          United States Court of Appeals
                       For the First Circuit


Nos. 18-1778
     18-1813
     18-1867
     18-1976

 THE PARENT/PROFESSIONAL ADVOCACY LEAGUE; DISABILITY LAW CENTER,
 INC.; M.W., a minor, by his temporary guardian, F.D., on behalf
        of himself and other similarly situated students,

               Plaintiffs, Appellants/Cross-Appellees,

  S.S., a minor, by his mother, S.Y., on behalf of himself and
               other similarly situated students,

                             Plaintiff,

                                 v.

 CITY OF SPRINGFIELD, MASSACHUSETTS; SPRINGFIELD PUBLIC SCHOOLS,

               Defendants, Appellees/Cross-Appellants,

   DOMENIC SARNO, in his official capacity as Mayor of City of
 Springfield; SUPERINTENDENT DANIEL J. WARWICK, in his official
    capacity as Superintendent of Springfield Public Schools,

                             Defendants.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Mark G. Mastroianni, U.S. District Judge]


                               Before

                   Torruella, Lynch, and Kayatta,
                           Circuit Judges.
     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.


                          August 8, 2019
            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.


                                         - 3 -
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



                                 - 4 -
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.


                                       - 5 -
            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).


                                      - 6 -
"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


                                     - 7 -
                     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



      1   For procedural violations, a hearing officer may find
that a child did not receive a FAPE "if the procedural inadequacies
. . . caused a deprivation of educational benefits." 20 U.S.C.
§ 1415(f)(3)(E)(ii).


                                          - 8 -
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


                                 - 9 -
             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]




      2    The Frys brought suit under Title II of the ADA and § 504
of the Rehabilitation Act, 29 U.S.C. § 794, for "denying [their
daughter] equal access" to her elementary school by "refus[ing] to
reasonably accommodate" their daughter's use of a service animal
for her cerebral palsy. Fry, 137 S. Ct. at 752 (internal quotation
marks omitted). The Supreme Court did not undertake an exhaustion
analysis of the Frys' complaint, remanding on that question. Id.
at 758-59.


                                    - 10 -
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



        3 What we refer to as "the complaint" is the First Amended
Class Action Complaint. S.S. and PPAL filed an initial complaint
in 2014 and then sought leave to amend, which was granted, allowing
S.S. and PPAL, now joined by DLC, to file the First Amended Class
Complaint. S.S. by S.Y. v. City of Springfield (S.S. I), 146 F.
Supp. 3d 414, 422 (D. Mass. 2015).


                                     - 11 -
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   their    residential        addresses    and   high   schools    that   enroll

students through a choice program.

              Within SPS, SPDS comprises three schools, an elementary,

middle, and high school.            SPDS operates as an "alternative [set

of] schools . . . for students with social emotional behavioral

disabilities."       It enrolls about 230 students, each of whom has

been diagnosed with a mental health disability that SPS has

determined interferes with his or her learning and each of whom

has an IEP that places him or her at SPDS.                      About 400 other

students with mental health disabilities that similarly interfere

with their learning attend neighborhood schools; their IEPs do not

require placement at SPDS.




                                       - 12 -
           The complaint alleges that both Springfield and SPS4

discriminate   against    the   plaintiff      class   under   Title    II   by

providing unequal educational services at SPDS, see 28 C.F.R.

§§ 35.130(b)(1)(i), (ii), and by denying them the opportunity to

receive   educational    services   in   the    most   integrated      setting

appropriate to their needs, see 42 U.S.C. § 12132; 28 C.F.R.

§ 35.130(d).   The complaint requests this substantive relief:

           A.   Order that Plaintiff S.S. may maintain
           this action as a class action pursuant to Rule
           23(b)(2) of the Federal Rules of Civil
           Procedure.
           B.   Order and declare that Defendants are
           violating the rights of S.S. and other
           similarly situated children under Title II of
           the   ADA    . . .   and   its    implementing
           regulations.
           C.   Preliminarily and permanently enjoin
           Defendants, their . . . agents, employees and
           assigns, and all persons acting in concert
           with them to provide Plaintiff S.S., PPAL and
           DLC constituents, and the Plaintiff class with
           the school-based behavior services they need
           to enjoy equal educational opportunity and
           receive educational programs and services in
           the most integrated setting, as required by
           Title II of the ADA.

           The complaint defines the "essential components" of

school-based behavior services (SBBS) as:

           (a) a comprehensive assessment, including
           determination of the purpose and triggers for
           the child’s behavior; (b) a school-based

     4    The complaint also named Springfield's mayor and schools
superintendent as defendants. But the district court dismissed
these claims as "redundant" of those against the public entities.
S.S. I, 146 F. Supp. 3d at 426.      And the plaintiffs have not
appealed that dismissal.


                                 - 13 -
                  intervention plan that relies on positive
                  support, social skills training, a care
                  coordinator, and adjustments as needed to
                  curriculum or schedule; (c) training for
                  school staff and parents in implementing the
                  plan; and (d) coordination with non-school
                  providers involved with the child.

                  Defendants responded with a motion to dismiss, asserting

several grounds, including that S.S. had failed to exhaust his

administrative remedies.              In denying the motion to dismiss as to

the claims against Springfield and SPS,5 the district court held

that       S.S.     had   exhausted    his   administrative       remedies   before

bringing this suit.          S.S. by S.Y. v. City of Springfield (S.S. I),

146 F. Supp. 3d 414, 424 (D. Mass. 2015).              S.S. had filed a Request

for a Hearing with the BSEA asserting that his IEP violated the

IDEA's FAPE and LRE requirements and raising the ADA claims in

this suit.         A BSEA hearing officer dismissed S.S.'s individual and

classwide ADA claims for lack of jurisdiction and denied S.S.'s

IDEA       claim    based   on   a   finding   that   his   IEP    was   reasonably

calculated to offer him a FAPE.

B.     Motion for Class Certification

                  The district court denied the plaintiffs' motion for

class certification on alternative grounds.                 S.S. II, 318 F.R.D.

at 224.           In the district court's view, the IDEA's exhaustion




       5   As already stated, the district court dismissed the
claims against the individual defendants. S.S. I, 146 F. Supp.
3d at 426.


                                         - 14 -
requirement "provide[d] one basis" for doing so.                  Id. at 222.

