Parent/Professional Advocacy League v. City of Springfield

United States Court of Appeals
For the First Circuit
Nos. 18-1778
18-1813
18-1867
18-1976
THE PARENT/PROFESSIONAL ADVOCACY LEAGUE; DISABILITY LAW CENTER,
INC.; M.W., a minor, by his temporary guardian, F.D., on behalf
of himself and other similarly situated students,
Plaintiffs, Appellants/Cross-Appellees,
S.S., a minor, by his mother, S.Y., on behalf of himself and
other similarly situated students,
Plaintiff,
v.
CITY OF SPRINGFIELD, MASSACHUSETTS; SPRINGFIELD PUBLIC SCHOOLS,
Defendants, Appellees/Cross-Appellants,
DOMENIC SARNO, in his official capacity as Mayor of City of
Springfield; SUPERINTENDENT DANIEL J. WARWICK, in his official
capacity as Superintendent of Springfield Public Schools,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
Jeff Goldman, with whom Robert E. McDonnell, Michael D.
Blanchard, Elizabeth Bresnahan, Matthew T. Bohenek, Morgan, Lewis
& Bockius LLP, Alison Barkoff, Deborah A. Dorfman, Sandra J. Staub,
Center for Public Representation, Ira Burnim, Jennifer Mathis, and
Bazelon Center for Mental Health Law were on brief, for
appellants/cross-appellees.
Aaron M. Panner, Matthew M. Duffy, and Kellogg, Hansen, Todd,
Figel & Frederick, P.L.L.C. on brief for Former U.S. Department of
Education Officials, Massachusetts Advocates for Children,
Massachusetts Association for Mental Health, and Mental Health
America, amici curiae.
Howard Schiffman, Thomas P. DeFranco, and Schulte Roth & Zabel
LLP on brief for National Disability Rights Network, American
Association of People with Disabilities, and National Council on
Independent Living, amici curiae.
Stephen L. Holstrom and Lisa C. deSousa, with whom Edward M.
Pikula, City of Springfield Law Department, Melinda M. Phelps, and
Bulkley, Richardson & Gelinas LLP were on brief, for
appellees/cross-appellants.
August 8, 2019
LYNCH, Circuit Judge. These consolidated appeals raise
significant questions about the overlap between Title II of the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131–12134,
and the Individuals with Disabilities Education Act (IDEA), 20
U.S.C. § 1400 et seq., about class certification in special
education litigation, and about organizations' standing to sue on
behalf of certain constituents.
The underlying suit alleges that the City of
Springfield, Massachusetts, and Springfield Public Schools (SPS)
violated Title II of the ADA by unnecessarily segregating students
with mental health disabilities in a separate and inferior school,
the Springfield Public Day School (SPDS). S.S., then an SPDS
student, brought the suit on his own behalf and on behalf of a
class of all students with a mental health disability who are or
have been enrolled at SPDS. Two associations, the
Parent/Professional Advocacy League (PPAL) and Disability Law
Center (DLC), joined S.S. as plaintiffs. They seek injunctive and
declaratory relief, including an order that defendants provide the
class plaintiffs with "school-based behavior services in
neighborhood schools to afford them an equal educational
opportunity and enable them to be educated in neighborhood
schools."
The district court denied class certification. S.S. by
S.Y. v. City of Springfield (S.S. II), 318 F.R.D. 210, 224 (D.
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Mass. 2016). It later ruled that the associations had standing
but granted the defendants' motion for judgment on the pleadings
as to the associations. S.S. by S.Y. v. City of Springfield (S.S.
III), 332 F. Supp. 3d 367, 379 (D. Mass 2018).
The plaintiffs' consolidated appeal challenges the
district court's rulings that this suit was subject to the IDEA's
exhaustion requirement and that the proposed class did not satisfy
Federal Rule of Civil Procedure 23(a)'s requirements for
certification. After briefly addressing a threshold issue related
to the grant of a motion to intervene, we reject plaintiffs'
arguments that the district court erred as to class certification.
The defendants' appeal argues that the district court erred in
concluding that PPAL and DLC had standing. We agree that these
organizations lack standing to pursue the claims in the complaint,
and we affirm the district court's grant of judgment on the
pleadings as to PPAL and DLC on that ground.
I.
To begin, we give background on the ADA and IDEA. We
next turn to this suit's history.
A. The ADA
Title II of the ADA states that "no qualified individual
with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
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discrimination by any such entity." 42 U.S.C. § 12132. Title
II's regulations generally require a public entity to make
"reasonable modifications" to its "policies, practices, or
procedures" when necessary to avoid violations of Title II. 28
C.F.R. § 35.130(b)(7)(i).
Title II, as implemented by regulation, prohibits two
types of discrimination relevant here. First, regulations
implementing Title II prohibit inequality in services, programs,
or activities provided by public entities. Public entities may
not "[a]fford a qualified individual with a disability an
opportunity to participate in or benefit from the aid, benefit or
service that is not equal to that afforded others" or "[p]rovide
a qualified individual with a disability with an aid, benefit or
service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the
same level of achievement as that provided to others." Id.
§§ 35.130(b)(1)(ii)-(iii).
Second, the regulations require public entities to
"administer services, programs, and activities in the most
integrated setting appropriate to the needs of qualified
individuals with disabilities." Id. § 35.130(d). "The most
integrated setting" is defined as a setting that "enables
individuals with disabilities to interact with nondisabled persons
to the fullest extent possible." Id. pt. 35, app. B.
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Interpreting Title II and the integration and reasonable
modification regulations, the Supreme Court held in Olmstead v.
L.C. ex rel. Zimring, 527 U.S. 581 (1999), that the ADA prohibits
the unjustified institutionalization of people with mental
disabilities. Id. at 600. The Court concluded that public
entities must provide "community-based [services] for persons with
mental disabilities," when "the affected persons do not oppose
such" services, and the community placement "can be reasonably
accommodated." Id. at 607. Cases like this one challenging the
separation of individuals with disabilities under the ADA are often
called Olmstead cases.
B. The IDEA
The IDEA provides federal funds to assist states in
educating children with disabilities "and conditions such funding
upon a State's compliance with extensive goals and procedures."
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291,
295-96 (2006) (quoting Bd. of Ed. v. Rowley, 548 U.S. 176, 179
(1982)). These conditions include the commitment to furnish a
"[f]ree appropriate public education" (FAPE), 20 U.S.C.
§ 1412(a)(1), and to do so in the "[l]east restrictive environment"
(LRE), id. § 1412(a)(5).
As defined in the IDEA, a FAPE encompasses both "special
education and related services." Id. § 1401(9). "Special
education" is "specially designed instruction." Id. § 1401(29).
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"Related services" are the support services -- including
"psychological" and "counseling services" -- "required to assist
a child to benefit from" that instruction. Id. § 1401(26)(A). A
state must also provide special education and related services "in
conformity with the [child's] individualized education program,"
or IEP. Id. § 1401(9)(D).
IEPs are "comprehensive plan[s]" developed by the
child's teachers, school officials, and parents. Endrew F. ex
rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988,
994 (2017). The IDEA requires that every IEP document the child's
"present levels of academic achievement," identify "measurable
annual goals," and outline the "special education and related
services" to be given so that the child can "advance appropriately
toward [those] goals." 20 U.S.C. §§ 1414(d)(1)(A)(i)(I), (IV).
