United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 10, 2013 Decided April 12, 2013

No. 11-7153

DL, ET AL.,

APPELLEES

v.

DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, ET AL.,

APPELLANTS

Consolidated with No. 12-7042

Appeals from the United States District Court

for the District of Columbia

(No. 1:05-cv-01437)

Todd S. Kim, Solicitor General, Office of the Attorney

General for the District of Columbia, argued the cause for

appellants. With him on the briefs were Irvin B. Nathan,

Attorney General, and Donna M. Murasky, Deputy Solicitor

General. Mary L. Wilson, Assistant Attorney General, entered

an appearance.

Bruce J. Terris argued the cause for appellees. With him on

the brief were Jeffrey S. Gutman, Cyrus Mehri, Jane M. Liu, and

Margaret A. Kohn.
2

Kelly Bagby, Daniel Kohrman, Michael Shuster, Ira A.

Burnim, Joseph B. Espo, and Sharon Krevor-Weisbaum, were on

the brief for amici curiae AARP, et al. in support of appellees.

Before: GARLAND,Chief Judge, ROGERS, Circuit Judge, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

Concurring opinion by Senior Judge EDWARDS.

ROGERS, Circuit Judge: The District of Columbia appeals

from the structural injunction entered by the district court in this

class action challenging the policies and practices of the

District’s “Child Find” system under the Individuals with

Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. 

It principally contends that the class certification pursuant to

Federal Rule of Civil Procedure 23(a)(2) was improper as a

matter of law, and that the district court lacked discretion to

award systemic relief, or at least acted impermissibly in the

absence of an explanation of how it bridged the gap between

individual relief and the systemic relief ordered. In view of the

clarification in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,

2551 (2011), of the requirements of Rule 23(a)(2), we vacate the

class certification order, and consequently the liability and

remedial orders, and we remand the case for the district court to

reconsider whether a class, classes, or subclasses may be

certified and if so, thereafter to redetermine liability and

appropriate relief. 

I.

The IDEA provides federal funds to assist States and local

agencies in educating children with disabilities “and conditions

such funding upon a State’s compliance with extensive goals and
3

procedures.” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

548 U.S. 291, 295-96 (2006) (quoting Board of Ed. of Hendrick

Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S.

176, 179 (1982)). A “State” is defined to include the District of

Columbia. 20 U.S.C. § 1401(31). One of the primary purposes

of the IDEA is to “ensure that all children with disabilities have

available to them a free appropriate public education.” See id. §

1400(d)(1)(A); Alegria v. Dist. of Columbia, 391 F.3d 262, 263

(D.C. Cir. 2004). The IDEA conditions the receipt of federal

funding on there being “in effect policies and procedures to

ensure” that all children residing therein between the ages of 3

and 21 have access to a “free appropriate public education”

(“FAPE”). See 20 U.S.C. § 1412(a)(1)(A). A principal means

offulfilling this obligation is to establish a “Child Find” program

under which children with disabilities in need of special

education “are identified, located, and evaluated and a practical

method is developed and implemented to determine which

children with disabilities are currently receiving needed special

education and related services.” Id. § 1412(a)(3)(A). This

includes ensuring that “[c]hildren participating in early

intervention programs . . . , and who will participate in preschool

programs . . . experience a smooth and effective transition . . . .” 

Id. § 1412(a)(9). 

The IDEA provides that “[c]hildren with disabilities and

their parents are afforded the procedural safeguards required by

section 1415 of this title.” Id. § 1412(a)(6). Section 1415

provides that there shall be “an opportunity for any party to

present a complaint - (A) with respect to any matter relating to

the identification, evaluation, or educational placement of the

child, or the provision of a [FAPE] to such child.” Id.

§ 1415(b)(6)(A). Upon exhausting administrative remedies,

“any party aggrieved by the findings and decision made . . . shall

have the right to bring a civil action with respect to the complaint

presented.” Id. § 1415(i)(2)(A). A court — after evaluating the
4

“records ofthe administrative proceedings,” “hearing additional

evidence at the request of a party,” and “basing its decision on

the preponderance of the evidence” — “shall grant such relief as

the court determines is appropriate.” Id. § 1415(i)(2)(C). The

Secretary of Education annually reviews the performance plan

of a State on the conditions set forth in § 1412 and may withhold

or recover funds upon finding poor performance of the IDEA

obligations. See generally id. § 1416. 

