Jamie S. v. Milwaukee Public Schools

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-2741 & 09-3274
JAMIE S., on her own behalf and on behalf
of a class of similarly situated persons, et al.,
Plaintiffs-Appellees/
Cross-Appellants,
v.
M ILWAUKEE P UBLIC S CHOOLS, et al.,
Defendants-Appellants/
Cross-Appellees.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 928—Aaron E. Goodstein, Magistrate Judge.
A RGUED S EPTEMBER 7, 2010—D ECIDED F EBRUARY 3, 2012
Before F LAUM, R OVNER, and S YKES, Circuit Judges.
S YKES, Circuit Judge. We are asked in these consolidated
appeals to review multiple procedural and substantive
orders in a long-running class-action lawsuit seeking
2 Nos. 09-2741 & 09-3274
structural reform of special education in the Milwaukee
public school district. Under the Individuals with Dis-
abilities 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 Mil-
waukee Public Schools (“MPS”) and the Wisconsin De-
partment of Public Instruction (“DPI”) on behalf of them-
selves and a class of “all school age children with dis-
abilities 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 partic-
ipation in the IEP process. This narrower class definition
had the effect of focusing the case on alleged violations
Nos. 09-2741 & 09-3274 3
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 plain-
tiffs appealed are not final orders; nor are they the equiva-
lent of injunctions, so they do not qualify for immediate
appeal under 28 U.S.C. § 1292(a)(1). Moreover, the plain-
tiffs are attempting a flagrantly improper procedural
4 Nos. 09-2741 & 09-3274
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 injunc-
tion 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,
131 S. Ct. 2541 (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 statu-
tory 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.”
Nos. 09-2741 & 09-3274 5
20 U.S.C. § 1412(a)(1)(A). Complying with this require-
ment is a complex and inherently child-specific under-
taking. 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 W IS. S TAT. § 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 ap-
propriate public education, the IDEA also requires
States to provide various procedural safeguards to stu-
1
The statutory time frame has since been shortened to
60 days. See W IS . S TAT § 115.78(3)(a).
6 Nos. 09-2741 & 09-3274
dents 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 educa-
tional agency. Id. § 1415(g). Finally, a still-aggrieved
parent may file a civil action seeking review of the deci-
sion. 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 noncom-
pliance, 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. W IS. S TAT. § 115.90.
Nos. 09-2741 & 09-3274 7
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 viola-
tions. 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 disabili-
ties 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
notwithstanding their failure to exhaust administrative
remedies.
To that end, the judge divided the proposed class
into two categories: those having “pre-determination
claims” and those having “post-determination claims.”
These were terms of the court’s own creation and referred
to IDEA violations arising before an IEP meeting takes
place and IDEA violations arising after an IEP takes
place. Although the IDEA generally requires plaintiffs
to use the administrative dispute-resolution process
before filing suit, the judge thought that exhaustion of
8 Nos. 09-2741 & 09-3274
administrative remedies for “pre-determination claims”
would be futile because parents of children with these
kinds of claims might not know they have a right to
administrative review. For this reason the judge
excused, on a class-wide basis, the failure to exhaust
administrative remedies for pre-determination claims.
On the other hand, the judge thought that parents who
had attended an IEP meeting would understand their
right to administrative review. Accordingly, the judge
held that the administrative system is adequate for post-
determination claims and declined to excuse the exhaus-
tion requirement for this category.
This approach meant the plaintiffs could litigate
their pre-determination claims as a class, but their post-
determination claims had to proceed individually (or
not at all if administrative remedies had not been ex-
hausted). Accordingly, the judge invited the plaintiffs to
try again at class certification using the court’s pre-
determination/post-determination distinction. After two
more rounds of briefing, the judge settled on his own
class definition. On November 14, 2003, the court entered
an order certifying the following class:
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.
Following class certification and several years of dis-
covery, the court conducted a two-phase bench trial on
Nos. 09-2741 & 09-3274 9
liability. In Phase I the court heard testimony from
experts regarding MPS’s and DPI’s compliance with the
IDEA. Satisfied that a full trial was warranted, the court
conducted lengthy Phase II proceedings in which the
parties presented further evidence regarding the basis for
the experts’ opinions. In a written decision issued on
September 11, 2007, the court found both MPS and DPI
liable for “systemic” violations of the child-find require-
ments of the IDEA. Specifically, the court found that
from September 2000 to June 2005, MPS committed the
following IDEA violations on a system-wide basis: it
failed to identify children with suspected disabilities
and refer them for evaluation within the statutory 90-
day time frame; improperly extended the 90-day time
frame; imposed suspensions in a way that frustrated
disability referrals; and failed to ensure that parents
attended IEP meetings. The court also found that DPI
failed in its oversight duties.
The court based its liability findings primarily on
the opinion testimony of Dr. Diana Rogers-Adkinson,
a special-education professor at the University of
Wisconsin-Whitewater who served as the plaintiffs’
primary expert. She reviewed approximately 200 MPS
student files but engaged in no statistical analysis or
other accepted analytical method to determine whether
any particular violation of the IDEA could properly be
characterized as “systemic.” Instead, she based her
opinion entirely on “patterns” or “trends” she observed
in the student files. During the time period in question,
MPS annually enrolled 95,000 to 97,000 students, ap-
proximately 16,000 of whom were eligible for special
10 Nos. 09-2741 & 09-3274
education every year. Dr. Rogers-Adkinson did not
explain how a review of 200 student files could yield
a conclusion that MPS was in systemic violation of the
IDEA during the relevant five-year period.
Indeed, the court’s 64-page liability order does not
contain any analysis subjecting Dr. Rogers-Adkinson’s
testimony to the standards applicable to expert witnesses
under Rule 702 of the Federal Rules of Evidence. To the
contrary, the court expressly acknowledged that her
opinion was not based on any scientific method but
instead rested on what she loosely termed a “qualitative
analysis” of the student files she reviewed. After iden-
tifying “certain patterns” and “trends” in the student files,
Dr. Rogers-Adkinson simply “projected” the patterns and
trends “over the entire MPS district” and said she
“believe[d] . . . the same trends would appear if a
scientific or true random sampling of files had been
conducted.” Without mentioning the requirements of
Rule 702, the court summarily accepted Dr. Rogers-
Adkinson’s methodology as an adequate factual founda-
tion for finding MPS in systemic violation of the IDEA:
“The court accepts the qualitative analysis methodology
used by Dr. Rogers-Adkinson. The court further
accepts her Child Find trends or patterns and applies
them system wide to MPS.”
In response to the court’s liability order, DPI entered
into settlement negotiations with the plaintiff class and
eventually presented a settlement agreement to the
court for approval. We will describe it in more detail
later, but in brief, DPI agreed to order MPS to meet
Nos. 09-2741 & 09-3274 11
various compliance benchmarks within a certain time
frame and to pay for an independent monitor to oversee
MPS’s performance. In exchange the plaintiff class dis-
missed its claims against DPI and gave away the rights
of class members to bring representative suits against
DPI for IDEA violations predating the agreement. Over
MPS’s vigorous objection, the district court approved
the settlement.
The case then proceeded to the remedial phase of the
trial against MPS alone. The court heard evidence
and argument on possible remedies, and on November 17,
2008, ordered the parties to submit posttrial briefs re-
garding their final remedial proposals. This order
included two pages of detailed questions, the answers to
which informed the content of the parties’ final pro-
posals. For example, the court directed the parties to
address how putative members of the class were to be
evaluated for inclusion in the class; how individual
liability and compensatory-education determinations
should be made; which party should prevail when the
evidence is inconclusive; how disputes between the
parties should be resolved; and who should pay for the
dispute-resolution process. The parties submitted briefs
outlining their preferred remedies and responded to
each other’s proposal.
