Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

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JAMIE S. v. MILWAUKEE PUBLIC SCHOOLS (February 3, 2012)

The Individuals with Disabilities Education Act imposes on participating states a rather complicated and individualized scheme of substantive and procedural requirements in order to ensure that disabled students receive a free public education. For example, it requires the state to identify and evaluate children who may need special education and to develop an individual plan for the services provided to each child. There are many procedural safeguards included within the substantive requirements. Wisconsin is a participating state and must comply with IDEA. The Wisconsin Department of Public Instruction is responsible for IDEA compliance and has various enforcement mechanisms if a school district within the state is non-compliant. A group of disabled children brought a class action against the Department and the Milwaukee Public Schools in 2001. Eventually, the district court certified a class of students "who are, have been or will be either denied or delayed" participation in the process. After a bench trial on liability, the court found that the defendants violated IDEA. Over MPS' objections, the Department then settled with the class by agreeing to order MPS to meet certain deadlines. After the remedial phase of the trial, the district court ordered a court-monitored remedial scheme. MPS appealed that order, also seeking review of the court's earlier orders on class certification, liability, and the Department settlement. The class did not cross-appeal but did appeal from two orders entered a few months later concerning the independent monitor and class notice.

In their opinion, Seventh Circuit Judges Flaum, Rovner (concurring in part and dissenting in part), and Sykes dismissed the plaintiffs' appeal and, on MPS' appeal, vacated and remanded. The Court first addressed both parties' jurisdictional challenges. Under section 1292(a)(1), an order granting a mandatory injunction is appealable. An interlocutory order fits within the exception only if it effectively grants the relief sought and affects a party's ability to obtain relief by a later appeal. The Court rejected the class' argument that MPS' appeal was premature. Although the district court had not finalized its view on the independent monitor or class notice, the Court concluded that the remedial order gave relief to the plaintiffs and substantially affected MPS' rights. The Court therefore concluded that it was a mandatory injunction and appealable. The Court also exercised pendant appellate jurisdiction over the district court's earlier orders because they were "sufficiently intertwined" with the remedial order to permit review. The Court turned to the class' appeal and concluded that the appeal from the later order was an attempt to seek review of the earlier order. The class missed the deadline to appeal the remedial order -- it cannot obtain review simply by appealing a later order. The Court turned to certification issues. It concluded that the class certification order was flawed in that: a) the class definition was indefinite in that it included class members who remained unidentified and had no process to ascertain class membership, b) the class did not satisfy the commonality requirement in that the class never identified a common factual or legal question, and c) the class did not meet the requirements for an injunction class under Rule 23(b)(2) because it did not call for class-wide injunctive relief. Having vacated the injunction, the Court also vacated the liability and remedial orders. Finally, with respect to the Department's settlement, the Court concluded that the Department did not have the authority to do what it promised to do in the settlement agreement. The district court, therefore, abused its discretion in approving the settlement.

Judge Rovner wrote separately, concurring in part and dissenting in part. She took issue with the majority's comments regarding the feasibility of a class at all under the circumstances. Her opinion made two basic points: 1) that systemic IDEA violations should be cognizable, whether as illegal policies or widespread practices, and 2) that the inability to identify the class members until the remedial phase of litigation should not preclude certification. With respect to that second point, she cited the McDonald case, a challenge to United Air Lines' rule prohibiting its flight attendants from being married. In the litigation, many of the actual class members were not identified until the remedial phase, when they were allowed to prove individual entitlement in adversarial hearings.