UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
JEANETTE ALLEYNE, et al.,
Plaintiffs, 1:06-cv-994 (GLS) v.
NEW YORK STATE EDUCATION DEPARTMENT; RICHARD P. MILLS, in his capacity as Commissioner of Education of the New York State Education Department; NEW YORK STATE BOARD OF REGENTS,
Defendants.
APPEARANCES: OF COUNSEL:
FOR THE PLAINTIFFS: Eckert, Seamans Law Firm MICHAEL P. FLAMMIA, ESQ. Two International Place KENNETH Y. LEE, ESQ. 16th Floor DEVORAH A. LEVINE, ESQ. Boston, MA 02110
O’Connell, Aronowitz Law Firm PETER DANZIGER, ESQ. 54 State Street JEFFREY J. SHERRIN, ESQ. 9th Floor Albany, NY 12207-2501
Office of Meredith H. Savitt MEREDITH H. SAVITT, ESQ. 636 Delaware Avenue Delmar, NY 12054
FOR THE DEFENDANTS:
HON. ANDREW M. CUOMO KELLY L. MUNKWITZ New York State Attorney General DAVID L. COCHRAN The Capitol JAMES B. MCGOWAN Albany, NY 12224 Assistant Attorneys General
Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs parents and guardians of disabled students attending the
Judge Rotenburg Educational Center (JRC) allege that defendants New
York State Education Department (NYSED), New York State Board of
Regents (NYSBR), and New York State Education Commissioner Richard
P. Mills violated their statutory and constitutional rights. The gravamen of
the complaint is that defendants arbitrarily denied the student plaintiffs a
free appropriate public education (FAPE) in violation of the IDEA1 when
they passed emergency regulations that eliminated or restricted aversive
treatments that had been authorized for the student plaintiffs. Pending is
defendants’ motion for summary judgment, or, in the alternative, for an
order dissolving the preliminary injunction issued in this matter. For the
1 Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq.
2
reasons that follow, the motion for summary judgment is granted in part
and denied in part, and the motion to dissolve the preliminary injunction is
denied.
II. Facts2
Plaintiffs are a group of approximately forty New York students with
severe behavioral problems who attend JRC, and their parents and
guardians.3 (See Pls. SMF ¶ 67, Dkt No. 237:1.) Located in
Massachusetts, JRC is a not-for-profit school that provides residential,
special education, and behavioral services for individuals who suffer severe
behavioral disorders. (See id. at ¶ 68.)
In addressing students’ problematic behaviors, JRC first employs
positive intervention methods such as rewards and token fines. These
methods are successful with about 60% of JRC students. (See id. at ¶ 71.)
If unsuccessful, JRC may employ aversive interventions. (See id. at ¶ 72.)
Aversive methods include contingent food programs, the use of helmets on
2 The facts are derived from the parties’ 7.1 statements of material facts and the record on this matter. The court notes that defendants have inexplicably failed to respond to plaintiffs’ additional statements of material facts. Thus, the court has deemed such additional statements admitted where supported by the record. 3 Discovery in this matter has been limited to ten representative student plaintiffs chosen by the parties. The court elected this process in an effort to reduce discovery expenses and expedite the suit. Obviously, expediting the litigation was but a dream born from the best intentions.
3
some children, mechanical restraints, and the application of electric skin
shocks through a graduated electronic decelerator (GED). (See Defs. SMF
¶ 5, Dkt. No. 233:1.) The GED may cause blisters or dark marks which
clear up within a few days. (See id. at ¶ 8.) Before aversives are used on
a student, such use must be approved by supervising personnel, the
student’s parent or guardian, two committees, the school district, an
independent board certified physician, and a Massachusetts probate court
judge. (See Pls. SMF ¶ 74, Dkt No. 237:1.) Individualized education
programs (IEPs) containing aversives are generally proposed by JRC and
transmitted to the child’s parents and the committee on special education
(CSE) for approval. (See Defs. SMF ¶ 13, Dkt. No. 233:1.) As of June 23,
2006, most of the students were receiving aversives for aggressive,
destructive, health dangerous, major disruptive, and non-compliant
behaviors. (See id. at ¶ 11.)
NYSED is charged with overseeing the education and well-being of
New York students. (See Pls. SMF ¶ 76, Dkt No. 237:1.) NYSED has
conducted numerous visits, inspections, and reviews of JRC, and has
approved JRC as an out-of-state school for decades. (See id. at ¶¶ 77-79.)
During this time, no concerns were raised about the health and safety of
4
JRC students or the use of aversives. (See id. at ¶¶ 82-83.) However, in
early 2006, a parent of a former JRC student sued NYSED, claiming, inter
alia, that JRC mistreated the student.4 (See id. at ¶ 84.) The suit was
followed by sensation-seeking newspaper articles highly critical of NYSED.
