# Un ited

S ta tes Co ur t of

A p p ea ls

F O R T H E D I S T R I C T O F C O L U M B I A C I R C U I T

A rg ued January

10, 2013 D ecide d A pril 12, 2013

N o. 11-7153

D L
, E T A L ., A P P E L L E E S

v.

D IS T R IC T O F C O L U M B IA , A M U N IC IP A L C O R P O R A T IO N , E T A L .,

A P P E L L A N T S

Consolidated w ith No. 12- 7042

A ppeals f rom the U nited State s D istrict Court f or the D istrict of

Colum bia (N o. 1:05-cv-01437)

Todd S. Kim
, Solicitor G ener al, O f f ice of the A ttorney G ener al f or the D istrict of Colum bia, arg ued the cause f

or appe l l an t s. W ith him on the brief s w ere Irvin B

. Nathan
, A ttorney G ener al, and D onna M

. M urasky
, D eputy Solicito r G ener al. M

ary L. W ilson
, A ssistant A ttorney G ener al, enter ed
an appe ara

nce.

B ruce J. Te rris arg

ued the cause f

or appellee s. W ith him on the brief w ere Jeffrey S. G utm an , Cy rus M ehri
, Jane M

. Liu
, and M argaret A . Kohn

.2

Ke lly B agby
, D aniel Kohrm an , M ichael Shuster
, Ira A

. B urnim
, Joseph B

. E

spo , and Sharon Kre vor-W eisbaum
, w ere on the brief f or am ici curiae A A RP , et al. in support of appellee s.

Be f ore: G A R LA N D , C

h ie f Judge
, R O G E R S , Circuit Judge
, and E D W A R D S , Senior Circ uit Judge

.

O pinion f or the C ourt by Circuit Judge R O G E R S

.

Conc urring

opinion by Senior JudgeE D W A R D S

.

R O G E R S , Circuit Judge : T he D istrict of Colum bia appea ls f rom the structura l injunction enter ed by the district court in this class action challeng ing the policies and prac tices of the D istrict’s “C hild Find” sy stem under th e I n dividuals w ith D isabiliti es E ducation A ct (“I D E A ”), 2 0 U .S.C

. § 1400 et seq

. I t p rincipally contends that the class cer tif ication pursuant t o Fe dera l Rule of Civil Pro ce d u re 23(a) (2) w as im proper as a

m atter of law
, and that the district court lacke d d i s cretion to

aw ard sy stem ic re l ief

, or at least acte d im

perm issibly in the ab s ence of an explana tion of how it bridg ed the g ap betw een individual r elief and the sy stem ic relief order ed. I n view of the clar if ication in W

al-M art Stores, Inc. v. D ukes
, 131 S. Ct. 2541, 2551 (2011), of the require m ents of Rule 23(a) (2), w e vacate the class cer tif ication order
, and conseque ntly the lia b i l i ty and

rem edial order s, and w e rem and the case f or the district court to reconsider w hether a class, classes, or subclasses may b e

cer tif ied and if so, there af

ter to rede term ine liability and
appropr iate re lief

.

I.

T he I D E A

provides f

eder al f unds to assist State s and local
ag encie s in educa

ting children w ith disabiliti es “and conditions such f unding upon a State ’s com pliance w ith extensive g oals and3

proce dures.” A rlington Ce nt. Sch. D ist. B d. of E duc. v. M urphy
, 548 U .S. 291, 295-96 (2006) (quoting B oard of E d. of H endrick H udson Ce nt. Sch. D ist., W estche ster Cty

. v. R owle

y , 458 U .S. 176, 179 (1982))

. A “S tate” is def ined to include the D istrict of Colum bia. 20 U .S.C

. § 1401(31). O ne of the prim ary purposes of the I D E A is to “ensur e that all children w ith disabiliti es have available to them a f

ree appropr iate public education.” See id. § 1400(d)( 1)(A ); A legria v. D ist. of Colum bia
, 391 F.3d 262, 263 (D .C. Cir. 2 004). T he I D E A conditions the rec eipt of f eder al f undin g o n there being “in ef f ect policies and proce dures to

ensure ” that all children residing there in betw een the ag es of 3 and 21 h av e ac cess to a “f ree appropr iate public education” (“ FAP E ”). See 20 U .S.C

. § 1412(a) (1)( A ). A principal m ea n s of f ulf illing this oblig ation is to establish a “C hild Find” prog ram under w hich children w ith disabiliti es i n need of specia l educa tion “ar e identif

ied, located, and evalua ted and a prac tical

m ethod is develo p ed and im plem ented to deter

m ine w hich children w ith disabilities are curr ently rec eiving neede d specia l educa tion and rela ted service s.” Id. § 1 4 1 2(a) (3)( A ). T his includes ensuring that “[c ] hildren participa ting in ear ly intervention prog ram s

. . . , and w ho w ill participa te in presc hool
prog ram s

. . . exper ience a sm ooth and ef f ective transition

. . . .” Id . § 1412(a) (9).