Writing two years before Fry, the district court concluded that,

because "the members of the proposed class may achieve a remedy

through an IDEA administrative hearing related to the claims raised

here," that statute's exhaustion requirement "applie[d]."                    Id.

Although    S.S.   had   exhausted    his     administrative     remedies,   the

proposed class was not limited to students who had gone through

the IDEA's procedures.        Id. at 221.          And, the district court

stated, plaintiffs "have not argued that there is an exception to

the exhaustion requirement" for class actions.             Id.    As a result,

the district court held that class certification should be denied:

the complaint did not allege that all unnamed members of the class

had exhausted, but the district court determined that § 1415(l)

required them to do so.      See id. at 222.

            The district court also concluded that the plaintiffs

had   not   satisfied    Federal     Rule     of   Civil   Procedure   23(a)'s

prerequisites for class certification.              See id.      There was no

"question[] of law or fact common to the class," the district court

held, and S.S. could not serve as a "typical" or "adequate[]" class

representative because he had exhausted his IDEA administrative

remedies while other class members had not.                See id. at 223-24

(quoting Fed. R. Civ. P. 23(a)).




                                     - 15 -
C.   Motion for Judgment on the Pleadings

          The defendants next filed a motion for judgment on the

pleadings on the claims of DLC and PPAL.     They argued that the

associations lacked standing to bring these claims on behalf of

their constituents and, in the alternative, that the associations

were subject to the IDEA's exhaustion requirement but had failed

to exhaust.   Although the district court found that DLC and PPAL

had standing, it granted the motion.    S.S. III, 332 F. Supp. 3d

at 370.   Writing after Fry, the district court concluded that

§ 1415(l) required exhaustion and that no exception relieved DLC

and PPAL of their obligation to exhaust the IDEA's administrative

procedures.   Id. at 376-78.

D.   M.W.'s Intervention for Purposes of Appeal and the Parties'
     Appeal and Cross-Appeal

          While the motion for judgment on the pleadings was

pending in the district court, S.S. turned eighteen and withdrew

from the suit.6   M.W., a former SPDS student who does not attend

a neighborhood school, asked the district court for permission to

intervene solely for purposes of appealing the ruling on the motion

for class certification.   The district court granted the motion.




     6    Simultaneous with S.S.'s withdrawal, another SPDS
student who had exhausted IDEA administrative remedies sought to
intervene in the district court case and in the plaintiff's
petition to appeal the denial of class certification to the First
Circuit. This student's motions were withdrawn before they were
acted on.


                               - 16 -
          M.W. then appealed the district court's denial of class

certification.    PPAL and DLC appealed the judgment against them.

Springfield and SPS cross-appealed the district court's ruling

that PPAL and DLC had standing and its grant of M.W.'s motion to

intervene for purposes of appeal.

                                   III.

          We first address a threshold issue raised in defendants'

cross-appeal: did the district court abuse its discretion in

granting M.W.'s motion to intervene for purposes of appealing the

denial of class certification?            See Peaje Investments LLC v.

García-Padilla, 845 F.3d 505, 515 (1st Cir. 2017) (reviewing

disposition of motion to intervene for abuse of discretion).

          We see no abuse of discretion.            The district court

relied on United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977),

in concluding that M.W.'s motion to intervene was timely and

appropriate.     In McDonald, the Supreme Court endorsed the grant

of a motion like the one here -- to intervene for purposes of

appealing an order denying a motion for class certification.       Id.

at 387, 396.     The motion in McDonald had been filed by a member

of the proposed class within the period for appealing the entry of

final judgment.     Id. at 390.     The same is true here:     M.W., a

member of the proposed class, filed the motion to intervene for

purposes of appealing the class certification order fifteen days

after the district court entered its final order granting the


                                  - 17 -
motion for judgment on the pleadings; fifteen days is within the

time period for filing an appeal under Federal Rule of Appellate

Procedure 4.      See id.; see also Fed. R. App. P. 4(a)(1)(A)

(allowing thirty days to file a notice of appeal).

            The defendants' counter-arguments are misplaced.     The

defendants object that M.W.'s intervention is "[i]nappropriate"

because he has not exhausted his IDEA administrative remedies and

is therefore "unsuitable to represent the class in any capacity."

But M.W. seeks to appeal the district court's ruling refusing to

certify a class including persons who had not exhausted IDEA

remedies.   And so M.W.'s failure to have exhausted cannot make him

an inappropriate appellant of that ruling.    See McDonald, 432 U.S.

at 394-95 ("[I]t would be circular to argue that [an] unnamed

member of the putative class was not a proper party to appeal, on

the ground that her interests had been adversely determined in the

trial court.").     Defendants' insistence that "M.W. is not an

adequate class representative and whether one may arise is wholly

speculative" similarly misses the point.     M.W. is a suitable party

to appeal from the district court's denial of class certification

because M.W. is a member of the proposed class; those interests

would be impaired absent intervention given S.S.'s decision to




                              - 18 -
withdraw as named plaintiff.           See id. at 394; Fed. R. Civ. P.

24(a).   M.W.'s appeal is properly before us.7

                                      IV.

             We turn now to M.W.'s appeal.          M.W. first challenges the

district   court's     conclusion    that     § 1415(l)'s      exhaustion     rule

attached here, and the parties appear to argue that the exhaustion

issue is at the heart of this case.            Our exhaustion analysis, as

described below, directly pertains to our decisions on class

certification and associational standing.                Applying Fry for the

first time in this circuit, we conclude that the complaint "seek[s]

relief   that   is    also   available"     under    the   IDEA. 8     20   U.S.C.

§ 1415(l).       We   then    turn   directly       to   the   issue   of    class

certification.


     7    M.W., a minor, moved to intervene and initially brought
this appeal by his parents, L.N. and A.N. After oral argument,
plaintiffs moved to substitute F.D. as M.W.'s representative. The
motion explained that, following L.N.'s death just before oral
argument in this court, F.D. and A.N. filed competing petitions
for guardianship of M.W., and F.D. was granted temporary
guardianship of M.W. We granted the motion to substitute F.D. for
so long as F.D. is authorized to be M.W.'s general guardian under
state law. See Fed. R. Civ. R. 17(c)(1)(A); Fed. R. App. P. 43(a),
(b).
     8    Our review of the district court's exhaustion ruling is
de novo. This is true whether we treat the exhaustion ruling as
a matter of class certification or, as the parties do in their
briefs, as an independent issue.    Motions to dismiss and legal
rulings embedded in class certification decisions are both
reviewed de novo. García-Rubiera v. Calderón, 570 F.3d 443, 460
(1st Cir. 2009) (citing Tardiff v. Knox Cty., 365 F.3d 1, 4 (1st
Cir. 2004)).



