UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: October 27, 1989.
CLIFFORD BURR, BY HIS PARENTS AND NEXT FRIENDS, KENNETH BURR, BETTY BURR, PLAINTIFFS-APPELLANTS,
THOMAS SOBOL, AS COMMISSIONER OF THE NEW YORK STATE EDUCATION DEPARTMENT, DEFENDANT-APPELLEE
Prior opinion of this court reinstated compensatory education beyond age twenty-one for severely handicapped youth, 863 F.2d 1071 (2d Cir. 1988). The Supreme Court vacated that judgment to allow further consideration in light of its intervening opinion in Dellmuth v. Muth, 109 S. Ct. 2397 (1989). Upon reconsideration, we reaffirm our prior decision.
Feinberg, Newman and Garth,*fn* Circuit Judges.
Author: Per Curiam
The background of this case is described in the prior opinion of this court, reported at 863 F.2d 1071 (2d Cir. 1988).*fn1 It is before us again because the judgment of this court was vacated by the Supreme Court, Sobol v. Burr, 492 U.S. 902, 109 S. Ct. 3209, 106 L. Ed. 2d 560 (1989). In our opinion, we reinstated an award of compensatory education beyond age twenty-one to a handicapped youth because he had been denied his right to a free, appropriate education during delays in the statutorily mandated hearing process. Burr, 863 F.2d at 1078. A New York State hearing officer had originally awarded the youth such relief. Id. After our opinion was issued, the Supreme Court decided Dellmuth v. Muth, 491 U.S. 223, 109 S. Ct. 2397, 105 L. Ed. 2d 181 (1989), which held that the Education of the Handicapped Act, 20 U.S.C. § 1400 et seq., did not abrogate the states' Eleventh Amendment immunity. The Court subsequently vacated our judgment in this case and remanded "for further consideration: in light of Muth. Burr, 109 S. Ct. at 3209. We thereafter asked for, and received, briefs from the parties on the effect of Muth on our decision in Burr.
We did not base our holding in Burr on the abrogation of the states' Eleventh Amendment immunity because we did not believe it was necessary to reach that question in that case. See Burr, 863 F.2d at 1079. We concluded, for two alternative reasons, that the amendment was not violated. First, our decision merely vacated a decision of Commissioner of the New York State Education Department and reinstated the decision of a state hearing officer, whose award of relief is not limited by the Eleventh Amendment. Second, the relief granted the handicapped youth was prospective in nature, and any effect on the state treasury would be ancillary to such relief and therefore permissible despite the Eleventh Amendment. Id. We have considered the effect of Muth, and we continue to believe that the Eleventh Amendment is not violated in this case. We therefore reaffirm our prior holding.