The I D E A provides that “[c ] hildren w ith disabiliti es an d their pare nts are af

f orded the proce dural saf

eg uards require d by section 1415 of t h i s title.” Id. § 1412(a) (6). Se ction 1415 provides that there shall be “an opp o rt unity f or any party to p re sent a com

plaint - (A) w ith respe ct t o any m atter relat i n g t o the identif

icati on, evalua tion, or educational place m ent of the child, or the provision of a [F A PE ] to such child.” Id. § 1415(b)( 6)(A ). U

pon exhausting adm i nistrative rem edies, “any party ag g rieve d by the f inding s and decision m ade

. . . shall have the rig ht to bring a civil action w ith respe ct to the com plaint
prese nted.” Id. § 1415(i)(2) (A ). A court

— af ter evalua ting the4

“re cords of the adm inistrative proce eding s,” “hea ring additional evidenc e at the reque st of a party , ” and “basing its decision on the preponde ranc e of the evidenc e”

— “shall g rant such relief as the court det er mines is appropr iate.” Id. § 1415(i)(2) (C ). T he Se cre tary of E ducation annually revie w s the perf orm ance plan of a State on the conditions set f orth in § 1412 and m ay w ithhold

or rec over f

u n d s upon f

inding poor perf

orm ance of the I D E A oblig ations. See ge nerally id. § 1416.

I n J uly 2005, six nam ed plaintif

f s, on behalf of them selves and o thers sim ilarly situated, sued the D istrict of Colum bia
g overnm ent and the D .C. Supe rintendent of Pub l ic Sc hools (her einaf ter, “the D istrict”), pursuant to 42 U .S.C

. § 1983. T hey identif ied them selves in term s of their ow n exper ience s at variou s stag es of the I D E A Child Find and FA PE proce ss, see A m

. Com pl. ¶¶ 5–76, and alleg ed that the D istric t ’s “ac tions

am ount to a policy
, pattern, p ra ct i ce or custom that violates f eder al law and show s delibera te indif f eren ce to plaintif

f s’ f eder al rig hts,” id. ¶ 109. Sp ec if ically
, they alleg ed that the D istrict’s policies and prac tices had resulted in sy stem ic f ailures
to identif y , locate, evalua te, and of f er specia l edu ca t i on and rela ted service s to disabled presc hool-ag e children, in violation

o f t he I D E A
, 20 U .S.C

. § 1412(a)
, § 504 of the Re habilitation A ct, f eder al and D istrict of Colum bia reg ulations im

plem enting 1

Sec ti on 504 of the Reha bili ta ti on Act pro vi des that “[n]o 1
ot her w is e quali fi ed indiv idual w it h a disa bili ty

. . . sha ll
, so le ly by

re as on of her or his disa

bili ty , be exc luded from the par ti ci pati on in, be denie d t

he benef it s of , o r be s ubj ec te d to di sc ri m inat io n un der any pro gr am or ac ti vi ty re ce iv ing Fede ra l fi nanci al as si st anc e.” 29 U.S.C. § 794(a); se e Ale

xander v. Choate
, 469 U.S. 287, 295 (1985); se e also Se. Cmty . Col l. v. Davi

s , 442 U.S. 397, 412–13 (1979); Am. Counci l of the Blind v. Pauls on , 525 F.3d 125 6, 12 66 (D.C. Cir. 2008).5

the I D E A
, and the D ue Pr ocess Cla use of the Fif

th A m endm ent 2
to the U .S. Constitution. A m

. Com pl. ¶¶ 1, 109. A s relief

, they
reque sted cer

tif ication of a specif

ied cl ass pursuant to Rule 23(b)( 2) of the Fe dera l Rule s of Civil Pr ocedur e; a decla rato ry judg m ent that the D istrict had violated f eder al and D istrict of Colum bia law
, including the I D E A
, by f ailing to identif

y , locate, evalua te and of

f er a FA PE t o el i g ible children and to ensure a

sm ooth and ef

f ective transition f

rom ear ly intervention to presc hool prog

ram s; and prelim inary and perm anent injunctions order i n g t h e D istrict to “deve lop and im plem ent adequate and ef f ective p o l i cies and proce dures and a prac tical m ethod of identif y ing
, locating and evalua ting plaintif

f s f or specia l educa tion and rela ted service s.” Id

. at 33–34. T hey also soug ht,

am ong other thing s, order s enjoining the D istrict to p rovi de “com pensatory education to the plaintiffs w hom def endants f ailed to identif

y , locate, evalua te or of

f er specia l education and rela ted service s w hen they w ere betw een three an d fi ve y ear s old, inclusive,” and to p ro v ide reim bursem ent of privately expende d f

unds f or these service s, as w ell as the appointm ent of
a spec ial m aster. Id. at 35.