Shortly thereafter, NYSED proposed a complete ban on the use of
aversives, and decided to conduct another review of JRC due to the
lawsuit, despite having reviewed JRC in Fall 2005. (See id. at ¶¶ 80-81,
85.) While the group NYSED selected to conduct this “re-review” was
experienced in educational matters, some members of the team were not
familiar with aversive techniques and at least one member of the team was
opposed to aversives under all circumstances. (See id. at ¶¶ 87-88.) In
June 2006, NYSED released a report that was critical of JRC and its
methods. (See id. at ¶ 89.) Plaintiffs contend that this report “was littered
with flaws and false statements” because it omitted information as to the
effectiveness of JRC’s program and relied upon conjecture, innuendo, and
falsehoods. (Id. at ¶ 90.)
Upon NYSED’s recommendation, NYSBR adopted “emergency”
4 NYSED later defeated the parent’s lawsuit. (See Pls. SMF ¶ 86, Dkt No. 237:1.)
5
regulations in June 2006 that limited the use of aversives,5 effective June
23, 2006. (See Defs. SMF ¶ 17, Dkt. No. 233:1.) Defendants contend that
the regulations were the product of considerable research and review.
(See id. at ¶ 21.) The emergency regulations prohibited the use of
aversive interventions to reduce or eliminate maladaptive behaviors, except
as provided through a child-specific exception that applied when the child’s
CSE developed an IEP that included aversives. (See id. at ¶ 19.) After the
regulations went into effect on an emergency basis, NYSED held three
public hearings from August 8 to August 15, 2006. (See id. at ¶ 25.)
NYSED also opened up a public comment period on the proposed
5 New York’s regulations define aversives 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. The term does not include such interventions as voice control, limited to loud, firm commands; time-limited ignoring of a specific behavior; token fines as part of a token economy system; brief physical prompts to interrupt or prevent a specific behavior; interventions medically necessary for the treatment or protection of the student; or other similar interventions.
8 N.Y. COMP. CODES R. & REGS. § 19.5(b)(2).
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regulations that lasted from July 12, 2006, to August 28, 2006. (See id. at
¶ 27.) Through these channels, NYSED received voluminous comments
from the public, including some plaintiffs. (See id. at ¶¶ 26, 28-29.) While
plaintiffs opposed the regulations due to their limitation on the use of
aversives, most of the public commentary opposed the regulations
because they allowed the use of aversives at all. (See id. at ¶ 30.)
NYSED prepared an assessment of the public comments, and revisions
were correspondingly made to the regulations before they were presented
for permanent adoption. (See id. at ¶¶ 31, 34.) Under the finalized
regulations adopted in January 2007, the use of aversives is only permitted
for students who had aversives on their IEP as of June 30, 2009, and who
obtain a child-specific exception from a committee appointed by the
Commissioner or his designee. See 8 N.Y. COMP. CODES R. & REGS. §
200.22(e). The use of aversives under this exception is limited to self-
injurious and/or aggressive behaviors. (See id.) The United States
Department of Education (USDOE) reviewed the final regulations and
found that they “can be implemented consistent with the IDEA.” (See
Delorenzo Decl., Ex. A, Dkt. No. 161:3.)
Plaintiffs commenced the present action on August 16, 2006, and
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asserted claims for: (1) a “global” violation of the IDEA; (2) the denial of a
FAPE under the IDEA; (3) a violation of the Rehabilitation Act, 29 U.S.C. §
701, et seq.; (4) violations of the Equal Protection Clause of the New York
and United States Constitutions; (5) procedural due process violations
under the New York and United States Constitutions; and (6) substantive
due process violations under the New York and United States
Constitutions. (See generally Am. Compl., Dkt. No. 126.) Plaintiffs
additionally sought an order permanently enjoining defendants from
enforcing the emergency regulations or revoking JRC’s New York approval,
and a declaration that the emergency regulations are invalid. (See id.) In
conjunction with their complaint, plaintiffs also filed an ex parte motion for
preliminary injunctive relief, seeking to enjoin enforcement of the
regulations, which JRC had been complying with since June 23, 2006.
(See Dkt. No. 7.) The court granted this motion on September 8, 2006,
and enjoined NYSED from enforcing the regulations against plaintiffs.6
(See Dkt. No. 46.)
On February 13, 2009, defendants filed a motion for summary
6 The Order was subsequently modified to encompass additional plaintiffs and amendments to the regulations. (See Dkt. Nos. 53, 89.)
8
judgment under FED. R. CIV. P. 56, seeking dismissal of plaintiffs’ action, or,
alternatively, an order dissolving the court’s preliminary injunction. (See
Dkt. No. 233.) On July 21, 2009, the court held a hearing on the motion.
