UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
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.; and JAMIE TAM, individually and as next friend and guardian of S.T.,
Plaintiffs, 8:10-cv-036 (GLS\RFT) v.
NEW YORK STATE EDUCATION DEPARTMENT; DAVID M. STEINER, in his capacity as Commissioner of Education of the New York State Education Department; and THE NEW YORK STATE BOARD OF REGENTS,
Defendants.
APPEARANCES: OF COUNSEL:
FOR THE PLAINTIFFS: O’Connell, Aronowitz Law Firm JEFFREY J. SHERRIN, ESQ. 54 State Street, 9th Floor Albany, NY 12207-2501
Office of Meredith H. Savitt MEREDITH H. SAVITT, ESQ. 636 Delaware Avenue Delmar, NY 12054
Eckert, Seamans Law Firm MICHAEL P. FLAMMIA, ESQ. Two International Place, 16th Floor Boston, MA 02110
FOR THE DEFENDANTS: HON. ANDREW M. CUOMO KELLY L. MUNKWITZ New York State Attorney General Assistant Attorney General The Capitol Albany, NY 12224
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, Inc. (JRC) commenced this action
against defendants the New York State Education Department (NYSED),
Commissioner of Education David M. Steiner, and the New York State
Board of Regents, alleging violations of the Individuals with Disabilities Act
(IDEA),1 the Rehabilitation Act of 1973,2 and the United States and New
1 20 U.S.C. § 1400, et seq. 2 29 U.S.C. § 701, et seq.
2
York State Constitutions. (See Compl., Dkt. No. 1.) Pending are plaintiffs’
motion for a preliminary injunction, (Dkt. No. 7), and defendants’ motion to
dismiss, (Dkt. No. 13). For the reasons that follow, the preliminary
injunction is denied and defendants’ motion to dismiss is granted.
II. Background
A. Factual History
Plaintiffs are the parents and legal guardians of seven disabled
children who are students at JRC. (See Compl. ¶¶ 1-14, Dkt. No. 1.) JRC
is a not-for-profit, special education facility located in Canton,
Massachusetts. (See id. at ¶ 25.) Among other things, JRC provides
residential, educational, and behavioral services to individuals who suffer
severe behavior disorders. (See id. at ¶¶ 26-29.)
Pursuant to receiving a free appropriate public education (FAPE), an
individualized education program (IEP) was developed for each of the
seven student plaintiffs. (See id. at ¶¶ 2, 4, 6, 8, 10, 12, 14.) And as part
of their IEPs, each student was identified as disabled and in need of
residential, special education services. (See id.) In addition, four of the
students’ IEPs specifically recommended JRC for placement. (See id.)
At JRC, each student first enters a non-intrusive, positive treatment
3
program, which employs a point/token system whereby positive behaviors
are rewarded and problematic behaviors are met with negative incentives.
(See id. at ¶ 30.) According to plaintiffs, this “positive-only” method has
proven successful with approximately seventy percent of JRC’s students.
(See id. at ¶ 31.) However, in cases where positive-only treatment
becomes insufficient or ineffective, JRC may supplement positive methods
with aversive interventions. (See id.)
Aversive behavior modification techniques rely on consequences that
are carefully designed to decrease a problematic behavior. (See id. at ¶¶
32-34.) Aversive interventions are used on an individualized, specifically-
defined basis to treat a student’s problematic behaviors, including
aggressive, dangerous, self-injurious, destructive, disruptive, and non-
compliant behavior. (See id.) The goal is effective deceleration or
minimization of problematic behaviors, which in turn enables a student to
receive an appropriate education, promotes the student’s safety, and helps
the student develop and hone the basic skills necessary for learning and
daily living. (See id.)
Before resorting to the use of aversive intervention, JRC must obtain
(1) approval from personnel supervising the student’s care, (2) consent
4
from the student’s parent or guardian, (3) an examination from an
independent board-certified physician, (4) separate approval from two
committees, (5) an IEP from the student’s school district recommending the
use of aversives, and (6) approval from a Massachusetts Probate Court
judge. (See id. at ¶ 36.) JRC’s use of aversive techniques is based on
years of first-hand experience and peer-reviewed and accepted methods of
behavioral psychology. (See id. at ¶ 32.) The types of aversives used by
JRC range from helmets and manual and mechanical restraints, to
carefully-controlled food programs and electric skin shock.3 (See id. at ¶¶
37, 43, 44.)
