DL v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 31, 2017 Decided June 23, 2017

No. 16-7076

DL, ET AL.,

APPELLEES

v.

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

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:05-cv-01437)

Lucy E. Pittman, Assistant Attorney General, Office of the

Attorney General for the District of Columbia, argued the cause

for appellants. With her on the briefs were Karl A. Racine,

Attorney General, Todd S. Kim, Solicitor General, and Loren

L. AliKhan, Deputy Solicitor General.

Todd A. Gluckman argued the cause for appellees. With

him on the brief were Margaret A. Kohn, Cyrus Mehri, Carolyn

S. Pravlik, and Patrick A. Sheldon.

Iris Y. González, Daniel B. Kohrman, Kelly R. Bagby,

Sharon Krevor-Weissbaum, Ira A. Burnim, Mary Nell

McGarity Clark, and Martha Jane Perkins were on the brief

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for amici curiae AARP, et al. in support of appellees. Jon M.

Greenbaum entered an appearance.

Before: TATEL, GRIFFITH and MILLETT, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: More than a decade ago, the parents

of six children, ages three to six, sued the District of Columbia,

alleging that it was violating the “Child Find” requirement of

the Individuals with Disabilities Education Act by failing to

provide special education to their children and hundreds of

other preschoolers with disabilities. The district court certified

the suit as a class action under Federal Rule of Civil Procedure

23, found the District liable, and entered a comprehensive

injunction designed to bring the District into compliance with

IDEA. On appeal, the District argues that the case has become

moot because the six named plaintiffs are no longer toddlers

with a stake in the requested relief. The District also challenges

the class certification and argues that the injunction exceeds the

district court’s authority. For the reasons set forth in this

opinion, we affirm in all respects.

I.

For much of this nation’s history, children with disabilities

“were either totally excluded from schools or were sitting idly

in regular classrooms awaiting the time when they were old

enough to drop out.” Board of Education of Hendrick Hudson

Central School District v. Rowley, 458 U.S. 176, 179 (1982)

(alteration and internal quotation marks omitted). Faced with

this “pervasive and tragic academic stagnation,” Congress

passed the Education of the Handicapped Act of 1975 (EHA).

Endrew F. ex rel. Joseph F. v. Douglas County School District

RE-1, 137 S. Ct. 988, 999 (2017). That “ambitious” law,

Rowley, 458 U.S. at 179, which applied to public schools

3

receiving federal funds, sought to provide all children with

disabilities a “free appropriate public education . . . tailored to

[their] unique needs,” id. at 180.

Fifteen years later, finding that EHA implementation had

“been impeded by low expectations” and resource constraints,

20 U.S.C. § 1400(c)(4)-(7), Congress strengthened the statute

and renamed it the Individuals with Disabilities Education Act

(IDEA), see Pub. L. No. 101-476, § 901, 104 Stat. 1103 (1990).

This time Congress drew on its authority under the Spending

Clause to offer states a deal: in exchange for additional federal

funding, they would “pledge[] to comply” with a series of

requirements designed to ensure that each student receives a

“free appropriate public education,” or FAPE. Endrew F., 137

S. Ct. at 993; see U.S. CONST., Art. I, § 8, cl. 1. Among the

most important of these requirements, the “Child Find”

provision obliges states to develop a “practical method” to

track which children are receiving special education services

and to ensure that all children “who are in need of special

education and related services . . . are identified, located, and

evaluated” within a timeframe set by the state—120 days in this

case. 20 U.S.C. § 1412(a)(3)(A); see 20 U.S.C.

§ 1414(a)(1)(C)(i)(I) (authorizing states to “establish[] a

timeframe within which the evaluation must be conducted”);

D.C. Code § 38-2561.02(a)(1) (requiring an evaluation “within

120 days from the date the student was referred for an

evaluation”). Another requirement, the “smooth and effective

transition” condition, obliges states to provide a seamless

transition when three-year-olds move from “early

intervention” programs (governed by IDEA Part C) to

preschool (governed by IDEA Part B). 20 U.S.C.

§§ 1412(a)(9), 1435(a)(8)(A), 1437(a)(9); 34 C.F.R.

§ 303.209. The transition between these programs qualifies as

“smooth and effective” if, among other things, it begins at least

ninety days before the child’s third birthday, delivers

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uninterrupted services, and involves both Part B and C

personnel. 20 U.S.C. § 1412(a)(9); 34 C.F.R. § 303.209. In the

District of Columbia, which IDEA defines as a state, see 20

U.S.C. § 1401(31), and which receives millions of dollars of

IDEA funding each year, early intervention programs are run

by the Office of the State Superintendent of Education and

preschool programs by the District of Columbia Public Schools

(DCPS).

In 2005, the parents of six children, ages three to six, sued

the District, alleging a “pervasive and systemic” breakdown in

the school system’s Child Find program. D.L. v. District of

Columbia, No. 05-cv-1437, ECF No. 1, at 3 (D.D.C. July 21,

2005). According to the complaint, the District was failing to

identify large numbers of disabled children and delivering

inadequate and delayed services to many others. These

deficiencies, the parents argued, were depriving “hundreds” of

preschoolers of their right to a FAPE. Id.

The district court, Judge Royce C. Lamberth, certified the

suit as a class action in 2006. D.L. v. District of Columbia, 237

F.R.D. 319 (D.D.C. 2006). The class definition was broad: “All

children [between three and five] who are or may be eligible

for special education and related services, who live in, or are

wards of, the District of Columbia” and whom the District had

failed or would fail to “identify, locate, evaluate or offer special

education and related services.” Id. at 324–25. Four years later,

the parties each moved for summary judgment. After reviewing

the record, the district court granted summary judgment to the

parents with respect to their claims up to and through 2007 and

scheduled a bench trial on all remaining claims. D.L. v. District

of Columbia, 730 F. Supp. 2d. 84, 95, 98 (D.D.C. 2010).

