 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 10, 2013                 Decided April 12, 2013

                         No. 11-7153

                          DL, ET AL.,
                          APPELLEES

                               v.

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


               Consolidated with No. 12-7042


        Appeals from the United States District Court
                for the District of Columbia
                    (No. 1:05-cv-01437)


    Todd S. Kim, Solicitor General, Office of the Attorney
General for the District of Columbia, argued the cause for
appellants. With him on the briefs were Irvin B. Nathan,
Attorney General, and Donna M. Murasky, Deputy Solicitor
General. Mary L. Wilson, Assistant Attorney General, entered
an appearance.

     Bruce J. Terris argued the cause for appellees. With him on
the brief were Jeffrey S. Gutman, Cyrus Mehri, Jane M. Liu, and
Margaret A. Kohn.
                                 2

     Kelly Bagby, Daniel Kohrman, Michael Shuster, Ira A.
Burnim, Joseph B. Espo, and Sharon Krevor-Weisbaum, were on
the brief for amici curiae AARP, et al. in support of appellees.

   Before: GARLAND, Chief Judge, ROGERS, Circuit Judge, and
EDWARDS, Senior Circuit Judge.

    Opinion for the Court by Circuit Judge ROGERS.

    Concurring opinion by Senior Judge EDWARDS.

     ROGERS, Circuit Judge: The District of Columbia appeals
from the structural injunction entered by the district court in this
class action challenging the policies and practices of the
District’s “Child Find” system under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.
It principally contends that the class certification pursuant to
Federal Rule of Civil Procedure 23(a)(2) was improper as a
matter of law, and that the district court lacked discretion to
award systemic relief, or at least acted impermissibly in the
absence of an explanation of how it bridged the gap between
individual relief and the systemic relief ordered. In view of the
clarification in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,
2551 (2011), of the requirements of Rule 23(a)(2), we vacate the
class certification order, and consequently the liability and
remedial orders, and we remand the case for the district court to
reconsider whether a class, classes, or subclasses may be
certified and if so, thereafter to redetermine liability and
appropriate relief.

                                 I.

    The IDEA provides federal funds to assist States and local
agencies in educating children with disabilities “and conditions
such funding upon a State’s compliance with extensive goals and
                                 3

procedures.” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
548 U.S. 291, 295-96 (2006) (quoting Board of Ed. of Hendrick
Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S.
176, 179 (1982)). A “State” is defined to include the District of
Columbia. 20 U.S.C. § 1401(31). One of the primary purposes
of the IDEA is to “ensure that all children with disabilities have
available to them a free appropriate public education.” See id. §
1400(d)(1)(A); Alegria v. Dist. of Columbia, 391 F.3d 262, 263
(D.C. Cir. 2004). The IDEA conditions the receipt of federal
funding on there being “in effect policies and procedures to
ensure” that all children residing therein between the ages of 3
and 21 have access to a “free appropriate public education”
(“FAPE”). See 20 U.S.C. § 1412(a)(1)(A). A principal means
of fulfilling this obligation is to establish a “Child Find” program
under which children with disabilities in need of special
education “are identified, located, and evaluated and a practical
method is developed and implemented to determine which
children with disabilities are currently receiving needed special
education and related services.” Id. § 1412(a)(3)(A). This
includes ensuring that “[c]hildren participating in early
intervention programs . . . , and who will participate in preschool
programs . . . experience a smooth and effective transition . . . .”
Id. § 1412(a)(9).

     The IDEA provides that “[c]hildren with disabilities and
their parents are afforded the procedural safeguards required by
section 1415 of this title.” Id. § 1412(a)(6). Section 1415
provides that there shall be “an opportunity for any party to
present a complaint - (A) with respect to any matter relating to
the identification, evaluation, or educational placement of the
child, or the provision of a [FAPE] to such child.” Id.
§ 1415(b)(6)(A). Upon exhausting administrative remedies,
“any party aggrieved by the findings and decision made . . . shall
have the right to bring a civil action with respect to the complaint
presented.” Id. § 1415(i)(2)(A). A court — after evaluating the
                                  4

“records of the administrative proceedings,” “hearing additional
evidence at the request of a party,” and “basing its decision on
the preponderance of the evidence” — “shall grant such relief as
the court determines is appropriate.” Id. § 1415(i)(2)(C). The
Secretary of Education annually reviews the performance plan
of a State on the conditions set forth in § 1412 and may withhold
or recover funds upon finding poor performance of the IDEA
obligations. See generally id. § 1416.