                                     - 19 -
A.      The Complaint "Seek[s] Relief that is Also Available Under"
        the IDEA

               Fry    was    decided     after    the   district   court's   class

certification order, and M.W. argues that Fry made clear that the

"IDEA exhaustion rule does not apply here."                 We now clarify that

§ 1415(l), as interpreted in Fry, subjects the type of ADA claim

being made here to that exhaustion rule.9

               When faced with a complaint brought under the ADA against

a public school, Fry instructs, a court should determine whether

the gravamen of the complaint "concerns the denial of a FAPE" -- in

which case § 1415(l) requires exhaustion -- or "instead addresses

disability-based discrimination" -- in which case § 1415(l)'s rule

does not apply.           137 S. Ct. at 756.       This distinction is grounded

in the "diverse means and ends of the statutes."                      Id. at 755.

While       "the   IDEA     guarantees    individually     tailored   educational

services,          . . . Title    II . . . promise[s]        non-discriminatory

access to public institutions."             Id. at 756.

               Fry recognized that "[t]he same conduct might violate"

both the ADA and the IDEA.                Id.     "But still," it stated, "the

statutory differences . . . mean that a complaint brought [against

a school] under Title II . . . might" nevertheless be free from



        9 Although we, following Fry, "sp[eak] in terms of the
'complaint,'" our conclusion, as our analysis will make clear,
would be the same if the inquiry were "claim-by-claim." Wellman
v. Butler Area Sch. Dist., 877 F.3d 125, 132 (6th Cir. 2017)
(noting ambiguity about whether Fry's inquiry is claim-specific).


                                         - 20 -
the IDEA's exhaustion requirement if it "seek[s] relief for simple

discrimination, irrespective of the IDEA's FAPE obligation."            Id.

On inspection, the complaint here in essence contests the provision

of educational services secured by the IDEA; its gravamen is not

"simple discrimination."

             On its surface, the complaint pleads disability-based

discrimination: it alleges that the defendants are violating the

ADA    by   unnecessarily   segregating    students   with   mental   health

disabilities in a separate and unequal educational program.             And

the complaint never uses the term FAPE.           Yet, the crux of the

complaint is that the defendants failed to provide the educational

instruction and related services that the class plaintiffs need to

access an appropriate education in an appropriate environment.

That is not a claim of simple discrimination; it is a claim

"contesting the adequacy of a special education program."             Id. at

755.

             The complaint's gravamen is also revealed in the legal

allegations.      The sole count of the complaint alleges that the

defendants are "[d]enying" students the "opportunity to receive

educational programs and services in the most integrated setting

appropriate to their needs."       And Count I also alleges that the

school system is "[d]enying" students the "opportunity to . . .

benefit from educational services."         These allegations track the

language of the ADA's regulations, see 28 C.F.R. §§ 35.130(b),


                                  - 21 -
(d), but they are nonetheless claims about obligations under the

IDEA to educate students in the regular classroom with their

nondisabled peers "[t]o the maximum extent appropriate," 20 U.S.C.

§ 1412(a)(5)(A), and to offer students an appropriate educational

benefit, see Endrew F., 137 S. Ct. at 1001.     These allegations

are, in great part, simply another way of saying, in IDEA terms,

that the school system has not provided the necessary special

educational services to allow students to be educated in the LRE.

See, e.g., C.D. by & through M.D. v. Natick Pub. Sch. Dist., 924

F.3d 621, 630 (1st Cir. 2019).    Indeed, here, the members of the

class were placed in SPDS by their IEPs, which, as we outlined

above, must provide an appropriate education and must comport with

the IDEA's LRE requirement.

          Concretely, it is revealing that S.S. initially "invoked

the IDEA's formal procedures to handle [his] dispute."    Fry, 137

S. Ct. at 757.    The IDEA claims raised in S.S.'s due process

complaint and ultimately adjudicated by the BSEA concern the

adequacy of the special education services provided to S.S. and

the appropriateness of his placement.   When S.S. filed this suit

in federal court, he dropped the IDEA claims, but the essence of

his grievance did not shift.

          Nor do the facts here show "that the move to a courtroom

came from a late-acquired awareness that the school had fulfilled

its FAPE obligation and that the grievance involves something else


                               - 22 -
entirely."      Id.   To the contrary, the plaintiffs emphasize that

they do not concede that any of the unnamed class plaintiffs were

receiving a FAPE in the LRE.        In Fry, the Frys and the school

district agreed that the district was providing a FAPE.        Id. at

752.     To the Supreme Court, this fact signaled that the Frys'

complaint sought relief for "infringe[ment] on [the child's] right

to equal access -- even if [the school's] actions complied in full

with the IDEA's requirements."      Id. at 758.   The plaintiffs' suit

cannot be similarly isolated from the special education services

guaranteed by the IDEA.

             To reinforce this point that the relief plaintiffs seek

cannot be isolated from relief available under the IDEA, consider

an example.     A student sues her school under an antidiscrimination

statute alleging that a teacher struck her "out of animus or

frustration."     Id. at 756 n.9.   Even assuming that the student has

an IEP and that striking the student could violate the IEP, the

"substance" of this suit "is unlikely to involve the adequacy of

special education -- and thus is unlikely to require exhaustion."

Id.     "A telling indicator of that conclusion," Fry explained, is

that the same suit could be filed in contexts not covered by the

IDEA.     Id.   That is, "a child could file the same kind of suit

against an official at another public facility for inflicting such

physical abuse -- as could an adult subject to similar treatment

by a school official."      Id.


                                  - 23 -
             The plaintiffs argue that a suit like theirs could be

filed in contexts where "there is no FAPE obligation."                              Id. at

756.   They liken their suit to Olmstead, which involved ADA claims

of unnecessary segregation in medical institutions, not schools.

