DERRICK v. GLEN MILLS SCHOOLS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTR ICT OF PENNSYLVANIA

DERRICK, et al. : CIVIL ACTION

:

v. :

:

GLEN MILLS SCHOOLS, et al. : NO. 19-1541

MEMORANDUM

Bartle, J. May 13, 2024

This putative class action involves serious and

pervasive allegations of widespread abuse, inadequate education,

and disability discrimination at the now closed Glen Mills

Schools (“Glen Mills”). Before the court is the motion of

Plaintiffs, three former Glen Mills residents and two of their

parents, to certify against three Defendants, Teresa Miller,

Theodore Dallas, and Cathy Utz, a damages class under Rule

23(b)(3) of the Federal Rules of Civil Procedure and to certify

against four Defendants, Glen Mills, Randy Ireson, the

Pennsylvania Department of Education (“PDE”), and Pedro Rivera,

twenty-four issue classes under Rule 23(c)(4). See Fed. R. Civ.

P. 23(b)(3), (c)(4).

I. Background

Plaintiffs are the following individuals: Derrick,

through and with his next friend and mother Tina; Walter,

through and with his next friend and mother Janeva; and Thomas,

through his next friend and mother Michelle.1 Derrick, Walter,

and Thomas are three individuals who were involuntarily placed

at Defendant Glen Mills after being adjudicated delinquent in

the state courts of Pennsylvania. They seek class certification

on behalf of themselves and other Glen Mills residents who,

according to Plaintiffs, suffered physical, oral, and

psychological abuse, were deprived of an adequate education, and

endured discrimination for their disabilities at the school.

Additionally, Derrick’s mother Tina and Walter’s mother Janeva

seek certification on behalf of themselves and other parents and

guardians of Glen Mills residents who were excluded from the

individualized education process for their children with

disabilities.

Defendants can be divided into three groups. First,

there are the Glen Mills Defendants, which include the school

itself and its former Executive Director, Randy Ireson.2 Second,

there are the Pennsylvania Department of Human Services (“DHS”)

Defendants. While Plaintiffs have not named the Department

itself as a defendant, they have sued three DHS officials acting

in their individual and official capacities. They are former

1. The Complaint uses pseudonyms to protect the privacy of the

named Plaintiffs and their parents.

2. Although former Glen Mills staff members Andre Walker and

Robert Taylor are Defendants in this action, Plaintiffs do not

seek class certification against them.

DHS Secretaries Theodore Dallas and Teresa Miller, and former

Deputy DHS Secretary for the Pennsylvania Office of Children,

Youth, and Families Cathy Utz. The third group, the PDE

Defendants, include the Department itself and its former

Secretary, Pedro Rivera in his official capacity.

Plaintiffs seek to represent a putative class and

several putative subclasses of individuals who were

involuntarily detained at Glen Mills.3 Most residents, including

Derrick, Walter, and Thomas, were involuntarily placed there

pursuant to orders from various state courts after they were

adjudicated delinquent. Other residents were there

involuntarily while awaiting juvenile court proceedings in

Philadelphia County.4

The individual circumstances of Derrick, Walter, and

Thomas were detailed in this court’s memorandum dated December

19, 2019. See Derrick Through Tina v. Glen Mills Sch., No. CV

19-1541, 2019 WL 7019633 at *3-*5 (E.D. Pa. Dec. 19, 2019).

Relevant to the instant motion, Derrick and Walter resided at

Glen Mills from March 2018 to March 2019. Thomas did so from

3. For the sake of brevity, the Court will refer to the

putative classes as “classes,” the putative class members as

“class members,” and the proposed class representatives as

“class representatives.”

4. Excluded from Plaintiffs’ classes is a small number of

youth that were voluntarily placed at Glen Mills by their

parents or guardians.

May 2018 to March 2019. According to Plaintiffs, each of them

was subjected to recurring physical, oral, and psychological

abuse from Glen Mills staff and other residents. They also

assert that they were students with disabilities and received a

deficient education.

Glen Mills was established in 1826 as a boarding

school for adjudicated juveniles and other troubled youth. It

was neither a traditional private boarding school nor a public

school under Pennsylvania law. Rather, it was licensed by the

DHS as a private residential rehabilitative institution. See 24

Pa. Cons. Stat. § 9-914.1-A(c). Local education agencies and

intermediate units in Pennsylvania and other jurisdictions

contracted with Glen Mills to provide rehabilitative and

educational services. See 24 Pa. Stat. §§ 9-914.1-A(a), (c).

Due to its unique status, several state and local

agencies were responsible for monitoring the conditions at Glen

Mills. The Chester County Intermediate Unit was the local

education agency that contracted with Glen Mills.5 DHS, in

addition to licensing the school, was tasked with ensuring

compliance with the hundreds of regulations for youth

residential facilities under 55 Pa. Code Chapter 3800 (“DHS

5. In February 2023, the Chester County Intermediate Unit

reached a settlement agreement with Plaintiffs and was dismissed

as a party to this suit.

regulations”). On July 1, 2017, these state responsibilities

were assigned to the Office of Children, Youth, and Families,

one of the program offices of DHS. PDE, on the other hand,

monitored compliance with state and federal special education

laws and the use of classroom physical restraints.

In June 2018, DHS began investigating Glen Mills in

response to anonymous written complaints of staff aggression

towards residents. The Philadelphia Inquirer ran an article on

Glen Mills in February 2019, in which it exposed the physical,

oral, and psychological abuse suffered by residents. Lisa

Gartner, “Beaten, Then Silenced,” Phila. Inquirer, Feb. 20,

2019, at Bl. Defendant Ireson, who had been the school’s

Executive Director since 2013, resigned a week after the article

was published.

On March 25, 2019, DHS concluded its investigation and

issued an order revoking the licenses for all fourteen

residential halls at the school. As a result, Glen Mills was

closed. In its order, DHS detailed numerous incidents of

physical, oral, and psychological abuse by staff members and

other residents, including:

e . . . staff failed to intervene to

protect a child from another resident

resulting in the child suffering a

broken jaw...

e . . . a child was assaulted by a staff

person causing an injury to his eye.

-5-

The child was then coerced into saying

that his injury was a result of playing

basketball.

e . . . a child was choked by three staff

and then slammed to the floor... .

e . . .a staff person punched a child in

the chest ....

e . . . a child was assaulted by a staff

person causing an injury to his

eye ....

e ...achild .. . was asked to sign a

document for court stating that he

wished to remain at Glen Mills if he

could not be sent home.

e . . . an incident occurred where at

least one student entered another

student’s room and took money from the

student.

e . . . the youth was subjected to

harassment, unreasonable restraint,

unusual and an extreme form of

discipline by more than one Child Care

Residential staff. ...

e . . . Glen Mills failed to provide or

delayed providing the appropriate

medical treatment of the child’s

injuries ....

DHS further described Glen Mills as operating under “a culture

of intimidation,” where “youth were told to lie about the care

they received and the physical mistreatment they endured.”

DHS linked this culture to risk of injury faced by

residents:

-6-

These findings verify that Glen

Mills failed to protect the youth entrusted

to its care, placed youth at risk of serious

physical injury, permitted youth to sustain

physical injuries by their acts and failure

to act and Glen Mills engages in a culture

that instills fear in youth through coercion

and intimidation. As a result, we find that

youth placed at Glen Mills are at imminent

risk and their safety is in jeopardy.

DHS concluded that conditions at Glen Mills “constitute gross

incompetence, negligence and misconduct in operating a

facility.”

On April 11, 2019, less that one month after DHS

issued its order revoking the school’s licenses, Plaintiffs

filed their 149-page complaint in this court. They asserted

eighteen claims for relief encompassing the following grounds:

(a) violations of the Eighth Amendment under 42 U.S.C. § 1983;6

(b) violations of the right to a public education under

Pennsylvania law, 24 P.S. §§ 13-1306, 9-914.1-A; (c) violations

of the Individuals with Disabilities Act (“IDEA”), 20 U.S.C.

§§ 1401(3), 1414(d); (d) violations of Section 504 of the

Rehabilitation Act (“Section 504”), 29 U.S.C. § 794;

(e) violations of the Americans with Disabilities Act (“ADA”),

42 U.S.C. §§ 12101, et seq.; and (f) common law negligence.

6. The court recognizes that the Eighth Amendment is

incorporated into the Fourteenth Amendment. See Derrick, 2019

WL 7019633 at *10. For ease of reference, the court will refer

to the claims as under the Eighth Amendment.

Plaintiffs seek damages as well as equitable relief in the form

of compensatory education.

Plaintiffs focus on evidence which they characterize

as showing that the culture at Glen Mills was not merely one of

intimidation but one of confrontation. Staff and residents were

encouraged to enforce unwritten norms through threats and

physical force. Residents who regularly confronted peers earned

“Bull Status” and favored treatment by the staff. Furthermore,

staff at Glen Mills resorted to physical restraints more often

than staff at other youth residential facilities to keep

residents in line. According to Plaintiffs, this culture of

confrontation can be traced back to April 2017. They maintain

that this culture persisted at the school because of the

policies and practices of Glen Mills leadership and state

regulators—DHS and PDE—that monitored staff and residents.

Plaintiffs assert that Glen Mills failed to provide

residents with an appropriate public education. Instruction was

largely conducted through a self-directed computer program

called PLATO/Edmentum. In-person instruction was limited to

infrequent “tutoring” by “counselor-teachers” who were not

required to hold any teaching certifications or credentials.

Plaintiffs challenge not only the quality of instruction but

also the number of hours provided, which they contend were below

the Pennsylvania statutory requirements for a private

residential rehabilitative institution. They attribute the

deficient education at Glen Mills to the school itself and

ineffective monitoring by PDE.

Additionally, Plaintiffs point to evidence to support

their claim that residents with disabilities, defined as

impairments that substantially limit major life activities, were

deprived of a free and appropriate public education and suffered

discrimination. According to Plaintiffs, Glen Mills had no

process in place to identify residents with disabilities. Even

those residents that were known to have disabilities did not

receive IEPs as required under the IDEA, ADA, and Section 504.

Rather, they were either assigned instruction on the same self-

directed computer program used by residents without disabilities

or assigned packets of worksheets.

Plaintiffs also submit that Glen Mills leadership

discriminated against residents with disabilities by failing to

provide them with reasonable accommodations. They cite evidence

from which they conclude that PDE failed to monitor compliance

with state and federal special education laws. Finally, they

maintain that discovery shows that Glen Mills and PDE excluded

parents and guardians from the decision-making process regarding

special education for their children.

This massive litigation has progressed through four

years of discovery, including significant document production

and depositions of the individual Plaintiffs and a number of

other fact witnesses. Lengthy expert reports were also

produced. Thereafter, Plaintiffs filed the instant motion for

class certification of one damages class against Teresa Miller,

Theodore Dallas, and Cathy Utz, and twenty-four issue classes

against one or more of the remaining defendants, Glen Mills,

Randy Ireson, PDE, and Pedro Rivera. Extensive briefing

followed. The court held oral argument for over three hours on

the motion.

The court acknowledges that the factual record is

replete with appalling incidents of widespread abuse, inadequate

education, and disability discrimination suffered by Plaintiffs

and other youth that were placed at Glen Mills. While the court

must go beyond the pleadings in resolving a class certification

motion, it is not deciding the action on the merits. The only

issue presently before the court is whether class certification

is the proper mechanism to pursue the claims alleged.

II. Abuse Class Against the DHS Defendants

The court turns first to Plaintiffs’ motion to certify

the so-called “Abuse Class” against former DHS Secretaries

Dallas and Miller and Deputy Secretary Utz (the “DHS

Defendants”) for damages under Rule 23(b)(3). See Fed. R. Civ.

P. 23(b)(3).

“The class action is ‘an exception to the usual rule

that litigation is conducted by and on behalf of the individual

named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682,

700–701 (1979)). It was created to promote equity and

efficiency in situations where a large group of individuals are

united in interest. 7A Charles Alan Wright et al., Federal

Practice and Procedure § 1751 (4th ed. 2023). Because final

judgment in a class action may bind absent individuals and thus

infringe on their substantive rights, Rule 23 of the Federal

Rules of Civil Procedure imposes certain procedural safeguards

to ensure that class treatment is warranted. Russell v. Educ.

Comm'n for Foreign Med. Graduates, 15 F.4th 259, 265 (3d Cir.

2021).