During that trial, the court heard two days of testimony from

statisticians, school district staff, and experts in education

policy and early childhood development.

5

After trial but before the district court issued its decision,

the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes,

which held that “one of the most expansive class[es] ever” was

too broad to meet the requirements of Federal Rule of Civil

Procedure 23. 564 U.S. 338, 342 (2011). Relying on Wal-Mart,

the District moved to decertify the class, arguing that it was

similarly overbroad. Although the parents insisted that the class

complied with Wal-Mart, they suggested that if the court had

any doubt it should recertify the class as four subclasses of

children whom the District had failed to (1) identify, (2) timely

evaluate, (3) offer a timely determination of eligibility for

special education and related services, and (4) provide a

smooth transition from early intervention programs to

preschool. D.L., ECF No. 271-2, at 7–8 (Aug. 18, 2011).

Satisfied that the certified class complied with Wal-Mart,

however, the district court deemed subclasses unnecessary.

D.L. v. District of Columbia, 277 F.R.D. 38, 46–47 (D.D.C.

2011).

The court then found the District liable for violating its

Child Find obligations and failing to ensure a “smooth and

effective transition” for toddlers entering preschool. D.L. v.

District of Columbia, 845 F. Supp. 2d 1, 21–23 (D.D.C. 2011).

These violations, Judge Lamberth observed, deprived “some of

our most vulnerable citizens” of services in the “first few

years” of their lives, a “narrow window of opportunity in which

special education, tailored to the child’s particular needs, can

work a miracle.” Id. at 5. Based on these findings, the court

entered a comprehensive injunction that set compliance

benchmarks and required annual improvement in the numbers

of children identified as needing, evaluated for, and offered

special education and related services.

The District appealed, and this court vacated the class

certification order. D.L. v. District of Columbia, 713 F.3d 120,

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121 (D.C. Cir. 2013). Citing Wal-Mart, we held that a class

defined by reference “to the District’s pattern and practice of

failing to provide FAPEs speaks too broadly because it

constitutes only an allegation that the class members ‘have all

suffered a violation of the same provision of law.’” Id. (quoting

Wal-Mart, 546 U.S. at 350). We noted that the parents

“appeared to recognize [this] problem,” and had proposed

subclasses tied to failures in four distinct administrative

functions. Id. at 128. Rather than deciding whether those

subclasses satisfied Wal-Mart, we remanded to the district

court to consider that question in the first instance.

The district court then certified the same four subclasses the

parents had proposed: (1) disabled three-to-five-year-olds

whom the District failed to identify for the purpose of offering

special education services; (2) disabled three-to-five-year-olds

whom the District failed to give an initial evaluation within 120

days of being referred for special education services; (3)

disabled three-to-five-year-olds whom the District failed to

give an “eligibility determination”—i.e., a decision as to

whether they qualify for IDEA services—within 120 days of

being referred; and (4) all children who transitioned from early

intervention to preschool programs, and whom the District

denied a “smooth transition” by age three. This court denied

the District’s petition for interlocutory review, In re District of

Columbia, No. 13-8009, Doc. No. 1477562 (D.C. Cir. Jan. 30,

2014), and the case once again advanced to summary

judgment, where the district court entered judgment for the

District on all claims concerning subclass two, and then on to

a bench trial. D.L. v. District of Columbia, 109 F. Supp. 3d 12,

36 (D.D.C. 2015). After considering testimony from seventeen

witnesses and reviewing hundreds of exhibits, the district court

issued a 130-page opinion finding the District liable for

violating IDEA. D.L. v. District of Columbia, 194 F. Supp. 3d

30 (D.D.C. 2016).

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The district court’s findings were stark. It found that the

District was failing to identify between 98 and 515 children a

month—some two percent of preschoolers with disabilities

who should have been located and offered special education

services. Id. at 48. This placed the District’s Child Find

performance below jurisdictions with comparable rates of

childhood disability, such as Arkansas, Kentucky, and Puerto

Rico. Id. at 48, 53. In addition, the court found that the District

was failing to provide a “smooth and effective transition” to

almost 30 percent of disabled toddlers, id. at 63, and despite

having the “longest period of time in the country” to decide

whether children qualify for special education services, was

missing the deadline for issuing eligibility determinations

approximately 20 percent of the time, id. at 58–59.

Acknowledging that the District had improved its Child

Find program since 2007, when it had “the lowest percentage”

of special education enrollment in the United States, the court

stressed that “the District ha[d] yet to attain a period of

sustained compliance.” Id. at 78, 98. Indeed, the court

observed, the numbers of children receiving special education

had fallen by 15 percent in 2013 and 2014 when the District

lacked “an enrollment benchmark”—i.e., a target number of

children who should be enrolled in special education and

related services. Id. at 51. Given these deficiencies, the court

concluded that injunctive relief was necessary and, drawing on

its “broad authority to grant ‘appropriate’ relief,’” Forest

Grove School District v. T.A., 557 U.S. 230, 239 (2009)

(construing 20 U.S.C. § 1415(i)(2)(C)(iii)), crafted remedies

for the three remaining subclasses.

For subclass one—children the District was failing to

identify—the court set an 8.5 percent enrollment target, a

figure drawn from national rates of special education

enrollment and expert testimony concerning risk factors unique

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to Washington, D.C. To reach that target, the court required the

District to increase enrollment rates by half a percent each year.

For subclass three—children denied timely eligibility

determinations—the court ordered the District to meet the

statutory deadline 95 percent of the time and to improve its

performance annually until it reached that level. Similarly, for

subclass four—toddlers transitioning to preschool—the court

required annual improvement, with an ultimate goal of 95

percent compliance. The court also imposed a range of

“programmatic” remedies designed to improve the District’s

methods of finding and tracking children in its system. D.L. v.

District of Columbia, 194 F. Supp. 3d 30, 101–03. These

remedies included requirements that the District establish

databases, disseminate information to parents, and report its

progress to the court.