Currently, none of the student plaintiffs’ IEPs recommend the use of
aversive intervention. Still, each student plaintiff allegedly continues to
exhibit severe problematic behaviors despite intensive educational
instruction, positive-only treatment, extensive medication, behavioral
counseling, low child-to-staff ratios, and ranging forms of therapy. (See id.
3 Skin shock is applied through a Graduated Electronic Decelerator device (GED), the use of which has been cleared by the United States Food and Drug Administration and is regulated and monitored by the Massachusetts Departments of Developmental Services and Early Education and Care. (See Compl. ¶¶ 37-38, Dkt. No. 1.) The GED consists of a transmitter operated by JRC staff and a receiver-stimulator worn by the student on the arm or leg. (See id. at ¶ 39.) The stimulator delivers a low-level electrical current to a small area on the surface of the student’s skin for two seconds, which may redden the skin, leave a temporary dark mark, or cause a small blister. (See id. at ¶¶ 39-43.) According to plaintiffs, the use of the GED is both significantly limited and extremely effective. (See id. at ¶¶ 40-41.)
5
at ¶¶ 46-66.) Accordingly, trained clinicians have recommended and
plaintiffs have consented to aversive intervention as necessary to ensure
that each student receives a FAPE. (See id. at ¶¶ 67, 88-89.)
NYSED, as an agency of New York State, regulates educational
services and programs for New York residents. (See id. at ¶ 15.) The
Board of Regents oversees education in New York, sets educational
policies, standards, and rules, and promulgates, adopts, and enforces
NYSED regulations. (See id. at ¶ 17.) Over the course of thirty years, New
York State approved of JRC for out-of-state placement of students,
pursuant to which NYSED monitored and regularly conducted quality
assurance reviews of JRC’s behavioral treatment policies, procedures, and
programs, including aversive methods. (See id. at ¶ 69.)
However, on June 23, 2006, the Board of Regents promulgated new
regulations that restricted the use of aversive interventions.4 (See id. at ¶
70.) And after a two-month comment period and subsequent revisions, a
finalized version of the regulations were adopted in January 2007. See
generally 8 N.Y. COMP. CODES R. & REGS. § 200.22; see also 8 N.Y. COMP.
4 For a further discussion of these events, see the court’s February 24, 2010 Memorandum-Decision and Order in Alleyne v. N.Y. State Educ. Dep’t, 691 F. Supp. 2d 322, No. 1:06-cv-994 (N.D.N.Y. 2010).
6
CODES R. & REGS. § 19.5(b)(2) (defining aversive interventions). The
regulations limit the use of aversive interventions to students who had
aversives on their IEPs on or before June 30, 2009, who obtain a child-
specific exception from a committee appointed by the Commissioner, and
who are engaging in self-injurious behaviors or behavior that threatens the
well being of others. See 8 N.Y. COMP. CODES R. & REGS. § 200.22(e).
On January 8, 2010, plaintiffs commenced the present action,
seeking declaratory and injunctive relief and challenging the regulations
under the IDEA, the Rehabilitation Act, and the Equal Protection and Due
Process Clauses of the United States and New York State Constitutions.
(See Compl. ¶¶ 92-124, Dkt. No. 1.) Plaintiffs thereafter moved to
preliminarily enjoin defendants NYSED, Steiner, and the Board of Regents
from enforcing the regulations. (See Dkt. No. 7.) In opposition, defendants
moved to dismiss plaintiffs’ complaint. (See Dkt. No. 13.)
III. Discussion
A. Subject Matter Jurisdiction & Exhaustion
“It is well settled that the IDEA requires an aggrieved party to exhaust
all [state] administrative remedies before bringing a civil action in federal or
state court ....” J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 112 (2d
7
Cir. 2004) (citing, inter alia, 20 U.S.C. § 1415(i)(2)); see also Fennell v.