On June 9, 2009, the court issued a lengthy order setting
forth an elaborate court-monitored remedial scheme. The
court ordered both general and specific class notice
designed to reach the parent or guardian of as many
potential class members as possible. Recipients would
12 Nos. 09-2741 & 09-3274
identify their children as potential class members by
submitting response forms that would initiate a process
of professional evaluation to determine whether or not
the child was a member of the class. The court ordered
the creation of a “hybrid” IEP team, closely resembling
the IEP team required by the IDEA but including a court-
appointed independent monitor to oversee its operation.
The hybrid IEP team was charged with evaluating the
responses to the class notice to determine how to
proceed in each individual case. In some cases it might be
obvious that the child is not disabled, and no further
evaluation would be required. In others a professional
evaluation would be required to determine whether the
child has a disability. In others a full IEP meeting
would be needed to determine whether the child requires
special-education services in order to receive a free ap-
propriate public education. And finally, in some cases
the child might be entitled to compensatory education—
a remedy available under the IDEA—to compensate for
a past denial of a free appropriate public education.
The hybrid IEP team was given the authority to grant
compensatory-education awards, subject to the court’s
oversight. The estimated cost to MPS to implement this
remedy: between $11.5 and $40 million, depending on
how many parents responded and the extent of the com-
pensatory education awarded to qualifying children.
The June 9 remedial order also rejected some of the
remedial proposals made by the parties. For example, the
judge rejected the plaintiffs’ request for a segregated
compensatory-education fund and for “parent advocates”
Nos. 09-2741 & 09-3274 13
separate from the independent monitor and denied
MPS’s request for a binding-arbitration system to
resolve disputes. Finally, the court ordered the parties to
negotiate regarding the independent monitor and the
form of the class notice. If they could not agree, the
parties were to submit nominations for the independent
monitor and a proposed class-notice form.
MPS appealed the June 9 remedial order and also
sought review of the court’s class-certification decision,
the liability order, and the court’s order approving the
DPI settlement. The plaintiffs sought review of the
district court’s rejection of their original class definition
but missed the deadline for filing a cross-appeal. In the
meantime the parties could not agree on an independent
monitor or class-notice form, so they submitted competing
proposals on these two follow-on matters.
On August 19, 2009, the court entered an order naming
the independent monitor and charging her with the
responsibility of “implement[ing] the remedy set forth
within” the June 9 order. This brief order also summarizes
the independent monitor’s duties, explains how she is to
be paid, and provides some detail about how she would
interact with the parties and the court. In a second order
issued on August 19, the court approved the class-
notice form and explained how it should be distributed.
The plaintiffs appealed the August 19 orders, but they
have no quarrel with the substance of these decisions. That
is, they do not disagree with the judge’s choice of an
independent monitor or the form of the class notice.
Instead, they ask us to review the denial of their original
class-certification motion.
14 Nos. 09-2741 & 09-3274
Both sides moved to dismiss the other’s appeal for
lack of jurisdiction. MPS also moved to stay the June 9
remedial order pending resolution of its appeal. We
consolidated the cases, stayed the remedial order, and
asked the parties to brief the jurisdictional questions
along with the merits.
II. Discussion
These consolidated appeals raise important procedural
and substantive issues regarding the suitability of IDEA
claims for class certification, the kind and degree of
evidence necessary to find a local school district in sys-
temic violation of the IDEA, and the propriety of a federal-
court takeover of a school district’s special-education
program as a remedy for individual IDEA violations.
We begin, however, with jurisdictional issues.
A. Jurisdiction
Both appeals claim appellate jurisdiction under 28
U.S.C. § 1292(a)(1), which permits immediate appeal
from an interlocutory order “granting, continuing, modi-
fying, refusing or dissolving” an injunction. Section
1292(a)(1) “creates an exception from the long-established
policy against piecemeal appeals,” but “[t]he exception is
a narrow one and is keyed to the ‘need to permit
litigants to effectually challenge interlocutory orders of
serious, perhaps irreparable, consequence.’ ” Gardner v.
Westinghouse Broad. Co., 437 U.S. 478, 480 (1978) (quoting
Balt. Contractors v. Bodinger, 348 U.S. 176, 181 (1955)).
Nos. 09-2741 & 09-3274 15
Accordingly, mandatory interlocutory orders are con-
sidered injunctions reviewable under § 1292(a)(1) “only
if they effectively grant or withhold the relief sought on
the merits and affect one party’s ability to obtain such
relief in a way that cannot be rectified by a later appeal
(that is, ‘irreparably’).” In re City of Springfield, Ill., 818 F.2d
565, 567 (7th Cir. 1987) (citing Stringfellow v. Concerned
Neighbors in Action, 480 U.S. 370, 377-79 (1987), and Carson
v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)). Stated differ-
ently, “[a]n order . . . is properly characterized as an
‘injunction’ when it substantially and obviously alters
the parties’ pre-existing legal relationship.” Jones-El v.
Berge, 374 F.3d 541, 544 (7th Cir. 2004) (citing Gautreaux
v. Chi. Hous. Auth., 178 F.3d 951, 958 (7th Cir. 1999)).
The parties agree that by ordering the creation of
the hybrid IEP system, the district court granted an
injunction within the meaning of § 1292(a)(1), but they
disagree about which order achieved that result. MPS
appealed from the June 9 remedial order and contends
that this order is the functional equivalent of an injunc-
tion. The plaintiffs argue that MPS’s appeal was prema-
ture. They maintain that the remedial order did not fully
“ripen” into an appealable injunction until the district
court appointed the independent monitor and approved
the class notice on August 19.
The plaintiffs direct our attention to Sherpell v. Humnoke
School District No. 5, 814 F.2d 538, 539-40 (8th Cir. 1987),
and Groseclose v. Dutton, 788 F.2d 356, 361 (6th Cir. 1986),
both of which held that an order requiring parties to
submit proposed remedial plans is generally not an
16 Nos. 09-2741 & 09-3274
injunction for purposes of § 1292(a)(1). In our decision
in Springfield, we agreed with that general principle:
“[O]nly directives awarding the relief plaintiffs seek or
putting the case on a collision course with that relief are
‘injunctions’ under § 1292(a)(1).” 818 F.2d at 568. The
plaintiffs insist that the June 9 order was merely an
order to formulate proposals for the independent
monitor and class notice and that it was only after the
August 19 orders appointing the monitor and approving
the class notice that the hybrid IEP system was truly
in place.
This characterization of the June 9 order is disingen-
uous. It’s true that the court directed the parties
to consult with each other about the identity of the inde-
pendent monitor and the form of the class notice, and
to submit proposals if they could not agree. But the bulk
of the court’s 71-page order was devoted to evaluating
the comprehensive remedial proposals the parties had
already submitted and explaining the elaborate remedial
scheme the court had crafted. The order established in
fine detail the remedial program MPS was required to
implement—a scheme designed to produce indi-
vidualized compensatory-education awards, the ulti-
mate relief sought in the case.
Although the June 9 order left the identity of the inde-
pendent monitor and the content of the class notice to
be worked out by the parties, MPS’s obligations were
not contingent on those details. Whoever the monitor, and
whatever the form of the class notice, the June 9 order
required MPS to create a massive identification and
Nos. 09-2741 & 09-3274 17
evaluation system consuming significant educational
resources and costing millions of dollars. Even if the
hybrid IEP system could not begin operating until the
independent monitor was appointed and the class
notice was approved, the June 9 order gave the plaintiffs
the relief they were seeking and substantially altered
MPS’s legal rights. The remedial order is the functional
equivalent of an injunction for purposes of § 1292(a)(1). See
Springfield, 818 F.2d at 568. We have jurisdiction over
MPS’s appeal; the plaintiffs’ motion to dismiss is denied.