I n Aug ust 2006, the district co u rt cer tif ied the specif

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

Pla inti ff s ci te d, fo r exa

m ple, 34 C.F.R. §§ 104. 32- 104. 39 as 2

w el l as 5- E D.C.M.R. § 3002 .1(a) (r equir ing th e D is tric t to “ma ke a [FAPE] av ai la

ble to ea ch chil d w it

h a disa bili ty , a ge s thre e to tw enty

tw o, w ho re si des in, or is a w ard of
, the Dis tr ic t” ) and § 3002 .1(d) (r equir ing the Dis tr ic t to “ensure that pro ce dures ar e im plem ente d” to

co m ply w it h the “Child Find” pro gr am “reg ar dles s of th e natur e or

se ve ri ty of the[ ] [c hildr en’s] disa bili ti es ”)

. See a ls o 5- E D.C.M.R. § 30 00 et se q.

Rule 23 of the Fede ra l Rule s of Civ il Pro ce dure pro vi des
, in 3

re le va nt par t:6

Colum bia
, 237 F.R .D

. 319 (D .D .C. 2006). T he cer tif ied class

w as def ined as:

A ll children w ho are or may b e elig ible f or specia l education and rela ted service s, w ho live i n , or are

w ards of
, the D istrict of Colum

bia, and (1) w hom d efendants did not identif y , locate, evalua te, or of

f er specia l education and rela ted service s to w hen the child

w as betw een t h e ag es of three and f ive y ear s old, inclusive, or (2) w hom def endants have not or w ill not

(a ) Pre re quisi te s. One or m or e m em ber s of a cl as s m ay sue or be sue d as re pre se ntat iv e par ti es on behal f of al l mem ber s onl y if: (1) the cl as s is so nume ro us that joinder of al l

m em ber s i s i m pra ct ic able ; (2) ther e ar e q u es ti ons of la w or fa ct co m

m on to the cl as s; (3) the cl ai m s or def

ens es of the re pre se ntat iv e par ti es

ar e t y pica l o f the cl ai m s or def

ens es of the c la ss ; a

nd (4 ) the re pre se ntat iv e par ti es w il l fa ir ly and ade quate ly

pro te ct the i nter es ts of

the c la ss

.

Rule 23(b), “Ty

pes of Cla ss Act io ns,” pro vi des that “[a] cl as s act io n

m ay be m ai ntai ned if

Rule 23(a ) is sa

ti sf ie d and if . . .

(2) the par

ty oppo si ng the cl as s has ac te d or re fuse d
to ac t on gr ounds that apply ge ner al ly to the cl as s, so that fi nal injun ct iv e re li ef or co rr es ponding dec la ra to ry re li ef is ap pro pria

te re spe ct ing the cl as s

as a w hol e; or (3) the co urt fi nds th at th e quest io ns of la w or fa ct

co m m on to cl as s m ember s pre dom inat e ov er any quest io ns af

fe ct ing onl y indiv idual m em ber s, and that

a cl as s ac ti on is super io r to ot her ava il able m et

hods fo r fa ir ly and ef

fi ci entl y adjudica ti ng the co ntro ve rs y

. * * * *7

identif y , locate, evalua te or of

f er specia l education and rela ted service s to w hen t he child is betw een the ag es of three and f

ive y ear s old, inclusive.

Id. at 32 1

. Th e district court f ound that the Rule 23(a)

com m onality require m ent w as m et bec ause “ plaintif f s . . . have

a com m on injury
, nam ely the denial o f a FA PE under the I D E A ,” and all “all ege that def endants have violated the Child Find require m ent.” Id. at 322. Re g arding Rule 23(a) ty picality
, the district court f

ound that the “nam ed plaintif f s w ere injured by the sam e alleg ed sy stem ic p at t er n of I D E A violations that alleg edly injured the other class m em bers, and that the n amed plaintif f s’ injury [w as] ty

pical of the other class m em ber s’ injuries.” Id. T he plainti f fs h ad, the court explained, “pointed
to prac tices w hich, if proven, constitute a perva sive pattern and
prac tice of f

ailing to identif

y , locate, evalua te and of f er them service s and t h at def

endants lack an adequate Child Find
sy stem ,” all eg ations that w ere “suf f icient to satisf

y the Rule 23(b)( 2) re quirem ent.” Id. at 324.

I n 2010, f ollowing leng thy discovery
, see generally D .L. v. D ist. of Colum bia
, 274 F.R .D . 320, 322–24 (D .D .C. 2011), the d istrict court g rante d in part the D istrict’s m otion f or su mm ar y judg m en t , rul ing that the plaintif f s could not proce ed under 42 U .S.C

. § 1983 to enf

orce the I D E A

and re jecting the plaintif

f s’
arg um ent “that the I D E A does not provide the f ull relief they are reque sting .” D .L. v. D ist. of Colum bia
, 730 F. Supp. 2d 84, 92

4

The dist ri ct co urt had pre vi ous ly denie d the Dis tr ic t' s 4

m ot io ns to dism is s plai ntif fs ’ I DEA cl ai m s fo r fa il u re to exhaus t admin is tr at iv e re m edie s, fi nding this re quire m ent exc use d or , in the al te rna ti ve , al re ady m et , D.L. v. Dis t. of Columbia
, 450 F. Supp

