07-1726- CV
Alleyne v. New York State Educ. Dep’t



                         UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT
                               _____________________

                                      August Term, 2007

   (Argued: February 5, 2008                                   Decided: February 14, 2008)

                                    Docket No. 07-1726-cv

                                   _____________________

    JEANETTE ALLEYNE , INDIVIDUALLY AND AS NEXT FRIEND AND GUARDIAN OF T.J., ALLEN
     DATOUSH , INDIVIDUALLY AND AS NEXT FRIEND AND GUARDIAN OF T.D., KIM DATOUSH ,
 INDIVIDUALLY AND AS NEXT FRIEND AND GUARDIAN OF T.D., LINDA DOHERTY , INDIVIDUALLY
  AND AS NEXT FRIEND AND GUARDIAN OF M.D., SUSAN HANDON , INDIVIDUALLY AND AS NEXT
   FRIEND AND GUARDIAN OF C.C., LESLIE JOYNER , INDIVIDUALLY AND AS NEXT FRIEND AND
GUARDIAN OF D.J., LA SHARON JOYNER , INDIVIDUALLY AND AS NEXT FRIEND AND GUARDIAN OF
  C.J., MITCHELL SHEAR , INDIVIDUALLY AND AS NEXT FRIEND AND GUARDIAN OF S.S., MARCIA
       SHEAR , INDIVIDUALLY AND AS NEXT FRIEND AND GUARDIAN OF S.S., AND THE JUDGE
                           ROTENBERG EDUCATIONAL CENTER, INC .,
                                                                      Plaintiffs-Appellees,

                                            — v .—

   NEW YORK STATE EDUCATION DEPARTMENT, RICHARD P. MILLS, IN HIS CAPACITY AS
 COMMISSIONER OF EDUCATION OF THE NEW YORK STATE EDUCATION DEPARTMENT AND THE
                      NEW YORK STATE BOARD OF REGENTS,
                                                            Defendants-Appellants.

                                    ___________________

Before:       NEWMAN , WINTER , AND B.D. PARKER , Circuit Judges.

                                    ___________________

       Appeal from an order of the United States District Court for the Northern District of New
York (Sharpe, J.), preliminarily enjoining the implementation of N.Y. Comp. Codes R. & Regs.


                                               1
tit. 8, § 200.22(f)(4), which relates to the treatment of children with special needs.

       VACATED AND REMANDED.

                                      ___________________

                                       MICHAEL P. FLAMMIA , Eckert Seamans Cherin & Mellott,
                                            LLC, Boston, MA (Jeffrey J. Sherrin, O’Connell
                                            and Aronowitz, P.C., Albany, NY, on the brief), for
                                            Plaintiffs-Appellees.

                                       JULIE S. MERESON , Assistant Solicitor General (Barbara D.
                                              Underwood, Solicitor General, Andrew D. Bing,
                                              Deputy Solicitor General, on the brief) for Andrew
                                              M. Cuomo, Attorney General of the State of New
                                              York, Albany, NY.

                                      ___________________

PER CURIAM :

       Defendants-Appellants, who are various New York State educational entities, appeal an

order of the United States District Court for the Northern District of New York (Sharpe, J.),

preliminarily enjoining the implementation of N.Y. Comp. Codes R. & Regs. tit. 8, §

200.22(f)(4), which purports to regulate certain treatments administered to special needs

students. We vacate the injunction and remand to the district court to allow it to make the

required findings as to irreparable harm and likelihood of success on the merits.

                                        BACKGROUND

       Since the 1970s, Appellant New York State Educational Department (“NYSED”) has

referred special needs students from New York to out-of-state facilities for specialized treatment

and education. The NYSED makes these referrals pursuant to the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, which creates a statutory right to a “free

                                                  2
appropriate public education” for disabled students. 20 U.S.C. § 1412(a)(1)(A).

       Over the years, hundreds of New York students have been sent to the Judge Rotenberg

Educational Center (“JRC”), a non-profit residential facility in Canton, Massachusetts. JRC is

licensed, approved, and regulated by various government agencies, including the Massachusetts

Department of Education and the Massachusetts Department of Mental Retardation. JRC

emphasizes behavioral therapies rather than medication in addressing its students’ disorders.