In July 2005, six named plaintiffs, on behalf of themselves

and others similarly situated, sued the District of Columbia

government and the D.C. Superintendent of Public Schools

(hereinafter, “the District”), pursuant to 42 U.S.C. § 1983. They

identified themselves in terms of their own experiences at

various stages of the IDEA Child Find and FAPE process, see

Am. Compl. ¶¶ 5–76, and alleged that the District’s “actions

amount to a policy, pattern, practice or custom that violates

federal law and shows deliberate indifference to plaintiffs’

federal rights,” id. ¶ 109. Specifically, they alleged that the

District’s policies and practices had resulted in systemic failures

to identify, locate, evaluate, and offer special education and

related services to disabled preschool-age children, in violation

of the IDEA, 20 U.S.C. § 1412(a), § 504 of the Rehabilitation

Act, federal and District of Columbia regulations implementing 1

Section 504 of the Rehabilitation Act provides that “[n]o 1

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.” 29 U.S.C.

§ 794(a);see Alexander v. Choate, 469 U.S. 287, 295 (1985); see also

Se. Cmty. Coll. v. Davis, 442 U.S. 397, 412–13 (1979); Am. Council

of the Blind v. Paulson, 525 F.3d 1256, 1266 (D.C. Cir. 2008). 
5

the IDEA, and the Due Process Clause of the Fifth Amendment 2

to the U.S. Constitution. Am. Compl. ¶¶ 1, 109. As relief, they

requested certification of a specified class pursuant to Rule

23(b)(2) of the Federal Rules of Civil Procedure; a declaratory

judgment that the District had violated federal and District of

Columbia law, including the IDEA, by failing to identify, locate,

evaluate and offer a FAPE to eligible children and to ensure a

smooth and effective transition from early intervention to

preschool programs; and preliminary and permanent injunctions

ordering the District to “develop and implement adequate and

effective policies and procedures and a practical method of

identifying, locating and evaluating plaintiffs for special

education and related services.” Id. at 33–34. They also sought,

among other things, orders enjoining the District to provide

“compensatory education to the plaintiffs whom defendants

failed to identify, locate, evaluate or offer special education and

related services when they were between three and five years

old, inclusive,” and to provide reimbursement of privately

expended funds for these services, as well as the appointment of

a special master. Id. at 35.

In August 2006, the district court certified the specified 

class pursuant to Rule 23(a) and 23(b)(2). See D.L. v. Dist. of 3

Plaintiffs cited, for example, 34 C.F.R. §§ 104.32-104.39 as 2

well as 5-E D.C.M.R. § 3002.1(a) (requiring the District to “make a

[FAPE] available to each child with a disability, ages three to twentytwo, who resides in, or is a ward of, the District”) and § 3002.1(d)

(requiring the District to “ensure that procedures are implemented” to

comply with the “Child Find” program “regardless of the nature or

severity of the[] [children’s] disabilities”). See also 5-E D.C.M.R.

§ 3000 et seq.

Rule 23 of the Federal Rules of Civil Procedure provides, in 3

relevant part:
6

Columbia, 237 F.R.D. 319 (D.D.C. 2006). The certified class

was defined as:

All children who are or may be eligible for special

education and related services, who live in, or are

wards of, the District of Columbia, and (1) whom

defendants did not identify, locate, evaluate, or offer

special education and related services to when the child

was between the ages of three and five years old,

inclusive, or (2) whom defendants have not or will not

(a) Prerequisites. One or more members of a class may sue or

be sued as representative parties on behalf of all members

only if:

(1) the class is so numerous that joinder of all

members is impracticable;

(2) there are questions of law or fact common to the

class;

(3) the claims or defenses of the representative parties

are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and

adequately protect the interests of the class. 

Rule 23(b), “Types of Class Actions,” provides that “[a] class action

may be maintained if Rule 23(a) is satisfied and if . . . 

(2) the party opposing the class has acted or refused

to act on grounds that apply generally to the class, so

that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class

as a whole; or

(3) the court finds that the questions of law or fact

common to class members predominate over any

questions affecting only individual members, and that

a class action is superior to other available methods

for fairly and efficiently adjudicating the controversy.

* * * *
7

identify, locate, evaluate or offer special education and

related services to when the child is between the ages

of three and five years old, inclusive.