Finally, every IEP must specify "the extent, if any, to
which the child will not participate with nondisabled children in
the regular class." Id. § 1414(d)(1)(A)(i)(V). This requirement
reflects the state's obligation to educate children in the LRE,
which the IDEA defines as:
(5) Least restrictive environment
(A) In general
To the maximum extent appropriate,
children with disabilities . . . are
educated with children who are not
disabled, and special classes, separate
schooling, or other removal of children
with disabilities from the regular
educational environment occurs only when
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the nature or severity of the disability
of a child is such that education in
regular classes with the use of
supplementary aids and services cannot be
achieved satisfactorily.
Id. § 1412(a)(5)(A).
The IDEA also details procedures for resolving disputes
between parents and schools about the content of an IEP. Parents
may file a complaint with the appropriate local or state
educational agency, id. § 1415(b)(6), spurring a "[p]reliminary
meeting," id. § 1415(f)(1)(B)(i), which, if unsuccessful in
resolving the dispute, leads to a mediation process, id. § 1415(e),
and then ultimately to a formal "due process hearing," id.
§ 1415(f)(1)(A).
Hearing officers can grant substantive relief, such as
reimbursement for private school tuition or an order that a school
district must offer the student an appropriate educational
program. See Sch. Comm. of Burlington v. Dep't of Educ. of Mass.,
471 U.S. 359, 370 (1985) (discussing both prospective relief and
reimbursement). But relief may only be granted "based on a
determination of whether the child received a [FAPE]."1 20 U.S.C.
§ 1415(f)(3)(E)(i). The standard for determining whether a child
receives a FAPE is whether the educational program offered to the
1 For procedural violations, a hearing officer may find
that a child did not receive a FAPE "if the procedural inadequacies
. . . caused a deprivation of educational benefits." 20 U.S.C.
§ 1415(f)(3)(E)(ii).
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child is "reasonably calculated to enable [the] child to make
progress appropriate in light of the child's circumstances."
Endrew F., 137 S. Ct. at 1001.
In Massachusetts, the initial hearing officer's decision
can be appealed to the Board of Special Education Appeals (BSEA).
The general rule is that only after these procedures have been
exhausted may parents seek review of IDEA claims in a civil action
in state or federal court. See id. § 1415(i)(2)(A).
C. The IDEA's Exhaustion Requirement
The Supreme Court first considered the interactions
between the IDEA and antidiscrimination laws like the ADA in Smith
v. Robinson, 468 U.S. 992 (1984). Smith held that the IDEA totally
foreclosed claims asserted under statutes other than the IDEA to
challenge the appropriateness of a disabled child's education.
See id. at 1009.
But Congress overrode Smith in 1986 when it added an
exhaustion requirement to the IDEA. The provision, at 20 U.S.C.
§ 1415(l), reads:
Nothing in [the IDEA] shall be construed to
restrict or limit the rights, procedures, and
remedies available under the Constitution, the
Americans with Disabilities Act of 1990, title
V of the Rehabilitation Act of 1973, or other
Federal laws protecting the rights of children
with disabilities, except that before the
filing of a civil action under such laws
seeking relief that is also available under
[the IDEA], the [IDEA's administrative]
procedures . . . shall be exhausted to the
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same extent as would be required had the
action been brought under [the IDEA].
Id. Under § 1415(l), a plaintiff is thus not barred from bringing
claims under the ADA even if those claims allege the denial of an
adequate education. However, a plaintiff bringing suit under the
ADA must first exhaust the IDEA's administrative procedures if the
suit is "seeking relief that is also available under [the IDEA]."
Id.
The Supreme Court first interpreted this key phrase in
2017, in Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017).2
Fry held that a suit is subject to the IDEA's exhaustion
requirement if it "seek[s] relief for the denial of a FAPE, because
that is the only 'relief' the IDEA makes 'available.'" Id. at 752
(quoting 20 U.S.C. § 1415(l)); see also id. at 753-55. And, in
discerning "whether a suit indeed 'seeks' relief for such a denial,
a court should look to the substance, or the gravamen, of the
plaintiff's complaint." Id. at 752; see also id. at 755-57. That
is in contrast to analyses under other, "stricter exhaustion
statute[s]" that ask "whether the suit could have sought [certain]
2 The Frys brought suit under Title II of the ADA and § 504
of the Rehabilitation Act, 29 U.S.C. § 794, for "denying [their
daughter] equal access" to her elementary school by "refus[ing] to
reasonably accommodate" their daughter's use of a service animal
for her cerebral palsy. Fry, 137 S. Ct. at 752 (internal quotation
marks omitted). The Supreme Court did not undertake an exhaustion
analysis of the Frys' complaint, remanding on that question. Id.
at 758-59.
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relief" or "whether [certain] remedies are available under that
law." Id. at 755 (emphasis added)(internal quotation marks
omitted).
Even if a court determines that a complaint seeks relief
that is available under the IDEA, exhaustion is not required where
it "would be futile or inadequate." Honig v. Doe, 484 U.S. 305,
327 (1988). The plaintiffs argue that two species of futility are
relevant here, one to the class plaintiffs and the other to DLC
and PPAL. But for reasons explained in our analysis, we reach
only the argument about the class plaintiffs.
II.
A. The Complaint
S.S., PPAL, and DLC filed the operative complaint in
2015.3 PPAL is an organization that advocates for improved access
to services for children with a mental health disability. And DLC
is designated under the Protection and Advocacy for Individuals
with Mental Illness Act (PAIMI), 42 U.S.C. § 10801 et seq., as the
protection and advocacy system (P & A) for individuals with mental
health disabilities in Massachusetts. S.S., then a high school
student at SPDS, had been diagnosed with Attention Deficit and
3 What we refer to as "the complaint" is the First Amended
Class Action Complaint. S.S. and PPAL filed an initial complaint
in 2014 and then sought leave to amend, which was granted, allowing
S.S. and PPAL, now joined by DLC, to file the First Amended Class
Complaint. S.S. by S.Y. v. City of Springfield (S.S. I), 146 F.
Supp. 3d 414, 422 (D. Mass. 2015).
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Hyperactivity Disorder and depression. S.S. sought to sue on
behalf of a class of "[a]ll students with a mental health
disability who are or have been enrolled in SPS's Public Day School
who are not being educated in an SPS neighborhood school." This
class, the complaint alleges, contains PPAL and DLC constituents.
The complaint alleges the following facts about
Springfield's public school system. SPS, the second largest
school district in Massachusetts, enrolls around 26,000 students
in about fifty schools. Most of those schools are neighborhood
schools -- elementary and middle schools that enroll students based
on their residential addresses and high schools that enroll
students through a choice program.
Within SPS, SPDS comprises three schools, an elementary,
middle, and high school. SPDS operates as an "alternative [set
of] schools . . . for students with social emotional behavioral
disabilities." It enrolls about 230 students, each of whom has
been diagnosed with a mental health disability that SPS has
determined interferes with his or her learning and each of whom
has an IEP that places him or her at SPDS. About 400 other
students with mental health disabilities that similarly interfere
with their learning attend neighborhood schools; their IEPs do not
require placement at SPDS.
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The complaint alleges that both Springfield and SPS4
discriminate against the plaintiff class under Title II by
providing unequal educational services at SPDS, see 28 C.F.R.
§§ 35.130(b)(1)(i), (ii), and by denying them the opportunity to
receive educational services in the most integrated setting
appropriate to their needs, see 42 U.S.C. § 12132; 28 C.F.R.
§ 35.130(d). The complaint requests this substantive relief:
A. Order that Plaintiff S.S. may maintain
this action as a class action pursuant to Rule
23(b)(2) of the Federal Rules of Civil
Procedure.
