Parent/Professional Advocacy League v. City of Springfield

          APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark G. Mastroianni, U.S. District Judge]

          Jeff Goldman, with whom Robert E. McDonnell, Michael D. Blanchard, Elizabeth Bresnahan, Matthew T. Bohenek, Morgan, Lewis & Bockius LLP, Alison Barkoff, Deborah A. Dorfman, Sandra J. Staub, Center for Public Representation, Ira Burnim, Jennifer Mathis, and Bazelon Center for Mental Health Law were on brief, for appellants/cross-appellees.

          Aaron M. Panner, Matthew M. Duffy, and Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. on brief for Former U.S. Department of Education Officials, Massachusetts Advocates for Children, Massachusetts Association for Mental Health, and Mental Health America, amici curiae.

          Howard Schiffman, Thomas P. DeFranco, and Schulte Roth & Zabel LLP on brief for National Disability Rights Network, American Association of People with Disabilities, and National Council on Independent Living, amici curiae.

          Stephen L. Holstrom and Lisa C. deSousa, with whom Edward M. Pikula, City of Springfield Law Department, Melinda M. Phelps, and Bulkley, Richardson & Gelinas LLP were on brief, for appellees/cross-appellants.

          Before Torruella, Lynch, and Kayatta, Circuit Judges.

          Lynch, Circuit Judge.

         These consolidated appeals raise significant questions about the overlap between Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134, and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., about class certification in special education litigation, and about organizations' standing to sue on behalf of certain constituents.

         The underlying suit alleges that the City of Springfield, Massachusetts, and Springfield Public Schools (SPS) violated Title II of the ADA by unnecessarily segregating students with mental health disabilities in a separate and inferior school, the Springfield Public Day School (SPDS). S.S., then an SPDS student, brought the suit on his own behalf and on behalf of a class of all students with a mental health disability who are or have been enrolled at SPDS. Two associations, the Parent/Professional Advocacy League (PPAL) and Disability Law Center (DLC), joined S.S. as plaintiffs. They seek injunctive and declaratory relief, including an order that defendants provide the class plaintiffs with "school-based behavior services in neighborhood schools to afford them an equal educational opportunity and enable them to be educated in neighborhood schools."

         The district court denied class certification. S.S. by S.Y. v. City of Springfield (S.S. II), 318 F.R.D. 210, 224 (D. Mass. 2016). It later ruled that the associations had standing but granted the defendants' motion for judgment on the pleadings as to the associations. S.S. by S.Y. v. City of Springfield (S.S. III), 332 F.Supp.3d 367, 379 (D. Mass. 2018).

         The plaintiffs' consolidated appeal challenges the district court's rulings that this suit was subject to the IDEA's exhaustion requirement and that the proposed class did not satisfy Federal Rule of Civil Procedure 23(a)'s requirements for certification. After briefly addressing a threshold issue related to the grant of a motion to intervene, we reject plaintiffs' arguments that the district court erred as to class certification. The defendants' appeal argues that the district court erred in concluding that PPAL and DLC had standing. We agree that these organizations lack standing to pursue the claims in the complaint, and we affirm the district court's grant of judgment on the pleadings as to PPAL and DLC on that ground.

         I.

         To begin, we give background on the ADA and IDEA. We next turn to this suit's history.

         A. The ADA

         Title II of the ADA states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Title II's regulations generally require a public entity to make "reasonable modifications" to its "policies, practices, or procedures" when necessary to avoid violations of Title II. 28 C.F.R. § 35.130(b)(7)(i).

         Title II, as implemented by regulation, prohibits two types of discrimination relevant here. First, regulations implementing Title II prohibit inequality in services, programs, or activities provided by public entities. Public entities may not "[a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit or service that is not equal to that afforded others" or "[p]rovide a qualified individual with a disability with an aid, benefit or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others." Id. §§ 35.130(b)(1)(ii)-(iii).

         Second, the regulations require public entities to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." Id. § 35.130(d). "The most integrated setting" is defined as a setting that "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible." Id. pt. 35, app. B.

         Interpreting Title II and the integration and reasonable modification regulations, the Supreme Court held in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), that the ADA prohibits the unjustified institutionalization of people with mental disabilities. Id. at 600. The Court concluded that public entities must provide "community-based [services] for persons with mental disabilities," when "the affected persons do not oppose such" services, and the community placement "can be reasonably accommodated." Id. at 607. Cases like this one challenging the separation of individuals with disabilities under the ADA are often called Olmstead cases.

         B. The IDEA

         The IDEA provides federal funds to assist states in educating children with disabilities "and conditions such funding upon a State's compliance with extensive goals and procedures." Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 295-96 (2006) (quoting Bd. of Ed. v. Rowley, 548 U.S. 176, 179 (1982)). These conditions include the commitment to furnish a "[f]ree appropriate public education" (FAPE), 20 U.S.C. § 1412(a)(1), and to do so in the "[l]east restrictive environment" (LRE), id. § 1412(a)(5).