The school initially employs positive reinforcement and non-intrusive methods, which are

effective for about half of JRC students. If these methods are unsuccessful, JRC may

supplement a student’s treatment program with “aversive interventions” (also referred to by the

parties as “aversive therapies,” “aversive treatments,” and simply “aversives”), including skin

shocks, “contingent” food programs, and physical restraints.

       Parents and guardians must consent in writing to the use of aversive therapies. The

therapies must also be provided for in the student’s individualized education program (“IEP”),

which is a key element of the IDEA. 20 U.S.C. § 1414(d). Pursuant to Massachusetts

regulations, a Human Rights Committee and a Peer Review Committee must then approve the

aversive interventions for each student. Additionally, an independent physician must examine

each student to ascertain if there are any medical reasons not to use aversive therapies, and a

judge of the Massachusetts Probate Court must, after hearings, approve the therapies.

       According to Appellees, who are the parents and guardians of New York JRC students,

each student’s behavioral treatment program, including the use of aversives, is designed and

supervised by “fully qualified doctoral-level clinicians.” However, the aversive therapies are


                                                 3
typically administered (e.g., the skin shocks are actually applied) by JRC “direct care staff.”

These staff members must participate in and pass a two-week training program designed by

JRC’s professional clinicians. JRC also uses experienced staff as “monitors,” either in person or

via a live-feed video system, to follow the direct care staff. The direct care staff do not have

licenses or certificates that specifically qualify them to administer aversive treatments.

       In 2006, apparently in response to a suit brought against the NYSED by a parent of a

former JRC student, the NYSED dramatically increased its scrutiny of JRC and, in particular, its

use of aversive interventions. Although it had positively assessed JRC’s facilities, policies, and

practices as recently as November 2005, the NYSED released a report critical of JRC in June

2006. Effective June 23, 2006, the NYSED promulgated an emergency regulation that generally

banned the use of aversive interventions, with child-specific exceptions under limited

circumstances. N.Y. Comp. Codes R. & Regs. tit. 8, § 200.22. Starting on June 23, JRC

complied with the new regulation, restricting the use and availability of aversive interventions

for many students.

       Appellees, proceeding individually and on behalf of their children, sued Appellants and

moved for injunctive relief in August 2006, alleging that Section 200.22 violates state and

federal education laws (including the IDEA), as well as Appellees’ substantive and procedural

due process and equal protection rights. On September 8, 2006, the district court preliminarily

enjoined the enforcement of two provisions of the new regulation against the student plaintiffs,




                                                  4
ensuring that those students could continue to receive aversive treatments.1 Noting Appellants’

authority under the IDEA to set standards governing special education and related services, the

court emphasized that it was providing “narrowly tailored relief.”

       Later that month, Appellees raised a concern that, subsequent to the injunction, some

students’ IEP’s were being revised without parental consent or simply not revised for the new

school year, the effect of which was to deprive those students of aversive therapies. On October

2, 2006, the court extended the preliminary injunction to newly added student plaintiffs and

enjoined the enforcement of a third provision of the regulation.2

       Effective January 15, 2007, Appellants revised the regulation on an emergency basis, and

included a requirement that “aversive interventions shall be administered by appropriately

licensed professionals or certified special education teachers in accordance with Part 80 of this

Title and sections 200.6 and 200.7 of this Part or under the direct supervision and direct

observation of such staff.” N.Y. Comp. Codes R. & Regs. tit. 8, § 200.22(f)(4) (“Section

(f)(4)”). No New York or Massachusetts law had previously required these specific

qualifications. Appellees informed the district court by letter about the amended regulation and

requested an extension of the injunction to cover Section (f)(4). Appellees stated that while they

believed that JRC employed only qualified individuals to administer the therapies, JRC’s


       1
        The two provisions were § 200.22(f)(2)(vi) (limiting the use of aversives to aggressive
and self-injurious behavior) and § 200.22(f)(2)(ix) (prohibiting the combined use of aversive
interventions with mechanical restraints).
       2
        The enjoined provision was § 200.22(e)(1)(ii), requiring the submission of an
application to the Commissioner of Education concerning the use of aversive interventions by
October 1, 2006.

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compliance with Section (f)(4) depended on the State’s interpretation of the provision.