B. Order and declare that Defendants are
violating the rights of S.S. and other
similarly situated children under Title II of
the ADA . . . and its implementing
regulations.
C. Preliminarily and permanently enjoin
Defendants, their . . . agents, employees and
assigns, and all persons acting in concert
with them to provide Plaintiff S.S., PPAL and
DLC constituents, and the Plaintiff class with
the school-based behavior services they need
to enjoy equal educational opportunity and
receive educational programs and services in
the most integrated setting, as required by
Title II of the ADA.
The complaint defines the "essential components" of
school-based behavior services (SBBS) as:
(a) a comprehensive assessment, including
determination of the purpose and triggers for
the child’s behavior; (b) a school-based
4 The complaint also named Springfield's mayor and schools
superintendent as defendants. But the district court dismissed
these claims as "redundant" of those against the public entities.
S.S. I, 146 F. Supp. 3d at 426. And the plaintiffs have not
appealed that dismissal.
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intervention plan that relies on positive
support, social skills training, a care
coordinator, and adjustments as needed to
curriculum or schedule; (c) training for
school staff and parents in implementing the
plan; and (d) coordination with non-school
providers involved with the child.
Defendants responded with a motion to dismiss, asserting
several grounds, including that S.S. had failed to exhaust his
administrative remedies. In denying the motion to dismiss as to
the claims against Springfield and SPS,5 the district court held
that S.S. had exhausted his administrative remedies before
bringing this suit. S.S. by S.Y. v. City of Springfield (S.S. I),
146 F. Supp. 3d 414, 424 (D. Mass. 2015). S.S. had filed a Request
for a Hearing with the BSEA asserting that his IEP violated the
IDEA's FAPE and LRE requirements and raising the ADA claims in
this suit. A BSEA hearing officer dismissed S.S.'s individual and
classwide ADA claims for lack of jurisdiction and denied S.S.'s
IDEA claim based on a finding that his IEP was reasonably
calculated to offer him a FAPE.
B. Motion for Class Certification
The district court denied the plaintiffs' motion for
class certification on alternative grounds. S.S. II, 318 F.R.D.
at 224. In the district court's view, the IDEA's exhaustion
5 As already stated, the district court dismissed the
claims against the individual defendants. S.S. I, 146 F. Supp.
3d at 426.
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requirement "provide[d] one basis" for doing so. Id. at 222.
Writing two years before Fry, the district court concluded that,
because "the members of the proposed class may achieve a remedy
through an IDEA administrative hearing related to the claims raised
here," that statute's exhaustion requirement "applie[d]." Id.
Although S.S. had exhausted his administrative remedies, the
proposed class was not limited to students who had gone through
the IDEA's procedures. Id. at 221. And, the district court
stated, plaintiffs "have not argued that there is an exception to
the exhaustion requirement" for class actions. Id. As a result,
the district court held that class certification should be denied:
the complaint did not allege that all unnamed members of the class
had exhausted, but the district court determined that § 1415(l)
required them to do so. See id. at 222.
The district court also concluded that the plaintiffs
had not satisfied Federal Rule of Civil Procedure 23(a)'s
prerequisites for class certification. See id. There was no
"question[] of law or fact common to the class," the district court
held, and S.S. could not serve as a "typical" or "adequate[]" class
representative because he had exhausted his IDEA administrative
remedies while other class members had not. See id. at 223-24
(quoting Fed. R. Civ. P. 23(a)).
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C. Motion for Judgment on the Pleadings
The defendants next filed a motion for judgment on the
pleadings on the claims of DLC and PPAL. They argued that the
associations lacked standing to bring these claims on behalf of
their constituents and, in the alternative, that the associations
were subject to the IDEA's exhaustion requirement but had failed
to exhaust. Although the district court found that DLC and PPAL
had standing, it granted the motion. S.S. III, 332 F. Supp. 3d
at 370. Writing after Fry, the district court concluded that
§ 1415(l) required exhaustion and that no exception relieved DLC
and PPAL of their obligation to exhaust the IDEA's administrative
procedures. Id. at 376-78.
D. M.W.'s Intervention for Purposes of Appeal and the Parties'
Appeal and Cross-Appeal
While the motion for judgment on the pleadings was
pending in the district court, S.S. turned eighteen and withdrew
from the suit.6 M.W., a former SPDS student who does not attend
a neighborhood school, asked the district court for permission to
intervene solely for purposes of appealing the ruling on the motion
for class certification. The district court granted the motion.
6 Simultaneous with S.S.'s withdrawal, another SPDS
student who had exhausted IDEA administrative remedies sought to
intervene in the district court case and in the plaintiff's
petition to appeal the denial of class certification to the First
Circuit. This student's motions were withdrawn before they were
acted on.
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M.W. then appealed the district court's denial of class
certification. PPAL and DLC appealed the judgment against them.
Springfield and SPS cross-appealed the district court's ruling
that PPAL and DLC had standing and its grant of M.W.'s motion to
intervene for purposes of appeal.
III.
We first address a threshold issue raised in defendants'
cross-appeal: did the district court abuse its discretion in
granting M.W.'s motion to intervene for purposes of appealing the
denial of class certification? See Peaje Investments LLC v.
García-Padilla, 845 F.3d 505, 515 (1st Cir. 2017) (reviewing
disposition of motion to intervene for abuse of discretion).
We see no abuse of discretion. The district court
relied on United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977),
in concluding that M.W.'s motion to intervene was timely and
appropriate. In McDonald, the Supreme Court endorsed the grant
of a motion like the one here -- to intervene for purposes of
appealing an order denying a motion for class certification. Id.
at 387, 396. The motion in McDonald had been filed by a member
of the proposed class within the period for appealing the entry of
final judgment. Id. at 390. The same is true here: M.W., a
member of the proposed class, filed the motion to intervene for
purposes of appealing the class certification order fifteen days
after the district court entered its final order granting the
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motion for judgment on the pleadings; fifteen days is within the
time period for filing an appeal under Federal Rule of Appellate
Procedure 4. See id.; see also Fed. R. App. P. 4(a)(1)(A)
(allowing thirty days to file a notice of appeal).
The defendants' counter-arguments are misplaced. The
defendants object that M.W.'s intervention is "[i]nappropriate"
because he has not exhausted his IDEA administrative remedies and
is therefore "unsuitable to represent the class in any capacity."
But M.W. seeks to appeal the district court's ruling refusing to
certify a class including persons who had not exhausted IDEA
remedies. And so M.W.'s failure to have exhausted cannot make him
an inappropriate appellant of that ruling. See McDonald, 432 U.S.
at 394-95 ("[I]t would be circular to argue that [an] unnamed
member of the putative class was not a proper party to appeal, on
the ground that her interests had been adversely determined in the
trial court."). Defendants' insistence that "M.W. is not an
adequate class representative and whether one may arise is wholly
speculative" similarly misses the point. M.W. is a suitable party
to appeal from the district court's denial of class certification
because M.W. is a member of the proposed class; those interests
would be impaired absent intervention given S.S.'s decision to
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withdraw as named plaintiff. See id. at 394; Fed. R. Civ. P.
24(a). M.W.'s appeal is properly before us.7
IV.