On appeal, the District challenges none of the district

court’s basic findings: that it was failing to identify children

with disabilities, that it often missed the deadline for issuing

eligibility determinations, and that it was providing a rocky

transition to toddlers entering preschool. Instead, it argues that:

(1) the case is moot because by the time the district court

certified the subclasses in 2013 each named plaintiff was over

age five, (2) class certification was improper under Wal-Mart,

and (3) the injunction was unauthorized by IDEA and

unsupported by the evidentiary record.

Before considering these arguments, we think it helpful to

note that the parents who brought this case are not the only ones

concerned with the District’s IDEA compliance. Since at least

1997, the U.S. Department of Education, which oversees state

performance under IDEA, has repeatedly warned the District

that it was neglecting its Child Find obligations. See id. at 72–

78 (documenting the Department’s correspondence with the

District since the mid-1990s); see also 20 U.S.C. § 1416(d)-(e)

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(authorizing the Secretary of Education to review state IDEA

compliance and to withhold federal funds). In 1998, the

Department “entered into a Compliance Agreement with DCPS

mandating full compliance with the requirements of Part B of

the IDEA.” D.L., 194 F. Supp. 3d at 76. In the two decades

since, the Department has nonetheless regularly listed DCPS as

a school district that “needs intervention.” Id. at 73–79.

According to the Department, the District has been especially

deficient in its duty to timely evaluate children referred for

special education by a parent, teacher, or pediatrician. Id. at 73.

The Department even withheld a portion of the District’s

funding in 2009. Id. at 77. Although the record here reveals no

specific link between the Department’s actions and this case,

the subclass two complaints, which focus on the same problem

with timely evaluation, have been resolved. See D.L. v. District

of Columbia, 109 F. Supp. 3d 12, 36 (D.D.C. 2015) (granting

summary judgment as to subclass two). This case now involves

identification (subclass one), eligibility determinations

(subclass three), and transition to preschool (subclass four).

II.

Beginning with mootness, we start from a point on which

the parties agree: when the district court certified subclasses,

the named plaintiffs’ individual claims for injunctive relief

were moot because, by that time, each child was older than five

and, according to the District, had received special education

services. The District argues that this rendered the dispute non-

justiciable. According to the parents, however, two exceptions

to the mootness doctrine apply: first, a “relation back”

exception, which permits class actions to proceed when a

named plaintiff’s individual claim becomes moot only after a

district court’s error; and second, the “inherently transitory”

exception, which applies to claims so fleeting that “the trial

court will not have even enough time to rule” on class

certification before the named plaintiff’s claim expires.

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Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530–

31 (2013) (citation and internal quotation marks omitted).

The Supreme Court articulated the first of these exceptions

in United States Parole Commission v. Geraghty, 445 U.S. 388

(1980). In that case, a prisoner challenged the constitutionality

of the federal parole guidelines, the district court erroneously

denied the prisoner’s request for class certification, and the

prisoner was released before the Third Circuit could correct the

error. Id. at 394. The Court held that where an action “would

have acquired the independent legal status” of a class action

“but for the district court’s erroneous denial of class

certification, a corrected ruling on appeal ‘relates back’ to the

time of the erroneous denial.” Genesis Healthcare, 133 S. Ct.

at 1530 (describing the rule in Geraghty).

The parents argue that this case is just like Geraghty. We

agree. Here, the district court ruled that an overly broad class

satisfied Wal-Mart, an error this court corrected on appeal. See

supra 5–6. Like the plaintiffs in Geraghty, the parents had live

claims when they sought certification, and but for the district

court’s error, could have obtained proper class certification

before their individual claims became moot. Under Geraghty,

then, the case remains justiciable.

Resisting this conclusion, the District argues that Geraghty

applies only when a court erroneously denies class

certification. In support, the District points out that the

Supreme Court stated in Geraghty that its holding was “limited

to the appeal of the denial of the class certification motion.”

Geraghty, 445 U.S. at 404. The District reads too much into the

word “denial.” The point in Geraghty was that claims relate

back when a trial court’s error prevents a class from gaining

independent status under Rule 23. Whether that error is the

erroneous denial of class certification (as in Geraghty) or the

11

erroneous certification of an excessively broad class (as here)

makes no difference. What matters is that the named plaintiffs’

claims became moot—and their class therefore never

“acquired . . . independent legal status,” Genesis Healthcare,

133 S. Ct. at 1530—due to the district court’s mistake. In other

words, but for the district court’s error—certifying an overly

broad class—the parents’ claims would not have become moot.

There is no legally relevant difference between this case and

Geraghty.

The District insists that the parents could have avoided this

entire problem by finding new toddler-plaintiffs in 2013 when

this court remanded the case to the district court. This misses

the point: when the relation back doctrine applies, as it does

here, named plaintiffs have no obligation to find new class

representatives even if they could.

Permitting relation back in this case is also consistent with

Rule 23’s purpose. As the Supreme Court explained in

Geraghty, the “justifications that led to the development of the

class action include . . . the provision of a convenient and

economical means for disposing of similar lawsuits[] and the

facilitation of the spreading of litigation costs among numerous

litigants with similar claims.” 445 U.S. at 402–03 (citing

Advisory Committee Notes on Fed. R. Civ. P. 23). Those

interests are served by a rule allowing class claims to proceed

when a district court erroneously certifies too broad a class

while plaintiffs’ claims are live, only to be reversed and

instructed to consider smaller subclasses containing exactly the

same children. By contrast, Rule 23’s purpose would be

disserved by a rule, advocated by the District, requiring parents

to find new named plaintiffs at every turn of inevitably

protracted class litigation.

12

Ultimately, the District’s argument runs counter to the

Supreme Court’s instruction in Geraghty that “Art[icle] III

mootness doctrine” has a “flexible character.” Id. at 400.

Mootness is a pragmatic doctrine meant to limit “judicial

power to disputes capable of judicial resolution.” Id. at 396; cf.

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (“A

case becomes moot . . . ‘only when it is impossible for a court

to grant any effectual relief whatever to the prevailing party.’”

