A federal appeals court has upheld a New York state prohibition on the use of "aversive interventions" such as electric shock, food limitations, and restraints in schools, including for children with disabilities being served in out-of-state schools that have permitted such practices.

The New York regulation was challenged by parents who believe such interventions are proper for their children, who commit self-injurious behaviors such as banging their heads on walls and pulling out their own teeth. The parents send their children to the Judge Rotenberg Center, a Canton, Mass., facility that until recently used shock therapy and continues to use other aversive methods. (Many New York state students are served at the residential facility.)

The parents contend that the New York state education regulation undermines their children's right to a free, appropriate public education under the federal Individuals with Disabilities Education Act. The parents also raise claims under the Rehabilitation Act of 1973 and the 14th Amendment to the U.S. Constitution. (I blogged about an earlier ruling in the case here.)

In its Aug. 20 decision in Bryant v. New York State Education Department, a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled 2-1 that the state's prohibition of one possible method of dealing with behavioral disorders, such as aversive interventions, does not undermine a child's right to a free, appropriate public education under the federal special education law.

As a preliminary matter, the appeals court noted that Massachusetts recently adopted a regulation that bars some of the interventions used at the Judge Rotenberg Center, including spanking, hitting, and skin shock. The Massachusetts rule allows certain others, such as loud noises, bad odor and taste stimuli, and short delays for students' meals.

The 2nd Circuit court said the change did not make the parents' challenge to the New York regulation moot, because New York's prohibition on aversive interventions is broad and a successful challenge could permit families to seek certain therapies elsewhere.

However, the court rejected the parents' arguments that the New York regulation prevented them from getting a truly individualized education plan under the IDEA that was most appropriate for their children. The court said the New York rule represents the state's considered judgment about what is best for the safety and education of its children.

"New York adopted the ban of aversives only after the Education Department made site visits, reviewed reports, and considered complaints from parents as well as school districts and others raising concerns about aversive techniques," said the opinion by Chief U.S. Circuit Judge Dennis Jacobs. "It concluded that aversive interventions are dangerous and may backfire and that positive behavioral interventions are sufficiently effective to provide a FAPE."

"There is an ongoing debate among the experts regarding the advantages and disadvantages of aversive interventions and positive-only methods of behavioral modification," Judge Jacobs added. "The judiciary is ill-suited to decide the winner of that debate."

Judge Richard J. Sullivan dissented in part, saying that the plaintiffs' suit should not have been dismissed at an early stage. He said some scientific studies cited by New York in adopting its rule do not call for banning aversive interventions and, in some cases, describe the need for them in the right situation.

