Bryant Ex Rel. D.B. v. New York State Education Department

10-4029-cv Bryant v. N.Y. State Educ. Dep’t

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2011 6 7 8 (Argued: October 21, 2011 Decided: August 20, 2012) 9 10 Docket No. 10-4029-cv 11 12 - - - - - - - - - - - - - - - - - - - - - - - x 13 14 CHARLES BRYANT, individually and as next friend 15 and guardian of D.B., AVA GEORGE, individually 16 and as next friend and guardian of B.G., CHANIN 17 HOUSTON-JOSEPHAT, individually and as next 18 friend and guardian of A.J., LISA HUGHES, 19 individually and as next friend and guardian of 20 J.R., CARMEN PENA, individually and as next 21 friend and guardian of G.T., VIVIAN PRESLEY, 22 individually and as next friend and guardian of 23 D.P., JAMIE TAM, individually and as next 24 friend and guardian of S.T., 25 26 PLAINTIFFS-APPELLANTS, 27 28 - v. - 29 30 NEW YORK STATE EDUCATION DEPARTMENT, DAVID M. 31 STEINER, in his capacity as Commissioner of the 32 New York State Education Department, THE NEW 33 YORK STATE BOARD OF REGENTS, 34 35 DEFENDANTS-APPELLEES. 36 37 - - - - - - - - - - - - - - - - - - - - - - - x

38 Before: JACOBS, Chief Judge, WESLEY, Circuit 39 Judge, and SULLIVAN, District Judge.1

1 The Honorable Richard J. Sullivan, United States District Judge for the Southern District of New York, sitting by designation.

1 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.

1 Michael P. Flammia, Eckert Seamans 2 Cherin & Mellott, LLC, Boston, MA. 3 (Jeffrey J. Sherrin, O’Connell and 4 Aronowitz, P.C., Albany, NY, and 5 Meredith H. Savitt, Law Office of 6 Meredith Savitt, P.C., Delmar, NY, on 7 the brief), for Plaintiffs- 8 Appellants. 9 10 Andrew B. Ayers, Assistant Solicitor 11 General (Barbara D. Underwood, 12 Solicitor General, Benjamin N. 13 Gutman, Deputy Solicitor General, on 14 the brief), for Eric T. Schneiderman, 15 Attorney General of the State of New 16 York, for Defendants-Appellees. 17 18 DENNIS JACOBS, Chief Judge: 19 20 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 *4 1 problematic and disruptive behavior that impedes their 2 education. 3 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. 12 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. 22 Affirmed. *5 1 BACKGROUND 2 I 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”)2 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

2 The IEP is “a written statement that [inter alia] ‘sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.’” D.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)); accord 20 U.S.C. § 1414(d)(1)(A) (defining IEP).

1 child to receive educational benefits,” Rowley, 458 U.S. at 2 207. 3 4 II 5 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. 24 Plaintiffs have tried a number of measures to treat and 25 educate these children, including: special education, day *7 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). 24 At JRC, each student starts with a non-intrusive, 25 positive-only, treatment program in which students receive *8 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. 7 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 *9 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. 13 14 III 15 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 *10 1 health, mental retardation and developmental disabilities 2 facilities,” id. § 4403(4). 3 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).3

