T.R. v. School District of Philadelphi

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_______________________

No. 20-2084
_______________________

T.R., a minor, individually, by and through her parent,
Barbara Galarza, and on behalf of all others similarly
situated; BARBARA GALARZA, individually, and on behalf
of all others similarly situated; A.G., a minor, individually, by
and through his parent, Margarita Peralta, and on behalf of all
others similarly situated; MARGARITA PERALTA,
individually, and on behalf of all others similarly situated;
L.R.; D.R., a minor, individually, by and through her parent,
Madeline Perez, and on behalf of all others similarly situated;
J.R.; MADELINE PEREZ, individually, and on behalf of all
others similarly situated; R.H., a minor, individually, by and
through his parent, Manqing Lin, and on behalf of all others
similarly situated; MANQING LIN, individually, and on
behalf of all others similarly situated

v.

SCHOOL DISTRICT OF PHILADELPHIA

L.R., D.R. and their mother, Madeline Perez, and R.H. and
 his mother Manqing Lin,
Appellants
_______________________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-15-cv-04782
District Judge: The Honorable Mitchell S. Goldberg
__________________________

Argued January 20, 2021

Before: SMITH, Chief Judge, HARDIMAN and ROTH,
Circuit Judges

(Filed July 9, 2021)

Chanda A. Miller
Paul H. Saint-Antoine [ARGUED]
FAEGRE DRINKER BIDDLE & REATH
One Logan Square
Suite 2000
Philadelphia, PA 19103

Michael Churchill
Claudia De Palma
PUBLIC INTEREST LAW CENTER OF PHILADELPHIA
1500 John F. Kennedy Boulevard
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Two Penn Center, Suite 802
Philadelphia, PA 19103

Maura I. McInerney
Margaret M. Wakelin
EDUCATION LAW CENTER
1800 John F. Kennedy Boulevard
Suite 1900
Philadelphia, PA 19103
Counsel for Appellants

Danielle M. Goebel [ARGUED]
Katherine V. Hartman
Marjorie M. Obod [ARGUED]
DILWORTH PAXSON
1500 Market Street
Suite 3500 E
Philadelphia, PA 19103
Counsel for Appellee

Richard Salgado
JONES DAY
2727 North Harwood Street
Dallas, TX 75201

Carter G. Phillips
SIDLEY AUSTIN
1501 K Street, N.W.
Washington, D.C. 20005
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Catherine M. Reisman
REISMAN CAROLLA GRAN & ZUBA
19 Chestnut Street
Haddonfield, NJ 08033

Ellen M. Saideman
7 Henry Drive
Barrington, RI 02806
Counsel for Amici Appellants

__________________________

OPINION OF THE COURT
________________________

SMITH, Chief Judge.

Appellant-Plaintiffs brought a putative class action against
the School District of Philadelphia claiming shortcomings in
the School District’s translation and interpretation services that
purportedly amount to a violation of the Individuals with
Disabilities Education Act (“IDEA”). The IDEA seeks to
ensure that the unique needs of each child in special education
are provided for in accordance with individualized education
plans. Plaintiffs appeal both an order denying their class
certification motion and a summary judgment order wherein
the District Court declined to find that Plaintiffs met a systemic
exception to IDEA’s administrative exhaustion requirement.
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For the reasons set forth below, we will affirm.

I. INDIVIDUALS WITH DISABILITIES EDUCATION ACT

A. Procedural Safeguards

The Individuals with Disabilities Education Act, 20 U.S.C.
§ 1400 et seq., is a statute that offers federal funding to States
for the education of children with disabilities. See, e.g.,
Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1,
137 S. Ct. 988, 993 (2017). “In exchange for the funds, a State
pledges to comply with a number of statutory conditions.” Id.
The primary condition is that the participating State provide a
“free appropriate public education,” or “FAPE,” to all eligible
children. Id. (citing § 1412(a)(1)). The IDEA does not
mandate what a FAPE must substantively include beyond a
few basic minima, most obviously that the education be
provided under public supervision and without charge. See
§ 1401(9)(A) (partial definition of FAPE). The substance of a
FAPE is primarily defined to be such “special education and
related services” that “are provided in conformity with [a
child’s] individualized education program,” or “IEP.”
§ 1401(9)(D); see also § 1414(d)(1)(A) (defining IEP);
§ 1401(29) (defining special education); Fry v. Napoleon
Cmty. Schs., 137 S. Ct. 743, 749 (2017) (apologizing for this
“acronymic world”).