(quoting Knox v. Service Employees, 132 S. Ct. 2277, 2287

(2012))). In this case, the mootness issue stems neither from

the lack of real dispute nor from any deficiency in the parents’

advocacy, but rather from judicial error. The separation of

powers concerns that animate justiciability jurisprudence are

absent in this context. In Geraghty, the Court emphasized that

the two elements of a justiciable controversy—“sharply

presented issues in a concrete factual setting and self-interested

parties vigorously advocating opposing positions”—can “exist

with respect to . . . class certification . . . notwithstanding the

fact that the named plaintiff’s claim on the merits has expired.”

445 U.S. at 403. Both elements remain present here.

Citing Genesis Healthcare, 133 S. Ct. at 1523, the District

argues that “[n]o exception to the mootness doctrine allowed”

certification in 2013. Appellants’ Br. 30. The question in

Genesis Healthcare was whether the relation back doctrine

applied when an individual claim under the Fair Labor

Standards Act (FLSA) expired before certification of a

“collective action,” an opt-in procedure established by FLSA

for litigating multiple claims. See 29 U.S.C. § 216(b). The

Court held that it did not and that the action was therefore non-

justiciable. Genesis Healthcare, 133 S. Ct. at 1530–32. In

reaching this conclusion, however, the Court relied not just on

relation back cases, but “[m]ore fundamentally” on the

distinction between FLSA collective actions, which do not

“produce a class with an independent legal status,” and Rule 23

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class actions, which do. Id. at 1530. The outcome in Genesis

Healthcare thus hinged on the unique features of the FLSA

cause of action. In this case, by contrast, we are clearly in Rule

23-land and guided by Geraghty.

Having concluded that the relation back doctrine applies,

we have no need to consider whether the parents’ claims also

fall under the “inherently transitory” exception to mootness. Id.

at 1530–31. We thus turn to the District’s challenge to class

certification.

III.

Federal Rule of Civil Procedure 23 requires plaintiffs to

show that:

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

is impractical;

(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.

If the action satisfies these prerequisites, plaintiffs must then

demonstrate that their proposed class falls into one of the

categories of class actions listed in Rule 23(b). In this case, the

district court certified subclasses under Rule 23(b)(2), which

applies when the defendant “has acted or refused to act on

grounds that apply generally to the class, so that final injunctive

relief or corresponding declaratory relief is appropriate

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respecting the class as a whole.” Courts may certify classes

under this provision “only when a single injunction or

declaratory judgment would provide relief to each member of

the class.” Wal-Mart, 564 U.S. at 360.

The Supreme Court interpreted these requirements in Wal-

Mart, in which named plaintiffs seeking to represent 1.5

million women sued the retail giant Wal-Mart under Title VII

of the Civil Rights Act of 1964, alleging endemic sex

discrimination in pay and promotions across the company’s

“approximately 3,400 stores.” Id. at 342. The district court

certified a class of “all women employed at any Wal-Mart

domestic retail store at any time [in the prior thirteen years]

who [had] been or may be subjected to” the company’s

challenged policies and practices. Id. at 346 (alterations and

internal quotation marks omitted).

Explaining that the class lacked commonality, the Court

reversed. “Commonality requires the plaintiff to demonstrate

that the class members have suffered the same injury,” the

Court observed. Id. at 349–50 (citation and internal quotation

marks omitted). Yet there are multiple theories of Title VII

liability—that statute can, “for example, . . . be violated . . . by

intentional discrimination, or by hiring and promotion criteria

that result in disparate impact, and by the use of these practices

on the part of many different superiors in a single company.”

Id. at 350. Given this, the Court concluded, the assertion that

Wal-Mart had violated Title VII in one way or another as to

each employee did not demonstrate “that all their claims

[could] productively be litigated at once.” Id. Instead, plaintiffs

needed a “common contention . . . of such a nature that it is

capable of classwide resolution—which means 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.

15

As mentioned above, our court has already considered Wal-

Mart’s applicability to this case. We rejected the first certified

class, which included all three-to-five-year-olds allegedly

denied a FAPE, because it spanned “different policies and

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

FAPE process.” D.L., 713 F.3d at 127. “For some plaintiffs,”

we explained, “the alleged harm suffered is due to the failure

of the District to have an effective intake and referral process;

for others the alleged harm is caused by the District’s failure to

offer adequate and timely education placements . . . ; for still

others, the cause is the absence of a smooth and effective

transition . . . .” Id. at 128. Seeming to agree that narrower

subclasses could resolve the commonality problem, the District

argued that the class violated Wal-Mart because it “cover[ed]

failures in four distinct administrative functions: (1)

identification of a child . . . , (2) location of that child, (3)

evaluation for potential services, and (4) if necessary, provision

of services.” Id. (quoting Appellant’s Br. 29).

On remand, the district court addressed just this defect,

certifying subclasses tied to separate phases of the Child Find

process. Three of those subclasses consist of three-to-five-year-

olds whom the District had failed to (1) identify, (2) evaluate

within 120 days of referral, and (3) provide an eligibility

determination within 120 days of referral. The fourth subclass

contains all children with disabilities denied smooth transitions

from early intervention to preschool programs. Although these

four subclasses appear responsive to both our 2013 opinion and

the District’s concerns, this time around the District argues that

they too are insufficient under Wal-Mart. Once again, then, we

review the district court’s certification order for abuse of

discretion. Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir.

1994) (“[W]e review a class certification decision

conservatively only to ensure against abuse of discretion or

erroneous application of legal criteria.”). We find none.

16

The three subclasses at issue here (recall that the court

resolved subclass two claims before trial) are each defined by

reference to a “uniform policy or practice” governing a specific

stage of the special education process. D.L., 713 F.3d at 127.

Whereas before the parents’ claims were united only by a

shared allegation of IDEA liability, now the suit has subclasses

cast around “common harm[s],” id. at 128, susceptible to

common proof, and curable by a “single injunction,” Wal-

Mart, 564 U.S. at 360.