In contrast, the plaintiffs’ jurisdictional argument in
support of their own appeal is at best inconsistent and at
worst incoherent. The plaintiffs initially tried to cross-
appeal from the June 9 remedial order, seeking review
of the denial of their original class-certification mo-
tion. But they missed the filing deadline, so they tried a
different route to get their preferred class definition
before this court: They appealed the August 19 orders
appointing the independent monitor and approving
the class notice, insisting that these orders are the “injunc-
tion” for purposes of § 1292(a)(1). They are not. Unlike
the June 9 order, the August 19 orders do not grant relief
on the merits or substantively alter the parties’ legal
relationship. See Jones-El, 374 F.3d at 544; Springfield,
818 F.2d at 567. They do not require the parties to do
or refrain from doing anything at all. The district
court had already announced the remedial scheme in
the June 9 order, including the appointment of an inde-
pendent monitor and the requirement of general and
specific class notice. All that remained was to decide the
identity of the monitor and approve the form of the
18 Nos. 09-2741 & 09-3274
class notice. These details were surely important, but
resolving them did not amount to an appealable injunc-
tion. Cf. Jones-El, 374 F.3d at 544 (“[A]n unappealable
order is one that interprets or clarifies a prior order and
does not create new rights or obligations independently
enforceable through a contempt action.”).
Moreover, the plaintiffs are plainly engaged in a boot-
strapping procedural maneuver. They have no com-
plaint about the independent monitor or the class notice,
though they appealed those decisions; rather, they want
us to review the denial of their original class-certifica-
tion motion. This is an improper attempt to revive
their untimely cross-appeal from the June 9 remedial
order. We dismiss the plaintiffs’ appeal.
Finally, MPS seeks review of the district court’s orders
certifying the class, finding liability, and approving
DPI’s settlement. Ordinarily these interlocutory orders
would be unappealable, but MPS argues that the doc-
trine of pendent appellate jurisdiction applies. In Swint
v. Chambers County Commission, 514 U.S. 35, 51 (1995),
the Supreme Court ” ‘set out a general rule against exer-
cising pendent jurisdiction over related rulings.’ ”
McKinney v. Duplain, 463 F.3d 679, 692 (7th Cir. 2006)
(quoting Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1092
(9th Cir. 1998)). Pendent appellate jurisdiction “may be
invoked ‘only if there are compelling reasons for not
deferring the appeal of the former order to the end of the
lawsuit.’ ” Montano v. City of Chicago, 375 F.3d 593, 599
(7th Cir. 2004) (quoting U.S. for Use of Valders Stone &
Marble, Inc. v. C-Way Constr. Co., 909 F.2d 259, 262 (7th
Nos. 09-2741 & 09-3274 19
Cir. 1990)). We may “review an otherwise unappealable
interlocutory order if it is ‘inextricably intertwined
with an appealable one.’ ” Research Automation, Inc. v.
Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 977 (7th
Cir. 2010) (quoting Montano, 375 F.3d at 599). In other
words, ” ‘it must be practically indispensable that we
address the merits of the unappealable order in order to
resolve the properly-taken appeal.’ ” Montano, 375 F.3d
at 600 (quoting Valders Stone & Marble, 909 F.2d at 262).
If an otherwise unappealable order is sufficiently inter-
twined to permit pendent appellate jurisdiction, we
may exercise our discretion to review it. Jones v. InfoCure
Corp., 310 F.3d 529, 536-37 (7th Cir. 2002).
The decision to exercise pendent appellate jurisdiction
is inherently case specific. See Montano, 375 F.3d at 600.
Here, our review of the appealable order—the June 9 order
imposing the remedial scheme—simply cannot be con-
ducted in isolation from the earlier orders. The June 9
order imposes a remedy for MPS’s liability to the
plaintiff class; deferring review of the class-certification
and liability decisions until after final judgment would
make our present review of the remedial scheme mean-
ingless. As this case comes to us, it is “practically indis-
pensable” that we review the class-certification and
liability orders now “in order to resolve the properly-
taken appeal.” Id.; see also Asset Allocation & Mgmt. Co. v.
W. Emp’rs Ins. Co., 892 F.2d 566, 569 (7th Cir. 1989)
(“[A]ny ruling on which the validity of the [appealable
order] turns is reviewable . . . .”).
The court’s order approving DPI’s settlement presents
a closer question, but viewing the case as a whole, we
20 Nos. 09-2741 & 09-3274
think this order is so closely linked with the others that
it cannot be separated. Because we vacate the class certifi-
cation, declining to exercise pendent jurisdiction over
the order approving DPI’s settlement would create the
strangely anomalous result of a free-standing district
court order approving and incorporating a settlement
between a defendant and a class that no longer exists.
Furthermore, with essentially the entire case already
before us, deferring appellate review of the settlement
would create rather than prevent piecemeal appeals; this
too favors pendent appellate review. See Greenwell v.
Aztar Ind. Gaming Corp., 268 F.3d 486, 491 (7th Cir. 2001).
B. Class Certification
“The class action is ‘an exception to the usual rule
that litigation is conducted by and on behalf of the indi-
vidual named parties only.’ ” Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541, 2550 (2011) (quoting Califano v.
Yamasaki, 442 U.S. 682, 700-01 (1979)). A district court
may certify a case for class-action treatment only if it
satisfies the four requirements of Federal Rule of Civil
Procedure 23(a)—numerosity, commonality, typicality,
and adequacy of representation—and one of the condi-
tions of Rule 23(b). See F ED. R. C IV. P. 23. In addition, a
class must be sufficiently definite that its members
are ascertainable. Oshana v. Coca-Cola Co., 472 F.3d 506,
513 (7th Cir. 2006); see Simer v. Rios, 661 F.2d 655, 669
(7th Cir. 1981) (“It is axiomatic that for a class action
to be certified a ‘class’ must exist.”).
Nos. 09-2741 & 09-3274 21
Class certification is appropriate only if, “after a
rigorous analysis,” the trial court is satisfied that the
requirements of Rule 23 have been met. Wal-Mart, 131
S. Ct. at 2551 (quotation marks omitted). “Frequently,
that ‘rigorous analysis’ will entail some overlap with the
merits of the plaintiff’s underlying claim. That cannot be
helped.” Id.; see also Kartman v. State Farm Mut. Auto. Ins.
Co., 634 F.3d 883, 890 n.6 (7th Cir. 2011) (citing Szabo v.
Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001)).
We review the district court’s class-certification order
for abuse of discretion, but legal determinations made
in support of the decision are reviewed de novo. Andrews
v. Chevy Chase Bank, 545 F.3d 570, 573 (7th Cir. 2008).
There are several basic flaws in the district court’s class-
certification decision. First, the class is both fatally indefi-
nite and lacks the commonality required by Rule 23(a)(2).
Furthermore, although the case was certified as a class
action for injunctive and declaratory relief under
Rule 23(b)(2), final injunctive or corresponding de-
claratory relief cannot be ordered on a class-wide basis,
as required for a Rule 23(b)(2) class.
We begin with the terms of the class definition, some-
thing over which the parties and the judge struggled
mightily. The plaintiffs initially sought to represent a
class so broad that it effectively included all students
eligible for special education and related services from
MPS. The original proposed class thus joined together
all Milwaukee-area disabled students, regardless of
differences in their disabilities or educational situations,
whose procedural or substantive rights under the IDEA
22 Nos. 09-2741 & 09-3274
were violated in any way. The district court properly
rejected this sweeping class definition, but not for the
obvious reason that it sought to lump together thousands
of disparate plaintiffs with widely varying individual
claims. Rather, the court rejected the plaintiffs’ proposed
class definition based on difficulties associated with the
IDEA’s requirement that administrative remedies be
exhausted before filing suit.
The district court was justifiably concerned about the
administrative-exhaustion requirement. But the court’s
effort to resolve the problem was misguided. The court
sua sponte divided the class into two categories: those
with “pre-determination claims” and those with “post-
determination claims.” These designations were ap-
parently meant to categorize individual violations of the
IDEA, separating those that occurred prior to an IEP
meeting from those that occurred after an IEP meeting.
