DL v. Dist. of Columbia

860 F.3d 713

DL, et al., Appellees

v.DISTRICT OF COLUMBIA, a Municipal Corporation, et al., Appellants

No. 16-7076

United States Court of Appeals, District of Columbia Circuit.

Argued March 31, 2017

Decided June 23, 2017

Lucy E. Pittman, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellants. With her on the briefs were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.

Todd A. Gluckman argued the cause for appellees. With him on the brief were Margaret A. Kohn, Cyrus Mehri, Carolyn S. Pravlik, and Patrick A. Sheldon, Washington, DC.

Iris Y. González, Daniel B. Kohrman, Kelly R. Bagby, Sharon Krevor-Weissbaum, Ira A. Burnim, Mary Nell McGarity Clark, and Martha Jane Perkins were on the brief for amici curiae AARP, et al. in support of appellees. Jon M. Greenbaum, Washington, DC, entered an appearance.

Before: Tatel, Griffith and Millett, Circuit Judges.

Tatel, Circuit Judge:

More than a decade ago, the parents of six children, ages three to six, sued the District of Columbia, alleging that it was violating the "Child Find" requirement of the Individuals with Disabilities Education Act by failing to provide special education to their children and hundreds of other preschoolers with disabilities. The district court certified the suit as a class action under Federal Rule of Civil Procedure 23, found the District liable, and entered a comprehensive injunction designed to bring the District into compliance with IDEA. On appeal, the District argues that the case has become moot because the six named plaintiffs are no longer toddlers with a stake in the requested relief. The District also challenges the class certification and argues that the injunction exceeds the district court's authority. For the reasons set forth in this opinion, we affirm in all respects.

I.

For much of this nation's history, children with disabilities "were either totally excluded from schools or were sitting idly in regular classrooms awaiting the time when they were old enough to drop out." Board of Education of Hendrick Hudson Central School District v. Rowley , 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (alteration and internal quotation marks omitted). Faced with this "pervasive and tragic academic stagnation," Congress passed the Education of the Handicapped Act of 1975 (EHA). Endrew F. ex rel. Joseph F. v. Douglas County School District RE-1 , ––– U.S. ––––, 137 S.Ct. 988, 999, 197 L.Ed.2d 335 (2017). That "ambitious" law, Rowley , 458 U.S. at 179, 102 S.Ct. 3034, which applied to public schools receiving federal funds, sought to provide all children with disabilities a "free appropriate public education ... tailored to [their] unique needs," id. at 180, 102 S.Ct. 3034.

Fifteen years later, finding that EHA implementation had "been impeded by low expectations" and resource constraints, 20 U.S.C. § 1400(c)(4)-(7), Congress strengthened the statute and renamed it the Individuals with Disabilities Education Act (IDEA), see Pub. L. No. 101-476, § 901, 104 Stat. 1103 (1990). This time Congress drew on its authority under the Spending Clause to offer states a deal: in exchange for additional federal funding, they would "pledge [ ] to comply" with a series of requirements designed to ensure that each student receives a "free appropriate public education," or FAPE. Endrew F. , 137 S.Ct. at 993 ; see U.S. CONST. , Art. I, § 8, cl. 1. Among the most important of these requirements, the "Child Find" provision obliges states to develop a "practical method" to track which children are receiving special education services and to ensure that all children "who are in need of special education and related services ... are identified, located, and evaluated" within a timeframe set by the state—120 days in this case. 20 U.S.C. § 1412(a)(3)(A) ; see 20 U.S.C. § 1414(a)(1)(C)(i)(I) (authorizing states to "establish[ ] a timeframe within which the evaluation must be conducted"); D.C. Code § 38-2561.02(a)(1) (requiring an evaluation "within 120 days from the date the student was referred for an evaluation"). Another requirement, the "smooth and effective transition" condition, obliges states to provide a seamless transition when three-year-olds move from "early intervention" programs (governed by IDEA Part C) to preschool (governed by IDEA Part B). 20 U.S.C. §§ 1412(a)(9), 1435(a)(8)(A), 1437(a)(9) ; 34 C.F.R. § 303.209. The transition between these programs qualifies as "smooth and effective" if, among other things, it begins at least ninety days before the child's third birthday, delivers uninterrupted services, and involves both Part B and C personnel. 20 U.S.C. § 1412(a)(9) ; 34 C.F.R. § 303.209. In the District of Columbia, which IDEA defines as a state, see 20 U.S.C. § 1401(31), and which receives millions of dollars of IDEA funding each year, early intervention programs are run by the Office of the State Superintendent of Education and preschool programs by the District of Columbia Public Schools (DCPS).