Id. at 321. The district court found that the Rule 23(a)

commonality requirement was met because “plaintiffs . . . have

a common injury, namely the denial of a FAPE under the

IDEA,” and all “allege that defendants have violated the Child

Find requirement.” Id. at 322. Regarding Rule 23(a) typicality,

the district court found that the “named plaintiffs were injured by

the same alleged systemic pattern of IDEA violations that

allegedly injured the other class members, and that the named

plaintiffs’ injury [was] typical of the other class members’

injuries.” Id. The plaintiffs had, the court explained, “pointed

to practices which, if proven, constitute a pervasive pattern and

practice of failing to identify, locate, evaluate and offer them

services and that defendants lack an adequate Child Find

system,” allegations that were “sufficient to satisfy the Rule

23(b)(2) requirement.” Id. at 324. 

In 2010, following lengthy discovery, see generally D.L. v.

Dist. of Columbia, 274 F.R.D. 320, 322–24 (D.D.C. 2011), the

district court granted in part the District’s motion for summary

judgment, ruling that the plaintiffs could not proceed under 42

U.S.C. § 1983 to enforce the IDEA and rejecting the plaintiffs’

argument “that the IDEA does not provide the full relief they are

requesting.” D.L. v. Dist. of Columbia, 730 F. Supp. 2d 84, 92 4

The district court had previously denied the District's

4

motions to dismiss plaintiffs’ IDEA claims for failure to exhaust

administrative remedies, finding this requirement excused or, in the

alternative, alreadymet, D.L. v. Dist. of Columbia, 450 F. Supp. 2d 11,

17–19 & 18 n.2 (D.D.C. 2006) (citing Hartman v. Duffey, 88 F.3d

1232, 1235 (D.C. Cir. 1996)), and for failure to allege disparate

treatment solely due to their disabilities for purposes of the
8

(D.D.C. 2010). The district court concluded that a “successful

civil action directly under the IDEA . . . will have the same effect

as a § 1983 action,” and elected to “construe the First Claim of

plaintiffs’ Amended Complaint to state a cause of action directly

under § 1415(i)(2)(A) of the IDEA.” Id. at 92-93. The district

court also granted the plaintiffs’ motion for partial summary

judgment as to liability under the IDEA, the Rehabilitation Act,

and District of Columbia law. See id. at 94-95, 99–100. Upon

reviewing data through 2007, the district court found that the

District had denied a FAPE to a large number of children aged

3 to 5 years old in violation of IDEA § 1412(a)(1)(A), id. at 95;

failed to comply with its Child Find obligations under §

1412(a)(3)(A), id. at 96-97; and failed to provide children with

a smooth and effective transition under § 1412(a)(9), id. at

97-98. The district court proceeded in April 2011 to address

liability from 2008 onward. Id. at 101. That month, the District

moved to decertify the class. 

Before further rulings by the district court, the Supreme

Court in June 2011 issued Wal-Mart Stores, Inc. v. Dukes, 131

S. Ct. 2541. The District filed a supplemental memorandum of

law to its motion to decertify the class in July, arguing, in part,

that the plaintiffs’ claims were too broad to establish

commonality under Rule 23(a) as required by Wal-Mart. In

August, the plaintiffs filed a motion for class re-certification and

for leave to file their second amended complaint. They proposed

to amend the class certification to add four subclasses, consisting

of children whom the District failed: (1) to identify or locate for

services; (2) to provide with a timely initial evaluation; (3) to

Rehabilitation Act, finding the plaintiffs had “alleged sufficient facts

to make a prima facie showing that defendants have ‘departed grossly’

from accepted Child Find practice and standards,” which was

sufficient to meet the Rehabilitation Act pleading standards, D.L. v.

Dist. of Columbia, 450 F. Supp. 2d 21, 23–24 (D.D.C. 2006).
9

provide with a timely eligibility determination; or (4) to provide

with a “smooth and effective” transition from early intervention

to preschool programs. The plaintiffs also sought a hybrid

certification of their declaratory and injunctive claims under

Rule 23(b)(2) and their individual claims for compensatory

education and reimbursement under Rule 23(b)(3).

The district court denied the District’s motion to decertify

the class and granted re-certification of the plaintiffs’ claims for

reimbursement and compensatory education under Rule

23(b)(3). D.L. v. Dist. of Columbia, 277 F.R.D. 38, 40-41

(D.D.C. 2011). In denying the District’s motion, the district

court found, as relevant, that the plaintiffs had “amply

demonstrated there are questions of law and fact common to the

class,” all members of which “suffered the same injury: denial of

their statutory right to a free appropriate public education.” Id.

