seek relief for future class members in the form of a preliminary injunction.
Because the class membership is revolving rendering joinder impracticable, and because plaintiffs' claims would not otherwise be heard, the undersigned finds that the numerosity requirements of Rule 23(a)(1) are satisfied.
Rule 23(a)(2) requires that there be questions of law or fact common to the class. Named plaintiffs have suffered from a delay in the evaluation for, recommendation for, and/or provision of, preschool special education services. Additionally, named plaintiffs have suffered from the defendants' failure to timely provide evaluations in their dominant languages by an appropriately licensed clinician and to implement the CPSE's recommendations. Finally, named plaintiffs have suffered by defendants' failure to consider, recommend, and/or provide special education services in the least restrictive environment. Together, these comprise the common questions of fact.
Defendants assert that the proposed additions to the class raise student specific issues. Plaintiffs allege system-wide failures in the evaluation and placement of students. Defendants overlook the systemic nature of the problems plaintiffs seek to cure. This suit is brought to challenge the practices and policies of the defendants, and to determine whether or not defendants' actions are in violation of state and federal law -- the common question of law.
For the foregoing reasons, it is the finding of this court that the plaintiffs in the expanded class share common questions of law and of fact. Accordingly, the undersigned finds that plaintiffs have met their burden under Rule 23(a)(2).
Rule 23(a)(3) requires that the claims and defenses of the named plaintiffs be typical of those of the class as a whole. The typicality requirement is met if the representative party's claim "'arises from the same event or course of conduct that gives rise to the claims of other class members and is based on the same legal theory.'" Stieberger v. Sullivan, 738 F. Supp. 716, 731 (S.D.N.Y. 1990) (quoting Paskel v. Heckler, 99 F.R.D. 80, 83 (E.D. Pa. 1983).
Here, plaintiffs are entitled to a free preschool special education under IDEA and NYEL. Plaintiffs claim that they have been deprived of this statutory right. While the specific disabilities of the named plaintiffs are different -- each disabled child is unquestionably unique -- it is the finding of this court that the named plaintiffs are sufficiently typical of the expanded class. See, e.g., Robidoux, 987 F.2d at 937 (minor variations in fact patterns underlying individual claims are irrelevant if named plaintiff and the class are affected by the same unlawful conduct).
Accordingly, plaintiffs have satisfied the requirements of Rule 23(a)(3).
4. Adequacy of Representation
Rule 23(a)(4) requires that class representatives fairly and adequately represent the interests of the class. The Second Circuit has instructed that this requirement comprises two separate inquiries: whether the representative parties' attorneys are qualified, experienced, and generally able to conduct the litigation; and whether there is a actual or potential conflict of interest between the representative parties and the remainder of the class. See Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968).
This court is fully familiar with the unimpeachable qualifications, ability, and experience of plaintiffs' counsel. Nor do defendants attack this prong of the inquiry. Rather, defendants contend that two of plaintiffs' attorneys, Mr. Maldonado (Teitelbaum, Hiller, Rodman, Paden & Hibsher) and Ms. Autin (Advocates for Children), have a potential conflict of interest in that they are counsel in Jose P. v. Sobel, 79 CV 270 (EHN), an ongoing class action before this court on similar issues relating to special education students in New York ages 6 - 21. Defendants claim that the class certified in Jose P. and the Ray M. class will be vying for the same limited pool of resources and that this presents a potential conflict.
In its June 17, 1994 report and recommendation, this court found that this potential conflict could be cured by submission of affidavits from the parents of the named plaintiffs acknowledging and waiving potential conflict. Affidavits have been procured from the parents of six of the seven named plaintiffs.
Defendants have deposed three of the six parents who have submitted affidavits, and argue that the affiants do not understand what they have signed. This court disagrees. It is the finding of this court that the submitted affidavits sufficiently dispel defendants' conflict concerns to allow certification to proceed. Defendants' arguments are further undermined by the fact that not every member of the plaintiffs' team labors under this potential conflict. However, if appropriate, defendants may challenge Mr. Maldonado and Ms. Autin's presence on the plaintiffs' team when and if that becomes an issue.
The class currently being considered for certification has no actual or potential conflict between the named plaintiffs and the remainder of the class. Accordingly, this court finds that plaintiffs have met their burden as to the second prong of Rule 23(a)(4).
Having found that all four requirements of Rule 23(a) of the Federal Rules of Civil Procedure have been met, the court turns its attention to the requirements of Rule 23(b). To certify a class the court must find that the proposed class meets the conditions of one of the subsections of Rule 23(b).
5. Rule 23(b)(2)
Plaintiffs maintain that they satisfy the requirements of Rule 23(b)(2):
the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
This court finds that plaintiffs' allegations are consistent with the requirements of Rule 23(b)(2). Specifically, if plaintiffs are able to substantiate their allegations that defendants have consistently failed to comply with statutory requirements under IDEA and NYEL, declaratory and injunctive relief are appropriate remedies. See, e.g., Andre H., 104 F.R.D. 606, 612 (S.D.N.Y. 1985) (injunctive relief is an appropriate remedy if, as alleged, defendants "failed to develop and implement policies and procedures to ensure that class members receive individualized education programs and a free appropriate education"). Accordingly, the undersigned finds that plaintiffs have satisfied the requirements of Rule 23(b)(2).
In a final effort to prevent certification, defendants raise the argument of mootness. In particular, defendants claim that as time progresses and the named plaintiffs age out of the class, or receive appropriate services, the question may arise whether they can still act as class representatives. The Supreme Court has ruled on this issue several times and has explicitly held that in class actions where the membership is transitory and a defendant has the power to moot out a named plaintiff's claim, mootness will not disqualify that plaintiff from serving as a class representative. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 399-404, 63 L. Ed. 2d 479, 100 S. Ct. 1202 (1980); Gerstein v. Pugh, 420 U.S. 103, 110 n.11, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975); Sosna v. Iowa, 419 U.S. 393, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975).
Here, plaintiffs' claims are inherently transitory; plaintiffs will either age out of the class or receive services before relief can be obtained through litigation. See, e.g., Robidoux, 987 F.2d at 939. Accordingly, any present or future issue of mootness does not bar the named plaintiffs from serving as class representatives.
Having found that the plaintiffs meet the requirements for certification under Rule 23, this court respectfully recommended that the following additions be made to the previously certified class:
A) All disabled preschool students living in New York City, ages three through five, who are limited English proficient and who have been or will be referred to the Committee on Preschool Education for a determination as to whether they require special education services and for whom defendants failed to timely provide (i) an evaluation in the student's dominant language by appropriately licensed clinicians; and/or (ii) special education services recommended by the Committee on Preschool Education on the Individualized Education Program and provided by appropriately licensed and trained professionals; and
B) All disabled preschool students living in New York City, ages three through five, who have been or will be referred to the Committee on Preschool Education for a determination as to whether they require special education services and for whom defendants failed to consider, recommend and/or provide special education services in the least restrictive environment. (Emphasis indicates new language.)