Six months after the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, courts are still working out how best to apply the newly-clarified standard of commonality. This week, the Seventh Circuit offered some further guidance.
In Jamie S. v. Milwaukee Public Schools, the plaintiffs–seven disabled public-school students–challenged Milwaukee’s implementation of the Individuals with Disabilities Education Act. The trial court denied certification, but allowed the plaintiffs to amend their complaint. It then certified the amended class proposal, and proceeded to a bench trial, where it found various violations of the IDEA, and ordered a complex, court-monitored remedial scheme. Both sides appealed: MPS appealed the certification, while the plaintiffs appealed the denial of certification of their first proposed class.
The Seventh Circuit vacated the trial court’s certification order. It began by discussing how school districts implement the IDEA:
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.
(Emphasis added.) As one might expect, the rest of the opinion follows inexorably from that account. The Seventh Circuit vacated the order on three grounds. First, it found that the class was not identifiable from the proposed definition. The trial court had certified a class of
Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student.
As the Seventh Circuit found,
A significant segment of the class (of unknown and unknowable size) comprises disabled students who may have been eligible for special education but were not identified and remain unidentified.
(Emphasis in original.)
The Seventh Circuit also found that the class lacked commonality.
The plaintiffs identify the following common issue: "[A]ll potential class members have suffered as a result of MPS’ failure to ensure their Child Find rights under IDEA and Wisconsin law." This completely misunderstands Rule 23(a)(2). Whether MPS failed in its obligations under the IDEA and thereby deprived an eligible disabled child of a free appropriate public education is the bottom-line liability question in any individual plaintiff’s IDEA claim. To bring individual IDEA claims together to litigate as a class, the plaintiffs must show that they share some question of law or fact that can be answered all at once and that the single answer to that question will resolve a central issue in all
class members’ claims.
(Emphasis in original.) This is, of course, remarkably similar to the language in Dukes. But the Seventh Circuit too it slightly further, providing an example to illustrate why plaintiffs’ proposed common issue was not common at all:
To illustrate the commonality problem in the certified class, consider two hypothetical students within the class: one has a disability and would be eligible for special education but has never been identified as being disabled nor gone through the IEP process; another was identified as disabled and received a timely IEP meeting, but the child’s parents did not attend the IEP meeting and were not notified of their right to do so. Both scenarios involve violations of the IDEA, but what common question can be answered that would assist the court in determining MPS’s liability for each? On the plaintiffs’ theory, that question is something like this: Did MPS fulfill its IDEA obligations to each child? But while that generic question is surely a part of both children’s claims, it must be answered separately for each child based on individualized questions of fact and law, and the answers are unique to each child’s particular situation.
Finally, the court held that since the plaintiffs had not established any common issue, there could be no common injunctive relief that would apply to all class members. As it held:
"While the compensatory-education remedies will often or always be injunctive in nature, there can be no single injunction that provides final relief to the class as a whole. It is no answer to say that the June 9 remedial order affects the entire class; that order merely establishes a system for eventually providing individualized relief. It does not, on its own, provide "final" relief to any class member."
The application for defense counsel should be clear. In an effort to avoid the dictates of Dukes, plaintiffs continue to label both issues and and relief as "common," even if the proposed common issue is so abstract as to be meaningless in a trial or in granting relief. The Seventh Circuit’s "single answer" formulation can help explain to courts just when a common issue is truly common, as opposed to when the only real commonality to the class is their counsel’s desire for certification.