The Supreme Court has emphasized that “Rule 23 does

not set forth a mere pleading standard.” Wal-Mart, 564 U.S. at

350. A plaintiff seeking class certification bears the burden

of proving each applicable requirement of Rule 23 by a

preponderance of the evidence. Byrd v. Aaron’s Inc., 784 F.3d

154, 163 (3d Cir. 2015). “Class certification is proper only

‘if the trial court is satisfied, after a rigorous analysis,

that the prerequisites’ of Rule 23 are met.” In re Hydrogen

Peroxide Antitrust Litig., 552 F.3d 305, 309 (3d Cir. 2008)

(quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161

(1982)). To conduct this analysis the court “must resolve all

factual or legal disputes relevant to class certification, even

if they overlap with the merits—including disputes touching on

elements of the cause of action.” Id. at 307.

As a threshold matter, a class representative bears

the burden of establishing Article III standing, that is that he

or she has suffered injuries which are “fairly traceable” to the

defendant’s conduct and can be redressed by a favorable judicial

decision. See Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353,

362 (3d Cir. 2015); Mielo v. Steak 'n Shake Operations, Inc.,

897 F.3d 467, 478 (3d Cir. 2018). The DHS Defendants argue that

the class representatives Derrick, Walter, and Thomas do not

have standing against former Secretary Dallas because he left

his position at DHS in 2017, one year before they had arrived at

Glen Mills.7

Plaintiffs counter that former Secretary Dallas

maintained the same policies and practices which later caused

them injury. By their logic, they could name as defendants even

distant predecessors of Secretary Dallas who allegedly followed

the same challenged policies. The causal relationship is too

7. The DHS Defendants present this challenge to typicality

under Rule 23(a)(3). Circuit courts are split between

considering standing within the context of the Rule 23 inquiry

or separately. Neale, 794 F.3d at 368. The precedent of the

Court of Appeals for the Third Circuit, to which this court is

bound, takes the separate inquiry approach. See id.

tenuous as to the public officials whose tenure in office

expired prior to the time when the alleged harm occurred.

Plaintiffs do not have standing against former Secretary Dallas

and the action will be dismissed as to him.

A. Ascertainability

A plaintiff seeking class certification must first

establish an ascertainable class. See Byrd, 784 F.3d at 163.

“The ascertainability inquiry is two-fold, requiring a plaintiff

to show that: (1) the class is defined with reference to

objective criteria; and (2) there is a reliable and

administratively feasible mechanism for determining whether

class members fall within the class definition.” Id. (internal

quotations omitted).

Plaintiffs define the “Abuse Class” as consisting of

all youth at Glen Mills within the “Class Period:”

[Y]outh who were adjudicated

delinquent and were placed at [Glen Mills]

by a court or state or local agency, and

resided at [Glen Mills]: (a) at any time

between April 11, 2017, and April 11, 2019;

(b) at any time and who turned 18 years old

between April 11, 2017, and April 11, 2019;

or (c) at any time and had not yet turned 18

years old by April 11, 2019 . . . .

It is within this court’s discretion to remedy a

defective class definition. Finberg v. Sullivan, 634 F.2d 50,

64 (3d Cir. 1980). As previously noted, Derrick and Walter had

not arrived at Glen Mills until March 2018 and Thomas not until

May 2018. A Plaintiff does not have standing as a class

representative for any claim prior to his arrival. Thus,

Plaintiffs do not have standing for any claim prior to the

earliest arrival of the class representatives. Accordingly, the

Class Period is amended to begin in March 2018,8 when the first

class representative came to Glen Mills. See id.

The DHS Defendants challenge ascertainability on the

ground that Plaintiffs’ class definition is overly broad.

According to them, Plaintiffs cannot establish that all class

members suffered injury, much less the same type of injury, or

that any injury suffered can be linked to the fact of residence

at Glen Mills.

However, the ascertainability inquiry only concerns

whether the class members can be identified based on Plaintiffs’

criteria. Byrd, 784 F.3d at 163-64. Plaintiffs do not identify

class members in terms of any alleged injury, but rather,

enrollment during the Class Period. Enrollment at Glen Mills

over a given period is an objective criterion and the enrollment

records make it administratively feasible to determine class

membership. See id. at 163. Plaintiffs have set forth an

ascertainable class as modified.

8. The parties have not specified the exact dates when

Derrick, Walter, and Thomas arrived at Glen Mills. The specific

starting date of the amended Class Period will be determined

when those facts are made known.

B. Rule 23(a) Factors

An ascertainable class can be certified only if a

plaintiff can satisfy the four requirements of Rule 23(a):

(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.

Fed. R. Civ. P. 23(a). The elements of this four-part test are

known as numerosity, commonality, typicality, and adequate

representation. Wal-Mart, 564 U.S. at 349.

i. Numerosity

Our Court of Appeals “presume[s] joinder is

impracticable when the potential number of class members exceeds

forty.” Allen v. Ollie’s Bargain Outlet, Inc., 37 F.4th 890,

896 (3d Cir. 2022) (internal citations omitted). Plaintiffs’

class of 1,661 members clearly satisfies numerosity. Even under

the amended definition of Class Period, the number of class

members would clearly meet this threshold.

ii. Commonality

The next requirement is commonality, which the Supreme

Court addressed in Wal-Mart. 564 U.S. at 349. There, female

employees sought class certification against Wal-Mart. Id. at

338. They alleged that its general policy of giving local

supervisors considerable discretion in pay and promotion

decisions discriminated against them. Id. The Supreme Court

noted that any competent attorney can craft a class

certification motion that literally raises common questions.

Id. at 349. The standard for commonality, however, is more

stringent. The common contention “must be of such a nature

that . . . determination of its truth or falsity will resolve an

issue that is central to the validity of each one of the claims

in one stroke.” Id. at 350.

The Court held that the commonality inquiry

“necessarily overlaps with [a plaintiff’s] merits contention.”

Id. at 352. It held that a plaintiff bears the burden of

demonstrating “that the class members ‘have suffered the same

injury,’” that is an injury which “depends upon a common

contention.” Id. at 350 (quoting Falcon, 457 U.S. at 157). A

violation of the same provision of law does not establish a

common contention. Id. While mere allegations by employees of

the same company that they suffered a Title VII injury does not

meet the standard, a claim of sex discrimination by the same

supervisor does. Id. The Wal-Mart plaintiffs were denied class

certification partly because their claims were based on

“literally millions of employment decisions” made by different

supervisors. Id. at 351.

This court similarly considers Plaintiffs’ merits

contention under the Eighth Amendment against the DHS Defendants

to evaluate commonality. See Wal-Mart, 564 U.S. at 352; 42

U.S.C. § 1983. If certification is granted, Plaintiffs would

need to show that the DHS Defendants, acting under color of

state law, deprived class members of their right under the

Eighth Amendment to be free from “cruel and unusual punishment.”

See Farmer v. Brennan, 511 U.S. 825, 832-34 (1994); U.S. Const.

amend. VIII. To establish deprivation, Plaintiffs must prove

that all class members were detained under conditions that posed

a substantial risk of serious harm to which the DHS Defendants

were deliberately indifferent, in violation of their duty to

provide humane conditions of confinement. Farmer, 511 U.S. at

534. It is not disputed that the DHS Defendants acted under

color of state law or that they owed the purported class members

a duty of care.9 For present purposes, Plaintiffs must show that

there is a common question of law or fact regarding the

deprivation claim of each class member.

9. However, the DHS Defendants argue that they are entitled to

qualified immunity. The court will consider this argument

separately on their motion for summary judgment. See Rouse v.

Plantier, 182 F.3d 192, 199 (3d Cir. 1999).

Plaintiffs aver generally that Glen Mills residents

faced a substantial risk of “abuse,” a generic label for the

alleged harm which they repeat seventy-nine times in their brief

in support of the instant motion. They emphasize that the March

2019 DHS Order characterized the conditions at Glen Mills as

“likely to constitute immediate and serious danger to the life

or health of the children in care” and determined that Glen

Mills residents “are at imminent risk and their safety is in

jeopardy.” Plaintiffs further point to the report of Dr. Robert

Kinscherff,10 an expert in clinical psychology and juvenile

justice, who concluded that “[a]ll youth at Glen

Mills . . . were exposed to a significantly increased risk of

harm.”

“Abuse” and “risk of abuse” are not specific enough

terms to state a common issue of law or fact. Plaintiffs

concede that “abuse” took many forms at Glen Mills. Many

different individuals inflicted different harms on over a

thousand residents under many different circumstances. For

class certification, the alleged injury must depend on some

common contention. For example, in Hagan v. Rogers, a putative

10. Dr. Kinscherff is the Executive Director for the Center for

Law, Brain & Behavior at Massachusetts General Hospital and

Professor of Clinical Psychology in the doctoral program at

William James College and Professor of Law and Neuroscience at

Harvard Law School.

class of inmates established a common injury by alleging that

the exposure of inmates to scabies posed a substantial risk to

their health and safety. 570 F.3d 146, 158 (3d Cir. 2009).

Commonality would have been defeated if the proposed class were

comprised of some inmates who alleged not only exposure to

scabies but also other medical issues such as denial of care for

dental cavities.

The March 2019 DHS Order, which Plaintiffs present as

evidence of “abuse” or “risk of abuse,” likewise describes many

factually distinct incidents and types of harm. Some residents

were physically assaulted, some were denied medical care, and

some were orally threatened. The perpetrators of the abuse also

differed. In some instances, the staff members themselves

battered residents. In others, violent altercations occurred

between residents. These separate alleged deprivations lack a

common contention that ties them all together. See Wal-Mart,

546 U.S. at 352; Hagan, 570 F.3d at 158.

Furthermore, proof of injury may depend on the

individual circumstances of class members. In Ferreras v.

American Airlines, Inc., airline employees sought certification

on the ground that their employer had not compensated them for

all hours worked. 946 F.3d 178, 185-86 (3d Cir. 2019). Our

Court of Appeals held that commonality was lacking because

determining whether an employee was entitled to compensation

required individual proof that the employee was actually

working. Id. at 186. Similarly, the class members here were of

different ages, came from different backgrounds, attended Glen

Mills for different amounts of time (from just a few days to

over a year), and resided in fourteen different residence halls.

Indeed, according to Plaintiffs, some class members were

perpetrators rather than potential victims of abuse. These

perpetrators achieved favored treatment or “Bull Status” within

the Class Period. Under these circumstances, Plaintiffs must

come forward with evidence that each purported class member was

actually deprived of his Eighth Amendment right. The

individualized inquiry required here negates the notion of a

common injury.

Plaintiffs go on to argue that “Rule 23 does not

require that a putative class has endured precisely the same

injuries,” but rather, that they were subjected to the same

injurious conduct. See In re Cmty. Bank of N. Virginia Mortg.

Lending Pracs. Litig., 795 F.3d 380, 397 (3d Cir. 2015). They

maintain that the DHS Defendants “violated the Constitutional

rights of each putative class member by maintaining policies,

practices, and patterns of consciously disregarding claims of

abuse at [Glen Mills].”

Plaintiffs’ interpretation of Rule 23 is contrary to

the Supreme Court’s clear guidance in Wal-Mart. See 564 U.S. at

352. There must be “some glue” holding together the various

alleged injuries. Id. Commonality is established when a

plaintiff claims that a uniform behavior or policy created an

excessive risk to the class members’ health or safety, such as

implementing an invasive strip-searching procedure. See, e.g.,

Ross v. Gossett, 33 F.4th 433 (7th Cir. 2022); Wilson v. Cty.

Of Gloucester, 256 F.R.D. 479, 488-89 (D.N.J. 2009).

Plaintiffs here have not identified a specific uniform

behavior or policy of the DHS Defendants that is the cause of

all of the disparate alleged injuries. They do not specify

which of the hundreds of DHS regulations that it was charged

with implementing were not properly enforced by the DHS

Defendants. Instead, they broadly claim that the DHS Defendants

ignored existing complaints of “abuse,” failed to consider

complaints cumulatively, lacked procedures that encouraged

residents to file complaints, implemented inadequate corrective

action plans, and continually licensed Glen Mills. There is

simply no common issue that can resolve the claims of over a

thousand residents “in one stroke.” Wal-Mart, 564 U.S. at 350.

Alternatively, the Wal-Mart Court suggested that the

plaintiffs may have prevailed on the issue of commonality by

presenting “significant proof that Wal-Mart operated under a

general policy of discrimination.” 564 U.S. at 352 (internal

quotations omitted). Merely claiming that an individual

suffered an adverse employment action on discriminatory grounds

does not constitute “significant proof” that her employer

maintained a general policy of discrimination. See id.;

Falcon, 457 U.S. at 152.