. 2d 11, 17–1 9 & 18 n.2 (D.D.C. 2006 ) (c it ing Hart man v. D u

ff ey , 88 F.3d 1232
, 1235 (D. C

. Cir

. 1996 ))
, and fo r fa il ure to al le ge dispa ra te tr ea tm ent so le ly due to thei r disa bili ti es fo r purposes of the8

(D .D .C. 2010). T he dis t ri ct court concluded that a “succe ssf ul civil action direc tly under the I D E A

. . . w ill have the sam e ef f ect as a § 1983 action,” and elec ted to “construe the Fir st Claim of plaintif f s’ A m ended Com

plaint to state a cause of action direc tly under § 1415(i)(2) (A ) of the I D E A .” Id. at 92-93. T he dis trict
court also g

rante d the p l aintif

f s’ m otion f

or partial sum

m ary judg m ent as to liability under the I D E A
, the Re habilitation A ct, and District of Colum

bia l aw

. See id. at 94-95, 99–100. Upon revie w ing d at a t hroug

h 2007, the district court f ound that the D istrict had denied a FA PE to a larg e num ber of children ag ed 3 to 5 y ear s old in violation of I D E A § 1412(a) (1)( A ), id. at 95; f ailed to com

ply w ith its Child Find oblig ati o n s u n der § 1412(a) (3)( A ), id. at 96-97; and f ailed to provide c hildren w ith

a sm ooth and ef

f ective transition under § 1412(a) (9), i d

. at 97-98. T he district court proce eded in Apr i l 2 0 11 to addre ss liability f rom 2008 onw ard. Id. at 101. T hat m onth, the D istrict

m oved to dec ertif

y the class.

Be f ore f urther ruling s by the district court, the Supr em e Cour t in J une 2011 issued W

al-M art Stores, Inc. v. D ukes
, 131 S. C t. 2541. T he D istrict f iled a supplem ental m em orandum of law to its m otion to dece rtif y t he class in J uly
, arg

uing
, in part, that the plaintif

f s’ claim s w ere too broad to establish

com m onali t y under Rule 23(a) as require d by W al-M art

. I n Aug ust, the plaintif

f s f iled a m otion f

or class re- cer

tif ication and f or leave to f

ile their second am ended com plaint. T hey proposed
to am end the class cer

tif ication to add f

our subclasses, consisting of children w hom the D istrict f ailed: (1) to identif

y or locate f

or service s; (2) to provide w ith a t i m ely initial evalua tion; (3) to

Reha bili ta ti on Act, finding the plai ntif fs had “all eg ed suffi cient fa ct s to m ak e a prim a fa ci e sho w ing that def endant s hav e ‘depart ed gr os sl y ’ fr om ac ce pted Child Find pra ct ic e and st andar ds,” w hich w as suff ic ie nt to m ee t the Reha

bili ta ti on Act plea ding st andar ds, D.L. v. Dis t. of Columbia , 450 F. Su pp. 2 d 21 , 23– 24 (D.D.C. 20 06).9

provide w ith a tim ely elig ibilit y deter m ination; or (4) to provide

w ith a “sm ooth and ef

f ective” transition f

rom ear ly intervention
to presc hool prog ra ms. T he plaintif f s also soug ht a hy

brid

cer tif ication of their decla

ratory and injunctive claim s under Rule 23(b)(2 ) and their individual claim s f or com pensatory educa tion and reim

bursem ent under

Rule 23(b)( 3).

T he district co u rt denied the D istrict’s m otion to dece rtif y the class and g rante d re- cer tif ication of the plaintif

f s’ claim s f

or reim bursem ent and com

pensatory education under Rule 23(b)( 3). D .L. v. Dist. of Colum bia
, 277 F.R .D

. 38, 40-41 (D .D .C. 2011). I n deny ing the D istrict’s m otion, th e district
court f ound, as rele vant, that the plaintif f s had “am

ply dem onstrated there are questions of law and f act com m on to the class,” all m em

bers of w hich “suf

f ere d the sam e injury : denial of their statutory

rig ht to a f

ree appropr iate public education.” Id.
at 45. I t e xplained that the “dif f ering alleg ations only repr esent the dif f ering w ay s in w

hi ch the [D istrict] ha[s] cause d class

mem bers’ com

m on injury .” Id. I t identif ied the com

m o n q u estion

— the crux of plaintif f s’ claim

— to be whe ther c l as s

m em bers rec eived a FA PE
, and stated this issue w as susceptible
to classw ide proof

. See id. at 45-46. I t f

ound the “g lue” binding tog ether the various rea sons w hy individual class m em bers w ere denied a FA PE to be the “sy stem ic f ailures” w ithin the D istrict’s educa tion sy stem , stating the “[p] laintif f s prese nted cre dible evidenc e of [the D istrict’ s ] inef f ective policies and prac tices,

w hich persisted f

or y ear s w ithout leading to any sig nif icant incre ase in t h e num

ber of presc hool-ag e children rec eiving a FA PE .” Id. at 46. Re g arding ty picality
, the district court’s

rea sons f or concluding Rule 23(a) (3) w as satisf ied w ere sim ilar
to its de term ination in initially cer tif y ing the class. See id. T he district court acc ording ly deem ed m oot the plaintif f s’ m otion to

rec ertif y the class using

subclasses. See id. at 47.10

T here afte r, u pon extending its f inding of liability to the D istrict’s actions f

rom 2008 t o Apr il 2011, D .L. v. D ist. of Colum bia
, 845 F. Supp. 2d 1, 6 (D .D .C. 2011), the district court enjoined the D istrict f

rom f urther violations of the I D E A
, § 504 of the Re habilitation Act
, and D istrict of Colum bia law
, and iss u ed a structura l injunction, see id. at 25-34. T he injunction included prog ra mm atic require m ents and num eric al g oals that

w ould rem ain in ef

f ect until the D istrict dem onstrated sustained

com pliance. See id. T he D istrict appea ls.

