The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs parents and guardians of disabled students attending the Judge Rotenburg Educational Center (JRC) allege that defendants New York State Education Department (NYSED), New York State Board of Regents (NYSBR), and New York State Education Commissioner Richard P. Mills violated their statutory and constitutional rights. The gravamen of the complaint is that defendants arbitrarily denied the student plaintiffs a free appropriate public education (FAPE) in violation of the IDEA*fn1 when they passed emergency regulations that eliminated or restricted aversive treatments that had been authorized for the student plaintiffs. Pending is defendants' motion for summary judgment, or, in the alternative, for an order dissolving the preliminary injunction issued in this matter. For the reasons that follow, the motion for summary judgment is granted in part and denied in part, and the motion to dissolve the preliminary injunction is denied.
Plaintiffs are a group of approximately forty New York students with severe behavioral problems who attend JRC, and their parents and guardians.*fn3 (See Pls. SMF ¶ 67, Dkt No. 237:1.) Located in Massachusetts, JRC is a not-for-profit school that provides residential, special education, and behavioral services for individuals who suffer severe behavioral disorders. (See id. at ¶ 68.)
In addressing students' problematic behaviors, JRC first employs positive intervention methods such as rewards and token fines. These methods are successful with about 60% of JRC students. (See id. at ¶ 71.) If unsuccessful, JRC may employ aversive interventions. (See id. at ¶ 72.) Aversive methods include contingent food programs, the use of helmets on some children, mechanical restraints, and the application of electric skin shocks through a graduated electronic decelerator (GED). (See Defs. SMF ¶ 5, Dkt. No. 233:1.) The GED may cause blisters or dark marks which clear up within a few days.(See id. at ¶ 8.) Before aversives are used on a student, such use must be approved by supervising personnel, the student's parent or guardian, two committees, the school district, an independent board certified physician, and a Massachusetts probate court judge. (See Pls. SMF ¶ 74, Dkt No. 237:1.) Individualized education programs (IEPs) containing aversives are generally proposed by JRC and transmitted to the child's parents and the committee on special education (CSE) for approval. (See Defs. SMF ¶ 13, Dkt. No. 233:1.) As of June 23, 2006, most of the students were receiving aversives for aggressive, destructive, health dangerous, major disruptive, and non-compliant behaviors. (See id. at ¶ 11.)
NYSED is charged with overseeing the education and well-being of New York students. (See Pls. SMF ¶ 76, Dkt No. 237:1.) NYSED has conducted numerous visits, inspections, and reviews of JRC, and has approved JRC as an out-of-state school for decades. (See id. at ¶¶ 77-79.) During this time, no concerns were raised about the health and safety of JRC students or the use of aversives. (See id. at ¶¶ 82-83.) However, in early 2006, a parent of a former JRC student sued NYSED, claiming, inter alia, that JRC mistreated the student.*fn4 (See id. at ¶ 84.) The suit was followed by sensation-seeking newspaper articles highly critical of NYSED. Shortly thereafter, NYSED proposed a complete ban on the use of aversives, and decided to conduct another review of JRC due to the lawsuit, despite having reviewed JRC in Fall 2005. (See id. at ¶¶ 80-81, 85.) While the group NYSED selected to conduct this "re-review" was experienced in educational matters, some members of the team were not familiar with aversive techniques and at least one member of the team was opposed to aversives under all circumstances. (See id. at ¶¶ 87-88.) In June 2006, NYSED released a report that was critical of JRC and its methods. (See id. at ¶ 89.) Plaintiffs contend that this report "was littered with flaws and false statements" because it omitted information as to the effectiveness of JRC's program and relied upon conjecture, innuendo, and falsehoods. (Id. at ¶ 90.)