at 45. It explained that the “differing allegations only represent

the differing ways in which the [District] ha[s] caused class

members’ common injury.” Id. It identified the common

question — the crux of plaintiffs’ claim — to be whether class

members received a FAPE, and stated this issue was susceptible

to classwide proof. See id. at 45-46. It found the “glue” binding

together the various reasons why individual class members were

denied a FAPE to be the “systemic failures” within the District’s

education system, stating the “[p]laintiffs presented credible

evidence of [the District’s] ineffective policies and practices,

which persisted for years without leading to any significant

increase in the number of preschool-age children receiving a

FAPE.” Id. at 46. Regarding typicality, the district court’s

reasons for concluding Rule 23(a)(3) was satisfied were similar

to its determination in initially certifying the class. See id. The

district court accordingly deemed moot the plaintiffs’ motion to

recertify the class using subclasses. See id. at 47.
10

Thereafter, upon extending its finding of liability to the

District’s actions from 2008 to April 2011, D.L. v. Dist. of

Columbia, 845 F. Supp. 2d 1, 6 (D.D.C. 2011), the district court

enjoined the District from further violations of the IDEA, § 504

of the Rehabilitation Act, and District of Columbia law, and

issued a structural injunction, see id. at 25-34. The injunction

included programmatic requirements and numerical goals that

would remain in effect until the District demonstrated sustained

compliance. See id. The District appeals. 5

II.

In Wal-Mart, the Supreme Court instructed that under Rule

23(a)(2), the plaintiffs’ “claims must depend upon a common

contention” that is “of such a nature that it is capable of

classwide resolution - which means that determination ofits truth

or falsity will resolve an issue that is central to the validity of

each one of the claims in one stroke.” 131 S. Ct. at 2551. “This

does not mean merely that [class members] have all suffered a

violation of the same provision of law,” for “[w]hat matters to

class certification . . . is not the raising of common ‘questions,’

. . . but, rather the capacity of a classwide proceeding to generate

common answers apt to drive the resolution of the litigation.” 

Id. (internal quotation marks omitted) (emphasis in original). 

Likewise, Rule 23(b)(2) allows class treatment “only when a

single injunction or declaratory judgment would provide relief

Specifically, such compliance “shall begin after [the 5

District], during a single year (‘the baseline year’), meet[s] or

exceed[s] all three numerical requirements” and concludes within two

or three years if certain additional conditions are met. D.L. v. Dist. of

Columbia, 845 F. Supp. 2d at 29. But “if [the District] fail[s] to meet

any of the numerical requirements. . . defendants must establish a new

baseline year of compliance before being able to show sustained

compliance.” Id.
11

to each member of the class. It does not authorize class

certification when each individual class member would be

entitled to a different injunction or declaratory judgment against

the defendant.” Id. at 2557 (emphasis in original). The Court

explained that “the key to the (b)(2) class is the indivisible nature

of the injunctive or declaratory remedy warranted — the notion

that the conduct is such that it can be enjoined or declared

unlawful only as to all of the class members or as to none of

them.” Id. (internal quotation marks omitted). The Court noted

that the district court must conduct a “rigorous” classcertification analysis, id. at 2551 (quoting Gen. Tel. Co. of. Sw.

v. Falcon, 457 U.S. 147, 160 (1982), and Coopers & Lybrand

v. Livesay, 437 U.S. 463, 469 (1978)), which may “entail some

overlap with the merits of the plaintiff’s underlying claim,” id. 

The Court has since cautioned that “Rule 23 grants courts no

license to engage in free-ranging merits inquiries at the

certification stage. Merits questions may be considered to the

extent — but only to the extent — that they are relevant to

determining whether the Rule 23 prerequisites for class

certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans &

Trust Funds, 133 S. Ct. 1184, 1194–95 (2013); see also Comcast

Corp. v. Behrend, 569 U.S. __ (2013), slip op. at 6 (March 27,

2013).

The District contends that the class certified by the district

court lacks commonality as a matter of law, and that this court

should vacate the certification, liability, and relief rulings. Not

to make too subtle a point, the District’s position is that

“[a]lthough loosely focused on one general ‘child find’ system,

the certified class reaches across different legal requirements

applicable to different actors in different agencies at different

points of time to children with different disabilities in different

factual settings.” Appellant’s Br. at 28. It views the certified

class to “cover[]failures in four distinct administrative functions:

(1) identification of a child as one potentially needing services,
12

(2) location of that child, (3) evaluation for potential services,

and (4) if necessary, provision of services.” Id. at 29. In other

words, to it “the class definition itself makes plain that named

plaintiffs here attempt to amalgamate multiple, distinct

categories of claims.” Id. at 28. The class members may suffer

from the same violation of law, as the district court found, but,

the District urges, there is no common contention whose

determination “will resolve an issue . . . central to the validity of

each one of the claims in one stroke.” Id. at 29 (quoting WalMart, 131 S. Ct. at 2551). The plaintiffs contest the District’s

understanding of Wal-Mart’s interpretation of the commonality

requirement, maintaining that a pattern or practice of Child Find

violations, as here, does affect all class members because the

District’s systemic failures result in the failures to identify,

locate, evaluate and provide special education services to large

numbers of disabled preschool-aged children, regardless of the

factual circumstances of the individual children who suffered

Child Find violations. Their challenge to the District’s

systemwide conduct, they maintain, can be resolved by a single

determination. 