The judge thought this categorization made it possible
to excuse the exhaustion requirement for “pre-deter-
mination claims” and allow these alleged IDEA viola-
tions to be litigated on a class-wide basis, while
enforcing the exhaustion requirement for “post-determina-
tion claims,” excluding them from class-action treatment.
There is reason to doubt the propriety of this approach,
but for present purposes we will address it on its own
terms. Ordinarily, a plaintiff may not file an IDEA
lawsuit without first exhausting available administrative
remedies. See 20 U.S.C. § 1415; Honig v. Doe, 484 U.S. 305,
326-27 (1988); Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68,
98 F.3d 989, 991 (7th Cir. 1996). However, exhaustion may
Nos. 09-2741 & 09-3274 23
be excused if administrative review would be futile or
inadequate. Honig, 484 U.S. at 326-27. The district court
applied this exception to all pre-determination claims,
reasoning that the parents of disabled students might
not be fully aware of the right to administrative
remedies prior to a properly constructed IEP meeting,
making exhaustion an exercise in futility.2 Once an IEP
meeting is convened, however, the court thought that
2
We question this reasoning. Wisconsin law requires that
parents be notified of their administrative-review rights when
a child is initially referred for evaluation, well before an IEP
meeting occurs. W IS . S TAT . § 115.792(1)(b). For this reason
the defendants argued below that if exhaustion was to be
excused on a class-wide basis for violations occurring before
parents received notice of their right to administrative
remedies, it should be excused for pre-referral claims only.
The district court rejected this argument, perceiving “too
great” a “potential of having parties unwittingly forgo their
rights.” Even when notice of administrative remedies was
provided, the judge was “not sanguine with the fact that this
information is always properly delivered or that the parents
have a full understanding of the information.” Let’s assume
for the sake of argument that it was appropriate to waive the
exhaustion requirement on a class-wide basis on the rationale
that parents “lacked full understanding” of their rights. The
plaintiffs, as the proponents of the futility exception to
the exhaustion requirement, would bear the burden of estab-
lishing this lack of understanding. See Polera v. Bd. of Educ.
of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 488 n.8 (2d
Cir. 2002). That burden is not satisfied by the district court’s
unsupported intuition that notice might not always be
“properly delivered” or that parents might not always under-
stand it.
24 Nos. 09-2741 & 09-3274
parents would sufficiently understand their rights,
making administrative review adequate and keeping
the IDEA’s exhaustion requirement intact for post-determi-
nation claims. On this rationale the court was willing
to certify a class defined to include only pre-determina-
tion claims, for which it excused the plaintiffs’ failure
to exhaust administrative remedies.3
3
In settling on the pre-determination/post-determination
line of demarcation, the district court relied heavily on the
concept of “systemic” IDEA violations developed by other
circuits, most prominently the Ninth Circuit in Doe ex rel.
Brockhuis v. Arizona Department of Education, 111 F.3d 678, 681
(9th Cir. 1997). Doe discussed the distinction between “systemic”
and “nonsystemic” IDEA claims in the context of deciding
whether to apply the futility exception to excuse the plaintiffs’
failure to exhaust administrative remedies prior to bringing a
class-action suit. Here, however, the district court applied the
Ninth Circuit’s definition of a “systemic” IDEA violation in
determining MPS’s liability, using it as the substantive legal
standard for evaluating whether MPS was in noncompliance
with the IDEA system-wide. We question whether Doe’s
definition of “systemic” IDEA noncompliance has any value
outside its specific context—that is, outside the context of
deciding as a threshold matter in a proposed IDEA class action
whether to excuse the failure to exhaust administrative reme-
dies. And even in that context, the line drawn in Doe between
systemic and nonsystemic violations for purposes of the
exhaustion requirement seems rather arbitrary. While some
IDEA violations may implicate the structure of a school
district’s special-education program and may not be
remediable through ordinary administrative review, it does
not necessarily follow that administrative review is futile or
(continued...)
Nos. 09-2741 & 09-3274 25
The court thus certified a class of its own creation:
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.
In other words, the certified class combined all disabled
students eligible for special education from MPS who
were not identified as potentially eligible for services, not
timely referred for evaluation after identification, not
timely evaluated after referral, not evaluated in a
properly constituted IEP meeting, or whose parents did
not (for whatever reason) attend an otherwise proper
IEP meeting. The court made it clear that students
who suffered a pre-determination violation but have
since received a proper IEP meeting—for example, stu-
dents who received a late IEP meeting—are also in-
cluded in the class.
One immediately obvious defect in this class is its
indefiniteness. A significant segment of the class (of
unknown and unknowable size) comprises disabled
students who may have been eligible for special education
3
(...continued)
inadequate for all violations that are alleged to be “systemic.”
However, because our decision rests on other flaws in the class-
certification decision and does not reach the substance of the
court’s liability decision, we neither accept nor reject the
Ninth Circuit’s reasoning in Doe.
26 Nos. 09-2741 & 09-3274
but were not identified and remain unidentified. There is
no question that MPS has a legal obligation under the
IDEA to seek out disabled students and refer for evalua-
tion those it reasonably believes are disabled and in
need of special education. See 20 U.S.C. § 1412(a)(3)(A);
W IS. S TAT. § 115.77(1m)(a). The failure to properly
identify a disabled student can itself be a violation of
the IDEA if the failure results in the denial of a free ap-
propriate public education to a qualifying child with a
disability. Cf. Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484,
2495 (2009) (“A reading of the Act that left parents
without an adequate remedy when a school district
unreasonably failed to identify a child with disabilities
would not comport with Congress’ acknowledgment of
the paramount importance of properly identifying each
child eligible for services.”). The problem with a class
of potentially eligible but unidentified students is not
that their rights might not been violated but that the
relevant criteria for class membership are unknown.
By what standard is class membership to be determined?
How is the court to decide whether there was reason
to believe in 2000-2005 that a presently unidentified child
was potentially eligible for special-education services
from MPS? It’s not hard to see how this class lacks the
definiteness required for class certification; there is no
way to know or readily ascertain who is a member of the
class.4 See Oshana, 472 F.3d at 513; Simer, 661 F.2d at 669.
4
Typical suits for child-find-violations focus on a school
district’s failure to timely identify a qualifying disability in an
identified student, e.g., Richard S. v. Wissahickon Sch. Dist., 334
(continued...)
Nos. 09-2741 & 09-3274 27
Of course, unidentified but potentially eligible disabled
students are defined not only by having not been
identified but also by having a disability. If we could
easily identify all Milwaukee students with disabilities
during the relevant time period, perhaps we could cross-
check that list against a list of known disabled students
to determine which students MPS failed to identify and
refer for an IEP evaluation. But identifying disabled
students who might be eligible for special-education
services is a complex, highly individualized task, and
cannot be reduced to the application of a set of simple,
objective criteria. Every step of the child-find inquiry
and IEP process under the IDEA is child specific and
requires the application of trained and particularized
professional educational judgment. In short, a class of
unidentified but potentially IDEA-eligible disabled stu-
dents is inherently too indefinite to be certified.
This conclusion draws support from Adashunas v.
Negley, 626 F.2d 600 (7th Cir. 1980). The plaintiffs in
Adashunas alleged widespread violations of the child-
find requirements in the IDEA’s predecessor statute
and proposed a class consisting of “all children within
4
(...continued)
F. App’x 508, 510 (3d Cir. 2009), or a school district’s failure
to identify a disability despite a parental referral, e.g., Forest
Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2488 (2009). In both
situations the identity of the student is known. The class
here includes all students not properly identified as
potentially eligible for special education, the vast majority of
whom are not individually known.