     In July 2005, six named plaintiffs, on behalf of themselves
and others similarly situated, sued the District of Columbia
government and the D.C. Superintendent of Public Schools
(hereinafter, “the District”), pursuant to 42 U.S.C. § 1983. They
identified themselves in terms of their own experiences at
various stages of the IDEA Child Find and FAPE process, see
Am. Compl. ¶¶ 5–76, and alleged that the District’s “actions
amount to a policy, pattern, practice or custom that violates
federal law and shows deliberate indifference to plaintiffs’
federal rights,” id. ¶ 109. Specifically, they alleged that the
District’s policies and practices had resulted in systemic failures
to identify, locate, evaluate, and offer special education and
related services to disabled preschool-age children, in violation
of the IDEA, 20 U.S.C. § 1412(a), § 504 of the Rehabilitation
Act,1 federal and District of Columbia regulations implementing




        1
           Section 504 of the Rehabilitation Act provides that “[n]o
otherwise qualified individual with a disability . . . shall, solely by
reason of her or his disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 29 U.S.C.
§ 794(a); see Alexander v. Choate, 469 U.S. 287, 295 (1985); see also
Se. Cmty. Coll. v. Davis, 442 U.S. 397, 412–13 (1979); Am. Council
of the Blind v. Paulson, 525 F.3d 1256, 1266 (D.C. Cir. 2008).
                                  5

the IDEA,2 and the Due Process Clause of the Fifth Amendment
to the U.S. Constitution. Am. Compl. ¶¶ 1, 109. As relief, they
requested certification of a specified class pursuant to Rule
23(b)(2) of the Federal Rules of Civil Procedure; a declaratory
judgment that the District had violated federal and District of
Columbia law, including the IDEA, by failing to identify, locate,
evaluate and offer a FAPE to eligible children and to ensure a
smooth and effective transition from early intervention to
preschool programs; and preliminary and permanent injunctions
ordering the District to “develop and implement adequate and
effective policies and procedures and a practical method of
identifying, locating and evaluating plaintiffs for special
education and related services.” Id. at 33–34. They also sought,
among other things, orders enjoining the District to provide
“compensatory education to the plaintiffs whom defendants
failed to identify, locate, evaluate or offer special education and
related services when they were between three and five years
old, inclusive,” and to provide reimbursement of privately
expended funds for these services, as well as the appointment of
a special master. Id. at 35.

     In August 2006, the district court certified the specified
class pursuant to Rule 23(a) and 23(b)(2).3 See D.L. v. Dist. of


        2
          Plaintiffs cited, for example, 34 C.F.R. §§ 104.32-104.39 as
well as 5-E D.C.M.R. § 3002.1(a) (requiring the District to “make a
[FAPE] available to each child with a disability, ages three to twenty-
two, who resides in, or is a ward of, the District”) and § 3002.1(d)
(requiring the District to “ensure that procedures are implemented” to
comply with the “Child Find” program “regardless of the nature or
severity of the[] [children’s] disabilities”). See also 5-E D.C.M.R.
§ 3000 et seq.
        3
          Rule 23 of the Federal Rules of Civil Procedure provides, in
relevant part:
                                   6

Columbia, 237 F.R.D. 319 (D.D.C. 2006). The certified class
was defined as:

         All children who are or may be eligible for special
         education and related services, who live in, or are
         wards of, the District of Columbia, and (1) whom
         defendants did not identify, locate, evaluate, or offer
         special education and related services to when the child
         was between the ages of three and five years old,
         inclusive, or (2) whom defendants have not or will not


        (a) Prerequisites. One or more members of a class may sue or
        be sued as representative parties on behalf of all members
        only if:
                 (1) the class is so numerous that joinder of all
                 members is impracticable;
                 (2) there are questions of law or fact common to the
                 class;
                 (3) the claims or defenses of the representative parties
                 are typical of the claims or defenses of the class; and
                 (4) the representative parties will fairly and
                 adequately protect the interests of the class.

Rule 23(b), “Types of Class Actions,” provides that “[a] class action
may be maintained if Rule 23(a) is satisfied and if . . .

                (2) the party opposing the class 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 respecting the class
                as a whole; or
                (3) the court finds that the questions of law or fact
                common to class members predominate over any
                questions affecting only individual members, and that
                a class action is superior to other available methods
                for fairly and efficiently adjudicating the controversy.
                ****
                                   7

            identify, locate, evaluate or offer special education and
            related services to when the child is between the ages
            of three and five years old, inclusive.