(See Dkt. No. 249.) During this hearing the court: (1) dismissed as moot
the claims of thirteen student plaintiffs who no longer attend JRC;7 and (2)
rejected defendants’ contention that the remaining plaintiffs’ claims must be
dismissed for failure to exhaust administrative remedies. (See id.)
Pending before the court is the remainder of defendants’ motion.
III. Standard of Review
In general, when a party moves for summary judgment in an IDEA
action, the normal inquiry as to whether there are any issues of fact or
credibility does not apply. See New Paltz Cent. Sch. Dist. v. St. Pierre, 307
F. Supp.2d 394, 397 (N.D.N.Y. 2004). Instead, the inquiry is “whether the
administrative record, together with any additional evidence, establishes
that there has been compliance with [the] IDEA’s processes.” Id. (internal
quotation marks and citation omitted). “[T]he district court must engage in
an independent review of the administrative record and make a
7 These student plaintiffs were DB2, NB, CC, KD, AD, TE, SF, CJ, PP, MP, ES, CS, and JT.
9
determination based on a ‘preponderance of the evidence.’” Gagliardo v.
Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007) (internal
citation omitted). Here, however, a full administrative record is absent, and
the parties have argued the motion under the normal summary judgment
standard. See Doe v. Metro. Nashville Pub. Schs., 133 F.3d 384, 387 (6th
Cir. 1998) (indicating that parties may elect for review under normal
summary judgment standard in IDEA action). Accordingly, the court will
proceed under the traditional standard for summary judgment. As this
standard is well established, it will not be repeated here. For a full
discussion of the standard, the court refers the parties to its previous
opinion in Bain v. Town of Argyle, 499 F. Supp.2d 192, 194-95 (N.D.N.Y.
2007).
IV. Discussion
A. “Global” IDEA Claim
Initially, the court addresses plaintiffs’ sixth cause of action, which
seeks to have the emergency regulations struck down on the grounds that
they are arbitrary, capricious, inconsistent with the purposes of the IDEA,
and the by-product of a flawed and biased process. Defendants contend
that this claim must be dismissed because the regulations represent an
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informed educational policy choice between two conflicting schools of
thought on the use of aversives, and that such choice is entitled to
deference. Upon review of the law, the parties’ briefs, and the record, the
court is constrained to agree with defendants’ arguments.
“The IDEA was enacted to assist states in providing special
education and related services to children with disabilities ....” Taylor v. Vt.
Dep’t of Educ., 313 F.3d 768, 776 (2d Cir. 2002) (citing 20 U.S.C. §
1411(a)(1)). A state is eligible for federal funds under the IDEA if it has
policies and procedures in effect to ensure, among other things, that
disabled children within the state are provided access to a FAPE. See id.
at 776-77 (quoting 20 U.S.C. § 20 U.S.C. § 1412). The Act defines a FAPE
as:
special education and related services that -- (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401(9); see also 34 C.F.R. § 300.17.
As the IDEA’s definition of a FAPE makes clear, “[t]he Act does not
11
usurp the state’s traditional role in setting educational policy.” Taylor, 313
F.3d at 777. Indeed, “[t]he statute incorporates state substantive standards
as the governing federal rule if they are consistent with the federal scheme
and meet the minimum requirements set forth by the IDEA.” Id. (internal
quotation marks and citations omitted). Thus, it must be remembered “that
[the] IDEA’s statutory scheme requires substantial deference to state
administrative bodies on matters of educational policy” and “that the
judiciary generally lacks the specialized knowledge and experience
necessary to resolve [such] persistent and difficult [issues].” Cerra v.
Pawling Cent. Sch. Dist., 427 F.3d 186, 191-92 (2d Cir. 2005) (internal
quotation marks and citations omitted). “Nevertheless, [the court’s] review
must be searching, and ... 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. v. Newington Bd. of Educ., 546
F.3d 111, 120-21 (2d Cir. 2008).