We turn now to M.W.'s appeal. M.W. first challenges the
district court's conclusion that § 1415(l)'s exhaustion rule
attached here, and the parties appear to argue that the exhaustion
issue is at the heart of this case. Our exhaustion analysis, as
described below, directly pertains to our decisions on class
certification and associational standing. Applying Fry for the
first time in this circuit, we conclude that the complaint "seek[s]
relief that is also available" under the IDEA. 8 20 U.S.C.
§ 1415(l). We then turn directly to the issue of class
certification.
7 M.W., a minor, moved to intervene and initially brought
this appeal by his parents, L.N. and A.N. After oral argument,
plaintiffs moved to substitute F.D. as M.W.'s representative. The
motion explained that, following L.N.'s death just before oral
argument in this court, F.D. and A.N. filed competing petitions
for guardianship of M.W., and F.D. was granted temporary
guardianship of M.W. We granted the motion to substitute F.D. for
so long as F.D. is authorized to be M.W.'s general guardian under
state law. See Fed. R. Civ. R. 17(c)(1)(A); Fed. R. App. P. 43(a),
(b).
8 Our review of the district court's exhaustion ruling is
de novo. This is true whether we treat the exhaustion ruling as
a matter of class certification or, as the parties do in their
briefs, as an independent issue. Motions to dismiss and legal
rulings embedded in class certification decisions are both
reviewed de novo. García-Rubiera v. Calderón, 570 F.3d 443, 460
(1st Cir. 2009) (citing Tardiff v. Knox Cty., 365 F.3d 1, 4 (1st
Cir. 2004)).
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A. The Complaint "Seek[s] Relief that is Also Available Under"
the IDEA
Fry was decided after the district court's class
certification order, and M.W. argues that Fry made clear that the
"IDEA exhaustion rule does not apply here." We now clarify that
§ 1415(l), as interpreted in Fry, subjects the type of ADA claim
being made here to that exhaustion rule.9
When faced with a complaint brought under the ADA against
a public school, Fry instructs, a court should determine whether
the gravamen of the complaint "concerns the denial of a FAPE" -- in
which case § 1415(l) requires exhaustion -- or "instead addresses
disability-based discrimination" -- in which case § 1415(l)'s rule
does not apply. 137 S. Ct. at 756. This distinction is grounded
in the "diverse means and ends of the statutes." Id. at 755.
While "the IDEA guarantees individually tailored educational
services, . . . Title II . . . promise[s] non-discriminatory
access to public institutions." Id. at 756.
Fry recognized that "[t]he same conduct might violate"
both the ADA and the IDEA. Id. "But still," it stated, "the
statutory differences . . . mean that a complaint brought [against
a school] under Title II . . . might" nevertheless be free from
9 Although we, following Fry, "sp[eak] in terms of the
'complaint,'" our conclusion, as our analysis will make clear,
would be the same if the inquiry were "claim-by-claim." Wellman
v. Butler Area Sch. Dist., 877 F.3d 125, 132 (6th Cir. 2017)
(noting ambiguity about whether Fry's inquiry is claim-specific).
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the IDEA's exhaustion requirement if it "seek[s] relief for simple
discrimination, irrespective of the IDEA's FAPE obligation." Id.
On inspection, the complaint here in essence contests the provision
of educational services secured by the IDEA; its gravamen is not
"simple discrimination."
On its surface, the complaint pleads disability-based
discrimination: it alleges that the defendants are violating the
ADA by unnecessarily segregating students with mental health
disabilities in a separate and unequal educational program. And
the complaint never uses the term FAPE. Yet, the crux of the
complaint is that the defendants failed to provide the educational
instruction and related services that the class plaintiffs need to
access an appropriate education in an appropriate environment.
That is not a claim of simple discrimination; it is a claim
"contesting the adequacy of a special education program." Id. at
755.
The complaint's gravamen is also revealed in the legal
allegations. The sole count of the complaint alleges that the
defendants are "[d]enying" students the "opportunity to receive
educational programs and services in the most integrated setting
appropriate to their needs." And Count I also alleges that the
school system is "[d]enying" students the "opportunity to . . .
benefit from educational services." These allegations track the
language of the ADA's regulations, see 28 C.F.R. §§ 35.130(b),
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(d), but they are nonetheless claims about obligations under the
IDEA to educate students in the regular classroom with their
nondisabled peers "[t]o the maximum extent appropriate," 20 U.S.C.
§ 1412(a)(5)(A), and to offer students an appropriate educational
benefit, see Endrew F., 137 S. Ct. at 1001. These allegations
are, in great part, simply another way of saying, in IDEA terms,
that the school system has not provided the necessary special
educational services to allow students to be educated in the LRE.
See, e.g., C.D. by & through M.D. v. Natick Pub. Sch. Dist., 924
F.3d 621, 630 (1st Cir. 2019). Indeed, here, the members of the
class were placed in SPDS by their IEPs, which, as we outlined
above, must provide an appropriate education and must comport with
the IDEA's LRE requirement.
Concretely, it is revealing that S.S. initially "invoked
the IDEA's formal procedures to handle [his] dispute." Fry, 137
S. Ct. at 757. The IDEA claims raised in S.S.'s due process
complaint and ultimately adjudicated by the BSEA concern the
adequacy of the special education services provided to S.S. and
the appropriateness of his placement. When S.S. filed this suit
in federal court, he dropped the IDEA claims, but the essence of
his grievance did not shift.
Nor do the facts here show "that the move to a courtroom
came from a late-acquired awareness that the school had fulfilled
its FAPE obligation and that the grievance involves something else
- 22 -
entirely." Id. To the contrary, the plaintiffs emphasize that
they do not concede that any of the unnamed class plaintiffs were
receiving a FAPE in the LRE. In Fry, the Frys and the school
district agreed that the district was providing a FAPE. Id. at
752. To the Supreme Court, this fact signaled that the Frys'
complaint sought relief for "infringe[ment] on [the child's] right
to equal access -- even if [the school's] actions complied in full
with the IDEA's requirements." Id. at 758. The plaintiffs' suit
cannot be similarly isolated from the special education services
guaranteed by the IDEA.
To reinforce this point that the relief plaintiffs seek
cannot be isolated from relief available under the IDEA, consider
an example. A student sues her school under an antidiscrimination
statute alleging that a teacher struck her "out of animus or
frustration." Id. at 756 n.9. Even assuming that the student has
an IEP and that striking the student could violate the IEP, the
"substance" of this suit "is unlikely to involve the adequacy of
special education -- and thus is unlikely to require exhaustion."
Id. "A telling indicator of that conclusion," Fry explained, is
that the same suit could be filed in contexts not covered by the
IDEA. Id. That is, "a child could file the same kind of suit
against an official at another public facility for inflicting such
physical abuse -- as could an adult subject to similar treatment
by a school official." Id.
- 23 -
The plaintiffs argue that a suit like theirs could be
filed in contexts where "there is no FAPE obligation." Id. at
756. They liken their suit to Olmstead, which involved ADA claims
of unnecessary segregation in medical institutions, not schools.
See 527 U.S. at 593. But the plausibility of bringing an Olmstead
suit against another public entity does not indicate that this
suit concerns simple discrimination. Olmstead claims concern
whether the defendant public entity provides proper "treatment,"
accommodations, and placements. Id. at 607. And in the school
context, a challenge to a student's treatment, services,
accommodations, and placements is a challenge to the
appropriateness of an educational program. See 20 U.S.C.
§ 1401(26) (describing the services that may compose an
educational program).