After Wal-Mart it is clear that defining the class 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,” which the Supreme Court has

nowinstructed is insufficient to establish commonalitygiven that

the same provision of law “can be violated in many different

ways.” Wal-Mart, 131 S. Ct. at 2551. In the absence of

identification of a policy or practice that affects all members of

the class in the manner Wal-Mart requires, the district court’s

analysis is not faithful to the Court’s interpretation of Rule 23(a)

commonality. 
13

In certifying the class, the district court deemed the

plaintiffs’ pattern and practice claims sufficient to meet Rule

23(a)’s prerequisite of commonality. See D.L. v. Dist. of

Columbia, 237 F.R.D. at 322; D.L. v. Dist. of Columbia, 277

F.R.D. at 45. Likely so prior to Wal-Mart. See, e.g., Baby Neal

ex rel. Kanter v. Casey, 43 F.3d 48, 60 (3d Cir. 1994). But

Wal-Mart’s interpretation of Rule 23(a)(2) has changed the

landscape, as our sister circuits have acknowledged. See

Arlington Video Prodns., Inc. v. Fifth Third Bancorp, 2013 WL

560635 at *14 (6th Cir. Feb. 14, 2012); Luiken v. Domino’s

Pizza, LLC, 705 F.3d 370, 376–77 (8th Cir. 2013); In re

Countrywide Fin. Corp., 708 F.3d 704, 709 (6th Cir. 2013);

Tabor v. Hilti, Inc., 703 F.3d 1206, 1228 (10th Cir. 2013); M.D.

ex. rel. Stukenberg v. Perry, 675 F.3d 832, 839 (5th Cir. 2012);

McReynolds v. Merrill Lynch, Pierce, Fenner &Smith, Inc., 672

F.3d 482, 487 (7th Cir.), cert. denied, 133 S. Ct. 338 (2012);

Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 497 (7th Cir.

2012). In Wal-Mart, the Court explained that where the

defendant is alleged to have

engage[d] in a pattern or practice of discrimination . . .

in resolving an individual’s Title VII claim, the crux of

the inquiry is the reason for a particular employment

decision. * * * Without some glue holding the alleged

reasons for all those decisions together, it will be

impossible to say that examination of all the class

members’ claims for relief will produce a common

answer to the crucial question why was I disfavored.

 

Id. at 2552 (internal citations omitted) (emphasis in original). 

The broad class certified by the district court does not satisfy

Rule 23(a)(2)’s requirement for commonality.

The circuit courts of appeals to address the question have

hewed faithfully to Wal-Mart’s “one stroke” requirement. For
14

example, in McReynolds, the Seventh Circuit held on

interlocutory appeal that a putative class of African American

employees who alleged that their employer’s company-wide

“teaming” and “account distribution” practices had a disparate

impact on their advancement within the company, in violation of

Title VII and 42 U.S.C. § 1981, was “not forbidden by the WalMart decision.” 672 F.3d at 490. In Wal-Mart the Supreme

Court acknowledged that “‘in appropriate cases,’ giving

discretion to lower-level supervisors can be the basis ofTitle VII

liability under a disparate-impact theory,” 131 S. Ct. at 2554

(citation omitted), where commonality could be satisfied by

“‘[s]ignificant proof that an employer operated under a general

policy of discrimination . . . if the discrimination manifested

itself in hiring and promotion practices in the same general

fashion,’” id. at 2553 (quoting Falcon, 457 U.S. at 159 n.15). 

Although in McReynolds “each class member would have to

prove that his compensation had been adversely affected by the

corporate policies, and by how much,” the Seventh Circuit

emphasized that a class action on disparate impact meant that “at

least it wouldn’t be necessary in each of those trials to determine

whether the challenged practices were unlawful.” McReynolds,

672 F.3d at 491. The pututative class in McReynolds was

appropriate post-Wal-Mart because the economic harm alleged

by each class member was the result of the same corporate-wide

policies and if the polices were held unlawful then a question

central to the validity of each class member’s claim would be

resolved in one stroke. See id. at 488–90; see also Floyd v. City

of New York, 283 F.R.D. 153, 173 (S.D.N.Y 2012).