5

II.

I n W al-M art , the Supr em e Cour

t instructed that under Rule 23(a) (2 ), the plaintif

f s’ “cla im s m

ust depend upon a com

m on conten t ion” that is “of such a nature that it is capa ble of

c la s s w id e r e solution - w hich m eans that deter m ination of its truth

or f alsity w ill resolve an issue that is centr al t o t h e v alidity of

eac h one of the claim s in one stroke.” 131 S. Ct. at 2551. “T his does not m ean m ere ly t h at [cla ss m em bers] have all suf

f ere d a violation of the s am e provision of law ,” f or “[w ] hat m atters to class ce rtif

ication . . . is not the raising of com m on ‘questions,’

. . . but, rathe r the capa city of a classw ide proce eding to g ener ate

com m on answe rs apt to drive the resolu t i o n of the litig ation.” Id

. (interna l quotation m arks om itted) (em phasi s i n orig inal). L ikew ise, Rule 23(b)( 2) allow s class trea tm ent “only whe n a sing le injunctio n o r decla ratory judg m ent w ould provide relief

Spec if ic al ly
, suc h co m

plia nce “shal l beg in af

te r [t he 5 Dis tr ic t]
, during a si ngl e y ea r (‘the bas el ine y ea

r’), m ee t[ s] or

exc ee d[s] al l thre e nume ri ca l re quire m ents ” and co nclude s w it hin tw o

or thre e y ea

rs if ce rt ai n a dditio nal co nditio ns ar e m et

. D.L. v. Dis t. of Columbia
, 845 F. Supp

. 2d at 29. But “if [t he Dis tr ic t] fa il [s ] to m ee t any of the nume ri ca l re quire m ents

. . . def endant s m ust es ta blis h a new bas el ine y ea

r of co m plia nce b ef ore being able to sho w sus ta ined

co m plia nce .” Id.11

t o eac h m em

ber of the class. I t does not authorize cla s s

cer tif ication w hen eac h individual class m em ber w ould be entitled to a different injunction or decla ratory judg m ent ag ainst
t h e d ef endant.” Id. at 2557 (em phasis in orig inal). T he Cou rt explained that “the key to the (b)( 2) class is the indivisi ble nature of the injunctive or decla

ratory rem edy w arr anted

— the notion that the conduct i s such that it can be enjoined or decla red unlaw f ul only as t o al l of the class m em bers or as to none of them .” Id. (interna l quotation m arks om itted). T he Cour t noted that the district court m ust conduc t a “rig orous” classcer tif ication ana ly sis, id. at 2551 (quoting G en. Te l. C o. of. Sw.

v. F alcon
, 457 U .S. 147, 160 (1982), and Coope rs & Ly brand v. L ivesay , 437 U .S. 463, 469 ( 1978)), w hich m ay “enta il som e overla p w ith the m erits of th e plaintif f ’s underly ing claim ,” id

. T he Cour t has since cautioned that “R ule 23 g rants co urts no license to eng ag e in f

ree -ra ng ing m erits i n q u i ri es at the

cer tifi ca t i o n stag e. M erits questions m ay be considere d to the
extent

— but only to the extent

— that they are rele vant to d et erm ining w hether the Rule 23 prer equisites f or class

cer tif ication are satisf

ied.” A m gen Inc. v. Conn. R et. P lans & Trust F unds
, 133 S. Ct. 1184, 1194–95 (2013); see also Com cast Corp. v. B ehrend
, 569 U .S.

__ (2013), slip op. at 6 (M arc h 27, 2013).

T he D istrict contends that the c lass cer tif ied by the district
court lacks com

m onality as a m atter of law
, and that t h i s court should vaca te the ce rtif

ication, liability , and relief ruling s. N ot to m ake too subtle a point, the D istrict’s position is that “[a ] lthoug h loosely f

ocused on one g ener al ‘c hild f ind’ sy stem , the cer tif ied cl ass rea ches acr oss dif f ere nt leg al require m ents appl i cable to dif

f ere nt actor s in dif

f ere nt ag encie s at dif

f ere nt points of tim e to childre n w ith dif f ere nt disabiliti es i n dif

f ere nt f actua l s et t i ng s.” A

ppellant’s Br

. at 28. I t view s the cer tif ied class to “cove r[] f

ailures in f

our disti n c t a d

m in is tr a ti v e f unctions: (1) identif ication of a child as one potentially needing service s,12