See 527 U.S. at 593.           But the plausibility of bringing an Olmstead

suit against another public entity does not indicate that this

suit concerns simple discrimination.                      Olmstead claims concern

whether the defendant public entity provides proper "treatment,"

accommodations, and placements.                  Id. at 607.      And in the school

context,     a    challenge         to    a    student's      treatment,       services,

accommodations,       and        placements        is     a     challenge          to    the

appropriateness      of     an      educational      program.          See    20     U.S.C.

§ 1401(26)       (describing        the       services     that    may       compose     an

educational program).

             Other circuits have similarly concluded that complaints

"seek[]    relief"    available          under    the    IDEA   when     alleging       that

discriminatory treatment resulted in the denial of an adequate

education or in an inappropriate placement.                     For example, Wellman

v. Butler Area School District, 877 F.3d 125 (3d Cir. 2017),

required     exhaustion        of    claims      brought      under     the    ADA,      the

Rehabilitation Act, and § 1983 alleging that a school failed to

provide academic and other accommodating services to a student

after he sustained a head injury.                  Id. at 135.         And claims that

schools    isolated       or     separated       disabled       students      have      been


                                          - 24 -
subjected to IDEA exhaustion where those claims allege that the

effects of the isolation or separation were educational.10           So,

exhaustion was required in J.M. v. Francis Howell School District,

850 F.3d 944 (8th Cir. 2017), of claims that a school's "use of

isolation   and   physical   restraints   failed   to   provide   proper

'sufficient "supportive services" to permit [J.M.] to benefit from

. . . instruction,' and ultimately 'denied [J.M.] . . .             the

benefits of public education.'"     Id. at 949 (quoting Fry, 137 S.

Ct. at 748-49, 757).

            Resisting the conclusion that their complaint seeks

relief that is available under the IDEA, the plaintiffs emphasize

that "the fact that a school has provided a FAPE in the LRE does

not preclude a claim of unlawful segregation under the ADA."        And

they similarly state that the IDEA, unlike the ADA, does not

require equal educational opportunity.      But the observation that

the statutes are "independent" and sometimes diverge does not help

the plaintiffs.    More significant for our purposes is that the

statutes sometimes overlap.11    In this case, that overlap is such


     10   The district court cases on which the plaintiff relies
are distinguishable at least on this ground: the alleged effects
of the physical abuse and isolation were not educational.      See
Abraham P. v. Los Angeles Unified Sch. Dist., No. CV 17-3105, 2017
WL 4839071 (C.D. Cal. Oct. 5, 2017); GM ex rel Mason v. Lincoln
Cty. Sch. Dist., No. 6:16-CV-01739-JR, 2017 WL 2804996, (D. Or.
Apr. 21, 2017), report and recommendation adopted, No. 6:16-CV-
01739-JR, 2017 WL 2804949 (D. Or. June 28, 2017).
     11   Tellingly, the plaintiffs accuse the district court of



                                - 25 -
that,   in   pleading      what   are    on    the   surface   ADA   claims,    the

plaintiffs' complaint in substance "seek[s] relief that is also

available under" the IDEA.          We repeat that our conclusions about

exhaustion     are     relevant     to        our    class   certification      and

associational standing analyses.

             We address the plaintiffs' alternative argument that, in

an IDEA suit seeking systemic relief, no plaintiff need exhaust

because such exhaustion would be futile.                 The plaintiffs assert

that this class action alleges "systemic failures."

             Other circuits have defined an exception to the IDEA's

exhaustion rule for "systemic" suits.                 But, to fall under that

exception, the alleged violations must be "truly systemic . . . in

the sense that the IDEA's basic goals are threatened on a system-

wide basis."      Hoeft v. Tuscon Unified Sch. Dist., 967 F.2d 1298,

1305 (9th Cir. 1992).        For example, the exhaustion requirement has

been relaxed or waived in suits alleging systemwide violations of

the   processes      for   identifying        and    evaluating   students     with

disabilities.      See DL v. D.C., 713 F.3d 120, 124 n.4 (D.C. Cir.

2013); J.G. v. Bd. of Educ. of the Rochester City Sch. Dist., 830

F.2d 444, 445 (2d Cir. 1987) (alleging systemwide failures at




"limit[ing]" or "restrict[ing]" the ADA's integration and equal
access mandates by requiring IDEA exhaustion here. Implicit in
this argument is an admission that a complaint alleging violations
of the ADA could in theory also allege violations of the FAPE and
LRE requirements.


                                        - 26 -
multiple stages of the IDEA's processes for evaluating and placing

students in special education).           Suits labeled "systemic" also

tend to "challenge[] policies or practices," or administrative

failures, "at the highest administrative level."          Hoeft, 967 F.2d

at 1305; see also J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d

107, 114 (2d Cir. 2004); cf. Christopher W. v. Portsmouth Sch.

Comm., 877 F.2d 1089, 1095 (1st Cir. 1989) (stating that exhaustion

may not be required for review of such policies if they present "a

pure matter of law" (quoting Ezratty v. Comm. of P.R., 648 F.2d

770, 774 (1st Cir. 1981)).

             The plaintiffs' claims are not "systemic" in the sense

contemplated by any such exception.          A finding that one student

with a certain type and degree of mental health disability should

have been mainstreamed would not mean that another student with a

different type, or even just a different degree, of mental health

disability    should    have   received    the   same   services   or   been

mainstreamed.      And, as we will explain further below in our

consideration    of    commonality,   plaintiffs   do   not   challenge   an

identifiable, uniform system-wide policy "enforced at the highest

administrative level."      Hoeft, 967 F.2d at 1305.      In sum, even if

this court were to recognize a "systemic" claims exception to the

IDEA's exhaustion requirement, this case would not fall under such

an exception.    So we need not, and do not, decide whether to adopt

such an exception in this circuit.


                                  - 27 -
B.    Class Certification

            The district court denied class certification on both

Rule 23 and exhaustion grounds.                  We deal with both.          First,

plaintiffs'       failure    to     satisfy       Rule   23(a)'s      commonality

requirement provides a basis for affirming the denial of class

certification.12      See García-Rubiera v. Calderón, 570 F.3d 443,

460 (1st Cir. 2009) (noting that denials of class certification

are reviewed for abuse of discretion).