Cortines, 69 F.3d 687, 688 (2d Cir. 1995). Under the IDEA, parents who
are dissatisfied with an IEP developed for their child by the local school
district may file an administrative complaint about “any matter relating to
the identification, evaluation, or educational placement of the child, or the
provision of a free appropriate public education to such child.” 20 U.S.C. §
1415(b)(6). A claimant who has exhausted the state administrative
procedures may seek independent judicial review in the appropriate federal
or state court. See Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119,
129 (2d Cir. 1998). Conversely, “[a] plaintiff’s failure to exhaust
administrative remedies under the IDEA deprives a court of subject matter
jurisdiction.”5 Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist.,
288 F.3d 478, 483 (2d Cir. 2002) (citations omitted).
However, an exception to the exhaustion requirement exists where
5 Exhaustion ensures that disputes regarding IEPs for disabled children are originally handled by administrators with expertise and experience in the area, which enables them to resolve grievances promptly. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 112 (2d Cir. 2004). Additionally, the administrative process produces a “helpful record ... for the federal court.” See id. at 113 (citation omitted). In total, “[e]xhaustion of the administrative process allows for the exercise of discretion and educational expertise by state and local agencies, affords full exploration of technical educational issues, furthers development of a complete factual record, and promotes judicial efficiency ....” Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 487 (2d Cir. 2002) (citations and internal quotation marks omitted). While it “prevents courts from undermining the administrative process,” Heldman v. Sobol, 962 F.2d 148, 159 (2d Cir. 1992) (citations omitted), the exhaustion doctrine also deters parties from wasting the resources of the courts and the states.
8
“exhaustion would be futile because administrative procedures do not
provide adequate remedies.” Heldman v. Sobol, 962 F.2d 148, 158 (2d
Cir. 1992) (citing, inter alia, Honig v. Doe, 484 U.S. 305, 326-27 (1988)).
The rationale behind this exception is that “it would be futile to complete the
administrative review process [where] the hearing officer had no power to
correct the violation.” J.S., 386 F.3d at 113. Moreover, “[t]o require a
systemic challenge ... to pursue administrative remedies would not further
the purposes of [the] IDEA and would only serve to insulate the state
procedures from review.” Heldman, 962 F.2d at 159.
Here, plaintiffs contend that the relief they are seeking—namely,
relief from the regulations on the grounds that they render a FAPE
unavailable—is of the type that could not be secured through the
administrative process. Defendants counter that none of the plaintiffs has
an IEP calling for aversive interventions and that none has administratively
challenged his or her IEP designations. (See Defs. Resp. Mem. of Law at
3, Dkt. No. 13:20.) While the absence of IEPs providing for aversive
interventions presents a notable difference between the plaintiffs here and
those in Alleyne v. N.Y. State Educ. Dep’t, 691 F. Supp. 2d 322, No. 1:06-
cv-994 (N.D.N.Y. 2010), the court nonetheless concludes that it would be
9
futile to require plaintiffs to exhaust their administrative remedies in light of
the claims they are asserting and relief they are seeking. Plaintiffs may
present their claims here in the first instance and defendants’ motion to
dismiss for lack of subject matter jurisdiction is therefore denied.
B. Motion to Dismiss
The standard of review under FED. R. CIV. P. 12(b)(6) is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Ellis v. Cohen &
Slamowitz, LLP, --- F. Supp. 2d ----, 2010 WL 1257891, at *1-2 (N.D.N.Y.
Mar. 26, 2010).
1. IDEA Claims
Plaintiffs’ complaint contains two IDEA-based counts. First, plaintiffs
contend that by barring their access to aversive intervention, the
regulations deny plaintiffs a FAPE and a meaningful opportunity to develop
an adequate IEP. (See Compl. ¶¶ 92-93, Dkt. No. 1.) Second, plaintiffs
allege that in promulgating the regulations, defendants exceeded their
rulemaking authority by failing to comply with the IDEA’s substantive and
procedural requirements. (See id. at ¶¶ 96-102.)
As to the latter claim that defendants exceeded their rulemaking
10
authority, the court deems controlling the conclusions reached in Alleyne.
Accordingly, for the reasons outlined in Alleyne, the court finds that the
basis for and substance of the regulations are consistent with the
requirements and purposes of the IDEA. See 691 F. Supp. 2d at 330-33;
see also Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458
U.S. 176, 208 (1982) (“[Because] Congress’ intention was not that the
[IDEA] displace the primacy of States in the field of education ... once a
court determines that the requirements of the [IDEA] have been met,
questions of methodology are for resolution by the States.”). Therefore,
plaintiffs’ facial challenge must be rejected and Count Two dismissed.
For similar reasons, the court rejects plaintiffs’ first claim that, in
practice, the regulations deprive each plaintiff of a meaningful opportunity
to develop a beneficial IEP. Unlike the plaintiffs in Alleyne whose IEPs
provided for the use of aversives and who therefore were entitled to further
administrative proceedings on the issue of whether they fit within §
200.22’s exception, the plaintiffs here are seeking something that
unfortunately is no longer available to them under the regulations. And
while plaintiffs cogently rely on Deal v. Hamilton County Bd. of Educ., 392
F.3d 840 (6th Cir. 2004), and Kalliope R. ex rel. Irene D. v. N.Y. State Dep’t
11
of Educ., --- F. Supp. 2d ----, No. 09-CV-1718, 2010 WL 2243278 (E.D.N.Y.
