G.T., by his parents MICHELLE and JAMIE T., on behalf of himself and all similarly situated individuals; K.M., by his parents DANIELLE M. and STEVEN M., on behalf of themselves and all similarly situated individuals; THE ARC OF WEST VIRGINIA v. THE BOARD OF EDUCATION OF THE COUNTY OF KANAWHA; KANAWHA COUNTY SCHOOLS; RON DUERRING, Superintendent, Kanawha County Schools, in his official capacity
No. 21-2286
United States Court of Appeals, Fourth Circuit
September 5, 2024
PUBLISHED
Plaintiffs - Appellees,
v.
THE BOARD OF EDUCATION OF THE COUNTY OF KANAWHA,
Defendant - Appellant,
and
KANAWHA COUNTY SCHOOLS; RON DUERRING, Superintendent, Kanawha County Schools, in his official capacity,
Defendants.
FORMER U.S. DEPARTMENT OF EDUCATION OFFICIALS; CIVIL LAW PROFESSORS; TWELVE LEADING NATIONAL DISABILITY RIGHTS ORGANIZATIONS; MEMBERS AND ALLIES OF THE NATIONAL EDUCATION CIVIL RIGHTS ALLIANCE,
Amici Supporting Appellees.
Argued: October 28, 2022 Decided: September 5, 2024
Before WYNN and RUSHING, Circuit Judges, and MOTZ, Senior Circuit Judge.
Reversed and remanded by published opinion. Judge Rushing wrote the majority opinion, in which Judge Motz joined. Judge Wynn wrote an opinion concurring in part and dissenting in part.
ARGUED: Richard Scott Boothby, BOWLES RICE, LLP, Parkersburg, West Virginia, for Appellant. Samir I. Deger-Sen, LATHAM & WATKINS LLP, New York, New York, for Appellees. ON BRIEF: J. Mark Adkins, Gabriele Wohl, William M. Lorensen, BOWLES RICE LLP, Charleston, West Virginia, for Appellant. Lydia C. Milnes, Blaire L. Malkin, MOUNTAIN STATE JUSTICE, INC., Charleston, West Virginia; Lori Waller, DISABILITY RIGHTS WEST VIRGINIA, Charleston, West Virginia; Ira A. Burnim, Lewis Bossing, JUDGE DAVID
RUSHING, Circuit Judge:
The Individuals with Disabilities Education Act (IDEA), 84 Stat. 175, as amended,
I.
A.
The IDEA offers federal funds to assist States in educating children with certain physical or intellectual disabilities.
A FAPE consists of “special education” and “related services” tailored to the needs of a particular child.
The IDEA requires a State to “identif[y], locate[], and evaluate[]” all children with disabilities residing in the State.
Once a child is identified and evaluated, the “primary vehicle for providing each child with the promised FAPE” is an “individualized education program,” or IEP. Fry, 137 S. Ct. at 749 (internal quotation marks omitted);
An “IEP team,” consisting of the child‘s parents, school officials, and teachers, creates the plan and meets “at least once annually” to review it. Bouabid v. Charlotte-Mecklenburg Schs. Bd. of Educ., 62 F.4th 851, 856 (4th Cir. 2023);
Especially relevant to this appeal is the behavioral “special factor.”
When addressing behavior problems, a school may remove a child with a disability from the classroom just as it would a child without a disability, so long as a “change in placement“—like removal to an “alternative educational setting” or suspension
The IDEA also establishes procedures for resolving disputes between parents and schools about a child‘s special education. See Fry, 137 S. Ct. at 749. Dissatisfied parents may file a complaint with the appropriate local or state educational agency and attempt to resolve their differences through informal meetings, a mediation process, and ultimately a formal due process hearing.
B.
Although the IDEA is the focus of this appeal, we must briefly mention the two other federal statutes underlying this lawsuit. Those laws “cover both adults and children with disabilities, in both public
Title II of the Americans with Disabilities Act (ADA) states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
Section 504 of the Rehabilitation Act similarly provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
C.
Plaintiffs G.T. and K.M. are students who receive special education and related services at Kanawha County public schools. G.T. has been diagnosed with autism and attention deficit hyperactivity disorder (ADHD). He has exhibited challenging behaviors and has been suspended from school as a consequence. G.T. has an IEP, a functional behavioral assessment, and a behavior intervention plan. K.M. has been diagnosed with Down syndrome, ADHD, and oppositional defiant disorder. He also has exhibited challenging behaviors and has been suspended from school as a result. K.M. has an IEP, a functional behavioral assessment, and a behavior intervention plan.
G.T. and K.M.3 sued the Board on behalf of themselves and a class of similarly situated students, alleging that the Board “fails to provide effective behavior supports” for students with disabilities, “leading to unjustified disciplinary removals from the classroom” for misbehavior.4 J.A. 26. According to Plaintiffs, the Board “has no functioning system for identifying children with disabilities who need behavior supports” and “fail[s] to provide its students
Plaintiffs moved to certify a class of “[a]ll Kanawha County Schools students with disabilities who need behavior supports and have experienced disciplinary removals from any classroom,” and the district court granted their motion. G.T., 2021 WL 3744607, at *9. As relevant here, to satisfy the commonality requirement of
whether the [Board] properly (1) identifies students with disabilities who need behavior supports; (2) develops and implements those supports, including in [behavior intervention plans]; (3) monitors whether the students then make academic progress; (4) avoids unjustified disciplinary removals from the classroom; (5) trains its staff to undertake these essential functions of educating children with disabilities; and (6) ensures students receive needed behavior supports to avoid discrimination.
