Bay Shore v. Kain

06-0601
Bay Shore v. Kain
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2006 3
(Argued November 22, 2006 Decided May 10, 2007) 4
Docket No. 06-0601-cv 5
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BAY SHORE UNION FREE SCHOOL DISTRICT, 7
Plaintiff-Counter-Defendant-Appellant, 8
v. 9
THOMAS KAIN, on behalf of his son, RYAN KAIN, 10
Defendant-Counterclaimant-Appellee. 11
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B e f o r e: MESKILL, WINTER and HALL, Circuit Judges. 13
Appeal from a final order and judgment of the United 14
States District Court for the Eastern District of New York, 15
Weinstein, J., filed on December 29, 2005, confirming the 16
decision of the State Review Officer that Plaintiff-Appellant Bay 17
Shore Union Free School District provide Ryan Kain, the son of 18
Defendant-Appellee Thomas Kain, a one-to-one teacher’s aide at 19
his parochial school. 20
CHRISTOPHER VENATOR, Hauppauge, NY, (Ingerman 21
Smith, L.L.P., Hauppauge, NY, of 22
counsel), 23
for Appellant. 24
ROBERT E. FEKETE, Mineola, NY, (Kenneth A. 25
Gray, Bee Ready Fishbein Hatter & 26
Donovan, L.L.P., Mineola, NY, of 27
counsel), 28

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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.”
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for Appellee. 1
MESKILL, Circuit Judge: 2
This appeal asks us to decide whether plaintiff- 3
appellant Bay Shore Union Free School District (the School 4
District) has a legal obligation to provide defendant-appellee’s 5
son Ryan with a teacher’s aide during his classes at St. Patrick 6
School,1 the parochial school the child now attends. The New 7
York Department of Education Review Officer determined that the 8
School District must provide Ryan a teacher’s aide at St. Patrick 9
if his parents wish him to remain at that school for his regular 10
classes. The School District challenged the decision in the 11
United States District Court for the Eastern District of New 12
York, and the court, Weinstein, J., confirmed the State Review 13
Officer’s findings and recommendation. However, the parties 14
agree that the federal Individuals with Disabilities Education 15
Act (IDEA) does not confer on Ryan a right to a teacher’s aide at 16
a private school of his choosing, and therefore the obligations 17
of the School District turn on the New York Education Law. We 18
conclude that the district court improperly assumed jurisdiction 19
over this case. This appeal must be dismissed and the order of 20
the district court vacated. 21

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I. 1
At the time of his impartial hearing in September 2004, 2
Ryan was a seven-year old second-grader at St. Patrick School 3
(St. Patrick) in Bay Shore, New York. On November 4, 2003, one 4
of Ryan’s teachers referred him to the District’s Committee on 5
Special Education, observing that he “has extreme difficulty 6
following and carrying out oral directions [and] has yet to 7
master daily classroom routines.” A pediatric neurologist 8
diagnosed Ryan as suffering from Attention Deficit Hyperactivity 9
Disorder (ADHD). 10
IDEA requires participating states such as New York to 11
ensure that once a school district has made such a disability 12
determination, the needs of the student are adequately 13
accommodated. The “core of the statute . . . is the cooperative 14
process that [IDEA] establishes between parents and schools.” 15
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005). For 16
each disabled child a school district must create an 17
“Individualized Education Program” (IEP), which “must include an 18
assessment of the child’s current educational performance, must 19
articulate measurable educational goals, and must specify the 20
nature of the special services that the school will provide.” 21
Id.; 20 U.S.C. § 1414(d)(1)(A). “If parents believe that an IEP 22
is not appropriate, they may seek an administrative ‘impartial 23
due process hearing’” conducted by the state or local educational 24

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agency. Schaffer, 546 U.S. at 53; 20 U.S.C. § 1415(f). If the 1
impartial due process hearing is conducted by a local educational 2
agency, as it was in the instant case, the decision may be 3
appealed to the state agency. Id. § 1415(g). IDEA expressly 4
provides that “any party aggrieved” by the final state decision 5
“shall have the right to bring a civil action” challenging the 6
decision “in any State court of competent jurisdiction or in a 7
district court of the United States.” Id. § 1415(i)(2)(A). 8
Pursuant to this elaborate process, the School District 9
developed an IEP designating Ryan to receive testing 10
accommodations, daily 40 minute sessions in a Resource Room, and 11
the services of a one-to-one teacher’s aide for three hours per 12
day in the classroom. The IEP also indicated that Ryan should 13
have the services of the one-to-one aide only at a public school 14
within the School District. Ryan’s parents requested an 15
impartial due process hearing to challenge the IEP’s 16
determination that Ryan must travel to a public school every day 17
to receive this benefit. 18
The Impartial Hearing Officer ruled that providing Ryan 19
a one-to-one aide at St. Patrick was not only a reasonable 20
accommodation for the School District, but was “necessary” for 21
the boy to receive the Free Appropriate Public Education (FAPE) 22
guaranteed by IDEA and the New York Education Law. See id. 23
§ 1412(a)(1)(A); N.Y. Educ. Law § 4402 (McKinney 2006). The 24