Upon NYSED's recommendation, NYSBR adopted "emergency" regulations in June 2006 that limited the use of aversives,*fn5 effective June 23, 2006. (See Defs. SMF ¶ 17, Dkt. No. 233:1.) Defendants contend that the regulations were the product of considerable research and review. (See id. at ¶ 21.) The emergency regulations prohibited the use of aversive interventions to reduce or eliminate maladaptive behaviors, except as provided through a child-specific exception that applied when the child's CSE developed an IEP that included aversives. (See id. at ¶ 19.) After the regulations went into effect on an emergency basis, NYSED held three public hearings from August 8 to August 15, 2006. (See id. at ¶ 25.) NYSED also opened up a public comment period on the proposed regulations that lasted from July 12, 2006, to August 28, 2006. (See id. at ¶ 27.) Through these channels, NYSED received voluminous comments from the public, including some plaintiffs. (See id. at ¶¶ 26, 28-29.) While plaintiffs opposed the regulations due to their limitation on the use of aversives, most of the public commentary opposed the regulations because they allowed the use of aversives at all. (See id. at ¶ 30.) NYSED prepared an assessment of the public comments, and revisions were correspondingly made to the regulations before they were presented for permanent adoption. (See id. at ¶¶ 31, 34.) Under the finalized regulations adopted in January 2007, the use of aversives is only permitted for students who had aversives on their IEP as of June 30, 2009, and who obtain a child-specific exception from a committee appointed by the Commissioner or his designee. See 8 N.Y. COMP. CODES R. & REGS. § 200.22(e). The use of aversives under this exception is limited to self-injurious and/or aggressive behaviors. (See id.) The United States Department of Education (USDOE) reviewed the final regulations and found that they "can be implemented consistent with the IDEA." (See Delorenzo Decl., Ex. A, Dkt. No. 161:3.)
Plaintiffs commenced the present action on August 16, 2006, and asserted claims for: (1) a "global" violation of the IDEA; (2) the denial of a FAPE under the IDEA; (3) a violation of the Rehabilitation Act, 29 U.S.C. § 701, et seq.; (4) violations of the Equal Protection Clause of the New York and United States Constitutions; (5) procedural due process violations under the New York and United States Constitutions; and (6) substantive due process violations under the New York and United States Constitutions. (See generally Am. Compl., Dkt. No. 126.) Plaintiffs additionally sought an order permanently enjoining defendants from enforcing the emergency regulations or revoking JRC's New York approval, and a declaration that the emergency regulations are invalid. (See id.) In conjunction with their complaint, plaintiffs also filed an ex parte motion for preliminary injunctive relief, seeking to enjoin enforcement of the regulations, which JRC had been complying with since June 23, 2006. (See Dkt. No. 7.) The court granted this motion on September 8, 2006, and enjoined NYSED from enforcing the regulations against plaintiffs.*fn6
On February 13, 2009, defendants filed a motion for summary judgment under FED. R. CIV. P. 56, seeking dismissal of plaintiffs' action, or, alternatively, an order dissolving the court's preliminary injunction. (See Dkt. No. 233.) On July 21, 2009, the court held a hearing on the motion. (See Dkt. No. 249.) During this hearing the court: (1) dismissed as moot the claims of thirteen student plaintiffs who no longer attend JRC;*fn7 and (2) rejected defendants' contention that the remaining plaintiffs' claims must be dismissed for failure to exhaust administrative remedies. (See id.) Pending before the court is the remainder of defendants' motion.
In general, when a party moves for summary judgment in an IDEA action, the normal inquiry as to whether there are any issues of fact or credibility does not apply. See New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp.2d 394, 397 (N.D.N.Y. 2004). Instead, the inquiry is "whether the administrative record, together with any additional evidence, establishes that there has been compliance with [the] IDEA's processes." Id. (internal quotation marks and citation omitted). "[T]he district court must engage in an independent review of the administrative record and make a determination based on a 'preponderance of the evidence.'" Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007) (internal citation omitted). Here, however, a full administrative record is absent, and the parties have argued the motion under the normal summary judgment standard. See Doe v. Metro. Nashville Pub. Schs., 133 F.3d 384, 387 (6th Cir. 1998) (indicating that parties may elect for review under normal summary judgment standard in IDEA action). Accordingly, the court will proceed under the traditional standard for summary judgment. As this standard is well established, it will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town of Argyle, 499 F. Supp.2d 192, 194-95 (N.D.N.Y. 2007).
Initially, the court addresses plaintiffs' sixth cause of action, which seeks to have the emergency regulations struck down on the grounds that they are arbitrary, capricious, inconsistent with the purposes of the IDEA, and the by-product of a flawed and biased process. Defendants contend that this claim must be dismissed because the regulations represent an informed educational policy choice between two conflicting schools of thought on the use of aversives, and that such choice is entitled to deference. Upon review of the law, the parties' briefs, and the record, the court is constrained to agree with defendants' arguments.
"The IDEA was enacted to assist states in providing special education and related services to children with disabilities ...." Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002) (citing 20 U.S.C. § 1411(a)(1)). A state is eligible for federal funds under the IDEA if it has policies and procedures in effect to ensure, among other things, that disabled children within the state are provided access to a FAPE. See id. at 776-77 (quoting 20 U.S.C. § 20 U.S.C. § 1412). The Act defines a FAPE as: special education and related services that --(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school or secondary school education in ...