Id. at *12 (internal quotation marks omitted). The district court recognized that Plaintiffs could not “point to a single [problematic] policy” driving the alleged statutory violations. Id. at *14. But the court reasoned that Plaintiffs had presented “expert evidence” of “disproportionate rates of suspension for students with disabilities” and “detailed qualitative analysis of [a sample of] student records” and from these had identified “a cohesive pattern that reveals the absence of . . . an effective system for developing and implementing behavioral supports for students with disabilities whose behavior interferes with their learning or that of others.” Id. at *13–14. While the court acknowledged that “[e]ach student will need a different set of supports,” it stated that “this case is not about the behavioral supports that should be provided” but about the “procedures that [the school district] uses, or does not use, to develop and implement those supports.” Id. at *14.
The Board timely petitioned this Court for permission to appeal the class certification order, which we granted. See
II.
We review a district court‘s decision to certify a class for abuse of discretion. Brown v. Nucor Corp., 785 F.3d 895, 901 (4th Cir. 2015). A district court abuses its discretion “when it materially misapplies the requirements of Rule 23,” EQT Prod. Co. v. Adair, 764 F.3d 347, 357 (4th Cir. 2014), makes an error of law, or clearly errs in its factual findings, Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 317 (4th Cir. 2006).
III.
The class action device is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 155 (1982)). The premise is that “litigation by representative parties adjudicates the rights of all class members.” Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 338 (4th Cir. 1998). Accordingly, a party seeking class certification must first demonstrate the four prerequisites of
requirements is not enough; rather, “the party must present evidence that the putative class complies with Rule 23.” EQT Prod., 764 F.3d at 357.
The crux of this appeal is whether the certified class meets
“Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.‘” Wal-Mart, 564 U.S. at 349–350 (quoting Falcon, 457 U.S. at 157). It is not enough that the class members “have all suffered a violation of the same
provision of law.” Id. at 350. Rather, all class members’ “claims must depend upon a common contention” that is capable of classwide resolution. Id. “Dissimilarities within the proposed class” have “the potential to impede the generation of common answers.” Id. (internal quotation marks omitted); see also Brown, 785 F.3d at 909 (“[A] court must examine whether differences between class members impede the discovery of common answers.“).
A.
Our Court has not previously addressed certification of an IDEA class, but three of our sister circuits have. Those courts have unanimously held that, to satisfy
Applying this rule, the Seventh Circuit held that a class of “students eligible for special education services” who have been or will be “denied or delayed entry or participation” in the IEP process failed the commonality prerequisite. Jamie S., 668 F.3d at 495, 497–498. As framed, the class was focused on alleged violations of the IDEA‘s “child find” requirements. Id. at 485; see also
The D.C. Circuit similarly vacated certification of a class of “[a]ll children” eligible for special education “whom defendants did not [or will not] identify, locate, evaluate, or offer special education and related services to” when the children were between three and five years old. DL, 713 F.3d at 123. Like the Seventh Circuit, the D.C. Circuit held that this class could not meet the commonality prerequisite because “the harms alleged to have been suffered by the plaintiffs . . . involve[d] different policies and practices at different stages of the District‘s Child Find and FAPE process,” and “the district court identified no single or uniform policy or practice that bridges all their claims.” Id. at 127. For some children, the alleged harm was due to an ineffective “intake and referral process“; for others, the alleged harm was caused by failure to adequately implement IEPs; and for still others, the cause was “the absence of a smooth and effective transition” from one program to another. Id. at 128. “[I]n the absence of a uniform policy or practice that affects all class members,” the court concluded, there was no common question that would assist the district court in determining liability for all class members.7 Id.
Likewise, the First Circuit in Parent/Professional Advocacy League affirmed the district court‘s order denying certification of a class of “all students with a mental health disability who are or have been” educated in an alternative school designed for students with social emotional behavioral disabilities. 934 F.3d at 21 (internal quotation marks and brackets omitted). Alleging violations of the IDEA and the ADA, the plaintiffs relied on an expert report “find[ing] a pattern of legal harm common to the class.” Id. at 30. But the First Circuit considered that evidence insufficient to satisfy the commonality requirement because it did not “identify[] a particular driver . of that alleged harm,” i.e., “a uniform policy or practice that affects all class members.” Id. (quoting DL, 713 F.3d at 128). “Absent such a common driver,” the court explained, whether a given student‘s placement at the alternative school unlawfully segregated the student or provided unequal education benefits would “depend on that one student‘s unique disability and needs.” Id. at 31. Accordingly, the class lacked the commonality necessary for certification.