The IEP is the “centerpiece” of the IDEA and the “primary
vehicle” for implementing the congressional policy underlying
the Act. Honig v. Doe, 484 U.S. 305, 311 (1988). An “IEP
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documents the child’s current ‘levels of academic
achievement,’ specifies ‘measurable annual goals’ for how she
can ‘make progress in the general education curriculum,’ and
lists the ‘special education and related services’ to be provided
so that she can ‘advance appropriately toward [those] goals.’”
Fry, 137 S. Ct. at 749 (alteration in original) (quoting
§ 1414(d)(1)(A)(i)(I), (II), (IV)(aa)). In requiring
individualized education programs, the “IDEA operates from
the premise that each child will have unique disabilities and
presumes that each program will be personalized.” Blackman
v. District of Columbia, 633 F.3d 1088, 1094 (D.C. Cir. 2011)
(Brown, J., concurring). Reinforcing the personalized nature
of special education, each child’s IEP is created by the child’s
“IEP Team,” which consists of the child’s parents, at least one
“regular education teacher” of the child (“if the child is, or may
be, participating in the regular education environment”), and
certain other persons. § 1414(d)(1)(B). “[P]arents play[] a
‘significant role’” in the process of creating an IEP.
Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524 (2007)
(quoting Schaffer v. Weast, 546 U.S. 49, 53 (2005)).

So that parents’ participation in the IEP process is assured,
the IDEA requires that state educational agencies establish
certain procedural safeguards. See 20 U.S.C. § 1415(a). One
procedural safeguard mandated by the IDEA is that an
educational agency give parents “[w]ritten prior notice”
whenever the agency proposes to change, or refuses to change,
the provisions of a child’s IEP. § 1415(b)(3); 34 C.F.R.
§ 300.503(a) (parroting statute). In Pennsylvania, this notice

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is called a Notice of Recommended Educational
Placement/Prior Written Notice (“NOREP/PWN”). This
notice must be given “in the native language of the parents,
unless it clearly is not feasible to do so.” 20 U.S.C.
§ 1415(b)(4); see also 34 C.F.R. § 300.503(c)(1)(ii) (parroting
statute).

The implementing regulations also mandate certain
procedural safeguards for parents at IEP Team meetings. “The
public agency must give the parent a copy of the child’s IEP at
no cost to the parent.” 34 C.F.R. § 300.322(f) (regulation on
“Parent participation” for IEP Team meetings). Further,
educational agencies must take “whatever action is necessary”
to allow parents to understand IEP Team meetings, “including
arranging for an interpreter.” Id. § 300.322(e). There is,
however, no regulation explicitly mandating that IEPs or draft
IEPs be translated into the parent’s native language.

These procedural safeguards would, of course, be of limited
value if parents were unaware of the rights that the safeguards
afford. So the IDEA requires that an explanation and copy of
the procedural safeguards be given to parents at least once a
year. 20 U.S.C. § 1415(d)(1)(A); 34 C.F.R. § 300.504(a). In
Pennsylvania, this explanation is called the Procedural
Safeguards Notice. The explanation and copy of the
procedural safeguards must be provided in the parent’s native
language “unless it clearly is not feasible to do so.” 20 U.S.C.
§ 1415(d)(2); 34 C.F.R. § 300.504(d).

“[T]he importance Congress attached to these procedural
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safeguards cannot be gainsaid. . . . Congress placed every bit
as much emphasis upon compliance with procedures giving
parents and guardians a large measure of participation . . . as it
did upon the measurement of the resulting IEP against a
substantive standard.” Bd. of Educ. v. Rowley, 458 U.S. 176,
205–06 (1982); see also, e.g., H.E. v. Walter D. Palmer
Leadership Learning Partners Charter Sch., 873 F.3d 406, 413
(3d Cir. 2017) (holding that vindication of procedural rights
under IDEA makes a party a prevailing party for purpose of
attorneys’ fees). However, the IDEA provides relief only for
the denial of a FAPE, not for the denial of a procedural right.
Cf. Fry, 137 S. Ct. at 755 (“[T]he only relief the IDEA makes
available is relief for the denial of a FAPE.” (internal
quotations omitted)).