            Rule 23(a)(2) makes the identification of "questions of

law   or   fact   common    to    the    class"    a   prerequisite    for    class

certification.13     Fed. R. Civ. P. 23(a)(2).            A question is common

if it is "capable of classwide resolution -- which means that


      12  We need not address plaintiffs' other arguments that the
district court erred in holding that the class failed Rule 23(a)'s
adequacy and typicality requirements and in implying that the
plaintiffs do not "seek relief appropriate under Rule 23(b)(2)."
      13    Rule 23(a) provides:
            (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.

Fed. R. Civ. P. 23(a).



                                        - 28 -
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."

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).     Under

that definition, the Supreme Court explained in Wal-Mart, what

really "matters to class certification . . . is not the raising of

common 'questions'" as much as "the capacity of a classwide

proceeding to generate common answers apt to drive the resolution

of the litigation."    Id. (alteration in original) (emphasis in

original) (quoting Richard A. Nagarenda, Class Certification in

the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).

Those common answers typically come in the form of "a particular

and sufficiently well-defined set of allegedly illegal policies

[or] practices" that work similar harm on the class plaintiffs.14

Parsons v. Ryan, 754 F.3d 657, 679 (9th Cir. 2014).


     14   Plaintiffs agree with our basic account of the law. The
cases plaintiffs cite each involved a definable policy or practice
imposed by a single entity or a small group of actors; these
features facilitated the formulation of questions apt for class
resolution.   See Parsons, 754 F.3d at 678 (seeing sufficient
commonality where "either each of the policies and practices is
unlawful as to every inmate or it is not"); Chi. Teachers Union,
Local No. 1 v. Bd. of Educ. of Chi., 797 F.3d 426, 440 (7th Cir.
2015) (finding requisite commonality where "uniform criteria and
[a] single-decision maker" allegedly unlawfully closed schools);
Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 114 (4th Cir.
2013), cert. denied, 134 S. Ct. 2871 (Mem.) (2014) (reversing
district court's denial of class certification because the
complaint alleged four company-wide policies that could be driving
the alleged discrimination); Yates v. Collier, 868 F.3d 354, 363
(5th Cir. 2017) (affirming class certification where district
court found that heat in a prison was so excessive that it was



                              - 29 -
          Consistent with this standard, in class actions relating

to special education (which are usually brought under the IDEA),

plaintiffs can satisfy Rule 23(a)'s commonality requirement by

identifying a uniformly applied, official policy of the school

district, or an unofficial yet well-defined practice, that drives

the alleged violation.15   See, e.g., DL, 713 F.3d at 131; Jamie

S., 668 F.3d at 498.

          So, for example, classes have been certified under the

IDEA to challenge: (1) a school district's policy, called "upper-

level transfer," of automatically moving students who had aged out

of autism support classrooms at one school to another school,

without involving the students' IEP teams, P.V. ex rel. Valentin

v. Sch. Dist. of Phila., 289 F.R.D. 227, 229 (E.D. Pa. 2013); and

(2) a district's policy of delaying the start of services offered

in IEPs, like speech therapy, until two weeks into the school year,

R. A-G ex rel. R.B. v. Buffalo City Sch. Dist. Bd. of Educ., No.




constitutionally impermissible as to all individuals). The same
is true for the case cited in their Rule 28(j) letter. See Brown
v. D.C., No. 17-7152, 2019 WL 2895992, at *1082 (D.C. Cir. July 5,
2019) (seeing sufficient commonality where "common proof will
establish whether the District's plan is 'comprehensive' and
'effectively working'"). Here, in contrast, as we are about to
explain, the plaintiffs have not identified a common policy or
practice driving the alleged wrongdoing.

     15   The commonality standard might also be satisfied in some
cases by certifying sub-classes. See, e.g., Mark C. Weber, IDEA
Class Actions After Wal-Mart v. Dukes, 45 U. Tol. L. Rev. 471,
498-500 (2014). But that is not a viable option here.


                              - 30 -
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).         In these examples, it is

easy to see how the policies anchor common questions -- does

"upper-leveling" or delaying the start of services violate the

IDEA? -- the answers to which could "resolve an issue that is

central to the validity of each one of the claims in one stroke."

Wal-Mart, 564 U.S. at 350.       In each example, the harm to the class

members is (in part) that the policy precludes, across-the-board,

the individualized assessments and services that the IDEA requires

and that harm is likely to have similar causes (the policy) and

effects    (denial   of   services    appropriate     to     that    individual

student) across the class.           See R. A-G ex rel. R.B., 2013 WL

3354424, at *10 (relying on similar reasoning in certifying an

IDEA class).

            Identification    of     an   unofficial        yet     well-defined

practice (or set of practices) that is consistently and uniformly

applied might also satisfy the commonality prerequisite.                   See,

e.g., DL, 713 F.3d at 131 (defining such practices); Jamie S., 668

F.3d at 498 (similar).       But, in a suit like this one challenging

hundreds   of   individualized     decisions   made    in    a    decentralized

environment, satisfying the commonality requirement in this way

requires proof of some "common mode of exercising discretion."

Wal-Mart, 564 U.S. at 356.


                                   - 31 -
           The   plaintiffs       say   that    they      have   satisfied    this

standard by offering "evidence that Springfield engages in common

practices of disability discrimination and that those practices

create harms common to the children of the proposed class."

Plaintiffs   frame    the    "question[]       of    law . . . common    to   the

class,"   Fed.   R.   Civ.   P.    23(a)(2),        as:   "whether   Springfield

discriminates against the class, in violation of the ADA, by

failing to provide SBBS in neighborhood schools and instead placing

them in the inferior Public Day School where they are segregated

and deprived of educational opportunities equal to those provided

to their peers without a disability."               Searching for an answer to

that question able to drive the resolution of the litigation,

plaintiffs point to the report of their expert, Dr. Peter Leone.

They characterize Dr. Leone's report as finding the following:

(1) "that Springfield made common (incorrect) assumptions about

the class members and offered them a common set of (insufficient)

services;" (2) "that all the children whose files he reviewed could

successfully attend neighborhood schools if appropriate services

were provided;" and (3) "that the quality of education in the

Public Day School -- for every child there -- was markedly inferior

to the quality of education the children in the potential class

would have received in neighborhood schools."