Plaintiffs here likewise bear the burden of presenting

“significant proof” that the DHS Defendants had a general policy

of deliberate indifference to the various alleged Eighth

Amendment violations. See Wal-Mart, 457 U.S. at 352. Although

Plaintiffs have submitted extensive evidence of abuses suffered

by Glen Mills residents, proof of mere negligence, that is that

the DHS Defendants should have known that residents were at risk

of such abuses, does not meet the standard. Deliberate

indifference requires proof that “the official acted or failed

to act despite his knowledge of a substantial risk of serious

harm.” Farmer, 511 U.S. at 842 (emphasis added). To satisfy

commonality, Plaintiffs must present significant proof that the

DHS Defendants were aware of the risks of the many alleged

abuses and that they had the same specific policy of reckless

disregard applicable to each of them. See Wal-Mart, 564 U.S. at

352. Plaintiffs have not pointed to such a policy and therefore

have not provided any proof of a common course of conduct which

ties the various claims together.

Without the necessary proof of a common injury or

common injurious conduct, Plaintiffs have not established

commonality.

iii. Typicality

The DHS Defendants argue that Derrick, Walter, and

Thomas have not met the typicality requirement because they

suffered different injuries than their fellow class members.11

This alone does not necessarily defeat typicality. “Factual

differences will not render a claim atypical if the claim arises

from the same event or course of conduct that gives rise to the

claims of the class members, and if it is based upon the same

legal theory.” Hoxworth v. Blinder, Robinson & Co., Inc., 980

F.2d 912, 923 (3d Cir. 1992), abrogated on other grounds by

White v. Samsung Elecs. Am., Inc., 61 F.4th 334 (3d Cir. 2023)

(internal quotations omitted). However, as previously

discussed, Plaintiffs have not established commonality. Their

legal theories also differ because the variety of abuses

inflicted on class members could constitute different Eighth

Amendment violations, from denial of medical care to violation

11. Defendants further contend that some class members lack

standing because they suffered no injury. As previously

discussed, standing is an issue separate from the Rule 23

inquiry. Regardless, this argument fails because the class

representatives are the ones who must establish Article III

standing at this stage, and not the class members. See Neale,

794 F.3d at 362.

of the right to be free from excessive force. Plaintiffs have

not met their burden on typicality.

iv. Adequacy of Representation

Finally, the DHS Defendants challenge the adequacy of

representation on the ground that the interests of members of

the class who suffered actual physical injuries at Glen Mills

are in opposition to those who suffered no physical injury.

This argument pertains to commonality or predominance. Adequacy

of representation primarily concerns “the interests and

incentives of the class representatives, and the experience and

performance of class counsel.” In re Cmty. Bank, 795 F.3d at

392. As our Court of Appeals has explained, “the linchpin of

the adequacy requirement is the alignment of interests and

incentives between the representative plaintiffs and the rest of

the class.” Id. (citation omitted).

Here, there is no conflict of interests because

Derrick, Thomas, and Walter allege both physical and nonphysical

injuries. Separately, the DHS Defendants do not dispute the

performance of class counsel, who have significant experience

representing plaintiffs in class actions and in institutional

abuse matters. Plaintiffs have established adequacy of

representation. See id.

C. Rule 23(b) Factors

Even assuming that Plaintiffs can establish

commonality and typicality, they must also satisfy one of the

requirements under Rule 23(b). See Fed. R. Civ. P. 23(b).

Plaintiffs seek to certify a damages class for abuse claims

against the DHS Defendants under Rule 23(b)(3), which permits

class certification if “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.” These two elements

of Rule 23(b)(3) are known as predominance and superiority. In

re Hydrogen Peroxide, 552 F.3d at 310.

i. Predominance

Predominance is a “far more demanding” standard than

commonality. Id. at 311 (internal quotations omitted). This

court must consider the essential elements of Plaintiffs’ claims

and “formulate a prediction as to how specific issues will play

out.” Id. (internal quotations omitted). “If proof of the

essential elements of the cause of action requires individual

treatment, then class certification is unsuitable.” Newton v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 172

(3d Cir. 2001).

Even if Plaintiffs are correct and have established

commonality under Rule 23(a)(2), they fail to demonstrate

predominance under Rule 23(b)(3). In Baby Neal v. Casey, our

Court of Appeals considered whether on similar facts individual

issues would have predominated for a Rule 23(b)(3) damages

class. 43 F.3d 48, 63 (3d Cir. 1994). There, a putative class

of children claimed that various policies and procedures of the

Philadelphia Department of Human Services were deficient in

providing legally mandated child welfare services. Id. at 53.

The Court reversed the denial of class certification for

declaratory and injunctive relief under Rule 23(b)(2). It then

cautioned that “the individual differences in the children’s

circumstances might indeed militate against certification if the

action sought certification under 23(b)(3) because a court would

need to evaluate those differences in the event that the

plaintiffs prevailed and were entitled to monetary damages.”

Id. at 63. Plaintiffs here present this very situation. They

seek class certification for class members with different

individual circumstances who suffered different harms. See id.

If Plaintiffs were granted class certification, this

court would then be required to make thousands of individualized

decisions regarding each class member’s claim, including: What

injury did he suffer? Were the DHS Defendants aware of the risk

of such an injury? Did a failure to enforce a specific

regulatory provision cause such a risk? Did they disregard the

risk by failing to take additional reasonable measures to abate

it? Were any such corrective measures ineffectual? Under what

legal theory could the class member recover? In sum, class

certification would require the court to make countless

individualized decisions for essential elements of the claims of

over a thousand of class members.

Plaintiffs contend that their circumstances are

analogous to those in Ross. 33 F.4th at 435. The Court of

Appeals for the Seventh Circuit granted certification of a class

of prisoners who were subject to a painful and humiliating

strip-searching policy implemented across multiple prisons by

the Illinois Department of Corrections. Id.

That case is inapposite. The defendants in Ross

conceded that “the shakedowns were conducted according to a

uniform plan created and implemented by the appellants, and that

the plan was executed in a uniform manner under their

supervision.” Id. at 438. It was not disputed that the

plaintiff’s description of the uniform policy would amount to

cruel and unusual punishment in violation of the Eighth

Amendment. Id. Thus, the only issue was whether the policy’s

provisions were as the plaintiffs described them. Id. The

court’s interpretation of the policy was not only a common issue

capable of classwide resolution but also the only issue in

contention. As previously discussed, Plaintiffs here have not

identified any such uniform behavior or policy that violated all

class members’ Eighth Amendment rights.

Plaintiffs have not established predominance.

ii. Superiority

Finally, the court must decide whether a “a class

action is superior to other available methods for fairly and

efficiently adjudicating the controversy.” Fed. R. Civ. P.

23(b)(3). The DHS Defendants point to the 803 individual Mass

Tort Cases brought by former Glen Mills residents that are now

pending in the Court of Common Pleas of Philadelphia County.12

The DHS Defendants maintain that the existence of these cases

demonstrates that class treatment is not the superior form of

litigation. To resolve the superiority issue, the court must

determine whether “in terms of fairness and efficiency, the

merits of a class action” outweigh “those of alternative

available methods of adjudication.” In re Cmty. Bank, 795 F.3d

at 409. It must analyze the following factors:

the class members’ interest in individually

controlling the prosecution of separate

actions;

the extent and nature of any similar

litigation already commenced by class

members;

12. See Phila. Civ. R. 215(A)(4).

the desirability of concentrating the

litigation in a particular forum; and

the difficulties likely to be encountered in

the management of a class action.

Id. at 408–09 (citing Fed R. Civ. P. 23(b)(3)).

Plaintiffs argue in support of class certification

that the DHS Defendants were not named in the Mass Tort Cases.

This omission is irrelevant. The significant point is that in

the Mass Tort Cases class members have counsel, have decided to

pursue individual actions, and have freely chosen what

defendants to sue. See id. (second factor).

The class action vehicle was created to remedy

situations where small individual suits for damages are not

economically feasible and leave aggrieved persons without any

redress. E.g., In re Gen. Motors Corp. Pick-Up Truck Fuel Tank

Prod. Liab. Litig., 55 F.3d 768, 784 (3d Cir. 1995) (citing

Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339 (1980)).

In other words, class certification is appropriate when “[t]he

realistic alternative . . . is not 17 million individual suits,

but zero individual suits, as only a lunatic or a fanatic sues

for [de minimis damages].” Carnegie v. Household Int'l, Inc.,

376 F.3d 656, 661 (7th Cir. 2004) (emphasis in original). That

is clearly not the case here. See In re Cmty. Bank, 795 F.3d at

409 (third factor).

Class certification, as explained above, would compel

many individualized inquiries, amounting to over a thousand mini

trials. See id. (fourth factor). The overwhelming difficulties

likely to be encountered in managing this damages class against

the DHS Defendants are manifest. Given the variety of legal and

factual issues involved in the claims of the class members, it

would be in the interest of the former residents of Glen Mills

to seek relief individually. See id. (first factor).

Accordingly, Plaintiffs have not demonstrated superiority.

III. Abuse Issue Classes Against Glen Mills

The court now turns to the first three of twenty-four

issue classes which Plaintiffs seek to certify under Rule

23(c)(4). These are the three “Abuse Issue[] Class[es] Against

[Glen Mills],” the school where the class members resided.

Rule 23(c)(4) succinctly provides: “When appropriate,

an action may be brought or maintained as a class action with

respect to particular issues.” The rule was designed to give

courts flexibility in managing lawsuits that would otherwise be

ineligible for class treatment. 7AA Charles Alan Wright et al.,

Federal Practice and Procedure § 1790 (3d ed. 2023). Even if

class representatives cannot establish commonality or

predominance for a claim as a whole, class treatment may

nonetheless be warranted where commonality and predominance are

satisfied with respect to one or more elements of a claim.

Russell, 15 F.4th at 273-74.

A plaintiff, of course, still bears the burden of

proving that each issue class meets the requirements of Rule

23(a) and fits within one of the categories of Rule 23(b). Id.

at 262. Furthermore, the plaintiff must show that the nine

factors identified by our Court of Appeals in Gates v. Rohm &

Haas Co. weigh in favor of issue class certification. 655 F.3d

255, 273 (3d Cir. 2011).

Plaintiffs bring two claims against Defendants Glen

Mills Schools and its former Executive Director Randy Ireson

(the “Glen Mills Defendants”). First, Plaintiffs allege that

the Glen Mills Defendants were negligent. Second, they allege

under 42 U.S.C. § 1983 that the Glen Mills Defendants violated

class members’ Eighth Amendment rights. Both claims require

Plaintiffs to show among other elements that the Glen Mills

Defendants owed class members a duty of care and that they

breached that duty. See Farmer, 511 U.S. at 534; Dobson v.

Milton Hershey Sch., 356 F. Supp. 3d 428, 437 (M.D. Pa. 2018);

Restatement (Second) of Torts § 314A(4).

Plaintiffs seek certification of three issue classes

concerning the following elements of the Eighth Amendment and

negligence claims:

(1) whether the policies and practices of the

[Glen Mills Defendants] subjected class

members to a substantial risk of serious

harm to which the [Glen Mills Defendants]

were deliberately indifferent in

violation of the Eighth Amendment;

(2) whether the [Glen Mills] Defendants

undertook or otherwise owed a duty to the

class members; and

(3) whether the [Glen Mills] Defendants

breached any duty owed to the class

members.

The first Abuse Issue Class concerns Plaintiffs’ Eighth

Amendment claim and is characterized by Plaintiffs as involving

the issue of breach. The second issue class, it appears,

concerns the duty elements of both the Eighth Amendment and

negligence claims. Finally, the third issue class, it appears,

concerns the breach element of their negligence claim.

Plaintiffs suggest that after this court resolves these three

issues, which they contend are common to all class members, it

could then proceed with individualized determinations on the

remaining elements using either a special master or bellwether

proceedings.

Mirroring the Rule 23(b)(3) Abuse Class against the

DHS Defendants, the Abuse Issue Classes include all Glen Mills

residents who were involuntarily enrolled during the Class

Period, which Plaintiffs suggest runs from April 11, 2017 to

April 11, 2019. But as previously discussed, class

representatives Derrick and Walter do not have standing for

claims that occurred before their arrival at Glen Mills in March

2018 and Thomas does not have standing before his arrival in May

2018. See Neale, 794 F.3d at 362; Mielo, 897 F.3d at 478.

Accordingly, the Class Period is amended to run from March 2018

to April 11, 2019.13 See Finberg, 634 F.2d at 64.