28 Nos. 09-2741 & 09-3274
the State of Indiana entitled to a public education
who have learning disabilities who are not properly
identified and/or who are not receiving such special
instruction as to guarantee them of minimally adequate
education.” Id. at 601. We noted the practical difficulty
in defining the class in this way: “How does one
identify class members consisting of persons not identi-
fied?” Id. at 603. In theory such a class might make sense
if the process of identifying unknown class members
was relatively simple. But because the task of identifying
learning-disabled children is a “long, arduous process,”
and the proposed class of plaintiffs was “so highly
diverse and so difficult to identify,” we held that the
class was “not adequately defined or nearly ascertain-
able” and the class action could not be maintained. Id. at
603-04 (citing DeBremaecker v. Short, 433 F.2d 733, 734
(5th Cir. 1970)). The same is true here.
The plaintiffs insist that because the class is defined
by reference to MPS’s illegal actions—that is, by MPS’s
failure to comply with the IDEA—the defect of indefinite-
ness may be forgiven. For this principle they rely on
Alliance to End Repression v. Rochford, 565 F.2d 975, 977-
78 (7th Cir. 1977), in which we upheld the certification
of two plaintiff classes consisting of organizations and
persons in Chicago who had been unconstitutionally
monitored and harassed by various municipal and
federal defendants in retaliation for exercising their
First Amendment rights. The defendants in Rochford
argued that this class—potentially large in scope and
with no ready means of identifying its members—was
Nos. 09-2741 & 09-3274 29
too indefinite to be certified. We concluded that “a
class that satisfies all of the other requirements of
Rule 23 will not be rejected as indefinite when its con-
tours are defined by the defendants’ own conduct.” Id.
at 978.
Rochford’s tolerance of a wildly indefinite class defini-
tion under Rule 23 is no longer the norm. We have
noted that “[Rochford] is a relic of a time when the
federal judiciary thought that structural injunctions
taking control of executive functions were sensible. That
time is past.” Rahman v. Chertoff, 530 F.3d 622, 626 (7th
Cir. 2008). Moreover, the class certified in Rochford is
different from the one here in at least two critical respects.
First, for reasons we will explain in a moment, class
certification in this case does not comply with other
requirements of Rule 23; more specifically, the class does
not satisfy Rule 23(a)(2)’s commonality requirement,
and it does not satisfy Rule 23(b)(2). Second, the defen-
dants’ actions in Rochford provided at least some means
of identifying class members: Each class member was
the victim of some discrete act of harassment that once
revealed—for example, through discovery—would in
turn reveal the identity of the victimized class member.
Not so with the present class. MPS’s alleged failure to
identify disabled students in no way pins down the
identities of the class members; the relevant conduct
here is not a discrete action as in Rochford but rather a
failure to act. The liability and remedial orders are power-
ful evidence of this difference; the elaborate scheme
for identifying class members via a hybrid IEP process
30 Nos. 09-2741 & 09-3274
dramatically illustrates the fatal indefiniteness of this
class. Rochford is no help to the plaintiffs here.5
Beyond its inherent indefiniteness, the class certified
here fails to satisfy Rule 23(a)(2)’s commonality prereq-
uisite, which requires that the class claims involve
“questions of law or fact common to the class.” FED. R. C IV.
P. 23(a)(2). It’s true that ” ‘[e]ven a single [common] ques-
tion’ will do.” Wal-Mart, 131 S. Ct. at 2556 (quoting
Richard A. Nagareda, The Preexistence Principle and the
Structure of the Class Action, 103 C OLUM . L. R EV . 149, 176,
n.110 (2003)) (alteration in original). But the Supreme
Court explained in Wal-Mart that superficial common
questions—like whether each class member is an MPS
student or whether each class member “suffered a viola-
tion of the same provision of law”—are not enough. Id. at
2551. Rather, “[c]ommonality requires the plaintiffs to
demonstrate that the class members ‘have suffered the
same injury.’ ” Id. (quoting Gen. Tel. Co. of Sw. v. Falcon,
457 U.S. 147, 157 (1982)). The class “claims must depend
upon a common contention,” and “[t]hat common con-
tention, moreover, must be of such a nature that it
is capable of classwide resolution—which means that
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.” Id.
5
Our conclusion that a class of child-find claims does not fit
within Rochford’s carve-out is reinforced by the fact that we
decided Adashunas less than three years after Rochford but
did not even cite it.
Nos. 09-2741 & 09-3274 31
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 misunder-
stands Rule 23(a)(2). Whether MPS failed in its obliga-
tions 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 plain-
tiff’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 mem-
bers’ claims. That all the class members have “suffered”
as a result of disparate individual IDEA child-find viola-
tions is not enough; it does not establish that the
individual claims have any question of law or fact in com-
mon. The plaintiffs have identified no common factual
or legal question that satisfies the Rule 23(a)(2) standard,
and it is their burden to do so. See Oshana, 472 F.3d at 513.
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
32 Nos. 09-2741 & 09-3274
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 chil-
dren’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.
This was the basic commonality problem in Wal-Mart,
which involved a nationwide class-action suit on
behalf of female employees of the discount retailer
for alleged sex discrimination in violation of Title VII.
The Supreme Court summarized the lack of com-
monality in this way:
In this case, proof of commonality necessarily
overlaps with respondents’ merits contention that Wal-
Mart engages in a pattern or practice of discrimina-
tion. That is so because, in resolving an individual’s
Title VII claim, the crux of the inquiry is the reason
for a particular employment decision . . . . Here respon-
dents wish to sue about literally millions of employ-
ment decisions at once. Without some glue holding
the alleged reasons for all those decisions together,
it will be impossible to say that examination of all
the class members’ claims for relief will produce a
common answer to the crucial question why was
I disfavored.
Wal-Mart, 131 S. Ct. at 2552 (internal quotation marks and
citations omitted). Here, too, resolving any individual
class member’s claim for relief under the IDEA requires
an inherently particularized inquiry into the cir-
cumstances of the child’s case.
Nos. 09-2741 & 09-3274 33
That the court narrowed its focus to child-find viola-
tions (what the court called “pre-determination claims”)
is not enough. Child-find inquiries, like other aspects of
the IDEA, are necessarily child specific. There is no such
thing as a “systemic” failure to find and refer individual
disabled children for IEP evaluation—except perhaps if
there was “significant proof” that MPS operated under
child-find policies that violated the IDEA. See id. at 2553.
As the Supreme Court noted in Wal-Mart, an illegal
policy might provide the “glue” necessary to litigate
otherwise highly individualized claims as a class. Id. at
2552-54. But again, as in Wal-Mart, proof of an illegal
policy “is entirely absent here.” Id. at 2553; see also J.B. ex
rel. Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999)
(affirming the denial of class certification because the
“plaintiffs merely attempt to broadly conflate a variety
of claims [under the IDEA and other statutes] to
establish commonality via an allegation of ‘systematic
failures’ ”). Lacking any common questions, the class
fails to satisfy Rule 23(a)(2) and should not have been
certified.
Finally, it should be clear from our discussion thus
far that the district court also erred when it certified
an injunction class under Rule 23(b)(2). Rule 23(b)(2)
permits the court to certify a case for class-action treat-
ment if “the party opposing the class has acted or refused
to act on grounds that apply generally to the class, so
that final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole.” FED.
R. C IV. P. 23(b)(2). The final clause is important: The
34 Nos. 09-2741 & 09-3274
injunctive or declaratory relief sought must be “final” to
“the class as a whole.” See Kartman, 634 F.3d at 892-94. In
other words, “claims for individualized relief . . . do not
satisfy [Rule 23(b)(2)].” Wal-Mart, 131 S. Ct. at 2557. To
the contrary, “Rule 23(b)(2) applies only when a single
injunction or declaratory judgment would provide
relief to each member of the class. It does not authorize
class certification when each individual class member
would be entitled to a different injunction or declaratory
judgment against the defendant.” Id.