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Hearing Officer concluded that requiring Ryan to travel from St. 1
Patrick to a public school every day to enjoy the services of a 2
one-to-one aide “would cause too much disruption in the child’s 3
school day and would take away from [his] academic experience.” 4
(citation and internal quotation marks omitted). Therefore, the 5
Hearing Officer ordered the School District to “provide the 6
child’s [one-to-one] aide services indicated in his current IEP 7
at St. Patrick’s [sic].” 8
The School District appealed to the New York Education 9
Department’s State Review Officer (the Review Officer), 10
contending that it has no obligation under federal or state law 11
to provide a one-to-one aide to a student attending a private 12
school. The Review Officer determined that IDEA did not confer 13
on Ryan the right to enjoy all of the special services he would 14
receive if he attended a public school. However, the Review 15
Officer concluded, “[i]n contrast to the IDEA, New York State law 16
does confer an individual entitlement to special education 17
services and programs to eligible students enrolled by their 18
parents in nonpublic schools.” The Review Officer suggested that 19
a one-to-one aide offered at a location separate from Ryan’s 20
academic classes would not meet the child’s individual needs. 21
The School District’s appeal was accordingly dismissed. 22
The School District filed the instant suit in the 23
United States District Court for Eastern District of New York, 24

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challenging the Review Officer’s determination that the School 1
District is obliged to provide Ryan a one-to-one aide during his 2
academic classes at St. Patrick. The district court assumed 3
jurisdiction was proper, stating that “IDEA provides for 4
concurrent state and federal jurisdiction over claims arising 5
under its provisions.” Bay Shore Union Free Sch. Dist. v. T. ex 6
rel. R., 405 F.Supp.2d 230, 236 (E.D.N.Y. 2005). The court 7
acknowledged that federal law did not compel the School District 8
to offer educational services to Ryan at St. Patrick, but 9
rejected the School District’s argument that New York law 10
precludes it from doing so. Id. at 249. Thus, the court 11
reasoned, it could not disturb the Review Officer’s determination 12
that anything less than provision of a one-to-one aide at the 13
location of Ryan’s academic classes at St. Patrick would fail to 14
meet the child’s academic needs. Id. at 248. The court 15
confirmed dubitante the Review Officer’s decision and this appeal 16
followed. 17
II. 18
The parties concede that IDEA does not require the 19
School District to provide Ryan with a one-to-one aide at St. 20
Patrick. Thus, at oral argument we questioned whether the 21
district court properly exercised jurisdiction. We ordered 22
supplemental briefing. Both parties now contend that this suit 23
is properly before a federal court, but the parties’ consent 24

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alone cannot confer subject matter jurisdiction on the court. 1
See Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 2
F.3d 232, 238 (2d Cir. 2006). We are not persuaded by their 3
argument that their dispute involves a federal question because 4
IDEA incorporates the New York Educational Law on which this case 5
turns. 6
IDEA frequently has been described as a model of 7
“cooperative federalism.” See Schaffer, 546 U.S. at 52. The 8
statute requires participating states to establish a “basic floor 9
of meaningful, beneficial educational opportunity,” but states 10
may exceed the federal floor and enact their own laws and 11
regulations to guarantee a higher level of entitlement to 12
disabled students. See D.D. ex rel. V.D. v. New York City Bd. of 13
Educ., 480 F.3d 138, 139 (2d Cir. 2007), amending 465 F.3d 503, 14
514 n.13 (2d Cir. 2006); see also Burlington v. Dep’t of Educ. 15
for Comm. of Mass., 736 F.2d 773, 792 (1st Cir. 1984)(holding 16
that “a state is free to exceed, both substantively and 17
procedurally, the protection and services to be provided to its 18
disabled children” under IDEA). The parties contend that IDEA’s 19
standard for a FAPE incorporates by reference all state 20
standards, even if the state regulations exceed the minimum floor 21
established by federal law. See id. at 789. Thus, even though 22
Kain contends that New York law requires his son to receive a 23
one-to-one aide at St. Patrick, the parties argue this is a 24

