Glue is an object commonly found in schools, yet the “glue” that binds class action commonality appears to be a scarce commodity for students with disabilities and their parents. In September 2024, the Fourth Circuit decided that students with disabilities in Kanawha County, West Virginia, had suffered harms too individualized to be addressed together as a class.[1]
This ruling reversed the trial court’s class certification decision, a ruling by Judge Irene Berger (S.D.W.Va.), who had found commonality among the students in that all had allegedly experienced harm through (1) inadequate or nonexistent behavior supports and interventions and (2) disproportionate disciplinary removals and suspensions.
Under the Individuals with Disabilities Education Act (IDEA), each student with a disability is entitled to receive a free appropriate public education (FAPE). To that end, each student should receive an individualized education plan (IEP) customized for them to establish the supports and interventions needed to avoid removals and suspensions. Any student with a disability is unlikely to receive a FAPE without an effectively established and implemented IEP. Thus, if proven, the Kanawha County Board of Education’s failures would demonstrate that students had been denied their right to a FAPE under the IDEA.
The Fourth Circuit opinion, written by Judge Allison Rushing and joined by Judge Motz, together with the partial concurrence and dissent of Judge James Wynn, leaves little room for doubt that the Board of Education utterly failed to establish policies and procedures sufficient to ensure that all students with disabilities would receive an IEP and a FAPE.
The Fourth Circuit compared this case to prior IDEA class certification decisions by the First, Seventh, and D.C. Circuits. All three reviewed Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). The Court found that the putative classes in those cases also lacked the “glue” of any unlawful official policy or unofficial practice uniformly affecting all students.
To illustrate what would suffice for commonality, a case cited by the First Circuit[3] had involved the unlawful practice of delaying the start of all IEP services until two weeks after the start of the school year. That practice, uniformly applied to every class member, was a FAPE denial that could be undone at once and for all. Thus, the First Circuit correctly certified that case as a class action.
In this case, by contrast, the Fourth Circuit found no single policy or practice that, whether implemented ineffectively or not at all, could be changed class-wide to secure the relief available under the IDEA. While one child might be harmed by receiving no IEP, another might be harmed by inadequate IEP behavior supports, still another might have adequate IEP behavior supports but inadequately monitored progress, and so on. Thus, the Court found no policy that the County Board could provide across the class to assure a FAPE.[2]
For his partial dissent, Judge Wynn argues that the majority opinion is flawed in its focus on past harms when searching for a singular policy or practice. Likewise, he finds error in the majority’s failure to recognize that injunctive relief available under the IDEA would avoid future harm. Judge Wynn stresses that the Court should have considered whether all students were at substantial risk of future harm, based at least in part on evidence of past harm to some students.
Although the plaintiff class did not blame any single policy or practice for all these past harms, the plaintiff class had alleged that the Board of Education failed to enact four legally required policies. The absence of these policies places all students with disabilities in Kanawha County at risk of being denied a FAPE. Central to that conclusion (and, per Judge Wynn, missing from the majority opinion) is the concept that every IEP will need to grow and to change—along with the student the IEP is designed to support. Isn’t the County’s official policy defined by its decision not to articulate a legally required policy? Judge Wynn invites the District Court to consider on remand this question, and whether the putative class of students faces a substantial risk of harm as a result.
Robinson Bradshaw attorneys will continue to follow this case on remand and track the Fourth Circuit’s movements in its continuing evaluation of the Supreme Court’s lodestar decision in Wal-Mart Stores—and what “glue” will stick when plaintiffs argue that a policy, a practice, or the absence of either, is unlawful.
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[1] To be clear, the word “class” in this article discusses groups of students but refers only to its legal meaning in the class action context, not to its meaning in the context of schools with classrooms and bodies of students.
[2] In recent years, the Kanawha County School Board has faced harsh criticism for its treatment of students with disabilities. In 2023, three families received nearly $12 million in a settlement after a Holtz Elementary School teacher admitted to abusing her students.
[3] R. A-G ex rel. R.B. v. Buffalo City Sch. Dist. Bd. of Educ., No. 12-CV-960S, 2013 WL 3354424, at *11 (W.D.N.Y. July 3, 2013), aff’d sub nom., R.A.G. ex rel. R.B. v. Buffalo City Sch. Dist. Bd. of Educ., 569 F. App’x 41 (2d Cir. 2014).
