finding exhaustion required in challenge to state policies regarding classification of children as “handicapped” and placement of children in residential schools
How later courts described this case
- finding exhaustion required in challenge to state policies regarding classification of children as “handicapped” and placement of children in residential schools
- requiring exhaustion in challenge to policy regarding placement in residential schools because, inter alia, there was no claim that any plaintiff actually needed residential placement
- stating challenge to state policy regarding classification of handicapped children involved an area “where experts love to revel” and requiring exhaustion
- requiring exhaustion in a challenge to a state administrative policy precluding residential placements for learning disabled children, because the state might reverse its policy in a compelling individual case
Written by the judges who cited it.
The opinion
*643 On Petition for Rehearing
PER CURIAM:
Appellants 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.