Appellees also brought to the court’s attention the “logistical challenges” that a strict

interpretation of the new provision could pose. For example, Appellees assert that it would be

virtually impossible for JRC staff members to continue applying aversive treatments

immediately after the occurrence of each problem behavior if they had to be directly observed by

a licensed or certified professional. Additionally, JRC would need to hire significantly more

“licensed” or “certified” professionals to comply with the revised regulation.

       At a hearing on February 5, 2007, the district court expressed its concern that the revised

regulation essentially accomplished “what the preliminary injunction forbids” - suspending the

use of aversive therapies. Appellants argued that they had not yet assessed JRC’s compliance

with or enforced Section (f)(4), and that even if the new requirements took effect, JRC would

have time to work towards compliance before being removed from the list of approved schools

to which the NYSED refers students. Appellants’ counsel also observed that even in a worst

case scenario, Appellees would have five days to object to the loss of its approved status.3

       The district court indicated that it would extend the injunction to cover Section (f)(4)

“[f]or the same reasons that I issued the original TRO,” and entered an order to that effect on



       3
         8 N.Y.C.R.R. § 200.7(a)(3)(iv) provides that “[s]chools may be removed from the
approved list five business days after written notice by the commissioner indicating that there is
a clear and present danger to the health or safety of students attending the school, and listing the
dangerous conditions at the school, including, but not limited to, evidence that an approved
private school is using aversive interventions to reduce or eliminate maladaptive behaviors of
students without a child-specific exception provided pursuant to section 200.22(e) of this Part or
that an approved private school is using aversive interventions in a manner inconsistent with the
standards as established in section 200.22(f) of this Part.”

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February 8, 2007. The order states that “for the reasons set forth in the Court’s September 8,

2006 Memorandum-Decision and Order, the State Education Defendants are preliminarily

enjoined from the enforcement of 8 N.Y.C.R.R. § 200.22(f)(4) . . . as to the Plaintiffs in this

action.” The State defendants appeal this order.

                                          DISCUSSION

       We review the grant of a preliminary injunction by a district court for abuse of discretion.

Lusk v. Vill. of Cold Spring, 475 F.3d 480, 484 (2d Cir. 2007); Moore v. Consol. Edison Co. of

New York, Inc., 409 F.3d 506, 511 (2d Cir. 2005). A district court abuses its discretion “when

(1) its decision rests on an error of law (such as application of the wrong legal principle) or a

clearly erroneous factual finding, or (2) its decision - though not necessarily the product of a

legal error or a clearly erroneous factual finding - cannot be located within the range of

permissible decisions.” Mastrovincenzo v. City of New York, 435 F.3d 78, 88-89 (2d Cir. 2006)

(quoting Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001)) (footnotes omitted). A

district court may enter a preliminary injunction staying “government action taken in the public

interest pursuant to a statutory or regulatory scheme” only when the moving party has

demonstrated that he will suffer irreparable injury, and there is “a likelihood that he will succeed

on the merits of his claim.” Id. at 89 (quoting Plaza Health Labs., Inc. v. Perales, 878 F.2d 577,

580 (2d Cir.1989)); Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995).

       Appellants argue that the district court abused its discretion in enjoining the enforcement

of Section (f)(4) without making findings as to Appellees’ irreparable harm or likelihood of

success. Appellants contend further that no such findings could have been made, since the


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district court received no evidence or factual showings as to Section (f)(4). We agree that the

district court’s failure to make findings relating to irreparable harm or likelihood of success on

the merits seriously impedes appellate review and warrants vacating the injunction.

        The Federal Rules of Civil Procedure provide that “[i]n granting or refusing an

interlocutory injunction, the court must [] state the findings and conclusions that support its

action.” Fed. R. Civ. P. 52(a)(2). Additionally, “[e]very order granting an injunction and every

restraining order must state the reasons why it issued.” Fed. R. Civ. P. 65(d)(A). These

requirements help “ensure due care by the district court, and . . . aid[s] the appellate court in

understanding the ground or basis for the trial court’s decision.” Knox v. Salinas, 193 F.3d 123,

129 (2d Cir. 1999) (citation and internal quotation marks omitted); see also N.A.A.C.P. v. Town

of East Haven, 70 F.3d 219, 223 (2d Cir. 1995) (“A principal purpose of [Rule 52(a)] is to allow

appellate review of the district court’s decision.”). We have not hesitated, on numerous

occasions, to invalidate injunctions for lack of adequate findings. E.g., Knox, 193 F.3d at 129;

Town of East Haven, 70 F.3d at 225; Romer v. Green Point Sav. Bank, 27 F.3d 12, 16 (2d Cir.