3 In full, the regulation defines “aversive intervention” 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.

N.Y. Comp. Codes R. & Regs. tit. 8, § 19.5(b)(2) (2012). *11 1 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. 16 17 DISCUSSION 18 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: [1] the IDEA; 23 [2] the Rehabilitation Act of 1973; and [3] the Due Process 24 and Equal Protection clauses of the United States 25 Constitution. *12 1 The district court granted Defendants’ motion to 2 dismiss all those claims for relief. We review that 3 decision de novo, “construing the complaint liberally, 4 accepting all factual allegations in the complaint as true, 5 and drawing all reasonable inferences in the plaintiff[s’] 6 favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 7 (2d Cir. 2002). Although all factual allegations in the 8 complaint must be assumed true for the purposes of a motion 9 to dismiss, this principle is “inapplicable to legal 10 conclusions” and “‘formulaic recitation[s] of the elements 11 of a cause of action.’” Ashcroft v. Iqbal, 556 U.S. 662, 12 678 (2d Cir. 2009) (quoting Twombly, 550 U.S. at 555). To 13 survive a motion to dismiss, a complaint must allege “enough 14 facts” to “raise a right to relief above the speculative 15 level” and “state a claim to relief that is plausible.” 16 Twombly, 550 U.S. at 555, 570; accord id. at 555 n.3. 17 In addition to dismissing Plaintiffs’ complaint under 18 Rule 12(b)(6), the district court also denied Plaintiffs’ 19 motion for a preliminary injunction. We review that ruling 20 for abuse of discretion. Ashcroft v. Am. Civil Liberties 21 Union, 542 U.S. 656, 664 (2004); Malletier v. Burlington 22 Coat Factory Warehouse Corp., 426 F.3d 532, 537 (2d Cir. 23 2005). “A district court abuses its discretion when (1) its 24 decision rests on an error of law . . . or a clearly 25 erroneous factual finding, or (2) its decision--though not *13 1 necessarily the product of a legal error or a clearly 2 erroneous factual finding--cannot be located within the 3 range of permissible decisions.” Mullins v. City of New 4 York, 626 F.3d 47, 51 (2d Cir. 2010) (internal quotation 5 marks omitted; ellipsis in original). 6 7 I 8 A standing question has arisen. While this appeal was 9 pending, the Massachusetts Department of Developmental 10 Services promulgated a regulation that governs JRC (as a 11 school in the Commonwealth), and bars it from using some 12 aversives on these children and others. 13 The Massachusetts regulation, 115 Mass. Code Regs. 14 5.14 (2012), prohibits the use of certain aversive 15 interventions--including “contingent application of physical 16 contact aversive stimuli such as spanking, slapping, hitting 17 or contingent skin shock,” id. 5.14(3)(d)1.; see also id. 18 5.14(3)(d)--unless the child had a court-approved treatment 19 permitting the use of aversives before September 1, 2011 20 (which none of the children at issue in this case had). The 21 Massachusetts regulation permits other aversive 22 interventions--including “[c]ontingent application of 23 unpleasant sensory stimuli such as loud noises, bad tastes, 24 bad odors, or other stimuli which elicit a startle 25 response,” and “delay of [a] meal for a period not exceeding *14 1 30 minutes,” id. 5.14(3)(c)1.c.-d.--if they are contained in 2 the student’s written behavior modification plan and if that 3 behavior modification plan meets certain special 4 requirements. See id. 5.14(4)(c). 5 Because certain aversive interventions, such as the 6 electric skin shock--the “principal form” of aversive 7 intervention used by JRC--are no longer permitted in 8 Massachusetts, Defendants contend that Plaintiffs’ claims 9 are moot. We disagree. 10 First, the question is not one of mootness. New York’s 11 prohibition on aversive interventions remains in effect and 12 applicable to these children. Accordingly, the case and 13 controversy is not moot. Cf. Lamar Advertising of Penn, LLC 14 v. Town of Orchard Park, 356 F.3d 365, 375-76 (2d Cir. 2004) 15 (explaining that, in the case of a statute or regulation, a 16 claim usually becomes moot when a statute or regulation is 17 amended). 18 The question is whether Plaintiffs retain standing, for 19 which: [1] “the plaintiff must have suffered an injury in 20 fact” that is both “concrete and particularized” and “actual 21 or imminent, not conjectural or hypothetical”; [2] “there 22 must be a causal connection between the injury and the 23 conduct complained of” such that the injury is “fairly 24 traceable to the challenged action of the defendant”; and 25 [3] “it must be likely, as opposed to merely speculative, *15 1 that the injury will be redressed by a favorable decision.” 2 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) 3 (internal quotation marks, citations, brackets, and ellipsis 4 omitted). Defendants contend that redressability has been 5 foreclosed by Massachusetts’ new regulation. 6 We conclude that a decision favorable to Plaintiffs 7 would likely redress their injury for several reasons. 8 First, if Plaintiffs prevailed, the children could receive 9 the aversives that the new Massachusetts regulation 10 continues to permit; whereas the New York regulation 11 prohibits all aversives for these children, the 12 Massachusetts regulation does not. Compare N.Y. Comp. Codes 13 R. & Regs. tit. 8, § 19.5(b), with 115 Mass. Code Regs. 14 5.14(3)(c), (3)(d). True, electric skin shocks are the 15 “principal form” of aversive interventions used by JRC; but 16 if Plaintiffs prevail, the children may be able to receive 17 other aversives at JRC. 18 Second, Defendants erroneously assume that if these 19 children are unable to receive aversive interventions at 20 JRC, they will be unable to obtain aversives anywhere. The 21 complaint seeks an injunction preventing Defendants’ from 22 enforcing New York’s prohibition on aversives and a 23 declaration that the prohibition violates the U.S. 24 Constitution and federal law. The prayer for relief is not 25 *16 1 limited to treatment at JRC or in Massachusetts; JRC is not 2 mentioned in the prayer for relief. 3 As all the parties concede, no facility other than JRC 4 is currently treating New York children with aversive 5 interventions. But this is hardly surprising since New York 6 largely bans the use of aversive interventions. If New 7 York’s prohibition was declared invalid, it is “likely” that 8 other facilities in New York would provide aversives. See 9 Lujan, 504 U.S. at 561 (internal quotation marks omitted). 10 It is also likely that these children could go to a facility 11 in another state. See N.Y. Educ. Law §§ 4407(1)(a), 12 4401(2)(f), (h) (providing that New York students with 13 disabilities who cannot obtain an appropriate education in 14 New York may attend an out-of-state facility that the 15 Education Department determines can meet the child’s 16 needs).4 17 Finally, Plaintiffs would have standing to challenge 18 the New York prohibition even if, as Defendants argue, the

4 A number of other states have substantially limited or outright prohibited the use of aversive interventions in schools and with students. See Cal. Educ. Code § 56520(a)(3); 22 Pa. Code § 14.133(e); Mont. Admin. R. 10.16.3346(4); N.C. Gen. Stat. § 155C-391.1(b)(2), (h); Nev. Rev. Stat. § 388.5265; Wash. Admin. Code § 392-172A-03125; 22 Va. Admin. Code. § 40-151-820; N.H. Code Admin. R. Ed. §§ 1113.04, 1113.06; D.C. Code §§ 38-2561.03(b)(1), 38- 2561.01. However, there is no indication that these children would not be able to attend a school in some other state that could provide them aversive interventions, if necessary.