Id. at 321. The district court found that the Rule 23(a)
commonality requirement was met because “plaintiffs . . . have
a common injury, namely the denial of a FAPE under the
IDEA,” and all “allege that defendants have violated the Child
Find requirement.” Id. at 322. Regarding Rule 23(a) typicality,
the district court found that the “named plaintiffs were injured by
the same alleged systemic pattern of IDEA violations that
allegedly injured the other class members, and that the named
plaintiffs’ injury [was] typical of the other class members’
injuries.” Id. The plaintiffs had, the court explained, “pointed
to practices which, if proven, constitute a pervasive pattern and
practice of failing to identify, locate, evaluate and offer them
services and that defendants lack an adequate Child Find
system,” allegations that were “sufficient to satisfy the Rule
23(b)(2) requirement.” Id. at 324.

     In 2010, following lengthy discovery, see generally D.L. v.
Dist. of Columbia, 274 F.R.D. 320, 322–24 (D.D.C. 2011), the
district court granted in part the District’s motion for summary
judgment, ruling that the plaintiffs could not proceed under 42
U.S.C. § 1983 to enforce the IDEA and rejecting the plaintiffs’
argument “that the IDEA does not provide the full relief they are
requesting.”4 D.L. v. Dist. of Columbia, 730 F. Supp. 2d 84, 92


        4
             The district court had previously denied the District's
motions to dismiss plaintiffs’ IDEA claims for failure to exhaust
administrative remedies, finding this requirement excused or, in the
alternative, already met, D.L. v. Dist. of Columbia, 450 F. Supp. 2d 11,
17–19 & 18 n.2 (D.D.C. 2006) (citing Hartman v. Duffey, 88 F.3d
1232, 1235 (D.C. Cir. 1996)), and for failure to allege disparate
treatment solely due to their disabilities for purposes of the
                                   8

(D.D.C. 2010). The district court concluded that a “successful
civil action directly under the IDEA . . . will have the same effect
as a § 1983 action,” and elected to “construe the First Claim of
plaintiffs’ Amended Complaint to state a cause of action directly
under § 1415(i)(2)(A) of the IDEA.” Id. at 92-93. The district
court also granted the plaintiffs’ motion for partial summary
judgment as to liability under the IDEA, the Rehabilitation Act,
and District of Columbia law. See id. at 94-95, 99–100. Upon
reviewing data through 2007, the district court found that the
District had denied a FAPE to a large number of children aged
3 to 5 years old in violation of IDEA § 1412(a)(1)(A), id. at 95;
failed to comply with its Child Find obligations under §
1412(a)(3)(A), id. at 96-97; and failed to provide children with
a smooth and effective transition under § 1412(a)(9), id. at
97-98. The district court proceeded in April 2011 to address
liability from 2008 onward. Id. at 101. That month, the District
moved to decertify the class.

     Before further rulings by the district court, the Supreme
Court in June 2011 issued Wal-Mart Stores, Inc. v. Dukes, 131
S. Ct. 2541. The District filed a supplemental memorandum of
law to its motion to decertify the class in July, arguing, in part,
that the plaintiffs’ claims were too broad to establish
commonality under Rule 23(a) as required by Wal-Mart. In
August, the plaintiffs filed a motion for class re-certification and
for leave to file their second amended complaint. They proposed
to amend the class certification to add four subclasses, consisting
of children whom the District failed: (1) to identify or locate for
services; (2) to provide with a timely initial evaluation; (3) to


Rehabilitation Act, finding the plaintiffs had “alleged sufficient facts
to make a prima facie showing that defendants have ‘departed grossly’
from accepted Child Find practice and standards,” which was
sufficient to meet the Rehabilitation Act pleading standards, D.L. v.
Dist. of Columbia, 450 F. Supp. 2d 21, 23–24 (D.D.C. 2006).
                                 9

provide with a timely eligibility determination; or (4) to provide
with a “smooth and effective” transition from early intervention
to preschool programs. The plaintiffs also sought a hybrid
certification of their declaratory and injunctive claims under
Rule 23(b)(2) and their individual claims for compensatory
education and reimbursement under Rule 23(b)(3).