A. Ascertainability

The enrollment records of Glen Mills over a given

period are objective and provide an administratively feasible

means of ascertaining the members of these issue classes. See

Byrd, 784 F.3d at 163. Plaintiffs’ three Abuse Issue Classes

are thus ascertainable. See id.

B. Rule 23(a) Factors

Next, Plaintiffs must show that the issue classes

satisfy the four requirements of Rule 23(a): numerosity,

commonality, typicality, and adequacy of representation.

Although Defendants challenge only commonality, this court

conducts a “rigorous analysis” of each requirement. See In re

Hydrogen Peroxide, 552 F.3d at 309.

13. As previously discussed, the specific starting date will be

determined when the exact enrollment dates of the class

representatives are made known.

i. Numerosity

The number of class members clearly satisfies the

numerosity prong. See Allen, 37 F.4th at 896.

ii. Commonality

In Russell, our Court of Appeals considered whether

the District Court had erred in certifying issue classes under

Rule 23(c)(4) for only the duty and breach elements of a tort

claim. 15 F.4th at 264-65. There, a putative class of patients

brought a claim of negligent infliction of emotional distress

against a medical commission that had certified an alleged

unqualified, foreign-trained doctor who treated them. Id. at

262-65. The Court of Appeals vacated the district court’s grant

of class certification because it had not rigorously analyzed

some of the Gates factors. Id. at 275.

The Russell Court, however, concluded that the

plaintiffs’ proposed issue classes satisfied commonality. It

reasoned that “[d]uty is an issue of law” which “must be decided

separately from breach, causation, and damages.” Id. at 273.

Furthermore, duty could be determined based on common evidence

because “each patient shared the same distanced relationship of

trust with the Commission.” Id. Breach likewise “would require

only common evidence” because it concerned the commission’s

conduct with respect to only one doctor who was alleged to have

caused the emotional distress of every patient in the class.

Id. Accordingly, “[n]o absent class member would have anything

special to add in her individual trial.” Id.

Plaintiffs here propose certification of an issue

class concerning “whether the [Glen Mills] Defendants undertook

or otherwise owed a duty to the class members.” The issue class

appears to address the duty elements of both the negligence and

Eighth Amendment claims. It is uncontested that Glen Mills was

a private residential rehabilitative institution, and therefore,

that the Glen Mills Defendants were subject to various

Pennsylvania laws and regulations that set forth specific duties

for such an institution. See 42 Pa. Cons. Stat. § 6357; 55 Pa.

Code §§ 3800.32(b), 3800.53. Class members cannot add any

individualized evidence to the duty inquiry for the negligence

claim. See Russell, 15 F.4th at 275. Each class member shared

the same relationship of “custody, care, and control” with Glen

Mills under the Eighth Amendment, much like each patient in

Russell shared “the same distanced relationship of trust with

the Commission.” See Dobson, 356 F. Supp. 3d at 437; id.

Accordingly, Plaintiffs have established commonality on the

issue of duty with respect to both their negligence and Eighth

Amendment claims.

Plaintiffs further seek certification of issue classes

on the elements of breach, that is whether the Glen Mills

Defendants “breached any duty owed to the class members” under

negligence doctrine and whether they “were deliberately

indifferent in violation of the Eighth Amendment.” On issues of

breach, Russell is inapposite. Although duty is an issue of

law, breach is a fact-intensive inquiry that relates to the

specific injuries being alleged. See Russell, 15 F.4th at 273.

In Russell, the plaintiffs claimed that the commission had

breached its duty of care to all putative class members when it

improperly certified the one specific doctor who treated all

class members. Id. The breach element satisfied the

commonality requirement because the commission’s conduct was

identical with regard to each class member. See id. Thus, the

plaintiffs shared a common contention that tied all their claims

together. See id.; Wal-Mart, 564 U.S. at 350.

In contrast, Plaintiffs here challenge various actions

and omissions of the Glen Mills Defendants on their negligence

claim. They do not identify which of the hundreds of statutes

and regulations applicable to Glen Mills were not enforced or

violated by Defendants in breach of their duty. Instead, they

bring evidence of innumerable factually distinct incidents over

an extended period of time involving different policies and

perpetrators. They have produced evidence that Defendants

maintained a culture of confrontation, permitted the excessive

use of physical restraints, stifled reports of abuse from

residents, failed to conduct background checks on prospective

employees, and improperly trained employees. The evidence shows

many different breaches under many different circumstances.

Furthermore, Plaintiffs offer different theories of

liability on their Eighth Amendment claim, including deliberate

indifference, adverse conditions of confinement, failure to

protect, use of excessive force, and inadequate access to

medical care. See Brown v. Haldeman, No. 1:21-cv-2085, 2021 WL

6063220, at *3 (M.D. Pa. 2021); DeJesus v. Lewis, 14 F.4th

1182, 1195 (11th Cir. 2021). Each of these theories

necessitates different evidence of breach. For example,

evidence that a class member was denied access to medical care

is not relevant to a claim of excessive force in violation of

the Eighth Amendment, but it is certainly relevant to a claim of

inadequate access to medical care in violation of the Eighth

Amendment. Compare Estelle v. Gamble, 429 U.S. 97, 104-05

(1976) with Hudson v. McMillian, 503 U.S. 1, 8-9 (1992).

In short, there is no common course of conduct as to

all class members with respect to either the negligence or

Eighth Amendment claim. See Russell, 15 F.4th at 273; Wal-

Mart, 564 U.S. at 350. Accordingly, Plaintiffs have not

satisfied commonality with respect to the breach issue classes

against the Glen Mills Defendants.

iii. Typicality

Typicality is easily established for the issue class

concerning duty. There are no factual differences between the

duties that the Glen Mills Defendants owed to class

representatives Derrick, Walter, and Thomas, and the duties that

they owed to class members.

However, typicality is not established for the issue

classes that concern breach. Derrick, Walter, and Thomas were

subjected to some but not all of the many distinct abuses

identified in the March 2019 DHS Order. The class

representatives’ claims thus do not “arise[] from the same event

or course of conduct that gives rise to the claims of the class

members” nor are they “based upon the same legal theory.” See

Hoxworth, 980 F.2d at 923. Plaintiffs have not shown typicality

on the issue of the Glen Mills Defendants’ breach of duty.

iv. Adequacy of Representation

No facts of record suggest that the interests of

Derrick, Walter, and Thomas are misaligned with the rest of the

class. See In re Cmty. Bank, 795 F.3d at 392. Defendants do

not and this court has no reason to reject the “experience and

performance of class counsel.” See id. Plaintiffs have

established adequacy of representation.

C. Rule 23(b) Factors

Plaintiffs maintain that the three Abuse Issue Classes

fit within Rule 23(b)(3). See Russell, 15 F.4th at 271.

Consequently, they must show that the issue classes satisfy

predominance and superiority. See In re Hydrogen Peroxide, 552

F.3d at 310; Fed R. Civ. P. 23(b)(3).

i. Predominance

Rule 23(b)(3) requires common issues to predominate

over individual ones. Because duty presents only common issues,

this class satisfies the predominance requirement.

However, for the reasons discussed above, individual

questions predominate on the issues of breach. This court would

need to determine which of the hundreds of statutory and

regulatory duties was breached with regard to each class

member’s negligence claim. Likewise, this court would need to

decide which of the various Eighth Amendment violations was

applicable to each class member and what specific act or

omission by Defendants resulted in the breach. Therefore, these

issue classes do not satisfy predominance.

ii. Superiority

The superiority requirement concerns judicial economy

and fairness. In re Cmty. Bank, 795 F.3d at 409.

The issue classes regarding breach would devolve into

likely over one thousand mini trials. Furthermore, Plaintiffs

have not explained how resolving duty and breach as issue

classes and leaving the more complex elements of injury,

causation, and damages for individualized proceedings would come

close to being efficient. Russell held that issue class

certification is not limited to issues that are determinative of

liability. 15 F.4th at 270. The Court, however, expressed

skepticism at certifying issue classes with respect to the duty

and breach elements only, particularly when the other elements

requiring individualized proof are too complex to permit

efficient adjudication. Id. at 272. The Russell Court’s

analysis is directly relevant to the instant matter as that

action also involved a negligence theory of liability. Its

skepticism is echoed in the decisions of many other district

courts, including those in the Third Circuit. Wright et al.,

supra, at § 1790 n. 22 (compiling cases). Furthermore,

Defendants do not appear to contest that they owed class members

a duty of care, suggesting that establishing duty would not

impose any significant litigation burdens on class members

proceeding individually.

The 803 Mass Tort Cases in the Court of Common Pleas

of Philadelphia County are also relevant to this inquiry.

Unlike the DHS Defendants, the Glen Mills Defendants are parties

to these cases pending in that court. These cases demonstrate

that class members have opted to seek individual relief against

Defendants in the state court. Under the circumstances, issue

class certification in federal court against the Glen Mills

Defendants is an inferior method of adjudication than proceeding

with individual cases in the Court of Common Pleas. See In re

Cmty. Bank, 795 F.3d at 409. Accordingly, the Abuse Issue

Classes fail the superiority requirement.

D. Gates Factors

Finally, the court considers whether the factors

identified by our Court of Appeals in Gates weigh in favor of

certification. There, a putative class of property owners

claimed that pollution by a chemical company had decreased their

property values. Gates, 655 F.3d at 259, 271. The plaintiffs

sought to certify a Rule 23(b)(3) damages class under various

theories including nuisance, negligence, trespass, and

environmental laws. Id. at 271. In the alternative, they

sought certification of a Rule 23(c)(4) class on the issue of

liability. Id. at 272. The district court denied certification

under both approaches. Id. at 272.

Our Court of Appeals affirmed. Id. at 274. It

reasoned that “[t]he claims and issues here are complex and

common issues do not easily separate from individual issues.”

Id. Furthermore, an issue class “would not advance the

resolution of the class members’ claims” because “the fact of

damages and the amount of damages would remain following the

class-wide determination of any common issues, and further that

causation and extent of contamination would need to be

determined at follow-up proceedings.” Id. at 272. The court

also noted other concerns, including potential prejudice to

absent class members. Id.

The Gates Court identified nine non-exclusive factors

to guide the issue class certification inquiry:

(1) the type of claim(s) and issue(s) in

question;

(2) the overall complexity of the case;

(3) the efficiencies to be gained by granting

partial certification in light of

realistic procedural alternatives;

(4) the substantive law underlying the

claim(s), including any choice-of-law

questions it may present and whether the

substantive law separates the issue(s)

from other issues concerning liability or

remedy;

(5) the impact partial certification will

have on the constitutional and statutory

rights of both the class members and the

defendant(s);

(6) the potential preclusive effect or lack

thereof that resolution of the proposed

issue class will have;

(7) the repercussions certification of an

issue(s) class will have on the

effectiveness and fairness of resolution

of remaining issues;

(8) the impact individual proceedings may

have upon one another, including whether

remedies are indivisible such that

granting or not granting relief to any

claimant as a practical matter determines

the claims of others; and

(9) the kind of evidence presented on the

issue(s) certified and potentially

presented on the remaining issues,

including the risk subsequent triers of

fact will need to reexamine evidence and

findings from resolution of the common

issue(s).

Id. at 273. The plaintiff must show that these factors weigh in

favor of certifying the proposed issue class. See id.;

Russell, 15 F.4th at 268-69.

Plaintiffs here contend that that the issues of duty

and breach “apply to the class as a whole” and promote judicial

economy by preventing repetitive discovery and contradictory

rulings. But as previously explained, the breach issue classes

would require individualized decisions and the duty issue class

would not provide any significant efficiency gains. See Gates,

655 F.3d at 273 (first factor, third factor). Furthermore, the

issue classes would resolve only a few of the many elements in

this highly complex matter. See id. (second factor).

Plaintiffs seek to certify in total one damages class and

twenty-four issue classes against various defendants. The

overall complexity of the case suggests that it would be better

suited for individual proceedings.

Plaintiffs assert that the issues of duty and breach

involve legal determinations that are separate from factual

determinations of liability or remedy. While this may be true

for the issue of duty, for the reasons previously stated, breach

is an issue of fact that does not easily separate from the

individual issues of injury, causation, and damages. See id.

(fourth factor). The comingling of individual and common

evidence on the issues of breach also risks having “subsequent

triers of fact . . . reexamine evidence and findings from

resolution of the common issue(s).” See id. (ninth factor).

