T.R. v. School District of Philadelphi

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________________

No. 20-2084

_______________________

T.R., a minor, individually, by and through her parent,

Barbara Galarza, and on behalf of all others similarly

situated; BARBARA GALARZA, individually, and on behalf

of all others similarly situated; A.G., a minor, individually, by

and through his parent, Margarita Peralta, and on behalf of all

others similarly situated; MARGARITA PERALTA,

individually, and on behalf of all others similarly situated;

L.R.; D.R., a minor, individually, by and through her parent,

Madeline Perez, and on behalf of all others similarly situated;

J.R.; MADELINE PEREZ, individually, and on behalf of all

others similarly situated; R.H., a minor, individually, by and

through his parent, Manqing Lin, and on behalf of all others

similarly situated; MANQING LIN, individually, and on

behalf of all others similarly situated

v.

SCHOOL DISTRICT OF PHILADELPHIA

L.R., D.R. and their mother, Madeline Perez, and R.H. and

his mother Manqing Lin,

Appellants

_______________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-15-cv-04782

District Judge: The Honorable Mitchell S. Goldberg

__________________________

Argued January 20, 2021

Before: SMITH, Chief Judge, HARDIMAN and ROTH,

Circuit Judges

(Filed July 9, 2021)

Chanda A. Miller

Paul H. Saint-Antoine [ARGUED]

FAEGRE DRINKER BIDDLE & REATH

One Logan Square

Suite 2000

Philadelphia, PA 19103

Michael Churchill

Claudia De Palma

PUBLIC INTEREST LAW CENTER OF PHILADELPHIA

1500 John F. Kennedy Boulevard

-2-

Two Penn Center, Suite 802

Philadelphia, PA 19103

Maura I. McInerney

Margaret M. Wakelin

EDUCATION LAW CENTER

1800 John F. Kennedy Boulevard

Suite 1900

Philadelphia, PA 19103

Counsel for Appellants

Danielle M. Goebel [ARGUED]

Katherine V. Hartman

Marjorie M. Obod [ARGUED]

DILWORTH PAXSON

1500 Market Street

Suite 3500 E

Philadelphia, PA 19103

Counsel for Appellee

Richard Salgado

JONES DAY

2727 North Harwood Street

Dallas, TX 75201

Carter G. Phillips

SIDLEY AUSTIN

1501 K Street, N.W.

Washington, D.C. 20005

-3-

Catherine M. Reisman

REISMAN CAROLLA GRAN & ZUBA

19 Chestnut Street

Haddonfield, NJ 08033

Ellen M. Saideman

7 Henry Drive

Barrington, RI 02806

Counsel for Amici Appellants

__________________________

OPINION OF THE COURT

________________________

SMITH, Chief Judge.

Appellant-Plaintiffs brought a putative class action against

the School District of Philadelphia claiming shortcomings in

the School District’s translation and interpretation services that

purportedly amount to a violation of the Individuals with

Disabilities Education Act (“IDEA”). The IDEA seeks to

ensure that the unique needs of each child in special education

are provided for in accordance with individualized education

plans. Plaintiffs appeal both an order denying their class

certification motion and a summary judgment order wherein

the District Court declined to find that Plaintiffs met a systemic

exception to IDEA’s administrative exhaustion requirement.

-4-

For the reasons set forth below, we will affirm.

I. INDIVIDUALS WITH DISABILITIES EDUCATION ACT

A. Procedural Safeguards

The Individuals with Disabilities Education Act, 20 U.S.C.

§ 1400 et seq., is a statute that offers federal funding to States

for the education of children with disabilities. See, e.g.,

Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1,

137 S. Ct. 988, 993 (2017). “In exchange for the funds, a State

pledges to comply with a number of statutory conditions.” Id.

The primary condition is that the participating State provide a

“free appropriate public education,” or “FAPE,” to all eligible

children. Id. (citing § 1412(a)(1)). The IDEA does not

mandate what a FAPE must substantively include beyond a

few basic minima, most obviously that the education be

provided under public supervision and without charge. See

§ 1401(9)(A) (partial definition of FAPE). The substance of a

FAPE is primarily defined to be such “special education and

related services” that “are provided in conformity with [a

child’s] individualized education program,” or “IEP.”

§ 1401(9)(D); see also § 1414(d)(1)(A) (defining IEP);

§ 1401(29) (defining special education); Fry v. Napoleon

Cmty. Schs., 137 S. Ct. 743, 749 (2017) (apologizing for this

“acronymic world”).

The IEP is the “centerpiece” of the IDEA and the “primary

vehicle” for implementing the congressional policy underlying

the Act. Honig v. Doe, 484 U.S. 305, 311 (1988). An “IEP

-5-

documents the child’s current ‘levels of academic

achievement,’ specifies ‘measurable annual goals’ for how she

can ‘make progress in the general education curriculum,’ and

lists the ‘special education and related services’ to be provided

so that she can ‘advance appropriately toward [those] goals.’”

Fry, 137 S. Ct. at 749 (alteration in original) (quoting

§ 1414(d)(1)(A)(i)(I), (II), (IV)(aa)). In requiring

individualized education programs, the “IDEA operates from

the premise that each child will have unique disabilities and

presumes that each program will be personalized.” Blackman

v. District of Columbia, 633 F.3d 1088, 1094 (D.C. Cir. 2011)

(Brown, J., concurring). Reinforcing the personalized nature

of special education, each child’s IEP is created by the child’s

“IEP Team,” which consists of the child’s parents, at least one

“regular education teacher” of the child (“if the child is, or may

be, participating in the regular education environment”), and

certain other persons. § 1414(d)(1)(B). “[P]arents play[] a

‘significant role’” in the process of creating an IEP.

Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524 (2007)

(quoting Schaffer v. Weast, 546 U.S. 49, 53 (2005)).