By contrast, the First Circuit took note of classes in other cases that had been held to satisfy the commonality requirement of
We agree with our sister circuits that, to meet the commonality prerequisite for class certification, plaintiffs in an IDEA case like this one must identify a “uniformly applied, official policy of the school district, or an unofficial yet well-defined practice, that drives the alleged violation.” Id. The typical IDEA lawsuit involves a highly individualized assessment of whether a child was denied a FAPE. In a suit challenging hundreds of individualized special education decisions, satisfying the commonality prerequisite requires proof of some common driver—the “glue” holding all those decisions together in a way that suggests they can productively be litigated all at once. Jamie S., 668 F.3d at 498 (quoting Wal-Mart, 564 U.S. at 352); see also Parent/Pro. Advoc. League, 934 F.3d 13 at 29. “[A] uniform policy or practice that affects all class members” can supply this connection, DL, 713 F.3d at 128, by “anchor[ing] common questions . . . the answers to which could ‘resolve an issue that is central to the validity of each one of the claims in one stroke,‘” Parent/Pro. Advoc. League, 934 F.3d at 29 (quoting Wal-Mart, 564 U.S. at 350).
B.
Applying these principles, we turn to the present case. The district court certified a class of “[a]ll Kanawha County Schools students with disabilities who need behavior supports and have experienced disciplinary removals from any classroom.” G.T., 2021 WL 3744607, at *9. This class includes students with any of the disabilities covered by the IDEA, the ADA, or the Rehabilitation Act who need individualized behavior supports and were removed from a classroom for misbehavior.
We conclude that this class fails to satisfy
Plaintiffs’ other asserted questions fare no better. They include whether the Board properly develops and implements behavior supports, whether it sufficiently monitors students who are prescribed behavior supports, and whether it adequately trains staff responsible for providing behavior supports. Those questions are not common to all class members’ claims but are instead steps in the special education process at which different children are affected. For example, the claims of children who need behavior supports but were never identified by the Board are not advanced by answering questions about the Board‘s processes for developing behavior supports after identification, monitoring progress after those supports are implemented, or training the staff who administer those supports.
Like the class claims in Jamie S. and DL, Plaintiffs’ claims appear to be based on multiple, disparate failures to comply with the [Board‘s] statutory [special education] obligations rather than a “policy or practice which affects them all.” DL, 713 F.3d at 128 (internal quotation marks omitted). For one child the IEP team may have failed to create a behavior intervention plan with behavior supports; for another, the IEP may have included behavior supports, but the supports were inadequate; and for still another, the school district may have developed adequate supports but then failed to monitor the child‘s progress. What common question can be answered that would assist the district court in determining the Board‘s liability as to each? There is none.
Second, answering many of Plaintiffs’ proposed questions “requires individualized determinations which defeat commonality.” Parent/Pro. Advoc. League, 934 F.3d at 31. For example, one proposed
Another proposed question is whether the Board “avoids unjustified disciplinary removals from the classroom.” G.T., 2021 WL 3744607, at *12. Plaintiffs have identified no policy or well-defined practice regarding disciplinary removals that has been applied to every class member. Absent such policy or practice, deciding whether one child‘s removal from the classroom in a specific instance was justified “requires an inherently particularized inquiry into the circumstances of the child‘s case.” Jamie S., 668 F.3d at 498; see also, e.g.,
In concluding otherwise, the district court abused its discretion. The court relied on a “pattern” of problems that Plaintiffs’ expert identified in her review of a sample of student records, such as “inadequate attention to root causes of behavior,” misclassification of disability eligibility categories, “failure to collaborate with parents” in designing effective behavior intervention plans, “failure to consistently implement” behavior supports, and failure to adjust plans over time to reflect changing student needs. G.T., 2021 WL 3744607, at *13. Our sister circuits have consistently rejected similar reliance on an asserted pattern of individualized deficiencies to prove the existence of a common question for class certification. See Parent/Pro. Advoc. League, 934 F.3d at 30; DL, 713 F.3d at 126; Jamie S., 668 F.3d at 488. As in those cases, none of the shortcomings or patterns identified by Plaintiffs’ expert demonstrate the existence of a “common contention” whose “truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350.
Because Plaintiffs did not identify “a uniform policy or practice” that drives the alleged harm to all class members, they failed to demonstrate compliance with the commonality requirement of Rule 23(a). Parent/Pro. Advoc. League, 934 F.3d at 30 (quoting DL, 713 F.3d at 128). Therefore, certification of Plaintiffs’ proposed class was improper.9
On appeal, Plaintiffs pivot to contend that they are challenging the Board‘s failure to enact policies the IDEA requires. They claim that the IDEA requires the Board to establish policies addressing specific topics—(1) identifying students with disabilities who need behavioral supports, (2) implementing behavioral supports, (3) monitoring their efficacy, and (4) training personnel—and that the Board‘s failure to enact any policy, or an adequate policy, on a topic is itself an IDEA violation. We need not entertain this new argument, as “[i]t is well established that this court does not consider issues raised for the first time on appeal, absent exceptional circumstances.”10 Hicks v. Ferreyra, 965 F.3d 302, 310 (4th Cir. 2020) (internal quotation marks and brackets omitted).