1 Massachusetts law would be an additional impediment to 2 aversive interventions for these children. First, 3 Plaintiffs are prevented by issues of personal jurisdiction, 4 service, and venue from challenging the Massachusetts and 5 New York prohibitions in a single lawsuit; but their need to 6 invalidate the Massachusetts regulation would not deprive 7 them of standing to challenge the regulation in New York. 8 See Khodara Envt’l, Inc. v. Blakey, 376 F.3d 187, 194-96 (3d 9 Cir. 2004) (as amended) (Alito, J.); accord Lamar Adver. of 10 Penn, 356 F.3d at 374 (holding that the plaintiff had 11 standing to challenge a law blocking its posting of certain 12 advertising even though the plaintiff had not sought a 13 permit, which was an additional impediment to the 14 advertising). Second, Plaintiffs’ claimed injury is not (as 15 Defendants contend) that these children are unable to obtain 16 aversives generally, but rather that the New York 17 prohibition prevents them from receiving aversives. Viewed 18 properly, Plaintiffs can obtain redress in this litigation: 19 authority to obtain aversive interventions under New York 20 law. Accordingly, Plaintiffs continue to enjoy standing 21 because a favorable judgment would make it “likely” that 22 they could ultimately obtain the treatment they seek. See 23 Lujan, 504 U.S. at 561 (internal quotation marks omitted). *18 1 II 2 Two types of claims lie under the IDEA: [1] a 3 procedural claim challenging the State’s compliance with the 4 procedures set forth in the IDEA, and [2] a substantive 5 claim challenging whether the IEP is reasonably calculated 6 to enable the student to receive educational benefits. See 7 Walczak, 142 F.3d at 129.5 Plaintiffs assert both kinds of 8 claim. 9 10 A 11 Plaintiffs’ procedural claim is that prohibiting 12 aversive interventions prevents these children from 13 obtaining a truly individualized education program because 14 they are categorically barred from getting an IEP that

5 An IEP sets out in writing, inter alia, (1) the child’s present levels of academic achievement and functional performance; (2) the short-term academic and functional objectives; (3) the measurable annual goals for the child, including academic and functional goals; (4) the specific educational and related services to be provided to the child and the extent to which the child will be able to participate in general educational programs and curriculum; (5) the transition services needed for the child to leave the school setting; (6) the projected commencement for and duration of proposed services; and (7) objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether academic and functional objectives are being achieved. 20 U.S.C. § 1414(d)(1)(A). The IEP is developed by a school official qualified in special education, at least one special education teacher, at least one general education teacher, other qualified individuals, the child’s parents, and (where appropriate) the child. Id. § 1414(d)(1)(B).

1 includes aversive interventions without regard to their 2 individual needs. See D.D. v. N.Y.C. Bd. of Educ., 465 F.3d 3 503, 511 (2d Cir. 2006) (explaining “that the right to a 4 free appropriate public education [FAPE] is afforded to each 5 disabled child as an individual”). 6 Nothing in New York’s regulation prevents 7 individualized assessment or precludes educators from 8 considering a wide range of possible treatments. The 9 regulation prohibits consideration of a single method of 10 treatment without foreclosing other options. In so doing, 11 the regulation follows the goals and emphasis of the IDEA. 12 See 20 U.S.C. § 1400(c)(5)(F) (“Almost 30 years of research 13 and experience has demonstrated that the education of 14 children with disabilities can be made more effective by 15 . . . positive behavioral interventions and supports”); 64 16 Fed. Reg. 12406, 12589 (Mar. 12, 1999) (“[T]he primary focus 17 must be on ensuring that the behavioral management 18 strategies in the child’s IEP reflect the [IDEA’s] 19 requirement for the use of positive behavioral interventions 20 and strategies to address the behavior that impedes the 21 learning of the child or that of other children.”).6

6 See also 20 U.S.C. § 1411(e)(2)(C)(iii) (allowing states to reserve federal funding “[t]o assist local education agencies in providing positive behavior interventions and supports”); id. § 1414(d)(3)(B)(i) (providing that the IEP team should “consider the use of positive behavioral interventions and supports, and other

1 Although the IDEA does not prohibit alternatives such as 2 aversives, see 20 U.S.C. § 1414(d)(3)(B)(i), it cannot be 3 said that a policy that relies on positive behavioral 4 interventions only is incompatible with the IDEA. 5 Plaintiffs argue that, because the regulation 6 eliminates one possible method from the students’ IEP, it 7 amounts to a predetermination that violates the procedural 8 guarantees of the IDEA, as explained in Deal v. Hamilton 9 Cnty. Bd. of Educ., 392 F.3d 840 (6th Cir. 2004). However, 10 there is a distinction between a policy that affects 11 individual cases on a categorical basis (such as the policy 12 at issue here) and a local predetermination that rejects 13 preemptively a measure that is permitted as a matter of 14 state law. 15 In Deal, a school district refused to consider a 16 particular teaching approach. Id. at 845-46. The Sixth 17 Circuit concluded that foreclosure of a program without

strategies, to address” “behavior [that] impedes the child’s learning or that of others”); id. § 1454(a)(3)(B)(iii)(I) (allowing states to use federal grants to train educators in methods of “positive behavioral interventions and supports to improve student behavior in the classroom”); id. § 1462(a)(6)(D) (authorizing the Secretary of Education to enter into contracts with entities to ensure training in “positive behavioral supports.”); id. § 1465(b)(1)(B)-(C) (permitting the Secretary of Education to support effective, research-based practices through training educators in “positive behavioral interventions and supports” and “effective strategies for positive behavioral interventions”).

