     06-0601
     Bay Shore v. Kain


1                        UNITED STATES COURT OF APPEALS
2                            FOR THE SECOND CIRCUIT

3                                August Term, 2006

4    (Argued November 22, 2006                   Decided May 10, 2007)
5                          Docket No. 06-0601-cv

6    ---------------------------------------------
7    BAY SHORE UNION FREE SCHOOL DISTRICT,

8             Plaintiff-Counter-Defendant-Appellant,

9                           v.

10   THOMAS KAIN, on behalf of his son, RYAN KAIN,

11             Defendant-Counterclaimant-Appellee.
12   ---------------------------------------------


13   B e f o r e: MESKILL, WINTER and HALL, Circuit Judges.


14                Appeal from a final order and judgment of the United

15   States District Court for the Eastern District of New York,

16   Weinstein, J., filed on December 29, 2005, confirming the

17   decision of the State Review Officer that Plaintiff-Appellant Bay

18   Shore Union Free School District provide Ryan Kain, the son of

19   Defendant-Appellee Thomas Kain, a one-to-one teacher’s aide at

20   his parochial school.

21                          CHRISTOPHER VENATOR, Hauppauge, NY, (Ingerman
22                               Smith, L.L.P., Hauppauge, NY, of
23                               counsel),
24                               for Appellant.

25                          ROBERT E. FEKETE, Mineola, NY, (Kenneth A.
26                               Gray, Bee Ready Fishbein Hatter &
27                               Donovan, L.L.P., Mineola, NY, of
28                               counsel),
1                              for Appellee.

2    MESKILL, Circuit Judge:

3               This appeal asks us to decide whether plaintiff-

4    appellant Bay Shore Union Free School District (the School

5    District) has a legal obligation to provide defendant-appellee’s

6    son Ryan with a teacher’s aide during his classes at St. Patrick

7    School,1 the parochial school the child now attends.   The New

8    York Department of Education Review Officer determined that the

9    School District must provide Ryan a teacher’s aide at St. Patrick

10   if his parents wish him to remain at that school for his regular

11   classes.   The School District challenged the decision in the

12   United States District Court for the Eastern District of New

13   York, and the court, Weinstein, J., confirmed the State Review

14   Officer’s findings and recommendation.    However, the parties

15   agree that the federal Individuals with Disabilities Education

16   Act (IDEA) does not confer on Ryan a right to a teacher’s aide at

17   a private school of his choosing, and therefore the obligations

18   of the School District turn on the New York Education Law.    We

19   conclude that the district court improperly assumed jurisdiction

20   over this case.   This appeal must be dismissed and the order of

21   the district court vacated.



          1
            Although the parties and the Impartial Hearing Officer
     refer to Ryan’s school as “St. Patrick’s,” correspondence on the
     school letterhead included in the record indicates that the
     institution is called “St. Patrick School.”

                                     -2-
1                                      I.

2              At the time of his impartial hearing in September 2004,

3    Ryan was a seven-year old second-grader at St. Patrick School

4    (St. Patrick) in Bay Shore, New York.       On November 4, 2003, one

5    of Ryan’s teachers referred him to the District’s Committee on

6    Special Education, observing that he “has extreme difficulty

7    following and carrying out oral directions [and] has yet to

8    master daily classroom routines.”       A pediatric neurologist

9    diagnosed Ryan as suffering from Attention Deficit Hyperactivity

10   Disorder (ADHD).

11             IDEA requires participating states such as New York to

12   ensure that once a school district has made such a disability

13   determination, the needs of the student are adequately

14   accommodated.   The “core of the statute . . . is the cooperative

15   process that [IDEA] establishes between parents and schools.”

16   Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005).       For

17   each disabled child a school district must create an

18   “Individualized Education Program” (IEP), which “must include an

19   assessment of the child’s current educational performance, must

20   articulate measurable educational goals, and must specify the

21   nature of the special services that the school will provide.”

22   Id.; 20 U.S.C. § 1414(d)(1)(A).    “If parents believe that an IEP

23   is not appropriate, they may seek an administrative ‘impartial

24   due process hearing’” conducted by the state or local educational



                                       -3-
1    agency.   Schaffer, 546 U.S. at 53; 20 U.S.C. § 1415(f).    If the

2    impartial due process hearing is conducted by a local educational

3    agency, as it was in the instant case, the decision may be

4    appealed to the state agency.   Id. § 1415(g).   IDEA expressly

5    provides that “any party aggrieved” by the final state decision

6    “shall have the right to bring a civil action” challenging the

7    decision “in any State court of competent jurisdiction or in a

8    district court of the United States.”   Id. § 1415(i)(2)(A).