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“civil action[] arising under the . . . laws . . . of the United 1
States” such that federal question jurisdiction is appropriate. 2
28 § U.S.C. 1331. We disagree. 3
IDEA incorporates some but not all state law concerning 4
special education. See Mrs. C. v. Wheaton, 916 F.2d 69, 73 (2d 5
Cir. 1990). However, assuming that IDEA incorporates the 6
relevant New York Education Law, this does not provide an 7
independent federal question that would sustain the court’s 8
jurisdiction. A “federal statute is not a sufficient basis for 9
federal question jurisdiction simply because it incorporates 10
state law.” City Nat’l Bank v. Edmisten, 681 F.2d 942, 945 (4th 11
Cir. 1982). Edmisten was an action for a declaratory judgment 12
brought by seven banks seeking to challenge North Carolina’s 13
application of its usury law to a credit card service fee the 14
banks wished to introduce. Id. at 943. The court acknowledged 15
that the National Bank Act, 12 U.S.C. § 85, expressly 16
incorporated North Carolina’s usury laws by allowing banks to 17
charge rates up to the maximum permitted under state law. Id. at 18
944-45. Nonetheless, regardless of how North Carolina law was 19
interpreted, the challenged practice would have remained legal 20
under federal law, and thus the resolution of the dispute did not 21
turn on a question of federal law. Id. at 945. The Edmisten 22
Court concluded that the banks’ action did not raise a federal 23
question. Id. at 946; see also Standage Ventures v. Arizona, 499 24

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F.2d 248, 250 (9th Cir. 1974) (deeming no federal question to 1
exist where “the real substance of the controversy . . . turns 2
entirely upon disputed questions of law and fact relating to 3
compliance with state law, and not at all upon the meaning or 4
effect of the federal statute itself”). 5
A similar dynamic prevails in this action. The School 6
District’s suit does not turn on the interpretation of federal 7
law. The parties agree that regardless of whether New York’s 8
Education Law permits the School District or Ryan’s parents to 9
dictate where the child will receive the services of a one-to-one 10
aide, the IEP as drafted should afford Ryan the FAPE IDEA 11
demands. This case turns entirely on a state-law issue, and as 12
such it cannot form the basis of federal question jurisdiction. 13
III. 14
Nor does the IDEA’s explicit authorization of a cause 15
of action to be brought by “any party aggrieved by the findings 16
and decision” of the state educational agency ipso facto raise a 17
federal question that would confer jurisdiction in this case on a 18
federal court. 20 U.S.C. § 1415(i)(2)(A). 19
The Supreme Court generally has followed Justice 20
Holmes’ classic formulation that, “A suit arises under the law 21
that creates the cause of action.” American Well Works Co. v. 22
Layne & Bowler Co., 241 U.S. 257, 260 (1916). The Court has more 23
recently explained that, “A case arises under federal law within 24

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the meaning of § 1331 . . . if a well-pleaded complaint 1
establishes either that federal law creates the cause of action 2
or that the plaintiff’s right to relief necessarily depends on 3
resolution of a substantial question of federal law.” Empire 4
Healthchoice Assur. v. McVeigh, 126 S.Ct. 2121, 2131 (2006) 5
(alterations, internal quotations, and citation omitted); 6
Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for 7
Southern Cal., 463 U.S. 1, 27-28 (1983). 8
However, the Supreme Court has recognized a narrow 9
exception to Justice Holmes’ formulation where a formally federal 10
cause of action does not create ipso facto a federal question 11
“because of the overwhelming predominance of state-law issues.” 12
Merrell Dow Pharms. v. Thompson, 478 U.S. 804, 814 n.12 (1986); 13
see also Int’l Sci. & Tech. Inst. v. Inacom Commuc’ns, 106 F.3d 14
1146, 1154 (4th Cir. 1997). For example, in Shoshone Mining Co. 15
v. Rutter, 177 U.S. 505 (1900), the Court considered a federal 16
statute that expressly authorized “adverse suits” to determine 17
title to land. Id. at 506. The statute provided that claims 18
were to be determined by “local customs or rules of miners in the 19
several mining districts, so far as the same are applicable and 20
not inconsistent with the laws of the United States; or by the 21
statute of limitations for mining claims of the State or 22
Territory where the same may be situated.” Id. at 508 (internal 23
quotation marks omitted). The Court observed that the mere fact 24