1 regard for its effectiveness was a procedural violation of 2 the IDEA because it deprived the parents of meaningful 3 participation in the IEP process. Id. at 857. We need not 4 pass on the reasoning of Deal because unlike the instant 5 challenge to a statewide prohibition enacted by a state 6 government, Deal involved a challenge to an unofficial 7 district policy involving a particular child’s specific IEP 8 as to which the parents had a statutory right of input, 20 9 U.S.C. § 1414(d)(1)(B). 10 The distinction is significant. See Alleyne v. N.Y. 11 State Educ. Dep’t, 691 F. Supp. 2d 322, 333 n.9 (N.D.N.Y. 12 2010) (distinguishing between authorities considering 13 predetermination in IEPs and the promulgation of statewide 14 regulations). “The IDEA was enacted to assist states in 15 providing special education and related services to children 16 with disabilities . . . not [to] usurp the state’s 17 traditional role in setting educational policy.” Taylor, 18 313 F.3d at 776-77. “Congress did not prescribe any 19 substantive standard of education” in the IDEA. J.D. v. 20 Pawlet Sch. Dist., 224 F.3d 60, 65 (2d Cir. 2000). Instead, 21 the IDEA “‘incorporates state substantive standards as the 22 governing federal rule’ if they are consistent with the 23 federal scheme and meet the minimum requirements set forth 24 by the IDEA.” Taylor, 313 F.3d at 777 (quoting Mrs. C. v. 25 Wheaton, 916 F.2d 69, 73 (2d Cir. 1990)). *22 1 Moreover, Plaintiffs’ interpretation of the IDEA would 2 effectively strip state governments of the ability to adopt 3 statewide policy because it is impossible to consider each 4 student’s circumstances before adopting statewide policy. 5 For this reason, New York collects input--by parents, 6 professionals, and the public--when the Education Department 7 publishes a proposed regulation and an opportunity is 8 afforded for notice and comment. See N.Y. State Register, 9 Rule Making Activities, Nov. 15, 2006. 10 In this case, New York adopted the ban of aversives 11 only after the Education Department made site visits, 12 reviewed reports, and considered complaints from parents as 13 well as school districts and others raising concerns about 14 aversive techniques. Notice of Emergency Adoption & 15 Proposed Rulemaking, N.Y. State Educ. Dep’t, June 20, 2006. 16 It concluded that aversive interventions are dangerous and 17 may backfire and that positive behavioral interventions are 18 sufficiently effective to provide a FAPE. Id. 19 The prohibition therefore represents a considered 20 judgment; one that conforms to the IDEA’s preference for 21 positive behavioral intervention. See, e.g., 20 U.S.C. 22 § 1400(c)(5)(F). (Another such New York policy is the long-23 standing bar on corporal punishment. See N.Y. Comp. Codes 24 R. & Regs. tit. 8, § 19.5(a).) The IDEA does not 25 categorically bar such statewide regulations that resolve *23 1 problems in special education; otherwise, the IDEA would be 2 transformed from a legislative scheme that preserves the 3 states’ fundamental role in education to one that usurps the 4 role of the states. Cf. Rowley, 458 U.S. at 208 (explaining 5 that “Congress’ intention was not that the [IDEA] displace 6 the primacy of States in the field of education, but that 7 States receive funds to assist them in extending their 8 educational systems to the handicapped”).7 9 In sum, New York’s regulation prohibits only 10 consideration of a single method of treatment without 11 foreclosing other options. Nothing in the regulation 12 prevents individualized assessment, predetermines the 13 children’s course of education, or precludes educators from 14 considering a wide range of possible treatments. Therefore, 15 the district court correctly dismissed the procedural IDEA 16 claim. 17 18 B 19 Plaintiffs contend that the prohibition on aversive 20 interventions is a substantive violation of the IDEA because 21 aversives are necessary to control the severe behavioral

7 Plaintiffs direct our attention to Kalliope R. v. N.Y. State Dep’t of Educ., 827 F. Supp. 2d 130 (E.D.N.Y. 2010), which concerned the State’s foreclosure of a particular intensive teaching technique. Kalliope, however, is an interlocutory opinion, never appealed, that relied on Deal.