Take subclass one, children with disabilities whom the

District failed to find. These children identified a common

harm, namely, denial of a FAPE due to a deficient and poorly

implemented Child Find policy. This contention, as is evident

from the district court’s findings, is subject to common proof:

after reviewing the evidence, the court found that the District

was failing to identify 98 to 515 children a month. This

violation of the statute can, as is also evident from the district

court’s decision, be remedied by a single order, i.e., an

injunction requiring the District to identify 0.5 percent more

children each year until it reaches 8.5 percent enrollment.

As with subclass-one parents, the parents of subclass-three

children allege a common harm: contrary to the District’s own

policy, their children had not received eligibility

determinations within 120 days of being referred for a

disability evaluation. Again, this contention can be proved with

common facts, as the district court demonstrated: it found that

20 percent of preschoolers referred for a disability evaluation

received an eligibility determination after the statutory

deadline, if it all. And here, too, a single injunction can remedy

the harm: the court required the District to meet its statutory

deadline 95 percent of the time and to improve its performance

by 10 percent in the first year and 5 percent each year

thereafter.

17

The same goes for subclass four, toddlers denied smooth

and effective transitions to preschool. Those children claimed

that the District’s policies and practices prevented them from

entering preschool by age three without interruption in their

special education services. This is a common allegation,

provable by evidence showing that the District failed to provide

smooth transitions to 30 percent of toddlers, and remediable by

a single injunction requiring annual improvement.

We have no need to belabor the point. These three

subclasses are far more precise than the class this court vacated

in 2013, whose members shared only the contention that they

had been denied FAPEs at some point in their experiences with

the District’s special education programs.

Relying on Wal-Mart, 564 U.S. at 352, in which the

Supreme Court observed that female employees had failed to

show common reasons for their managers’ decisions about

promotions and pay, the District argues that even if its policies

run afoul of IDEA, “there are many different reasons” it might

have denied a particular child a FAPE. Appellants’ Br. 39. For

example, the District explains that it may have deprived some

children of special education because of “insufficient outreach”

and others due to “insufficient staff” or “documentation

errors.” Id. Accordingly, the District claims, even the three

subclasses lack “common contention[s]” whose “truth or

falsity” can be resolved “in one stroke.” Wal-Mart, 564 U.S. at

350.

There is, however, a significant distinction between Wal-

Mart and this case. As the Court pointed out in Wal-Mart, “[i]n

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

inquiry is ‘the reason for a particular employment decision.’”

Id. at 352 (quoting Cooper v. Federal Reserve Bank of

Richmond, 467 U.S. 867, 876 (1984) (emphasis added)). The

18

fact that Wal-Mart supervisors might have had different

reasons for “literally millions of employment decisions” was

therefore fatal to the commonality of the plaintiffs’ Title VII

claims. Id. By contrast, IDEA requires the District to find and

serve all children with disabilities as a condition of its funding.

See, e.g., 20 U.S.C. § 1412(a)(3)(A). Unlike Title VII liability,

IDEA liability does not depend on the reason for a defendant’s

failure and plaintiffs need not show why their rights were

denied to establish that they were. They need only show that

the District in fact failed to identify them, failed to provide

them with timely eligibility determinations, or failed to ensure

a smooth transition to preschool. Wal-Mart’s analysis of

commonality in the Title VII context thus has limited relevance

here.

Citing a Seventh Circuit decision, Jamie S. v. Milwaukee

Public Schools, 668 F.3d 481 (7th Cir. 2012), the District

argues that the parents in this case alleged only a “superficial

violation of the same provision of law.” Appellants’ Reply Br.

16. But that case concerned a much broader class, more like the

original class this court rejected than the subclasses now at

issue. As the Seventh Circuit noted, the class there not only

sought “individualized relief,” but also “combined,” among

other groups, “all disabled students . . . who were not identified

as potentially eligible for services, not timely referred for

evaluation after identification, [and] not timely evaluated after

referral.” Id. at 495, 499. The subclasses in this case suffer from

no such flaw and seek class-wide injunctive relief.

The District next argues that the class violates Rule

23(a)(3)’s typicality requirement because the parents’ claims

“vary from child-to-child.” Appellants’ Br. 42. This argument

should sound familiar: it is the District’s commonality

challenge in a new guise. Indeed, the District expressly claims

that the court “found typicality based on the same error it made

19

in finding commonality.” Id. 41. As we have already explained,

however, the district court made no such error. Specifically

analyzing typicality, it found a “sufficient nexus” between the

claims of the named plaintiffs and the claims of the members

of their respective subclasses. D.L. v. District of Columbia, 302

F.R.D. 1, 14 (D.D.C. 2013). We see no abuse of discretion.

Rule 23(a)’s final requirement—adequacy—provides that

the named plaintiff must “fairly and adequately protect the

interests of the class.” Amchem Products, Inc. v. Windsor, 521

U.S. 591, 625 (1997) (quoting Fed. R. Civ. P. 23(a)(4)). This

rule “serves to uncover conflicts of interest between named

parties and the class they seek to represent.” Id. In this case, the

district court determined that notwithstanding the mootness of

their individual claims, the six named plaintiffs “displayed a

strong commitment to resolving this case” and “respond[ed] to

all developments in a timely and professional fashion.” D.L.,

302 F.R.D. at 14–16.

Challenging this determination, the District argues that the

court “disregard[ed] the presumption” that “[w]hen a plaintiff’s

claim is moot, it makes her representation presumptively

inadequate.” Appellants’ Br. 42. The court did no such thing.