      The district court denied the District’s motion to decertify
the class and granted re-certification of the plaintiffs’ claims for
reimbursement and compensatory education under Rule
23(b)(3). D.L. v. Dist. of Columbia, 277 F.R.D. 38, 40-41
(D.D.C. 2011). In denying the District’s motion, the district
court found, as relevant, that the plaintiffs had “amply
demonstrated there are questions of law and fact common to the
class,” all members of which “suffered the same injury: denial of
their statutory right to a free appropriate public education.” Id.
at 45. It explained that the “differing allegations only represent
the differing ways in which the [District] ha[s] caused class
members’ common injury.” Id. It identified the common
question — the crux of plaintiffs’ claim — to be whether class
members received a FAPE, and stated this issue was susceptible
to classwide proof. See id. at 45-46. It found the “glue” binding
together the various reasons why individual class members were
denied a FAPE to be the “systemic failures” within the District’s
education system, stating the “[p]laintiffs presented credible
evidence of [the District’s] ineffective policies and practices,
which persisted for years without leading to any significant
increase in the number of preschool-age children receiving a
FAPE.” Id. at 46. Regarding typicality, the district court’s
reasons for concluding Rule 23(a)(3) was satisfied were similar
to its determination in initially certifying the class. See id. The
district court accordingly deemed moot the plaintiffs’ motion to
recertify the class using subclasses. See id. at 47.
                                   10

     Thereafter, upon extending its finding of liability to the
District’s actions from 2008 to April 2011, D.L. v. Dist. of
Columbia, 845 F. Supp. 2d 1, 6 (D.D.C. 2011), the district court
enjoined the District from further violations of the IDEA, § 504
of the Rehabilitation Act, and District of Columbia law, and
issued a structural injunction, see id. at 25-34. The injunction
included programmatic requirements and numerical goals that
would remain in effect until the District demonstrated sustained
compliance.5 See id. The District appeals.

                                   II.

       In Wal-Mart, the Supreme Court instructed that under Rule
23(a)(2), the plaintiffs’ “claims must depend upon a common
contention” that is “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.” 131 S. Ct. at 2551. “This
does not mean merely that [class members] have all suffered a
violation of the same provision of law,” for “[w]hat matters to
class certification . . . is not the raising of common ‘questions,’
. . . but, rather the capacity of a classwide proceeding to generate
common answers apt to drive the resolution of the litigation.”
Id. (internal quotation marks omitted) (emphasis in original).
Likewise, Rule 23(b)(2) allows class treatment “only when a
single injunction or declaratory judgment would provide relief


        5
            Specifically, such compliance “shall begin after [the
District], during a single year (‘the baseline year’), meet[s] or
exceed[s] all three numerical requirements” and concludes within two
or three years if certain additional conditions are met. D.L. v. Dist. of
Columbia, 845 F. Supp. 2d at 29. But “if [the District] fail[s] to meet
any of the numerical requirements . . . defendants must establish a new
baseline year of compliance before being able to show sustained
compliance.” Id.
                                 11

to each member of the class. It does not authorize class
certification when each individual class member would be
entitled to a different injunction or declaratory judgment against
the defendant.” Id. at 2557 (emphasis in original). The Court
explained that “the key to the (b)(2) class is the indivisible nature
of the injunctive or declaratory remedy warranted — the notion
that the conduct is such that it can be enjoined or declared
unlawful only as to all of the class members or as to none of
them.” Id. (internal quotation marks omitted). The Court noted
that the district court must conduct a “rigorous” class-
certification analysis, id. at 2551 (quoting Gen. Tel. Co. of. Sw.
v. Falcon, 457 U.S. 147, 160 (1982), and Coopers & Lybrand
v. Livesay, 437 U.S. 463, 469 (1978)), which may “entail some
overlap with the merits of the plaintiff’s underlying claim,” id.
The Court has since cautioned that “Rule 23 grants courts no
license to engage in free-ranging merits inquiries at the
certification stage. Merits questions may be considered to the
extent — but only to the extent — that they are relevant to
determining whether the Rule 23 prerequisites for class
certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans &
Trust Funds, 133 S. Ct. 1184, 1194–95 (2013); see also Comcast
Corp. v. Behrend, 569 U.S. __ (2013), slip op. at 6 (March 27,
2013).