1 disorders that undermine the children’s education. 2 Plaintiffs allege that a positive-only program is effective 3 with 70% of students but that each of these children fall 4 within the 30% who are not sufficiently treated with 5 positive-only interventions. 6 For many of the reasons discussed above, Plaintiffs 7 cannot state a substantive IDEA claim. The prohibition on 8 aversive interventions does not prevent these students from 9 obtaining an IEP specifically aimed at providing them an 10 appropriate education. Moreover, the Education Department 11 has decided to focus its special-education programs on 12 positive-only behavioral interventions, which is the clear 13 (although not exclusive) methodology favored by the IDEA. 14 Even if we assumed that permitting these children to 15 receive aversive interventions would help them fulfill their 16 potential, Plaintiffs’ substantive claim would still fail. 17 The “IDEA does not require states to develop IEPs that 18 ‘maximize the potential of handicapped children.’” Walczak, 19 142 F.3d at 132 (quoting Rowley, 458 U.S. at 189); accord 20 Rowley, 458 U.S. at 197-98 & n.21. The IDEA “guarantees” 21 only that students with disabilities are provided an 22 “‘appropriate’ education, not one that provides everything 23 that might be thought desirable by loving parents.” 24 Walczak, 142 F.3d at 132 (internal quotation marks omitted). 25 A state satisfies its obligation to provide a free *25 1 appropriate public education if it “provide[s] a disabled 2 child with meaningful access to an education” even if the 3 state “cannot guarantee totally successful results.” Id. at 4 133 (citing Rowley, 458 U.S. at 192); accord Rowley, 458 5 U.S. at 195 (explaining that the IDEA “imposes no clear 6 obligation upon recipient States beyond the requirement that 7 handicapped children receive some form of specialized 8 education”). 9 Defendants provide these students with meaningful 10 access to education opportunities by authorizing and funding 11 their specialized education and behavioral modification 12 treatment at an out-of-state residential facility that has 13 expertise in treating children with severe behavioral 14 disorders. Aversive interventions may help maximize the 15 children’s potential, but the IDEA does not require such 16 measures.8 17 Moreover, we decline Plaintiffs’ invitation to review 18 and second guess New York’s education policy. Although the 19 IDEA provides for some judicial review, “the Supreme Court 20 has cautioned[] . . . that this ‘independent’ review ‘is by 21 no means an invitation to the courts to substitute their own

8 Significantly, none of these students received an IEP that authorized use of aversive interventions before the enactment of the regulation in 2006 or during the grandfathering period when a child-specific exception was available.

1 notions of sound educational policy for those of the school 2 authorities they review.’” See Walczak, 142 F.3d at 129 3 (quoting Rowley, 458 U.S. at 206). We will not “simply 4 rubber stamp” the decisions of the states and locals, but we 5 must be “mindful that the judiciary generally lacks the 6 specialized knowledge and experience necessary to resolve 7 persistent and difficult questions of educational policy.” 8 Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d 9 Cir. 2005) (internal quotation marks omitted); accord 10 Rowley, 458 U.S. at 207 (“[C]ourts must be careful to avoid 11 imposing their view of preferable educational methods upon 12 the States.”). 13 There is an ongoing debate among the experts regarding 14 the advantages and disadvantages of aversive interventions 15 and positive-only methods of behavioral modification. The 16 judiciary is ill-suited to decide the winner of that debate. 17 See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 383 18 (2d Cir. 2003) (as amended) (reversing a district court 19 decision finding IEPs inadequate because the district court 20 “impermissibly chose between the views of conflicting 21 experts on a controversial issue of educational policy”). 22 Our deference to the Education Department’s decision is 23 further justified in this instance because New York adopted 24 the regulation after the Education Department obtained 25 information raising concerns regarding the potential health *27 1 and safety implications of aversives. See Notice of 2 Emergency Adoption & Proposed Rulemaking, N.Y. State Educ. 3 Dep’t, June 20, 2006. The Education Department was 4 concerned that aversive interventions can result in 5 “aggressive and/or escape behaviors” and can foster the 6 development of “negative attitudes toward [one’s] self and 7 school programs,” id.--concerns raised by reports and 8 complaints by parents, school districts, and others. One 9 such source of concern was a lawsuit alleging abuse at JRC, 10 see Nicholson v. New York, 872 N.Y.S. 2d 846 (Ct. Cl. 2008), 11 which prompted a site visit on which the Education 12 Department “identified significant concerns for the 13 potential impact on the health and safety of New York 14 students,” see Notice of Emergency Adoption & Proposed 15 Rulemaking, N.Y. State Educ. Dep’t, June 20, 2006. This 16 Court is not institutionally suited to now second guess the 17 policy decision made by experts charged with formulating 18 education policy in New York. See Cerra, 427 F.3d at 192. 19 Because Plaintiffs have not and cannot allege that 20 these children have been deprived of a FAPE, they cannot 21 prevail on their substantive IDEA claim.9

9 The dissent concludes that a reasonable justification for preventing use of aversive therapies cannot be located in the record. We respectfully disagree. But even if there were no express justification, some justifications are implicit in the policy.

1 III 2 In addition to their procedural and substantive IDEA 3 claims, Plaintiffs also assert a claim under the 4 Rehabilitation Act. Section 504 of the Rehabilitation Act 5 provides: “No otherwise qualified individual with a 6 disability . . . shall, solely by reason of her or his 7 disability, be excluded from the participation in, be denied 8 the benefits of, or be subjected to discrimination under any 9 program or activity receiving Federal financial assistance 10 . . . .” 29 U.S.C. § 794(a). 11 To establish a prima facie case under the 12 Rehabilitation Act, a plaintiff must allege: [1] that he or 13 she is a person with disabilities under the Rehabilitation 14 Act, [2] who has been denied benefits of or excluded from 15 participating in a federally funded program or special 16 service, [3] solely because of his or her disability. See 17 Mrs. C., 916 F.2d at 74. Plaintiffs, however, do not argue 18 that the regulation banning aversive interventions denies 19 them benefits on the basis of disability: The regulation 20 applies to all students, regardless of disability.10

10 Plaintiffs also cannot state a Rehabilitation Act claim for discrimination against people with disabilities who are students. See J.D., 224 F.3d at 70. Under the Rehabilitation Act, states receiving federal funds must “‘provide a free appropriate public education to each qualified handicapped person.’” Id. (quoting 34 C.F.R. § 104.33(a)). This obligation can be satisfied by, inter alia, providing the student an IEP. 34 C.F.R.

