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DL v. District of Columbia

United States Court of Appeals, District of Columbia Circuit

June 23, 2017

DL, et al., Appellees
District of Columbia, A Municipal Corporation, et al., Appellants

          Argued March 31, 2017

         Appeal from the United States District Court for the District of Columbia (No. 1:05-cv-01437)

          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.

          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 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.


         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 (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, 137 S.Ct. 988, 999 (2017). That "ambitious" law, Rowley, 458 U.S. at 179, 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.

         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 (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, 546 U.S. at 350). 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 for interlocutory review, In re District of Columbia, No. 13-8009, Doc. No. 1477562 (D.C. Cir. Jan. 30, 2014), and the case once again advanced to summary judgment, where the district court entered judgment for the District on all claims concerning subclass two, and then on to a bench trial. D.L. v. District of Columbia, 109 F.Supp.3d 12, 36 (D.D.C. 2015). After considering testimony from seventeen witnesses and reviewing hundreds of exhibits, the district court issued a 130-page opinion finding the District liable for violating IDEA. D.L. v. District of Columbia, 194 F.Supp.3d 30 (D.D.C. 2016).

         The district court's findings were stark. It found that the District was failing to identify between 98 and 515 children a month-some two percent of preschoolers with disabilities who should have been located and offered special education services. Id. at 48. This placed the District's Child Find performance below jurisdictions with comparable rates of childhood disability, such as Arkansas, Kentucky, and Puerto Rico. Id. at 48, 53. In addition, the court found that the District was failing to provide a "smooth and effective transition" to almost 30 percent of disabled toddlers, id. at 63, and despite having the "longest period of time in the country" to decide whether children qualify for special education services, was missing the deadline for issuing eligibility determinations approximately 20 percent of the time, id. at 58-59.

         Acknowledging that the District had improved its Child Find program since 2007, when it had "the lowest percentage" of special education enrollment in the United States, the court stressed that "the District ha[d] yet to attain a period of sustained compliance." Id. at 78, 98. Indeed, the court observed, the numbers of children receiving special education had fallen by 15 percent in 2013 and 2014 when the District lacked "an enrollment benchmark"-i.e., a target number of children who should be enrolled in special education and related services. Id. at 51. Given these deficiencies, the court concluded that injunctive relief was necessary and, drawing on its "broad authority to grant 'appropriate' relief, '" Forest Grove School District v. T.A., 557 U.S. 230, 239 (2009) (construing 20 U.S.C. § 1415(i)(2)(C)(iii)), crafted remedies for the three remaining subclasses.

         For subclass one-children the District was failing to identify-the court set an 8.5 percent enrollment target, a figure drawn from national rates of special education enrollment and expert testimony concerning risk factors unique to Washington, D.C. To reach that target, the court required the District to increase enrollment rates by half a percent each year. For subclass three-children denied timely eligibility determinations-the court ordered the District to meet the statutory deadline 95 percent of the time and to improve its performance annually until it reached that level. Similarly, for subclass four-toddlers transitioning to preschool-the court required annual improvement, with an ultimate goal of 95 percent compliance. The court also imposed a range of "programmatic" remedies designed to improve the District's methods of finding and tracking children in its system. D.L. v. District of Columbia, 194 F.Supp.3d 30, 101-03. These remedies included requirements that the District establish databases, disseminate information to parents, and report its progress to the court.

         On appeal, the District challenges none of the district court's basic findings: that it was failing to identify children with disabilities, that it often missed the deadline for issuing eligibility determinations, and that it was providing a rocky transition to toddlers entering preschool. Instead, it argues that: (1) the case is moot because by the time the district court certified the subclasses in 2013 each named plaintiff was over age five, (2) class certification was improper under Wal-Mart, and (3) the injunction was unauthorized by IDEA and unsupported by the evidentiary record.

         Before considering these arguments, we think it helpful to note that the parents who brought this case are not the only ones concerned with the District's IDEA compliance. Since at least 1997, the U.S. Department of Education, which oversees state performance under IDEA, has repeatedly warned the District that it was neglecting its Child Find obligations. See id. at 72- 78 (documenting the Department's correspondence with the District since the mid-1990s); see also 20 U.S.C. § 1416(d)-(e) (authorizing the Secretary of Education to review state IDEA compliance and to withhold federal funds). In 1998, the Department "entered into a Compliance Agreement with DCPS mandating full compliance with the requirements of Part B of the IDEA." D.L., 194 F.Supp.3d at 76. In the two decades since, the Department has nonetheless regularly listed DCPS as a school district that "needs intervention." Id. at 73-79. According to the Department, the District has been especially deficient in its duty to timely evaluate children referred for special education by a parent, teacher, or pediatrician. Id. at 73. The Department even withheld a portion of the District's funding in 2009. Id. at 77. Although the record here reveals no specific link between the Department's actions and this case, the subclass two complaints, which focus on the same problem with timely evaluation, have been resolved. See D.L. v. District of Columbia, 109 F.Supp.3d 12, 36 (D.D.C. 2015) (granting summary judgment as to subclass two). This case now involves identification (subclass one), eligibility determinations (subclass three), and transition to preschool (subclass four).


         Beginning with mootness, we start from a point on which the parties agree: when the district court certified subclasses, the named plaintiffs' individual claims for injunctive relief were moot because, by that time, each child was older than five and, according to the District, had received special education services. The District argues that this rendered the dispute non-justiciable. According to the parents, however, two exceptions to the mootness doctrine apply: first, a "relation back" exception, which permits class actions to proceed when a named plaintiff's individual claim becomes moot only after a district court's error; and second, the "inherently transitory" exception, which applies to claims so fleeting that "the trial court will not have even enough time to rule" on ...

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