Even if we considered Plaintiffs’ new argument, it would fail for the same reasons we have already explained.11 Assume Plaintiffs were correct that the entire class was subject to an allegedly unlawful absence of these policies. That contention would raise only “superficial common questions” that do not drive resolution of the litigation. Jamie S., 668 F.3d at 497. As the Supreme Court explained in Wal-Mart, some common questions—like “Do all of us plaintiffs indeed
Consider two hypothetical students: the first never had behavioral supports implemented, the second had behavioral supports implemented but their efficacy was not monitored because of a lack of training. What is the common contention between them? Plaintiffs would say it is a failure to have adequate policies addressing each situation. But each hypothetical student‘s harm was a result of a different alleged policy failure. See Jamie S., 668 F.3d at 497. So, even if we considered Plaintiffs’ new challenge on appeal, it suffers the same commonality problems as the claims litigated in the district court.
IV.
Because the certified class does not comply with Rule 23(a)(2), we reverse the district court‘s certification order and remand for further proceedings consistent with this opinion.12
REVERSED AND REMANDED
WYNN, Circuit Judge, concurring in part and dissenting in part:
Students with disabilities who attend schools overseen by the Board of Education of the County of Kanawha, West Virginia (“the Board of Education“), “are suspended at a disproportionate rate compared to their peers without disabilities.” G.T. ex rel. Michelle v. Bd. of Educ. of Kanawha, No. 2:20-CV-00057, 2021 WL 3744607, at *9 (S.D.W. Va. Aug. 24, 2021). Many of those suspensions are allegedly unwarranted, meaning that they violate the students’ rights to a free appropriate public education in the least restrictive environment. And the suspensions are, Plaintiffs claim, indicative of the Board of Education‘s broader failure to provide the quality of education that the Individuals with Disabilities Education Act (“IDEA“) guarantees.1
The Board of Education‘s conduct has sweeping implications: every student with a disability whose schooling the Board of Education oversees is at risk of being denied their IDEA-guaranteed right to a free appropriate public education.
Anticipating the need for such relief, the IDEA permits injunctive suits to ameliorate threats to a student‘s substantive rights before the student suffers actual harm. In line with that straightforward understanding of the IDEA, Plaintiffs have repeatedly emphasized that they are suing to eliminate risks that threaten all class members’ rights to a free appropriate public education in the least restrictive environment. That sort of risk-reduction theory is standard in Rule 23(b)(2) class actions and could support class certification under the IDEA given the right findings.
But while the district court correctly recognized that Plaintiffs are seeking to mitigate a risk of harm that all class members share, it did not address whether the named plaintiffs had a sufficient risk of harm to support standing as to each of the policy failures they challenge. I therefore would vacate the district court‘s order and allow it to address that issue in the first instance.
* * *
Because the key flaw in the majority opinion derives from a misunderstanding of the type of claims that may be brought under the IDEA, I start there. I first explain what substantive and procedural rights the IDEA grants. I go on to explain how standard principles of injunctive relief mean that students may sue to proactively eliminate risks to their substantive IDEA rights. I then address how the majority opinion‘s flawed understanding of these principles leads it to misunderstand Plaintiffs’ claims in this case and how Plaintiffs’ claims, when properly understood, are targeted at eliminating risks to class members’ substantive IDEA rights that derive from a common source. I last elaborate on why I would require the district court to make additional findings related to standing.
I.
A.
The majority opinion accurately summarizes most of the relevant IDEA provisions, see Maj. Op. at 3-8, so I provide an abbreviated discussion of the statute to highlight several additional provisions that are relevant to this case.
When it enacted the IDEA, Congress found that “millions of children with disabilities” were being “excluded entirely from the public school system and from being educated with their peers.”
The funds are conditioned on there being “in effect policies and procedures” to ensure children have access to a “free appropriate public education.”
B.
In addition to providing students with substantive rights, the IDEA also provides students and their parents or guardians with a panoply of procedural rights. See R.F. ex rel. E.F. v. Cecil Cnty. Pub. Schs., 919 F.3d 237, 245 (4th Cir. 2019) (“Whether a state has violated the IDEA has procedural and substantive components.“); MM ex rel. DM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 527 (4th Cir. 2002) (“The IDEA establishes a series of elaborate procedural safeguards ‘designed to ensure that the parents or guardian of a child with a disability are both notified of decisions affecting their child and given an opportunity to object to these decisions.‘” (quoting Gadsby ex rel. Gadsby v. Grasmick, 109 F.3d 940, 956 (4th Cir. 1997))). For example, “[t]he IDEA requires that the parents or guardian of a disabled child be notified by the school district of any proposed change to their child‘s” Individual Education Plan (“IEP“), and “the parents or guardian [must] be permitted to participate in discussions relating to their disabled child‘s evaluation and education.” MM, 303 F.3d at 527; see
To ensure that students and their parents or guardians can enforce the rights granted by the IDEA, the IDEA provides that “[a]ny local educational agency that receives assistance under [the IDEA] shall establish and maintain procedures . . . to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education.”
Such complaints are adjudicated in an administrative “due process hearing.”
If, in an ensuing suit, a federal court finds that a defendant has violated the IDEA, the IDEA directs that the court “shall grant such relief as the court determines is appropriate.”
With that in mind, I turn to briefly explain the types of harms for which a plaintiff may typically seek injunctive relief.
C.