9              Pursuant to this elaborate process, the School District

10   developed an IEP designating Ryan to receive testing

11   accommodations, daily 40 minute sessions in a Resource Room, and

12   the services of a one-to-one teacher’s aide for three hours per

13   day in the classroom.   The IEP also indicated that Ryan should

14   have the services of the one-to-one aide only at a public school

15   within the School District.   Ryan’s parents requested an

16   impartial due process hearing to challenge the IEP’s

17   determination that Ryan must travel to a public school every day

18   to receive this benefit.

19             The Impartial Hearing Officer ruled that providing Ryan

20   a one-to-one aide at St. Patrick was not only a reasonable

21   accommodation for the School District, but was “necessary” for

22   the boy to receive the Free Appropriate Public Education (FAPE)

23   guaranteed by IDEA and the New York Education Law.     See id.

24   § 1412(a)(1)(A); N.Y. Educ. Law § 4402 (McKinney 2006).     The



                                     -4-
1    Hearing Officer concluded that requiring Ryan to travel from St.

2    Patrick to a public school every day to enjoy the services of a

3    one-to-one aide “would cause too much disruption in the child’s

4    school day and would take away from [his] academic experience.”

5    (citation and internal quotation marks omitted).   Therefore, the

6    Hearing Officer ordered the School District to “provide the

7    child’s [one-to-one] aide services indicated in his current IEP

8    at St. Patrick’s [sic].”

9               The School District appealed to the New York Education

10   Department’s State Review Officer (the Review Officer),

11   contending that it has no obligation under federal or state law

12   to provide a one-to-one aide to a student attending a private

13   school.   The Review Officer determined that IDEA did not confer

14   on Ryan the right to enjoy all of the special services he would

15   receive if he attended a public school.   However, the Review

16   Officer concluded, “[i]n contrast to the IDEA, New York State law

17   does confer an individual entitlement to special education

18   services and programs to eligible students enrolled by their

19   parents in nonpublic schools.”   The Review Officer suggested that

20   a one-to-one aide offered at a location separate from Ryan’s

21   academic classes would not meet the child’s individual needs.

22   The School District’s appeal was accordingly dismissed.

23              The School District filed the instant suit in the

24   United States District Court for Eastern District of New York,



                                      -5-
1    challenging the Review Officer’s determination that the School

2    District is obliged to provide Ryan a one-to-one aide during his

3    academic classes at St. Patrick.    The district court assumed

4    jurisdiction was proper, stating that “IDEA provides for

5    concurrent state and federal jurisdiction over claims arising

6    under its provisions.”    Bay Shore Union Free Sch. Dist. v. T. ex

7    rel. R., 405 F.Supp.2d 230, 236 (E.D.N.Y. 2005).       The court

8    acknowledged that federal law did not compel the School District

9    to offer educational services to Ryan at St. Patrick, but

10   rejected the School District’s argument that New York law

11   precludes it from doing so.    Id. at 249.    Thus, the court

12   reasoned, it could not disturb the Review Officer’s determination

13   that anything less than provision of a one-to-one aide at the

14   location of Ryan’s academic classes at St. Patrick would fail to

15   meet the child’s academic needs.       Id. at 248.   The court

16   confirmed dubitante the Review Officer’s decision and this appeal

17   followed.

18                                    II.

19               The parties concede that IDEA does not require the

20   School District to provide Ryan with a one-to-one aide at St.

21   Patrick.    Thus, at oral argument we questioned whether the

22   district court properly exercised jurisdiction.       We ordered

23   supplemental briefing.    Both parties now contend that this suit

24   is properly before a federal court, but the parties’ consent



                                      -6-
1    alone cannot confer subject matter jurisdiction on the court.

2    See Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466

3    F.3d 232, 238 (2d Cir. 2006).    We are not persuaded by their

4    argument that their dispute involves a federal question because

5    IDEA incorporates the New York Educational Law on which this case

6    turns.

7              IDEA frequently has been described as a model of

8    “cooperative federalism.”     See Schaffer, 546 U.S. at 52.   The

9    statute requires participating states to establish a “basic floor

10   of meaningful, beneficial educational opportunity,” but states

11   may exceed the federal floor and enact their own laws and

12   regulations to guarantee a higher level of entitlement to

13   disabled students.   See D.D. ex rel. V.D. v. New York City Bd. of

14   Educ., 480 F.3d 138, 139 (2d Cir. 2007), amending 465 F.3d 503,

15   514 n.13 (2d Cir. 2006); see also Burlington v. Dep’t of Educ.

16   for Comm. of Mass., 736 F.2d 773, 792 (1st Cir. 1984)(holding

17   that “a state is free to exceed, both substantively and

18   procedurally, the protection and services to be provided to its

19   disabled children” under IDEA).    The parties contend that IDEA’s

20   standard for a FAPE incorporates by reference all state

21   standards, even if the state regulations exceed the minimum floor

22   established by federal law.     See id. at 789.   Thus, even though

23   Kain contends that New York law requires his son to receive a

24   one-to-one aide at St. Patrick, the parties argue this is a



                                       -7-
1    “civil action[] arising under the . . . laws . . . of the United

2    States” such that federal question jurisdiction is appropriate.

3    28 § U.S.C. 1331.    We disagree.

