Summary
noting that states and localities can provide greater protections than those promised under the IDEA, so long as they do not “conflict directly” with federal law
Summary of this case from C.U. ex rel. G.U. v. N.Y.C. Dep't of Educ.Opinion
No. 04-2542-CV.
Argued: September 8, 2004.
Decided: October 12, 2006. On Petition For Rehearing: Decided February 8, 2007. Filed February 6, 2007.
Appeal from the United States District Court for the Eastern District of New York, Trager, J., 2004 WL 633222.
Ilann M. Maazel (Matthew D. Brinckerhoff and Eric Hecker, on the brief) Emery Celli Brinckerhoff Abady LLP, New York, NY, appearing for Plaintiffs-Appellants.
Grace Goodman (Michael A. Cardozo and Larry A. Sonnenshein, on the brief) Corporation Counsel of the City of New York, New York, NY, appearing for the City Defendants-Appellees.
Melanie L. Oxhorn, Assistant Solicitor General (Michael S. Belohlavek, Deputy Solicitor General, on the brief) for Eliot Spitzer, Attorney General of the State of New York, New York, NY, appearing for the State Defendant-Appellee.
Before: NEWMAN, CALABRESI and HALL, Circuit Judges.
On consideration of the petition for rehearing, footnote 13 of the opinion issued on October 12, 2006, D.D. ex rel. V.D. v. New York City Bd. of Edue., 465 F.3d 503, 514 n. 13, is amended to read as follows:
Plaintiffs also contend that Defendants are in violation of New York State's regulations, 8 N.Y.C.R.R. §§ 200.4(e)(1)(i) and 200.16(e)(1), which Plaintiffs claim require the implementation of IEP-mandated services within 30 days. Defendants dispute this interpretation of the regulations. Even if, arguendo, State regulations impose a 30-day time frame, and Defendants have violated that time frame, such a violation would only violate federal law if Defendants failed to implement Plaintiffs' IEPs "as soon as possible" as required by § 300.342(b)(1)(ii). This is so despite the recognition of some courts that "the IDEA `incorporates by reference state standards, be they substantive or procedural, that exceed the federal basic floor of meaningful, beneficial educational opportunity.'" LIH ex rel. LH v. New York City Bd. of Educ., 103 F.Supp.2d 658, 668 (E.D.N.Y.2000) (quoting Town of Burlington v. Dep't of Educ., 736 F.2d 773, 789 (1st Cir.1984)). First, the quantitative state timeliness regulation at issue here conflicts directly with the qualitative federal "as soon as possible" standard. See 64 Fed.Reg. 12406, 12579 (Mar. 12, 1999) (Secretary of Education expressly rejecting a rigid outside time line for the implementation of IEPs for lack of a "statutory basis to do so"). Second, imposition of the state 30-day time frame would, in most if not all cases, impose a standard for the implementation of IEPs more lenient than its federal counterpart. See id. (noting that a failure to implement an IEP "within a week or two" of its development could constitute a failure to comply with the federal standard). Thus we cannot conclude that the New York State procedural regulation at issue here is one of those state standards the IDEA incorporates by reference. See David D. v. Dartmouth Sch. Comm., 775 F.2d 411, 417 (1st Cir.1985) ("We remain convinced that . . . [the IDEA] . . . incorporate[s] by reference some of a state's substantive law." (emphasis added)). In addition, the amended complaint does not invoke supplemental jurisdiction under 28 U.S.C. § 1637(a), and there is no state law cause of action pleaded in the amended complaint. Moreover, this would be an inappropriate case for supplemental jurisdiction. The State and City regulatory schemes are intricate and difficult to interpret. Any claim for relief based solely on a State or City law not incorporated by the IDEA is best left to the State courts.
The petition for rehearing is DENIED.