So that parents’ participation in the IEP process is assured,

the IDEA requires that state educational agencies establish

certain procedural safeguards. See 20 U.S.C. § 1415(a). One

procedural safeguard mandated by the IDEA is that an

educational agency give parents “[w]ritten prior notice”

whenever the agency proposes to change, or refuses to change,

the provisions of a child’s IEP. § 1415(b)(3); 34 C.F.R.

§ 300.503(a) (parroting statute). In Pennsylvania, this notice

-6-

is called a Notice of Recommended Educational

Placement/Prior Written Notice (“NOREP/PWN”). This

notice must be given “in the native language of the parents,

unless it clearly is not feasible to do so.” 20 U.S.C.

§ 1415(b)(4); see also 34 C.F.R. § 300.503(c)(1)(ii) (parroting

statute).

The implementing regulations also mandate certain

procedural safeguards for parents at IEP Team meetings. “The

public agency must give the parent a copy of the child’s IEP at

no cost to the parent.” 34 C.F.R. § 300.322(f) (regulation on

“Parent participation” for IEP Team meetings). Further,

educational agencies must take “whatever action is necessary”

to allow parents to understand IEP Team meetings, “including

arranging for an interpreter.” Id. § 300.322(e). There is,

however, no regulation explicitly mandating that IEPs or draft

IEPs be translated into the parent’s native language.

These procedural safeguards would, of course, be of limited

value if parents were unaware of the rights that the safeguards

afford. So the IDEA requires that an explanation and copy of

the procedural safeguards be given to parents at least once a

year. 20 U.S.C. § 1415(d)(1)(A); 34 C.F.R. § 300.504(a). In

Pennsylvania, this explanation is called the Procedural

Safeguards Notice. The explanation and copy of the

procedural safeguards must be provided in the parent’s native

language “unless it clearly is not feasible to do so.” 20 U.S.C.

§ 1415(d)(2); 34 C.F.R. § 300.504(d).

“[T]he importance Congress attached to these procedural

-7-

safeguards cannot be gainsaid. . . . Congress placed every bit

as much emphasis upon compliance with procedures giving

parents and guardians a large measure of participation . . . as it

did upon the measurement of the resulting IEP against a

substantive standard.” Bd. of Educ. v. Rowley, 458 U.S. 176,

205–06 (1982); see also, e.g., H.E. v. Walter D. Palmer

Leadership Learning Partners Charter Sch., 873 F.3d 406, 413

(3d Cir. 2017) (holding that vindication of procedural rights

under IDEA makes a party a prevailing party for purpose of

attorneys’ fees). However, the IDEA provides relief only for

the denial of a FAPE, not for the denial of a procedural right.

Cf. Fry, 137 S. Ct. at 755 (“[T]he only relief the IDEA makes

available is relief for the denial of a FAPE.” (internal

quotations omitted)).

Congress addressed this oddity in a 2004 amendment to the

IDEA which provides that a procedural violation can rise to the

level of a deprivation of a FAPE when the procedural violation

either:

(I) impeded the child’s right to a free appropriate

public education;

(II) significantly impeded the parents’

opportunity to participate in the decisionmaking

process regarding the provision of a free

appropriate public education to the parents’

child; or

(III) caused a deprivation of educational benefits.

-8-

Pub. L. No. 108-446, sec. 101, § 615(f)(3)(E)(ii), 118 Stat.

2647, 2722 (2004) (codified at 20 U.S.C. § 1415(f)(3)(E)(ii));

34 C.F.R. § 300.513(a)(2) (parroting statute); see, e.g., C.H. v.

Cape Henlopen Sch. Dist., 606 F.3d 59, 66–67 (3d Cir. 2010);

see also Jon Romberg, The Means Justify the Ends: Structural

Due Process in Special Education Law, 48 Harv. J. on Legis.

415, 439–42 (2011) (describing history of § 1415(f)(3)(E)). As

shorthand, we will refer to the second type of procedural

violation as a denial of a parent’s right to “meaningful

participation.” Cf., e.g., 20 U.S.C. § 1400(c)(5)(B) (finding of

Congress that “the education of children with disabilities can

be made more effective by . . . ensuring that families . . . have

meaningful opportunities to participate”); D.S. v. Bayonne Bd.

of Educ., 602 F.3d 553, 565 (3d Cir. 2010) (finding no

actionable procedural violation because parents “had an

opportunity to participate meaningfully in the creation of an

IEP”).

B. Administrative Exhaustion Requirement

The IDEA establishes a detailed administrative mechanism

for resolving disputes about whether an educational agency has

complied with the IDEA. See 20 U.S.C. § 1415. This

mechanism includes procedures for the filing of complaints

(see § 1415(b)(6)–(7)), mediation (§ 1415(e)), impartial due

process hearings conducted by a hearing officer (§ 1415(f)),

and appeals of hearing officer findings to the state educational

agency (§ 1415(g)). The IDEA also provides that after these

administrative proceedings have concluded, an aggrieved party

may bring a civil action in a state court or United States district

-9-

court. § 1415(i)(2). This detailed statutory regime makes it

“clear . . . that Congress intended plaintiffs to complete the

administrative process before resorting to federal court.”

Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775,

778 (3d Cir. 1994) (citing Smith v. Robinson, 468 U.S. 992,

1011–12 (1984)).

Despite the IDEA’s administrative exhaustion requirement,

our Court has acknowledged that a plaintiff’s failure to exhaust

may be excused “where: (1) exhaustion would be futile or

inadequate; (2) the issue presented is purely a legal question;

(3) the administrative agency cannot grant relief; [or] (4)

exhaustion would cause severe or irreparable harm.” D.E. v.