That the plaintiffs have superficially structured
their case around a claim for class-wide injunctive and
declaratory relief does not satisfy Rule 23(b)(2) if as a
substantive matter the relief sought would merely
initiate a process through which highly individualized
determinations of liability and remedy are made; this
kind of relief would be class-wide in name only, and
it would certainly not be final. See id. (“The key to the
(b)(2) class is ‘the indivisible nature of the injunctive
or declaratory remedy warranted . . . .’ ” (quoting
Richard A. Nagareda, Class Certification in the Age of
Aggregate Proof, 84 N.Y.U. L. R EV. 97, 132 (2009))); see
also id. at 2558 (“[T]he relief sought [under Rule 23(b)(2)]
must perforce affect the entire class at once . . . .”);
Kartman, 634 F.3d at 892-94; Andrews, 545 F.3d at 577. If
individualized relief is sought—even individual injunc-
tive relief—the named plaintiffs must look elsewhere
Nos. 09-2741 & 09-3274 35
in Rule 23(b) to obtain certification.6 See Wal-Mart, 131
S. Ct. at 2558-59; Kartman, 634 F.3d at 895.
The relief sought here does not come close to satisfying
Rule 23(b)(2)’s standard. That much is clear from the
intricate remedial scheme ordered by the district court,
which requires thousands of individual determinations
of class membership, liability, and appropriate remedies.
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 estab-
lishes a system for eventually providing individualized
relief. It does not, on its own, provide “final” relief to
any class member. See Andrews, 545 F.3d at 577. More-
over, the remedial order requires class notice as a neces-
sary element of its operation: Only those class members
who respond are to be evaluated within the hybrid
IEP system; nonresponders are unaffected. That the
putative class members must opt in after notice and then
be evaluated for membership in the class—before making
a claim for entitlement to compensatory education—
belies the notion that the court can provide final injunc-
tive relief to the class as a whole. This is not the stuff of
a proper Rule 23(b)(2) class.
6
Our discussion of commonality makes it clear that the present
class does not satisfy Rule 23(b)(3). Without even a single
common question of law or fact, common questions cannot
predominate. See F ED . R. C IV . P. 23(b)(3).
36 Nos. 09-2741 & 09-3274
So the class-certification order must be vacated. It
follows that without a class to whom MPS can be liable
and provide a remedy, the liability and remedial orders
must be vacated as well. What remains are the claims of
the individual plaintiffs; the district court did not find
a denial of a free appropriate public education in any
individual case.7 Furthermore, the court’s reasons for
excusing administrative exhaustion appear to have
been tied to the class allegations, and it’s not clear
whether the court would have excused exhaustion for
any of the individual claims. Finally, it’s possible—perhaps
likely—that some of the named plaintiffs’ individual
factual circumstances have changed such that their
claims are now moot. We leave to the district court on
remand the task of determining whether anything
remains of this case and what, if anything, should
happen next.
C. DPI Settlement
Finally, we turn to DPI’s settlement with the plaintiff
class. A district court may approve a class settlement if
it is “fair, reasonable, and adequate.” FED. R. C IV. P.
23(e)(2). We review an order approving a class settlement
7
As stated in the remedial order: “[A]t no point did the court
receive specific evidence from educational professionals
who engaged in an individualized assessment of the named
plaintiffs, determined the nature of any denial of [a free appro-
priate public education], and determined precisely what sorts
of services were necessary . . . .”
Nos. 09-2741 & 09-3274 37
for an abuse of discretion. Mirfasihi v. Fleet Mortg. Corp., 450
F.3d 745, 748 (7th Cir. 2006). As with any order
reviewed under this standard, if the district court’s analy-
sis turned on an error of law, the court necessarily
abused its discretion. Wis. Right to Life State PAC
v. Barland, 644 F.3d 139, 150 (7th Cir. 2011).
After the district court found MPS and DPI liable for
IDEA violations, DPI commenced settlement negotia-
tions with class counsel and eventually submitted a
settlement agreement for court approval. DPI agreed to
appoint an independent monitor to oversee MPS’s IDEA
compliance and develop a compliance plan for MPS—
with input from class counsel and the independent
monitor—establishing specific requirements that DPI
would in turn impose on MPS. The plan’s implementa-
tion would be tied to several benchmarks DPI promised
to enforce against MPS. Among other things, DPI agreed
that MPS would evaluate 95% of referred students
within the statutory time frame; that MPS would make
reasonable attempts to include a parent in 95% of IEP
meetings; and that MPS would refer 95% of students
with a specified number of suspensions and 95% of
students retained in grade to an early intervention
system for the possibility of disability evaluations. The
settlement also gave the independent monitor sig-
nificant oversight authority over MPS, including the
ability to order MPS to make administrative changes to
comply with the settlement agreement. In exchange
for these and other promises, the settlement released
DPI from all claims in this suit and also purported to
38 Nos. 09-2741 & 09-3274
preclude all class members from bringing any representa-
tive suit against DPI for IDEA violations that occurred
prior to the settlement date.
It should be apparent from the foregoing description
that this settlement agreement is highly unusual. DPI’s
primary concessions require performance from MPS,
which is not a party to the agreement and did not con-
sent. Sensing the problem, the district court allowed MPS
to file an objection to the settlement. MPS argued that the
settlement agreement impermissibly affected its legal
rights and conflicted with state statutes governing DPI’s
oversight authority. The district court framed the
question this way: Does “DPI ha[ve] the authority to
order MPS to take the actions called for in the pro-
posed settlement agreement[?]” If DPI has the legal
authority to command MPS to take the specified actions,
then the state agency’s agreement to impose mandates
on MPS would pose no problem. But if DPI does not
have that legal authority—stated differently, if MPS has
a legal right to resist such a demand from DPI—then a
settlement agreement binding DPI to impose mandates
on MPS, a nonparty, infringes MPS’s legal rights.
“The general rule . . . is that a non-settling party does not
have standing to object to a settlement between other
parties.” Agretti v. ANR Freight Sys., Inc., 982 F.2d 242,
246 (7th Cir. 1992). There is an exception when the
nonsettling party “can show plain legal prejudice
resulting from the settlement.” See id. at 246-47 (citing
Quad/Graphics, Inc. v. Fass, 724 F.2d 1230, 1233 (7th Cir.
1983), and other cases). That a settling defendant creates
Nos. 09-2741 & 09-3274 39
a tactical disadvantage for another defendant is not
sufficient to support standing to object; the prejudice to
the nonsettling defendant must be legal, such as (for
example) interference with contractual or contribution
rights or the stripping away of a cross-claim. Id. at 247.
Here, as the district court correctly acknowledged,
MPS’s substantive objection to the settlement and its
basis for standing are one and the same: If the settlement
agreement prejudiced MPS’s legal rights, MPS may
object, and its objection has merit.
The district court ultimately held that MPS did not
have standing to object because DPI has authority to
implement the agreement. As the state agency with
authority to dispense federal special-education
funding, DPI is responsible for ensuring local compliance
with the IDEA’s requirements. See 20 U.S.C. § 1412(a)(11).
Section 115.90 of the Wisconsin Statutes outlines the
three enforcement mechanisms available to DPI should
a local school district fail to comply:
(1) If, as the result of a monitoring procedure or a
complaint investigation, the state superintendent finds
that a local educational agency has violated this
subchapter, the state superintendent may require the
local educational agency to submit a corrective plan ad-
dressing the violation.
(2) If the state superintendent, after reasonable notice
and an opportunity for a hearing, finds that a local
educational agency has failed to comply with any
requirement in this subchapter, the state superinten-
dent shall reduce or eliminate special education aid to
40 Nos. 09-2741 & 09-3274
the local educational agency until he or she is satisfied
that the local educational agency is complying with
that requirement.
(3) If the state superintendent finds that a corrective
plan under sub. (1) has not been implemented, or
that withholding aid under sub. (2) has been inade-
quate to ensure compliance with this subchapter, the
state superintendent shall request the attorney general
to proceed against the local educational agency for in-
junctive or other appropriate relief.
(Emphasis added.)
