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Open-Ended Class Based On Systemic Violations Of Wisconsin Special Education Law Ordered Decertified

April 4, 2012 10:04 AM | Posted by D. Matthew Allen | Print this page

In Jamie S. v. Milwaukee Public Schools, -- F.3d --, 2012 WL 336170 (7th Cir. 2012), the Seventh Circuit was asked to approve the certification of a class of all students eligible to receive special education from the Milwaukee Public School system who are, have been, or will be denied or delayed entry into an individualized education program. Seven students with disabilities accused the school system of refusing to comply with requirements of the federal Disabilities Education Act that required them to identify children with disabilities and develop individualized programs tailored to their specific needs. The district court refused to certify a broad class of all school age children with disabilities, and instead certified a narrower class of students eligible for inclusion in the program but who had not yet been identified.

This identification problem caused the Seventh Circuit to reverse certification even of this narrower class as fatally indefinite. A significant portion of the class was not identified. Moreover, the relevant criteria for inclusion in the class was unknown. Identifying disabled students who might be eligible for special education services was a complex, highly individualized task.

The plaintiffs argued that a prior circuit decision from 1977 approving certification of an open-ended class, Alliance to End Repression v. Rochford, supported the district court’s decision. The Seventh Circuit was not impressed: “Rochford’s tolerance of a wildly indefinite class definition 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.’”

The court also noted that the class failed the Supreme Court’s Wal-Mart standard for establishing commonality. Gone are the days when a plaintiff could argue that the ultimate liability question presented a common issue when that question itself devolved to a series of individual answers. 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 members’ claims.

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