1 Plaintiffs contend, however, that they state a claim 2 under Rehabilitation Act because New York’s ban on aversives 3 was promulgated in bad faith or is the result of gross 4 mismanagement. See Wegner v. Canastota Cent. Sch. Dist., 5 979 F. Supp. 147, 152 (N.D.N.Y. 1997) (relying on Brantley 6 v. Indep. Sch. Dist. No. 625, 936 F. Supp. 649, 657 (D. 7 Minn. 1996) (citing Monahan v. Nebraska, 687 F.2d 1164, 8 1170-71 (8th Cir. 1982))). We have never held that such a 9 claim exists under the Rehabilitation Act, but even assuming 10 that it does, Plaintiffs’ complaint fails to state such a 11 claim. 12 Plaintiffs’ allegations of bad faith and gross 13 mismanagement are refuted by the facts (of which we have 14 taken judicial notice) that the Education Department [1] 15 investigated the matter before offering the regulation for 16 public comment and [2] received the public’s comments before 17 promulgating the regulation. See Notice of Emergency 18 Adoption & Proposed Rulemaking, N.Y. State Educ. Dep’t, June 19 20, 2006; N.Y. State Register of Rule Making Activities, 20 Nov. 15, 2006. 21 Plaintiffs’ response that bad faith or gross 22 mismanagement is manifest because there is no scholarly

§ 104.33(b)(1). As explained previously, the prohibition on aversives does not prevent educators from implementing IEPs for these children nor does it preclude their receipt of a FAPE.