Plaintiffs address the remaining Gates factors

collectively. They argue that bifurcated proceedings would

“streamline individual actions for future adjudication” without

extinguishing any individual claims. The court is not persuaded

that much, if any, streamlining would take place. A plethora of

individual claims against the Glen Mills Defendants have already

been filed in state court.

Significantly, issue class certification may have a

preclusive effect on the element of breach of any individual

claims of absent class members. See id. at 273-74 (sixth,

seventh, and eighth factors).

All class actions necessarily implicate constitutional

due process rights. See Russell, 15 F.4th at 265; see also 7AA

Charles Alan Wright et al., Federal Practice and Procedure

§ 1789.1 (3d ed. 2023). The potential impact of issue

preclusion on the Eighth Amendment rights of absent class

members is especially concerning here. See id. (fifth factor).

Accordingly, the nine Gates factors weigh against

certification of the three Abuse Issue Classes against the Glen

Mills Defendants.

IV. Education Issue Classes Against Glen Mills and Rivera

Plaintiffs move to certify eight “Education Issue[]

Class[es]” which are part of three of Plaintiffs’ claims against

the Glen Mills Defendants and Pedro Rivera, the former Secretary

of the Pennsylvania Department of Education (“PDE”) acting in

his official capacity.14 For these claims, Plaintiffs seek

equitable relief in the form of compensatory education. Such

relief is awarded as monetary damages which a claimant may use

to obtain the educational services that should have been

provided in the first place. See, e.g., G.L. v. Ligonier Valley

Sch. Dist. Auth., 802 F.3d 601, 608 (3d Cir. 2015); Ferren C.

v. Sch. Dist. of Phila., 612 F.3d 712, 717–18 (3d Cir. 2010).

First, Plaintiffs claim via Section 1983 that the Glen

Mills Defendants and Rivera violated class members’ Fourteenth

Amendment due process rights. Defendants allegedly did so by

depriving Glen Mills residents of their right to a free and

14. Although Plaintiffs in the instant motion refer to PDE or

the PDE Defendants, the claims relevant to the Education Issue

Classes are against the Glen Mills Defendants and Rivera.

public education, a property interest that was created by the

Pennsylvania Public School Code of 1949, 24 Pa. Cons. Stat. § 1-

101, et seq., without notice or an opportunity to be heard. See

Goss v. Lopez, 419 U.S. 565, 572-74 (1975).

Second, Plaintiffs claim that Rivera violated class

members’ equal protection rights under the Fourteenth

Amendment.15 Specifically, they allege that Rivera’s actions or

omissions denied Glen Mills residents access to a free and

public education, which was provided to non-resident children

placed in other Pennsylvania institutions. See San Antonio

Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 44 (1973).

Third, Plaintiffs claim that the Glen Mills Defendants

violated the rights of class members to a free and public

education under a Pennsylvania statute concerning “Non-resident

inmates of children’s institutions.”16 See 24 Pa. Cons. Stat.

§ 13-1306. The law provides that where a child is placed into a

residential facility located in a school district other than the

school district in which his or her parents reside, the school

district in which the facility is located must allow the child

“to attend the public schools in said district either with or

15. The parties agreed to dismiss this claim only as to the

Glen Mills Defendants (Doc. #247).

16. Plaintiffs also cite in their Complaint 24 Pa. Cons. Stat.

§ 9-914.1-A. That provision, however, concerns intermediate

units. As previously noted, the Chester County Intermediate

Unit was dismissed as a party to this case.

without charge.” Id. at § 13-1306(a). The school district is

also responsible for providing eligible children with an

appropriate program of special education and training. Id. at

§ 13-1306(c). Plaintiffs aver that the Glen Mills Defendants

did not provide these statutorily mandated services.

Plaintiffs do not separate their issue classes under

Rule 23(c)(4) by claim but rather by Defendant. They seek

certification of the following Education Issue Classes against

the Glen Mills Defendants:

(1) whether [the Glen Mills Defendants]

failed to provide an appropriate

education program under state and federal

law;

(2) whether students at [Glen Mills] were

discriminated against based on their

placement at the facility which offered

an inadequate education;

(3) whether students at [Glen Mills] were

discriminated against based on their

placement at the facility when they were

deprived of a high school education

without due process; and

(4) whether students subject to the

educational programming at [Glen Mills]

were harmed.

Plaintiffs further seek certification of the following issue

classes against Rivera:

(1) whether [Rivera] had a duty to provide

oversight or monitoring of the education

program at [Glen Mills];

(2) whether the [Glen Mills] education

program failed to meet the requirements

of Pennsylvania and federal law;

(3) whether [Rivera] discriminated against

students at [Glen Mills] on the basis of

their placement at a [private residential

rehabilitative institution] by failing to

ensure their education; and

(4) whether students subject to [Glen

Mills’s] education program were harmed.

Plaintiffs acknowledge that even if this court were to

certify the eight Education Issue Classes, individualized

determinations would remain as to the extent each former

student’s education at Glen Mills was deficient and the amount

of compensatory education owed.

Once again, the eight Education Issue Classes include

all Glen Mills students who were involuntarily enrolled during

the Class Period. For the reasons recited above, the Class

Period for the Education Issue Classes is amended to run from

the date in March 2018 when the first Plaintiff enrolled at Glen

Mills to April 11, 2019.

A. Ascertainability

The enrollment records at Glen Mills are an objective

criterion and provide a method that is feasible administratively

for identifying the class members. See Byrd, 784 F.3d at 163.

Plaintiffs’ eight Education Issue Classes are ascertainable.

B. Rule 23(a) Factors

i. Numerosity

Plaintiffs have established numerosity for the eight

Education Issue Classes as they have for the three Abuse Issue

Classes.

ii. Commonality

Although Plaintiffs need not satisfy commonality as to

each claim, they must do so as to each issue class. Russell, 15

F.4th at 273-74.

Plaintiffs assert that each of the four Education

Issue Classes against the Glen Mills Defendants concern the

“common policies, practices, and failures of [Glen Mills].”

They do not challenge any one specific common policy or practice

but rather have provided a laundry list that includes

deficiencies in the PLATO/Edmentum computer program,

deficiencies in the curriculum, an inadequate number of

instruction hours, limited in-person instruction by Counselor-

Teachers, hiring Counselor-Teachers without proper

certifications or training, maintaining a disruptive culture of

confrontation, and diverting students from working toward a high

school diploma to a GED program. Plaintiffs attest that such

deficiencies are evidence that “defendants’ conduct was common

as to all class members.” In re Suboxone (Buprenorphine

Hydrochloride and Nalaxone) Antitrust Litig., 421 F. Supp. 3d

12, 47 (E.D. Pa. 2019), aff'd sub nom. In re Suboxone

(Buprenorphine Hydrochlorine and Naloxone) Antitrust Litig., 967

F.3d 264 (3d Cir. 2020) (internal quotations omitted).

Plaintiffs’ position that commonality has been

satisfied does not pass muster. They have failed to come

forward with evidence that all Glen Mills students were harmed

by or even subject to all of the many policies and practices

challenged by Plaintiffs. The circumstances of students

differed greatly. They resided at Glen Mills for different

durations, were placed in different educational programs, and

received instruction from different Counselor-Teachers. Even if

some Counselor-Teachers lacked certain certifications, that does

not necessarily mean that all Counselor-Teachers provided

deficient instruction. Furthermore, only 15% of students were

placed in the GED track. Some class members, although

comprising only a minority of students, progressed in their

studies and achieved a high school diploma. Plaintiffs simply

do not present evidence of a common course of conduct that

affected all class members. See id.

To show commonality, Plaintiffs must at least

demonstrate that all class members “were subjected to injury or

faced the immediate threat of these injuries.” Id. Plaintiffs’

own expert, Dr. Joseph Gagnon,17 excluded from his analysis

students of Glen Mills who had spent fewer than 90 days at the

school because that duration was too short to assess any effect

on their education. He further noted that most students were

not subjected to aggression, violence, or physical restraints.

And as previously noted, some students succeeded in achieving a

high school diploma. Thus, Plaintiffs have not even produced

evidence that all class members suffered injury or the threat of

injury.

Finally, each of the four Education Issue Classes

against Rivera is not based on a common course of conduct.18

Rivera had numerous oversight responsibilities as the Secretary

of PDE. The Pennsylvania Public School Code of 1949 contains

hundreds of sections, many of which reference specific duties of

PDE and the Secretary of PDE. See 24 Pa. Cons. Stat. § 1-101,

et seq. Plaintiffs have not identified any specific act or

failure to act by Rivera that harmed all class members. See

Wal-Mart, 564 U.S. at 357. Whether and how each class member

17. Dr. Gagnon is a Professor of Educational Sciences at the

University of Helsinki in Finland. Defendants have subsequently

moved this court to exclude his report under Daubert v. Merrell

Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). The court does

not need to decide this issue here.

18. Plaintiffs refer to the alleged failures of PDE, but as

previously discussed, their claims as to these issue classes are

only against Rivera in his official capacity.

was deprived of an education necessitates an individualized

determination.

Accordingly, Plaintiffs’ eight Education Issue Classes

do not satisfy commonality.

iii. Typicality

To reiterate, whether and to what extent each class

member was deprived of an appropriate education will demand

individualized analysis. The individual circumstances and

claims of class representatives Derrick, Walter, and Thomas are

necessarily different than those of class members. Furthermore,

Defendants correctly point out that Derrick, Walter, and Thomas

each claim to have been entitled to an IEP and special

education, while almost 70% of Glen Mills students did not have

a disability that entitled them to the IDEA’s protections. The

class representatives’ claims cannot “arise[] from the same

event or course of conduct that gives rise to the claims of the

class members” nor can they be “based upon the same legal

theory.” See Hoxworth, 980 F.2d at 923. Plaintiffs have not

met the typicality prong as to the eight Education Issue

Classes.

iv. Adequacy of Representation

Defendants do not and this court has no reason to

challenge the “experience and performance of class counsel.”

See In re Cmty. Bank, 795 F.3d at 392. However, Rivera argues

that the interests of Derrick, Walter, and Thomas are not

aligned with those of absent class members because of the class

representatives’ settlement with the Chester County Intermediate

Unit. He relies on Charlene R. v. Solomon Charter School for

the proposition that a plaintiff cannot recover compensatory

education from both the local education agency (Chester County

Intermediate Unit) and the state education agency (PDE) where

the local education agency fell short of its responsibilities.

63 F. Supp. 3d 510, 514 (E.D. Pa. 2014). According to Rivera,

Plaintiffs’ settlement with the Chester County Intermediate Unit

prohibits them from seeking relief from Rivera or the PDE for

their claims and puts them in conflict with class members who

could otherwise seek relief from Rivera or the PDE.

However, Charlene R. is easily distinguished from the

instant matter because there, the plaintiff brought claims under

the IDEA, which delegates the burden of coordinating efforts to

the state education agency. Id. A plaintiff may seek relief

from multiple defendants if each defendant independently

violated the plaintiff’s Fourteenth Amendment rights.

Regardless, the claims against the Chester County Intermediate

Unit for its alleged acts and omissions are independent of the

claims against Rivera for his alleged acts and omissions.

Accordingly, the eight Education Issue Classes satisfy adequacy

of representation.

C. Rule 23(b) Factors

Plaintiffs maintain that the eight Education Issue

Classes fit within Rule 23(b)(3). See Russell, 15 F.4th at 271.

They must show that these issue classes satisfy predominance and

superiority. See In re Hydrogen Peroxide, 552 F.3d at 310; Fed

R. Civ. P. 23(b)(3).

i. Predominance

Rule 23(b)(3) requires common issues to predominate

over individual ones. Again, the issue classes will require

thousands of individualized determinations, including: What

provision of Pennsylvania law did the Glen Mills Defendants

violate? What provision of Pennsylvania law did Rivera fail to

enforce? What class members were harmed by this violation of

the Glen Mills Defendants? What class members were harmed by

the act or omission of Rivera? To what extent did each class

member suffer harm? Did the Glen Mills Defendants provide

students with notice and an opportunity to be heard regarding

alleged violations of their right to a free and public

education? Did Rivera provide students with notice and an

opportunity to be heard? Plaintiffs’ eight Education Issue

Classes implicate more individualized questions than common

ones. Plaintiffs do not meet the test for predominance.

ii. Superiority

Although issue classes need not resolve liability or

damages, our Court of Appeals discourages certification of issue

classes when the other elements requiring individualized proof

are too complex to permit efficient adjudication. Russell, 15

F.4th at 270. The heart of Plaintiffs’ three education claims

concern the extent to which Glen Mills students were deprived of

an education and what if any compensatory education is due.