Other circuits have similarly concluded that complaints
"seek[] relief" available under the IDEA when alleging that
discriminatory treatment resulted in the denial of an adequate
education or in an inappropriate placement. For example, Wellman
v. Butler Area School District, 877 F.3d 125 (3d Cir. 2017),
required exhaustion of claims brought under the ADA, the
Rehabilitation Act, and § 1983 alleging that a school failed to
provide academic and other accommodating services to a student
after he sustained a head injury. Id. at 135. And claims that
schools isolated or separated disabled students have been
- 24 -
subjected to IDEA exhaustion where those claims allege that the
effects of the isolation or separation were educational.10 So,
exhaustion was required in J.M. v. Francis Howell School District,
850 F.3d 944 (8th Cir. 2017), of claims that a school's "use of
isolation and physical restraints failed to provide proper
'sufficient "supportive services" to permit [J.M.] to benefit from
. . . instruction,' and ultimately 'denied [J.M.] . . . the
benefits of public education.'" Id. at 949 (quoting Fry, 137 S.
Ct. at 748-49, 757).
Resisting the conclusion that their complaint seeks
relief that is available under the IDEA, the plaintiffs emphasize
that "the fact that a school has provided a FAPE in the LRE does
not preclude a claim of unlawful segregation under the ADA." And
they similarly state that the IDEA, unlike the ADA, does not
require equal educational opportunity. But the observation that
the statutes are "independent" and sometimes diverge does not help
the plaintiffs. More significant for our purposes is that the
statutes sometimes overlap.11 In this case, that overlap is such
10 The district court cases on which the plaintiff relies
are distinguishable at least on this ground: the alleged effects
of the physical abuse and isolation were not educational. See
Abraham P. v. Los Angeles Unified Sch. Dist., No. CV 17-3105, 2017
WL 4839071 (C.D. Cal. Oct. 5, 2017); GM ex rel Mason v. Lincoln
Cty. Sch. Dist., No. 6:16-CV-01739-JR, 2017 WL 2804996, (D. Or.
Apr. 21, 2017), report and recommendation adopted, No. 6:16-CV-
01739-JR, 2017 WL 2804949 (D. Or. June 28, 2017).
11 Tellingly, the plaintiffs accuse the district court of
- 25 -
that, in pleading what are on the surface ADA claims, the
plaintiffs' complaint in substance "seek[s] relief that is also
available under" the IDEA. We repeat that our conclusions about
exhaustion are relevant to our class certification and
associational standing analyses.
We address the plaintiffs' alternative argument that, in
an IDEA suit seeking systemic relief, no plaintiff need exhaust
because such exhaustion would be futile. The plaintiffs assert
that this class action alleges "systemic failures."
Other circuits have defined an exception to the IDEA's
exhaustion rule for "systemic" suits. But, to fall under that
exception, the alleged violations must be "truly systemic . . . in
the sense that the IDEA's basic goals are threatened on a system-
wide basis." Hoeft v. Tuscon Unified Sch. Dist., 967 F.2d 1298,
1305 (9th Cir. 1992). For example, the exhaustion requirement has
been relaxed or waived in suits alleging systemwide violations of
the processes for identifying and evaluating students with
disabilities. See DL v. D.C., 713 F.3d 120, 124 n.4 (D.C. Cir.
2013); J.G. v. Bd. of Educ. of the Rochester City Sch. Dist., 830
F.2d 444, 445 (2d Cir. 1987) (alleging systemwide failures at
"limit[ing]" or "restrict[ing]" the ADA's integration and equal
access mandates by requiring IDEA exhaustion here. Implicit in
this argument is an admission that a complaint alleging violations
of the ADA could in theory also allege violations of the FAPE and
LRE requirements.
- 26 -
multiple stages of the IDEA's processes for evaluating and placing
students in special education). Suits labeled "systemic" also
tend to "challenge[] policies or practices," or administrative
failures, "at the highest administrative level." Hoeft, 967 F.2d
at 1305; see also J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d
107, 114 (2d Cir. 2004); cf. Christopher W. v. Portsmouth Sch.
Comm., 877 F.2d 1089, 1095 (1st Cir. 1989) (stating that exhaustion
may not be required for review of such policies if they present "a
pure matter of law" (quoting Ezratty v. Comm. of P.R., 648 F.2d
770, 774 (1st Cir. 1981)).
The plaintiffs' claims are not "systemic" in the sense
contemplated by any such exception. A finding that one student
with a certain type and degree of mental health disability should
have been mainstreamed would not mean that another student with a
different type, or even just a different degree, of mental health
disability should have received the same services or been
mainstreamed. And, as we will explain further below in our
consideration of commonality, plaintiffs do not challenge an
identifiable, uniform system-wide policy "enforced at the highest
administrative level." Hoeft, 967 F.2d at 1305. In sum, even if
this court were to recognize a "systemic" claims exception to the
IDEA's exhaustion requirement, this case would not fall under such
an exception. So we need not, and do not, decide whether to adopt
such an exception in this circuit.
- 27 -
B. Class Certification
The district court denied class certification on both
Rule 23 and exhaustion grounds. We deal with both. First,
plaintiffs' failure to satisfy Rule 23(a)'s commonality
requirement provides a basis for affirming the denial of class
certification.12 See García-Rubiera v. Calderón, 570 F.3d 443,
460 (1st Cir. 2009) (noting that denials of class certification
are reviewed for abuse of discretion).
Rule 23(a)(2) makes the identification of "questions of
law or fact common to the class" a prerequisite for class
certification.13 Fed. R. Civ. P. 23(a)(2). A question is common
if it is "capable of classwide resolution -- which means that
12 We need not address plaintiffs' other arguments that the
district court erred in holding that the class failed Rule 23(a)'s
adequacy and typicality requirements and in implying that the
plaintiffs do not "seek relief appropriate under Rule 23(b)(2)."
13 Rule 23(a) provides:
(a) Prerequisites. One or more members of a
class may sue or be sued as representative
parties on behalf of all members only if:
(1) the class is so numerous that joinder
of all members is impracticable;
(2) there are questions of law or fact
common to the class;
(3) the claims or defenses of the
representative parties are typical of the
claims or defenses of the class; and
(4) the representative parties will
fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a).
- 28 -
determination of its truth or falsity will resolve an issue that
is central to the validity of each one of the claims in one stroke."
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Under
that definition, the Supreme Court explained in Wal-Mart, what
really "matters to class certification . . . is not the raising of
common 'questions'" as much as "the capacity of a classwide
proceeding to generate common answers apt to drive the resolution
of the litigation." Id. (alteration in original) (emphasis in
original) (quoting Richard A. Nagarenda, Class Certification in
the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).
Those common answers typically come in the form of "a particular
and sufficiently well-defined set of allegedly illegal policies
[or] practices" that work similar harm on the class plaintiffs.14
Parsons v. Ryan, 754 F.3d 657, 679 (9th Cir. 2014).
14 Plaintiffs agree with our basic account of the law. The
cases plaintiffs cite each involved a definable policy or practice
imposed by a single entity or a small group of actors; these
features facilitated the formulation of questions apt for class
resolution. See Parsons, 754 F.3d at 678 (seeing sufficient
commonality where "either each of the policies and practices is
unlawful as to every inmate or it is not"); Chi. Teachers Union,
Local No. 1 v. Bd. of Educ. of Chi., 797 F.3d 426, 440 (7th Cir.
2015) (finding requisite commonality where "uniform criteria and
[a] single-decision maker" allegedly unlawfully closed schools);
Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 114 (4th Cir.