“The purpose of an injunction . . . is to prevent future harms rather than redress those that have already occurred.” Erie Ins. Exch. v. Md. Ins. Admin., 105 F.4th 145, 150 (4th Cir. 2024).
To warrant injunctive relief, a plaintiff must generally establish “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.” O‘Shea v. Littleton, 414 U.S. 488, 502 (1974). Past harms may serve as “evidence bearing on ‘whether there is a real and immediate threat of repeated injury.‘” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (quoting O‘Shea, 414 U.S. at 496).
But because injunctive relief is forward-looking, a plaintiff need not show that they have already been harmed in order to seek an injunction. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir. 2000). Instead, “[t]hreats or increased risk . . . constitutes cognizable harm” for which an injunction may be sought. Id.4
Having separately provided an overview of the IDEA and of the types of claims for which injunctive relief may be sought, I turn to address the majority opinion‘s first error, which relates to what a plaintiff
II.
A.
The majority opinion makes a fundamental mistake in its description of what an IDEA plaintiff must prove to establish a claim for injunctive relief. The majority opinion firmly states that “whether a child has been denied a [free appropriate public education] ‘is the bottom-line liability question in any individual plaintiff‘s IDEA claim.‘” Maj. Op. at 15 (emphasis added) (quoting Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 497 (7th Cir. 2012)); see also id. at 24 n.9 (elaborating on the majority opinion‘s view that students cannot proactively seek injunctive relief to prevent the denial of their right to a free appropriate public education). Not so.
Instead, when a student seeks injunctive relief under the IDEA, the bottom-line liability question is whether the defendant has placed the student‘s right to a free appropriate public education at substantial risk. As in the typical suit for injunctive relief, past harm may be sufficient to prove the existence of substantial risk, but it is not necessary to prove it.5
Consider a hypothetical student with a disability who needs behavioral supports and attends school in a district that has failed to enact a policy on how to implement behavioral supports and that, as a result, has failed to properly implement behavioral supports for even a single student who needs them. Even if the student has just been timely identified as needing behavioral supports, the student still has good reason to worry that the Board of Education‘s policy will soon result in a deprivation of their promised education. But the majority‘s requirement that a student have already been denied their IDEA rights would prevent the student from proactively seeking injunctive relief. I find it inconceivable that this hypothetical student—or similar students in school districts with bad, but not quite as abysmal track records—would not be able to sue for injunctive relief to prevent that harm. But that is what the majority opinion claims the IDEA requires.
If we applied the same baseline rules to the IDEA that we apply to suits for injunctive relief regarding other rights, we would say that a student could sue a local educational agency for injunctive relief if either (1) the student has already been denied their free appropriate public education
The majority opinion‘s failure to recognize this second category of cases leads it to misunderstand Plaintiffs’ claims in this case, which I address next.
B.
The main purpose of Plaintiffs’ lawsuit is to obtain injunctive relief that would end the Board of Education‘s alleged “systematic failure to provide effective behavior supports and its subsequent [unnecessary] disciplinary removals of students with disabilities from the classroom.” J.A. 37.6 And, as I have explained, because Plaintiffs seek injunctive relief, we must analyze their claims with an eye toward what “future harms” they seek to prevent, rather than what past harms they have already suffered. Erie Ins. Exch., 105 F.4th at 150.
Plaintiffs’ approach to proving their claim for injunctive relief is best understood as proceeding in three steps. First, Plaintiffs explain that the Board of Education has routinely denied students the free appropriate public education guaranteed by the IDEA. Second, Plaintiffs explain that this routine denial of IDEA-guaranteed rights has been driven by a discrete set of actions and inactions. Third, Plaintiffs explain that the Board of Education‘s continued policy failures combined with its history of denying IDEA-guaranteed rights increases each class member‘s risk that they will be denied a free appropriate public education in the future.
i.
At the first step, Plaintiffs have put forth allegations and evidence pertaining to (1) patterns of past harms, and (2) individual examples of harm. For example, the district court discussed Plaintiffs’ evidence of disparities in suspension rates between students with and without disabilities. G.T., 2021 WL 3744607, at *3–4. And it also discussed evidence from Plaintiffs’ expert witness report establishing that the Board of Education has a pattern of failing to identify students who need behavioral supports, failing to implement behavioral supports, failing to adequately monitor students with behavioral supports, and failing to adequately train staff about how to fulfill their duties under the IDEA. See id. at *4–5.
The named plaintiffs built on that evidence by offering their personal stories as concrete examples of how the Board of Education‘s actions and omissions have allegedly denied students a free appropriate public education. See id. at *7–8.
ii.