     The District contends that the class certified by the district
court lacks commonality as a matter of law, and that this court
should vacate the certification, liability, and relief rulings. Not
to make too subtle a point, the District’s position is that
“[a]lthough loosely focused on one general ‘child find’ system,
the certified class reaches across different legal requirements
applicable to different actors in different agencies at different
points of time to children with different disabilities in different
factual settings.” Appellant’s Br. at 28. It views the certified
class to “cover[] failures in four distinct administrative functions:
(1) identification of a child as one potentially needing services,
                                 12

(2) location of that child, (3) evaluation for potential services,
and (4) if necessary, provision of services.” Id. at 29. In other
words, to it “the class definition itself makes plain that named
plaintiffs here attempt to amalgamate multiple, distinct
categories of claims.” Id. at 28. The class members may suffer
from the same violation of law, as the district court found, but,
the District urges, there is no common contention whose
determination “will resolve an issue . . . central to the validity of
each one of the claims in one stroke.” Id. at 29 (quoting Wal-
Mart, 131 S. Ct. at 2551). The plaintiffs contest the District’s
understanding of Wal-Mart’s interpretation of the commonality
requirement, maintaining that a pattern or practice of Child Find
violations, as here, does affect all class members because the
District’s systemic failures result in the failures to identify,
locate, evaluate and provide special education services to large
numbers of disabled preschool-aged children, regardless of the
factual circumstances of the individual children who suffered
Child Find violations. Their challenge to the District’s
systemwide conduct, they maintain, can be resolved by a single
determination.

     After Wal-Mart it is clear that defining the class 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,” which the Supreme Court has
now instructed is insufficient to establish commonality given that
the same provision of law “can be violated in many different
ways.” Wal-Mart, 131 S. Ct. at 2551. In the absence of
identification of a policy or practice that affects all members of
the class in the manner Wal-Mart requires, the district court’s
analysis is not faithful to the Court’s interpretation of Rule 23(a)
commonality.
                               13

     In certifying the class, the district court deemed the
plaintiffs’ pattern and practice claims sufficient to meet Rule
23(a)’s prerequisite of commonality. See D.L. v. Dist. of
Columbia, 237 F.R.D. at 322; D.L. v. Dist. of Columbia, 277
F.R.D. at 45. Likely so prior to Wal-Mart. See, e.g., Baby Neal
ex rel. Kanter v. Casey, 43 F.3d 48, 60 (3d Cir. 1994). But
Wal-Mart’s interpretation of Rule 23(a)(2) has changed the
landscape, as our sister circuits have acknowledged. See
Arlington Video Prodns., Inc. v. Fifth Third Bancorp, 2013 WL
560635 at *14 (6th Cir. Feb. 14, 2012); Luiken v. Domino’s
Pizza, LLC, 705 F.3d 370, 376–77 (8th Cir. 2013); In re
Countrywide Fin. Corp., 708 F.3d 704, 709 (6th Cir. 2013);
Tabor v. Hilti, Inc., 703 F.3d 1206, 1228 (10th Cir. 2013); M.D.
ex. rel. Stukenberg v. Perry, 675 F.3d 832, 839 (5th Cir. 2012);
McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672
F.3d 482, 487 (7th Cir.), cert. denied, 133 S. Ct. 338 (2012);
Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 497 (7th Cir.
2012). In Wal-Mart, the Court explained that where the
defendant is alleged to have

         engage[d] in a pattern or practice of discrimination . . .
         in resolving an individual’s Title VII claim, the crux of
         the inquiry is the reason for a particular employment
         decision. * * * Without some glue holding the alleged
         reasons for all those decisions together, it will be
         impossible to say that examination of all the class
         members’ claims for relief will produce a common
         answer to the crucial question why was I disfavored.

Id. at 2552 (internal citations omitted) (emphasis in original).
The broad class certified by the district court does not satisfy
Rule 23(a)(2)’s requirement for commonality.

   The circuit courts of appeals to address the question have
hewed faithfully to Wal-Mart’s “one stroke” requirement. For
                                14

example, in McReynolds, the Seventh Circuit held on
interlocutory appeal that a putative class of African American
employees who alleged that their employer’s company-wide
“teaming” and “account distribution” practices had a disparate
impact on their advancement within the company, in violation of
Title VII and 42 U.S.C. § 1981, was “not forbidden by the Wal-
Mart decision.” 672 F.3d at 490. In Wal-Mart the Supreme
Court acknowledged that “‘in appropriate cases,’ giving
discretion to lower-level supervisors can be the basis of Title VII
liability under a disparate-impact theory,” 131 S. Ct. at 2554
(citation omitted), where commonality could be satisfied by
“‘[s]ignificant proof that an employer operated under a general
policy of discrimination . . . if the discrimination manifested
itself in hiring and promotion practices in the same general
fashion,’” id. at 2553 (quoting Falcon, 457 U.S. at 159 n.15).
Although in McReynolds “each class member would have to
prove that his compensation had been adversely affected by the
corporate policies, and by how much,” the Seventh Circuit
emphasized that a class action on disparate impact meant that “at
least it wouldn’t be necessary in each of those trials to determine
whether the challenged practices were unlawful.” McReynolds,
672 F.3d at 491. The pututative class in McReynolds was
appropriate post-Wal-Mart because the economic harm alleged
by each class member was the result of the same corporate-wide
policies and if the polices were held unlawful then a question
central to the validity of each class member’s claim would be
resolved in one stroke. See id. at 488–90; see also Floyd v. City
of New York, 283 F.R.D. 153, 173 (S.D.N.Y 2012).

