T.R. v. Sch. Dist. of Phila. L.R.

4 F.4th 179

T.R., a minor, individually, by and through her parent, Barbara Galarza, and on behalf of all others similarly situated; Barbara Galarza, individually, and on behalf of all others similarly situated; A.G., a minor, individually, by and through his parent, Margarita Peralta, and on behalf of all others similarly situated; Margarita Peralta, individually, and on behalf of all others similarly situated; L.R.; D.R., a minor, individually, by and through her parent, Madeline Perez, and on behalf of all others similarly situated; J.R.; Madeline Perez, individually, and on behalf of all others similarly situated; R.H., a minor, individually, by and through his parent, Manqing Lin, and on behalf of all others similarly situated; Manqing Lin, individually, and on behalf of all others similarly situated

v.SCHOOL DISTRICT OF PHILADELPHIA

L.R., D.R. and their mother, Madeline Perez, and R.H. and his mother Manqing Lin, Appellants

No. 20-2084

United States Court of Appeals, Third Circuit.

Argued January 20, 2021

Filed July 9, 2021

Chanda A. Miller, Paul H. Saint-Antoine [ARGUED], Faegre Drinker Biddle & Reath, One Logan Square, Suite 2000, Philadelphia, PA 19103, Michael Churchill, Claudia De Palma, Public Interest Law Center of Philadelphia, 1500 John F. Kennedy Boulevard, Two Penn Center, Suite 802, Philadelphia, PA 19103, Maura I. McInerney, Margaret M. Wakelin, Education Law Center, 1800 John F. Kennedy Boulevard, Suite 1900, Philadelphia, PA 19103, Counsel for Appellants

Danielle M. Goebel [ARGUED], Katherine V. Hartman, Marjorie M. Obod [ARGUED], Dilworth Paxson, 1500 Market Street, Suite 3500 E, Philadelphia, PA 19103, Counsel for Appellee

Richard Salgado, Jones Day, 2727 North Harwood Street, Dallas, TX 75201, Carter G. Phillips, Sidley Austin, 1501 K Street, N.W., Washington, D.C. 20005, Catherine M. Reisman, Reisman Carolla Gran & Zuba, 19 Chestnut Street, Haddonfield, NJ 08033, Ellen M. Saideman, 7 Henry Drive, Barrington, RI 02806, Counsel for Amici Appellants

Before: SMITH, Chief Judge, HARDIMAN and ROTH, Circuit Judges

OPINION OF THE COURT

SMITH, Chief Judge.

Appellant-Plaintiffs brought a putative class action against the School District of Philadelphia claiming shortcomings in the School District's translation and interpretation services that purportedly amount to a violation of the Individuals with Disabilities Education Act ("IDEA"). The IDEA seeks to ensure that the unique needs of each child in special education are provided for in accordance with individualized education plans. Plaintiffs appeal both an order denying their class certification motion and a summary judgment order wherein the District Court declined to find that Plaintiffs met a systemic exception to IDEA's administrative exhaustion requirement.

For the reasons set forth below, we will affirm.

I. INDIVIDUALS WITH DISABILITIES EDUCATION ACT

A. Procedural Safeguards

The Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. , is a statute that offers federal funding to States for the education of children with disabilities. See, e.g. , Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1 , ––– U.S. ––––, 137 S. Ct. 988, 993, 197 L.Ed.2d 335 (2017). "In exchange for the funds, a State pledges to comply with a number of statutory conditions." Id. The primary condition is that the participating State provide a "free appropriate public education," or "FAPE," to all eligible children. Id. (citing § 1412(a)(1)). The IDEA does not mandate what a FAPE must substantively include beyond a few basic minima, most obviously that the education be provided under public supervision and without charge. See § 1401(9)(A) (partial definition of FAPE). The substance of a FAPE is primarily defined to be such "special education and related services" that "are provided in conformity with [a child's] individualized education program," or "IEP." § 1401(9)(D); see also § 1414(d)(1)(A) (defining IEP); § 1401(29) (defining special education); Fry v. Napoleon Cmty. Schs. , ––– U.S. ––––, 137 S. Ct. 743, 749, 197 L.Ed.2d 46 (2017) (apologizing for this "acronymic world").