(2) location of that child, (3) evalua tion f or potential service s, and (4) if nece ssary , provision of service s.” Id

. at 29. I n other

w ords, to it “the class def inition itself m akes plain that nam ed plaintif f s here attem

pt to am alg am ate m

ultiple, distinct
cate g ories of claim s.” Id. at 28. T he class m em bers m ay suf

f er f rom the s am e viol ation of law
, as t he dis trict court found, but, the D istrict urg es, there i s no com m on contention w hose deter m ination “w ill resolve an issue

. . . centr al to the validity of

eac h one of the cl ai ms i n one stroke.” Id

. at 29 (quoting WalM art , 131 S. Ct. at 2 5 5 1). T he plaintif f s contest the D istrict’s understanding of W

al-M art ’s interpre tation of the com m onality require m ent, m aintaining that a pattern or prac tice of Child Find violations, as here
, does af f ect all class m embers beca use the D istrict’s sy stem ic f

ailures re s u lt in the f

ailures to identif

y , locate, e valuate a

nd provide special education service s to larg e

num bers of disabled pres ch o ol-ag ed children, reg ardle ss of the f actua l circ um stance s of the i n d i v idual children w ho suf f ere d Child Find violations. T heir challeng e to the Di s t ri ct’s
sy stem w ide conduct, they m aintain, can be resolved by a sing le deter m ination.

After W al-M art it is clea

r that def

ining the class b y ref ere nce to the D istrict’s pattern and prac tice of f ailing to provide FA PE s speaks too broadly beca use it constitutes only an alleg ation that the class m em bers “ have all suf

f ere d a viol ation of the sam e provision of law ,” whi ch the Supr em e Cour t has

now instructed is insuf

f icient to e s ta

b li s h c o m m o n ality g iven that the sam e prov i s i o n of law “ca n be violated in m any dif f ere nt

w ay s.” W

al-M art , 131 S. Ct. at 2551. I n the absenc e of identif ication of a policy or pra ctice that af

f ects a ll m em

bers of the cla ss in the m anner W al-M art require s, the district court’s analy sis is not f

aithf ul to the Cour

t’s interpre tation of Rule 23(a)

com m onality

.13

I n cer tif y ing the class, the dist rict court deem ed the plaintif f s’ pattern and prac tice claim s suf f icient to m eet Rule 23(a) ’s p re re q u isite of com m onality

. See D .L. v. D ist. of Colum bia
, 237 F.R.D

. at 322; D .L. v. D ist. of Colum bia
, 277 F.R .D

. at 45. L ikely so prior to W al-M art

. See, e.g. , B aby Ne al

ex rel. Kante r v. Ca s ey , 4 3 F.3d 48, 60 (3d Cir. 1994). But W al-M art ’s in t er preta tion of Rule 23(a) (2) has chang ed the landsca pe, as our s i s t er circ uits have acknow ledg ed. See A rlington V

ideo Prodns., Inc. v. F

ifth Third B ancorp , 2013 W L 560635 at *14 (6t h Cir. Fe b. 14, 2012); Luike n v. D om ino’s P izza, LL C
, 705 F.3d 370, 376–77 (8th Cir. 2013); In re Countryw ide F

in. Co r p

. , 708 F.3d 704, 709 (6th Cir. 2013); Tabor v. H

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

. ex. rel. Stukenbe rg v. P erry , 675 F.3d 832, 839 (5th Cir. 2012); M cR eynolds v. M

errill Ly nch, P ierce

, F enner & Sm ith, Inc.
, 672 F.3d 482, 487 (7th Cir.), ce rt. denied
, 133 S. Ct. 338 (2012); Jam ie S. v. M

ilwauke e P ub. Sch.
, 668 F.3d 481
, 497 (7th Cir. 2012). I n W

al-M art , the Cour

t explained that whe re t he def endant is alleg ed to have

eng ag e[d] in a pattern or practice of discrim ination

. . . in resolving an individual’s T itle V I I claim
, the crux of the inquiry is the rea son f or a particula

r em ploy m ent decision. * * * W ithout som e g lue holding the alleg ed

reasons f or all those decisions tog ether
, it w ill be im possible to say that exam ination of all the class

m em bers’ claim s f

or relief w ill produce a com m on

answ er to the c rucia l question why was I disfavored

.

Id. at 2552 (interna l citations om itted) (em ph asi s in orig inal). T he broad class cer

tif ied by the di s trict court does not satisf y Rule 23(a) (2)’ s require m ent f or com m onality

.

