The Second Circuit has finally weighed in on the litigation over whether parents whose children who suffered from brain injuries were placed by the New York City Department of Education in iHope, a private academy, may move their children to a similar new school, iBrain, founded by some of those who had previously ran iHope, and invoke stay-put rights under the IDEA, 20 U.S.C. § 1415(j), when the Department does not agree to the change. The court ruled against the parents.
Two cases came before the court. See Ventura de Paulino v. New York City Department of Education, No 19-1662-cv, 19-1813-cv, 2020 WL 2516650, 120 LRP 15840 (2d Cir. May 18, 2020). In the first, Ms. Ventura de Paulino appealed the denial of a preliminary injunction and the entry of a final judgment dismissing her case. In the second, the Department appealed the grant of a preliminary injunction in favor of Ms. Navarro Carrillo and Mr. Garzon ordering the Department to pay for the placement at the new school. In both cases, the last-agreed IEPs listed iHope as the provider of services, but the parents placed their children in iBrain before the beginning of the 2018 school year and requested due process hearings. The court described the question on appeal as one of first impression:
[W]hether under the “stay-put” provision of the IDEA parents who unilaterally enroll their child in a new private school and challenge the child’s IEP are entitled to public funding for the new school during the pendency of the IEP dispute, on the basis that the educational program being offered at the new school is substantially similar to the program that was last agreed upon by the parents and the school district and was offered at the previous school.
2020 WL 2516650, at *2. The court continued:
More fundamentally stated, we must determine whether the fact that the school district has authority to decide how the child’s agreed-upon educational program is to be provided during the pendency of an IEP dispute means that the parents also have such authority.
Elaborating on the situation that brought the parties to court, the Second Circuit said that there were about 23 similar cases in which parents moved their children from iHope to iBrain before the beginning of the 2018 school year. The court pointed to an account that in the summer of 2018 there was a split between the founders and some of the iHope board over whether to admit students without traumatic brain injuries. The founders and some members of the board were ousted, and one founder went on to start iBrain and to provide legal representation to parents seeking funding for the iBrain placements.
After briefly discussing, and rejecting, the Department’s administrative exhaustion defense, the court took up the stay-put provision. The court said that the focus of the provision is on maintaining the child’s then-current educational placement, which could be one offered by the school district, one imposed on the school district by a due process hearing decision or appeal, or one established by an agreement to a placement change between the parent and the district. The iHope placements in the two cases were imposed by impartial hearing officer decisions.
The court acknowledged that under the caselaw of the circuit, “The stay-put provision does not guarantee a child with a disability ‘the right to remain in the exact same school with the exact same service providers while his administrative and judicial proceedings are pending. Instead, it guarantees only the same general level and type of services that the … child was receiving.’” Id. at *9 (quoting T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 171 (2d Cir. 2014). The parents pointed out that the level and type of services at iBrain were the same as at iHope, and that they were enrolled at iBrain at the start of proceedings.
The court, however, ruled that the school district, rather than the parents, has the authority to determine where and how the pendency services are to be provided. It reasoned that state and local government have power over public education, and that the stay-put provision is a limited exception to the district’s ability to choose placements. The court also argued that, “As a practical matter, it makes sense that it is the party generally responsible for paying a student’s agreed-upon educational program—here, the City—who determines how the pendency services are to be provided.” Id. at *11. Not only is the district barred from recouping the costs of pendency placements from parents, but private placement costs can vary dramatically. Moreover, the parents’ practice here would entail a race to the courthouse to obtain a ruling on whether the new placement is substantially similar to the old. Finally, said the court, “It bears recalling that the term ‘operative placement’ has its origin in cases where the school district attempts to move the child to a new school without the parents’ consent, or where there is no previously implemented IEP so that the current placement provided by the school district is considered to be the pendency placement for purposes of the stay-put provision. Neither circumstance is presented here.” Id. at *12 (footnotes omitted).
Good afternoon, Mr. Merced.
I am Chief of Litigation for the Brain Injury Rights Group which represents the special education families involved in the Second Circuit litigation highlighted in your article. While our firm respects the work that Special Education Solutions does in providing education concerning important special education issues and decisions of note, I am sure you would agree that it is imperative that such education be provided with as much accuracy and precision as possible.
Towards that end, allow me to take this opportunity to inform you of some crucial aspects of the case of which you may have been previously unaware. As an initial matter, the Second Circuit’s De Paulino decision is not yet binding and it is quite possible that it may never be. That is because, on May 26, 2020, pursuant to Rule 40(a) and Rule 35(b)(1)(A) and (B) of the Federal Rules of Appellate Procedure (“FRAP”), our clients, appellants in the Ventura de Paulino matter and appellees in the Navarro Carrillo matter (“Tandem Cases”), filed petitions for rehearing or rehearing en banc. Thus, under FRAP 41, the De Paulino decision is effectively stayed pending the resolution of the petitions and, in the interim, is not binding. As the Second Circuit panel itself remarked: “[U]pon the issuance of the mandate in Ventura de Paulino and Navarro Carrillo, our analysis in this opinion will bind the District Court in Mendez.” De Paulino Decision, at pp. 9-10, fn. 5 (emphasis added). As the mandate has not yet issued, the De Paulino Decision is not yet binding, and, in light of the pending petition for rehearing or rehearing en banc, may never be. Also quite relevant and supportive of our clients’ position is the fact that, in several SDNY cases where judges have evaluated the current applicability of the De Paulino decision, the courts have issued stay orders pending the outcomes of the petitions for rehearing or rehearing en banc. See, e.g., Erde, et al. v. Carranza, et al., 19-cv-8401 (KPF), ECF Document No. 65 (S.D.N.Y. June 8, 2020); Erde, et al. v. NYC Dep’t of Educ., 19-cv-2946 (KPF), ECF Document No. 61 (S.D.N.Y. June 8, 2020); Franco, et al. v. NYC Dep’t of Educ., 19-cv-2925 (KPF), ECF Document No. 50 (S.D.N.Y. June 8, 2020); Hidalgo, et al. v. NYC Dep’t of Educ., 19-cv-2590 (RA), ECF Document No. 58 (S.D.N.Y. June 1, 2020).
Finally, it may interest you to know that the basis for the petitions is that the Second Circuit’s legal analysis in the De Paulino decision is the product of an incorrect representation of the facts. For example, on page 31 of the opinion, the Second Circuit panel (“Panel”) states: “The Parents and the City had agreed that the Students’ educational program would be provided at iHOPE.” As the Department had litigated against the Students’ educational programs being provided at iHOPE – and lost, and had produced IEPs for the Students’ educational programs to be provided at District 75 public schools rather than at iHOPE (a non-public school), the Panel simply got it wrong. The petitions are a means for the record to be corrected and for the outcome of the litigation to reflect that correction. If you would like, we can certainly keep Special Education Solutions abreast of new developments in the case.
Karl J. Ashanti, Esq. | Chief of Litigation
Brain Injury Rights Group, Ltd.