Cent. Dauphin Sch. Dist., 765 F.3d 260, 275 (3d Cir. 2014)

(citing Komninos, 13 F.3d at 778) (analyzing futility

exception). “Absent the existence of any of those exceptions,

failure to exhaust will deprive a federal court of subject matter

jurisdiction.” Id. We have also stated that exhaustion is not

required where plaintiffs “allege systemic legal deficiencies

and, correspondingly, request system-wide relief that cannot be

provided (or even addressed) through the administrative

process.” Beth V. by Yvonne V. v. Carroll, 87 F.3d 80, 89 (3d

Cir. 1996). Yet we have suggested that this exception—we

will call it the “systemic exception”—“merely flows implicitly

from, or is in fact subsumed by, the futility and no-

administrative-relief exceptions.” Id. (remanding to district

court to determine whether plaintiffs’ claim fell within any

recognized exception to exhaustion).

The reach of IDEA’s exhaustion requirement extends

-10-

beyond claims brought under the IDEA. Section 1415(l)

requires administrative exhaustion of any claims that “seek[]

relief that is also available” under the IDEA. 20 U.S.C.

§ 1415(l). Of course, the IDEA is not the only statute

protecting the interests of schoolchildren with disabilities and

their parents. See Fry, 137 S. Ct. at 749. For example, Title II

of the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12131 et seq., forbids any “public entity” from

discriminating on the basis of disability and “requires a public

entity to make ‘reasonable modifications’ to its ‘policies,

practices, or procedures’ to avoid such discrimination.” Fry,

137 S. Ct. at 749 (quoting 28 C.F.R. § 35.130(b)(7)). Section

504 of the Rehabilitation Act, 29 U.S.C. § 794, provides

similar protections. Id. The Equal Educational Opportunities

Act (“EEOA”) requires state educational agencies to “take

appropriate action to overcome language barriers that impede

equal participation by its students.” 20 U.S.C. § 1703(f). And

Title VI of the Civil Rights Act of 1964 prohibits

discrimination on the basis of national origin in federally

funded programs. See 42 U.S.C. § 2000d.

A central exhaustion question then is how to determine

whether a non-IDEA claim “seek[s] relief that is also

available” under the IDEA. In Fry, the Supreme Court held

that “a court should look to the substance, or gravamen of the

plaintiff’s complaint.” 137 S. Ct. at 752. As to how a court

should determine whether the gravamen of a complaint

concerns the denial of a FAPE, the Supreme Court provided

“[o]ne clue”—consisting of two counterfactual questions—

-11-

and one “sign.” Id. at 756. The two questions are:

First, could the plaintiff have brought essentially

the same claim if the alleged conduct had

occurred at a public facility that was not a

school—say, a public theater or library? And

second, could an adult at the school—say, an

employee or visitor—have pressed essentially

the same grievance?

Id. (“When the answer to those questions is yes, a complaint”

is likely not for the denial of FAPE). The “sign” that the

gravamen of a complaint concerns the denial of a FAPE will

appear in the procedural history: “A plaintiff’s initial choice to

pursue [the administrative] process may suggest that she is

indeed seeking relief for the denial of a FAPE—with the shift

to judicial proceedings prior to full exhaustion reflecting only

strategic calculations about how to maximize the prospect of

such a remedy.” Id.; see also Wellman v. Butler Area Sch.

Dist., 877 F.3d 125, 131–36 (3d Cir. 2017) (applying Fry

framework).

II. BACKGROUND FACTS AND PROCEDURAL HISTORY

Because we are reviewing the District Court’s grant of

summary judgment in favor of the School District, we examine

the factual background, drawn from evidence in the record, in

the light most favorable to Plaintiffs. See, e.g., Matheis v. CSL

Plasma, Inc., 936 F.3d 171, 176 (3d Cir. 2019).

-12-

A. The School District of Philadelphia

The School District of Philadelphia oversees hundreds of

public schools providing educational programs to hundreds of

thousands of enrolled students. Given the size and diversity of

such enrollment, there are, unsurprisingly, some enrolled

students within the School District—and parents of enrolled

students—who have limited English proficiency (“LEP”),

meaning English is not their primary language so that they

have a “limited ability to read, write, speak, or understand

English.” T.R. v. Sch. Dist. of Phila. (Class Cert. Op.), No. 15-

cv-04782, 2019 WL 1745737, at *8 (E.D. Pa. Apr. 18, 2019)

(citing, inter alia, Guidance to Federal Financial Assistance

Recipients Regarding Title VI Prohibition Against National

Origin Discrimination Affecting Limited English Proficient

Persons, 67 Fed. Reg. 41455, 41457 (June 18, 2002)). School

District records from 2013 show that there were approximately

25,900 families of enrolled students whose primary home

language was not English and 19,670 families who had

expressly requested documents from the School District in a

language other than English. Id. at *1.

The School District’s Office of Family and Community

Engagement (“FACE”) provides translation and interpretation

services to support LEP parents. See T.R. v. Sch. Dist. of Phila.

(Summary Judgment Op.), 458 F. Supp. 3d 274, 279 (E.D. Pa.

2020). Some general, standard documents—like the School

District’s attendance policy—are translated into common

languages and made publicly available on the school’s website.

At the school level, School District employees can request that

-13-

translation or interpretation services be provided by a Bilingual

Counseling Assistant (“BCA”), either through FACE or

directly from a BCA. Employees can have a BCA translate

day-to-day communications, like permission slips, or have a

BCA provide live interpretation at meetings, like report card

conferences. However, “the demand for interpreters often

exceeds the number of staff available” so that “not all

employee requests for translation are fulfilled.” Id. School

District employees can also call and request interpretation

services from the Language Line—a telephonic interpretation

service.

Translation and interpretation services are necessary to

support LEP parents of enrolled students with disabilities. As

of November 2013, the School District reported that 1,500 LEP

students were receiving special education and that there were

1,887 students with IEPs whose primary home language was

something other than English. Class Cert. Op., 2019 WL

1745737, at *10. Records also indicated that in the 2015–2016

and 2016–2017 school years there were, respectively, 3,507

and 3,782 special education students whose primary home

language was not English. Id.