     In contrast, the harms alleged to have been suffered by the
plaintiffs here involve different policies and practices at
different stages of the District’s Child Find and FAPE process;
the district court identified no single or uniform policy or
practice that bridges all their claims. When faced with a similar
IDEA lawsuit, the Seventh Circuit in Jamie S., 668 F.3d at
                                15

497–98, effectively rejected, in view of a broadly defined class,
the attempt to distinguish Wal-Mart’s interpretation of Rule
23(a) commonality in the context of a pattern and practice claim.
We do not suggest that widespread policies and practices in
violation of the IDEA could never satisfy Rule 23(a)(2)’s
commonality requirement after Wal-Mart, see Jamie S., 668
F.3d at 503–05 (Rovner, J., concurring in part and dissenting in
part), but rather that, in view of Wal-Mart’s interpretation of
Rule 23(a)(2) commonality and the broadly certified class, as in
Jamie S. “[t]he plaintiffs’ claims appear to be based on multiple,
disparate failures to comply with the [District’s] statutory child
find obligations rather than a truly systemic policy or practice
which affects them all,” id. at 504–05. For some plaintiffs, for
example, 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 to implement
individual education plans (“IEPs”); for still others, the cause is
the absence of a smooth and effective transition from early
intervention programs to preschool programs. Although the
district court found that all members of the class are harmed as
a result of the systemic deficiencies due to the District’s failure
to establish the required Child Find program and FAPE practices
and policies, what common “tru[e] or fals[e]” question can be
answered for each of these three different claims of harm that
would assist the district court in determining the District’s
liability as to each group? Wal-Mart instructs that holding that
the District has violated the IDEA as to each class member is not
enough to establish Rule 23(a) commonality, 131 S. Ct at 2551,
in the absence of a uniform policy or practice that affects all
class members.

     Again, none of this is to suggest that a class can never be
certified in this kind of case. Rule 23(a)(2) does not require that
all questions be common to the class. Rather, as noted, the
                                16

Supreme Court acknowledged that “‘even a single common
question’ will do,” id. at 2556 (internal citation and brackets
omitted), as long as its determination “will resolve an issue that
is central to the validity of each one of the claims in one stroke,”
id. at 2551. Likewise, although Rule 23(b)(2) “applies only
when a single injunction or declaratory judgment would provide
relief to each member of the class,” id. at 2558, the Rule does
not bar courts from granting further equitable relief that does not
reach every plaintiff in the case. But given Wal-Mart’s
interpretation of Rule 23(a) commonality, the requested relief
must respond, at least in part, to a common harm suffered as a
result of a policy or practice that affects each class member.

     The plaintiffs appeared to recognize the problem with the
currently certified class when, after Wal-Mart was issued, they
moved to add four subclasses consisting of children whom the
District failed to: (1) identify or locate for services; (2) provide
with a timely initial evaluation; (3) provide with a timely
eligibility determination; or (4) provide with a “smooth and
effective” transition from Part C to Part B. See Plaintiffs’ Mem.
of Law in Support of Their Mot. for Class Re-Certification. In
effect, the plaintiffs were suggesting that they could show as to
each subclass that the harm caused by the District’s failures
stemmed from a policy or practice that would provide a basis for
the requested injunctive and declaratory relief. The district court
never reached this question. Nor do we. One circuit has
suggested, however, that the district court’s certification of
subclasses might resolve the Rule 23(a)(2) problem. See M.D.,
675 F.3d at 848 (citing Marisol A. v. Giuliani, 126 F.3d 372,
378–79 (2d Cir. 1997) (stating that “[o]ne possible method of
developing proper subclasses would divide the present class
based on the commonality of the children’s particular
circumstances, the type of harm the children allegedly have
suffered, and the particular systemic failures which the plaintiffs
assert have occurred”)).
                                17