T he circ uit courts of appea ls to addre ss t h e q uestion have h ewe d f aithf ully to W al-M art ’s “one stroke” require m ent. For14

exam ple, in M

cR eynolds
, the Seventh Circ uit held on i nterlocutory appea l that a putative class of A f rica n A m erican

em ploy ees w ho alleg ed that their em ploy er’ s com

pany -w id e “tea m ing ” and “ac count distribution” prac tices had a disparate im pact on their advanc em ent w ithin the com pany , in violation of T itle V I I and 42 U .S.C

. § 1981, w as “not f orbidden by the W

alM art decision. ” 6 7 2 F.3d at 490. I n W al-M art the Supr em e Cour t acknow ledg ed that “‘in appr o priate case s,’ g iving discretion to low er- level supervisors can be the basis of T itle V I I liabil i t y under a disparate -im pact theory ,” 131 S. Ct. at 2554 (citation o mitted)
, w here com m onality could be satisf ied by “‘[ s] ig nif icant proof that an em

ploy er operate d und er a g ener al policy of discrim ination

. . . if the disc ri m ination m anif ested itself in hiring and prom otion prac tices in the sam e g ener al f ashion,’” id

. at 2553 (quoting Falcon
, 457 U .S. at 159 n.15). A lthoug h in M

cR eynolds “ea ch class m em ber w ould have to prove that his c om

pensation had been adver sely af f ecte d by the
corpor ate policies, and by how m uch,” the Se venth Ci rc uit

em phasize d that a class action on disparate im pact m eant that “at least it w ouldn’t be nece ssary in eac h of those trials to deter m ine

w hether the challeng ed prac tices w ere unlaw f ul.” M cR eynolds, 672 F.3d at 491. T he pututative class in M cR eynolds w as appropr iate post- W

al-M art beca use t he ec onom ic har

m alleg ed by eac h class m em

ber w as the result of the sam e corpor ate- w ide policies and if the pol i ce s w ere held unlaw f ul then a question
centr al to the validity of eac h class m em ber’ s cl ai m w ould be resolved in one stroke. See id. at 488–90; see also F loyd v. City of Ne w York , 283 F.R .D . 153, 173 (S .D .N .Y 2012).

I n contra st, the harm s alleg ed to ha ve been suf

f ere d by the plain t i ffs here involve dif f ere nt policies and prac tices at dif f ere nt sta g es of

the D istrict’s Child Find and FA PE proce ss; the district co u rt identif ied no sing le or unif

orm policy or prac tice that bridg es all their claim s. When f ace d w ith a sim ilar I DEA l awsuit
, the Se venth Circ uit in Jam ie S.
, 668 F.3d at15

497–98, ef

f ectively reje cted, in view of a broadly def ined class, the attem pt to disting uish W

al-M art ’s interpret at i on of Rule 23(a) com m onality in the context of a pattern and prac tice claim

. W e do not sug g est that w idespread p o l i cies and prac tices in violation of the I D E A coul d n ever satisf y Rule 23(a) (2)’ s

com m onality require m ent af

ter W al-M art , see Jam ie S
., 668 F.3d at 503–05 (R ovner, J
., concur ring in part and dissenting in part), but rathe r that, in view of W al-Mart ’s interpre tation of Rule 23(a) (2) com

m onality and the broadly cer tif ied class, as in Jam ie S. “[t] he plaintif

f s’ claim s appea

r to be based on m

ultiple, disparate f

ailures to com

ply w ith the [D istrict’s] statutory child f ind o b lig ations rathe r than a truly sy stem ic policy or prac tice

w hich af f ects them all,” id. at 504–05. For som e plaintif f s, f or

exam ple, the alleg ed harm suf

f ere d is due to the failure of the D istrict to have an ef

f ective intake and ref

erral p rocess; f

or others the alleg ed harm is cause d by the D istrict’s f ailure to of

f er adequa te an d tim ely education place m ents to im plem ent individual educa

tion plans (“I E Ps” ); f

or still others, the cause is the absenc e of a s mooth and ef f ective transition f

rom ear ly intervention prog ram s to presc hool prog ram s

. A lthoug h the district c ourt f

ound that all m em

bers of the class are harm ed as

a result of the sy stem ic def iciencie s due to the D istrict’s f ailure
to establish the require d Child F ind prog ram and FA PE prac tices and policies
, wha t com

m on “tru[e ] or f

als[e] ” question can be

answ ere d f

or eac h of these three dif f ere n t cl ai m s of harm that

wou ld assist the district court in deter m ining the D istrict’s liability as to eac h g roup? W al-M art instructs that holding that the D istrict has violated the I D E A as to eac h class m em ber is not enough to establish Rule 23(a) com m onality
, 131 S. Ct at 2551, in the absenc e of a unif

orm policy or prac tice that af f ects all class m em

bers.

A g ai n , n o ne of this is to sug g est that a class can never be

cer tif ied in this kind of case

. Rule 23(a) (2) does not require that all ques t i o n s be com

m on to the class. Ra ther, as noted, the16

Supr em e Cour

t acknow ledg ed that “‘e ven a sing le co mm on question’ w ill do,” id. at 2556 (interna l citation and brac kets

om itted), as long as its deter m ination “w ill resolve an issue that is centr al to the validity of eac h one of the claim s in one stroke,” id. at 2551. L ikew ise, althoug h Rule 23(b)( 2) “applies only

w hen a sing le injunction or decla ratory judg m ent w ould provide relief to eac h m em

ber of the class,” id. at 2558, t h e Rule does
not bar courts f

rom g ranting f

urther equitable relief that does not

rea ch ever

y plaintif f in the case

. But g iven W al-M art ’s interpre tation of Rul e 2 3(a) com m onality
, the reque sted relief

m ust respond, at l ea s t in part, to a com m on harm suf

f ere d as a result of a policy or pra ctice tha t af

f ects e ach c lass m em

ber.