Congress addressed this oddity in a 2004 amendment to the
IDEA which provides that a procedural violation can rise to the
level of a deprivation of a FAPE when the procedural violation
either:

(I) impeded the child’s right to a free appropriate
public education;

(II) significantly impeded the parents’
opportunity to participate in the decisionmaking
process regarding the provision of a free
appropriate public education to the parents’
child; or

(III) caused a deprivation of educational benefits.
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Pub. L. No. 108-446, sec. 101, § 615(f)(3)(E)(ii), 118 Stat.
2647, 2722 (2004) (codified at 20 U.S.C. § 1415(f)(3)(E)(ii));
34 C.F.R. § 300.513(a)(2) (parroting statute); see, e.g., C.H. v.
Cape Henlopen Sch. Dist., 606 F.3d 59, 66–67 (3d Cir. 2010);
see also Jon Romberg, The Means Justify the Ends: Structural
Due Process in Special Education Law, 48 Harv. J. on Legis.
415, 439–42 (2011) (describing history of § 1415(f)(3)(E)). As
shorthand, we will refer to the second type of procedural
violation as a denial of a parent’s right to “meaningful
participation.” Cf., e.g., 20 U.S.C. § 1400(c)(5)(B) (finding of
Congress that “the education of children with disabilities can
be made more effective by . . . ensuring that families . . . have
meaningful opportunities to participate”); D.S. v. Bayonne Bd.
of Educ., 602 F.3d 553, 565 (3d Cir. 2010) (finding no
actionable procedural violation because parents “had an
opportunity to participate meaningfully in the creation of an
IEP”).

B. Administrative Exhaustion Requirement

The IDEA establishes a detailed administrative mechanism
for resolving disputes about whether an educational agency has
complied with the IDEA. See 20 U.S.C. § 1415. This
mechanism includes procedures for the filing of complaints
(see § 1415(b)(6)–(7)), mediation (§ 1415(e)), impartial due
process hearings conducted by a hearing officer (§ 1415(f)),
and appeals of hearing officer findings to the state educational
agency (§ 1415(g)). The IDEA also provides that after these
administrative proceedings have concluded, an aggrieved party
may bring a civil action in a state court or United States district
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court. § 1415(i)(2). This detailed statutory regime makes it
“clear . . . that Congress intended plaintiffs to complete the
administrative process before resorting to federal court.”
Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775,
778 (3d Cir. 1994) (citing Smith v. Robinson, 468 U.S. 992,
1011–12 (1984)).

Despite the IDEA’s administrative exhaustion requirement,
our Court has acknowledged that a plaintiff’s failure to exhaust
may be excused “where: (1) exhaustion would be futile or
inadequate; (2) the issue presented is purely a legal question;
(3) the administrative agency cannot grant relief; [or] (4)
exhaustion would cause severe or irreparable harm.” D.E. v.
Cent. Dauphin Sch. Dist., 765 F.3d 260, 275 (3d Cir. 2014)
(citing Komninos, 13 F.3d at 778) (analyzing futility
exception). “Absent the existence of any of those exceptions,
failure to exhaust will deprive a federal court of subject matter
jurisdiction.” Id. We have also stated that exhaustion is not
required where plaintiffs “allege systemic legal deficiencies
and, correspondingly, request system-wide relief that cannot be
provided (or even addressed) through the administrative
process.” Beth V. by Yvonne V. v. Carroll, 87 F.3d 80, 89 (3d
Cir. 1996). Yet we have suggested that this exception—we
will call it the “systemic exception”—“merely flows implicitly
from, or is in fact subsumed by, the futility and no-
administrative-relief exceptions.” Id. (remanding to district
court to determine whether plaintiffs’ claim fell within any
recognized exception to exhaustion).