2013), cert. denied, 134 S. Ct. 2871 (Mem.) (2014) (reversing
district court's denial of class certification because the
complaint alleged four company-wide policies that could be driving
the alleged discrimination); Yates v. Collier, 868 F.3d 354, 363
(5th Cir. 2017) (affirming class certification where district
court found that heat in a prison was so excessive that it was
- 29 -
Consistent with this standard, in class actions relating
to special education (which are usually brought under the IDEA),
plaintiffs can satisfy Rule 23(a)'s commonality requirement by
identifying a uniformly applied, official policy of the school
district, or an unofficial yet well-defined practice, that drives
the alleged violation.15 See, e.g., DL, 713 F.3d at 131; Jamie
S., 668 F.3d at 498.
So, for example, classes have been certified under the
IDEA to challenge: (1) a school district's policy, called "upper-
level transfer," of automatically moving students who had aged out
of autism support classrooms at one school to another school,
without involving the students' IEP teams, P.V. ex rel. Valentin
v. Sch. Dist. of Phila., 289 F.R.D. 227, 229 (E.D. Pa. 2013); and
(2) a district's policy of delaying the start of services offered
in IEPs, like speech therapy, until two weeks into the school year,
R. A-G ex rel. R.B. v. Buffalo City Sch. Dist. Bd. of Educ., No.
constitutionally impermissible as to all individuals). The same
is true for the case cited in their Rule 28(j) letter. See Brown
v. D.C., No. 17-7152, 2019 WL 2895992, at *1082 (D.C. Cir. July 5,
2019) (seeing sufficient commonality where "common proof will
establish whether the District's plan is 'comprehensive' and
'effectively working'"). Here, in contrast, as we are about to
explain, the plaintiffs have not identified a common policy or
practice driving the alleged wrongdoing.
15 The commonality standard might also be satisfied in some
cases by certifying sub-classes. See, e.g., Mark C. Weber, IDEA
Class Actions After Wal-Mart v. Dukes, 45 U. Tol. L. Rev. 471,
498-500 (2014). But that is not a viable option here.
- 30 -
12-CV-960S, 2013 WL 3354424, at *11 (W.D.N.Y. July 3, 2013), aff'd
sub nom. R.A.G. ex rel. R.B. v. Buffalo City Sch. Dist. Bd. of
Educ., 569 F. App'x 41 (2d Cir. 2014). In these examples, it is
easy to see how the policies anchor common questions -- does
"upper-leveling" or delaying the start of services violate the
IDEA? -- the answers to which could "resolve an issue that is
central to the validity of each one of the claims in one stroke."
Wal-Mart, 564 U.S. at 350. In each example, the harm to the class
members is (in part) that the policy precludes, across-the-board,
the individualized assessments and services that the IDEA requires
and that harm is likely to have similar causes (the policy) and
effects (denial of services appropriate to that individual
student) across the class. See R. A-G ex rel. R.B., 2013 WL
3354424, at *10 (relying on similar reasoning in certifying an
IDEA class).
Identification of an unofficial yet well-defined
practice (or set of practices) that is consistently and uniformly
applied might also satisfy the commonality prerequisite. See,
e.g., DL, 713 F.3d at 131 (defining such practices); Jamie S., 668
F.3d at 498 (similar). But, in a suit like this one challenging
hundreds of individualized decisions made in a decentralized
environment, satisfying the commonality requirement in this way
requires proof of some "common mode of exercising discretion."
Wal-Mart, 564 U.S. at 356.
- 31 -
The plaintiffs say that they have satisfied this
standard by offering "evidence that Springfield engages in common
practices of disability discrimination and that those practices
create harms common to the children of the proposed class."
Plaintiffs frame the "question[] of law . . . common to the
class," Fed. R. Civ. P. 23(a)(2), as: "whether Springfield
discriminates against the class, in violation of the ADA, by
failing to provide SBBS in neighborhood schools and instead placing
them in the inferior Public Day School where they are segregated
and deprived of educational opportunities equal to those provided
to their peers without a disability." Searching for an answer to
that question able to drive the resolution of the litigation,
plaintiffs point to the report of their expert, Dr. Peter Leone.
They characterize Dr. Leone's report as finding the following:
(1) "that Springfield made common (incorrect) assumptions about
the class members and offered them a common set of (insufficient)
services;" (2) "that all the children whose files he reviewed could
successfully attend neighborhood schools if appropriate services
were provided;" and (3) "that the quality of education in the
Public Day School -- for every child there -- was markedly inferior
to the quality of education the children in the potential class
would have received in neighborhood schools."
The problem with the plaintiffs' reliance on Dr. Leone's
report is that the report claims to find a pattern of legal harm
- 32 -
common to the class without identifying a particular driver -- "a
uniform policy or practice that affects all class members" -- of
that alleged harm. DL, 713 F.3d at 128 (explaining that this type
of evidence is insufficient to satisfy commonality). Similar
problems were fatal to the evidence presented by the proposed class
in Wal-Mart. There, the plaintiffs alleged that female employees
of Wal-Mart had "suffered a Title VII injury" apt for class
resolution, Wal-Mart, 564 U.S. at 350, but the Supreme Court held
that the commonality requirement was not satisfied because
plaintiffs had offered no "glue holding the alleged reasons" for
the alleged Title VII violations together, id. at 352.
Significantly, Wal-Mart managers were given discretion to make
employment decisions about individual employees. See id. at 343.
And the Supreme Court found it "quite unbelievable that all
managers would exercise their discretion in a common way without
some common direction." Id. at 355. Plaintiffs identified no
common, official policy or direction, and the Supreme Court held
that the plaintiffs' statistical and anecdotal evidence did not
prove a "common mode of exercising discretion." Id. at 356; see
also id. at 356-58.
Here, the plaintiffs do not, in Dr. Leone's report or
elsewhere, allege that a particular, official SPS policy violated
the ADA. Indeed, basic facts would belie a claim that SPS had a
uniform policy governing the placements and services of students
- 33 -
with behavioral disabilities: it is telling that SPS educates a
larger number of students with behavioral disabilities in
neighborhood schools than it does in SPDS. And it is revealing
that some neighborhood schools offer support programs for students
with behavioral disabilities. See S.S. II, 318 F.R.D. at 215
(describing the Social Behavioral Support (SEBS) program and the
Positive Behavioral Interventions and Supports (PBIS) program).
Nor does Dr. Leone's report claim that individual IEP
teams exercised discretion in a common manner. For his study, Dr.
Leone scrutinized the materials of twenty-four individual students
enrolled at SPDS and 130 IEPs of other individual SPS students
with behavioral difficulties. His study yielded no evidence that
SPS places students at SPDS using some method, such as boilerplate
IEPs, that would suggest a "common mode of exercising
discretion."16 Wal-Mart, 568 U.S. at 356.
Absent such a common driver, answering the plaintiffs'
suggested question -- does the failure to provide SBBS result in
16Dr. Leone's report also does not "raise any inference
that all the individual, discretionary" decisions that make up the
class violated the law. Wal-Mart, 564 U.S. at 358. Such an
inference might satisfy commonality. Id. Defendants moved to
exclude or limit Dr. Leone's testimony because "the methodologies
used and opinions offered by Leone suffer from a host of
methodological flaws." The district court declined to rule on
this motion, deeming it moot once class certification had been
denied. S.S. II, 318 F.R.D. at 224. Defendants have not appealed
this ruling, so we do not evaluate Dr. Leone's methodology.
Instead, we see Dr. Leone's evidence as insufficient in volume and
nature to raise such an inference.