T he plaintif

f s appea red to rec og nize the problem w it h the

curr ently cer tif ied class w

hen, af ter W al-M art w as issued, they

m oved to add four subclasses consisting of children w hom the D istrict f ailed to: (1) identif

y or locate f

or service s; ( 2) provide

w ith a tim ely init i al ev aluation; (3) provide w ith a tim ely elig ibilit y deter

m ination; or (4) provide w ith a “sm ooth and ef f ective” transition f

rom Pa rt C to Pa rt B. See Plaintif

f s’ M em

. of L aw in Support of

T heir M ot. f

or Cla ss R e-C ertif

ication. I n ef f ect, the plaintif

f s w ere sug g esting that they could show as to

eac h subclass th at the harm cause d by the D istrict’s f ailures
stem m ed f rom a policy or prac tice that w ould provide a basis f or the reque sted injunctive and decla ratory relief

. T h e d is tr ict court

never rea ched this question. N or do w e. O ne ci rcuit has
sug g ested, how ever , that t h e district court’s cer tif ication of subclasses m ig ht resolve the Rule 23(a) (2) problem

. See M .D

. , 675 F.3d at 848 (citing M arisol A

. v. G iuliani
, 1 2 6 F.3d 372, 378–79 (2d Cir. 1997) (stating that “[o] ne p o ssible m ethod of develo p i n g proper subclasses w ould divide the prese nt class based on the common ali ty of the children’ s particula r circ um stance s, the ty

pe of harm the children alleg edly have suf f ere d, and the particula

r sy stem ic f

ailures w hich the plaintif

f s

asser t have oc curr ed”) ).17

A lthoug h they disag ree w ith the D istrict’s interpre tation of the com m onality require m ent, the plaintif f s have urg ed that “if

,” in view of W

al-M art , “this Cour

t f inds that plaintif

f s’ class lacks

com m onality
, rem and t o the district court to rec onsider subclasses w ould be appropr iate.” A ppellees’ Br

. at 46. T he D is tr ic t “ agree s that [the plaintif f s] should have this opportunity
, and that this Cour

t need not con s i d er the subclasses they proposed,” althoug

h it “doubt s [that even] they com ply w ith W a l -M art .” Re ply Br

. at 25. W e agree that a rem and is appropri at e so the district court can deter m ine w hether subclasses w ould m ee t the require m ents of Rule 23(a)

com m onality af

ter W al-M art

. W e understand the D istrict to take

no issue w ith the district court’s ru l i n g t hat the I D E A is

am enable to class actions. See O ral A rg

. J an. 10, 2013 T r. at 5, 20, 59. T he D istrict has f ocused on how W

al-M art appea rs to have chang ed the law to require that one injunction addre ss the

com m on harm s identi fi ed b y all the children in the class or subclass, and on the f

act that the district court did not f ind there

w as any particula

r policy or prac tice that linked all cl aim s but only that there wer e sy stem ic def iciencie s. T he D istrict’s challeng e to th e certif

ied class thus does not rule out the possibili ty of classes or subclasses that are desig ned around a policy or prac tice that links the class as a w hole; neither w ould it rule out separ ate classes in a consolidated case

. See id. at 25, 28.

A ccor ding ly
, w e vacate the order cer tif y ing the cl as s and,
conseque ntly
, the order s f inding liability and order ing rel i ef t o that class. W e rem and the case to the d i s trict court f or

rec onsideration of w hether a class, classes, or subclasses m ay be

cer tif ied, and if so, there af

ter to re d et erm ine liability and
appropr iate relief

. Be cause this is the relief that the D istrict seeks, see A

ppellant’s Br

. at 58; Re ply Br

. at 24-25, w e need not

rea ch the district court’s ruling on the scope of the Re habilitation A ct, see O ral A

rg . J an. 10, 2013 T r. at 24-26.E DWARDS , 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 clai ms. Here is the exchange between the counsel for the District and the court:
Judge: I have to say t hat 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 eff ect 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 [fre e 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 th ey are

– would that be a Wal

- Mart problem?

Counsel: It would be a problem under Wal

- Mart in the context of IDEA because . . . t he 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 affec ts every child. You2

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

. . . t here 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 somethi ng 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 and3
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 hav e forced us to reach the issue. . .

. B ecause 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 sin gle injunction

– . . . that Wal

- Mart doesn ’ t permit that. And Wal

- Mart ex pressly 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 availabl e

. 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,
company wide 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 for ecloses 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 systemic4

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 tha t 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 Do e 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 4 81, 504

- 05 (7th Cir. 2012) (Rov ner , 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 ma y 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 po licy for granting promotions” and defendant s5
“failed to maintain the [allegedly discriminator y] 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 ide ntified 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 pract ice 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.