Friday, August 16, 2013

Mark Weber on Class Certification Denial in Chicago Special Education Cases

Derek has provided Education Law Professor blog readers with updates on the school closing litigation in Chicago. In two cases,  plaintiffs argue that the planned closing of 49 public schools will harm children with disabilities and violate of the Americans with Disabilities Act. The court denied motions to dismiss the cases, but last week also denied motions to certify the cases as class actions. Much of the early right-to-education litigation that led to the adoption of the Individuals with Disabilities Education Act. such as Mills and PARC, consisted of class actions, and class actions have been instrumental in developing special education law since adoption of the Act. But Wal-Mart v. Dukes, 131 S. Ct. 2541 (7th Cir. 2011), appeared to narrow the application of the federal class action rule, and courts since that time have struggled with whether class actions will be permitted in cases that address the identification, evaluation, and placement of children with disabilities and other special education issues. Important decisions include the Seventh Circuit’s Jamie S. v. Milwaukee Public Schools, 668 F.3d 481 (7th Cir. 2012), vacating a class action decree, and DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013), also vacating a class judgment, but suggesting that a revised class or set of subclasses could satisfy the requirements of the federal rule.

                The two school closing cases, McDaniel v. Board of Educ. of City of Chicago, 2013 WL 4047989 (N.D. Ill. 2013), and Swan v. Board of Education of City of Chicago, 2013 WL 4047734 (N.D. Ill. 2013), place their greatest stress on the conclusion that the plaintiffs failed to show that the school closings worked a common harm on the members of the class, affecting them in a uniform way. It is not clear that all members of a class must always be harmed in the same way, or even in a way that can be determined at the outset of the litigation, see, e.g., McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, 672 F.3d 482 (7th Cir. 2012) (upholding class status in an employment discrimination action on behalf of African-American stockbrokers all affected by a staffing policy, but potentially affected in different ways and degrees), but the prospects for success seem much greater in the post-Wal-Mart environment when the proponents of class certification can identify a specific policy that caused the harm they suffer. The court in the school closing cases did not deem the decision to close the schools or the rubric under which schools were selected for closure as policies that could support class action treatment under the facts of the case. The next big news expected on the class action topic is the Seventh Circuit’s decision on the appeal of the decision not to decertify the class in Corey H. v. Board of Education of City of Chicago, 2012 WL 2953217 (N.D. Ill. 2012), which has been pending since argument was held in February. For further commentary from me on the Jamie S. decision in specific and special education class actions in general, presented from something of a plaintiff’s perspective, take a look at this video of a presentation from a program of the Illinois Protection and Advocacy Agency, Equip for Equality, in 2012. 

        --Mark Weber

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