The reach of IDEA’s exhaustion requirement extends
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beyond claims brought under the IDEA. Section 1415(l)
requires administrative exhaustion of any claims that “seek[]
relief that is also available” under the IDEA. 20 U.S.C.
§ 1415(l). Of course, the IDEA is not the only statute
protecting the interests of schoolchildren with disabilities and
their parents. See Fry, 137 S. Ct. at 749. For example, Title II
of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12131 et seq., forbids any “public entity” from
discriminating on the basis of disability and “requires a public
entity to make ‘reasonable modifications’ to its ‘policies,
practices, or procedures’ to avoid such discrimination.” Fry,
137 S. Ct. at 749 (quoting 28 C.F.R. § 35.130(b)(7)). Section
504 of the Rehabilitation Act, 29 U.S.C. § 794, provides
similar protections. Id. The Equal Educational Opportunities
Act (“EEOA”) requires state educational agencies to “take
appropriate action to overcome language barriers that impede
equal participation by its students.” 20 U.S.C. § 1703(f). And
Title VI of the Civil Rights Act of 1964 prohibits
discrimination on the basis of national origin in federally
funded programs. See 42 U.S.C. § 2000d.

A central exhaustion question then is how to determine
whether a non-IDEA claim “seek[s] relief that is also
available” under the IDEA. In Fry, the Supreme Court held
that “a court should look to the substance, or gravamen of the
plaintiff’s complaint.” 137 S. Ct. at 752. As to how a court
should determine whether the gravamen of a complaint
concerns the denial of a FAPE, the Supreme Court provided
“[o]ne clue”—consisting of two counterfactual questions—

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and one “sign.” Id. at 756. The two questions are:

First, could the plaintiff have brought essentially
the same claim if the alleged conduct had
occurred at a public facility that was not a
school—say, a public theater or library? And
second, could an adult at the school—say, an
employee or visitor—have pressed essentially
the same grievance?

Id. (“When the answer to those questions is yes, a complaint”
is likely not for the denial of FAPE). The “sign” that the
gravamen of a complaint concerns the denial of a FAPE will
appear in the procedural history: “A plaintiff’s initial choice to
pursue [the administrative] process may suggest that she is
indeed seeking relief for the denial of a FAPE—with the shift
to judicial proceedings prior to full exhaustion reflecting only
strategic calculations about how to maximize the prospect of
such a remedy.” Id.; see also Wellman v. Butler Area Sch.
Dist., 877 F.3d 125, 131–36 (3d Cir. 2017) (applying Fry
framework).

II. BACKGROUND FACTS AND PROCEDURAL HISTORY

Because we are reviewing the District Court’s grant of
summary judgment in favor of the School District, we examine
the factual background, drawn from evidence in the record, in
the light most favorable to Plaintiffs. See, e.g., Matheis v. CSL
Plasma, Inc., 936 F.3d 171, 176 (3d Cir. 2019).

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 A. The School District of Philadelphia

The School District of Philadelphia oversees hundreds of
public schools providing educational programs to hundreds of
thousands of enrolled students. Given the size and diversity of
such enrollment, there are, unsurprisingly, some enrolled
students within the School District—and parents of enrolled
students—who have limited English proficiency (“LEP”),
meaning English is not their primary language so that they
have a “limited ability to read, write, speak, or understand
English.” T.R. v. Sch. Dist. of Phila. (Class Cert. Op.), No. 15-
cv-04782, 2019 WL 1745737, at *8 (E.D. Pa. Apr. 18, 2019)
(citing, inter alia, Guidance to Federal Financial Assistance
Recipients Regarding Title VI Prohibition Against National
Origin Discrimination Affecting Limited English Proficient
Persons, 67 Fed. Reg. 41455, 41457 (June 18, 2002)). School
District records from 2013 show that there were approximately
25,900 families of enrolled students whose primary home
language was not English and 19,670 families who had
expressly requested documents from the School District in a
language other than English. Id. at *1.