In 2005, the parents of six children, ages three to six, sued the District, alleging a "pervasive and systemic" breakdown in the school system's Child Find program. D.L. v. District of Columbia , No. 05-cv-1437, ECF No. 1, at 3 (D.D.C. July 21, 2005). According to the complaint, the District was failing to identify large numbers of disabled children and delivering inadequate and delayed services to many others. These deficiencies, the parents argued, were depriving "hundreds" of preschoolers of their right to a FAPE. Id.

The district court, Judge Royce C. Lamberth, certified the suit as a class action in 2006. D.L. v. District of Columbia , 237 F.R.D. 319 (D.D.C. 2006). The class definition was broad: "All children [between three and five] who are or may be eligible for special education and related services, who live in, or are wards of, the District of Columbia" and whom the District had failed or would fail to "identify, locate, evaluate or offer special education and related services." Id. at 324–25. Four years later, the parties each moved for summary judgment. After reviewing the record, the district court granted summary judgment to the parents with respect to their claims up to and through 2007 and scheduled a bench trial on all remaining claims. D.L. v. District of Columbia , 730 F.Supp.2d 84, 95, 98 (D.D.C. 2010). During that trial, the court heard two days of testimony from statisticians, school district staff, and experts in education policy and early childhood development.

After trial but before the district court issued its decision, the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes , which held that "one of the most expansive class[es] ever" was too broad to meet the requirements of Federal Rule of Civil Procedure 23. 564 U.S. 338, 342, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). Relying on Wal-Mart , the District moved to decertify the class, arguing that it was similarly overbroad. Although the parents insisted that the class complied with Wal-Mart , they suggested that if the court had any doubt it should recertify the class as four subclasses of children whom the District had failed to (1) identify, (2) timely evaluate, (3) offer a timely determination of eligibility for special education and related services, and (4) provide a smooth transition from early intervention programs to preschool. D.L. , ECF No. 271-2, at 7–8 (Aug. 18, 2011). Satisfied that the certified class complied with Wal-Mart , however, the district court deemed subclasses unnecessary. D.L. v. District of Columbia , 277 F.R.D. 38, 46–47 (D.D.C. 2011).

The court then found the District liable for violating its Child Find obligations and failing to ensure a "smooth and effective transition" for toddlers entering preschool. D.L. v. District of Columbia , 845 F.Supp.2d 1, 21–23 (D.D.C. 2011). These violations, Judge Lamberth observed, deprived "some of our most vulnerable citizens" of services in the "first few years" of their lives, a "narrow window of opportunity in which special education, tailored to the child's particular needs, can work a miracle." Id. at 5. Based on these findings, the court entered a comprehensive injunction that set compliance benchmarks and required annual improvement in the numbers of children identified as needing, evaluated for, and offered special education and related services.

The District appealed, and this court vacated the class certification order. D.L. v. District of Columbia , 713 F.3d 120, 121 (D.C. Cir. 2013). Citing Wal-Mart , we held that a class defined by reference "to the District's pattern and practice of failing to provide FAPEs speaks too broadly because it constitutes only an allegation that the class members ‘have all suffered a violation of the same provision of law.’ " Id. (quoting Wal-Mart , 564 U.S. at 350, 131 S.Ct. 2541 ). We noted that the parents "appeared to recognize [this] problem," and had proposed subclasses tied to failures in four distinct administrative functions. Id. at 128. Rather than deciding whether those subclasses satisfied Wal-Mart , we remanded to the district court to consider that question in the first instance.

The district court then certified the same four subclasses the parents had proposed: (1) disabled three-to-five-year-olds whom the District failed to identify for the purpose of offering special education services; (2) disabled three-to-five-year-olds whom the District failed to give an initial evaluation within 120 days of being referred for special education services; (3) disabled three-to-five-year-olds whom the District failed to give an "eligibility determination"—i.e. , a decision as to whether they qualify for IDEA services—within 120 days of being referred; and (4) all children who transitioned from early intervention to preschool programs, and whom the District denied a "smooth transition" by age three. This court denied the District's petition...