         As defined in the IDEA, a FAPE encompasses both "special education and related services." Id. § 1401(9). "Special education" is "specially designed instruction." Id. § 1401(29). "Related services" are the support services __ including "psychological" and "counseling services" __ "required to assist a child to benefit from" that instruction. Id. § 1401(26)(A). A state must also provide special education and related services "in conformity with the [child's] individualized education program," or IEP. Id. § 1401(9)(D).

         IEPs are "comprehensive plan[s]" developed by the child's teachers, school officials, and parents. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 994 (2017). The IDEA requires that every IEP document the child's "present levels of academic achievement," identify "measurable annual goals," and outline the "special education and related services" to be given so that the child can "advance appropriately toward [those] goals." 20 U.S.C. §§ 1414(d)(1)(A)(i)(I), (IV).

         Finally, every IEP must specify "the extent, if any, to which the child will not participate with nondisabled children in the regular class." Id. § 1414(d)(1)(A)(i)(V). This requirement reflects the state's obligation to educate children in the LRE, which the IDEA defines as:

(5) Least restrictive environment

(A) In general

To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

Id. § 1412(a)(5)(A).

         The IDEA also details procedures for resolving disputes between parents and schools about the content of an IEP. Parents may file a complaint with the appropriate local or state educational agency, id. § 1415(b)(6), spurring a "[p]reliminary meeting," id. § 1415(f)(1)(B)(i), which, if unsuccessful in resolving the dispute, leads to a mediation process, id. § 1415(e), and then ultimately to a formal "due process hearing," id. § 1415(f)(1)(A).

         Hearing officers can grant substantive relief, such as reimbursement for private school tuition or an order that a school district must offer the student an appropriate educational program. See Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 370 (1985) (discussing both prospective relief and reimbursement). But relief may only be granted "based on a determination of whether the child received a [FAPE]."^[1] 20 U.S.C. § 1415(f)(3)(E)(i). The standard for determining whether a child receives a FAPE is whether the educational program offered to the child is "reasonably calculated to enable [the] child to make progress appropriate in light of the child's circumstances." Endrew F., 137 S.Ct. at 1001.

         In Massachusetts, the initial hearing officer's decision can be appealed to the Board of Special Education Appeals (BSEA). The general rule is that only after these procedures have been exhausted may parents seek review of IDEA claims in a civil action in state or federal court. See id. § 1415(i)(2)(A). C. The IDEA's Exhaustion Requirement

         The Supreme Court first considered the interactions between the IDEA and antidiscrimination laws like the ADA in Smith v. Robinson, 468 U.S. 992 (1984). Smith held that the IDEA totally foreclosed claims asserted under statutes other than the IDEA to challenge the appropriateness of a disabled child's education. See id. at 1009.

         But Congress overrode Smith in 1986 when it added an exhaustion requirement to the IDEA. The provision, at 20 U.S.C. § 1415(l), reads:

Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA's administrative] procedures . . . shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].

Id. Under § 1415(l), a plaintiff is thus not barred from bringing claims under the ADA even if those claims allege the denial of an adequate education. However, a plaintiff bringing suit under the ADA must first exhaust the IDEA's administrative procedures if the suit is "seeking relief that is also available under [the IDEA]." Id.

         The Supreme Court first interpreted this key phrase in 2017, in Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017).^[2] Fry held that a suit is subject to the IDEA's exhaustion requirement if it "seek[s] relief for the denial of a FAPE, because that is the only 'relief' the IDEA makes 'available.'" Id. at 752 (quoting 20 U.S.C. § 1415(l)); see also id. at 753-55. And, in discerning "whether a suit indeed 'seeks' relief for such a denial, a court should look to the substance, or the gravamen, of the plaintiff's complaint." Id. at 752; see also id. at 755-57. That is in contrast to analyses under other, "stricter exhaustion statute[s]" that ask "whether the suit could have sought [certain] relief" or "whether [certain] remedies are available under that law." Id. at 755 (emphasis added)(internal quotation marks omitted).

         Even if a court determines that a complaint seeks relief that is available under the IDEA, exhaustion is not required where it "would be futile or inadequate." Honig v. Doe, 484 U.S. 305, 327 (1988). The plaintiffs argue that two species of futility are relevant here, one to the class plaintiffs and the other to DLC and PPAL. But for reasons explained in our analysis, we reach only the argument about the class plaintiffs.

         II.

         A. The Complaint

         S.S., PPAL, and DLC filed the operative complaint in 2015.^[3] PPAL is an organization that advocates for improved access to services for children with a mental health disability. And DLC is designated under the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. § 10801 et seq., as the protection and advocacy system (P & A) for individuals with mental health disabilities in Massachusetts. S.S., then a high school student at SPDS, had been diagnosed with Attention Deficit and Hyperactivity Disorder and depression. S.S. sought to sue on behalf of a class of "[a]ll students with a mental health disability who are or have been enrolled in SPS's Public Day School who are not being educated in an SPS neighborhood school." This class, the complaint alleges, contains PPAL and DLC constituents.

         The complaint alleges the following facts about Springfield's public school system. SPS, the second largest school district in Massachusetts, enrolls around 26, 000 students in about fifty schools. Most of those schools are neighborhood schools __ elementary and middle schools that enroll students based on ...