June 1, 2010), the facts here are critically distinguishable. In Deal, the
court found that by pre-deciding not to provide one-on-one applied
behavioral analysis therapy to a student without considering any evidence
concerning his needs or the effectiveness of his IEP, the defendant school
district engaged in predetermination in violation of the IDEA’s procedural
requirements that the student’s parents be allowed to meaningfully
participate in the IEP process. See Deal, 392 F.3d at 857. Likewise, the
district court in Kalliope found a valid claim where the plaintiffs alleged that
the NYSED committed impermissible predetermination when it
promulgated a policy that prevented the school district’s Committee on
Special Education from even considering whether a particular student-
teacher ratio may be appropriate in some cases. See Kalliope, 2010 WL
2243278, at *8-9. However, the issues at play here regarding the use of
aversive intervention are quite distinct from those regarding student-
teacher ratios and available teaching methods.
Moreover, plaintiffs do not allege that defendants did not consider the
use of aversive interventions before adopting § 200.22. Rather, the
allegations demonstrate that the NYSED and the Board of Regents
12
explored the available data, studies, and literature before making a
reasoned decision that aversives should be generally prohibited. See
Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005) (“[The
State] is not ... required to furnish every special service necessary to
maximize each handicapped child’s potential.” (internal quotation marks
and citations omitted)). The court is not willing to second guess that policy
decision. Consequently, because the regulations are valid under the IDEA,
plaintiffs’ as-applied challenge contained in Count One must be dismissed.
Insofar as plaintiffs wish to challenge the effectiveness and reasonableness
of their IEPs under New York’s current regulatory scheme, such recourse
must first be pursued administratively.
2. Rehabilitation Act Claims
In Count Four of their complaint, plaintiffs allege that defendants’
promulgation of the regulations at issue constitute unlawful discrimination
on the basis of plaintiffs’ disabilities in violation of the Rehabilitation Act.
(See Compl. ¶¶ 111-14, Dkt. No. 1.)
Section 504 of the Rehabilitation Act provides that “[n]o qualified
individual with a disability ... shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits of, or be
13
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)
(citation omitted). 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 the Rehabilitation Act. 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.
While plaintiffs charge that defendants’ actions were “arbitrary,
capricious, and meritless,” (Compl. ¶ 68, Dkt. No. 1), such allegations are
not sufficient to establish bad faith or gross misjudgment. Nor are such
conclusory labels sufficient to withstand a motion to dismiss. Instead, as
already discussed, the regulations represent a permissible educational
policy choice. Accordingly, the court must dismiss plaintiffs’ Rehabilitation
Act claims.
14
3. Substantive Due Process Claims
For Count Three, plaintiffs allege that defendants violated their
substantive due process rights by failing to consider their individual
educational needs and thereby depriving them of an education and
treatment that is necessary for their health, well being, and educational
progress. (See Compl. ¶¶ 105-08, Dkt. No. 1.)
“[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 Sch. 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.
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).
15
However, “[w]here the claimed right is not fundamental, the governmental
regulation need only be reasonably related to a legitimate state objective.”
Immediato, 73 F.3d at 461 (citations omitted).
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).
Furthermore, “[e]ducation is unquestionably a legitimate state interest,”
Immediato, 73 F.3d at 462, that encompasses the academic, emotional,
and physical well being of students in the educational setting, see Alleyne,
691 F. Supp. 2d at 337. There is no question that the regulations’ general
prohibition of aversive interventions is reasonably related to the State’s
policy decision that the potential harm created by the use of aversive
treatments outweighs their potential benefits. Accordingly, plaintiffs’
substantive due process claims must be dismissed.6
6 Because the Eleventh Amendment of the United States Constitution bars state constitutional claims against the state, its agencies, or its employees in their official capacity, regardless of the relief sought, the court dismisses all claims premised on the New York State Constitution. 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), overruled in part on other grounds, Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989); 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).
16
4. Procedural Due Process Claims
Plaintiffs further allege that defendants violated their procedural due
process rights by failing to provide plaintiffs with notice and an opportunity
to be heard on the regulations’ restriction of aversive interventions. (See
Compl. ¶¶ 122-23, Dkt. No. 1.)
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. (citation omitted). 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.