1 support for banning aversives is similarly refuted by the 2 Education Department’s citation to scholarly literature 3 discussing the dangers of aversives and the benefits of 4 positive-only treatment. See Notice of Emergency Adoption & 5 Proposed Rulemaking, N.Y. State Educ. Dep’t, June 20, 2006. 6 In any event, such a dispute (regarding which education 7 policy is the most scientifically sound and effective 8 approach that is least likely to present health, safety, and 9 moral and ethical concerns) is best left for resolution by 10 the policymakers and education administrators, not the 11 judiciary. See Cerra, 427 F.3d at 192; see also Rowley, 458 12 U.S. at 206-07; Walczak, 142 F.3d at 129. 13 14 IV 15 In addition to their statutory claims, Plaintiffs also 16 contend that New York’s prohibition of aversives deprives 17 them of their constitutional rights to substantive and 18 procedural due process and equal protection. Each claim is 19 addressed in turn. 20 21 A 22 Plaintiffs contend that the ban on aversive 23 interventions deprives these children of substantive due 24 process. Plaintiffs cannot prevail on such a claim because *31 1 there is no substantive due process right to public 2 education. 3 “[T]he Due Process Clause of the Fourteenth Amendment 4 embodies a substantive component that protects against 5 ‘certain government actions regardless of the fairness of 6 the procedures used to implement them.’” Immediato v. Rye 7 Neck Sch. Dist., 73 F.3d 454, 460 (2d Cir. 1996) (quoting 8 Daniels v. Williams, 474 U.S. 327, 331 (1986)). In 9 examining whether a government rule or regulation infringes 10 a substantive due process right, “the first step is to 11 determine whether the asserted right is ‘fundamental,’”--12 i.e., “implicit in the concept of ordered liberty, or deeply 13 rooted in this Nation’s history and tradition,” Leebaert v. 14 Harrington, 332 F.3d 134, 140 (2d Cir. 2003) (internal 15 quotation marks omitted). Where the right infringed is 16 fundamental, the regulation must be narrowly tailored to 17 serve a compelling government interest. Immediato, 73 F.3d 18 at 460. Where the right infringed is not fundamental, “the 19 governmental regulation need only be reasonably related to a 20 legitimate state objective.” Id. at 461. 21 The right to public education is not fundamental. 22 Handberry v. Thompson, 446 F.3d 335, 352 (2d Cir. 2006) 23 (citing Plyler v. Doe, 457 U.S. 202, 221 (1982); San Antonio 24 Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973)). 25 Thus, even if Plaintiffs alleged that these children were *32 1 unable to receive a public education at all because they can 2 no longer receive aversives, the bar on aversive 3 interventions would still comport with due process if it was 4 reasonably related to a legitimate government objective. 5 The regulation rises to that low threshold because it serves 6 a legitimate government objective: preventing students from 7 being abused or injured by aversive interventions. 8 Realizing that there is no fundamental right to public 9 education, Plaintiffs contend they have been deprived of the 10 substantive due process because the ban on aversives is 11 arbitrary and capricious (because, as Plaintiffs argue, 12 aversives are effective and there is no scientific support 13 for banning them). This argument is addressed above. 14 Moreover, we decline Plaintiffs’ invitation to engage in 15 policymaking decisions that are best left to the political 16 branches. See Cerra, 427 F.3d at 192. In any event, safety 17 and ethical concerns as well as the potential for abuse 18 suffice to establish that New York’s prohibition is not 19 arbitrary and capricious--even if, as Plaintiffs contend, 20 aversives are the best and, perhaps, only way to effectively 21 treat these children’s severe behavior disorders. 22 23 24 25 *33 1 B 2 Plaintiffs’ procedural due process claim largely 3 duplicates the procedural IDEA claim and fails for the same 4 reasons. 5 A procedural due process claim is composed of two 6 elements: (1) the existence of a property or liberty 7 interest that was deprived and (2) deprivation of that 8 interest without due process. See Narumanchi v. Bd. of 9 Trustees, 850 F.2d 70, 72 (2d Cir. 1988). As a general 10 matter, Plaintiffs may have a property interest in public 11 education. See Handberry, 446 F.3d at 353 (discussing New 12 York law). The prohibition on aversives, however, does not 13 prevent these children from obtaining a public education, 14 even if, as Plaintiffs allege, these children would receive 15 a better education if aversive interventions were permitted. 16 Instead, Plaintiffs contend that they have an interest 17 in individualized assessments under the IDEA and that this 18 interest is undermined by the prohibition on aversive 19 interventions. This claim mirrors the procedural IDEA claim 20 and fails for the same reason: Plaintiffs have not alleged 21 that the prohibition on aversive interventions prevents an 22 individualized assessment, education, or treatment of these 23 children. The prohibition merely removes one possible form 24 of treatment from the range of possible options. Each child 25 is still able to receive an education plan that is tailored *34 1 to his or her specific needs in all other respects. 2 In addition, this claim fails because Plaintiffs do not 3 possess a property interest in any particular type of 4 education program or treatment. See Handberry, 446 F.3d at 5 352. Plaintiffs contend that their property right 6 originates in the IDEA but, given the IDEA’s strong 7 preference for positive behavioral intervention, see, e.g., 8 20 U.S.C. § 1400(c)(5)(F), the IDEA does not create a 9 property interest in the possible receipt of aversive 10 interventions as part of an IEP. 11 12 C 13 Plaintiffs contend that the prohibition on aversive 14 interventions violates equal protection by treating them 15 differently than other students who had IEPs permitting them 16 to receive aversives before June 30, 2009--the cut-off date 17 for the grandfather clause. 18 Laws that discriminate on the basis of disability are 19 subject to rational-basis review and upheld so long as there 20 is a “rational relationship between the disparity of 21 treatment and some legitimate governmental purpose.” See 22 Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 23 98, 109 (2d Cir. 2001). And, as explained above, there is 24 at least a rational basis to support the prohibition on 25 aversives. *35 1 Plaintiffs’ contention that the prohibition 2 distinguishes between students with disabilities who had 3 IEPs authorizing aversives prior to June 30, 2009, and 4 students with disabilities who did not have IEPs permitting 5 aversives, does not save the claim. Classifications that do 6 not “proceed[] along suspect lines . . . must be upheld 7 against equal protection challenge if there is any 8 reasonably conceivable state of facts that could provide a 9 rational basis for the classification.” FCC v. Beach 10 Commc’ns, Inc., 508 U.S. 307, 313 (1993). Classification on 11 the basis of authorization to administer aversive 12 interventions in a student’s IEP is, of course, a non-13 suspect classification subject to rational basis review. 14 Defendants’ decision to grandfather the prohibition of 15 aversives so that students already authorized to receive 16 aversives could continue their treatment easily withstands 17 rational-basis review. Grandfathering bans aversive 18 interventions without interrupting education programs where 19 aversives were already being used or already authorized to 20 be used. It also avoids the tremendous labor of replacing 21 the IEPs of all students who had IEPs authorizing aversives. 22 Plaintiffs argue that the exception authorizing some 23 aversive interventions disproves that the ban was motivated 24 by safety. Not so. Although it is true that an outright 25 ban would better protect against any harms from aversives, *36 1 reducing the use of aversives can still provide a benefit by 2 decreasing the number of students subjected to aversive 3 interventions and the harms potentially associated with such 4 interventions. 5 In the end, Plaintiffs’ argument is that they disagree 6 with Defendants’ policy choice to ban aversive 7 interventions. As long as Defendants had a rational reason, 8 however, the prohibition must be upheld against an equal 9 protection challenge. Here, the safety of the students 10 coupled with an attempt to minimize the impact of the 11 prohibition on students already receiving aversives provided 12 a rational basis for the prohibition and the use of a 13 grandfather provision to implement it. 14 15 V 16 Plaintiffs contend that the district court erred in 17 denying their request for a preliminary injunction. Because 18 the district court correctly dismissed the suit, it did not 19 err in denying Plaintiffs’ request for a preliminary 20 injunction. See Monserrate v. N.Y. State Senate, 599 F.3d 21 148, 154 & n.3 (2d Cir. 2010) (holding that a party cannot 22 satisfy the requirements for a preliminary injunction--23 including “likelihood of success on the merits”--if that 24 party cannot sustain any of its claims for relief). 25 *37 1 CONCLUSION 2 Accordingly, the judgment of the district court is 3 affirmed.