The School District’s Office of Family and Community
Engagement (“FACE”) provides translation and interpretation
services to support LEP parents. See T.R. v. Sch. Dist. of Phila.
(Summary Judgment Op.), 458 F. Supp. 3d 274, 279 (E.D. Pa.
2020). Some general, standard documents—like the School
District’s attendance policy—are translated into common
languages and made publicly available on the school’s website.
At the school level, School District employees can request that
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translation or interpretation services be provided by a Bilingual
Counseling Assistant (“BCA”), either through FACE or
directly from a BCA. Employees can have a BCA translate
day-to-day communications, like permission slips, or have a
BCA provide live interpretation at meetings, like report card
conferences. However, “the demand for interpreters often
exceeds the number of staff available” so that “not all
employee requests for translation are fulfilled.” Id. School
District employees can also call and request interpretation
services from the Language Line—a telephonic interpretation
service.

Translation and interpretation services are necessary to
support LEP parents of enrolled students with disabilities. As
of November 2013, the School District reported that 1,500 LEP
students were receiving special education and that there were
1,887 students with IEPs whose primary home language was
something other than English. Class Cert. Op., 2019 WL
1745737, at *10. Records also indicated that in the 2015–2016
and 2016–2017 school years there were, respectively, 3,507
and 3,782 special education students whose primary home
language was not English. Id.

B. Plaintiffs

In August 2015, Margarita Peralta and her ward, A.G, and
Barbara Galarza and her child, T.R.—the Original Plaintiffs—
filed a complaint against the School District. Importantly,
A.G. and T.R. had exhausted administrative remedies and
received decisions from a due process hearing officer. After
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the hearing officer had found that Ms. Peralta and Ms. Galarza
were each “denied meaningful parental participation,” he
awarded compensatory education to A.G. and T.R. In their
District Court complaint, Original Plaintiffs sought additional
declaratory and injunctive relief against the School District as
described infra Section II.C.

In April 2017, Original Plaintiffs amended the complaint to
include additional plaintiffs—Madeline Perez and her children
and Manqing Lin and her child. Subsequently, Original
Plaintiffs dismissed their claims against the School District
with prejudice, leaving only the plaintiff-appellants who bring
this appeal. We will summarize the pertinent facts relating to
these remaining Plaintiffs.

1. Madeline Perez and her children, L.R. and D.R.

Madeline Perez is the mother of three children with
disabilities, two of whom are still named plaintiffs in this
case—L.R. and D.R. Ms. Perez is LEP and speaks Spanish.
“[W]hile there have been issues as to which Ms. Perez and the
District collaborated [regarding the appropriate placements
and service for her children], there have also been many
occasions on which Ms. Perez has not fully understood
educational issues relating to her children due to lack of
adequate interpretation services.” JA13841 (Plaintiffs’
Response to School District’s Statement of Undisputed Facts
¶ 41). Ms. Perez believes she would “be able to contribute

1
Citations preceded by “JA” are to the parties’ Joint Appendix.
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more fully [at IEP Team Meetings] if she received translated
IEPs” and other documents. Id. (¶ 40).

As to the claims in the operative complaint, Ms. Perez and
her children have not exhausted their administrative remedies.

2. Manqing Lin and her child, R.H.

Manqing Lin is the mother of one child with disabilities in
the School District—R.H. “Although Ms. Lin is able to
understand and speak some English words, she has limited
English proficiency and speaks only Mandarin at home with
R.H.’s father and their children.” JA1399 (Plaintiffs’
Statement of Additional Facts ¶ 64). Ms. Lin has provided
input and changes to R.H.’s IEP. However, her ability to
provide input at IEP Team meetings is hampered by the fact
that the School District does not provide her with translated
draft IEPs or other IEP-related documents before meetings.

Prior to joining this litigation, Ms. Lin requested mediation
through Pennsylvania’s Office for Dispute Resolution and
ultimately reached an agreement with the School District. In
that mediation agreement, the School District agreed to provide
translated final IEPs and some IEP-related evaluation reports.
The School District also “provides Ms. Lin with access to a
BCA and the school’s Special Education Liaison to review the
draft documents in advance of the [IEP Team] meetings,” but,
even after the IEP Team meetings, Ms. Lin remained unable to
fully understand the reports on R.H. provided by the School
District, partly because the interpreter did not understand
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special education terminology. JA1379–80 (Plaintiffs’
Response to School District’s Statement of Undisputed Facts
¶ 33).