At the second step, Plaintiffs point to the Board of Education‘s “policies, practices, procedures, acts, and omissions” as the underlying causes of the pattern of harm they identified. J.A. 37. While Plaintiffs do not “point to a single policy” that explains the entire pattern of harm, G.T., 2021 WL 3744607, at *14, they do identify a discrete set of alleged policy failures that each contributed to the pattern.7 Importantly,
The first “act[]” or “omission[]” that Plaintiffs’ complaint identified as the basis for their IDEA claims is the Board of Education‘s “fail[ure] to have in effect policies and procedures to ensure [it] provides a [free appropriate public education] to all eligible children in the district.” J.A. 62. Plaintiffs elaborated on that concept when they identified six class-wide issues in their briefing before the district court. That list of six issues included the four policies on which they focus in this appeal: (1) “[w]hether the [Board of Education] has an adequate system and procedures for identifying students with disabilities who need behavior supports“; (2) “[w]hether the [Board of Education] has adopted appropriate systems and procedures for . . . identifying the causes of disruptive behavior . . . when developing behavior supports for students who need them,” “developing and revising IEPs, Section 504 plans, and [Behavior Intervention Plans] for students with disabilities who need behavior supports,” and “implementing IEPs, Section 504 plans, and [Behavior Intervention Plans] for students with disabilities who need behavior supports to receive [a free appropriate public education] in the [least restrictive environment]“; (3) “[w]hether the [Board of Education] has an adequate system and procedures for monitoring whether students with disabilities who receive behavior supports
education] in the [least restrictive environment].” J.A. 879; see Response Br. at 26-27 (listing the “four areas” on which Plaintiffs focus).
So, the Plaintiffs and district court have explained, “this case is not about the behavioral supports that should be provided to the individual students within the proposed class.” G.T., 2021 WL 3744607, at *14. Instead, it is about whether the Board of Education has failed to enact policies that would provide guidance on how to identify students with disabilities that need behavioral supports, how to implement behavioral supports, how to monitor the progress of students who are prescribed behavioral supports, and how to train staff members responsible for providing behavioral supports.
iii.
At the third step, Plaintiffs have alleged that the combination of the first two steps means that all class members face an ongoing risk of harm that could be mitigated by an injunction. It is a small logical step to conclude that, if the failure to implement a policy has contributed to a pattern of harm in the past and no policy has since been implemented, then students face a risk of harm going forward.
Plaintiffs’ complaint takes that logical step by alleging that the Board of Education is “harm[ing] all class members in the same manner” because its conduct “increase[s] their risk of being subjected to” “disability-based discrimination” and denial of “educational services to which they are entitled by federal law.” J.A. 37; see J.A. 36 (“Due to the [Board of Education‘s] policies, practices, procedures, acts, and omissions in failing to provide effective behavior supports to its students, [the named plaintiffs] and the Plaintiff class are subjected to, or are at substantial risk of being subjected to, formal or informal disciplinary removals from school.” (emphasis added)).
And the district court acknowledged that Plaintiffs’ claims were based not only on past harms but also on the future risk of harm all class members face. In its discussion of the named plaintiffs’ typicality, the district court recognized that even though the named plaintiffs were already identified as needing behavioral supports in response to some of their past behaviors, they “remain exposed to the inadequate procedures” and are therefore at risk of harm from misidentification in the future. G.T., 2021 WL 3744607, at *15.
Having explained the Plaintiffs’ risk-of-harm theory, I turn now to why that theory presents issues common to all class members regardless of whether they have previously been denied their
C.
“What matters to class certification . . . is not the raising of common ‘questions‘—even in droves—but, rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). Applied to
As discussed above, the bottom-line question in determining liability in an
When a local educational association works to identify whether a student needs behavioral supports, it is not attempting to make an end all, be all determination of whether behavioral supports are needed and, if so, what set of behavioral supports will always suffice to meet the student‘s needs. To the contrary, an institution can only be expected to identify whether a student currently needs behavioral supports and what supports will meet the student‘s needs in the present moment. A prior finding that a student‘s behaviors indicated a need for behavioral supports does not eliminate the need to identify whether the student‘s new behaviors require a different set of behavioral supports.
As the district court explained, the named plaintiffs have already been identified as needing behavioral supports “due in part to the extensive advocacy of their parents and others involved in this litigation.” G.T., 2021 WL 3744607, at *15. But that previous identification does not exempt them from the risk that their future behaviors will be misidentified and that they will experience disciplinary removals in place of proper behavioral supports. In that way, the named plaintiffs “remain exposed to the inadequate procedures” and “[a]s they develop different challenging behaviors requiring a different set of responses and supports[,] . . . they, like other students with disabilities, will not be able to count on well-trained professionals carefully assessing their needs, designing a [Behavior Intervention Plan] responsive to those needs, ensuring that it is consistently implemented, and adjusting it as needed.” Id.
