Jamie S. v. Milwaukee Pub. Sch.

Decision Date03 February 2012
Docket NumberNos. 09–2741,09–3274.,s. 09–2741
Citation277 Ed. Law Rep. 34,668 F.3d 481
PartiesJAMIE S., on her own behalf and on behalf of a class of similarly situated persons, et al., Plaintiffs–Appellees/Cross–Appellants, v. MILWAUKEE PUBLIC SCHOOLS, et al., Defendants–Appellants/Cross–Appellees.
CourtU.S. Court of Appeals — Seventh Circuit


Jeffrey Spitzer–Resnick (argued), Attorney, Disability Rights Wisconsin, Madison, WI, Monica M. Murphy (argued), Attorney, Disability Rights Wisconsin, Milwaukee, WI, for PlaintiffsAppellees/Cross–Appellants.

Michael Aldana (argued), Attorney, Quarles & Brady, Milwaukee, WI, for DefendantsAppellants/Cross–Appellees.

Ronald K. Lospennato, Attorney, Advocacy Center, New Orleans, LA, Bruce A. Olsen, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, William S. Koski, Mills Legal Clinis, Stanford, CA, for Amici Curiae in No. 09–2741.John W. Borkowski, Attorney, Hogan Lovells, South Bend, IN, for Amici Curiae in No. 09–3274.

Before FLAUM, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

We are asked in these consolidated appeals to review multiple procedural and substantive orders in a long-running class-action lawsuit seeking structural reform of special education in the Milwaukee public school district. Under the Individuals with Disabilities Education Act (the “IDEA” or the Act), 20 U.S.C. §§ 1400 et seq., the States receive federal funding for the education of disabled children on the condition that their local school districts comply with the procedural requirements of the Act and provide a “free appropriate public education” to all resident children with disabilities. Id. § 1412(a)(1)(A). As relevant here, local districts must identify children with disabilities, determine whether these children require special-education services, and develop individualized education programs (“IEPs”) tailored to each student's specific needs. Each step in the process is highly individualized because every child is unique.

In 2001 seven students with disabilities sued the Milwaukee Public Schools (MPS) and the Wisconsin Department of Public Instruction (“DPI”) on behalf of themselves and a class of “all school age children with disabilities who reside in the Milwaukee Public School District boundaries and who are or may be eligible for special education and related services under IDEA and Wisconsin law.” The complaint alleged widespread violations of the IDEA touching on nearly every aspect of MPS's implementation of the Act. The district court rejected the plaintiffs' ambitious proposed class but certified a somewhat more modest one: students eligible to receive special education from MPS “who are, have been or will be” denied or delayed entry into or participation in the IEP process. This narrower class definition had the effect of focusing the case on alleged violations of the so-called “child find” requirements of the IDEA. Id. § 1412(a)(3)(A).

The district court held a bench trial and found MPS and DPI liable for various “systemic” IDEA violations. DPI then settled with the class by agreeing to order MPS to meet certain compliance benchmarks; the district court approved the settlement over MPS's objection. On June 9, 2009, the court ordered a complex remedial scheme requiring MPS to set up a court-monitored system to identify disabled children who were delayed or denied entry into the IEP process, implement “hybrid” IEP meetings, and craft compensatory-education remedies.

MPS appealed the remedial order and also challenged the district court's class-certification decision, the liability order, and the approval of the DPI settlement. The plaintiffs sought review of the order rejecting their sweeping class definition but missed the filing deadline for a cross-appeal. On August 19 the district court issued two follow-up orders appointing an independent monitor and approving the class notice. The plaintiffs appealed from these orders but do not contest either decision; instead, they ask us to review the order denying their original class-certification motion.

Both sides moved to dismiss on jurisdictional grounds. We took the motions with the merits and now dismiss the plaintiffs' appeal. The orders from which the plaintiffs appealed are not final orders; nor are they the equivalent of injunctions, so they do not qualify for immediate appeal under 28 U.S.C. § 1292(a)(1). Moreover, the plaintiffs are attempting a flagrantly improper procedural maneuver; they may not revive their untimely appeal by appealing from orders they do not want reviewed. We deny the motion to dismiss MPS's appeal. The June 9 remedial order is the functional equivalent of an injunction and may be immediately appealed under § 1292(a)(1); we have pendent appellate jurisdiction over the related orders.

