In class action, NDNY upholds NYS regulations regarding use of aversives, but enjoins enforcement due to FAPE claims

ALLEYNE v. NEW YORK STATE EDUCATION DEPARTMENT, (N.D.N.Y. 2-24-2010): This class action was filed in 2006. It addresses the use of aversive procedures at the Judge Rotenberg Center (JRC). Much attention on a national level has recently focused on the use of aversive procedures to control the behavior of students with disabilities. The thrust of most of the political activity is to curtail, severely limit or eliminate such procedures. This action, brought on behalf of parents of students at JRC, however, challenged New York State’s attempt to restrict the use of such procedures “when they passed emergency regulations that eliminated or restricted aversive treatments that had been authorized for the student plaintiffs.” In 2006, the Court enjoined NYSED from enforcing the emergency regulations.

The Court held that the regulations reflected an informed policy decision that must be accorded deference.

the regulations represent an 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.

The Plaintiffs also claimed that the regulations, as applied to the them, denied them a FAPE. On this point, the Court ruled in their favor. Thus, NYS’s motion to dissolve the preliminary injunction was rejected. The Court reasoned that academic progress is not the sole measure of a FAPE. The Court expressly rejected NYS’s argument 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."

Adverse impact upon educational performance entails more than academics

SRO 08-112: In this reimbursement case, SRO Paul Kelly reaffirmed the proposition earlier stated in SRO 07-086 that adverse impact on educational performance entails more than just academic performance.

While consideration of a student's eligibility for special education and related
services should not be limited to a student's academic achievement (34 C.F.R. § 300.101[c]; 8 NYCRR 200.4[c][5]; see Corchado, 86 F. Supp. 2d at 176), evidence of psychological difficulties, considered in isolation, will not itself establish a student's eligibly for classification as a student with an emotional disturbance (N.C., 473 F. Supp. 2d at 546). Moreover, as noted by the U.S. Department of Education's Office of Special Education Programs, "the term 'educational performance' as used in the IDEA and its implementing regulations is not limited to academic performance" and whether an impairment adversely affects educational performance "must be determined on a case-by-case basis, depending on the unique needs of a particular child and not based only on discrepancies in age or grade performance in academic subject areas"
(Letter to Clarke, 48 IDELR 77).