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.

Regards,

Karl J. Ashanti, Esq. | Chief of Litigation
Brain Injury Rights Group, Ltd.