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July 17, 1981

Mark LOMBARDI, an Infant, by his natural father, Vincent Lombardi, and on behalf of all those similarly situated, Plaintiffs,
Gordon M. AMBACH, Commissioner, State Education Department, Defendant

The opinion of the court was delivered by: NEAHER


Plaintiff, now aged 20, allegedly suffers from a neurological impairment that qualifies him to obtain through his local school board an individualized educational program appropriate to his special education needs, pursuant to N.Y.Educ. Law §§ 4401-4407 (McKinney's). The present action arises from the refusal of defendant Ambach, Commissioner of the New York State Education Department, to approve for the academic year 1976-1977 and thereafter, the plan of plaintiff's school board to contract for plaintiff's public education outside his school district and place him at the Trinity-Pawling School, a private residential school that purportedly offered an educational program appropriate to plaintiff's needs. The complaint alleges that the refusal unlawfully deprived plaintiff of a free education, in violation of the fifth and fourteenth amendments to the United States Constitution, federal statutory law, in particular, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the provisions of the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq., and provisions of New York's constitution and statutory law.

 For relief, plaintiff sought a declaration that the Commissioner's acts were unlawful as alleged, an injunction requiring defendant to execute contracts with the allegedly suitable and appropriate school attended by plaintiff and funding for his continued attendance, and a judgment directing reimbursement to plaintiff for his payment for education services which defendant did not pay but allegedly should have. *fn1" The action is now before the Court on plaintiff's motion for summary judgment, Rule 56(a), F.R.Civ.P., and defendant's motion to dismiss the complaint, Rule 12(b)(6), which has been treated by the parties as one for summary judgment. For the reasons that follow plaintiff's motion is denied, defendant's motion is granted and the action is dismissed.

 Before the merits of the motions are discussed it will be helpful briefly to put this lawsuit in the statutory and administrative context from which it arose, viz., the provision of free public education to handicapped children. While § 504 of the Rehabilitation Act generally proscribes discrimination against any "otherwise qualified handicapped individual" in any program or activity receiving federal funds, the Education for All Handicapped Children Act, supra, provides a detailed, comprehensive scheme for assuring that handicapped children obtain an appropriate, free education.

 States that wish to alleviate the financial burden of providing appropriate educational services for handicapped children can receive the federal funds made available by this Act on a fiscal year basis, by complying with various requirements of the federal statute and implementing regulations, 45 C.F.R. Part 121a. To be eligible for these funds the State must have "in effect a policy that assures all handicapped children the right to a free appropriate public education," 20 U.S.C. § 1412(1), and a plan modeled on the provisions of 20 U.S.C. § 1413(b), detailing the policies and procedures that will insure there are sufficient kind and number of facilities, personnel and services throughout the State to achieve the goal of educating handicapped children, see 20 U.S.C. § 1412(2)(A)(iii). Under 20 U.S.C. § 1412(5)(A) the State also must establish the procedural safeguards set forth in 20 U.S.C. § 1415.

 Under its plan the State must ensure that an "individualized educational program" is established, and revised annually, for each handicapped child. See 20 U.S.C. § 1414(a)(5). In New York this duty has devolved on the board of education for each school district. Through a duly established "committee on the handicapped," each school board must ascertain the number of handicapped children within the district and the nature of each child's handicapping condition. N.Y.Educ. Law, § 4402.1.a, b(1), (3). The committee on the handicapped is directed to "review and evaluate all relevant information" about each child and to make recommendations as to appropriate educational programs and placement. Id., § 4402.1.b(3)(a), (b).

 Federal law also requires that the responsible State educational agency or unit "insure that a continuum of alternative placements is available to meet the needs of handicapped children for special education," 45 C.F.R. § 121a.551(a), as part of the State's general obligation to insure that to "the maximum extent appropriate" handicapped children are educated with children who are not handicapped, 20 U.S.C. § 1412(5)(B); 45 C.F.R. § 121a.550(b). When children are placed in private schools the State must insure that this occurs "at no cost to their parents." 20 U.S.C. § 1413(4)(B)(i). In "all such instances," however, "the State educational agency shall determine whether such (private) schools and facilities meet the standards that apply to State and local educational agencies and (shall insure) that children so served have all the rights they would have if served by such agencies." 20 U.S.C. § 1413(4)(B)(ii).