In contrast, the harms alleged to have been suffered by the

plaintiffs here involve different policies and practices at

different stages of the District’s Child Find and FAPE process;

the district court identified no single or uniform policy or

practice that bridges all their claims. When faced with a similar

IDEA lawsuit, the Seventh Circuit in Jamie S., 668 F.3d at
15

497–98, effectively rejected, in view of a broadly defined class,

the attempt to distinguish Wal-Mart’s interpretation of Rule

23(a) commonality in the context of a pattern and practice claim. 

We do not suggest that widespread policies and practices in

violation of the IDEA could never satisfy Rule 23(a)(2)’s

commonality requirement after Wal-Mart, see Jamie S., 668

F.3d at 503–05 (Rovner, J., concurring in part and dissenting in

part), but rather that, in view of Wal-Mart’s interpretation of

Rule 23(a)(2) commonality and the broadly certified class, as in

Jamie S. “[t]he plaintiffs’ claims appear to be based on multiple,

disparate failures to comply with the [District’s] statutory child

find obligations rather than a truly systemic policy or practice

which affects them all,” id. at 504–05. For some plaintiffs, for

example, the alleged harm suffered is due to the failure of the

District to have an effective intake and referral process; for

others the alleged harmis caused bythe District’s failure to offer

adequate and timely education placements to implement

individual education plans (“IEPs”); for still others, the cause is

the absence of a smooth and effective transition from early

intervention programs to preschool programs. Although the

district court found that all members of the class are harmed as

a result of the systemic deficiencies due to the District’s failure

to establish the required ChildFind programand FAPEpractices

and policies, what common “tru[e] or fals[e]” question can be

answered for each of these three different claims of harm that

would assist the district court in determining the District’s

liability as to each group? Wal-Mart instructs that holding that

the District has violated the IDEA as to each class member is not

enough to establish Rule 23(a) commonality, 131 S. Ct at 2551,

in the absence of a uniform policy or practice that affects all

class members. 

Again, none of this is to suggest that a class can never be

certified in this kind of case. Rule 23(a)(2) does not require that

all questions be common to the class. Rather, as noted, the
16

Supreme Court acknowledged that “‘even a single common

question’ will do,” id. at 2556 (internal citation and brackets

omitted), as long as its determination “will resolve an issue that

is central to the validity of each one of the claims in one stroke,”

id. at 2551. Likewise, although Rule 23(b)(2) “applies only

when a single injunction or declaratoryjudgment would provide

relief to each member of the class,” id. at 2558, the Rule does

not bar courts fromgranting further equitable reliefthat does not

reach every plaintiff in the case. But given Wal-Mart’s

interpretation of Rule 23(a) commonality, the requested relief

must respond, at least in part, to a common harm suffered as a

result of a policy or practice that affects each class member. 

The plaintiffs appeared to recognize the problem with the

currently certified class when, after Wal-Mart was issued, they

moved to add four subclasses consisting of children whom the

District failed to: (1) identify or locate for services; (2) provide

with a timely initial evaluation; (3) provide with a timely

eligibility determination; or (4) provide with a “smooth and

effective” transition from Part C to Part B. See Plaintiffs’ Mem.

of Law in Support of Their Mot. for Class Re-Certification. In

effect, the plaintiffs were suggesting that they could show as to

each subclass that the harm caused by the District’s failures

stemmed froma policy or practice that would provide a basis for

the requested injunctive and declaratoryrelief. The district court

never reached this question. Nor do we. One circuit has

suggested, however, that the district court’s certification of

subclasses might resolve the Rule 23(a)(2) problem. See M.D.,

675 F.3d at 848 (citing Marisol A. v. Giuliani, 126 F.3d 372,

378–79 (2d Cir. 1997) (stating that “[o]ne possible method of

developing proper subclasses would divide the present class

based on the commonality of the children’s particular

circumstances, the type of harm the children allegedly have

suffered, and the particular systemic failures which the plaintiffs

assert have occurred”)). 
17

Although they disagree with the District’s interpretation of

the commonalityrequirement, the plaintiffs have urged that “if,”

