Thursday, August 15, 2013
Earlier this summer I posted on the special education lawsuits challenging the Chicago public school closures. The district court has moved the cases along pretty quickly and, last week, denied class certification in both McDaniel v. Board of Educ. of City of Chicago, 2013 WL 4047989 (N.D. Ill. 2013), and Swan ex rel I.O. v. Board of Education of City of Chicago, 2013 WL 4047734 (N.D. Illinois 2013). These decisions have an immediate impact on Chicago schools and the students who attend them, but the court's reasoning relates to the general issue of class certification in education cases.
While the Supreme Court's 2011 decision in Wal-Mart v. Dukes denying class certification to a nationwide group of women is argueably limited to its unique facts or employment litigation, courts have increasingly seen fit to rely on Dukes as a basis for denying special education classes. These district court decisions are but another example. To their defense, they may not have had much choice, as the Seventh Circuit, in which Chicago sits, had already extended Dukes to a special education case in Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481 (7th Cir. 2012).
I am relatively comfortable with the notion that these courts are overextending Dukes, but I not clear on whether these courts might have denied certification anyway. Either way, decisions like these are likely to have a chilling effect in jurisdictions relying on an expansive interpretation of Dukes. A few courts, however, have refused to treat Dukes as imposing any additional hurdles to class certification in special education cases.
I know Mark Weber has been following and thinking about this issue for a while and has already presented on it, at least, once. Stay on the lookout for his upcoming presentations and scholarship on the topic.