- 34 -
violations of the ADA? -- requires individualized determinations
which defeat commonality. See Jamie S., 668 F.3d at 498
(concluding that the proposed common question "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"); see also DL, 713 F.3d at 128 (stating that "claims
appear to be based on multiple, disparate failures to comply with
the [District's] statutory . . . obligations rather than a truly
systemic policy or practice which affects them all" (first
alteration in original) (quoting Jamie S., 668 F.3d at 504-05)).
For one, whether a given student's placement at SPDS violates the
ADA by unlawfully segregating the student or by providing unequal
educational benefits will depend on that one student's unique
disability and needs. And whether the failure to provide SBBS is
the cause of any ADA violations will also depend on whether SBBS
would be effective for a particular child. Yet, importantly, as
the district court explained, "the term SBBS was created for this
litigation," and does not "refer[] to a single program that has
been formally studied and found effective for students like those
in the proposed class." S.S. II, 318 F.R.D. at 216. On the
evidence offered by plaintiffs, then, the question -- does the
failure to provide SBBS violate the ADA? -- is likely to yield
individualized rather than common answers. The district court
- 35 -
thus did not abuse its discretion in denying class certification
for lack of commonality.
Next, the district court held that all class members
must exhaust before forming a class, "[s]ince the members of the
proposed class may achieve a remedy through an IDEA administrative
hearing related to the claims raised here." S.S. II, 318 F.R.D.
at 222. We do not go so far. Plaintiffs argue that we should
adopt a rule that no one other than the class representative is
required to exhaust. The school system says that we should adopt
a rule that all class members must exhaust. We decline to do
either here.
As to the plaintiffs' argument, there are simply too
many factual variations, and the relief sought is too broad, to
say here that only the class representative must exhaust. 17
Plaintiffs do not say if any members of the putative class have
exhausted their IDEA remedies, save for S.S. Again, the putative
class is "[a]ll students with a mental health disability who are
or have been enrolled in SPS's Public Day School who are not being
educated in an SPS neighborhood school." Surely, relevant facts
17 Although M.W. has not exhausted, we nevertheless address
the scenario of a class representative who has exhausted because
S.S, who did exhaust, was the class representative at the time of
the district court's ruling. This moots the plaintiffs' argument
that "it would be appropriate to allow Plaintiff a reasonable
period of time to identify a different replacement class
representative" who has exhausted.
- 36 -
about the affected students -- such as the type and degree of
mental health disability -- differ substantially across this
group, and accordingly the administrative processes and results
might differ substantially as well. Adoption of the plaintiffs'
position that only a single class representative need exhaust
before going forward with a class action would undermine the
broader purposes of the exhaustion requirement. We must respect,
as a general matter, "the notion, grounded in deference to
Congress' delegation of authority to coordinate branches of
Government, that agencies, not the courts, ought to have primary
responsibility for the programs that Congress has charged them to
administer." McCarthy v. Madigan, 503 U.S. 140, 145 (1992),
superseded by statute on other grounds, as recognized in Booth v.
Churner, 532 U.S. 731, 740 (2001). On the facts pled and the
claims made and without more, we cannot accept the argument that
only the class representative need exhaust, which would render the
exhaustion requirement nearly meaningless here.
In several cases cited by the plaintiffs, the suits were
attempting to challenge what were characterized as a policy or
practice. See Handberry v. Thompson, 446 F.3d 335, 343 (2d Cir.
2006) ("IDEA exhaustion in the instant case is excused under the
futility exception for challenges addressing systemic issues.");
Hoeft, 967 F.2d at 1305 (considering whether violations were "truly
- 37 -
systemic"). 18 These cases do not stand for the much broader
proposition that when, as here, no common policy or practice is
plausibly challenged, only the class representative must exhaust.
Further, in Hoeft, the Ninth Circuit referred to "representative
plaintiffs," in the plural, as part of the prerequisite for "class-
wide judicial intervention." Id. at 1309. As to cases concerning
actions under Title VII, plaintiffs there challenged "any policy,
practice, custom or usage," Albemarle Paper Co. v. Moody, 422 U.S.
405, 408 (1975), or "employment practices," Lewis v. City of Chi.,
560 U.S. 205, 208 (2010). Further, Congress had expressly
"ratified this construction of [Title VII]" in the specific context
of the award of backpay to a class member who had not exhausted.
Albemarle Paper, 422 U.S. at 414 n.8. Albemarle did not create a
general rule for all class actions, across all statutory contexts;
the plaintiffs read this case far too broadly.
Our approach is similar to that of the Tenth Circuit in
Association for Community Living in Colorado v. Romer, 992 F.2d
1040 (10th Cir. 1993), which the plaintiffs cite. "[W]e do not
hold that every plaintiff in a class action must exhaust the IDEA's
18 The same is true for the published district court cases
cited by the plaintiffs, which they acknowledge address systemic
issues. See T.R. v. Sch. Dist. of Phila., 223 F. Supp. 3d 321,
330 n.7 (E.D. Pa. 2016) (addressing "systemic deficiencies");
L.M.P. ex rel. E.P. v. Sch. Bd. of Broward Cty., Fla., 516 F. Supp.
2d 1294, 1300 (S.D. Fla. 2007) (addressing alleged "systemic
violations").
- 38 -
administrative remedies" in every conceivable IDEA case. Id. at
1045 (emphasis added). Perhaps in some cases, exhaustion of some
number of truly representative claims would suffice for a class
action to go forward, presuming the other requirements for class
certification were met. And we think it possible that, on a
particular set of facts and claims, all class members would indeed
have to exhaust. Here, the plaintiffs do not offer us any argument
in this area except that it suffices for a single class
representative to exhaust. Accordingly, we deem as waived any
argument about the greater-than-one number and the type(s) of class
members who would need to exhaust for a proper class action on
these facts. See Landrau–Romero v. Banco Popular de P.R., 212
F.3d 607, 616 (1st Cir. 2000) ("It is well settled that arguments
not raised in an appellant's initial brief are waived."). We need
not venture further into this area, then, as we decide only the
case and arguments in front of us. Our conclusion that exhaustion
by a single plaintiff does not suffice here supports our holding
on the denial of class certification.
V.
We now turn to the appeals from the district court's
order granting judgment on the pleadings for Springfield and SPS
on DLC and PPAL's claims. Recall that the district court held
that DLC and PPL have standing but dismissed their claims for
failure to exhaust. See S.S. III, 332 F. Supp. 3d at 370. Our
- 39 -
review of the district court's order is de novo. See Doe v. Brown
Univ., 896 F.3d 127, 130 (1st Cir. 2018). We must rely only on
the facts in the complaint and view those in the light most
favorable to the plaintiffs. See id.
PPAL and DLC seek to bring this suit on behalf of "PPAL
and DLC constituents," whom the complaint alleges are harmed in
the same ways as S.S. and the proposed "Plaintiff class." The
complaint alleges that all children with mental health
disabilities are PPAL's constituents and that all individuals with
mental illnesses are DLC's constituents. PPAL and DLC thus seek
to sue on behalf of a group of students coextensive with the
proposed class (although their constituent groups are far broader
than that purported class).19 We affirm the district court's grant
of judgment on the pleadings for defendants on the ground that
PPAL and DLC lack standing.
To establish standing under Article III of the
Constitution, a plaintiff must show injury that can be fairly
traced to the challenged conduct and that is likely to be redressed
by a favorable decision. See, e.g., Mangual v. Rotger-Sabat, 317
F.3d 45, 56 (1st Cir. 2003). These requirements ensure that
plaintiffs have a stake in the outcome that is sufficiently
19 We do not engage in an analysis of whether there are any
possible divergent interests among the constituents which might
undermine standing.