Mindful of the above principles, the court finds that the regulations at
issue here represent a permissible educational policy choice by defendants
for a variety of reasons. The regulations’ limitation and gradual phasing out
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of aversives is consistent with the IDEA’s focus on positive behavioral
modification methods. See 20 U.S.C. § 1400(c)(5)(F) (“Almost 30 years of
research and experience has demonstrated that the education of children
with disabilities can be made more effective by ... positive behavioral
interventions and supports ....”); § 1411(e)(2)(C)(iii) (allowing states to
reserve federal funding to assist local agencies in the provision of positive
behavioral interventions and supports, among other things); §
1414(d)(3)(B)(i) (indicating that an IEP team should “consider the use of
positive behavioral interventions and supports” for children whose behavior
impedes learning); § 1454(a)(3)(B)(iii)(I) (allowing states to use Federal
grants to train teachers in positive behavioral modification methods); §
1462(a)(6)(D) (permitting the Secretary of Education to enter into contracts
with entities that can provide positive behavioral support training); §
1465(b)(1)(B)-(C) (allowing Secretary to support activities which establish,
expand, or increase training for parents and teachers on positive
behavioral interventions and supports). Given this emphasis on positive
behavioral modification techniques, numerous states other than New York
have enacted statutes or regulations which similarly limit or prohibit the use
of aversives in the educational setting. See, e.g., CAL. EDUC. CODE §§
13
49001, 56520(a)(3); 05-071 ME. CODE R. Ch. 33, § 5; MINN. R. 3525.2900;
MONT. ADMIN. R. 10.16.3346; N.H. CODE ADMIN. R. ANN. EDUC. 1113.04-06,
1114.07-09; 22 PA. CODE § 14.133; 22 VA. ADMIN. CODE § 40-15-820;
WASH. ADMIN. CODE 392-172A-03125, 392-172A-03130. This prevailing
disfavor for aversive techniques weighs strongly in favor of the validity of
the regulations at issue here.
Plaintiffs have not addressed the above-cited statutes and
regulations. Instead, they have submitted numerous expert opinions which
dispute the regulations’ legitimacy and indicate that aversives are a
desirable and effective means of behavioral treatment. (See, e.g., Flammia
Decl., Ex. 23, Mulick Dep. at 7-8, Dkt. No. 237:11 (filed under seal);
Barrera Aff., Ex. 1 at 10, 23, Dkt. No. 237:7 (filed under seal); Mulick and
Van Houten Affs., Ex. 1 at 8, 20, Dkt. Nos. 237:2, 237:4 (filed under seal);
Israel Aff., Ex. 1 at 8-9, Dkt. No. 237:6 (filed under seal).) Admittedly,
these expert opinions are significantly more comprehensive than any
expert opinion proffered by the defendants. Indeed, defendants’ own
expert, Dr. Hagopian, conceded that “the position that punishment should
not be used is more of a philosophical based type of position,” and that it is
inappropriate to completely ban aversives. (Flammia Decl., Ex. 10,
14
Hagopian Dep. at 37-38, 130-32, 171-72, 261, Dkt. No. 237:10.)
It is readily apparent that the use and benefits of aversives in an
educational setting is a divisive issue among educational professionals.
This point is best illustrated by the deposition testimony of plaintiffs’ expert,
James A. Mulick, Ph.D. While Dr. Mulick indicated that he believed the
positive behavior movement to be “misleading” and inconsistent with
professional standards, he conceded that there is a “tribal division[]” in the
professional community between those who support aversives and those
who do not. (Mulick Dep. 281-82, Dkt. No. 250 (filed under seal).) He
further acknowledged that “by sheer way of numbers and success in
marketing and support from government agencies, the positive behavior
support people are becoming the standard face of behavior modification in
schools, which is their target audience.” (Id. at 283.) Given this split in the
professional community and the IDEA’s clear preference for positive
behavioral interventions, defendants were certainly entitled to limit and
ultimately phase out the use of aversives as a matter of educational policy.
See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S.
176, 206 (1982) (indicating that courts should not “substitute their own
notions of sound educational policy for those of the school authorities
15
which they review”).
It is also significant to note that the USDOE reviewed the finalized
regulations and indicated their belief that “they can be implemented
consistent with [the] IDEA.” (Delorenzo Decl., Ex. A, Dkt. No. 161:3.)
Plaintiffs contend that this review should be accorded limited weight
because it was conducted pursuant to a mere “complies substantially”
standard, which does not indicate “actual” compliance with the IDEA. See
D.D. v. N.Y. City Bd. of Educ., 465 F.3d 503, 512 (2d Cir. 2006). Be that
as it may, USDOE’s approval of the regulations is further evidence that
they can be reconciled with the IDEA.
A review of the record and the state register8 further reveals that the
emergency regulations were promulgated after consideration of numerous
articles on behavioral interventions, unsolicited public commentary, and
consultations with educational experts. (See Cort Decl. ¶ 9, Dkt. No.
233:10; Geary Decl. ¶ 3, Dkt. No. 233:13.) As such, it is clear that the
emergency regulations were made on an informed basis, contrary to
plaintiffs’ characterization. Additionally, the court cannot agree with
8 See NYS Register, July 12, 2006 at 10-15, available at http://www.dos.state.ny.us/info/register/2006/jul12/pdfs/rules.pdf.