           The problem with the plaintiffs' reliance on Dr. Leone's

report is that the report claims to find a pattern of legal harm


                                    - 32 -
common to the class without identifying a particular driver -- "a

uniform policy or practice that affects all class members" -- of

that alleged harm.       DL, 713 F.3d at 128 (explaining that this type

of evidence is insufficient to satisfy commonality).                   Similar

problems were fatal to the evidence presented by the proposed class

in Wal-Mart.     There, the plaintiffs alleged that female employees

of Wal-Mart had "suffered a Title VII injury" apt for class

resolution, Wal-Mart, 564 U.S. at 350, but the Supreme Court held

that   the   commonality     requirement     was    not   satisfied    because

plaintiffs had offered no "glue holding the alleged reasons" for

the    alleged   Title     VII    violations   together,      id.     at   352.

Significantly, Wal-Mart managers were given discretion to make

employment decisions about individual employees.            See id. at 343.

And the Supreme Court found it "quite unbelievable that all

managers would exercise their discretion in a common way without

some common direction."          Id. at 355.       Plaintiffs identified no

common, official policy or direction, and the Supreme Court held

that the plaintiffs' statistical and anecdotal evidence did not

prove a "common mode of exercising discretion."             Id. at 356; see

also id. at 356-58.

             Here, the plaintiffs do not, in Dr. Leone's report or

elsewhere, allege that a particular, official SPS policy violated

the ADA.     Indeed, basic facts would belie a claim that SPS had a

uniform policy governing the placements and services of students


                                    - 33 -
with behavioral disabilities:           it is telling that SPS educates a

larger       number   of    students    with    behavioral    disabilities   in

neighborhood schools than it does in SPDS.              And it is revealing

that some neighborhood schools offer support programs for students

with behavioral disabilities.               See S.S. II, 318 F.R.D. at 215

(describing the Social Behavioral Support (SEBS) program and the

Positive Behavioral Interventions and Supports (PBIS) program).

               Nor does Dr. Leone's report claim that individual IEP

teams exercised discretion in a common manner.               For his study, Dr.

Leone scrutinized the materials of twenty-four individual students

enrolled at SPDS and 130 IEPs of other individual SPS students

with behavioral difficulties.           His study yielded no evidence that

SPS places students at SPDS using some method, such as boilerplate

IEPs,        that   would    suggest    a    "common   mode     of   exercising

discretion."16        Wal-Mart, 568 U.S. at 356.

               Absent such a common driver, answering the plaintiffs'

suggested question -- does the failure to provide SBBS result in


        16Dr. Leone's report also does not "raise any inference
that all the individual, discretionary" decisions that make up the
class violated the law.     Wal-Mart, 564 U.S. at 358.    Such an
inference might satisfy commonality.    Id.   Defendants moved to
exclude or limit Dr. Leone's testimony because "the methodologies
used and opinions offered by Leone suffer from a host of
methodological flaws."   The district court declined to rule on
this motion, deeming it moot once class certification had been
denied. S.S. II, 318 F.R.D. at 224. Defendants have not appealed
this ruling, so we do not evaluate Dr. Leone's methodology.
Instead, we see Dr. Leone's evidence as insufficient in volume and
nature to raise such an inference.


                                       - 34 -
violations of the ADA? -- requires individualized determinations

which   defeat   commonality.       See   Jamie   S.,    668   F.3d   at   498

(concluding that the proposed common question "must be answered

separately for each child based on individualized questions of

fact and law, and the answers are unique to each child's particular

situation"); see also DL, 713 F.3d at 128 (stating that "claims

appear to be based on multiple, disparate failures to comply with

the [District's] statutory . . . obligations rather than a truly

systemic   policy   or   practice   which   affects     them   all"   (first

alteration in original) (quoting Jamie S., 668 F.3d at 504-05)).

For one, whether a given student's placement at SPDS violates the

ADA by unlawfully segregating the student or by providing unequal

educational benefits will depend on that one student's unique

disability and needs.     And whether the failure to provide SBBS is

the cause of any ADA violations will also depend on whether SBBS

would be effective for a particular child.          Yet, importantly, as

the district court explained, "the term SBBS was created for this

litigation," and does not "refer[] to a single program that has

been formally studied and found effective for students like those

in the proposed class."         S.S. II, 318 F.R.D. at 216.           On the

evidence offered by plaintiffs, then, the question -- does the

failure to provide SBBS violate the ADA? -- is likely to yield

individualized rather than common answers.              The district court




                                  - 35 -
thus did not abuse its discretion in denying class certification

for lack of commonality.

             Next, the district court held that all class members

must exhaust before forming a class, "[s]ince the members of the

proposed class may achieve a remedy through an IDEA administrative

hearing related to the claims raised here."          S.S. II, 318 F.R.D.

at 222.      We do not go so far.        Plaintiffs argue that we should

adopt a rule that no one other than the class representative is

required to exhaust.       The school system says that we should adopt

a rule that all class members must exhaust.               We decline to do

either here.

             As to the plaintiffs' argument, there are simply too

many factual variations, and the relief sought is too broad, to

say   here   that   only   the   class   representative    must   exhaust. 17

Plaintiffs do not say if any members of the putative class have

exhausted their IDEA remedies, save for S.S.         Again, the putative

class is "[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."          Surely, relevant facts




      17  Although M.W. has not exhausted, we nevertheless address
the scenario of a class representative who has exhausted because
S.S, who did exhaust, was the class representative at the time of
the district court's ruling. This moots the plaintiffs' argument
that "it would be appropriate to allow Plaintiff a reasonable
period of time to identify a different replacement class
representative" who has exhausted.


                                   - 36 -
about the affected students -- such as the type and degree of

mental    health   disability     --    differ    substantially     across   this

group, and accordingly the administrative processes and results

might differ substantially as well.              Adoption of the plaintiffs'

position that only a single class representative need exhaust

before going forward with a class action would undermine the

broader purposes of the exhaustion requirement.              We must respect,

as   a   general   matter,    "the     notion,    grounded   in    deference   to

Congress'    delegation      of   authority      to   coordinate   branches    of

Government, that agencies, not the courts, ought to have primary

responsibility for the programs that Congress has charged them to

administer."       McCarthy v. Madigan, 503 U.S. 140, 145 (1992),

superseded by statute on other grounds, as recognized in Booth v.

Churner, 532 U.S. 731, 740 (2001).               On the facts pled and the

claims made and without more, we cannot accept the argument that

only the class representative need exhaust, which would render the

exhaustion requirement nearly meaningless here.

