Evans v. Evans

• Decision Date: 08 April 1993
• Docket Number: Civ. No. H91-216.
• Citation: 818 F. Supp. 1215
• Parties: Kathleen V. EVANS, et al., Plaintiffs, v. H. Dean EVANS, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

818 F. Supp. 1215

Kathleen V. EVANS, et al., Plaintiffs, v. H. Dean EVANS, et al., Defendants.

Civ. No. H91-216.

United States District Court, N.D. Indiana, Hammond Division.

April 8, 1993.

COPYRIGHT MATERIAL OMITTED

Ivan E. Bodensteiner, and Donald J. Evans, Evans & Evans, Valparaiso, IN, for plaintiffs.

David Michael Wallman, Deputy Atty. Gen., Indianapolis, IN, for defendants.

ORDER

LOZANO, District Judge.

This matter is before the Court on the Plaintiffs' Motion for Class Certification filed on August 19, 1991, the Defendants' Motion for Summary Judgment, the Plaintiffs' Motion for Partial Summary Judgment, and the Defendants' Motion to Strike Jury Demand, all filed on April 13, 1992. Being advised in the premises, the Court hereby GRANTS the Plaintiffs' Motion for Partial Summary Judgment and Class Certification, DENIES The Defendants' Motion for Summary Judgment, and TAKES UNDER ADVISEMENT the Defendants' Motion to Strike Jury Demand.

BACKGROUND

The Plaintiffs in this action challenge the legality of Indiana's alternative or residential service procedures, which disabled children, whose disabilities preclude their education in state schools, must follow in order to secure residential placement in a private school.

In 1975, based on a finding that almost half of the disabled children in the United States were receiving an inadequate education or no education at all, Congress passed the Education for All Handicapped Children Act ("EHA"). 20 U.S.C. §§ 1400-1485 (1992).¹ Before passage of the EHA, as the Supreme Court has noted, many disabled children suffered under one of two equally ineffective approaches to their educational needs — either they were entirely excluded from public education, or they were placed in regular education classrooms with no assistance, left to fend for themselves in an environment inappropriate for their needs. Board of Educ. v. Rowley, 458 U.S. 176, 191, 102 S.Ct. 3034, 3043, 73 L.Ed.2d 690 (1982).

Today, the educational rights of students with disabilities are created and protected primarily by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. In passing IDEA, Congress found that "it is in the national interest that the Federal Government assist State and local efforts to provide programs to meet the educational needs of children with disabilities in order to assure equal protection of the law." 20 U.S.C. § 1400(b)(9).

The federal government provides special education funds through IDEA to those states, such as Indiana, that choose to participate. In return, IDEA requires each state to ensure that an eligible disabled child between the ages of 3 and 21 receives a free appropriate public education ("FAPE"), 20 U.S.C. § 1412(2)(B). A FAPE encompasses special education and related services provided in the least restrictive environment in compliance with other requirements of IDEA, 20 U.S.C. § 1401(a)(18). In addition, IDEA contains extensive procedural requirements which center around the development by the local education agency of an individualized educational program ("IEP") for each disabled child, 20 U.S.C. § 1412(5)(C). The local agency must develop an IEP for each classified student and must meet at least once a year to review and, if necessary, revise it, 20 U.S.C. § 1414(a)(5).

Indiana has enacted both statutes and regulations to assist in the development of an IEP. See Ind.Ann.Code § 20-1-6-1 et seq. (West 1988); Ind.Admin.Code Tit. 511, r. 7-3 et seq. (1993) (hereinafter "IAC"). An IEP is developed in Indiana through a case conference committee process. 511 IAC 7-10-3. This case conference is attended by the eligible child's parents and involved professionals, and the IEP services are generally delivered at the local school or the local special education cooperative to which the local school belongs. Once an IEP has properly been developed, it is considered "in effect" and "will be implemented as written". Answer to Question No. 3, 34 CFR Part 300, App. C.

Upon development of an IEP, Indiana requires an additional application and review process ("the Process") for certain children with disabilities and who are unable to be placed in public schools and are in need of residential placement. See 511 IAC 7-12-5. A substantial delay occurs between the time an eligible child is determined to be in need of a residential placement and the actual date of placement in an appropriate residential facility.