B. Plaintiffs

In August 2015, Margarita Peralta and her ward, A.G, and

Barbara Galarza and her child, T.R.—the Original Plaintiffs—

filed a complaint against the School District. Importantly,

A.G. and T.R. had exhausted administrative remedies and

received decisions from a due process hearing officer. After

-14-

the hearing officer had found that Ms. Peralta and Ms. Galarza

were each “denied meaningful parental participation,” he

awarded compensatory education to A.G. and T.R. In their

District Court complaint, Original Plaintiffs sought additional

declaratory and injunctive relief against the School District as

described infra Section II.C.

In April 2017, Original Plaintiffs amended the complaint to

include additional plaintiffs—Madeline Perez and her children

and Manqing Lin and her child. Subsequently, Original

Plaintiffs dismissed their claims against the School District

with prejudice, leaving only the plaintiff-appellants who bring

this appeal. We will summarize the pertinent facts relating to

these remaining Plaintiffs.

1. Madeline Perez and her children, L.R. and D.R.

Madeline Perez is the mother of three children with

disabilities, two of whom are still named plaintiffs in this

case—L.R. and D.R. Ms. Perez is LEP and speaks Spanish.

“[W]hile there have been issues as to which Ms. Perez and the

District collaborated [regarding the appropriate placements

and service for her children], there have also been many

occasions on which Ms. Perez has not fully understood

educational issues relating to her children due to lack of

adequate interpretation services.” JA13841 (Plaintiffs’

Response to School District’s Statement of Undisputed Facts

¶ 41). Ms. Perez believes she would “be able to contribute

1

Citations preceded by “JA” are to the parties’ Joint Appendix.

-15-

more fully [at IEP Team Meetings] if she received translated

IEPs” and other documents. Id. (¶ 40).

As to the claims in the operative complaint, Ms. Perez and

her children have not exhausted their administrative remedies.

2. Manqing Lin and her child, R.H.

Manqing Lin is the mother of one child with disabilities in

the School District—R.H. “Although Ms. Lin is able to

understand and speak some English words, she has limited

English proficiency and speaks only Mandarin at home with

R.H.’s father and their children.” JA1399 (Plaintiffs’

Statement of Additional Facts ¶ 64). Ms. Lin has provided

input and changes to R.H.’s IEP. However, her ability to

provide input at IEP Team meetings is hampered by the fact

that the School District does not provide her with translated

draft IEPs or other IEP-related documents before meetings.

Prior to joining this litigation, Ms. Lin requested mediation

through Pennsylvania’s Office for Dispute Resolution and

ultimately reached an agreement with the School District. In

that mediation agreement, the School District agreed to provide

translated final IEPs and some IEP-related evaluation reports.

The School District also “provides Ms. Lin with access to a

BCA and the school’s Special Education Liaison to review the

draft documents in advance of the [IEP Team] meetings,” but,

even after the IEP Team meetings, Ms. Lin remained unable to

fully understand the reports on R.H. provided by the School

District, partly because the interpreter did not understand

-16-

special education terminology. JA1379–80 (Plaintiffs’

Response to School District’s Statement of Undisputed Facts

¶ 33).

Like Ms. Perez and her children, Ms. Lin and R.H. have not

exhausted their administrative remedies.

C. Complaint and Motion to Dismiss

The operative complaint is styled as a “Class Action

Complaint” brought by the Plaintiffs on behalf of all similarly

situated individuals.2 It contains seven counts, six of which are

before us.3 Count One alleges a violation of the IDEA for

“Failure to Provide Meaningful Parental and Student

Participation.” JA355. Counts Three through Five allege

violations of other federal statutes—the Rehabilitation Act,

ADA, EEOA, and Title VI of the Civil Rights Act—and a

chapter of the Pennsylvania Code. The remaining counts

allege violations of chapters of the Pennsylvania Code for

failure to completely and timely translate certain “IEP process

documents,” including IEPs, NOREP/PWNs, and Procedural

Safeguard Notices (Count Six), and “regular education forms”

2

Two classes are defined: the “Parent Class” consisting of all

LEP parents of children with disabilities who are now or in the

future will be enrolled in the School District, and the “Student

Class” consisting of all the children of such parents regardless

of the child’s English proficiency. JA1154–55 (Motion for

Class Certification).

3

Count Two was voluntarily dismissed with prejudice.

-17-

(Count Seven). JA362–63.

The complaint alleges that the School District “has adopted

a systemic policy of failing to provide sufficient interpretation

services and to timely and completely translate IEP process

documents and regular education forms.” JA343–44 (Compl.

¶ 60). While the complaint acknowledges that the School

District has provided some translation services at IEP Team

meetings, it asserts that the School District’s “incomplete,

inconsistent effort has not and cannot facilitate the requisite

meaningful parent participation.” JA345 (Compl. ¶ 67).

As for relief, the complaint requests, inter alia, that the

District Court “Order that the [School] District adopt and

implement a new written special education plan and [School]

District policy to provide legally mandated translation and

sufficient interpretation services to members” of the classes

and “Order that the [School] District timely translate and

deliver all IEP process documents to all members of the Parent

Class and the Student Class as needed in the appropriate native

language in advance of IEP meetings to ensure meaningful

participation.” JA363. The Plaintiffs do not seek

individualized damages or remedies for L.R., D.R., or R.H.

The School District moved to dismiss the original

complaint—while T.R. and A.G. were still plaintiffs—under

Federal Rule of Civil Procedure 12(b)(1), arguing that absent

class members failed to exhaust administrative remedies.4 The

4

The School District also sought dismissal under Rule 12(b)(6)

-18-

School District posited that the putative class members were

not excused from the IDEA’s exhaustion requirement “because

the Complaint does not adequately allege a systemic legal

deficiency.” T.R. v. Sch. Dist. of Phila., 223 F. Supp. 3d 321,

329 (E.D. Pa. 2016). The District Court rejected that argument

and denied the motion to dismiss, concluding that the

complaint alleges a “systemic legal deficiency—namely, the

insufficient and untimely provision of interpretation and

translation services.” Id. at 330. However, the Court made

clear that it was “certainly possible that a developed record

may not establish Plaintiffs’ systemic legal deficiency theory.”

