Thursday, November 21, 2013

Court Finds That Sub-classes Cure Flaws in D.C.'s Special Education Class Action Litigation, By Mark Weber

Ever since the Supreme Court’s decision in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011), narrowly reading the “common question of law or fact” requirement of Fed. R. Civ. P. 23 so as to overturn a class certification in a Title VII case, there has been concern that class actions in education law cases might be more difficult to certify. The concern is particularly acute in special education cases, because so much of the enforcement of legal rights, both before and after congressional passage of the Individuals with Disabilities Education Act, has been through class actions. Jamie S. v. Milwaukee Public Schools, 668 F.3d 481 (7th Cir. 2012), confirmed the fears of some advocates by relying on Wal-Mart to overturn a class decree in a case alleging that the school system failed to identify, locate and evaluate children who are potentially eligible for special education services, and failed to design and implement educational programs for them. In a rather similar case challenging the failure to follow IDEA child-find obligations requiring the school system to identify, evaluate, determine eligibility for children with disabilities, and provide transition from services from infant program services to school services, the D.C. Circuit vacated a class action decree against the D.C. public schools, relying in part on Wal-Mart and on Jamie S. DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013). The DL case read much differently from Jamie S., however. The court said that the large, combined class of all children affected by the child-find deficiencies of the public schools failed the Wal-Mart standard, but pointed out that smaller subclasses composed of children harmed by more narrowly defined practices could be permissible.

On November 8, Judge Royce Lamberth of the federal district court for the District of Columbia certified new subclasses in the DL litigation. The first class consists of children with disabilities between ages three and five who are not identified and located. The second consists of children with disabilities in the same age bracket who are not timely evaluated. The third is children with disabilities, again three to five, who do not receive a timely eligibility determination and referral for services. The fourth is children with disabilities of the same ages who do not receive a smooth and effective transition from birth-through-two services to services from the public schools. The court found each of the subclasses to meet the common question of law or fact criterion and the other standards of Rule 23. Rather than reinstate its earlier findings on the merits, the court said it would undertake new proceedings to determine the current state of facts. The court rejected a motion to dismiss the case based on standing and mootness, holding that the class determination would relate back in time to the original class certification that was vacated by the court of appeals. In a memorable part of the holding on the application of the class action rule, the court rejected an argument that the attorney for the class would not provide representative adequacy due to lack of resources because he had claimed in another case that the D.C. school system’s failure to pay undisputed attorneys’ fees to him caused his firm financial hardship. The court pointed out that since the defendant was a direct cause of the financial hardship by failing to pay what it conceded it owed, its argument “runs afoul of this jurisdiction’s chutzpah doctrine.”

The opinion is DL v. District of Columbia, Civ. No. 05-1437 (RCL), 2013 U.S. Dist. Lexis 160018 (D.D.C. Nov. 8, 2013). I had the privilege to make a presentation on the topic of class action litigation in special education cases after Wal-Mart at a symposium sponsored by the University of Toledo Law Review last month, and will be publishing an article on the subject in the law review’s symposium issue.

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