in view of Wal-Mart, “this Court finds that plaintiffs’ class lacks

commonality, remand to the district court to reconsider

subclasses would be appropriate.” Appellees’ Br. at 46. The

District “agrees that [the plaintiffs]should have this opportunity,

and that this Court need not consider the subclasses they

proposed,” although it “doubts [that even] they comply with

Wal-Mart.” Reply Br. at 25. We agree that a remand is

appropriate so the district court can determine whether

subclasses would meet the requirements of Rule 23(a)

commonalityafter Wal-Mart. We understand the District to take

no issue with the district court’s ruling that the IDEA is

amenable to class actions. See Oral Arg. Jan. 10, 2013 Tr. at 5,

20, 59. The District has focused on how Wal-Mart appears to

have changed the law to require that one injunction address the

common harms identified by all the children in the class or

subclass, and on the fact that the district court did not find there

was any particular policy or practice that linked all claims but

only that there were systemic deficiencies. The District’s

challenge to the certified class thus does not rule out the

possibility of classes or subclasses that are designed around a

policy or practice that links the class as a whole; neither would

it rule out separate classes in a consolidated case. See id. at 25,

28.

Accordingly, we vacate the order certifying the class and,

consequently, the orders finding liability and ordering relief to

that class. We remand the case to the district court for

reconsideration of whether a class, classes, or subclasses may be

certified, and if so, thereafter to redetermine liability and

appropriate relief. Because this is the relief that the District

seeks, see Appellant’s Br. at 58; Reply Br. at 24-25, we need not

reach the district court’s ruling on the scope ofthe Rehabilitation

Act, see Oral Arg. Jan. 10, 2013 Tr. at 24-26.
EDWARDS, Senior Circuit Judge, concurring: I am pleased 

to concur in the opinion for the court and do so without caveat.

I write separately merely to amplify some points of concern.

During oral argument before this court, counsel for the 

District of Columbia made the astonishing argument that 

Wal-Mart would bar a class action by disabled children who 

seek to challenge a clear city policy that forecloses the 

processing of all IDEA claims. Here is the exchange between 

the counsel for the District and the court:

Judge: I have to say that I am confused about the way you 

have argued this part. . . . So, imagine that we solve 

the Rule 23 problem. The statute says the state has 

to have in effect policies and procedures to ensure 

the state meets the following conditions and the 

state announces: “We don’t care; we’re not going to 

do it. We have no policy, nothing in effect at all. 

And therefore, no child in our district will ever get a 

FAPE [free appropriate public education].” And 

there is a class action brought by all children who 

are disabled and have tried to get a FAPE and can’t 

get one because [the city] ha[s] a policy. Do you 

have any doubt that this could be brought . . . first of 

all, that this satisfies Wal-Mart, you have no doubt 

that a request for an injunction ordering the state to 

follow the IDEA and to adopt policies and 

procedures – without specifying even what they are 

– would that be a Wal-Mart problem?

Counsel: It would be a problem under Wal-Mart in the 

context of IDEA because . . . the reason why the 

District failed any particular child is not a part of 

any individual . . .

Judge: But it affects every child in the example I just gave. 

Right? Every single child because [the city] is not 

having any FAPE. So, it is not the only reason they 

failed every child. There [is] additional 

individualized decisionmaking that has to be made, 

but here is one policy that affects every child. You 
2

have a doubt that Wal-Mart permits that kind of 

injunction?

Counsel: I do your honor. . . .

* * * *

Judge: Let’s say there is a class of 1,000 children all of 

whom are disabled and none of whom can get any 

benefits from the District at all because they are 

“stopped . . . at the door” by a [city] rule that says 

“we are not going to give you any benefits at all.” 

Why isn’t that a “common fact” issue solvable by a 

single injunction? 

* * * *

Counsel: Wal-Mart said that . . . there has to be an up or down 

resolution of a common contention and the 

resolution of that common contention has to be 

central to the validity of each one of the claims. If 

you break down the class that you are proposing, 

each individual there would say something like “I 

was not found . . .”

Judge: No, no, no. Each individual would say I cannot get 

in the door. . . .

Judge: You heard my example of the [city’s] policy. [It] is: 

“we are not going to follow IDEA at all.” That’s 

what it said. Now isn’t it the case that every 

individual who is disabled has a claim that the 

District follow IDEA and if the District’s going-in 

policy is “we are not going to follow it,” [then] 

everyone has a common claim that their rights are 

being violated?

* * * *

Counsel: I really do think there is a disconnect between 

perhaps the court’s understanding of Wal-Mart and 
3

mine. But again the court just needn’t reach the 

issue. . . .

