UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
July 31, 1981
JAMES RILEY AND LORETTA RILEY, ON BEHALF OF THEMSELVES AND JOHN M. RILEY, THEIR MINOR CHILD, ET AL., PLAINTIFFS-APPELLEES,
GORDON M. AMBACH, AS COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK, ET AL., DEFENDANTS, GORDON M. AMBACH, AS COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK, AND THE STATE OF NEW YORK, DEFENDANTS-APPELLANTS.
On Petition for Rehearing
MOORE, MANSFIELD, and NEWMAN, Circuit Judges.
Appellant petition for rehearing, contending primarily that the administrative remedy of N.Y. Educ. Law § 4404(1), which we required to be pursued before the District Court could adjudicate a challenge to the Commissioner's policy concerning residential placements, is not available to the parents of John Riley. On June 12, 1979, Riley's local Committee on the Handicapped ("COH") recommended residential placement for him at the Landmark School in Massachusetts. This recommendation was rejected by the State Department of Education. In light of this rejection, the local COH on August 30, 1979, recommended placement in a local junior high school and also recommended special education classes.On January 2, 1980, the local COH again recommended local placement, but added a proviso to the effect that if the Landmark School were restored to the list of approved schools, the local COH would again recommend placement there for Riley.On these facts, appellants contend that since the local COH has twice expressed its view in favor of residential placement for Riley, his parents do not face the type of unacceptable recommendation that may be challenged administratively under § 4404(1).
However, the fact remains that while the COH favors residential placement for Riley, it has recommended local placement. That recommendation is "not acceptable," § 4404(1), to Riley's parents, and we see no reason why they may not challenge it administratively and secure the appointment of an impartial hearing officer to determine whether residential placement is necessary. Our reversal of the District Court's judgment is without prejudice to the right of Riley's parents to return to the District Court in the event that they attempt to pursue their administrative remedy and are unable to secure the appointment of a hearing officer.
The petition for rehearing is denied.
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