Id.

D. Denial of Motion for Class Certification

In August 2018, Plaintiffs filed a motion for class

certification pursuant to Federal Rules of Civil Procedure 23(a)

and 23(b)(2). In April 2019, the District Court denied

Plaintiffs’ motion for class certification. Class Cert. Op., 2019

WL 1745737. Although the District Court rejected the School

District’s challenges to the proposed class definitions, the

Court found that Plaintiffs did not meet their burden of

establishing both numerosity and commonality under Rule

23(a).5 Id. at *9–*17. Most relevant for our purposes is the

for failure to state a claim.

5

The District Court also found that Plaintiffs did not satisfy the

implicit cohesiveness requirement of Rule 23(b)(2) because

“the concept of ‘meaningful participation’ is highly fact-

intensive and, thus, is not conducive to issuing any one remedy

-19-

Court’s treatment of commonality.

The District Court determined that “the legal crux of this

matter does not turn on any statutory or regulatory mandate

that the School District provide translation and interpretation

services in connection with the provision of special education

services.” Id. at *14. “Rather, the statutory mandate at issue

here . . . is the requirement that the School District provide

enough language services to allow for ‘meaningful

participation’ by parents.” Id. This focus on “meaningful

participation” made a determination of commonality

impossible, the Court explained, “because there are varying

circumstances that could affect whether the particular services

provided by the School District were enough or were

insufficient to satisfy the right of meaningful participation.”

Id. at *16.

Furthermore, the District Court determined that “the School

District provides significant discretion to the relevant child-

study personnel . . . to engage parents and provide appropriate

language services.” Id. at *17. “[D]iscretion is necessary to

that would ensure meaningful participation.” Class Cert. Op.,

2019 WL 1745737, at *22. See generally, e.g., Gates v. Rohm

& Haas Co., 655 F.3d 255, 264 (3d Cir. 2011) (“[I]t is well

established that the class claims must be cohesive. . . . The

disparate factual circumstances of class members may prevent

a class from being cohesive and, therefore, make the class

unable to be certified under Rule 23(b)(2).” (internal citations

and quotations omitted)).

-20-

ensure that limited English proficient parents are given the

tools they need to participate without, for example, taking the

unnecessary steps of translating documents for parents who are

unable to read proficiently or for whom written translation of a

complex document would be overwhelming.” Id. Thus,

Plaintiffs did not actually “challenge a centralized policy

enforced by a single decision-maker, but rather target[ed]

individualized decisions by various case supervisors, school

principals, and teachers as to what services are required in each

particular case.” Id.

Plaintiffs timely appealed the District Court’s order

denying their motion for class certification.6

E. Grant of School District’s Motion for Summary

Judgment

On April 30, 2020, the District Court granted the School

District’s motion and entered judgment in its favor on the

grounds that Plaintiffs failed to exhaust administrative

remedies. Plaintiffs admitted that they had not exhausted

administrative remedies but argued that their claims fell within

the futility exception to exhaustion because they had

6

Prior to the District Court’s order granting the School

District’s motion for summary judgment, Plaintiffs petitioned

for leave to appeal the class certification order under

Rule 23(f). See Petition, No. 19-8014 (3d Cir. May 2, 2019).

Our Court denied the petition. See Order, No. 19-8014 (3d Cir.

July 11, 2019).

-21-

challenged systemic legal deficiencies. “In particular, . . . an

administrative process would be futile because the hearing

officer cannot and does not have the authority to award

Plaintiffs’ requested relief by ensuring . . . changes to the

District’s language services’ policies and practices.” JA1343–

44 (Plaintiffs Br. Opposing Summ. J.).

The District Court rejected Plaintiffs’ argument. At the

outset, the Court remarked that “the commonality requirement

of Fed. Rule Civ. P. 23(a) and the systemic exception to the

exhaustion requirement often go hand in hand” and recited

much of its earlier analysis on Rule 23 commonality. Summary

Judgment Op., 458 F. Supp. 3d at 286, 288–90. The Court then

reasoned that after the denial of class certification, Plaintiffs

“can only seek relief for the two parent Plaintiffs and their

children.” Id. at 290. Ultimately, Plaintiffs did not satisfy a

systemic exception to the IDEA exhaustion requirement

because “their claims actually focus on the shortcomings of a

particular component of the School District’s

translation/interpretation services” and “do not rise to a truly

systemic level in the sense that IDEA’s basic goals are

threatened on a system-wide basis.” Id.

As to the remaining non-IDEA claims—under Section 504

of the Rehabilitation Act, the ADA, the EEOA, Title VI of the

Civil Rights Act, and Pennsylvania law—the District Court

applied Fry’s test and determined that the gravamen of all the

non-IDEA claims was the denial of a FAPE. Thus, the non-

IDEA claims were subject to the IDEA’s exhaustion

requirement and because Plaintiffs failed to exhaust

-22-

administrative remedies or satisfy an exception to exhaustion,

the Court granted the motion and entered judgment in favor of

the School District on the entirety of the complaint.

Plaintiffs appealed the order granting summary judgment.

III. JURISDICTION AND STANDARD OF REVIEW

Plaintiffs invoked federal question jurisdiction pursuant to

28 U.S.C. § 1331 for their claims under the IDEA and other

federal statutes and invoked supplemental jurisdiction pursuant

to 28 U.S.C. § 1367 for their state law claims. We have held

that exhaustion of administrative remedies is a requirement for

a district court to exercise subject matter jurisdiction over an

IDEA claim. See Batchelor v. Rose Tree Media Sch. Dist., 759

F.3d 266, 271–72 (3d Cir. 2014). While we later expressed

“some doubts as to whether IDEA exhaustion is a jurisdictional

requirement, we are bound by this precedent” and, in any

event, we need not address whether exhaustion is jurisdictional

because the School District preserved its exhaustion argument.