It acknowledged the adequacy concerns raised by the named

plaintiffs’ age progression and explained why they nonetheless

remained capable representatives. The Supreme Court,

moreover, has made clear that mootness and adequacy are

“separate issue[s]” and that plaintiffs with moot claims may

adequately represent a class. Geraghty, 445 U.S. at 407. With

the benefit of firsthand exposure to the parents and their

lawyers during the course of a then-eight-year-old case, the

district court found that the parents will “fairly and adequately

protect the interests of the class.” D.L., 302 F.R.D. at 14

(quoting Fed. R. Civ. P. 23(a)(4)). The District has given us no

basis for questioning that decision, especially given that the

20

district court pondered and rejected the exact arguments the

District now makes.

Nor, contrary to the District’s argument, did the court err in

certifying subclasses under Rule 23(b)(2). To certify a class

under this provision, a single injunction must be able to

“provide relief to each member of the class.” Wal-Mart, 564

U.S. at 360. The district court’s comprehensive order does just

that. Rule 23(b)(2) exists so that parties and courts, especially

in civil rights cases like this, can avoid piecemeal litigation

when common claims arise from systemic harms that demand

injunctive relief. See Geraghty, 445 U.S. at 403 (discussing the

purpose of Rule 23); In re District of Columbia, 792 F.3d 96,

102 (D.C. Cir. 2015) (“Rule 23(b)(2) was intended for civil

rights cases.”). The Rule 23(b)(2) class action, in other words,

was designed for exactly this sort of suit.

IV.

This brings us to the District’s challenges to the injunction.

IDEA authorizes courts to grant “such relief as [they]

determine[] is appropriate,” 20 U.S.C. § 1415(i)(2)(C)(iii),

which “entail[s] broad discretion and implicate[s] equitable

considerations,” Reid ex rel. Reid v. District of Columbia, 401

F.3d 516, 522 (D.C. Cir. 2005) (citation and internal quotation

marks omitted). Moreover, “it goes without saying that federal

courts must vigilantly enforce federal law and must not hesitate

in awarding necessary relief.” Horne v. Flores, 557 U.S. 433,

450 (2009).

A.

The District first argues that the injunction rests on two

mistakes of law—one concerning subclass three and the other

subclass four. “We review the district court’s conclusions of

21

law de novo.” United States v. Philip Morris, 566 F.3d 1095,

1110 (D.C. Cir. 2009).

Recall that subclass three covers three-to-five-year-olds

who did not receive an eligibility determination within 120

days of being referred for an evaluation. To remedy this injury,

the court required the District to issue timely determinations in

95 percent of cases and to improve its performance annually

until it meets that benchmark. The District argues that this

requirement is “contrary to the plain language of IDEA”

because it “start[s] the clock” for eligibility determinations at

the date of referral rather than the date a parent or guardian

consents to a child’s evaluation. Appellants’ Br. 47. In support,

the District emphasizes that IDEA section 1414 requires an

eligibility determination “within 60 days of receiving parental

consent for the evaluation,” but it ignores the rest of the

sentence: “or, if the State establishes a timeframe within which

the evaluation must be conducted, within such timeframe.” 20

U.S.C. § 1414(a)(1)(C)(i)(I) (emphasis added). Exercising just

that option, the District passed a law—section 38-2561.02 of

the D.C. Code—which requires an eligibility determination

“within 120 days from the date that the student was referred

for an evaluation or assessment.” D.C. Code § 38-

2561.02(a)(1) (emphasis added). District law thus starts the

clock just when the court did, at referral rather than parental

consent. True, the District has amended section 38-2561.02 to

use parental consent as the trigger for the eligibility

determination timeline. See id. § 38–2561.02(a)(2)(A). But that

amendment, by its terms, will not become effective until “July

1, 2017, or upon funding, whichever occurs later.” Id.

To be clear, the District still needs parental consent to

evaluate a child, see D.C. Code Mun. Reg. tit. 5, § 3005.2

(requiring reasonable efforts to obtain parental consent for

disability evaluations), and nothing in the injunction eliminates

22

that requirement. Indeed, the district court emphasized that “the

District should not be blamed for an untimely determination if

the parent does not reasonably participate in the . . . process,”

and noted that the District could adopt a parental delay policy

exempting cases in which parents cannot be reached or decline

to consent. D.L., 194 F. Supp. 3d at 71 (citing 34 C.F.R.

§ 300.301(d)(1)). In this way, the injunction excuses the

District from compliance where it is unable to meet its

deadlines through no fault of its own.

The District brings a separate challenge to the remedy for

subclass four—children denied “smooth and effective”

transitions from Part C early intervention programs to Part B

preschool programs. In order to qualify as “smooth and

effective,” a transition must begin “not fewer than 90 days

before the [toddler’s] third birthday,” involve Part B and C

personnel, and deliver “seamless” services. See 20 U.S.C.

§ 1412(a)(9); 34 C.F.R. § 303.209(a)(3)(ii), (b)-(f). For this

subclass, the court fashioned a remedy familiar from subclass

three: a 95 percent compliance target, with incremental

improvement required each year. To avoid confusion, the court

made clear that the District could report a smooth transition so

long as children receive all “special education services” by

their third birthdays (or slightly later, for those with weekend,

holiday, and summer birthdays) and all “related services” by

fourteen days thereafter (or again, later in certain cases). D.L.,

194 F. Supp. 3d at 101. “Related services” are the “support

services required to assist a child” in benefitting from special

education. Endrew F., 137 S. Ct. at 994 (citing 20 U.S.C.

§ 1401(26), (29)) (internal quotation marks omitted). In other

words, the court ordered the District to provide core services

by age three and support services two weeks later.

The District argues that the court had no authority to order

it to provide special education services by a child’s third

23

birthday—or for that matter, by any date certain. We disagree.