All of this is the common-sense recognition that children grow, they learn, and their behaviors change. And when their behaviors change, educators must reassess and identify whether their new behaviors indicate a need for behavioral supports. As the named plaintiffs or any of the other class members undergo that iterative process, the Board of Education‘s alleged failure to enact a policy on how to identify students who need behavioral supports increases the risk that their need for new or additional supports will not be identified and that they will thereby be denied their
The question of whether the
To the contrary, if the answer to the common question regarding whether the
Similar logic applies to each of the other three areas for which Plaintiffs claim the Board of Education has failed to enact legally required policies.9 Take, for example, a
student with a disability who has never been identified as needing behavioral supports. Of the four failures to enact policy that Plaintiffs have identified, the largest barrier to that student receiving a free appropriate public education is almost certainly the Board of Education‘s failure to enact a policy on identifying students who need behavioral supports. But the student still faces risk—and perhaps quite substantial risk—that they will be denied a free appropriate public education even if they are identified. Because the Board of Education has failed to enact policies about how to implement behavioral supports, how to monitor the progress of students
Even class members who have not yet been denied a free appropriate public education are at risk that the Board of Education‘s alleged failures to enact policy will lead to a denial of their right to a free appropriate public education.10 Just as with the named plaintiffs and the hypothetical student discussed above, the lack of policies increases the risk that the student‘s behavioral supports will not be implemented correctly in the future, that their progress will not be properly monitored in the future, and that their future behaviors that indicate a need for updated behavioral supports will be misidentified and met with disciplinary removals. Because “[a] central agency does not parcel out its systemic deliberate indifference child by child,” David Marcus, The Persistence and Uncertain Future of the Public Interest Class Action, 24 Lewis & Clark L. Rev. 395, 417 (2020), every student with a disability for whom the Board of Education is responsible faces a risk that their rights will be denied when the Board of Education fails to enact legally required policies.
To be sure, for any given policy change, some class members will benefit to a greater degree than will other class members. For example, the named plaintiffs’ expert found that G.T.‘s individual Behavior Intervention Plan “does not provide teachers with sufficient guidance on how to implement supports,” G.T., 2021 WL 3744607, at *7, so G.T. is likely to see a particularly large reduction in the risk that he will be denied his
But different degrees of risk reduction do not mean that the class lacks commonality. So long as the “heart” of class members’ claims is the same, the claims need not all be “perfectly identical or perfectly aligned.” Deiter v. Microsoft Corp., 436 F.3d 461, 467 (4th Cir. 2006). G.T. and other class members all see at least some increased risk due to the Board of Education‘s failure to enact a given policy, so they satisfy Rule 23‘s commonality requirement.
D.
Having laid out how we should resolve the commonality issue in this case, it is worth highlighting where the majority opinion‘s misunderstandings lead it astray.
To do so, I begin with some common ground. The majority opinion‘s discussion of the general principles governing class certification is nearly spot-on. I agree with the majority‘s general statement, quoting the D.C. Circuit, that “[a]fter Wal-Mart it is clear that defining the class by reference to [a school district‘s] pattern and practice of failing to provide [free appropriate public educations] speaks too broadly because it constitutes only an allegation that the class members ‘have all suffered a violation of the same provision of law,‘” which is ‘insufficient to establish commonality.‘” Maj. Op. at 15 (quoting DL v. D.C., 713 F.3d 120, 126 (D.C. Cir. 2013)).
I further agree with the general statement the majority opinion adopts from the
the holding in Wal-Mart provides no rational distinction between the application of an illegal policy and the failure to establish a legally required policy); cf. Wal-Mart, 564 U.S. at 352-53 (recognizing that an illegal policy may serve as the “glue” necessary to establish commonality).
But the majority opinion fails to recognize that the risk-of-harm allegations in this case satisfy the commonality standard it articulates.
In line with its flawed understanding of the
And the majority opinion‘s focus on past harms also leads it to miss that a student can face a risk of future harm from multiple policy failures simultaneously. For example, the majority opinion makes much to do about how some class members may have had their behavioral supports properly implemented while others did not, e.g., Maj. Op. at 25-26, precisely because the majority opinion misunderstands how a plaintiff could bring an
As one amicus law professor has noted elsewhere, this type of misunderstanding about risk-of-harm theories can lead courts to make merits determinations under the guise of
In essence, the majority opinion proceeds as though plaintiffs solely alleged that the Board‘s policy failures led each class member to be denied their
III.
Even though I disagree with the majority opinion‘s conclusion about whether Plaintiffs have satisfied Rule 23‘s commonality requirement, I would nonetheless vacate the district court‘s opinion. While each class member faces some risk of harm from the Board of Education‘s alleged policy
As addressed above, injunctive relief must be targeted at a risk of future harm. See Section I.C. Related to that principle, a risk of future harm can establish standing to pursue injunctive relief. See TransUnion LLC v. Ramirez, 594 U.S. 413, 435-36 (2021) (recognizing that material risk of future harm can satisfy the standing requirements in the context of a claim for injunctive relief to prevent the harm from occurring if the risk of harm is sufficiently imminent and substantial); Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 414 n.5 (2013) (discussing the Supreme Court‘s “substantial risk” standing doctrine).