Judge: You have now forced us to reach the issue, which is 

unfortunate for the District of Columbia. You have 

forced us to reach the issue. . . . Because we know 

you are going to make the argument [to the District 

Court] that it is not possible – even if there is a 

single policy that will affect every single member of 

the class [and] which can be solved by a single 

injunction – . . . that Wal-Mart doesn’t permit that. 

And Wal-Mart expressly does permit that. . . .

Oral Arg. at 1:16:05-22:58.

The argument raised by the District is astonishing because 

it is patently wrong. Wal-Mart surely does not foreclose a class 

action to challenge a city policy that effectively precludes 

protected parties from even being considered for benefits that 

would otherwise be available. And all claimants who are 

similarly blocked by the policy may join a class action to 

challenge it. Such a class action would easily satisfy the 

commonality requirement of Rule 23 even after Wal-Mart. See, 

e.g., McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, 

Inc., 672 F.3d 482, 489-91 (7th Cir. 2012) (explaining that 

Wal-Mart allows a class action to challenge specific, 

companywide policies that “exacerbate racial discrimination 

by brokers”), cert denied, 133 S. Ct. 338 (2012).

This point is highly relevant with respect to the matters 

that must be resolved on remand. It is therefore important that 

the District Court understand that it will be free to certify a 

class or subclass if it determines that a single policy or practice 

effectively forecloses disabled children in that class or subclass 

from pursuing IDEA benefits. See id. As Judge Rovner noted 

in Jamie S. v. Milwaukee Public Schools:

[N]otwithstanding the inherently child specific nature of 

child-find inquiries, a class action based on a truly systemic 
4

child-find failure may be viable. And the fact that it may not be 

possible to identify individual class members until the remedial 

phase of the litigation, when prospective members of the class 

are invited to come forward and establish that they were among 

those injured by this systemic failure, should not preclude a 

class action, which may be the only realistic avenue of relief for 

those injured by systemic violations of their rights. 

Systemic violations of the IDEA are cognizable. See Doe 

ex rel. Brockhuis v. Ariz. Dep’t of Educ., 111 F.3d 678, 681 (9th 

Cir. 1997) (coll. cases). . . . Certainly . . . an illegal policy would 

support a claim for a systemic violation of the IDEA’s 

child-find mandate. But . . . widespread practices might also

support such a claim. 

668 F.3d 481, 504-05 (7th Cir. 2012) (Rovner, J., concurring in 

part and dissenting in part). The principles enunciated by Judge 

Rovner are eminently correct. Even the majority opinion in 

Jamie S. acknowledges that a class action may be pursued “if 

there [is] ‘significant proof’ that [the school district] operated 

under child-find policies that violated the IDEA.” Id. at 498

(majority opinion) (emphasis in original); see also Gray v. 

Hearst Commc’ns, Inc., 444 F. App’x 698, 701-02 (4th Cir. 

2011) (class action could proceed where “there [was] no 

dispute that a uniform policy (or obligation) exists or that such 

a uniform policy applies to all plaintiffs”). The same principle 

has been followed even in those cases in which class

certification has been denied. See, e.g., In re Countrywide Fin. 

Corp. Mortg. Lending Practices Litig., 708 F.3d 704, 709 (6th 

Cir. 2013) (“Essential to McReynolds, and missing from the 

instant litigation, were companywide policies that contributed 

to the alleged disparate impact that arose from the delegation of 

discretion to individual brokers.”); Tabor v. Hilti, Inc., 703 

F.3d 1206, 1229 (10th Cir. 2013) (holding that commonality 

was not satisfied where plaintiffs “challenge[d] a highly 

discretionary policy for granting promotions” and defendants
5

“failed to maintain the [allegedly discriminatory] system in any 

uniform manner”).

During oral argument, the District’s counsel 

acknowledged that a viable IDEA claim may be pursued as a 

class action. That is undoubtedly correct and nothing in our 

decision today should be taken to suggest otherwise. We also 

mean to say that if the District of Columbia has adopted a 

“stopped at the door” policy or practice that effectively blocks 

disabled children from being identified pursuant to the 

child-find requirements of IDEA or from otherwise being 

considered for IDEA benefits, then the affected children in 

appropriate classes or subclasses may challenge the policy or 

practice in a class action. An illegal policy or practice affecting 

all class members would provide the “glue” necessary to 

litigate otherwise individualized claims as a class. Wal-Mart 

Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2552 (2011); see also 

McReynolds, 672 F.3d at 489-91. The District’s arguments to 

the contrary are simply misguided, and the District Court 

should not be lead astray by such claims on remand.