These are complex questions which involve consideration of each

student’s experience and educational progress at Glen Mills.

Even if Plaintiffs’ issue classes satisfied the requirements of

Rule 23(a) and the predominance requirement of Rule 23(b), that

would still leave the central issue of compensatory education to

be resolved individually. Accordingly, the guidance of our

Court of Appeals in Russell cautions against certification.

In addition, for the reasons stated above, the Mass

Tort Cases in the Court of Common Pleas of Philadelphia County

suggest that issue class certification in federal court is an

inferior method of adjudication. These issue classes fail the

superiority requirement.

D. Gates Factors

Finally, the court considers whether the Gates factors

weigh in favor of certification. See 655 F.3d at 273. The

court reiterates that this is an incredibly complex case that

involves one damages class and twenty-four issue classes, and

yet leaves many elements of liability and the relief sought by

Plaintiffs for individualized determinations. See id. (second

factor). The education claims are multifaceted because they

compel this court to decide whether each class member received

an appropriate education pursuant to his individual

circumstances and many hundreds of Pennsylvania statutes. See

id. (first factor). Any efficiencies that would be gained from

certification are dwarfed by the countless individualized

determinations that would be required. See id. (third factor).

A key issue to be resolved, the entitlement to

compensatory education, would require individual consideration.

See Russell, 15 F.4th at 270. That issue does not easily

separate from the issue of whether each class member received an

appropriate education pursuant to his individual needs. See

Gates, 655 F.3d at 273 (fourth and seventh factors). This

carries the risk that “subsequent triers of fact will need to

reexamine evidence and findings from resolution of the common

issue(s).” Id. (ninth factor).

If the court were to make a classwide determination on

issues where common and individual evidence are comingled, the

danger exists that it could have a preclusive effect on the

individual claims of class members. For example, if the court

held based on common evidence that Glen Mills had a general

practice of providing notice and an opportunity to be heard to

students with concerns about their education, that determination

could unfairly preclude the due process claims of students with

individual proof that this practice was not followed as to them.

See id. (sixth and eighth factors). Issue preclusion would

directly impact the constitutional and statutory rights of class

members because Plaintiffs seek class certification on

constitutional and statutory issues. See id. (fifth factor).

The nine Gates factors weigh against certification of

the eight Education Issue Classes against the Glen Mills

Defendants and Rivera.

V. Disability Discrimination Issue Classes Against Glen Mills

and PDE

The court turns to the six “Disability Discrimination

Issue[] Class[es]” which are part of two claims of Plaintiffs

against the Glen Mills Defendants and the Pennsylvania

Department of Education (“PDE”). First, Plaintiffs claim that

the Glen Mills Defendants violated the rights of class members

under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a).

Second, they claim that the Glen Mills Defendants and PDE

violated the rights of class members under the Americans with

Disabilities Act, 42 U.S.C. §§ 12101, et seq. The class

representatives are Plaintiffs Derrick and Walter.

Although Section 504 and the ADA “may diverge as to

the entities they cover and remedies they provide, they impose

the same substantive liability standard.” Berardelli v. Allied

Servs. Inst. of Rehab. Med., 900 F.3d 104, 117 (3d Cir. 2018).

Our Court of Appeals has endorsed consideration of “both claims

in the same breath.” Id. (quoting Chambers ex rel. Chambers v.

Sch. Dist. Of Phila. Bd. Of Educ., 587 F.3d 176, 189 (3d Cir.

2009)). Under both Section 504 and the ADA, Plaintiffs must

show that each class member: (1) qualified as an individual with

a disability, (2) was excluded from participation in or denied

the benefits of services, programs, or activities of Glen Mills;

and (3) suffered such exclusion, denial, or discrimination

because of his disability. See Furgess v. Pa. Dept. of Corr.,

933 F.3d 285, 288-89 (3d Cir. 2019). As to the second element,

Plaintiffs allege that the Glen Mills Defendants and the PDE

failed in their duty to provide a reasonable accommodation

necessary to ensure that each class member had meaningful access

to an education. See Berardelli, 900 F.3d at 115; 42 U.S.C.

§ 12182(b)(2)(A)(ii). For both of these claims, Plaintiffs seek

compensatory education, which is awarded as monetary damages

that each claimant may use to obtain the educational services

that should have been provided.

Plaintiffs seek to certify the following Disability

Discrimination Issue Classes for the claims against the Glen

Mills Defendants:

(1) whether [the Glen Mills Defendants’]

policies and practices discriminated

against students with qualifying

disabilities due to the absence of a

system to identify, evaluate, and provide

accommodations in violation of Section

504 and the ADA;

(2) whether [the Glen Mills Defendants] owed

a duty to students with qualifying

disabilities; and

(3) whether [the Glen Mills Defendants]

breached any duty it owed to students

with qualifying disabilities.

They further seek to certify the following issue classes for the

claims against PDE:

(1) whether PDE’s common policies and

practices of failing to provide any

supervision of [Glen Mills’s] program

discriminated against class members on

the basis of their disabilities;

(2) whether PDE owed a duty to students with

qualifying disabilities; and

(3) whether PDE breached any duty it owed to

students with qualifying disabilities.

Plaintiffs’ six Disability Discrimination Issue

Classes are comprised of “all youth at [Glen Mills] after April

11, 2017, who had qualifying disabilities as defined under

Section 504 and the ADA.” This class definition, as previously

explained, is amended to begin in March 2018 and end on April

11, 2019.

A. Ascertainability

The court must first resolve whether the three

Disability Discrimination Issue Classes against the Glen Mills

Defendants and the three Disability Discrimination Issue Classes

against PDE are ascertainable. See Byrd, 784 F.3d at 163.

Section 504 and the ADA define a qualifying individual

as one who suffers a physical or mental impairment that

substantially limits one or more of his or her major life

activities, has a record of such an impairment, or is regarded

as having such an impairment. See 42 U.S.C. § 12102; 29 U.S.C.

§ 705(20). Plaintiffs propose that the education and health

records of Glen Mills are an objective and administratively

feasible method of ascertaining the class members. According to

Plaintiffs, these records identify students with Individualized

Education Programs, students with Section 504 Service

Agreements, and students with “a record of an impairment known

to interfere with major life activities such [sic] depression,

post-traumatic stress disorder . . . and other mental health

conditions which are recognized to result in partial or complete

disturbance in the person’s thinking, feeling, and behavior

thereby reducing a person’s ability to carry out activities of

daily living.”

Plaintiffs submit one document containing a

spreadsheet that clearly identifies all Glen Mills students

admitted after April 11, 2017 who had either an IEP or a Section

504 Plan. The court agrees that this record from Glen Mills

provides an objective and administratively feasible method to

identify individuals with disabilities. See Byrd, 784 F.3d at

163.

Plaintiffs also reference additional “Health and

Safety Screen” documentation. It is not possible to identify

any additional class members from this submission. Accordingly,

the class definition is amended to include only those students

who had an IEP or a Section 504 plan.

B. Rule 23(a) Factors

i. Numerosity

Plaintiffs have identified 529 students in the records

of Glen Mills that were admitted after April 11, 2017, and that

were provided an IEP or a Section 504 Plan. Even under the

amended definition of Class Period, the number of class members

clearly satisfies numerosity. See Allen, 37 F.4th at 896.

ii. Commonality

Plaintiffs attest that the three Disability Issue

Classes against the Glen Mills Defendants satisfy commonality

because all class members were subject to “the same common

policies regardless of individual differences in their

disabilities.” According to Plaintiffs, the Glen Mills

Defendants failed to consider students with disabilities in

their policies and practices for disciplining students,

restraining students, and educating students. Citing Serventi

v. Bucks Tech. High Sch., Plaintiffs contend that this failure

constitutes at least one common question of law or fact. See

225 F.R.D. 159, 165 (E.D. Pa. 2004)(quoting Baby Neal, 43 F.3d

at 56).

In Serventi, a putative class of students with

learning disabilities were denied admission to all but two

vocational programs at a technical high school. Id. at 163.

The plaintiffs alleged that the high school was denying them

admission based on their need for learning support classes and

their reading and math levels. Id. They sought declaratory and

injunctive relief for violations of the ADA and Section 504.

Id. The parties settled and the court approved the settlement.

Id. at 169.

Serventi is distinguishable in two respects. First,

the Serventi plaintiffs sought declaratory and injunctive

relief. Id. at 163. As noted by our Court of Appeals,

“injunctive actions by their very nature often present common

questions” because they do not “involve an individualized

inquiry for the determination of damage awards.” See Baby Neal,

43 F.3d at 56. Plaintiffs here seek damages which require

individualized decisions.

Second, the Serventi plaintiffs challenged two

specific admissions policies of the defendant high school that

were applied uniformly to class members: (1) disqualifying

candidates based on their need for learning support classes; and

(2) disqualifying candidates based on their reading and math

scores. 225 F.R.D. at 163. Plaintiffs here vaguely challenge

“the absence of a system to identify, evaluate, and provide

accommodations” and the failure “to take students’ disabilities

into account.” There is no specific discriminatory policy that

Plaintiffs allege was uniformly applied to all class members.

See id.

Nor is there evidence of a general policy of the Glen

Mills Defendants to discriminate against students with

disabilities. See Wal-Mart, 564 U.S. at 353. There is evidence

that Glen Mills screened each student upon admission and

provided some sort of specialized education for students with

qualifying disabilities. Plaintiffs in effect argue that

students with disabilities were not adequately accommodated.

Even if they are correct, that is quite different from an

allegation of a general policy of discrimination. In sum,

Plaintiffs have not satisfied commonality with respect to the

conduct of the Glen Mills Defendants.

Plaintiffs further maintain that they have satisfied

commonality with respect to the three Disability Discrimination

Issue Classes against PDE. Citing V.W. by & through Williams v.

Conway, they allege that PDE engaged in a common course of

conduct of failing to monitor Glen Mills with respect to the

education provided to students with disabilities. 236 F. Supp.

3d 554 (N.D.N.Y. 2017).

In V.W., a putative class of juveniles who were

detained at a correctional facility for adults and juveniles

brought claims under the Eighth Amendment and the IDEA against

prison officials and the local school district. Id. at 564-65.

Plaintiffs alleged that the facility frequently and arbitrarily

subjected juveniles to solitary confinement where the only

educational materials provided were intermittent “cell packets”

that included “newspaper clippings, crossword puzzles, and

problem worksheets.” Id. at 567. The court found that common

answers to two questions would “drive the resolution of the

litigation—whether defendants' conduct violates the Constitution

or federal law, and whether defendants should therefore be

enjoined from engaging in that course of conduct.” Id. at 575.

The court described the School District’s common course of

conduct as its “policy of only sporadically delivering ‘cell

packets’ in lieu of direct instruction and, relatedly,

defendants' alleged failure to conduct manifestation

determinations prior to imposing discipline of a certain

duration.” Id.

Again, the compensatory education sought by Plaintiffs

here would be awarded as individual damages based on the

circumstances of each claimant. The relief sought does not

present common questions. Furthermore, Plaintiffs do not allege

a common course of conduct. They do not identify any particular

policy or practice of Glen Mills or PDE that caused harm to all

class members. See id. Nor do they cite evidence of a general

policy of discrimination. See Wal-Mart, 564 U.S. at 353.

Contrary to their assertions, Plaintiffs’ disability

discrimination claims are specific to the circumstances of each

class member. In Mielo, individuals with disabilities sought

class certification against Steak ‘N Shake for ADA violations.

897 F.3d at 475. The plaintiffs alleged they had experienced

difficulty ambulating in their wheelchairs in steeply graded

parking lots. Id. Our Court of Appeals held that the

plaintiffs had not established commonality because there were a

“wide variety of different ADA violations that any one

particular class member might allege to have encountered.” Id.

at 488. Without a common injury, the proposed class could not

achieve a common resolution. Id. at 490.

Plaintiffs here do not allege any specific injury that

ties all claims together. See id. at 490. In sum, Plaintiffs’

six Disability Discrimination Issue Classes do not satisfy the

commonality requirement.

iii. Typicality

Whether and how the Glen Mills Defendants and PDE

violated the rights of students with disabilities depends on the

circumstances of each student in the class. See id. at 188.