The district court focused on DPI’s statutory authority
under subsection (2) to withhold MPS’s funding for
failure to comply with the IDEA’s requirements. Because
MPS retained the right to appeal any suspension of funds
to the Department of Education, see 34 C.F.R. § 76.401,
the district court concluded that the settlement did not
violate MPS’s rights but rather “could be viewed as
essentially another corrective action, similar to any one
of the numerous other corrective action plans previously
established by DPI.”
This analysis overlooks key parts of Wisconsin’s en-
forcement scheme. It’s true that DPI has the authority
to reduce MPS’s federal funding or eliminate it alto-
gether. But the settlement agreement does not im-
plicate DPI’s authority over the disbursement of
federal funds; rather, DPI bound itself to impose a cor-
rective plan on MPS. DPI does not, however, have the
unilateral authority to impose a corrective plan on a
noncompliant local school district. To the contrary,
Nos. 09-2741 & 09-3274 41
DPI may only require that a local school district develop
and submit a plan to address areas of IDEA noncompli-
ance; the details of the plan are left to the local school
district. See W IS. S TAT. § 115.90(1). DPI can force a local
school district to take specific remedial action only if
the district fails to implement its own corrective plan.
Alternatively, DPI can withhold or reduce federal funds,
and if this more dramatic action does not induce compli-
ance, the state superintendent of public instruction can
ask the state attorney general to sue to bring the
school district into compliance. See id. § 115.90(3).
The local school district’s autonomous authority to
develop its own corrective plan is no small distinction
in the context of this case. Because DPI cannot
unilaterally force MPS to take specific remedial action, a
settlement that attempts to do exactly that prejudices
MPS’s legal rights by requiring more of MPS than Wis-
consin law permits DPI to impose. The district court’s
conclusion to the contrary was an error of law, and
because the decision to approve DPI’s settlement turned
in large part on this legal error, that decision was an
abuse of discretion.8
8
The parties note a change in Wisconsin law during the
pendency of these appeals. Under 2009 Wisconsin Act 215
(published May 13, 2010), the state superintendent of public
instruction is empowered to order certain low-performing
school districts to take certain remedial actions. However,
Act 215 does not amend section 115.90, or any other provision
in the Wisconsin Statutes, Chapter 115, Subchapter V, the
(continued...)
42 Nos. 09-2741 & 09-3274
Apart from this misunderstanding about DPI’s
statutory oversight authority, the district court’s approval
of DPI’s settlement must be vacated for a much simpler
reason: There can be no class settlement if the class should
not have been certified in the first place. See Ortiz v.
Fibreboard Corp., 527 U.S. 815, 858 (1999) (“[T]he determina-
tion whether ‘proposed classes are sufficiently cohesive
to warrant adjudication’ must focus on ‘questions that
preexist any settlement.’ ” (quoting Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 622-23 (1997))). Although class
certification and settlement approval were sought sepa-
rately here, the caselaw on so-called “settlement only”
classes is instructive.9 The Supreme Court has made
clear that a settlement-only class must satisfy the bulk
of Rule 23’s requirements in order to be certified. See id.
at 864; Amchem, 521 U.S. at 620. And when a district
court abuses its discretion in certifying a settlement-only
class, we unwind not only the class certification but
also the class settlement. See, e.g., Crawford v. Equifax
Payment Servs., Inc., 201 F.3d 877, 881-82 (7th Cir. 2000)
(vacating order approving class settlement because
class did not satisfy Rule 23(b)). Basic principles of due
process prevent individual named plaintiffs from
binding—through litigation or court-approved settle-
8
(...continued)
statutory scheme relevant to special education. Accordingly,
Act 215 does not appear to affect the state regulatory apparatus
pertaining to the IDEA.
9
Settlement-only classes are those for which class certifica-
tion and settlement approval are sought simultaneously.
Nos. 09-2741 & 09-3274 43
ment—absent class members the plaintiffs do not legally
represent.10
As we have explained, the class here is fatally indefinite,
lacks the commonality required by Rule 23(a)(2), and was
improperly certified under Rule 23(b)(2). Because the
named plaintiffs do not legally represent the absent class
members, they cannot settle the absent class members’
claims. The district court’s order approving DPI’s settle-
ment must be vacated.
10
As summarized by the Court in Ortiz v. Fibreboard Corp .:
[Class actions] implicate the due process “principle of
general application in Anglo-American jurisprudence
that one is not bound by a judgment in personam in a
litigation in which he is not designated as a party or to
which he has not been made a party by service of process,”
Hansberry v. Lee, [311 U.S. 32, 40 (1940)], it being “our ‘deep-
rooted historic tradition that everyone should have his own
day in court,’ ” Martin v. Wilkes, [490 U.S. 755, 762 (1989)]
(quoting 18 C. Wright, A. Miller & E. Cooper, Federal
Practice and Procedure § 4449, p. 417 (1981)); see Richards
v. Jefferson County, [517 U.S. 793, 798-99 (1996)]. Although
“ ‘[w]e have recognized an exception to the general rule
when, in certain limited circumstances, a person, although
not a party, has his interests adequately represented by
someone with the same interests who is a party,’ ” . . .
Martin, [490 U.S. at 762 n.2], the burden of justification rests
on the exception.
527 U.S. 815, 846 (1999).
44 Nos. 09-2741 & 09-3274
III. Conclusion
For the foregoing reasons, we D ISMISS the plaintiffs’
appeal (number 09-3274) for lack of appellate jurisdiction.
We D ENY the motion to dismiss MPS’s appeal (number 09-
2741). We V ACATE the district court’s class-certification
order, its liability order following Phase II of the trial,
its order approving DPI’s settlement, and its remedial
order following Phase III of the trial. We R EMAND
the case for further proceedings consistent with this
opinion.
R OVNER, Circuit Judge, concurring in part and dissenting
in part. I share many of my colleagues’ concerns about
the way in which the class was defined in this case, and
I further agree that because DPI lacked the authority
to unilaterally impose a corrective plan on a local
school district, it was error to approve DPI’s settlement
with the plaintiffs. However, I am not convinced that
no class was feasible in this case, nor do I believe
that the inability to identify class members until the
remedial phase of the litigation precludes certification
of the class. For these reasons, I write separately.
On its face, the class certified in this case bears the
hallmarks of the sort of open-ended classes of which we
Nos. 09-2741 & 09-3274 45
disapproved in Adashunas v. Negley, 626 F.2d 600, 603-04
(7th Cir. 1980), and Rahman v. Chertoff, 530 F.3d 622, 625-26
(7th Cir. 2008). Although the class that the district court
approved (all school age children with disabilities who
reside within the MPS district, who are or may be
eligible for special education services, and who are,
have been, or will be denied or delayed entry into or
participation in the IEP process) is considerably more
narrow than the class originally proposed by the
plaintiffs (all school age children with disabilities who
reside within the MPS district and who are or may be
eligible for special education services), it was never
formally delimited by the particular types of violations
that the plaintiffs were alleging. The consequence of
such an open-ended description of the class, as we noted
in Rahman, is that “every time plaintiffs file a brief or
motion, membership in the class[ ] may change.” Id. at 625.
Thus, at any given point during the litigation, it may not
be possible to know from the class definition itself what
the true parameters of the class are and what types of
individuals might be in the class. Id. at 625-26. In this
case, the class has been defined to include all students
eligible for special services who have been denied or
delayed entry into the IEP system. That definition
literally may include students who were delayed or
denied entry due to circumstances having little or
nothing to do with the defendants’ actions, by essentially
random circumstances that are unique to one student
or limited to a small number of students, or by circum-
stances that the class representatives have not identified
as a basis for relief to the class.