- 40 -
concrete and personal to maintain a justiciable case or
controversy. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S.
555, 559-60 (1992).
"Even in the absence of injury to itself, an association
may have standing solely as the representative of its members."
Warth v. Seldin, 422 U.S. 490, 511 (1975). In such a suit, to
satisfy the Constitution's requirements, the association must show
that its members have an injury "that would make out a justiciable
case had the members brought suit." Id.; see also United Food &
Commercial Workers Union v. Brown Grp., Inc., 517 U.S. 544, 555–
56 (1996) (discussing the constitutional nature of this
requirement). But the inquiry does not end there. Prudential
concerns often bar a third party from suing on behalf of others
who choose not to sue.20 See, e.g., United Food, 517 U.S. at 556;
Flast v. Cohen, 392 U.S. 83, 99 n.20 (1968) ("[A] litigant will
ordinarily not be permitted to assert the rights of absent third
parties."). Representative standing is inappropriate for
prudential reasons, for example, if "the nature of the claim and
20 Although the Supreme Court has said that certain
prudential standing doctrines may be "in some tension with . . .
the principle that a federal court's obligation to hear and decide
cases within its jurisdiction is virtually unflagging," Lexmark
Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126
(2014) (internal quotation marks omitted) (revising the "zone of
interests" test and bar on "generalized grievances"), the Court's
cases discussing the prudential limits on third-party suits remain
good law.
- 41 -
of the relief sought" requires the participation of individual
members. Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333,
343 (1977).
The defendants do not dispute that two students
identified in the complaint, S.S. and N.D., are constituents of
PPAL and DLC who would have individual standing were they to bring
suit. The defendants argue that this showing is insufficient to
satisfy the Constitution's minimum requirements because PPAL and
DLC are constituent-based organizations, rather than associations
made up of members who have control over governance. 21 Even
assuming that DLC and PPAL can show a justiciable case or
controversy, they cannot bring suit for the prudential reasons we
are about to outline.
As a general prudential matter, the failure to exhaust
by members of the proposed class (i.e., those students who had not
gone through the IDEA's administrative procedures) cuts against
standing for both DLC and PPAL. Hundreds of students cannot sue
21We need not resolve this argument by defendants. We
note nonetheless that other circuits have rejected this argument
as to P & As like DLC, based on statutorily mandated structural
and governance features of P & As. See Or. Advocacy Ctr. v. Mink,
322 F.3d 1101, 1111-13 (9th Cir. 2003); Doe v. Stincer, 175 F.3d
879, 885-86 (11th Cir. 1999). Further, PPAL fails to plead in the
complaint that it has similar features. See Disability Advocates,
Inc. v. N.Y. Coal. for Quality Assisted Living, Inc., 675 F.3d
149, 159 (2d Cir. 2012) (concluding that the record did not
plausibly allege that an organization could be deemed a membership
organization for standing purposes).
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individually here without IDEA exhaustion, as we have explained
above, and so there is no clear reason why the organizations should
be able to essentially press those students' claims in the
aggregate without that exhaustion. Put another way, it would not
make sense to allow the organizations here to escape the exhaustion
requirement for the students they are purportedly representing.
Otherwise, associational standing in this type of suit would be
inconsistent with the Congressional requirement of exhaustion in
the IDEA, 20 U.S.C. § 1415(l), and indeed an easy way to circumvent
it, which we have cautioned against in a range of contexts, see,
e.g., Roman-Martinez v. Runyon, 100 F.3d 213, 220 (1st Cir. 1996)
("To hold otherwise would allow appellant to circumvent the
exhaustion requirement . . . ."). After all, in associational
standing we consider in part "administrative convenience and
efficiency," which could be undercut in allowing organizations to
make an end run around the IDEA's exhaustion requirement in a case
like this. United Food, 517 U.S. at 557.
We continue with DLC in particular. "[C]ongress may
abrogate" prudential "impediment[s]" to representative suits.
United Food, 517 U.S. at 558. And the plaintiffs argue that
Congress has done so here for DLC. In PAIMI, Congress authorized
P & As like DLC to "pursue administrative, legal, and other
appropriate remedies to ensure the protection of individuals with
mental illness." 42 U.S.C. § 10805(a)(1)(B). By authorizing it
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to sue on behalf of people with mental illness, DLC says, Congress
removed all prudential barriers to suits, including this one, that
DLC might bring on behalf of its constituents. We disagree.
We do not see in the text of this statute any indication
that Congress abrogated consideration of the prudential concerns
present here or that Congress meant to authorize DLC to bring this
particular type of suit. See Mo. Prot. & Advocacy Servs., Inc.
v. Carnahan, 499 F.3d 803, 810 n.7 (8th Cir. 2007) ("Congress has
not abrogated prudential standing requirements by expressly
authorizing this type of global challenge to [public] programs
absent the participation of individuals seeking redress of
specific injuries."). As discussed, DLC seeks to sue on behalf
of hundreds of children who have not chosen to sue or even to
pursue related administrative remedies. The complaint, as we have
explained in our analysis of exhaustion and commonality, concerns
multiple facets of each child's special education program. The
suit thus raises concerns about representativeness. And, in its
scale and complexity, the suit poses challenges of judicial
administration and efficiency not present in more run-of-the-mill
proceedings that Congress might have envisioned. 22 See United
22We agree that there are suits DLC can bring on behalf of
individuals with mental illness; we hold, more narrowly, that this
is not such a suit. Another provision buttresses this conclusion
about Congress's intent. PIAMI further requires that "[p]rior to
instituting any legal action in a Federal or State court on behalf
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Food, 517 U.S. at 557 (explaining that prudential bars to
representative standing sound in "administrative convenience and
efficiency").
Chief among these are problems of "individualized
proof." Int'l Union, UAW v. Brock, 477 U.S. 274, 287 (1986)
(quoting Warth, 422 U.S. at 515-16); see also Bano v. Union Carbide
Corp., 361 F.3d 696, 714 (2d Cir. 2004) (stating that an
"organization lacks standing to assert claims of injunctive relief
on behalf of its [constituents] where 'the fact and extent' of the
injury that gives rise to the claims for injunctive relief 'would
require individualized proof'" (quoting Warth, 422 U.S. at 515-
16)). For the reasons discussed in detail in the commonality
section, adjudication of the claims here would turn on facts
specific to each student, including unique features of each
student's unique disability, needs, services, and placement.
Efficient and successful judicial resolution of the claims would
thus require participation and cooperation by numerous students
of an individual with mental illness, an eligible [P & A] . . .
shall exhaust in a timely manner all administrative remedies where
appropriate." 42 U.S.C. § 10807(a). This provision contemplates
suits on behalf of "an individual with mental illness." And this
exhaustion requirement, phrased as it is in individual terms, would
be incompatible with authorizing P & As to bring suits like this
one on behalf of hundreds of individuals. That is especially true
given that, as we have already explained, this suit is subject to
the IDEA's exhaustion requirement.
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and parents. And, as we stated, representative standing is
inappropriate where such participation is necessary.
PAIMI's text does not authorize DLC to bring claims of
this scale and complexity on behalf of hundreds of constituents.
The same prudential considerations just outlined bar PPAL, which
does not claim congressional authorization to sue, from bringing
this suit.
VI.
Affirmed.
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