IDEA expressly requires states to ensure that an IEP “has been

developed and is being implemented” by “the third birthday”

of all toddlers transitioning from early intervention to

preschool. 20 U.S.C. § 1412(a)(9). Ignoring this statutory text,

the District points to a Department of Education regulation

requiring services to be delivered “as soon as possible” after

development of a child’s IEP. 34 C.F.R. § 300.323(c). The

statute, of course, is our guide, and it requires IEPs to be

implemented by the child’s third birthday. Moreover, the

regulation the District invokes, which concerns the provision

of special education services to students aged three to twenty-

one, has nothing to do with the transition to preschool for

children already identified as disabled. And if all this were not

enough, the regulation governing the “smooth transition”

condition requires—in language identical to the statute—that

an IEP “has been developed and is being implemented” by age

three, id. § 300.124(b), and a separate regulation obliges states

to make a FAPE available “no later than the child’s third

birthday,” id. § 300.101(b)(1)(i).

B.

Next the District next makes a series of evidentiary

arguments: that the court chose unduly harsh compliance

targets, ignored improvements in the Child Find program, and

relied on inaccurate statistics. Our review of such objections is

“deferential—clear error as to any factual findings and abuse

of discretion as to the remedy.” Reid, 401 F.3d at 522.

The first of these challenges concerns subclass one—three-

to-five-year-olds with disabilities whom the District failed to

find. The district court determined that at least 8.5 percent of

preschoolers should be enrolled in special education and

related services, but that just over 6 percent were. The court

based the 8.5 percent benchmark on expert testimony “related

24

to risk factors in the District, comparisons to other

jurisdictions, and incidence of developmental delays

nationwide.” D.L., 194 F. Supp. 3d at 49. Specifically, the court

found that although “nationally, about six percent of three-to-

five-year-olds are identified with developmental delays,” the

number is likely higher in the District because of its unique risk

factors, including unusually high rates of poverty, child

homelessness, single-parent and non-English-speaking

households, incidence of low birth weight and HIV/AIDS

infection, and participation in supplemental assistance

programs. Id. at 50. By way of comparison, the court noted that

“other urban jurisdictions” with similar risk profiles such as

Atlanta and Detroit identified “between 10 and 12 percent” of

children as eligible for special education. Id. at 49. “All of this

[evidence],” the court reasoned, “supports the conclusion that

the District must show that it is serving 8.5 percent of its

population,” i.e., the figure at the low end of its expected

identification rates. Id. at 51. The court ordered the District to

improve its performance half a percent each year until it

reaches 8.5 percent. Id.

The District believes that this remedy suffers from three

flaws: (1) the 8.5 percent benchmark ignores “protective

factors” such as the existence of non-profits, which “buffer

children against the negative effects” of the risk factors in the

District and therefore reduce the number of children likely to

need special education services; (2) enrollment data, which the

injunction uses to measure the District’s success at finding

children, do not approximate Child Find compliance because

not all children identified as potentially needing IDEA services

ultimately enroll in special education programs; and (3) the

injunction improperly defines “enrollment” as receipt of all—

rather than only some—services promised in a child’s IEP.

Appellants’ Br. 45.

25

The district court considered and rejected each of these

arguments. It took seriously the existence of protective factors

that might drive down special education rates, acknowledging

that “Washington D.C.’s network of non-profits likely does

indeed help to alleviate some of the negative developmental

effects of risk factors like high homelessness and poverty

rates.” D.L., 194 F. Supp. 3d at 52. Even so, the court

explained, the impact of non-profits and other city services was

“baked into” the numbers the parents’ expert had used because,

“to the extent that the non-profits do decrease rates of poverty

and homelessness, etc.,” that decrease was already reflected in

the District’s rates of homelessness, poverty, and other risk

factors. Id. As a result, the court reasoned, the data used to

design the remedy “incorporate[d] the positive effects” of

D.C.’s network of non-profits. Id. at 53.

As to enrollment rates, the court relied on the fact that the

District itself treats enrollment as a proxy for identification

when tracking and reporting its IDEA compliance. Adopting

the District’s own methods hardly amounts to an abuse of

discretion; quite to the contrary, it makes perfect sense. Nor, in

our view, was it unreasonable for the court to define

“enrollment” as provision of all services outlined in a child’s

IEP. After all, IDEA obliges states not only to find children

with disabilities, but also to give them services. See 20 U.S.C.

§ 1412(a)(1)(A) (requiring a FAPE to be made “available to all

children with disabilities”); (a)(2) (setting a goal of “full

educational opportunity”); (a)(3) (requiring states to develop

and implement effective Child Find policies). As the district

court put it, “the entire point of the Child Find requirement is

to provide services to children with disabilities,” a duty the

District is violating by offering children only some of the

services to which they are entitled. D.L., 194 F. Supp. 3d at 91.

26

The District also challenges the injunction’s

“programmatic” requirements, which aim to improve data

collection and outreach efforts—for instance, by ordering

school officials to “publish printed materials targeted to parents

and guardians” about available services and to “maintain and

regularly update a list of primary referral sources.” Id. at 101.

The District insists that these requirements are tailored to

harms they addressed in response to the district court’s 2011

injunction. Perhaps so, but following a three-day trial with new

evidence, the district court found a slew of continuing

deficiencies in the District’s Child Find program, including

“material inconsistences in the District’s documents and

practice,” evidence that the District had yet to amend policies

the court ordered it to change five years earlier, and a two-year

decline in the District’s identification rates after the first

injunction was vacated in 2013. Id. at 99. Given this evidence,

we see no abuse of discretion in the district court’s decision to

again impose programmatic remedies.

Next, the District mounts several challenges to the court’s

reliance on statistical evidence. Several of these arguments are,

in essence, objections to the liability finding. For example, the

District contends that “the generalized and procedural nature of

the findings does not support the conclusion that children were

denied a FAPE.” Appellants’ Br. 57. Other critiques focus on

the statistics the court used, which the District asserts are

inadequate to support “systemic relief.” Id. 54–55. In both

formulations, the District’s challenge fails.

Not only does the District cite nothing for the proposition

that courts may not rely on statistical evidence, but it makes

perfect sense to use such evidence where, as here, the violations

amount to a systemic failure to find children. How else could

the court have demonstrated a failure to identify children with

disabilities except with numerical evidence that the District is

27

in fact failing to find and serve specified numbers of such

children? And how else could the court have remedied that

violation except by setting numerical goals to bring the District

into compliance with its IDEA obligations?