Wellman, 877 F.3d at 130 & n.6. Our Court has appellate

jurisdiction over an appeal from a final judgment under 28

U.S.C. § 1291.

We review a grant of summary judgment de novo. See, e.g.,

Matheis, 936 F.3d at 176. We apply the same test as the

District Court, reviewing the facts in the light most favorable

to the non-movant—here, Plaintiffs—and granting summary

judgment only “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

-23-

judgment as a matter of law.” Id. (quoting Fed. Rule Civ. P.

56(a)).

IV. ANALYSIS

The parties spend the bulk of their briefing discussing the

District Court’s denial of class certification and the numerosity

and commonality requirements of Rule 23. But Rule 23 is a

procedural device that cannot be interpreted to “abridge,

enlarge or modify any substantive right.” Wal-Mart Stores,

Inc. v. Dukes, 564 U.S. 338, 367 (2011) (quoting 28 U.S.C.

§ 2072(b)). The threshold question then is whether the District

Court erred in granting summary judgment in favor of the

School District as to the claims of the individual Plaintiffs.

Because we conclude for the reasons set forth below that the

Court did not err in granting summary judgment—for both the

IDEA claim and the non-IDEA claims—we need not address

the class certification issues. See, e.g., Hennessy v. FDIC, 58

F.3d 908, 924 (3d Cir. 1995).

A. IDEA Claim

1. Individualization and exhaustion

The Individuals with Disabilities Education Act assures

that educational services provided for children with disabilities

be individualized in nature.7 As the Supreme Court in Rowley

7

In 1990, Congress changed the name of the Education of the

Handicapped Act to the Individuals with Disabilities Education

-24-

noted, “[n]oticeably absent from the language of the statute is

any substantive standard prescribing the level of education to

be accorded handicapped children.” 458 U.S. at 190. Instead,

Congress “set forth extensive procedures to be followed in

formulating personalized educational programs for

handicapped children.” Id. at 194 (emphasis added). Each

child has an IEP Team responsible for creating the child’s IEP.

And a FAPE is defined as the “special education and related

services that . . . are provided in conformity” with a child’s

personalized IEP. 20 U.S.C. § 1401(9). “Special education”

is in turn defined as “specially designed instruction, at no cost

to parents, to meet the unique needs of a child with a disability.

. . .” § 1401(29) (emphases added). In sum, the “IDEA

operates from the premise that each child will have unique

disabilities and presumes that each program will be

personalized.” Blackman, 633 F.3d at 1094 (Brown, J.,

concurring).

The IDEA’s focus on the individual also underlies its

exhaustion requirement. Addressing the educational needs of

children with disabilities requires individualized assessments

and considerations of countless concerns. The administrative

dispute mechanism of § 1415 sets out an interactive process

between parents and local school officials to address such

circumstances. “No federal district court . . . can duplicate that

process.” Robinson, 468 U.S. at 1012. When compared to

Act. See Pub. L. No. 101-476, 104 Stat. 1141; see also

Batchelor, 759 F.3d at 271 n.7.

-25-

courts, “teachers and parents, school districts, and

administrative review boards are closest to the issues at hand,

and therefore they are the best persons or entities to address

individual concerns and complaints.” Blunt v. Lower Merion

Sch. Dist., 767 F.3d 247, 299 (3d Cir. 2014). Allowing

children or parents “to go directly to court . . . would . . . run

counter to Congress’ view that the needs of handicapped

children are best accommodated by having the parents and the

local education agency work together to formulate an

individualized plan for each handicapped child’s education.”

Smith, 468 U.S. at 1011–12.

2. Systemic exception to exhaustion

Against this backdrop, we turn to the systemic exception to

exhaustion. In Beth V. by Yvonne V. v. Carroll, our Court

stated that we viewed allegations of systemic legal deficiencies

as a traditional basis for excusing the IDEA’s exhaustion

requirement. See 87 F.3d 80, 89 (3d Cir. 1996). But we had

no need in Beth V. to address the contours of any systemic

exception, and since then we have not discussed the systemic

exception in a precedential opinion. See generally J.T. v.

Dumont Pub. Schs., 533 F. App’x 44, 54 (3d Cir. 2013) (not

precedential). We draw, then, upon principles of IDEA

exhaustion already formulated by other courts as we seek to

give some shape to the scope of the systemic exception.

As an initial matter, the fact that a complaint “is structured

as a class action seeking injunctive relief, without more, does

not excuse exhaustion.” Hoeft v. Tucson Unified Sch. Dist.,

-26-

967 F.2d 1298, 1308 (9th Cir. 1992) (describing futility or

inadequacy exception to exhaustion requirement). Relatedly,

the systemic exception is not met every time a plaintiff

challenges centralized, uniform policies that affect all students

within a school or school district. See Hoeft, 967 F.2d at 1304;

Ass’n for Cmty. Living in Colo. v. Romer, 992 F.2d 1040, 1044

(10th Cir. 1993). Instead, to satisfy the systemic exception, a

plaintiff must challenge policies that are “truly systemic . . . in

the sense that the IDEA’s basic goals are threatened on a

system-wide basis” and must not “focus[] on the shortcomings

of a particular component of . . . special education.” Hoeft, 967

F.2d at 1305; see also Parent/Pro. Advoc. League v. City of

Springfield, 934 F.3d 13, 27–28 (1st Cir. 2019) (determining

that plaintiffs did not allege truly systemic failures and

declining to decide whether to recognize systemic exception to

IDEA’s exhaustion requirement).

Claims that do meet the systemic exception often challenge

policies that concern the administrative dispute-resolution

mechanism itself. See Hoeft, 967 F.2d at 1309 (“Exhaustion

may also be excused because of inadequacy of administrative

remedies where the plaintiffs’ substantive claims themselves

concern the adequacy of the administrative process.”). Given

the congressional policies animating the exhaustion

requirement and the superiority of local problem-solving, it is

not surprising that the systemic exception to exhaustion is

largely limited to those procedural violations that “effectively

deprive[] plaintiffs of an administrative forum.” Id. at 1305;

cf. John Hart Ely, Democracy and Distrust: A Theory of

-27-

Judicial Review 75–77 (1980) (justifying judicial intervention

where courts must “make sure the channels of political

participation and communication are kept open”).