DISSENT

RICHARD J. SULLIVAN, District Judge, concurring in part and dissenting in part:

I concur in the majority’s opinion with regard to Appellants’ Rehabilitation Act, Due Process, and Equal Protection claims, but I respectfully dissent insofar as the Court’s opinion relates to the dismissal of Appellants’ IDEA claims because I believe that Appellants’ complaint alleged sufficient facts to survive a motion to dismiss, and because I find that the materials outside the complaint relied on by the majority do not establish, as a matter of law, the reasonableness of the State’s ban on aversive interventions.

In dismissing Appellants’ complaint, the district court held that “the allegations demonstrate that the NYSED and the Board of Regents explored the available data, studies, and literature before making a reasoned decision that aversives should be generally prohibited.” However, nowhere in the opinion did the district court actually cite from the pleadings to support this conclusion. Instead, the district court merely observed that “plaintiffs do not allege that [d]efendants did not consider the use of aversive interventions before adopting § 200.22” and then concluded *2 that “[t]he [c]ourt is not willing to second guess that policy decision.” Id. (emphasis added).

While it is of course true that courts are not to second guess state authorities in matters relating to educational policy, the law is equally clear that federal courts may not merely “rubber stamp administrative decisions” of this kind. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). Indeed, this Court has recognized that, notwithstanding “our deferential position with respect to state educational authorities crafting educational policy,” “our review must be searching, and we 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. ex rel. Mr. & Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111, 120-21 (2d Cir. 2008) (internal citations omitted). This is particularly the case at the pleading stage, where a plaintiffs’ allegations are presumed to be true. See Fed. R. Civ. P. 12(b)(6); ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). Here, the district court’s conclusion that the prohibition of aversive *3 interventions was reasonable is particularly problematic, because Appellants alleged in their complaint that the scientific literature, which the district court mentioned (but did not cite) in its opinion, actually “supports the use of aversive interventions and their vital role in providing a FAPE to students with severe behavior disorders.”

The majority affirms the district court’s dismissal of Appellants’ suit, finding that the prohibition of aversive interventions reflects “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.” In reaching this conclusion, the majority relies not on the pleadings or on the district court’s opinion, but rather on four pages from the Education Department’s Notice of Emergency Adoption and Proposed Rule Making, of which it has taken judicial notice. While the Court can certainly take judicial notice of facts, these four pages, standing alone, are insufficient to justify the district court’s dismissal of Appellants’ claims at this early stage of the litigation. Indeed, the first two of those pages simply note the Department’s “concerns” *4 with aversive interventions based on “site visits, reports and complaints filed by parents, school districts and others,” Notice of Emergency Adoption & Proposed Rulemaking, N.Y. State Educ. Dep’t, June 20, 2006; the latter two merely catalog scientific studies that purportedly support the proposed rule.

Importantly, the scientific studies summarized in the Notice of Emergency Adoption and Proposed Rule Making do not directly call for the prohibition of aversive interventions. To the contrary, these studies presuppose the use and utility of aversive interventions at least in certain contexts and merely set forth “standards” and “strategies to improve an ABI’s [aversive behavioral intervention’s] effectiveness and acceptability.” Id. It is worth noting that of the several studies cited in the Notice of Emergency Adoption and Proposed Rule Making, the two included in full in the record actually describe the need for aversive interventions in certain instances. See Dorothy C. Lerman & Christina M. Vondram, On the Status of Knowledge for Using Punishment: Implications for Behavior Disorders, 35 J. APPL. BEHAV. ANAL., 431, 456 (2002) (noting that “punishment is still sometimes needed to reduce destructive behavior to *5 acceptable levels”); Sarah-Jeanne Salvy et al., Contingent Electric Shock (SIBIS) and a Conditioned Punisher Eliminate Severe Head Banging in a Preschool Child, 19 BEHAV. INTERVENT. 59, 70 (2004) (noting that ABIs “can sometime be necessary, although not sufficient, to eliminate severe and harmful [self-injurious behavior] in the natural environment”). Consequently, I am unpersuaded that the Notice of Emergency Adoption and Proposed Rule Making cited by the majority provides a sufficient basis for upholding the district court’s dismissal.

Of course, like the majority, I am “mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.” Cerra, 427 F.3d at 192. However, it seems to me that the appropriate course would be to return this action to the district court, which could then review a fuller record, beyond the pleadings, to assess the regulation and its compliance with the IDEA. If my cursory review of the literature in the field is any indication, it seems likely that Appellees will be able to demonstrate that “the regulations represent an informed, rational choice between two opposing schools of thought on *6 the use of aversives,” Alleyne v. N.Y. State Educ. Dept., 691 F. Supp. 2d 322, 333 (N.D.N.Y. 2010), and that Appellants will therefore have difficulty overcoming the “substantial deference” accorded to the review of state policy-making agencies, Wasser v. N.Y. State Office of Voc. & Educ. Servs. for Individuals With Disabilities, 602 F.3d 476, 477 (2d Cir. 2010). Nevertheless, while the outcome may ultimately be the same, it is important that the result be based on a careful assessment of the merits, founded on a well-developed record. In my view, the district court’s dismissal – and the majority’s affirmance – takes an unnecessary short cut to reach an outcome that cannot be justified at this stage of the proceedings. For these reasons, I respectfully dissent.