46 Nos. 09-2741 & 09-3274
I am mindful that the parties and the court, from the
time that the class was certified forward, appear to
have developed an understanding that the class would
include the four sets of individuals that the court later
expressly identified in its liability decision: (1) students
with suspected disabilities who were never referred for
an evaluation; (2) students who were referred for evalua-
tion, but whose evaluations were not completed within
the requisite 90-day limit; (3) students who were sus-
pended in such a way as to frustrate their evaluation;
and (4) students whose IEP meetings took place in the
absence of their parents. See ante at 9; R. 195 at 3-6; R. 389
at 61. Moreover, the court’s liability decision was limited
to the time period commencing in September 2000 and
ending in June 2005. R. 389 at 3. In these respects, the
litigation ultimately focused on a class of students that
was much more limited than the certified class was on
its face, and one that in the end was much more definite
than the sweeping class we criticized in Adashunas,
for example.
But even as confined to these four groups of students
and this roughly five-year period, the class includes
unknown numbers of variations. To cite one example:
When, in her 2004 report, Dr. Rogers-Adkinson addressed
MPS’s failure to meet statutory deadlines during the
assessment process, she identified at least four differ-
ent patterns of delays: (1) delays occasioned by the initial
mis-categorization of a student’s suspected disability;
(2) delays caused by extensions of time routinely
requested for disability assessments solicited during the
spring semester; (3) delays triggered by the need for
Nos. 09-2741 & 09-3274 47
additional medical records; and (4) delays for reasons not
revealed in the files she reviewed. Plaintiffs’ Ex. 8 at 6, 8-9.
Each of these four scenarios might be a manifesta-
tion of MPS’s failure to timely identify students with
disabilities and to convene IEP meetings to address those
disabilities, but it is difficult to discern a common, wrong-
ful policy or practice that might account for them all.
Instead, this looks more like an effort to sweep many
individual plaintiffs and sets of facts into one class on
the premise that all reflect illegal conduct by the
defendant in practice and culture if not in policy. As the
majority points out, ante at 32, that is precisely the sort
of class that the Supreme Court recently rejected in Wal-
Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Like
my colleagues, I am not convinced that the certified class
in this case is united by common legal or factual issues.
Nonetheless, I do not rule out the possibility that a
class properly could be certified in this case or one like
it, and it is to this limited extent that I dissent. My col-
leagues have concerns both with the notion that a class
action may be premised on “systemic” violations of a
school district’s child-find obligations and with a class
composed of individuals whose identity cannot be
known until the remedial phase of the litigation. How-
ever, I believe that notwithstanding the inherently child
specific nature of child-find inquiries, a class action
based on a truly systemic child-find failure may be
viable. And the fact that it may not be possible to
identify individual class members until the remedial
phase of the litigation, when prospective members of the
class are invited to come forward and establish that
48 Nos. 09-2741 & 09-3274
they were among those injured by this systemic failure,
should not preclude a class action, which may be the
only realistic avenue of relief for those injured by
systemic violations of their rights.
Systemic violations of the IDEA are cognizable. See
Doe ex rel. Brockhuis v. Ariz. Dep’t of Educ., 111 F.3d 678, 681
(9th Cir. 1997) (coll. cases). The problem here is that
the plaintiffs’ claims appear to be based on multiple,
disparate failures to comply with the school district’s
statutory child-find obligations rather than a truly
systemic policy or practice which affects them all. But
my colleagues go so far as to state that “[t]here is
no such thing as a ‘systemic’ failure to find and refer
individual disabled children for IEP evaluation—except
perhaps if there was ‘significant proof’ that MPS
operated under child-find policies that violated the
IDEA.” Ante at 33 (emphasis in original) (citing Wal-Mart,
130 S. Ct. at 2553). Certainly I agree that an illegal policy
would support a claim for a systemic violation of the
IDEA’s child-find mandate. But I also think that wide-
spread practices might also support such a claim. Cf.
King ex rel. King v. E. St. Louis School Dist. 189, 496 F.3d
812, 817 (7th Cir. 2007) (citing Calhoun v. Ramsey, 408
F.3d 375, 379 (7th Cir. 2005)) (noting that municipal
liability under 42 U.S.C. § 1983 may be based on customs
and practices as well as formal, written policies). Suppose,
for example, that MPS ignored and did not refer for
evaluation students with a particular type of potential
disability—e.g., dyslexia—and as a result, large numbers
of students with that disability went unidentified and
were deprived of the educational services to which they
Nos. 09-2741 & 09-3274 49
were entitled under the IDEA. To my mind, this would
be a genuinely systemic violation of the district’s child-
find obligations that would be amenable to recognition
and remediation in a class action: Notwithstanding the
fact that each student is unique and is entitled to his
own, individualized IEP, all members of the class
would suffer a common injury resulting from the school
district’s failure to have appropriate systems in place to
identify students with that particular disability. Insisting
instead that each student exhaust his administrative
remedies and/or sue independently would surely mean
that many such students would reamin unidentified
and denied their right to free appropriate public educa-
tion (if only because they would be unaware of their
rights) and likely would mean that the systemic viola-
tion underlying their claims to relief would persist, as
any individual proceedings would result in individual
rather than structural relief.
A key reason why my colleagues are reluctant to ac-
knowledge the possibility of a systemic violation of a
school district’s child-find obligations is the inability to
identify individual class members except by asking
the parents of putative class members to come forward
at the remedial phase of the litigation and to establish, in
individual hearings, that their children were in fact
the victims of the district’s child-find failures. But this
method of identifying class members is hardly unprece-
dented. Our decision in McDonald v. United Air Lines, Inc.,
745 F.2d 1081 (7th Cir. 1984), reflects a similar approach.
The class in McDonald comprised women who had lost
their jobs as a result of United Air Line’s rule (dating
back to the 1930s) prohibiting marriage for its female
50 Nos. 09-2741 & 09-3274
cabin attendants. Once this court declared the no-marriage
rule to be a violation of Title VII’s ban on sex discrim-
ination in Sprogis v. United Air Lines, Inc., 444 F.2d 1194
(7th Cir. 1971), any woman who had lost her position as
a result of that rule between the date Title VII took effect
in 1965 and United’s abolition of the rule in 1968
became entitled to relief. See McDonald v. United Air Lines,
Inc., 587 F.2d 357 (7th Cir. 1978). But many if not most
of the class members had simply resigned their positions
in contemplation of the no-marriage rule rather than
formally protesting the rule or waiting for the company
to discharge them, so there was no record enabling
easy identification of those women who left because
of the no-marriage rule as opposed to another reason.
Consequently, the onus was on former flight attendants
to come forward at the final stage of the litigation and
claim entitlement to relief, at which point individual,
adversarial hearings were convened before special
masters in order to establish whether each claimant
in fact left her position because of the illegal rule. See
McDonald, 745 F.2d at 1087-88.
As in McDonald, there will be times when the nature
of the challenged conduct makes it difficult if not impos-
sible to identity who is in the class and is entitled to
relief absent some sort of opt-in procedure by putative
class members coupled with an adjudicatory procedure
to confirm that they in fact qualify as class members. In
McDonald this was true because so many class members
silently resigned their jobs in deference to their em-
ployer’s illegal rule; in a child-find case like this one
it would be true because the school district neglected
Nos. 09-2741 & 09-3274 51
its obligation under the IDEA to identify students with
potential disabilities. This is not a function of a poor or
open-ended class definition as in Rahman, but rather
due to the fact that the defendant’s conduct did not
produce a tidy record of the individuals harmed by
that conduct. Identifying class members in such circum-
stances necessarily will require a relatively cumbersome,
after-the-fact inquiry of the sort employed in McDonald
and as the district court envisioned here. The only alter-
native is to foreclose class-wide relief in such cases
and leave each individual harmed by the defendant’s
conduct to pursue relief on his or her own, if he or she
is even aware that a wrong has been committed. Realisti-
cally, that will mean no relief at all for most individuals.
For all of these reasons, I concur in the court’s conclu-
sion that the class certified in this case was improper, but
I do not join its conclusion that no class would be
viable in this case or other litigation alleging violation
of a school district’s child-find obligations absent an
ability to identify an express policy that violates the IDEA.
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