      Although they disagree with the District’s interpretation of
the commonality requirement, the plaintiffs have urged that “if,”
in view of Wal-Mart, “this Court finds that plaintiffs’ class lacks
commonality, remand to the district court to reconsider
subclasses would be appropriate.” Appellees’ Br. at 46. The
District “agrees that [the plaintiffs] should have this opportunity,
and that this Court need not consider the subclasses they
proposed,” although it “doubts [that even] they comply with
Wal-Mart.” Reply Br. at 25. We agree that a remand is
appropriate so the district court can determine whether
subclasses would meet the requirements of Rule 23(a)
commonality after Wal-Mart. We understand the District to take
no issue with the district court’s ruling that the IDEA is
amenable to class actions. See Oral Arg. Jan. 10, 2013 Tr. at 5,
20, 59. The District has focused on how Wal-Mart appears to
have changed the law to require that one injunction address the
common harms identified by all the children in the class or
subclass, and on the fact that the district court did not find there
was any particular policy or practice that linked all claims but
only that there were systemic deficiencies. The District’s
challenge to the certified class thus does not rule out the
possibility of classes or subclasses that are designed around a
policy or practice that links the class as a whole; neither would
it rule out separate classes in a consolidated case. See id. at 25,
28.

     Accordingly, we vacate the order certifying the class and,
consequently, the orders finding liability and ordering relief to
that class. We remand the case to the district court for
reconsideration of whether a class, classes, or subclasses may be
certified, and if so, thereafter to redetermine liability and
appropriate relief. Because this is the relief that the District
seeks, see Appellant’s Br. at 58; Reply Br. at 24-25, we need not
reach the district court’s ruling on the scope of the Rehabilitation
Act, see Oral Arg. Jan. 10, 2013 Tr. at 24-26.
     EDWARDS, Senior Circuit Judge, concurring: I am pleased
to concur in the opinion for the court and do so without caveat.
I write separately merely to amplify some points of concern.
     During oral argument before this court, counsel for the
District of Columbia made the astonishing argument that
Wal-Mart would bar a class action by disabled children who
seek to challenge a clear city policy that forecloses the
processing of all IDEA claims. Here is the exchange between
the counsel for the District and the court:
    Judge:     I have to say that I am confused about the way you
               have argued this part. . . . So, imagine that we solve
               the Rule 23 problem. The statute says the state has
               to have in effect policies and procedures to ensure
               the state meets the following conditions and the
               state announces: “We don’t care; we’re not going to
               do it. We have no policy, nothing in effect at all.
               And therefore, no child in our district will ever get a
               FAPE [free appropriate public education].” And
               there is a class action brought by all children who
               are disabled and have tried to get a FAPE and can’t
               get one because [the city] ha[s] a policy. Do you
               have any doubt that this could be brought . . . first of
               all, that this satisfies Wal-Mart, you have no doubt
               that a request for an injunction ordering the state to
               follow the IDEA and to adopt policies and
               procedures – without specifying even what they are
               – would that be a Wal-Mart problem?
    Counsel: It would be a problem under Wal-Mart in the
             context of IDEA because . . . the reason why the
             District failed any particular child is not a part of
             any individual . . .
    Judge:     But it affects every child in the example I just gave.
               Right? Every single child because [the city] is not
               having any FAPE. So, it is not the only reason they
               failed every child. There [is] additional
               individualized decisionmaking that has to be made,
               but here is one policy that affects every child. You
                            2
           have a doubt that Wal-Mart permits that kind of
           injunction?
Counsel: I do your honor. . . .
                         ****
Judge:     Let’s say there is a class of 1,000 children all of
           whom are disabled and none of whom can get any
           benefits from the District at all because they are
           “stopped . . . at the door” by a [city] rule that says
           “we are not going to give you any benefits at all.”
           Why isn’t that a “common fact” issue solvable by a
           single injunction?
                         ****
Counsel: Wal-Mart said that . . . there has to be an up or down
         resolution of a common contention and the
         resolution of that common contention has to be
         central to the validity of each one of the claims. If
         you break down the class that you are proposing,
         each individual there would say something like “I
         was not found . . .”
Judge:     No, no, no. Each individual would say I cannot get
           in the door. . . .
Judge:     You heard my example of the [city’s] policy. [It] is:
           “we are not going to follow IDEA at all.” That’s
           what it said. Now isn’t it the case that every
           individual who is disabled has a claim that the