            In several cases cited by the plaintiffs, the suits were

attempting to challenge what were characterized as a policy or

practice.    See Handberry v. Thompson, 446 F.3d 335, 343 (2d Cir.

2006) ("IDEA exhaustion in the instant case is excused under the

futility exception for challenges addressing systemic issues.");

Hoeft, 967 F.2d at 1305 (considering whether violations were "truly




                                       - 37 -
systemic"). 18      These cases do not stand for the much broader

proposition that when, as here, no common policy or practice is

plausibly challenged, only the class representative must exhaust.

Further, in Hoeft, the Ninth Circuit referred to "representative

plaintiffs," in the plural, as part of the prerequisite for "class-

wide judicial intervention."         Id. at 1309.    As to cases concerning

actions under Title VII, plaintiffs there challenged "any policy,

practice, custom or usage," Albemarle Paper Co. v. Moody, 422 U.S.

405, 408 (1975), or "employment practices," Lewis v. City of Chi.,

560   U.S.   205,    208   (2010).     Further,     Congress   had   expressly

"ratified this construction of [Title VII]" in the specific context

of the award of backpay to a class member who had not exhausted.

Albemarle Paper, 422 U.S. at 414 n.8.         Albemarle did not create a

general rule for all class actions, across all statutory contexts;

the plaintiffs read this case far too broadly.

             Our approach is similar to that of the Tenth Circuit in

Association for Community Living in Colorado v. Romer, 992 F.2d

1040 (10th Cir. 1993), which the plaintiffs cite.               "[W]e do not

hold that every plaintiff in a class action must exhaust the IDEA's




      18  The same is true for the published district court cases
cited by the plaintiffs, which they acknowledge address systemic
issues. See T.R. v. Sch. Dist. of Phila., 223 F. Supp. 3d 321,
330 n.7 (E.D. Pa. 2016) (addressing "systemic deficiencies");
L.M.P. ex rel. E.P. v. Sch. Bd. of Broward Cty., Fla., 516 F. Supp.
2d 1294, 1300 (S.D. Fla. 2007) (addressing alleged "systemic
violations").


                                     - 38 -
administrative remedies" in every conceivable IDEA case.                 Id. at

1045 (emphasis added).       Perhaps in some cases, exhaustion of some

number of truly representative claims would suffice for a class

action to go forward, presuming the other requirements for class

certification were met.        And we think it possible that, on a

particular set of facts and claims, all class members would indeed

have to exhaust.     Here, the plaintiffs do not offer us any argument

in   this   area    except   that    it    suffices   for   a   single    class

representative to exhaust.          Accordingly, we deem as waived any

argument about the greater-than-one number and the type(s) of class

members who would need to exhaust for a proper class action on

these facts.       See Landrau–Romero v. Banco Popular de P.R., 212

F.3d 607, 616 (1st Cir. 2000) ("It is well settled that arguments

not raised in an appellant's initial brief are waived.").                We need

not venture further into this area, then, as we decide only the

case and arguments in front of us.          Our conclusion that exhaustion

by a single plaintiff does not suffice here supports our holding

on the denial of class certification.

                                      V.

            We now turn to the appeals from the district court's

order granting judgment on the pleadings for Springfield and SPS

on DLC and PPAL's claims.           Recall that the district court held

that DLC and PPL have standing but dismissed their claims for

failure to exhaust.      See S.S. III, 332 F. Supp. 3d at 370.              Our


                                    - 39 -
review of the district court's order is de novo.          See Doe v. Brown

Univ., 896 F.3d 127, 130 (1st Cir. 2018).          We must rely only on

the facts in the complaint and view those in the light most

favorable to the plaintiffs.      See id.

            PPAL and DLC seek to bring this suit on behalf of "PPAL

and DLC constituents," whom the complaint alleges are harmed in

the same ways as S.S. and the proposed "Plaintiff class."                 The

complaint    alleges   that     all   children     with     mental    health

disabilities are PPAL's constituents and that all individuals with

mental illnesses are DLC's constituents.          PPAL and DLC thus seek

to sue on behalf of a group of students coextensive with the

proposed class (although their constituent groups are far broader

than that purported class).19     We affirm the district court's grant

of judgment on the pleadings for defendants on the ground that

PPAL and DLC lack standing.

            To   establish    standing    under   Article     III    of   the

Constitution, a plaintiff must show injury that can be fairly

traced to the challenged conduct and that is likely to be redressed

by a favorable decision.      See, e.g., Mangual v. Rotger-Sabat, 317

F.3d 45, 56 (1st Cir. 2003).          These requirements ensure that

plaintiffs have a stake in the outcome that is sufficiently




     19   We do not engage in an analysis of whether there are any
possible divergent interests among the constituents which might
undermine standing.


                                 - 40 -
concrete   and    personal   to     maintain     a    justiciable    case    or

controversy.     See, e.g., Lujan v. Defenders of Wildlife, 504 U.S.

555, 559-60 (1992).

           "Even in the absence of injury to itself, an association

may have standing solely as the representative of its members."

Warth v. Seldin, 422 U.S. 490, 511 (1975).                In such a suit, to

satisfy the Constitution's requirements, the association must show

that its members have an injury "that would make out a justiciable

case had the members brought suit."          Id.; see also United Food &

Commercial Workers Union v. Brown Grp., Inc., 517 U.S. 544, 555–

56   (1996)    (discussing    the     constitutional       nature    of     this

requirement).     But the inquiry does not end there.               Prudential

concerns often bar a third party from suing on behalf of others

who choose not to sue.20     See, e.g., United Food, 517 U.S. at 556;

Flast v. Cohen, 392 U.S. 83, 99 n.20 (1968) ("[A] litigant will

ordinarily not be permitted to assert the rights of absent third

parties.").       Representative      standing       is   inappropriate     for

prudential reasons, for example, if "the nature of the claim and


     20   Although the Supreme Court has said that certain
prudential standing doctrines may be "in some tension with . . .
the principle that a federal court's obligation to hear and decide
cases within its jurisdiction is virtually unflagging," Lexmark
Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126
(2014) (internal quotation marks omitted) (revising the "zone of
interests" test and bar on "generalized grievances"), the Court's
cases discussing the prudential limits on third-party suits remain
good law.



                                    - 41 -
of the relief sought" requires the participation of individual

members.       Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333,

343 (1977).