Like Ms. Perez and her children, Ms. Lin and R.H. have not
exhausted their administrative remedies.

C. Complaint and Motion to Dismiss

The operative complaint is styled as a “Class Action
Complaint” brought by the Plaintiffs on behalf of all similarly
situated individuals.2 It contains seven counts, six of which are
before us.3 Count One alleges a violation of the IDEA for
“Failure to Provide Meaningful Parental and Student
Participation.” JA355. Counts Three through Five allege
violations of other federal statutes—the Rehabilitation Act,
ADA, EEOA, and Title VI of the Civil Rights Act—and a
chapter of the Pennsylvania Code. The remaining counts
allege violations of chapters of the Pennsylvania Code for
failure to completely and timely translate certain “IEP process
documents,” including IEPs, NOREP/PWNs, and Procedural
Safeguard Notices (Count Six), and “regular education forms”

2
Two classes are defined: the “Parent Class” consisting of all
LEP parents of children with disabilities who are now or in the
future will be enrolled in the School District, and the “Student
Class” consisting of all the children of such parents regardless
of the child’s English proficiency. JA1154–55 (Motion for
Class Certification).
3
Count Two was voluntarily dismissed with prejudice.
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(Count Seven). JA362–63.

The complaint alleges that the School District “has adopted
a systemic policy of failing to provide sufficient interpretation
services and to timely and completely translate IEP process
documents and regular education forms.” JA343–44 (Compl.
¶ 60). While the complaint acknowledges that the School
District has provided some translation services at IEP Team
meetings, it asserts that the School District’s “incomplete,
inconsistent effort has not and cannot facilitate the requisite
meaningful parent participation.” JA345 (Compl. ¶ 67).

As for relief, the complaint requests, inter alia, that the
District Court “Order that the [School] District adopt and
implement a new written special education plan and [School]
District policy to provide legally mandated translation and
sufficient interpretation services to members” of the classes
and “Order that the [School] District timely translate and
deliver all IEP process documents to all members of the Parent
Class and the Student Class as needed in the appropriate native
language in advance of IEP meetings to ensure meaningful
participation.” JA363. The Plaintiffs do not seek
individualized damages or remedies for L.R., D.R., or R.H.

The School District moved to dismiss the original
complaint—while T.R. and A.G. were still plaintiffs—under
Federal Rule of Civil Procedure 12(b)(1), arguing that absent
class members failed to exhaust administrative remedies.4 The

4
The School District also sought dismissal under Rule 12(b)(6)
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School District posited that the putative class members were
not excused from the IDEA’s exhaustion requirement “because
the Complaint does not adequately allege a systemic legal
deficiency.” T.R. v. Sch. Dist. of Phila., 223 F. Supp. 3d 321,
329 (E.D. Pa. 2016). The District Court rejected that argument
and denied the motion to dismiss, concluding that the
complaint alleges a “systemic legal deficiency—namely, the
insufficient and untimely provision of interpretation and
translation services.” Id. at 330. However, the Court made
clear that it was “certainly possible that a developed record
may not establish Plaintiffs’ systemic legal deficiency theory.”
Id.

D. Denial of Motion for Class Certification

In August 2018, Plaintiffs filed a motion for class
certification pursuant to Federal Rules of Civil Procedure 23(a)
and 23(b)(2). In April 2019, the District Court denied
Plaintiffs’ motion for class certification. Class Cert. Op., 2019
WL 1745737. Although the District Court rejected the School
District’s challenges to the proposed class definitions, the
Court found that Plaintiffs did not meet their burden of
establishing both numerosity and commonality under Rule
23(a).5 Id. at *9–*17. Most relevant for our purposes is the

for failure to state a claim.
5
The District Court also found that Plaintiffs did not satisfy the
implicit cohesiveness requirement of Rule 23(b)(2) because
“the concept of ‘meaningful participation’ is highly fact-
intensive and, thus, is not conducive to issuing any one remedy
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Court’s treatment of commonality.