While both New York law and the IDEA create a property interest in
education, see Handberry, 446 F.3d at 353, this interest cannot be
17
categorized as fundamental. Moreover, it is unclear whether this interest
encompasses aversive treatment. And it appears that plaintiffs allege
deprivation of a speculative interest since none of the plaintiffs have an IEP
that presently entitles them to aversive treatment. Thus, plaintiffs only
allege “an abstract need” for aversive intervention that does not amount to
a “legitimate claim of entitlement.” Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 577 (1972); see also Spinelli v. City of New York, 579 F.3d
160, 169 (2d Cir. 2009); Sanitation & Recycling Indus., Inc. v. City of New
York, 107 F.3d 985, 995 (2d Cir. 1997). Still, even assuming plaintiffs’
proposed property interest were protected, the court has previously
determined that the NYSED and Board of Regents provided for an
adequate notice and comment period before adopting the final regulations.
See Alleyne, 691 F. Supp. 2d at 337 (“[I]n the months [prior to adoption of
the final 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.”); see also id. at 337 n.11 (rejecting argument that each individual
plaintiff’s circumstances must be considered before the regulations were
promulgated, since it would “make the passage of any educational
18
regulation virtually impossible”).
Therefore, because plaintiffs’ alleged interest in aversives is neither
actual nor fundamental, and because the regulations were promulgated in
accordance with due process requirements, the court dismisses plaintiffs’
procedural due process claims.
5. Equal Protection Claims
Lastly, plaintiffs allege that defendants violated the Equal Protection
Clause by treating plaintiffs differently from other New York students and
other disabled New York students, including those who fit within §
200.22(e)’s “grandfather” exception. (See Compl. ¶¶ 116-19, Dkt. No. 1.)
To make out an equal protection claim under the Fourteenth
Amendment, plaintiffs must establish 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). Otherwise, where a
disparate classification neither implicates fundamental rights nor proceeds
along suspect lines, the classification is afforded a “strong presumption of
19
validity ... [which] cannot run afoul of the Equal Protection Clause if there is
a rational relationship between the disparity of treatment and some
legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 319-20
(1993) (citations omitted); see also Romer v. Evans, 517 U.S. 620, 631
(1996).
Plaintiffs have alleged that they are treated disparately compared to
other similarly-situated non-disabled and disabled individuals. First, a plain
reading of the regulations shows that they apply to all New York State
students, disabled and non-disabled alike. There is nothing in the
regulations that treats plaintiffs selectively different from other non-disabled
students. And second, while § 200.22(e)’s exception technically treats
plaintiffs—who do not have IEPs that include the use of
aversives—different from other disabled students who can satisfy the
exception, there is nothing to suggest, and plaintiffs do not otherwise
allege, that this treatment is based on anything but a rational policy
decision and a need to draw the line somewhere. Plaintiffs’ bald assertion
that defendants “acted arbitrarily, capriciously, unreasonably, and in bad
faith,” (Compl. ¶ 119, Dkt. No. 1), is not enough to frustrate a plain reading
of the regulations or overturn the court’s earlier finding that the regulations
20
were based on reasonable policy concerns that were rationally related to
the State’s interests in prohibiting the use of aversive treatments and the
potential harm they pose. See Alleyne, 691 F. Supp. 2d at 337.
Thus, because the regulations do not proceed along suspect lines,
do not implicate fundamental rights, and are rationally related to a
legitimate government purpose, the court dismisses plaintiffs’ equal
protection claims.
C. Preliminary Injunction
In light of the above findings, the court denies plaintiffs’ motion for a
preliminary injunction as plaintiffs clearly cannot establish a likelihood of
success on the merits of their claims. See Bery v. City of New York, 97
F.3d 689, 694 (2d Cir. 1996) (“[I]n a case in which the moving party seeks
to stay governmental action taken in the public interest pursuant to a
statutory or regulatory scheme, the injunction should be granted only if the
moving party meets the ... likelihood-of-success standard.” (internal
quotation marks and citation omitted)); see also Jolly v. Coughlin, 76 F.3d
468, 473 (2d Cir.1996).
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
21
ORDERED that plaintiffs’ motion for a preliminary injunction (Dkt. No.
7) is DENIED; and it is further
ORDERED that defendants’ motion to dismiss (Dkt. No. 13) is
GRANTED and plaintiffs’ complaint is DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-
Decision and Order to the parties.
IT IS SO ORDERED.
August 26, 2010 Albany, New York
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