16
plaintiffs’ contention that passage of the regulations on an “emergency”
basis was uncalled for.9 During the relevant time period, defendants were
facing a suit alleging aversive abuse at JRC and subsequent news articles
criticizing their failure to intervene. While the defendants’ regulatory
response may have been an unfortunate reaction to a suit subsequently
dismissed and news articles designed to sell papers, it was nonetheless
their obligation to expeditiously protect New York students. Finally, the
record reveals that the finalized regulations were adopted after three public
hearings and a public comment period, during which there was a
substantial outcry for the complete prohibition of aversives. (See
Delorenzo Decl., Ex. D, Dkt. No. 36; Defs. SMF ¶¶ 25-31, 34, Dkt. No.
233:1.) Contrary to plaintiffs’ contention, there is evidence that this public
commentary was a driving force in passing the final regulations. (See
Geary Decl. ¶ 5, Dkt. No. 233:13.)
In summary, the court finds that the regulations represent an
9 Nor does the fact that the defendants failed to consider the individual circumstances of each student plaintiff before promulgating the regulations render the regulations fatally defective. The cases and sections of the IDEA invoked by plaintiffs, requiring individualized consideration of a student’s unique circumstances, clearly relate to the development of an IEP, not the promulgation of regulations. See 20 U.S.C. § 1400(d)(1)(A); Rowley, 458 U.S. at 181- 82; P., 546 F.3d at 122; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006). If defendants were required to consider the individual circumstances of every individual student before enacting educational regulations, it would be virtually impossible to adopt such regulations.
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informed, rational choice between two opposing schools of thought on the
use of aversives. Whether it was the best choice, or one that the court
would have made, is irrelevant. The court, with its limited educational
expertise, is not the final arbiter in the realm of behavioral modification. As
the regulations are neither arbitrary nor capricious, and are consistent with
the purposes of the IDEA, plaintiffs’ facial attack must be rejected.
B. Denial of FAPE IDEA Claim
Plaintiffs’ remaining IDEA claim alleges that the regulations, as
applied to them, have resulted in the denial of a FAPE. As the court
indicated above, defendants’ sole argument for dismissal of this claim—
that plaintiffs have failed to exhaust their administrative remedies—was
rejected during oral argument. In the context of this argument, defendants
also tersely contended that plaintiffs were not denied a FAPE because their
progress reports evidenced academic progress rather than regression
during the period from June 23, 2006, to September 8, 2006, when JRC
was complying with the regulations. However, as the court intimated
during the hearing on this motion, academic progress is not the sole
measure of a FAPE. See, e.g., Mr. I. v. Me. Sch. Admin. Dist. No. 55, 480
F.3d 1, 12 (1st Cir. 2007) (“[T]he IDEA entitles qualifying children to
18
services that target all of their special needs, whether they be academic,
physical, emotional, or social.” (internal quotation marks, citations, and
emphasis omitted)); Alex R. v. Forrestville Valley Cmty. Unit Sch. Dist. #
221, 375 F.3d 603, 613 (7th Cir. 2004) (“An IEP that fails to address
disability-related actions of violence and disruption in the classroom is not
reasonably calculated to enable that child to receive educational benefits.”
(internal quotation marks omitted)); Frank G., 459 F.3d at 363 (“In
developing a particular child’s IEP, a [CSE] is required to consider four
factors: (1) academic achievement and learning characteristics, (2) social
development, (3) physical development, and (4) managerial or behavioral
needs.” (emphasis added, internal quotation marks and citations omitted));
Weixel v. Bd. of Educ. of the City of N.Y., 287 F.3d 138, 150 (2d Cir. 2002)
(“The scope of [the] IDEA’s coverage is not limited to students with
‘learning disabilities,’ but instead applies broadly to students who need
‘special education and related services.’” (citation omitted)); see also
Application of a Student Suspected of Having a Disability, Appeal No. 08-
100 at 17-18, available at, 188 PLI/NY 349; Letter to Clarke, 48 IDELR 77
(OSEP, Mar. 8, 2007), available at
http://www.ed.gov/policy/speced/guid/idea/letters/2007-1/clarke030807disa
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bility1q2007.pdf. Thus, the court must reject defendants’ contention that so
long as “a student is making academic progress, related services that
address a student’s social and/or behavioral issues may be denied even if
problematic behaviors continue.” (Defs. Reply at 3, Dkt. No. 240.) Beyond
this mistaken premise, defendants have not addressed the substance of
plaintiffs’ FAPE claims with sufficient specificity to render a ruling on such
claims appropriate here. As such, further administrative proceedings or
hearings may be necessary. Thus, for these reasons and those which the
court will discuss in its conclusion, defendants’ motion for summary
judgment on these claims is denied.