               The    defendants     do    not     dispute     that   two   students

identified in the complaint, S.S. and N.D., are constituents of

PPAL and DLC who would have individual standing were they to bring

suit.        The defendants argue that this showing is insufficient to

satisfy the Constitution's minimum requirements because PPAL and

DLC are constituent-based organizations, rather than associations

made up of members who have control over governance. 21                         Even

assuming       that   DLC   and    PPAL    can     show   a   justiciable   case   or

controversy, they cannot bring suit for the prudential reasons we

are about to outline.

               As a general prudential matter, the failure to exhaust

by members of the proposed class (i.e., those students who had not

gone through the IDEA's administrative procedures) cuts against

standing for both DLC and PPAL.               Hundreds of students cannot sue




        21We need not resolve this argument by defendants.      We
note nonetheless that other circuits have rejected this argument
as to P & As like DLC, based on statutorily mandated structural
and governance features of P & As. See Or. Advocacy Ctr. v. Mink,
322 F.3d 1101, 1111-13 (9th Cir. 2003); Doe v. Stincer, 175 F.3d
879, 885-86 (11th Cir. 1999). Further, PPAL fails to plead in the
complaint that it has similar features. See Disability Advocates,
Inc. v. N.Y. Coal. for Quality Assisted Living, Inc., 675 F.3d
149, 159 (2d Cir. 2012) (concluding that the record did not
plausibly allege that an organization could be deemed a membership
organization for standing purposes).


                                          - 42 -
individually here without IDEA exhaustion, as we have explained

above, and so there is no clear reason why the organizations should

be   able   to    essentially      press   those   students'      claims   in   the

aggregate without that exhaustion.              Put another way, it would not

make sense to allow the organizations here to escape the exhaustion

requirement for the students they are purportedly representing.

Otherwise, associational standing in this type of suit would be

inconsistent with the Congressional requirement of exhaustion in

the IDEA, 20 U.S.C. § 1415(l), and indeed an easy way to circumvent

it, which we have cautioned against in a range of contexts, see,

e.g., Roman-Martinez v. Runyon, 100 F.3d 213, 220 (1st Cir. 1996)

("To   hold    otherwise     would   allow      appellant   to   circumvent     the

exhaustion requirement . . . .").               After all, in associational

standing    we    consider    in   part    "administrative       convenience    and

efficiency," which could be undercut in allowing organizations to

make an end run around the IDEA's exhaustion requirement in a case

like this.       United Food, 517 U.S. at 557.

              We continue with DLC in particular.                "[C]ongress may

abrogate"     prudential     "impediment[s]"       to   representative      suits.

United Food, 517 U.S. at 558.                And the plaintiffs argue that

Congress has done so here for DLC.              In PAIMI, Congress authorized

P & As   like     DLC   to   "pursue    administrative,     legal,    and    other

appropriate remedies to ensure the protection of individuals with

mental illness."        42 U.S.C. § 10805(a)(1)(B).          By authorizing it


                                       - 43 -
to sue on behalf of people with mental illness, DLC says, Congress

removed all prudential barriers to suits, including this one, that

DLC might bring on behalf of its constituents.                We disagree.

                   We do not see in the text of this statute any indication

that Congress abrogated consideration of the prudential concerns

present here or that Congress meant to authorize DLC to bring this

particular type of suit.              See Mo. Prot. & Advocacy Servs., Inc.

v. Carnahan, 499 F.3d 803, 810 n.7 (8th Cir. 2007) ("Congress has

not     abrogated        prudential     standing   requirements     by    expressly

authorizing this type of global challenge to [public] programs

absent        the     participation     of   individuals   seeking    redress    of

specific injuries.").             As discussed, DLC seeks to sue on behalf

of hundreds of children who have not chosen to sue or even to

pursue related administrative remedies.                The complaint, as we have

explained in our analysis of exhaustion and commonality, concerns

multiple facets of each child's special education program.                      The

suit thus raises concerns about representativeness.                  And, in its

scale        and    complexity,   the   suit   poses   challenges    of    judicial

administration and efficiency not present in more run-of-the-mill

proceedings that Congress might have envisioned. 22                      See United


        22We agree that there are suits DLC can bring on behalf of
individuals with mental illness; we hold, more narrowly, that this
is not such a suit. Another provision buttresses this conclusion
about Congress's intent. PIAMI further requires that "[p]rior to
instituting any legal action in a Federal or State court on behalf



                                         - 44 -
Food,    517     U.S.    at   557    (explaining         that   prudential     bars   to

representative standing sound in "administrative convenience and

efficiency").

               Chief     among   these      are    problems       of   "individualized

proof."        Int'l Union, UAW v. Brock, 477 U.S. 274, 287 (1986)

(quoting Warth, 422 U.S. at 515-16); see also Bano v. Union Carbide

Corp.,    361     F.3d    696,      714   (2d     Cir.   2004)     (stating    that   an

"organization lacks standing to assert claims of injunctive relief

on behalf of its [constituents] where 'the fact and extent' of the

injury that gives rise to the claims for injunctive relief 'would

require individualized proof'" (quoting Warth, 422 U.S. at 515-

16)).     For the reasons discussed in detail in the commonality

section, adjudication of the claims here would turn on facts

specific    to    each     student,       including      unique    features    of   each

student's      unique     disability,       needs,       services,     and   placement.

Efficient and successful judicial resolution of the claims would

thus require participation and cooperation by numerous students




of an individual with mental illness, an eligible [P & A] . . .
shall exhaust in a timely manner all administrative remedies where
appropriate." 42 U.S.C. § 10807(a). This provision contemplates
suits on behalf of "an individual with mental illness." And this
exhaustion requirement, phrased as it is in individual terms, would
be incompatible with authorizing P & As to bring suits like this
one on behalf of hundreds of individuals. That is especially true
given that, as we have already explained, this suit is subject to
the IDEA's exhaustion requirement.


                                          - 45 -
and parents.      And, as we stated, representative standing is

inappropriate where such participation is necessary.

             PAIMI's text does not authorize DLC to bring claims of

this scale and complexity on behalf of hundreds of constituents.

The same prudential considerations just outlined bar PPAL, which

does not claim congressional authorization to sue, from bringing

this suit.

                                 VI.

             Affirmed.




                                - 46 -