The claims of class representatives Derrick and Walter thus

cannot “arise[] from the same event or course of conduct that

gives rise to the claims of the class members.” See Hoxworth,

980 F.2d at 923. Plaintiffs have not established typicality as

to these issue classes.

iv. Adequacy of Representation

As previously explained, the settlement with the

Chester County Intermediate Unit does not put the interests of

class representatives in conflict with those of class members.

Plaintiffs have satisfied adequacy of representation. See In re

Cmty. Bank, 795 F.3d at 392.

C. Rule 23(b) Factors

Plaintiffs maintain that the six Disability

Discrimination Issue Classes fit within Rule 23(b)(3). See

Russell, 15 F.4th at 271. They must show that these issue

classes satisfy predominance and superiority. See In re

Hydrogen Peroxide, 552 F.3d at 310; Fed R. Civ. P. 23(b)(3).

i. Predominance

If these issue classes were certified, this court

would be required to make hundreds of individualized

determinations, including: Did the class member have a

disability? What reasonable accommodations did he require?

What if any accommodations did the Glen Mills Defendants

provide? Were the accommodations reasonable? If they were not

reasonable, what provision of the ADA or Section 504 did the

Glen Mills Defendants violate? Did any policy of PDE violate

the ADA or Section 504 with respect to this accommodation? To

what damages, if any, is he entitled? Plaintiffs’ Disability

Discrimination Issue Classes do not predominate because they

implicate more individualized questions than common ones.

ii. Superiority

Even if issue class certification were granted, many

complex elements such as injury, causation, and damages would

remain for individualized determinations. See Russell, 15 F.4th

at 270. Moreover, there is overlap between the class members in

the instant action and the plaintiffs in the 803 Mass Tort Cases

in the Court of Common Pleas. Under these circumstances, issue

class certification is not the superior method of adjudicating

these claims. See In re Cmty. Bank, 795 F.3d at 409.

D. Gates Factors

The court must weigh whether the Gates factors favor

certification. See 655 F.3d at 273. It cannot be disputed that

this is a complex matter involving complex claims. See id.

(first and second factors). The disability discrimination

claims specifically depend on the circumstances of each class

member. See id. (first and third factors); Mielo, 897 F.3d at

488. To the extent that there are any common issues of law or

fact, those issues are not easily severable from the issues

requiring individual decisions. See Gates, 655 F.3d at 273

(fourth and seventh factors). For example, whether defendants

breached any duty of care depends on the specific injury

suffered by each class member, which in turn depends on the

accommodations that were denied to him. This carries the risk

that multiple triers of fact will reexamine evidence of any

common issues. See id. (ninth factor). There is also the risk

that any classwide resolution could have a preclusive effect on

the individual claims of class members and thus deprive them of

their rights under the disability statutes. See id. (fifth,

sixth, and eighth factors). Even if this court certified the

issue classes, the most complex elements of the disability

claims——injury, causation, and compensatory education——will

remain. See id. (third factor); Russell, 15 F.4th at 270.

In sum, the Gates factors weigh against certification

of the six Disability Discrimination Issue Classes against the

Glen Mills Defendants and PDE.

VI. Special Education Issue Classes Against Rivera

Plaintiffs pursue three “Special Education Issue[]

Class[es]” which pertain to their claim that Rivera, acting in

his official capacity as the Secretary of PDE, violated the

rights of class members to a free appropriate public education

(“FAPE”) under the Individuals with Disabilities Education Act,

20 U.S.C. §§ 1400, et seq. Specifically, they allege that

Rivera failed to monitor the Chester County Intermediate Unit to

ensure that Glen Mills students with disabilities received

individualized education programs.19 See 20 U.S.C. §§ 1401(3),

1404(d); 22 Pa. Code § 14.101. Plaintiffs Derrick and Walter

are the class representatives. They seek compensatory

education, which is a form of equitable relief that is awarded

as monetary damages.

Plaintiffs move to certify the following Special

Education Issue Classes for their IDEA claim against Rivera:

(1) whether [Rivera] had a duty to ensure

that [Glen Mills] had a system to provide

individualized special education services

to students with disabilities;

(2) whether [Rivera] met [his] obligations

under the IDEA; and

19. Plaintiffs in the instant motion refer to the failure of

PDE to monitor Glen Mills. However, Count VI of the Complaint

alleges that Rivera failed to monitor the Chester County

Intermediate Unit. Although it is no longer a party to this

suit, the Chester County Intermediate Unit was the local

education agency tasked with monitoring Glen Mills.

(3) whether students with disabilities are

entitled to relief from [Rivera] for

[his] failure to provide oversight and

ensure the provision of a FAPE as

required.

These issue classes are comprised of “all school-

eligible youth at [Glen Mills] after April 11, 2017, who had

been identified as children with a disability pursuant to the

IDEA, either before or during their placement at [Glen Mills].”

Again, this class definition is amended to begin in March 2018

since no Plaintiff resided at Glen Mills before that time.

A. Ascertainability

The court must first determine whether the three

Special Education Issue Classes against Rivera are

ascertainable. See Byrd, 784 F.3d at 163. Plaintiffs propose

using Glen Mills’s records to identify students with IEPs. The

court agrees that these records allow for ascertaining the

class. See id.

B. Rule 23(a) Factors

i. Numerosity

Plaintiffs have identified 524 students with IEPs in

the records of Glen Mills that were admitted after April 11,

2017. Even under the amended definition of Class Period, the

number of class members clearly satisfies numerosity. See

Allen, 37 F.4th at 896.

ii. Commonality

Plaintiffs’ first Special Education Issue Class

concerns whether Rivera owed class members a duty under the

IDEA. Commonality is easily established because duty is an

issue of law which can be decided using common evidence. See

Russell, 15 F.4th at 275. In fact, Rivera acknowledges that he

had a general responsibility to monitor local education agencies

in the Commonwealth for compliance with the IDEA.

The remaining two Special Education Issue Classes seek

to resolve whether Rivera complied with his obligations under

the IDEA and whether class members are entitled to relief for

his failures under the IDEA. Rivera contends that these issue

classes do not satisfy commonality because the second issue

class lacks a common course of conduct and the third issue class

lacks a common relief.

With respect to the second issue class concerning IDEA

compliance, Rivera cites evidence of many different relevant PDE

policies and practices. The PDE: (1) required each local

education agency to produce an annual report detailing IDEA

compliance; (2) submitted its own annual report on IDEA

compliance for review by the U.S. Department of Education;

(3) conducted its own detailed monitoring of each local

education agency every six years; (4) as a result of its

independent monitoring, requested corrective action plans from

local education agencies for any deficiencies and tracked

implementation; and (5) maintained an administrative dispute

process for aggrieved parents and youth. According to Rivera,

Plaintiffs’ amorphous characterization does not identify any one

or more of PDE’s policies and practices and does not point to

any omission by himself or PDE that ties together the IDEA

claims of all class members.

Plaintiffs counter that they have alleged a common

course of conduct for the second issue class because Rivera’s

“failure to properly oversee [Glen Mills’s] deficient special

education policies and practices equally affected” every class

member. This sweeping interpretation of “common course of

conduct” is wide of the mark to say nothing about the lack of

citation to any relevant evidence. In addition, the causal

connection between PDE’s conduct and the alleged harm to class

members is tenuous given that PDE had responsibilities for

overseeing the Chester County Intermediate Unit which in turn

was tasked with overseeing Glen Mills. The circumstances here

are vastly different from cases cited by Plaintiffs in which

courts were presented with specific policies that were uniformly

applied to all class members.

In DL v. D.C. (DL II), for example, the district court

had divided the Rule 23(b)(2) class into three subclasses, each

relating to a specific function of the state education agency

under the IDEA, such as providing an initial evaluation to each

student within 120 days of referral. 860 F.3d 713, 718-19 (D.C.

Cir. 2017). Thus, the members in each subclass were denied a

FAPE because of the same failure to act by the state education

agency. Id. at 725.

Plaintiffs also rely on CG v. Commonwealth of

Pennsylvania Dep't of Educ., No. CIV.A 1:06-CV-1523, 2009 WL

3182599 (M.D. Pa. Sept. 29, 2009). There, the plaintiffs

challenged an appropriations statute that created a funding

formula limiting certain school districts’ ability to provide

IEPs to any eligible children. Id. at *1. The funding formula

was equally harmful to all children with disabilities in those

districts because none could receive a FAPE. Id. at *6.

Finally, Nat'l Law Ctr. on Homelessness & Poverty,

R.I. v. New York is inapposite. 224 F.R.D. 314, 317 (E.D.N.Y.

2004). Plaintiffs there challenged the county’s human services

department for its failure to transport or enroll homeless

children in public schools. Id. at 316-17. All children in the

class missed school as a result of these systemic failures. Id.

at 324.

Plaintiffs here have identified no uniform policies,

practices, or omissions by Rivera. See Wal-Mart, 564 U.S. at

352-53. Nor do they cite evidence that PDE had a general policy

of neglecting to monitor local education agencies’ compliance

with the IDEA. See id. at 353. The second Special Education

Issue Class does not satisfy commonality.

The third issue class concerns whether class members

are entitled to relief for Rivera’s failure to comply with the

IDEA requirements. In all of the cases cited by Plaintiffs, the

putative classes sought an injunction under Rule 23(b)(2). See

DL II, 860 F.3d at 726; CG, 2009 WL 3182599 at *2; Nat'l Law

Ctr., 224 F.R.D. at 324. An injunctive action generally

satisfies commonality because enjoining the defendant grants

relief to all class members. See Baby Neal, 43 F.3d at 56.

However, compensatory education, which is sought here,

is more akin to monetary or individual damages under Rule

23(b)(3). It requires “a highly individualized inquiry into

that student's unique needs, whether those needs were

met, . . . and the proper amount of compensatory education

necessary to redress any deficiencies.” Blunt v. Lower Merion

Sch. Dist., 262 F.R.D. 481, 490 (E.D. Pa. 2009), aff'd on other

grounds, 767 F.3d 247 (3d Cir. 2014). Individualized analysis

is especially important in the context of special education

because “[a] focus on the particular child is at the core of the

IDEA.” Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist.

RE-1, 580 U.S. 386, 400 (2017). Because Plaintiffs seek

individualized relief, the third issue class does not satisfy

commonality.

iii. Typicality

The interests of Plaintiffs Derrick and Walter do not

diverge from other class members on the issue class concerning

whether Rivera owed them a duty under the IDEA. However, for

the reasons set forth above, whether and how Rivera violated

class members’ right to a FAPE and what compensatory education

each class member is owed depends on his individual

circumstances. The claims of class representatives Derrick and

Walter thus cannot “arise[] from the same event or course of

conduct that gives rise to the claims of the class members.”

See Hoxworth, 980 F.2d at 923. Plaintiffs have not established

typicality as to these issue classes.

iv. Adequacy of Representation

Again, the settlement with the Chester County

Intermediate Unit does not put the interests of class

representatives in conflict with those of class members.

Plaintiffs have satisfied adequacy of representation. See In re

Cmty. Bank, 795 F.3d at 392.

C. Rule 23(b) Factors

Plaintiffs maintain that the three Special Education

Issue Classes fit within Rule 23(b)(3). See Russell, 15 F.4th

at 271. They must show that these issue classes satisfy

predominance and superiority. See In re Hydrogen Peroxide, 552

F.3d at 310; Fed R. Civ. P. 23(b)(3).

i. Predominance

If these issue classes were certified, this court

would be required to make hundreds of individualized

determinations, including: Did the class member have a

disability? To what education was he entitled? What special

education services were needed? Was he deprived of a FAPE?

What caused the FAPE deprivation? Did a policy or practice of

Rivera or PDE cause the deprivation? What educational deficit

currently exists? What compensatory education, if any, is

required? Only the issue class concerning duty can be

established through common evidence. Plaintiffs’ remaining

Special Education Issue Classes require more individualized

determinations than common ones. They do not satisfy

predominance.

ii. Superiority

Issue class certification is not the superior method

of adjudicating class members’ IDEA claims. See In re Cmty.

Bank, 795 F.3d at 409. While Rivera has conceded that he and

PDE owed class members a duty under the IDEA, the remaining

issue classes would devolve into a plethora of mini-trials.

Even if issue class certification were granted, many

complex elements such as causation and damages would remain for

individualized determinations. See Russell, 15 F.4th at 270.

Furthermore, there is overlap between the class members in the

instant action and the plaintiffs in the 803 Mass Tort Cases in

the Court of Common Pleas. They have thus demonstrated their

willingness to seek individualized relief.