 In New York, to satisfy its obligation "to furnish suitable educational opportunities for handicapped children," N.Y.Educ. Law § 4402.2.a, the local board of education "shall select the most reasonable and appropriate special service or program for such children" from the programs listed in N.Y.Educ. Law § 4401.2, which include "contracts with private residential schools which have been approved by the commissioner and which are within the state for special services or programs," id., § 4401.2.g. "All contracts with private schools pursuant to the provisions of paragraphs d, e, f, g, h and l of (§ 4401.2) shall be subject to the approval of the commissioner." Id., § 4402.2.b(2).

 The procedural safeguards required by 20 U.S.C. § 1412(5)(A) to be provided by the State plan must include an opportunity for an impartial due process hearing at which the parents or guardian of a handicapped child may "present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(1)(E). If the State educational agency does not conduct the hearing itself, there must be opportunity for the aggrieved party to appeal the decision from the local educational agency to the State agency, which must render an independent decision after impartial review of the hearing below. 20 U.S.C. § 1415(b)(2), (c). Any party "aggrieved" by the State agency's findings or decision under § 1415(c) "shall have the right to bring a civil action with respect to the complaint presented pursuant to this section (§ 1415)," in any State court of competent jurisdiction, or in federal district court "without regard to the amount in controversy." 20 U.S.C. § 1415(e)(2). With respect to placement of a handicapped child in a private school, which is at the core of this lawsuit, it bears noting that "disagreements between a parent and a public agency regarding the availability of a program appropriate for the child, and the question of financial responsibility, are subject" to these due process procedures. 45 C.F.R. § 121a.403(b).

 At the outset, the Court is confronted with defendant's contention, based on the Court of Appeals' recent decision in Riley v. Ambach, 668 F.2d 635 (1981), that the action is presently unsuited for consideration on the merits because plaintiff has not exhausted his administrative remedies. On the authority of that case we conclude that exhaustion is required, and that the action should be dismissed.

 In Riley v. Ambach, plaintiffs challenged actions of New York State and its Commissioner of Education which (1) defined as handicapped only those learning disabled children who exhibited a discrepancy of 50% or more between actual and expected achievement; and (2) removed from a list of schools qualified to meet the educational needs of handicapped children like plaintiffs all residential schools serving children with specific learning disabilities. Although the district court had reached the merits and enjoined these actions as inconsistent with the federal scheme, the Court of Appeals reversed, holding the plaintiffs improperly failed to exhaust administrative remedies.

 Observing that "(t)here are cases in which "(s)tate administrative remedies have been deemed inadequate by federal courts, and hence not subject to the exhaustion requirement, on a variety of grounds,' Gibson v. Berryhill, 411 U.S. 564, 575 n.14 (93 S. Ct. 1689, 1696 n.14, 36 L. Ed. 2d 488) (1973)," Riley v. Ambach, supra, at -- - -- , including agency predetermination of the issue, the court of appeals acknowledged that the "rule" requiring a plaintiff to "exhaust state administrative remedies before bringing a federal suit under the Education for All Handicapped Children Act has accordingly been bypassed in cases where the exercise of state administrative remedies would be futile," id., at -- . Nevertheless the court determined that plaintiffs had not made "the requisite showing that they cannot secure the relief they seek from the State." Id.

 The court recognized that residential placement for children with learning disabilities had been "rejected in advance by the Commissioner" but nonetheless required exhaustion because "the Commissioner might reverse himself in a compelling case," id., at -- . The court explained that while "(normally), exhaustion would not be required simply to afford an administrator an opportunity to revise an earlier decision or to make an exception to a previously promulgated rule of general application," id., at -- , adjudication of the validity of the Commissioner's ruling on residential placements would be "significantly enhanced by the details of a particular case." Id.

 We think the Riley court's reasoning has application here. From the material appended to the parties' affidavits, it appears that at the end of the 1975-1976 academic year, which plaintiff had passed at an approved school in New York City, plaintiff's educational needs were reassessed and determined to require placement in a different school. The Port Jefferson school district committee on the handicapped recommended that plaintiff be placed at Trinity-Pawling in May 1976. In recognition that the school was not approved by the Commissioner for special placements, legal opinion was sought on behalf of the school board as to whether the board could contract to place a student at an unapproved private school, and who would bear the cost. The response of counsel for the State Education Department in two letters dated June 9, 1976 and June 17, 1976, was that the board of education could not contract with an unapproved school for the ...

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