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that a suit “takes its origin in the laws of the United States” 1
does not necessarily make it “one arising under the Constitution 2
or laws of the United States,” lest virtually every dispute over 3
title to land “in the newer States” raise a federal question. 4
Id. at 507. Thus, the Court held that the federal cause of 5
action created by the mining statute did not confer federal 6
question jurisdiction over claims that turned entirely on state 7
law. Id. at 513. 8
We conclude that the Shoshone exception is appropriate 9
in this case. We cannot discern a strong federal interest in 10
adjudicating whether the School District must provide Ryan a one- 11
to-one aide in the school of his choosing. Cf. Grable & Sons 12
Metal Prods. v. Darue Eng’g & Mfg., 545 U.S. 308, 315 (2005) 13
(noting strong federal interest in prompt collection of 14
delinquent taxes). IDEA provides a floor of entitlement to 15
certain educational benefits, but the statute allows 16
participating states to impose additional requirements on their 17
schools if they so choose. See D.D., 480 F.3d at 139. Congress 18
clearly did not intend to require a uniform level of special 19
education entitlements across the states. The determination 20
whether New York law compels the School District to provide the 21
one-to-one aide at a parochial school is a question best left to 22
New York courts. 23

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IV. 1
We further conclude that IDEA’s jurisdictional 2
provision cannot save the parties’ inability to establish federal 3
question jurisdiction. The mining statute at issue in Shoshone 4
differs from IDEA in one important respect. While the mining 5
statute provided that “the adverse claimant should commence 6
proceedings ‘in a court of competent jurisdiction[,]’ [i]t did 7
not in express language prescribe either a Federal or a state 8
court, and did not provide for exclusive or concurrent 9
jurisdiction.” Shoshone, 177 U.S. at 506. Thus, the Shoshone 10
Court could discern no basis for jurisdiction absent a federal 11
question. IDEA, however, expressly provides that 12
any party aggrieved by the findings and decision made 13
under this subsection, shall have the right to bring a 14
civil action with respect to the complaint presented 15
pursuant to this section, which action may be brought in 16
any State court of competent jurisdiction or in a 17
district court of the United States, without regard to 18
the amount in controversy. 19
20 U.S.C. § 1415(i)(2)(A). The subsection to which this 20
provision refers lays out in broad terms the procedures for 21
challenging an impartial due process hearing. This 22
jurisdictional language thus suggests that IDEA might provide an 23
independent basis for subject matter jurisdiction of the federal 24
courts whereby any issue raised in the hearing may be reviewed, 25
even if it concerns exclusively a matter of state law. 26
We decline, however, to construe 20 U.S.C. 27

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§ 1415(i)(2)(A) to permit an issue of state law to be challenged 1
in federal court independent of a federal question. Such a broad 2
reading of § 1415(i)(2)(A) might raise grave constitutional 3
concerns about IDEA’s jurisdictional provisions. Article III, 4
Section 2 of the Constitution provides that the judicial power 5
shall extend to nine different types of “Cases, in Law and 6
Equity.” Kain and the School District are both citizens of New 7
York, and the judicial power does not extend to suits between 8
citizens of the same state unless the case “aris[es] under this 9
Constitution [or] the Laws of the United States,” or involves 10
several other now obscure scenarios, such as the adjudication of 11
“Lands under Grants of different States,” which are not 12
implicated by the instant dispute. U.S. Const. Art. III, § 2, 13
cl. 1. The broad reading of § 1415(i)(2)(A) that the parties 14
advocate raises the question whether Congress has conferred or 15
can confer jurisdiction on the federal courts beyond the judicial 16
power described in Article III of the Constitution, and, if 17
accepted, brings § 1415(i)(2)(A) into conflict with Article III, 18
§ 2. 19
The jurisdictional language of IDEA “must be construed, 20
if fairly possible, so as to avoid not only the conclusion that 21
it is unconstitutional but also grave doubts upon that score.” 22
Rust v. Sullivan, 500 U.S. 173, 191 (1991) (quoting United States 23
v. Jin Fuey Moy, 241 U.S. 394, 401 (1916)); see also Merrell Dow, 24

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478 U.S. at 814 (recognizing “the need for careful judgments 1
about the exercise of federal judicial power in an area of 2
uncertain jurisdiction”). Therefore, we construe § 1415(i)(2)(A) 3
more narrowly than has been urged by the parties. We hold that a 4
federal court may not exercise jurisdiction over a civil action 5
brought under § 1415(i)(2)(A) if the claims asserted turn 6
exclusively on matters of state law and diversity of citizenship 7
is absent. Because the School District has raised no federal 8
question in this suit, jurisdiction under § 1415(i)(2)(A) cannot 9
be sustained. 10
V. 11
For the foregoing reasons, we conclude that the 12
district court did not properly exercise jurisdiction over this 13
action, and thus the appeal is dismissed and the decision below 14
is vacated. 15

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