Second Circuit Upholds, Against IDEA Challenge, New York's Prohibition on Aversive Interventions

This is a huge and important decision:

Today, the United States Court of Appeals for the Second Circuit issued a divided opinion in Bryant v. New York State Education Department.  By a 2-1 vote, the court upheld New York's prohibition on aversive interventions.  The prohibition, issued as a regulation by the New York Board of Regents, "defines an 'aversive intervention' as an intervention 'intended to induce pain or discomfort to a student for the purpose of eliminating or reducing maladaptive behaviors,' such as the contingent application of painful, intrusive, or similar stimuli or activity."  The regulation was challenged by a group of New York parents who send their children (pursuant to Individualized Education Plans issued by their local school districts) to the Judge Rotenberg Center (JRC), a Massachusetts residential program that is well known for using electrical shocks as part of a plan of behavioral modification for certain school children with developmental disabilities.  The parents argued that the ban on aversives violated the IDEA, the Rehabilitation Act, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment.  The United States District Court for the Northern District of New York dismissed the suit for failure to state a claim.

The Second Circuit affirmed in an opinion by Chief Judge Dennis Jacobs.  The court first held that the plaintiffs had standing even though Massachusetts itself now has a rule that (with certain exceptions not applicable to the Bryant plaintiffs) prohibits the use of aversives "such as spanking, slapping, hitting or contingent skin shock."  That rule does not cover all aversive treatment.  And although the Massachusetts regulation means that the plaintiffs' children could not receive the particularly listed forms of aversive treatment at JRC, the court concluded, they might be able to get aversive treatment somewhere else if the New York rule were enjoined.

The court then turned to the IDEA claims.  The parents argued "that prohibiting aversive interventions prevents these children from obtaining a truly individualized education program because they are categorically barred from getting an IEP that includes aversive interventions without regard to their individual needs."  But the majority easily rejected that argument.  The majority emphasized that "[n]othing in New York’s regulation prevents individualized assessment or precludes educators from considering a wide range of possible treatments"; it simply "prohibits consideration of a single method of treatment without foreclosing other options."  And the majority noted that the regulation itself is consistent with "the goals and emphasis of the IDEA," a statute that explicitly encourages the use of positive behavioral interventions and supports.  "Although the IDEA does not prohibit alternatives such as aversives," the majority concluded, "it cannot be said that a policy that relies on positive behavioral interventions only is incompatible with the IDEA" (my emphasis).

The majority urged that a contrary ruling would improperly second-guess the considered judgments of New York state officials regarding a sensitive issue of educational policy:

In this case, New York adopted the ban of aversives only after the Education Department made site visits, reviewed reports, and considered complaints from parents as well as school districts and others raising concerns about aversive techniques.  Notice of Emergency Adoption & Proposed Rulemaking, N.Y. State Educ. Dep’t, June 20, 2006.  It concluded that aversive interventions are dangerous and may backfire and that positive behavioral interventions are sufficiently effective to provide a FAPE. Id.

The prohibition therefore represents a considered judgment; one that conforms to the IDEA’s preference for positive behavioral intervention. See, e.g., 20 U.S.C. § 1400(c)(5)(F). (Another such New York policy is the long-standing bar on corporal punishment. See N.Y. Comp. Codes R. & Regs. tit. 8, § 19.5(a).) The IDEA does not categorically bar such statewide regulations that resolve problems in special education; otherwise, the IDEA would be transformed from a legislative scheme that preserves the states’ fundamental role in education to one that usurps the role of the states. 

The majority noted that "[t]here is an ongoing debate among the experts regarding the advantages and disadvantages of aversive interventions and positive-only methods of behavioral modification." It concluded that "[t]he judiciary is ill-suited to decide the winner of that debate."  For similar reasons, the court rejected the parents' Rehabilitation Act and Fourteenth Amendment claims.

The dissent, authored by United States District Judge Richard Sullivan (sitting by designation), disagreed with the majority's resolution of the IDEA claims.  Judge Sullivan argued that the record was insufficient, at this early stage of the litigation, to conclude that the plaintiffs could not make out an IDEA claim.