Thursday, August 29, 2013
Over the summer, I posted a few times on the willingness of some courts to extend the reasoning of Wal-Mart v. Dukes--the Supreme Court case rejecting the nationwide gender discrimination class based on commonality--to special education class actions. Interestingly, most of these cases have arisen out of Chicago and the Seventh Circuit. The most important was Jamie S. v. Milwaukee Public Schools, 688 F.3d 481 (7th Cir. 2012), which rejected class certification based on Wal-Mart's reasoning. Although I didn't want to highlight the point, my lurking fear was that districts under existing court orders--some dating back over a decade--would attempt to use Wal-Mart and Jamie S. to decertify their class and get out from under the obligations. This post facto procedural tactic could completely unravel plaintiffs' hard won substantive victories.
Well, that is exactly what the school district attempted in Corey H. v. Chicago Board of Education. In an interesting turn, the Seventh Circuit (in an unpublished opinion) was not receptive to the decertification argument. As an initial matter, the court said the claim was moot, but wrote:
Even if this case were not moot, we would not grant the relief CPS seeks. As the district court noted, over the past twenty-one years, during which the parties invested thousands of hours and spent tens of millions of dollars in an effort to reform the CPS special education system for the benefit of disabled children, no one—not the plaintiffs, ISBE, or CPS—has ever complained about the class certification definition. Why, at this late date, the CPS would try to obliterate two decades’ worth of effort is mystifying to us. The CPS just reaffirmed its commitment to the decree in 2010, and nothing has occurred since then to suggest that complying with the terms of the decree had changed in any meaningful way. Even if circumstances had changed, however, CPS is no longer under any burden, substantial or otherwise, to comply with any obligations it assumed under the expired decree. As we noted above, the only remaining obligation is for the Monitor, who will file her report at some point presumably in the near future. Thus, even if this case were not moot, no justification exists for vacating the decree.
Thanks to Mark Weber for alerting us to the case.