Yet another class action has fallen victim to Walmart v. Dukes.
This time, it was a group of disabled students in Wisconsin that saw their class claims against the Milwaukee Public Schools and the Wisconsin Department of Public Instruction go up in smoke. On Friday a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit reversed lower court rulings certifying the class of students and finding both agencies liable for violations of the Individuals with Disabilities Education Act.
In a 44-page opinion, Circuit Judge Diane Sykes, joined by judge Joel Flaum, cited the U.S. Supreme Court’s heightened commonality requirements in Dukes and decertified the class. The seven named plaintiffs had originally filed suit in 2001, alleging that they were either denied or delayed entry into special educational programs in Milwaukee and that the DPI had failed in its oversight of MPS.
Quarles & Brady partner E. King Poor, who helped brief the appeal for the Milwaukee schools before the Seventh Circuit, told us that the class should never have been certified. “Identifying a child for special education is a highly individualized consideration,” said Poor. “It’s almost the opposite of what should be certified for a class.”
Judge Sykes held that it was impossible to readily identify class members because “identifying disabled students who might be eligible for special-education services is a complex, highly individualized task, and cannot be reduced to the application of a set of simple, objective criteria.” Writing separately, Circuit Judge Ilana Rovner agreed that the class should never have beencertified but concluded that some form of class certification might be possible in the case.
The appellate panel also vacated a settlement reached earlier in the case requiring DPI to appoint an independent monitor to oversee MPS’s compliance with disability provisions. Judge Sykesheld that since the settlement required performance from MPS, and MPS did not agree to the deal, it could not stand. The panel also vacated a remedial scheme mandated by the district court to monitor MPS’s special education program, ruling that the scheme was inappropriate because it would require “thousands of individual determinations of class members, liability and appropriate remedies.”
“These were unprecedented remedial measures,” said Quarles & Brady partner Michael Aldana, who argued for the school system before the Seventh Circuit panel. “It is virtually unheard of to have the court act as a special master on these kinds of individualized decisions that are supposed to be made in schools by educators who know the students.”
Monica Murphy, a managing attorney with Disability Rights Wisconsin who represented the students, said she was considering whether to appeal and was especially troubled by the court’s decision tooverturn the DPI settlement. “In our opinion, [MPS] had an ongoing practice of failing to identify kids for special education that should have been identified,” Murphy said.
(Editor’s note: An earlier version of this article incorrectly stated that E. King Poor of Quarles & Brady argued for the defense before the Seventh Circuit. The story has been updated to report that Michael Aldana handled oral arguments. We regret the error.)