The average delay from the date an application was received by the State to the date of placement for 95 applications submitted between 1988 and September 1991, was 160 days. (Exh. C, Plaintiffs' Response to Defendants' Motion to Dismiss.) In addition, these figures do not include the additional delay between development of the IEP and submission of the application, which is five to six weeks. (Eby Dep., Attachment 2, Plaintiffs' Motion for Partial Summary Judgment.) Thus, the total delay from development of the IEP until placement is nearly 200 days.

DISCUSSION

Class Certification

Rule 23 of the Federal Rules of Civil Procedure establishes a two-step procedure for determining whether an action may appropriately proceed as a class action. First, Rule 23(a) states four prerequisites which must be met before there is any possibility of a class action: 1) class members are so numerous that joinder of all members is impracticable; 2) questions of law or fact are common to the class; 3) claims or defenses of the representatives are typical of class members; and 4) the representatives will fairly and adequately represent the interests of the class. Fed. R.Civ.P. 23(a). In addition, once these prerequisites are met, a class action will still not be allowed unless the action fits into one of three subsections of Fed.R.Civ.P. 23(b). In the present action, the Plaintiffs seek certification under Rule 23(b)(2), which requires the Court find 1) the opposing parties' conduct or refusal to act must be generally applicable to the class, and 2) final injunctive or corresponding declarative relief is requested for the class. See Retired Chicago Police Ass'n v. City of Chicago, 141 F.R.D. 477, 483 (N.D.Ill.1992); Fed.R.Civ.P. 23(b)(2); 7A Wright, Miller & Kane, Fed. Prac. & Proc., § 1775 at 447-48 (1986).

Numerosity

To satisfy the numerosity requirement, the joinder of all class members need not be impossible, but rather joinder must be extremely difficult or inconvenient. Gomez v. Illinois State Bd. of Educ., 117 F.R.D. 394, 398-99 (N.D.Ill.1987). The complaint need not allege exact number or identity of class members; the finding of numerosity may be supported by common sense assumptions. Retired Chicago Police Ass'n, 141 F.R.D. at 484-485 (citations omitted). Additionally, in determining numerosity, the Court considers judicial economy and the ability of class members to institute individual suits. Id. at 485.

The Plaintiffs estimate that there are approximately 100-200 class members. Moreover, the Defendants do not dispute that the class is sufficiently large to satisfy the numerosity requirement of Rule 23(a)(1), nor is it disputed that joinder of all class members would be impractical, if not impossible. Therefore, the numerosity requirement of Rule 23(a)(1) is satisfied. See Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986) (while there is no fixed numerosity rule, "generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors").

Commonality

The second requirement for class certification is that there be "questions of law or fact common to the class." Rule 23(a)(2). However, not all factual or legal questions raised in a lawsuit need be common as long as a single issue is common to all class members. Retired Chicago Police Ass'n, 141 F.R.D. at 485. Class actions, therefore, cannot be defeated on commonality grounds solely because there are some factual variations among the claims of individual members. Id. (citing Patterson v. General Motors Corp., 631 F.2d 476, 481 (7th Cir.1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1988, 68 L.Ed.2d 304 (1981)). In the present action, the issue presented by the Plaintiffs, whether the Process violates IDEA insofar as it imposes lengthy delays after development of an IEP, clearly presents a question of law common to all class members. The Plaintiffs' challenge does not require this Court to make individual determinations concerning the necessity of a residential placement. Rather, the question is simply whether the Process, which is common to all class members, violates IDEA. Accordingly, the Plaintiffs satisfy the commonality requirement.

Typicality

In order to certify as class, the claims of the representative plaintiffs must next be typical of the class claims. Typicality acts to insure that the interest of the named plaintiffs are sufficiently coextensive or inter-related with the interests of class members to ensure that the interests of those class members will be adequately protected in their absence. Retired Chicago Police Ass'n, 141 F.R.D. at 485 (citing General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 2370 n. 13, 72 L.Ed.2d 740 (1982)). Typicality exists if the plaintiffs' claim "arises from the same event or practice or course of conduct that gives rise to the claims of other class members and their claims are based on the same legal theory." De la Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983) (quoting H. Newberg, Class Actions, § 1115(b) at 185 (1977)). Additionally, to meet the typicality requirement, the representatives must establish "the bulk of the elements of each class member's claims when they prove their own." Retired Chicago Police Ass'n, 141 F.R.D. at 485.

In the present action, the named Plaintiffs have been found eligible for a residential placement through a local...