The District Court determined that “the legal crux of this
matter does not turn on any statutory or regulatory mandate
that the School District provide translation and interpretation
services in connection with the provision of special education
services.” Id. at *14. “Rather, the statutory mandate at issue
here . . . is the requirement that the School District provide
enough language services to allow for ‘meaningful
participation’ by parents.” Id. This focus on “meaningful
participation” made a determination of commonality
impossible, the Court explained, “because there are varying
circumstances that could affect whether the particular services
provided by the School District were enough or were
insufficient to satisfy the right of meaningful participation.”
Id. at *16.

Furthermore, the District Court determined that “the School
District provides significant discretion to the relevant child-
study personnel . . . to engage parents and provide appropriate
language services.” Id. at *17. “[D]iscretion is necessary to

that would ensure meaningful participation.” Class Cert. Op.,
2019 WL 1745737, at *22. See generally, e.g., Gates v. Rohm
& Haas Co., 655 F.3d 255, 264 (3d Cir. 2011) (“[I]t is well
established that the class claims must be cohesive. . . . The
disparate factual circumstances of class members may prevent
a class from being cohesive and, therefore, make the class
unable to be certified under Rule 23(b)(2).” (internal citations
and quotations omitted)).
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ensure that limited English proficient parents are given the
tools they need to participate without, for example, taking the
unnecessary steps of translating documents for parents who are
unable to read proficiently or for whom written translation of a
complex document would be overwhelming.” Id. Thus,
Plaintiffs did not actually “challenge a centralized policy
enforced by a single decision-maker, but rather target[ed]
individualized decisions by various case supervisors, school
principals, and teachers as to what services are required in each
particular case.” Id.

Plaintiffs timely appealed the District Court’s order
denying their motion for class certification.6

E. Grant of School District’s Motion for Summary
Judgment

On April 30, 2020, the District Court granted the School
District’s motion and entered judgment in its favor on the
grounds that Plaintiffs failed to exhaust administrative
remedies. Plaintiffs admitted that they had not exhausted
administrative remedies but argued that their claims fell within
the futility exception to exhaustion because they had

6
Prior to the District Court’s order granting the School
District’s motion for summary judgment, Plaintiffs petitioned
for leave to appeal the class certification order under
Rule 23(f). See Petition, No. 19-8014 (3d Cir. May 2, 2019).
Our Court denied the petition. See Order, No. 19-8014 (3d Cir.
July 11, 2019).
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challenged systemic legal deficiencies. “In particular, . . . an
administrative process would be futile because the hearing
officer cannot and does not have the authority to award
Plaintiffs’ requested relief by ensuring . . . changes to the
District’s language services’ policies and practices.” JA1343–
44 (Plaintiffs Br. Opposing Summ. J.).

The District Court rejected Plaintiffs’ argument. At the
outset, the Court remarked that “the commonality requirement
of Fed. Rule Civ. P. 23(a) and the systemic exception to the
exhaustion requirement often go hand in hand” and recited
much of its earlier analysis on Rule 23 commonality. Summary
Judgment Op., 458 F. Supp. 3d at 286, 288–90. The Court then
reasoned that after the denial of class certification, Plaintiffs
“can only seek relief for the two parent Plaintiffs and their
children.” Id. at 290. Ultimately, Plaintiffs did not satisfy a
systemic exception to the IDEA exhaustion requirement
because “their claims actually focus on the shortcomings of a
particular component of the School District’s
translation/interpretation services” and “do not rise to a truly
systemic level in the sense that IDEA’s basic goals are
threatened on a system-wide basis.” Id.

As to the remaining non-IDEA claims—under Section 504
of the Rehabilitation Act, the ADA, the EEOA, Title VI of the
Civil Rights Act, and Pennsylvania law—the District Court
applied Fry’s test and determined that the gravamen of all the
non-IDEA claims was the denial of a FAPE. Thus, the non-
IDEA claims were subject to the IDEA’s exhaustion
requirement and because Plaintiffs failed to exhaust
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administrative remedies or satisfy an exception to exhaustion,
the Court granted the motion and entered judgment in favor of
the School District on the entirety of the complaint.

Plaintiffs appealed the order granting summary judgment.