D. Gates Factors

As with all proposed issue classes, the court must

also determine whether the Gates factors weigh in favor of

certification. See 655 F.3d at 273. Again, this is a complex

matter involving complex claims. See id. (second factor). In

particular, the IDEA claim requires individual consideration of

each class member because “[t]he adequacy of a given IEP turns

on the unique circumstances of the child for whom it was

created.” See Endrew F., 580 U.S. at 404. Likewise, any

decision regarding whether compensatory education is owed

requires analysis of many factors that are particular to each

class member. See Blunt, 262 F.R.D. at 490. There are no

efficiencies to be gained by lumping together the claims of

different individuals with different special education needs.

See Gates, 655 F.3d at 273 (first and third factors).

Plaintiffs have not identified any conduct by Rivera

or any injury suffered by all class members that can be resolved

using only common evidence. To the extent that there are any

common issues of law or fact, those issues are not easily

severable from the issues requiring individual resolutions. See

Gates, 655 F.3d at 273 (fourth and seventh factors).

It is possible that subsequent triers of fact will

reexamine evidence of any common issues as the matter proceeds

to the remaining individualized elements. See id. (ninth

factor). For example, even if a jury determined that all class

members are entitled to relief, a subsequent finder of fact

could determine that certain class members received adequate

IEPs for their specific needs and deny them any compensatory

education or other equitable relief. There is also the risk

that any classwide determinations could have a preclusive effect

on the individual claims of class members. Such a preclusive

effect would deprive them of their rights under the IDEA. See

id. (fifth, sixth, and eighth factors).

In sum, the Gates factors weigh against certification

of the three Special Education Issue Classes against the Rivera.

VII. Suspected Special Education Issue Classes Against Rivera

Plaintiff Thomas seeks to have certified two

“Suspected Special Education Issue[] Class[es].” He claims that

Rivera, acting in his official capacity as the Secretary of PDE,

failed to oversee the Chester County Intermediate Unit’s

compliance with its obligation under the IDEA that Glen Mills

students with suspected disabilities are evaluated for special

education.20 Thomas alleges that he had a qualifying disability

20. Again, Plaintiff in the instant motion refers to the

failure of PDE to monitor Glen Mills. However, Count VII of the

but that Glen Mills did not evaluate him for special education.

He seeks compensatory education for himself and similarly

situated students.

The two Suspected Special Education Issue Classes

proposed by Plaintiff Thomas are:

(1) whether [Rivera’s] policies and practices

failed to ensure that [Glen Mills]

identified, evaluated, or served students

with suspected disabilities; and

(2) whether students with suspected

disabilities are entitled to relief from

[Rivera] for this failure.

These issue classes are comprised of “all school-

eligible youth at [Glen Mills] after April 11, 2017, who

demonstrated documented behavioral, developmental, or academic

indicia of being children with a disability such that the youth

was entitled to a disability evaluation pursuant to IDEA, and

who did not receive one during their placement at [Glen Mills].”

This class definition is amended to begin in May 2018 because

Thomas does not have standing for claims that predate his

arrival at Glen Mills. See Neale, 794 F.3d at 362.

Complaint alleges that Rivera—not PDE—failed to monitor the

Chester County Intermediate Unit—not Glen Mills. Although the

Chester County Intermediate Unit was dismissed from this action,

it was the local education agency tasked with monitoring Glen

Mills.

A. Ascertainability

The court must first determine whether the two

Suspected Special Education Issue Classes against Rivera are

defined using objective and administratively feasible criteria.

See Byrd, 784 F.3d at 163. Plaintiff attests that his expert,

Dr. Gagnon, “has identified objective criteria for identifying

members of the class,” and that the education and health records

of Glen Mills provide a reliable and administratively feasible

means of determining class members.

Dr. Gagnon’s methodology spans four pages of his

detailed report. It comprises three different categories of

disabilities, each with their own methodology of ascertaining

class members: emotional/behavioral disorders, learning

disabilities, and other health impairments. For example, a

class member in the “emotional/behavioral disorders” category is

one who experienced multiple instances of any of the following:

. . . . manual assists, physical

escorts, physical restraints, fights with

peers, violence against staff, AWOL, drug

offenses at Glen Mills, and/or Failure to

Adjust. In addition, students should have

been evaluated in cases where previous

and/or current psychological and psychiatric

screenings, evaluations, and medical

professional reports indicate a history of

trauma or diagnosed mental disorders.

Moreover, academic failure should be

considered in conjunction with the

aforementioned factors.

His proposed methodologies for identifying students with

“learning disabilities” and those with “other health

impairments” are equally exhaustive. Using this methodology,

Dr. Gagnon conducted detailed and individualized evaluations of

a subsample of 120 Glen Mills students and found that 42

students should have been evaluated for disabilities.

Even if Dr. Gagnon satisfies the standard under

Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579

(1993), the class is not ascertainable. Plaintiff did not

specify which Glen Mills records contain the various

“behavioral, developmental, or academic indicia” referenced in

his briefs or in Dr. Gagnon’s report. He also did not include

examples or descriptions of those records for this court to

review.

Additionally, Dr. Gagnon’s report does not explain how

this court would balance the many potentially relevant factors

to determine members of the class. His methodology would

require this court to conduct “extensive and individualized

fact-finding or ‘mini trials’” which our Court of Appeals has

held are “inappropriate” for a class action. See Marcus v. BMW

of North America, LLC, 687 F.3d 583, 593 (3d Cir. 2012). It is

simply not possible to identify the class members from what has

been cited. See Byrd, 784 F.3d at 163.

B. Rule 23(a) Factors

i. Numerosity

Thomas attests that 257 students admitted after April

11, 2017 should have been evaluated for special education. He

does not explain how he arrived at this figure. It differs

significantly from the estimate of his expert, Dr. Gagnon. He

proposes that there are 342 class members based on the

proportion of students with suspected disabilities in the

subsample of 120 students that he analyzed.

In any event, this court cannot ascertain the members

of these issue classes. The numerosity prong has not been met.

See Allen, 37 F.4th at 896.

ii. Commonality

The first issue class regards whether Rivera failed to

ensure that Glen Mills identified, evaluated, or served students

with disabilities. Thomas maintains that commonality exists

because “the absence of any system to identify IDEA-eligible

youth” was a common course of conduct that harmed all class

members. He cites DL II for the proposition that this alleged

failure was a common course of conduct that affected all class

members. See 860 F.3d at 725.

There the parents of young children with disabilities

sought class certification on behalf of similarly situated

children against the District of Columbia for alleged violations

of the “Child Find” requirement of the IDEA. See id. at 717;

20 U.S.C.A. § 1412(a)(3). The Court of Appeals for the District

of Columbia had previously rejected the district court’s

certification of the proposed class. DL v. D.C. (DL I), 713

F.3d 120 (D.C. Cir. 2013). It held that commonality was not

satisfied because the proposed class spanned “different policies

and practices at different stages of the District's Child Find

and FAPE process.” Id. at 127. The District Court’s finding

that the state education agency had violated the IDEA as to each

class member was not sufficient to establish commonality without

“a uniform policy or practice that affects all class members.”

Id. at 128 (citing Wal-Mart, 564 U.S. at 350).

As previously discussed, the district court on remand

divided the proposed class into three subclasses based on

specific policies or practices of the state education agency

that were common to all class members. DL II, 860 F.3d at 724.

The Court of Appeals held that this approach had remedied the

defect and affirmed the District Court’s grant of class

certification. Id. The subclasses were now “each defined by

reference to a uniform policy or practice” and “cast around

common harms, susceptible to common proof, and curable by a

single injunction.” Id. (internal citations omitted).

Thomas here faces the same commonality problems as the

plaintiffs in DL I. He has not identified a common policy or

practice of PDE or a specific failure to act by Rivera. See

DL I, 713 F.3d at 128. He also does not allege a common harm.

“For some plaintiffs, for example, the alleged harm suffered is

due to the failure of [PDE] to have an effective intake and

referral process; for others the alleged harm is caused by

[PDE’s] failure to offer adequate and timely education

placements to implement [IEPs]; for still others, the cause is

the absence of a smooth and effective transition [to Glen

Mills].” Id. Plaintiff has not established commonality for the

first Suspected Special Education Issue Class.

The second issue class concerns whether class members

would be entitled to relief for Rivera’s failure to ensure that

Glen Mills identified, evaluated, and served students with

disabilities. Again, the plaintiffs in DL I and DL II sought an

injunction under Rule 23(b)(2). See DL II, 860 F.3d at 726. In

contrast, Plaintiff here seeks compensatory education which

requires “a highly individualized inquiry.” See Blunt, 262

F.R.D. at 490. There is no commonality as to this issue class.

iii. Typicality

Whether and how Rivera violated class members’ IDEA

rights and what compensatory education each class member is owed

depends on his individual circumstances. The claim of class

representative Thomas does not “arise[] from the same event or

course of conduct that gives rise to the claims of the class

members.” See Hoxworth, 980 F.2d at 923. These issue classes

do not satisfy typicality.

iv. Adequacy of Representation

Again, the interest of class representative Thomas is

not in conflict with those of class members because of the

settlement with the Chester County Intermediate Unit.

Rivera further argues that Thomas is not an adequate

class representative because he did receive an IDEA evaluation

and was found not eligible for special accommodations. However,

Plaintiff correctly notes that this evaluation occurred ten

years before his arrival at Glen Mills. The IDEA provides that

“a local education agency shall ensure that a reevaluation of

each child with a disability is conducted . . . if the child’s

parents . . . request a reevaluation.” 20 U.S.C.

§ 1414(a)(2)(A). There is evidence on the record that Thomas’s

mother, Michelle, had requested that he be reevaluated at Glen

Mills. Furthermore, Plaintiff submits an order dated May 8,

2018 from Judge Amanda Cooperman of the Court of Common Pleas of

Philadelphia County (Family Court Division) requiring Glen Mills

to conduct an IDEA evaluation.

Plaintiff has satisfied adequacy of representation.

See In re Cmty. Bank, 795 F.3d at 392.

C. Rule 23(b) Factors

Plaintiff maintains that the two Suspected Special

Education Issue Classes fit within Rule 23(b)(3). See Russell,

15 F.4th at 271. He must show that these issue classes satisfy

predominance and superiority. See In re Hydrogen Peroxide, 552

F.3d at 310; Fed R. Civ. P. 23(b)(3).

i. Predominance

If these issue classes were certified, this court

again would be required to make many individualized

determinations, including: Who is in the class? Did the class

member have a disability? Was he previously evaluated for a

disability? Did his parents or teachers request an evaluation?

Did a policy or practice of Rivera or PDE prevent his

evaluation? What educational deficit currently exists? What

compensatory education, if any, is required? The Suspected

Special Education Issue Classes do not satisfy predominance

because they require more individualized determinations than

common ones.

ii. Superiority

Issue class certification cannot cure the many

problems of common adjudication of these IDEA claims. This

court cannot identify who is in the class let alone what common

issues they share. Even if issue class certification were

granted, many complex elements such as causation and damages

would remain for individualized determinations. See Russell, 15

F.4th at 270. Moreover, there is overlap between the class

members in the instant action and the plaintiffs in the 803 Mass

Tort Cases in the Court of Common Pleas. The Suspected Special

Education Issue Classes do not satisfy superiority. See In re

Cmty. Bank, 795 F.3d at 409.

D. Gates Factors

The court must also resolve whether the Gates factors

weigh in favor of certification. See 655 F.3d at 273. The

Gates analysis of the Special Education Issue Classes applies

equally to the Suspected Special Education Issue Classes because

both groups of issue classes concern similar IDEA claims and

seek compensatory education. The court has the same concerns of

unnecessary complexity, predominant individual issues, and the

risk that individual claims are extinguished. The Suspected

Special Education Issue Classes against Rivera do not pass

muster under Gates.

VIII. Special Education Parents Issue Classes Against Rivera

Plaintiffs Tina, the mother of Derrick, and Janeva,

the mother of Walter, move to certify two “Special Education

Parents Issue[] Class[es]” on behalf of similarly situated

parents of Glen Mills students with disabilities. These

Plaintiffs claim that Rivera, acting in his official capacity as

the Secretary of PDE, violated their right to “meaningful

participation” in the special education process by failing to

oversee the Chester County Intermediate Unit.21

The denial of a parents’ right to “meaningful

participation” refers to a violation of one or more of the

IDEA’s procedural safeguards. T.R. v. Sch. Dist. of

Philadelphia, 4 F.4th 179, 183-84 (3d Cir. 2021). The state

education agency must ensure that the parent

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