           District follow IDEA and if the District’s going-in
           policy is “we are not going to follow it,” [then]
           everyone has a common claim that their rights are
           being violated?
                         ****
Counsel: I really do think there is a disconnect between
         perhaps the court’s understanding of Wal-Mart and
                                 3
                mine. But again the court just needn’t reach the
                issue. . . .
     Judge:     You have now forced us to reach the issue, which is
                unfortunate for the District of Columbia. You have
                forced us to reach the issue. . . . Because we know
                you are going to make the argument [to the District
                Court] that it is not possible – even if there is a
                single policy that will affect every single member of
                the class [and] which can be solved by a single
                injunction – . . . that Wal-Mart doesn’t permit that.
                And Wal-Mart expressly does permit that. . . .
Oral Arg. at 1:16:05-22:58.
      The argument raised by the District is astonishing because
it is patently wrong. Wal-Mart surely does not foreclose a class
action to challenge a city policy that effectively precludes
protected parties from even being considered for benefits that
would otherwise be available. And all claimants who are
similarly blocked by the policy may join a class action to
challenge it. Such a class action would easily satisfy the
commonality requirement of Rule 23 even after Wal-Mart. See,
e.g., McReynolds v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 672 F.3d 482, 489-91 (7th Cir. 2012) (explaining that
Wal-Mart allows a class action to challenge specific,
companywide policies that “exacerbate racial discrimination
by brokers”), cert denied, 133 S. Ct. 338 (2012).
     This point is highly relevant with respect to the matters
that must be resolved on remand. It is therefore important that
the District Court understand that it will be free to certify a
class or subclass if it determines that a single policy or practice
effectively forecloses disabled children in that class or subclass
from pursuing IDEA benefits. See id. As Judge Rovner noted
in Jamie S. v. Milwaukee Public Schools:
     [N]otwithstanding the inherently child specific nature of
     child-find inquiries, a class action based on a truly systemic
                                   4
    child-find failure may be viable. And the fact that it may not be
    possible to identify individual class members until the remedial
    phase of the litigation, when prospective members of the class
    are invited to come forward and establish that they were among
    those injured by this systemic failure, should not preclude a
    class action, which may be the only realistic avenue of relief for
    those injured by systemic violations of their rights.
         Systemic violations of the IDEA are cognizable. See Doe
    ex rel. Brockhuis v. Ariz. Dep’t of Educ., 111 F.3d 678, 681 (9th
    Cir. 1997) (coll. cases). . . . Certainly . . . an illegal policy would
    support a claim for a systemic violation of the IDEA’s
    child-find mandate. But . . . widespread practices might also
    support such a claim.
668 F.3d 481, 504-05 (7th Cir. 2012) (Rovner, J., concurring in
part and dissenting in part). The principles enunciated by Judge
Rovner are eminently correct. Even the majority opinion in
Jamie S. acknowledges that a class action may be pursued “if
there [is] ‘significant proof’ that [the school district] operated
under child-find policies that violated the IDEA.” Id. at 498
(majority opinion) (emphasis in original); see also Gray v.
Hearst Commc’ns, Inc., 444 F. App’x 698, 701-02 (4th Cir.
2011) (class action could proceed where “there [was] no
dispute that a uniform policy (or obligation) exists or that such
a uniform policy applies to all plaintiffs”). The same principle
has been followed even in those cases in which class
certification has been denied. See, e.g., In re Countrywide Fin.
Corp. Mortg. Lending Practices Litig., 708 F.3d 704, 709 (6th
Cir. 2013) (“Essential to McReynolds, and missing from the
instant litigation, were companywide policies that contributed
to the alleged disparate impact that arose from the delegation of
discretion to individual brokers.”); Tabor v. Hilti, Inc., 703
F.3d 1206, 1229 (10th Cir. 2013) (holding that commonality
was not satisfied where plaintiffs “challenge[d] a highly
discretionary policy for granting promotions” and defendants
                                5
“failed to maintain the [allegedly discriminatory] system in any
uniform manner”).
     During oral argument, the District’s counsel
acknowledged that a viable IDEA claim may be pursued as a
class action. That is undoubtedly correct and nothing in our
decision today should be taken to suggest otherwise. We also
mean to say that if the District of Columbia has adopted a
“stopped at the door” policy or practice that effectively blocks
disabled children from being identified pursuant to the
child-find requirements of IDEA or from otherwise being
considered for IDEA benefits, then the affected children in
appropriate classes or subclasses may challenge the policy or
practice in a class action. An illegal policy or practice affecting
all class members would provide the “glue” necessary to
litigate otherwise individualized claims as a class. Wal-Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2552 (2011); see also
McReynolds, 672 F.3d at 489-91. The District’s arguments to
the contrary are simply misguided, and the District Court
should not be lead astray by such claims on remand.