For example, in Mrs. W. v. Tirozzi—which our Court in

Beth V. relied upon when recognizing the systemic

exception—the “Plaintiffs’ complaint allege[d] that the

defendants[] fail[ed] to make bona fide attempts to resolve

their complaints against the Bridgeport Board of Education and

the Connecticut Department of Children and Youth Services

and to implement fully and conduct an informal [complaint

resolution procedure].” 832 F.2d 748, 752 (2d Cir. 1987).

Other cases out of the Second Circuit similarly share the

“common element” that “plaintiffs’ problems could not have

been remedied by administrative bodies because the

framework and procedures for assessing and placing students

in appropriate educational programs were at issue, or because

the nature and volume of complaints were incapable of

correction by the administrative hearing process.” J.S. v. Attica

Cent. Sch., 386 F.3d 107, 113–14 (2d Cir. 2004) (collecting

cases).

The takeaway from this jurisprudence is that the systemic

exception applies when plaintiffs challenge policies that

threaten basic IDEA goals—not mere components of special

education programs—including policies that undermine the

framework of the administrative hearing process. With that in

mind, we consider whether Plaintiffs’ claims satisfy the

systemic exception.

-28-

3. Plaintiffs do not meet the systemic exception

In Plaintiffs’ own words, “[i]t is undisputed that the

[School] District provides some translation and interpretation

services to LEP parents; Plaintiffs dispute the adequacy of the

quantity, quality, and consistency of those services resulting

from the [School] District’s policies and practices.” JA1367

(Plaintiffs’ Response to School District’s Statement of

Undisputed Facts ¶ 16). By its terms, such a challenge does

not meet the requirements of the systemic exception.

Although the parental right of meaningful participation

could rightly be called a “basic goal” of the IDEA, the

provision of translation and interpretation services is only one

component of ensuring meaningful participation. See, e.g., 34

C.F.R. § 300.322(e) (“The public agency must take whatever

action is necessary to ensure that the parent understands the

proceedings of the IEP Team meeting, including arranging for

an interpreter.” (emphasis added)). Plaintiffs admit as much.

See Oral Arg. Recording at 14:43–15:48 (“I actually think,

your Honor, that we are seeking relief for a component of

meaningful participation by parents . . . .”). And as the District

Court correctly observed, whether a parent needs a certain

translation or interpretation service in order to meaningfully

participate requires an individualized inquiry. See Summary

Judgment Op., 458 F. Supp. 3d at 289–90.

Plaintiffs’ claim also does not implicate policies which

undermine access to the administrative hearing process itself.

If the non-translation of an IEP, for example, deprives a parent

-29-

of the right of meaningful participation, then a parent is still

free to pursue administrative procedures to remedy that denial

of a FAPE. Of course, this relief cannot be obtained if the

parent is unaware that he or she can turn to administrative

procedures. Consequently, the most troubling parts of the

record before us are indications that some parents in the School

District do not receive or cannot access translated versions of

the Procedural Safeguards Notice. See, e.g., JA1439 (Perng

Decl. ¶ 14) (“I am aware that the District has Procedural

Safeguards translated but many parents report to me that they

have not received a translated version of this document.”); see

also Br. for Amici Curiae Pennsylvania Immigration and

Citizenship Coalition et al., 15, 23–25.

But Plaintiffs do not claim that they have been harmed by

the School District’s failure to provide a translated Procedural

Safeguards Notice. Indeed, the only claim from any Plaintiff

that is specific to the Procedural Safeguards Notice is from Ms.

Perez’s declaration that, while the School District does

translate the notice and it may sometimes be given to LEP

parents, she has not received a Spanish version since her

deposition in the instant litigation. Plaintiffs’ alleged harms

stem from the School District’s failure to translate documents

like NOREP/PWNs and draft IEPs or provide interpretation

services which prevents Plaintiffs from meaningfully

participating in IEP Team meetings. See Class Cert. Op., 2019

WL 1745737, at *14 (“[T]he statutory mandate at issue here .

. . is the requirement that the School District provide enough

language services to allow for ‘meaningful participation’ by

-30-

parents in the education of their special needs students.”). This

claim does not meet the systemic exception to exhaustion.

Plaintiffs resist this conclusion by pointing to the fact that

the hearing officer for T.R. and A.G. stated that he had “no

authority to order wholesale changes in the [School] District’s

policies or practices.” JA134. Under Plaintiffs’ conception,

exhausting the administrative process is futile because the

process cannot result in the Plaintiffs’ desired relief of

wholesale, systemic changes to the School District’s

translation and interpretation services. But Plaintiffs

misunderstand the import of the hearing officer’s decision.

The hearing officer was faced with a demand to certify a class

at the administrative level and enter relief for all LEP parents

in the School District. The hearing officer correctly concluded

that he had no authority to find that a policy was a per se

violation of the IDEA or that a policy resulted in violation for

all similarly situated students or parents. If this truism—that

administrative hearings cannot order class-wide relief—were

sufficient to satisfy the systemic exception, the IDEA’s

exhaustion requirement would be meaningless every time Rule

23 relief was invoked.

Looking beyond Plaintiffs’ class-action overtures, it is clear

that they can obtain relief through the administrative process.

As the same hearing officer explained, “[i]f a systemic policy

or practice yields a violation of an individual student or

parent’s rights,” the hearing officer may “enjoin schools from

implementing [the] policy” and “order the [School] District to

correct procedural violations.” JA134. To put it concretely,

-31-

both Ms. Perez and Ms. Lin could bring the same IDEA claim

from their complaint before a hearing officer who could then

order that the School District provide each parent with

translated IEPs, more qualified or consistent interpretation

services, or whatever process would ensure meaningful

participation for that parent.8 Both the claim and the relief

would be individualized, even if the relief could create

spillover benefits for other LEP parents and thus “could, in

theory, provide a universally positive outcome.” Summary

Judgment Op., 458 F. Supp. 3d at 290.

