The parents of a child with Down syndrome are vowing to continue fighting for their son to attend Westhampton Beach Middle School and plan to protest outside when classes start Wednesday.

Christian and Terrie Killoran, of Remsenburg, filed a federal lawsuit last month against the district for not providing a special education program in the middle school that can meet their 12-year-old son Aiden's needs. That means the child would have to attend school in another district or in a BOCES program.

The matter went before U.S. District Court Judge Joseph F. Bianco Monday in Central Islip for a preliminary hearing.

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The district had requested a temporary restraining order after Christian Killoran said he would take Aiden to Westhampton Beach Middle School on the first day of school, the family's attorney said.

After the court appearance, Killoran, 46, an attorney with a practice in Westhampton Beach, said he had agreed to keep the protest outside the school property.

His son has attended elementary school in the Remsenburg-Speonk district, the father said, and he deserves to go with his classmates as they advance to Westhampton Beach Middle School. The suit alleges that the Westhampton Beach district "will not even try" to place his son because it lacks the program he needs.

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"It's common sense to say, 'Would it make any sense to tear him from . . . his brother and his sister and his friends and his community?' " Killoran added. "Of course not. These are the people who are going to be with [him] well past high school, and that's why it is so important that he remain with them."

Westhampton Beach Superintendent Michael R. Radday said he could not comment. He left court carrying a poster exhibit that showed the middle school's property.

In a statement later, Radday said, "In accordance to New York state and federal privacy laws, the district is legally prohibited from discussing individual student matters and cannot comment on pending litigation."

The legal complaint, filed Aug. 13 under the Individuals With Disabilities Education Act, claims the district "has steadfastly refused to accept" special education children as "Westhampton Beach simply does not want any severely impaired children."

The suit asks that the court order the district to admit the child "as a seventh-grade student" under an Individual Education Program, or IEP, for classes with a one-on-one teaching assistant and resource room help, as well as physical and speech therapy several times a week.

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Attorney Pamela Tucker of Bay Shore, who is representing the Killorans, said the fight is about more than the one family's predicament. All special education students should benefit from being placed in the "least restrictive environment" under existing law, she said."We fought like heck to have our kids brought into the public school setting," Tucker said. "If one by one they all . . . said, 'No, we refuse to have special needs children, there's another program over there, go and take them to the other program,' that would preclude their ability to remain in their home communities with their siblings, with their friends, with their neighbors."