Anchorage School District v. M.G.

          ORDER RE MOTION TO REMAND

          SHARON L. GLEASON UNITED STATES DISTRICT JUDGE

         Before the Court is Appellant's Motion to Remand at Docket 6. The motion is fully briefed.^[1] Oral argument was not requested on the motion and was not necessary to the Court's determination. For the reasons set forth below, the motion will be denied.

         BACKGROUND

         M.G. experiences multiple disabilities, including autism, gastrointestinal disorders, cognitive impairments, and impending blindness.^[2] Pursuant to the Individuals with Disabilities Education Act (“IDEA”), in order for school districts to provide free appropriate public education (“FAPE”) to disabled students, school districts are required to provide an Individualized Education Plan (“IEP”) for each individual disabled student.^[3] M.G.'s IEP established he needed to attend a school for the blind in order to address his impending blindness. When the parties were unable to agree on how to implement the IEP, M.G.'s parents (“Parents”) unilaterally enrolled M.G. at the Perkins School for the Blind in Watertown, Massachusetts.^[4]

         On January 7, 2017, Parents requested a due process hearing before a State of Alaska Department of Education and Early Development (“DEED”) hearing officer, alleging that ASD failed to provide M.G. with education at a school for the blind, violating M.G.'s FAPE in violation of the IDEA. The hearing officer identified the issues before her as follows:

1) Did the District fail to timely implement student's IEP by failing to select an appropriate residential placement for him[;]

2) Did the District fail to provide FAPE to MG in a timely manner prior to his parents seeking enrollment at Perkins School for the Blind[; and]

3) Is Perkins an appropriate placement?^[5]

         The hearing officer held that “ASD failed to implement student's IEP in a timely manner by not selecting a safe and appropriate residential placement.”^[6] The hearing officer ordered ASD to pay for M.G. to attend Perkins from May 1, 2017 through February 17, 2018 and to reimburse Parents $1, 388 per day for residential private school tuition, deposits, and travel expenses.^[7]

         On June 30, 2017, ASD initiated this administrative appeal in Anchorage Superior Court seeking reversal of the DEED hearing officer's decision.^[8] The case was assigned to Judge Jack Smith. On July 7, 2017, Parents timely exercised their right to peremptorily challenge Judge Smith pursuant to Civil Rule 42(c). The state court promptly reassigned the case to another superior court judge.^[9] Two days later, on July 12, 2017, Parents removed the case to this Court, asserting federal question jurisdiction under 28 U.S.C. § 1331.^[10] Parents' Notice of Removal states that the “civil action in which the causes of action alleged in the State Court action Complaint arise under the laws of the United States, primarily the IDEA.”^[11] ASD now moves to remand the case back to the state court. It maintains that no federal question jurisdiction exists; and if there is such jurisdiction, Parents waived their right to assert it by exercising the peremptory disqualification in state court.

         DISCUSSION

         I. Federal Question Jurisdiction

         ASD alleges that federal question jurisdiction does not exist because the case involves “a state hearing officer's decision interpreting state law and a local school district's efforts to provide a FAPE under state law” and therefore, does not present a federal question.^[12] ASD also argues its appeal presents a question of Alaska law that “is best left to Alaska courts.”^[13] Parents respond that the appeal is removable because it is an IDEA case and “federal courts share original jurisdiction over IDEA cases with state courts.”^[14]

         Federal question jurisdiction that will support removal “is governed by the ‘well-pleaded complaint rule, ' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.”^[15] “[T]he mere reference of a federal statute in a pleading will not convert a state law claim into a federal cause of action if the federal statute is not a necessary element of the state law claim and no preemption exists.”^[16] “[T]he federal law must be a direct and essential element of the plaintiff's cause of action”^[17] and must be a substantial one, "indicating a serious federal interest in claiming the advantages thought to be inherent in a federal forum.”^[18]

         Here, ASD's Statement of Points on Appeal asserts two violations of the IDEA.

         ASD's second point on appeal is as follows:

Whether the Hearing Officer failed to consider the legal effect of, or properly weigh, the parents removal of the student from his placement in Anchorage during the pendency of the due process hearing, in violation of the “stay put” provision of the Individuals with Disabilities Education Act. 20 U.S.C. § 1415(j); see also Madeline P. v. Anchorage Sch. Dist., 265 P.3d 308, 311 (Alaska 2011) (“Unless the educational agency and the parents agree otherwise, the child ‘remain[s] in the then-current educational placement' (a ‘stay put') during the pendency of the challenge.”).^[19]

         ASD's ninth point on appeal is as follows:

Whether the Hearing Officer erred or violated ASD's due process rights in not undertaking an equitable analysis of the reasonableness of the parents' total reimbursement request to Perkins School for the Blind, and/or not undertaking the necessary two-part analysis announced in Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993) (holding that reimbursement for private placement expenses is appropriate only if (1) the school district's placement violated the IDEA, and (2) the alternative placement was proper under the statute (emphasis in original)).^[20]

         When addressing the two points listed above, a court will be required to consider the IDEA. Clearly, federal law is a direct and essential element to these claims on appeal. Indeed, ASD specifically argued in its Motion for Expedited Consideration that Parents violated the IDEA's “stay put” provision and cited only to federal law as it relates to the IDEA.^[21]

         ASD asserts that this Court should follow the reasoning in Bay Shore Union Free School District v. Kain.^[22] In that case, the Second Circuit held that the district court did not have jurisdiction to hear a case alleging a school district did not provide FAPE to a disabled student. The Second Circuit observed that the IDEA establishes a “basic floor” that states must comply with, but that states have the ability to “enact their own laws and regulations to guarantee a higher level of entitlement to disabled students.”^[23] In Bay Shore, the parties agreed that the services in dispute were not required by the IDEA. The dispute focused on whether state law required the student receive the disputed services. The Second Circuit held that the district court did not have jurisdiction to hear the case because the case “turn[ed] entirely on a state-law issue.”^[24]

         In this case, ASD argues that Alaska regulations “specifically address[] this type of dispute . . . .”^[25] However, ASD cites to regulations that are procedural in nature and do not provide a “higher level of entitlement” to disabled students than the IDEA.^[26] Moreover, Alaska's regulations specifically state that the state's requirements must conform to statutes found within the IDEA.^[27] Unlike the issue in Bay Shore, this case does ...