Plaintiffs failed to exhaust their administrative remedies

under the IDEA. Their failure to exhaust cannot be excused by

invoking the systemic exception to exhaustion. Thus, the

District Court properly concluded that it lacked subject matter

jurisdiction as to Plaintiffs’ IDEA claim, and we will affirm.

B. Non-IDEA Claims

Remaining for our review are Plaintiffs’ non-IDEA claims

for violations of Section 504 of the Rehabilitation Act, the

ADA, Title VI of the Civil Rights Act, the EEOA, and

Pennsylvania law. As to three of those claims—under the

Rehabilitation Act, ADA, and Pennsylvania law—Plaintiffs

rely on the same arguments they deployed in opposing

summary judgment on their IDEA claim. For the same reasons

8

Indeed, Ms. Lin secured in mediation an agreement with the

School District for some translation and interpretation services

through the IEP process.

-32-

as those set forth above, we will affirm as to these claims.

With respect to the remaining Title VI and EEOA claims,

Plaintiffs argue that their claims are not subject to IDEA’s

exhaustion requirement. Recall that the IDEA’s exhaustion

requirement applies to claims “under the Constitution, the

[ADA], title V of the Rehabilitation Act [including § 504], or

other Federal laws protecting the rights of children with

disabilities” where the relief sought is the denial of a FAPE.

Fry, 137 S. Ct. at 750 (alterations in original) (quoting 20

U.S.C. § 1415(l)). Whether a suit seeks relief for denial of a

FAPE is determined by looking to the gravamen of the

complaint, both as a whole and with respect to each individual

claim. See Wellman, 877 F.3d at 132. Plaintiffs argue that the

gravamen of their two claims is for something other than the

denial of a FAPE.9 A review of their complaint convinces us

9

Plaintiffs do not suggest that claims under Title VI or the

EEOA fall outside the IDEA’s exhaustion requirement because

those statutes are not “Federal laws protecting the rights of

children with disabilities.” 20 U.S.C. § 1415(l). Several

district courts in this circuit have suggested that because Title

VI prohibits racial and national origin discrimination, but not

disability discrimination, claims under Title VI do not fall

within § 1415(l). See D.C. v. Pittsburgh Pub. Schs., 415 F.

Supp. 3d 636, 653 n.4 (W.D. Pa. 2019); Blunt v. Lower Merion

Sch. Dist., 559 F. Supp. 2d 548, 561 (E.D. Pa. 2008), aff’d, 767

F.3d 247, 255, 264 n.28 (3d Cir. 2014) (dismissing cross-

appeal on Title VI exhaustion as moot without deciding

-33-

otherwise.

The factual allegations in the complaint recount at length

how the School District’s under-provision of translation and

interpretation services has compromised the educational

services provided to the members of the Student Class and the

meaningful participation rights of members of the Parent Class.

Each count, after incorporating these factual allegations,

realleges denial of a FAPE under a different guise. In their

Title VI count, Plaintiffs assert that the School District’s under-

provision of translation and interpretation services fails “to

ensure meaningful participation by Parent Plaintiffs and

members of the Parent Class.” JA360 (Compl. ¶ 128). In their

EEOA count, Plaintiffs allege that the School District “has

impeded equal participation by Student Plaintiffs and the

members of the Student Class in the [School] District’s special

education and other instructional programs.” JA359 (Compl.

¶ 125). Furthermore, every count of the complaint requests a

common set of declaratory and injunctive relief regardless of

the right allegedly violated.

The Plaintiffs fare no better under Fry’s suggested

inquiries. Clearly, the Plaintiffs could not have brought the

same claims—about participation in educational services—

against a public theater or library. See 137 S. Ct. at 756–57.

merits). Because Plaintiffs contest only the “gravamen”

portion of the exhaustion inquiry and have not argued that

§ 1415(l) does not apply, this issue is forfeited and we need not

address it.

-34-

Nor could Plaintiffs have brought these claims as mere visitors

to a school within the School District. Id. In other words, these

are “not the sort of claim[s] that would be brought by a

nonstudent against a non-school facility.” Wellman, 877 F.3d

at 134. And the history of these proceedings supports the

conclusion that Plaintiffs seek to remedy the denial of a FAPE.

Original Plaintiffs to the operative complaint had already

exhausted administrative remedies for the denial of the FAPE,

and the operative complaint still includes in Count One a claim

under the IDEA for denial of a FAPE. Both facts cut against

Plaintiffs’ position. Cf. Fry, 137 S. Ct. at 757 (“[P]rior pursuit

of the IDEA’s administrative remedies will often provide

strong evidence that the substance of a plaintiff’s complaint

concerns the denial of a FAPE, even if the complaint never

explicitly uses that term.”).

Because the gravamen of Plaintiffs’ non-IDEA claims is

the denial of a FAPE, those claims are subject to the IDEA’s

exhaustion requirement. Plaintiffs did not exhaust their

administrative remedies and no exception to exhaustion

applies. We will therefore affirm the District Court’s grant of

summary judgment in favor of the School District.

V. CONCLUSION

Plaintiffs did not pursue the administrative process

established by the IDEA for resolving claims of procedural

violations and FAPE denials. Because Plaintiffs’ IDEA claim

does not fit within a systemic exception to exhaustion, we will

not excuse such a failure to exhaust. The District Court lacked

-35-

jurisdiction to address Plaintiffs’ IDEA claim. The District

Court also could not decide Plaintiffs’ remaining non-IDEA

claims because they too sought relief for the denial of a FAPE.

With none of Plaintiffs’ claims surviving summary judgment,

we have no reason to address the inherently procedural

questions raised by their class certification motion. We will

affirm the orders of the District Court.

-36-