C. Rehabilitation Act Claim
Next, defendants contend that plaintiffs’ claim under the
Rehabilitation Act fails against Commissioner Mills because Section 504
does not allow for a state official to be sued in his personal capacity. It is
also asserted that this claim must fail on the merits. But because
Commissioner Mills is not being sued in his personal capacity, the court
focuses on defendants’ latter argument.
Section 504 of the Rehabilitation Act provides that “[n]o qualified
individual with a disability ... shall, solely by reason of her or his disability,
20
be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal
financial assistance ....” 29 U.S.C. § 794. In order to state a claim under
the Rehabilitation Act, a plaintiff must demonstrate (1) that he or she is a
disabled person under the Act, (2) who has been excluded from benefits of
a federally funded program or special service, (3) solely because of his or
her disability. See Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990). In
the context of an IDEA action, something more than the mere denial of a
FAPE must be shown in order to establish a violation of Section 504. See
Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 152 (N.D.N.Y.
1997). As such, plaintiffs must also demonstrate bad faith or gross
misjudgment to establish a Rehabilitation Act claim. See id.
Here, the court’s finding that the regulations represent a permissible
educational policy choice by the defendants precludes any finding that
such regulations were enacted in bad faith or with gross misjudgment.
Even were this not the case, plaintiffs’ arguments in support of their
Rehabilitation Act claim lack merit. Plaintiffs contend that defendants
improperly accepted allegations of mistreatment by JRC as fact in early
2006 without investigating their merits. With their next breath, however,
21
plaintiffs object to just such an investigation, asserting that defendants’ “re-
reviewed” JRC to avoid negative media attention arising from the 2006
allegations. Clearly, plaintiffs cannot have it both ways, and their attempt
to do so must be rejected.
Plaintiffs also attack the personnel who engaged in the “re-review”
because they lacked experience with aversives. While this assertion finds
some evidentiary support, it cannot give rise to an inference of bad faith, as
it is clear that the members of the re-review team were extremely
knowledgeable about educational matters in general.
Finally, to the extent it is asserted that defendants failed to support
their criticism of JRC’s use of aversives, and distorted scientific literature to
support the regulations, the court finds plaintiffs’ arguments without merit.
Despite plaintiffs’ fervent attempts to present aversives as uncontroversial,
it is evident that this is not the case. Rather, there is clearly abundant
support for the limitation, if not prohibition, of aversives. (See, e.g., Mulick
Dep. 281-83, Dkt. No. 250 (filed under seal); Delorenzo Decl., Ex. D, Dkt.
No. 36.) As such, the court cannot find that the regulations were enacted
in bad faith or with gross misjudgment, and therefore, plaintiffs’
Rehabilitation Act claims must be dismissed.
22
D. State and Federal Constitutional Claims
Finally, defendants seek dismissal of plaintiffs’ equal protection,
procedural due process, and substantive due process claims under the
New York and United States Constitutions, on grounds that such claims are
barred by sovereign immunity and are without merit.
1. Sovereign Immunity
Sovereign immunity bars state constitutional claims against the state,
its agencies, or against its employees in their official capacity, regardless of
the relief sought. See Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 105-06 (1984) (finding sovereign immunity bars federal courts
from adjudicating state claims against the state); Alliance of Am. Insurers v.
Cuomo, 854 F.2d 591, 604 (2d Cir. 1988); Diamond v. Pataki, No. 03 Civ.
4642, 2007 WL 485962, at *7 (S.D.N.Y. Feb. 14, 2007). As such, plaintiffs’
state constitutional claims are dismissed.
The court has construed plaintiffs’ federal constitutional claims to
arise under 42 U.S.C. § 1983, despite plaintiffs’ protestation, as no other
statutory vehicle for such claims is proffered.10 Because the state and its
10 Contrary to plaintiffs’ contention at oral argument, a constitutional claim may not be brought directly under the United States Constitution where a statutory vehicle for the assertion of such a claim exists. See Paulk v. Bd. of Trs. of City Univ. of N.Y., 654 F.2d 856, 865 (2d Cir. 1981); Koumantaros v. City Univ. of N.Y., No. 03 Civ. 10170, 2007 WL 840115, at *5
23
agencies are immune from suit under § 1983, see Howlett v. Rose, 496
U.S. 356, 365 (1990), plaintiffs’ federal constitutional claims must be
dismissed as against NYSED and NYSBR. However, to the extent
plaintiffs seek prospective injunctive and declaratory relief from ongoing
violations of federal law against Commissioner Mills in his official capacity,
the federal constitutional claims are not barred by sovereign immunity. See
Ex parte Young, 209 U.S. 123 (1908); Santiago v. N.Y. State Dep’t Corr.
Servs., 945 F.2d 25, 32 (2d Cir. 1991) (holding Ex parte Young applies only
to state official, not state or state agency). As such, the court turns to the
merits of these claims.