The IEP is the "centerpiece" of the IDEA and the "primary vehicle" for implementing the congressional policy underlying the Act. Honig v. Doe , 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). An "IEP documents the child's current ‘levels of academic achievement,’ specifies ‘measurable annual goals’ for how she can ‘make progress in the general education curriculum,’ and lists the ‘special education and related services’ to be provided so that she can ‘advance appropriately toward [those] goals.’ " Fry , 137 S. Ct. at 749 (alteration in original) (quoting § 1414(d)(1)(A)(i)(I), (II), (IV)(aa)). In requiring individualized education programs, the "IDEA operates from the premise that each child will have unique disabilities and presumes that each program will be personalized." Blackman v. District of Columbia , 633 F.3d 1088, 1094 (D.C. Cir. 2011) (Brown, J., concurring). Reinforcing the personalized nature of special education, each child's IEP is created by the child's "IEP Team," which consists of the child's parents, at least one "regular education teacher" of the child ("if the child is, or may be, participating in the regular education environment"), and certain other persons. § 1414(d)(1)(B). "[P]arents play[ ] a ‘significant role’ " in the process of creating an IEP. Winkelman v. Parma City Sch. Dist. , 550 U.S. 516, 524, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007) (quoting Schaffer v. Weast , 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) ).

So that parents’ participation in the IEP process is assured, the IDEA requires that state educational agencies establish certain procedural safeguards. See 20 U.S.C. § 1415(a). One procedural safeguard mandated by the IDEA is that an educational agency give parents "[w]ritten prior notice" whenever the agency proposes to change, or refuses to change, the provisions of a child's IEP. § 1415(b)(3) ; 34 C.F.R. § 300.503(a) (parroting statute). In Pennsylvania, this notice is called a Notice of Recommended Educational Placement/Prior Written Notice ("NOREP/PWN"). This notice must be given "in the native language of the parents, unless it clearly is not feasible to do so." 20 U.S.C. § 1415(b)(4) ; see also 34 C.F.R. § 300.503(c)(1)(ii) (parroting statute).

The implementing regulations also mandate certain procedural safeguards for parents at IEP Team meetings. "The public agency must give the parent a copy of the child's IEP at no cost to the parent." 34 C.F.R. § 300.322(f) (regulation on "Parent participation" for IEP Team meetings). Further, educational agencies must take "whatever action is necessary" to allow parents to understand IEP Team meetings, "including arranging for an interpreter."

Id. § 300.322(e). There is, however, no regulation explicitly mandating that IEPs or draft IEPs be translated into the parent's native language.

These procedural safeguards would, of course, be of limited value if parents were unaware of the rights that the safeguards afford. So the IDEA requires that an explanation and copy of the procedural safeguards be given to parents at least once a year. 20 U.S.C. § 1415(d)(1)(A) ; 34 C.F.R. § 300.504(a). In Pennsylvania, this explanation is called the Procedural Safeguards Notice. The explanation and copy of the procedural safeguards must be provided in the parent's native language "unless it clearly is not feasible to do so." 20 U.S.C. § 1415(d)(2) ; 34 C.F.R. § 300.504(d).

"[T]he importance Congress attached to these procedural safeguards cannot be gainsaid. ... Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation ... as it did upon the measurement of the resulting IEP against a substantive standard." Bd. of Educ. v. Rowley , 458 U.S. 176, 205–06, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ; see also, e.g. , H.E. v. Walter D. Palmer Leadership Learning Partners Charter Sch. , 873 F.3d 406, 413 (3d Cir. 2017) (holding that vindication of procedural rights under IDEA makes a party a prevailing party for purpose of attorneys’ fees). However, the IDEA provides relief only for the denial of a FAPE, not for the denial of a procedural right. Cf. Fry , 137 S. Ct. at 755 ("[T]he only relief the IDEA makes available is relief for the denial of a FAPE." (internal quotations omitted)).

Congress addressed this oddity in a 2004 amendment to the IDEA which provides that a procedural violation can rise to the level of a deprivation of a FAPE when the procedural violation either:

(I) impeded the child's right to a free appropriate public education;

(II) significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents’ child; or

(III) caused a deprivation of educational benefits.

Pub. L. No. 108-446, sec. 101, § 615(f)(3)(E)(ii), 118 Stat. 2647, 2722 (2004) (codified at 20 U.S.C. § 1415(f)(3)(E)(ii) ); 34 C.F.R. § 300.513(a)(2) (parroting statute); see, e.g. , C.H. v. Cape Henlopen Sch. Dist. , 606 F.3d 59, 66–67 (3d Cir. 2010) ; see also Jon Romberg, The Means Justify the Ends: Structural Due Process in Special Education Law , 48 Harv. J. on Legis. 415, 439–42 (2011) (describing history of § 1415(f)(3)(E) ). As shorthand, we will refer to the second type of procedural violation as a denial of a parent's right to "meaningful participation." Cf., e.g. , 20 U.S.C. § 1400(c)(5)(B) (finding of Congress that "the education of children with disabilities can be made more effective by ... ensuring that families ... have meaningful opportunities to participate"); D.S. v. Bayonne Bd. of Educ. , 602 F.3d 553, 565 (3d Cir. 2010) (finding no actionable procedural violation because parents "had an opportunity to participate meaningfully in the creation of an IEP").

B. Administrative Exhaustion Requirement

The IDEA establishes a detailed...