4                IDEA incorporates some but not all state law concerning

5    special education.     See Mrs. C. v. Wheaton, 916 F.2d 69, 73 (2d

6    Cir. 1990).   However, assuming that IDEA incorporates the

7    relevant New York Education Law, this does not provide an

8    independent federal question that would sustain the court’s

9    jurisdiction.    A “federal statute is not a sufficient basis for

10   federal question jurisdiction simply because it incorporates

11   state law.”     City Nat’l Bank v. Edmisten, 681 F.2d 942, 945 (4th

12   Cir. 1982).     Edmisten was an action for a declaratory judgment

13   brought by seven banks seeking to challenge North Carolina’s

14   application of its usury law to a credit card service fee the

15   banks wished to introduce.     Id. at 943.    The court acknowledged

16   that the National Bank Act, 12 U.S.C. § 85, expressly

17   incorporated North Carolina’s usury laws by allowing banks to

18   charge rates up to the maximum permitted under state law.         Id. at

19   944-45.   Nonetheless, regardless of how North Carolina law was

20   interpreted, the challenged practice would have remained legal

21   under federal law, and thus the resolution of the dispute did not

22   turn on a question of federal law.        Id. at 945.   The Edmisten

23   Court concluded that the banks’ action did not raise a federal

24   question.   Id. at 946; see also Standage Ventures v. Arizona, 499



                                         -8-
1    F.2d 248, 250 (9th Cir. 1974) (deeming no federal question to

2    exist where “the real substance of the controversy . . . turns

3    entirely upon disputed questions of law and fact relating to

4    compliance with state law, and not at all upon the meaning or

5    effect of the federal statute itself”).

6               A similar dynamic prevails in this action.   The School

7    District’s suit does not turn on the interpretation of federal

8    law.   The parties agree that regardless of whether New York’s

9    Education Law permits the School District or Ryan’s parents to

10   dictate where the child will receive the services of a one-to-one

11   aide, the IEP as drafted should afford Ryan the FAPE IDEA

12   demands.   This case turns entirely on a state-law issue, and as

13   such it cannot form the basis of federal question jurisdiction.

14                                  III.

15              Nor does the IDEA’s explicit authorization of a cause

16   of action to be brought by “any party aggrieved by the findings

17   and decision” of the state educational agency ipso facto raise a

18   federal question that would confer jurisdiction in this case on a

19   federal court.   20 U.S.C. § 1415(i)(2)(A).

20              The Supreme Court generally has followed Justice

21   Holmes’ classic formulation that, “A suit arises under the law

22   that creates the cause of action.”    American Well Works Co. v.

23   Layne & Bowler Co., 241 U.S. 257, 260 (1916).   The Court has more

24   recently explained that, “A case arises under federal law within



                                     -9-
1    the meaning of § 1331 . . . if a well-pleaded complaint

2    establishes either that federal law creates the cause of action

3    or that the plaintiff’s right to relief necessarily depends on

4    resolution of a substantial question of federal law.”     Empire

5    Healthchoice Assur. v. McVeigh, 126 S.Ct. 2121, 2131 (2006)

6    (alterations, internal quotations, and citation omitted);

7    Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for

8    Southern Cal., 463 U.S. 1, 27-28 (1983).

9              However, the Supreme Court has recognized a narrow

10   exception to Justice Holmes’ formulation where a formally federal

11   cause of action does not create ipso facto a federal question

12   “because of the overwhelming predominance of state-law issues.”

13   Merrell Dow Pharms. v. Thompson, 478 U.S. 804, 814 n.12 (1986);

14   see also Int’l Sci. & Tech. Inst. v. Inacom Commuc’ns, 106 F.3d

15   1146, 1154 (4th Cir. 1997).    For example, in Shoshone Mining Co.

16   v. Rutter, 177 U.S. 505 (1900), the Court considered a federal

17   statute that expressly authorized “adverse suits” to determine

18   title to land.   Id. at 506.   The statute provided that claims

19   were to be determined by “local customs or rules of miners in the

20   several mining districts, so far as the same are applicable and

21   not inconsistent with the laws of the United States; or by the

22   statute of limitations for mining claims of the State or

23   Territory where the same may be situated.”    Id. at 508 (internal

24   quotation marks omitted).   The Court observed that the mere fact



                                     -10-
1    that a suit “takes its origin in the laws of the United States”

2    does not necessarily make it “one arising under the Constitution

3    or laws of the United States,” lest virtually every dispute over

4    title to land “in the newer States” raise a federal question.