Moreover, the District’s violation was clearly substantive.

Although it is true that “this court has at times required parents

to demonstrate that the student’s education was affected by any

procedural violations the school district might have

committed,” we have done so “only where the violation was

not obviously substantive.” Leggett v. District of Columbia,

793 F.3d 59, 67 (D.C. Cir. 2015) (quoting Lesesne ex rel. B.F.

v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006))

(alterations and internal quotation marks omitted). The District

asserts that its failure to locate disabled children is a

“procedural” rather than substantive harm. Appellants’ Br. 57.

But twice in recent months the Supreme Court has confirmed

that access to a FAPE is a “substantive right.” Endrew F., 137

S. Ct. at 993; see also Fry v. Napoleon Community Schools,

137 S. Ct. 743, 749 (2017) (“An eligible child . . . acquires a

substantive right to [a FAPE] once the state accepts the IDEA’s

financial assistance.” (citation and internal quotation marks

omitted)). Disabled children are quite obviously denied a

FAPE when the District fails to find them at all.

C.

Finally, we reach the District’s two deepest objections to

the injunction.

First, the District contends that the court “should have erred

on the side of leaving control of the school system to state and

local authorities.” Appellants’ Br. 46. This argument

completely ignores the court’s restrained approach. Rather than

“assum[ing] control” of the District, id. 55, the court opted for

benchmarks and gradual deadlines, leaving the District with

28

flexibility in how to achieve compliance and time to do so. As

the parents explain, the injunction “require[s] [the District] to

do nothing more than what is required under IDEA,” and the

“programmatic requirements are limited to the basic elements

of an adequate Child Find program.” Appellees’ Br. 56. The

injunction balances the need for relief with deference to school

administrators, precisely what the court is supposed to do. See

Freeman v. Pitts, 503 U.S. 467, 489 (1992) (“[T]he court’s end

purpose must be to remedy the violation and, in addition, to

restore state and local authorities to the control of a school

system . . . .”).

Second, the District argues that the court “strayed

impermissibly from the focus on individual relief that is [at] the

heart” of IDEA. Appellants’ Br. 56 (citing 20 U.S.C. § 1415).

As the District sees it, the “proper role” of IDEA’s judicial

enforcement provision “is individualized rather than systemic

relief.” Id. 55. In other words, the District believes that IDEA

precludes comprehensive injunctions. This is the last iteration

of an argument the District has pressed throughout this

litigation: IDEA claims ought to be handled one-by-one, not as

class actions cured through structural remedies.

It is true that courts may remedy certain IDEA disputes,

such as a parent’s claim that a child’s IEP is defective, only

through “individualized” relief. See Jamie S., 668 F.3d at 495.

But to argue, as does the District, that this limitation also

applies to violations of the Child Find requirement ignores that,

unlike a parent worried about her child’s IEP, the parents in

this case challenge systemic defects in the District’s

identification and eligibility determination policies, which

harm all unidentified preschoolers and can only be remedied

by a comprehensive injunction designed to bring the District

into compliance with IDEA. See supra Part III.

29

Even more important, the District’s argument would

eviscerate the very purpose of IDEA. When Congress enacted

the legislation that became IDEA, it was responding to the

“pervasive and tragic” failure to serve all children with

disabilities, Endrew F., 137 S. Ct. at 999, which is why it

imposed on states accepting IDEA funding an obligation to

“identif[y], locate[], and evaluate[]” all preschoolers with

disabilities, 20 U.S.C. § 1412(a)(3)(A). Yet the District, which

has enthusiastically accepted millions of dollars in IDEA

funding, now proposes to shift that burden back to the parents.

In the District’s view, it would be up to each and every parent,

many of whom are poor, homeless, and perhaps disabled

themselves, to somehow determine whether their children are

eligible for special education services and then to retain

counsel to sue the District to obtain the services to which they

are entitled. Given the purpose of IDEA, we cannot imagine a

more preposterous argument. And given the district court’s

finding that the District has failed, year after year, to comply

with IDEA’s Child Find requirement, we have no doubt that

the statute’s remedial provision—authorizing courts to “grant

such relief as [they] determine[] is appropriate,” 20 U.S.C.

§ 1415(i)(2)(C)(iii), and implicating “broad discretion” and

“equitable considerations,” Reid, 401 F.3d at 522—vests the

court with all the authority it needs to remedy those violations

through injunctive relief. For decades, courts across the country

have done just that, ordering or approving structural relief

when IDEA violations required it. See, e.g., Vaughn G. v.

Amprey, No. 96-1507, 1997 WL 378068, at *1 (4th Cir. 1997)

(recounting the “decade long struggle” between students and

the Baltimore City Public School (BCPS) system, which led to

a series of consent decrees restructuring BCPS’s special

education programs); D.D. v. New York City Board of

Education, No. 03-cv-2489, ECF No. 250 (E.D.N.Y. Apr. 25,

2007) (approving a decree requiring the New York State

Department of Education to amend its policies, coordinate with

30

other agencies, develop and implement training programs,

collect data, and propose new legislation to New York State

Assembly); Blackman v. District of Columbia, No. 97-cv-1629,

2006 WL 2456413 (D.D.C. Aug. 24, 2006) (approving an

expansive consent decree to remedy systemic IDEA violations

in the District of Columbia); James O. v. Marston, No. 86-cv-

0006, ECF Nos. 191–200 (D.N.H. Aug. 23, 1991) (requiring

the New Hampshire Department of Education to overhaul its

policies and procedures concerning children with disabilities in

detention centers and other state facilities).

V.

Having considered each of the District’s challenges, we are

convinced that the district court made no mistake. So long as

the District of Columbia accepts federal funding, it is bound to

its pledge to find, evaluate, and serve all children with

disabilities. The district court neither erred nor abused its

discretion in holding the District to its word. We affirm in all

respects.

So Ordered.