1994); Tekkno Labs., Inc. v. Perales, 933 F.2d 1093, 1097 (2d Cir. 1991); Small v. Kiley, 567

F.2d 164, 164 (2d Cir. 1977).

        The district court did not sufficiently articulate its basis for enjoining Section (f)(4),

precluding meaningful appellate review of the order. The February 8, 2007 order contains no

findings, and even looking back to the original September 8, 2006 order, to which the February 8

injunction refers, it is difficult to identify specific findings as to harm or likelihood of success.

The September 8 injunction alludes only to the fact that “some parents have shouldered the



                                                   8
unenviable task of caring for severely challenged children for years, believe in the efficacy of

aversives as applied to their children, and are now caught in the middle.” As to likelihood of

success, the order observes correctly that Appellees need not meet the more stringent “clear” or

“substantial” standard, but does not make any findings as to whether Appellees are “likely” to

succeed on the merits of their claims.

       In the absence of help from the district court, we may mine the record for facts that

support injunctive relief. See Freedom Holdings, Inc., 408 F.3d 112, 114 (2d Cir. 2005) (citation

and internal quotation marks omitted) (when reviewing a preliminary injunction, we “may affirm

on any ground supported by the record”); Hsu ex rel. Hsu v. Roslyn Union Free Sch. Dist. No. 3,

85 F.3d 839, 848 n.1 (2d Cir. 1996) (where the district court did not make any independent

factual determinations, examining the record and asking “whether injunctive relief is warranted

based on the undisputed facts”). The record provides substantial support for a finding of harm to

the student plaintiffs if aversive treatments are suspended, particularly the numerous affidavits

submitted by the parents that attest to the positive effects of aversives and the adverse

consequences to their children of suspending those treatments. However, the record is less

helpful on the specific harms threatened by the licensing requirements of Section (f)(4), and

silent as to Appellees’ likelihood of success on the merits.

       Remand to the district court for further findings is appropriate where, as here, “the record

is insufficiently clear to permit us to determine the basis for the district court’s decision.”

Miranda v. Bennett, 322 F.3d 171, 175 (2d Cir. 2003) (citation omitted); see also Town of East

Haven, 70 F.3d at 223 (“Our normal practice is to vacate the order and remand for specific



                                                   9
findings, ‘if the findings and the record are not sufficient to enable us to be sure of the basis of

the decision below.’”) (quoting Tekkno Labs., 933 F.2d at 1097). We are confident that,

especially given the harms that could result if the student plaintiffs’ behavioral treatments are

interrupted, the deficiencies in the district court’s order may be expeditiously remedied.4 We

acknowledge the pressure placed upon the district court by a swiftly passed emergency

regulation that the court suspected had been enacted for the purpose of circumventing its earlier

injunction. In the end, however, an inadequately documented preliminary injunction burdens the

reviewing court and delays the progress of the case towards an anticipated trial, where the

serious issues at play in this case may be finally resolved.

                                          CONCLUSION

       We VACATE the district court’s order of February 8, 2007, enjoining the enforcement of

§ 200.22(f)(4), and REMAND for findings as to irreparable harm and likelihood of success on

the merits.



       4
          In a letter to this Court dated February 6, 2008, Appellants’ counsel indicated that “[t]he
[NYSED] does not expect to invoke § 200.7(a)(3)(iv) to enforce compliance with §
200.22(f)(4).” Furthermore, “even if the department decided to issue a determination of
noncompliance with subdivision (f)(4) and seek to remove JRC from the approved list, the
students’ services would continue uninterrupted until each student is transferred to an
appropriate placement.” The district court would have the authority to ensure that Appellants
take no other action against JRC on the basis of Section (f)(4) that would disrupt provision of
aversives to the student plaintiffs for sixty days from receipt of our mandate, while the court
makes the appropriate findings to support a preliminary injunction. The district court may also
require Appellants not to change the placement or treatment of the student plaintiffs without
providing at least thirty days’ notice, in the absence of a true emergency situation. Finally, the
district court has the authority, of course, to combine a preliminary injunction hearing with a trial
on the merits and make appropriate findings of fact and conclusions of law. Fed. R. Civ. P.
65(a)(2).

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