5    Id. at 507.   Thus, the Court held that the federal cause of

6    action created by the mining statute did not confer federal

7    question jurisdiction over claims that turned entirely on state

8    law.   Id. at 513.

9               We conclude that the Shoshone exception is appropriate

10   in this case.   We cannot discern a strong federal interest in

11   adjudicating whether the School District must provide Ryan a one-

12   to-one aide in the school of his choosing.    Cf. Grable & Sons

13   Metal Prods. v. Darue Eng’g & Mfg., 545 U.S. 308, 315 (2005)

14   (noting strong federal interest in prompt collection of

15   delinquent taxes).   IDEA provides a floor of entitlement to

16   certain educational benefits, but the statute allows

17   participating states to impose additional requirements on their

18   schools if they so choose.   See D.D., 480 F.3d at 139.   Congress

19   clearly did not intend to require a uniform level of special

20   education entitlements across the states.    The determination

21   whether New York law compels the School District to provide the

22   one-to-one aide at a parochial school is a question best left to

23   New York courts.




                                    -11-
1                                     IV.

2                We further conclude that IDEA’s jurisdictional

3    provision cannot save the parties’ inability to establish federal

4    question jurisdiction.    The mining statute at issue in Shoshone

5    differs from IDEA in one important respect.    While the mining

6    statute provided that “the adverse claimant should commence

7    proceedings ‘in a court of competent jurisdiction[,]’ [i]t did

8    not in express language prescribe either a Federal or a state

9    court, and did not provide for exclusive or concurrent

10   jurisdiction.”    Shoshone, 177 U.S. at 506.   Thus, the Shoshone

11   Court could discern no basis for jurisdiction absent a federal

12   question.    IDEA, however, expressly provides that

13        any party aggrieved by the findings and decision made
14        under this subsection, shall have the right to bring a
15        civil action with respect to the complaint presented
16        pursuant to this section, which action may be brought in
17        any State court of competent jurisdiction or in a
18        district court of the United States, without regard to
19        the amount in controversy.

20   20 U.S.C. § 1415(i)(2)(A).    The subsection to which this

21   provision refers lays out in broad terms the procedures for

22   challenging an impartial due process hearing.    This

23   jurisdictional language thus suggests that IDEA might provide an

24   independent basis for subject matter jurisdiction of the federal

25   courts whereby any issue raised in the hearing may be reviewed,

26   even if it concerns exclusively a matter of state law.

27               We decline, however, to construe 20 U.S.C.



                                     -12-
1    § 1415(i)(2)(A) to permit an issue of state law to be challenged

2    in federal court independent of a federal question.    Such a broad

3    reading of § 1415(i)(2)(A) might raise grave constitutional

4    concerns about IDEA’s jurisdictional provisions.    Article III,

5    Section 2 of the Constitution provides that the judicial power

6    shall extend to nine different types of “Cases, in Law and

7    Equity.”   Kain and the School District are both citizens of New

8    York, and the judicial power does not extend to suits between

9    citizens of the same state unless the case “aris[es] under this

10   Constitution [or] the Laws of the United States,” or involves

11   several other now obscure scenarios, such as the adjudication of

12   “Lands under Grants of different States,” which are not

13   implicated by the instant dispute.    U.S. Const. Art. III, § 2,

14   cl. 1.   The broad reading of § 1415(i)(2)(A) that the parties

15   advocate raises the question whether Congress has conferred or

16   can confer jurisdiction on the federal courts beyond the judicial

17   power described in Article III of the Constitution, and, if

18   accepted, brings § 1415(i)(2)(A) into conflict with Article III,

19   § 2.

20              The jurisdictional language of IDEA “must be construed,

21   if fairly possible, so as to avoid not only the conclusion that

22   it is unconstitutional but also grave doubts upon that score.”

23   Rust v. Sullivan, 500 U.S. 173, 191 (1991) (quoting United States

24   v. Jin Fuey Moy, 241 U.S. 394, 401 (1916)); see also Merrell Dow,



                                    -13-
1    478 U.S. at 814 (recognizing “the need for careful judgments

2    about the exercise of federal judicial power in an area of

3    uncertain jurisdiction”).    Therefore, we construe § 1415(i)(2)(A)

4    more narrowly than has been urged by the parties.    We hold that a

5    federal court may not exercise jurisdiction over a civil action

6    brought under § 1415(i)(2)(A) if the claims asserted turn

7    exclusively on matters of state law and diversity of citizenship

8    is absent.    Because the School District has raised no federal

9    question in this suit, jurisdiction under § 1415(i)(2)(A) cannot

10   be sustained.

11                                    V.

12             For the foregoing reasons, we conclude that the

13   district court did not properly exercise jurisdiction over this

14   action, and thus the appeal is dismissed and the decision below

15   is vacated.




                                     -14-