However, “not all threatened injuries constitute an injury-in-fact.” Beck v. McDonald, 848 F.3d 262, 271 (4th Cir. 2017). Instead, the Supreme Court has “found standing based on a ‘substantial risk’ that . . . harm will occur” when the risk “may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm.” Clapper, 568 U.S. at 414 n.5. That means a plaintiffs injury must be “concrete in both a qualitative and temporal sense.” Beck, 848 F.3d at 271 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
Our case law does not precisely define when a plaintiff‘s likelihood of injury is so substantial or imminent as to grant standing in cases seeking injunctive relief, but it does provide some guidance. In Beck v. McDonald, this Court held that a plaintiff‘s allegations of risk in a data-breach class action fell short of establishing standing for injunctive relief because the plaintiffs’ risk-of-harm theory was “too speculative to constitute an injury-in-fact.” Beck, 848 F.3d at 274. The Beck plaintiffs brought data-privacy claims against Department of Veterans Affairs officials after a laptop containing unencrypted patient data was stolen from a Veterans Affairs Medical Center. Id. at 267. The plaintiffs “sought to establish Article III standing based on the harm from the increased risk of future identity theft and the cost of measures to protect against it.” Id. at 266-67. But “even after extensive discovery, the Beck plaintiffs . . . uncovered no evidence that the information contained on the stolen laptop ha[d] been accessed or misused or that they ha[d] suffered identity theft, nor, for that matter, that the thief stole the laptop with the intent to steal their private information.” Id. at 274. Instead, the plaintiffs merely asserted that “33% of health-related data breaches result in identity theft” and that the defendants recognized the risks inherent in data breaches. Id. at 275. Without any suggestion that the laptop had been stolen with the intention of breaching the data or that the data had in fact been accessed, the Court concluded that the chain of events necessary for the plaintiffs to face a “substantial” risk of harm was too attenuated to support standing.
By contrast, in Hutton v. National Board of Examiners in Optometry, we held that victims of a different data breach had “[a]t a minimum . . . sufficiently alleged an imminent threat of injury to satisfy Article III standing.” Hutton v. Nat‘l Bd. of Exam‘rs in Optometry, Inc., 892 F.3d 613, 622 (4th Cir. 2018). While we have recognized that past harm is neither necessary nor sufficient to prove risk of future harm, the Hutton plaintiffs sufficiently alleged that they faced an imminent risk of harm because “fraudsters [had already] used—and attempted to use—the Plaintiffs’ personal information.” Id. So, there was “no need to speculate on whether substantial harm [would] befall the
In addition to these guideposts about when a plaintiff‘s injuries are too speculative to qualify as a “substantial risk” of future harm, we have also suggested that the available remedies for an injury may factor into our analysis of standing. Specifically, as the Court noted in Beck, we may be more likely to hold that plaintiffs can pursue injunctive relief when their alleged harms are “‘difficult or impossible to remedy’ by monetary compensation.” Beck, 848 F.3d at 274 n.5 (quoting Cent. Delta Water Agency v. United States, 306 F.3d 938, 950 (9th Cir. 2002)).
Further, “a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Davis v. Fed. Election Comm‘n, 554 U.S. 724, 734 (2008) (cleaned up). And while Plaintiffs’ complaint contains only one
Throughout this litigation, Plaintiffs’ overarching attempt to obtain relief from the Board of Education‘s “systematic failure” to fulfill its duties under the
The named plaintiffs have indicated that a lack of “guidance on how to implement [behavioral] supports” has already led to issues with implementing their individual behavioral supports and to the denial of their individual rights to a free appropriate public education.12 G.T., 2021 WL 3744607, at *7-8. That past experience of harm, combined
with the ongoing risk that the harm will be repeated, is certainly sufficient to support standing to pursue injunctive relief with respect to the Board of Education‘s alleged failure to enact a policy about how to implement behavioral supports. See Hutton, 892 F.3d at 622.
But the district court did not make specific findings about whether the named plaintiffs’ risk of harm was sufficiently substantial as to grant them standing as to each claim for injunctive relief. “[B]ecause we are a ‘court of review, not first view,‘” United States v. Frank, 8 F.4th 320, 333 (4th Cir. 2021) (quoting Biggs v. N.C. Dep‘t of Pub. Safety, 953 F.3d 236, 243 (4th Cir. 2020)), I therefore would vacate and remand for the district court to address that issue in the first instance.
IV.
The
Because the majority opinion takes too narrow a view of what lawsuits the
Notes
Further, even if Plaintiffs did concede that their contentions about identification are not common, that alone would still not defeat commonality. “[E]ven a single common question will do,” so long as “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350, 359 (cleaned up). As addressed below, Plaintiffs’ claims about implementation, monitoring, and training would all separately satisfy the commonality requirement even if their claims about identification did not.
A class action does not preclude a class member from filing suit against the same defendant on a different claim. See Cooper v. Fed. Rsrv. Bank of Richmond, 467 U.S. 867, 880-82 (1984) (holding that resolution of a class action pertaining to whether employer engaged in a pattern or practice of discrimination did not preclude claims that employer discriminated against individual employees); Charles Wright, Arthur Miller & Mary Kay Kane, 7AA Fed. Prac. & Proc. Civ. § 1789 (3d ed. 2005 & Supp. 2024) (discussing preclusive effect of class-action judgments). A student may have multiple, distinct
Because I would vacate the district court‘s decision, I do not address “the distinct question whether every class member must demonstrate standing before a court certifies a class.” TransUnion, 594 U.S. at 431 n.4 (emphasis omitted) (declining to address this issue); see also In re Marriott Int‘l, Inc., Customer Data Sec. Breach Litig., 341 F.R.D. 128, 141 (D. Md. 2022) (summarizing cases from other courts about when class-member standing must be established), vacated on other grounds and remanded sub nom. In re Marriott Int‘l, Inc., 78 F.4th 677 (4th Cir. 2023), and reinstated by In re Marriott Int‘l Customer Data Sec. Breach Litig., 345 F.R.D. 137 (D. Md. 2023).