include 20 helmets with safeguards that prevent removal, manual and 21 mechanical restraints, and food-control programs. But, 22 according to the complaint, JRC's "principal form" of 23 aversive intervention is electric skin shock, in which a 24 low-level electrical current is applied to a small area of 25 the student's skin (usually an arm or a leg). The shock 1 lasts approximately two seconds, and is administered, on 2 average, less than once a week. The complaint alleges that 3 severe problematic behavior decreases with this regime, thus 4 alleviating an impediment to academic progress. Possible 5 side effects include temporary redness or marking, which 6 clears up within a few minutes (or a few days at most), and 7 a rare occurrence of blistering.
8 Clinicians have opined that it is necessary to 9 supplement these children's ongoing educational and 10 treatment programs with aversives. However, none of the 11 children has yet received an IEP that authorizes such 12 interventions.
The Education Department, which is governed by the 16 Board of Regents, regulates educational services and 17 programs for New York residents. See N.Y. Educ. Law 18 § 4403(3). It promulgates "regulations concerning standards 19 for the protection of children in residential care from 20 abuse and maltreatment," id. § 4403(11), and periodically 21 inspects, reports on, and "make[s] recommendations 22 concerning instructional programs or special services for 23 all children with handicapping conditions who reside in or 24 attend any . . . state financed . . . social service 25 facilities, youth facilities, health facilities, [or] mental 1 health, mental retardation and developmental disabilities 2 facilities," id. § 4403(4).
In 2006, the Board of Regents promulgated a regulation 4 prohibiting schools, including "approved out-of-state day or 5 residential schools" (such as JRC), from using aversive 6 interventions. N.Y. Comp. Codes R. & Regs. tit. 8, 7 § 19.5(b)(1) (2012). The regulation defines an "aversive 8 intervention" as an intervention "intended to induce pain or 9 discomfort to a student for the purpose of eliminating or 10 reducing maladaptive behaviors," such as the contingent 11 application of painful, intrusive, or similar stimuli or 12 activity. Id. § 19.5(b)(2).*fn3
A child-specific exemption allows pre-approved 2 aversives to be administered in exceptional cases in the 3 three school years following the enactment of the 4 prohibition (2006-2007, 2007-2008, 2008-2009), and a 5 grandfather clause provides "that a student whose IEP 6 includes the use of aversive interventions as of June 30, 7 2009"--three years after the enactment of the prohibition-- 8 "may be granted a child-specific exception in each 9 subsequent school year . . . ." N.Y. Comp. Codes R. & Regs. 10 tit. 8, § 200.22(e).
11 Neither exception applies to the children in the 12 instant case because the initial three years of limited 13 aversive interventions has now ended, and none of these 14 children had an IEP that authorized aversives prior to June 15 30, 2009.
Plaintiffs raised below and press on appeal numerous 19 challenges to New York's prohibition of aversive 20 interventions and seek declaratory and injunctive relief 21 preventing its enforcement. Specifically, Plaintiffs 22 contend that New York's regulation violates:  the IDEA; 23  the Rehabilitation Act of 1973; and  ...