On the merits we vacate the class-certification order. Like the Title VII claims in Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), the IDEA claims in this case are highly individualized and vastly diverse, making this case unsuitable for class-action treatment under Rule 23 of the Federal Rules of Civil Procedure. The class itself is fatally indefinite, the claims lack the commonality required by Rule 23(a)(2), and it's not possible to order final injunctive or corresponding declaratory relief on a class-wide basis, as required by Rule 23(b)(2). Because the class should not have been certified, the liability and remedial orders must be vacated as well. Finally, DPI's settlement with the class prejudiced MPS's legal rights by requiring more of MPS than DPI had the statutory authority to demand. In any case, because the class was certified in error, the order approving the DPI settlement must also be vacated.

I. Background
A. Legal Framework

The IDEA requires participating States to provide to all disabled students a “free appropriate public education.” 20 U.S.C. § 1412(a)(1)(A). Complying with this requirement is a complex and inherently child-specific undertaking. First, the IDEA requires that [a]ll children with disabilities residing in the State ... and who are in need of special education and related services” be “identified, located, and evaluated,” a process known as “child find.” Id. § 1412(a)(3)(A). Once a disabled child in need of special education is identified, the local school district must evaluate the child's specific needs and develop an “individualized educational program,” or “IEP,” outlining the particular special-education services that are necessary to allow the child to learn in the “least restrictive environment.” Id. §§ 1412(a)(4)-(5), 1414. The content of an IEP and the meaning of “least restrictive environment” are nuanced topics that we need not explore here. With limited exceptions, an “IEP Team” must be convened and meet within 90 days of the child's initial referral, see Wis. Stat. § 115.78(3)(a) (1998); 1 the IEP Team must include various educational professionals and the child's parent or guardian, see 20 U.S.C. § 1414(d)(1)(B). Once an IEP is in place, the school must provide the services listed in it, and the IDEA sets out many rules governing the process of amending an IEP. These topics, too, are beyond the scope of inquiry here.

To ensure that each disabled child receives a free appropriate public education, the IDEA also requires States to provide various procedural safeguards to students and parents. See id. § 1415. A parent may file a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child,” id. § 1415(b)(6)(A), and may request an impartial due-process hearing to resolve the complaint, id. § 1415(f). After receiving a final decision from the hearing officer, the parent may appeal to the state educational agency. Id. § 1415(g). Finally, a still-aggrieved parent may file a civil action seeking review of the decision. Id. § 1415(i)(2). The IDEA also requires that parents be given notice of their procedural rights at various times, including when the school district first proposes or refuses to evaluate a child for a disability. Id. § 1415(b)(3), (c)(1).

Wisconsin implements the IDEA through sections 115.758– 115.90 of the Wisconsin Statutes, which track the IDEA's requirements while adding functional detail. One provision of particular importance here, section 115.90, gives DPI—the state educational agency charged with overseeing Wisconsin's IDEA compliance—various enforcement mechanisms if individual schools or school districts are not fulfilling their statutory obligations. Specifically, DPI may order a school district to submit a “corrective plan” that addresses the area of noncompliance, withhold state funding until the violation is fixed, or if the first two methods are unsuccessful, ask the state attorney general to bring a lawsuit against the school district to force compliance. Wis. Stat. § 115.90.

B. Proceedings Below

The procedural history of this case is lengthy and complex; we will simplify where we can. In 2001 Jamie S. and six other named plaintiffs brought this class-action suit against MPS and DPI alleging a host of IDEA violations. Jamie is cognitively impaired and was at that time an eight-year-old student in an MPS school. The other named plaintiffs are (or were) MPS students with disabilities ranging from deafness to Asperger's syndrome to various emotional disturbances. The parties consented to the jurisdiction of a magistrate judge, see 28 U.S.C. § 636(c)(1), and the plaintiffs moved to certify a class of all Milwaukee-area students who “are or may be eligible for special education and related services under IDEA and Wisconsin law due to their disabilities.” The magistrate judge declined to certify a class of this scope based largely on concerns about exhaustion of administrative remedies. But the judge believed that some of plaintiffs' claims could be litigated as a class...

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