2. Substantive Due Process
“[T]he Due Process Clause of the Fourteenth Amendment embodies
a substantive component that protects against certain government actions
regardless of the ... procedures used to implement them.” Immediato v.
Rye Neck School Dist., 73 F.3d 454, 460 (2d Cir. 1996) (internal quotation
marks and citation omitted). “In assessing whether a government
regulation impinges on a substantive due process right, the first step is to
determine whether the asserted right is ‘fundamental.’” Leebaert v.
(S.D.N.Y. Mar. 19, 2007).
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Harrington, 332 F.3d 134, 140 (2d Cir. 2003) (emphasis omitted). “Rights
are fundamental when they are implicit in the concept of ordered liberty, or
deeply rooted in this Nation’s history and tradition.” Immediato, 73 F.3d at
460-61 (internal quotation marks and citations omitted). “Where the right
infringed is fundamental, strict scrutiny is applied to the challenged
governmental regulation.” Leebaert, 332 F.3d at 140 (citation omitted).
However, “[w]here the claimed right is not fundamental, the governmental
regulation need only be reasonably related to a legitimate state objective”
to survive constitutional review. Immediato, 73 F.3d at 454.
Contrary to plaintiffs’ contention, the right to public education is not
fundamental. See Handberry v. Thompson, 446 F.3d 335, 352-53 (2d Cir.
2006); see also San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35
(1973); Manbeck v. Katonah-Lewisboro Sch. Dist., 435 F. Supp.2d 273,
276 n.2 (S.D.N.Y. 2006), aff’d, 264 Fed. Appx. 61 (2d Cir. 2008). Thus,
despite defendants’ inexplicable failure to address the relation between the
regulations and a government interest, plaintiffs’ substantive due process
claim fails. “Education is unquestionably a legitimate state interest.”
Immediato, 73 F.3d at 462. This interest clearly extends to the academic,
emotional, and physical well being of students in the educational setting.
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Furthermore, the regulations’ limitation and ultimate prohibition of aversives
is rationally related to these state interests, as defendants could have
reasonably concluded that the potential harm of aversives in education
outweighs their potential benefits. As such, plaintiffs’ substantive due
process claim is dismissed.
3. Procedural Due Process
Analysis of a procedural due process claim is composed of two
prongs. Narumanchi v. Bd. of Trs. of Conn. State Univ., 850 F.2d 70, 72
(2d Cir. 1988). First, the court must discern “whether the plaintiff has a
property or liberty interest protected by the Constitution.” Id. If such an
interest exists, “[the] court must then consider whether the government
deprived the plaintiff of that interest without due process.” Id. Thus, under
this second step of the analysis, the court must ask “what process was due
to the plaintiff, and ... whether that constitutional minimum was provided in
the case under review.” Id. This involves a weighing of the private interest
to be affected, the risk of erroneous deprivation, the value of additional
safeguards, and the governmental burden such additional safeguards
would impose.
Here, plaintiffs contend that they were deprived of their interest in
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education without due process because the regulations limiting aversives
were passed on an emergency basis, and public hearings were only held
subsequently. The court cannot agree. While both New York law and the
IDEA create a property interest in education, see Handberry, 446 F.3d at
353, it is far from clear that this interest—which does not rise to the level of
a fundamental right—extends to aversives. Assuming it does, the court
notes that a post-deprivation hearing is sufficient to satisfy due process
where a valid governmental interest militates toward immediate action.
See, e.g., Ezekwo v. N.Y. City Health & Hosps. Corp., 940 F.2d 775, 783-
84 (2d Cir. 1991). Here, defendants were faced with allegations of abuse
at JRC, and a report which gave concern about JRC’s use of aversives. As
such, it was certainly reasonable to assume that immediate action was
necessary at the time the emergency regulations were enacted, even if
hindsight reveals that this was not the case. Additionally, in the months
following the passage of the emergency regulations, notices were provided,
public hearings were held, comments were accepted, and an assessment
of public comment was published—all in compliance with New York’s
Administrative Procedure Act. These subsequent procedures actually
resulted in final regulations which were more restrictive regarding the use
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of aversives than the emergency regulations were. As such, it would
appear that additional procedures prior to the promulgation of the
emergency regulations would have been of little value to the plaintiffs.11
Accordingly, plaintiffs’ procedural due process claim is dismissed.
4. Equal Protection
In order to adequately present an equal protection claim under the
Fourteenth Amendment, plaintiffs must prove that “(1) compared with
others similarly situated, [they were] selectively treated; and (2) that such
selective treatment was based on impermissible considerations such as
race, religion, [disability,] intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure a person.”
LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir.1980). Plaintiffs fail to
satisfy either prong of this analysis. First, the emergency regulations apply
to all New York state students with disabilities. Thus, plaintiffs have not
been subjected to selective treatment. Further, there is no indication that
the regulations were the result of disability-based discrimination or an intent
to cause plaintiffs injury, constitutional or otherwise. Accordingly, plaintiffs’
11 Again, the court rejects plaintiffs’ contention that consideration of each individual plaintiff’s circumstances was required before the regulations were promulgated. Such a requirement would obviously make the passage of any educational regulation virtually impossible.
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equal protection claims are dismissed.
E. Preliminary Injunction
Lastly, defendants contend that the preliminary injunction should be
dissolved, as plaintiffs have suffered no academic harm from the
regulations. It is further asserted that the preliminary injunction should be
dissolved because JRC is incapable of administering aversives
responsibly, as evidenced by the fact that in August 2007, JRC staff
improperly administered multiple GED shocks to two students upon the
phone directives of other JRC students who were masquerading as JRC
staff.
A preliminary injunction “is an equitable remedy ... issued to maintain
the status quo until there can be a hearing on the merits.” Sierra Club v.
U.S. Army Corps of Eng’rs, 732 F.2d 253, 256 (2d Cir. 1984) (italics
omitted). The decision whether to modify or vacate a preliminary injunction
is committed to the inherent discretion of the district court. See id. at 256-
57. “The test of that discretion is measured by whether the requested
[vacatur] effectuates or thwarts the purpose behind the injunction.” Id. at
257 (citing Chrysler Corp. v. United States, 316 U.S. 556, 562 (1942)).
“Thus, a district court may modify or vacate a preliminary injunction when
29
... necessary to preserve the status quo.” Museum Boutique
Intercontinental, Ltd. v. Picasso, 880 F. Supp. 153, 161 (S.D.N.Y. 1995)
(citing Sierra Club, 732 F.2d at 257).
Defendants have not satisfied this standard. Vacating the preliminary
injunction in this case would not maintain the status quo. Rather, such
action would destroy it. The court has already rejected the contention that
plaintiffs’ academic progress establishes beyond reproach that the
regulations have not denied the plaintiffs a FAPE. Further, while the
incident in August 2007 was unfortunate, there is no evidence that similar
episodes have occurred before or since. JRC continues to be approved by
Massachusetts agencies and NYSED, and has taken remedial measures to
preclude the recurrence of such incidents. As such, the court declines to
dissolve the preliminary injunction.
V. Conclusion
Recognizing that equity and the law are not always synonymous, the
court has nonetheless struggled with its perception of the equities in this
case. On the one hand, the underlying facts—albeit unique to each
individual plaintiff—demonstrate the plight of parents and guardians as they
struggle for the education, love, and affection of the severely disabled
30
whose best interests have been entrusted to their care. Typically strapped
financially, they must rely on the public generosity reflected in the IDEA to
provide their disabled children with a free and appropriate public education.
On the other hand, Congress has substantially left the reasonable
parameters of that education to state education officials, not federal judges.
Certainly, there is a national debate regarding the efficacy of aversives.
New York, as it is authorized to do, has resolved that debate with
regulations that are reasonable and within its province to enact.
Undoubtedly, plaintiffs will find it unfair that a national debate and a state
regulatory decision override their personal beliefs regarding the best
interests of their disabled children. Recognizing this dichotomy, the court
has ruled as it believes it is legally obligated to.
These observations are offered in hopes that they might facilitate
rational conversations between the parties as they digest the ramifications
of the court’s rulings and calculate the course ahead. The individual FAPE
claims have survived. While the court has no specific expertise in the
enforcement options available under the current regulations, it has resolved
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certain fundamental issues regarding individual claims.12 Thus, it has ruled
that the failure to exhaust administrative remedies does not bar those
claims and a FAPE encompasses behavioral, not just academic, progress.
With these observations in mind, the court affords the attorneys thirty
(30) days to digest this opinion, consult with their respective clients, and file
a joint letter containing a proposal for the resolution of the individual FAPE
claims.
Accordingly, and for the reasons stated herein, it is hereby
ORDERED that defendants’ motion for summary judgment is
GRANTED as to all claims, with the sole exception of plaintiffs’ denial of
FAPE claims; and it is further
ORDERED that defendants’ motion to dissolve the preliminary
injunction is DENIED; and it is further
ORDERED that on or before March 26, 2010, the parties shall file a
joint letter containing a proposal for the resolution of the individual FAPE
claims; and it is further
ORDERED that the Clerk of the Court provide copies of this
12 The regulations appear to permit the use of aversives for individuals whose IEPs called for aversives as of June 30, 2009, and who obtain a child-specific exception from a designated committee.
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Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
February 24, 2010 Albany, New York
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