III. JURISDICTION AND STANDARD OF REVIEW

Plaintiffs invoked federal question jurisdiction pursuant to
28 U.S.C. § 1331 for their claims under the IDEA and other
federal statutes and invoked supplemental jurisdiction pursuant
to 28 U.S.C. § 1367 for their state law claims. We have held
that exhaustion of administrative remedies is a requirement for
a district court to exercise subject matter jurisdiction over an
IDEA claim. See Batchelor v. Rose Tree Media Sch. Dist., 759
F.3d 266, 271–72 (3d Cir. 2014). While we later expressed
“some doubts as to whether IDEA exhaustion is a jurisdictional
requirement, we are bound by this precedent” and, in any
event, we need not address whether exhaustion is jurisdictional
because the School District preserved its exhaustion argument.
Wellman, 877 F.3d at 130 & n.6. Our Court has appellate
jurisdiction over an appeal from a final judgment under 28
U.S.C. § 1291.

We review a grant of summary judgment de novo. See, e.g.,
Matheis, 936 F.3d at 176. We apply the same test as the
District Court, reviewing the facts in the light most favorable
to the non-movant—here, Plaintiffs—and granting summary
judgment only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
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judgment as a matter of law.” Id. (quoting Fed. Rule Civ. P.
56(a)).

IV. ANALYSIS

The parties spend the bulk of their briefing discussing the
District Court’s denial of class certification and the numerosity
and commonality requirements of Rule 23. But Rule 23 is a
procedural device that cannot be interpreted to “abridge,
enlarge or modify any substantive right.” Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 367 (2011) (quoting 28 U.S.C.
§ 2072(b)). The threshold question then is whether the District
Court erred in granting summary judgment in favor of the
School District as to the claims of the individual Plaintiffs.
Because we conclude for the reasons set forth below that the
Court did not err in granting summary judgment—for both the
IDEA claim and the non-IDEA claims—we need not address
the class certification issues. See, e.g., Hennessy v. FDIC, 58
F.3d 908, 924 (3d Cir. 1995).

A. IDEA Claim

1. Individualization and exhaustion

The Individuals with Disabilities Education Act assures
that educational services provided for children with disabilities
be individualized in nature.7 As the Supreme Court in Rowley

7
In 1990, Congress changed the name of the Education of the
Handicapped Act to the Individuals with Disabilities Education
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noted, “[n]oticeably absent from the language of the statute is
any substantive standard prescribing the level of education to
be accorded handicapped children.” 458 U.S. at 190. Instead,
Congress “set forth extensive procedures to be followed in
formulating personalized educational programs for
handicapped children.” Id. at 194 (emphasis added). Each
child has an IEP Team responsible for creating the child’s IEP.
And a FAPE is defined as the “special education and related
services that . . . are provided in conformity” with a child’s
personalized IEP. 20 U.S.C. § 1401(9). “Special education”
is in turn defined as “specially designed instruction, at no cost
to parents, to meet the unique needs of a child with a disability.
. . .” § 1401(29) (emphases added). In sum, the “IDEA
operates from the premise that each child will have unique
disabilities and presumes that each program will be
personalized.” Blackman, 633 F.3d at 1094 (Brown, J.,
concurring).

The IDEA’s focus on the individual also underlies its
exhaustion requirement. Addressing the educational needs of
children with disabilities requires individualized assessments
and considerations of countless concerns. The administrative
dispute mechanism of § 1415 sets out an interactive process
between parents and local school officials to address such
circumstances. “No federal district court . . . can duplicate that
process.” Robinson, 468 U.S. at 1012. When compared to

Act. See Pub. L. No. 101-476, 104 Stat. 1141; see also
Batchelor, 759 F.3d at 271 n.7.
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courts, “teachers and parents, school districts, and
administrative review boards are closest to the issues at hand,
and therefore they are the best persons or entities to address
individual concerns and complaints.” Blunt v. Lower Merion
Sch. Dist., 767 F.3d 247, 299 (3d Cir. 2014). Allowing
children or parents “to go directly to court . . . would . . . run
counter to Congress’ view that the needs of handicapped
children are best accommodated by having the parents and the
local education agency work together to formulate an
individualized plan for each handicapped child’s education.”
Smith, 468 U.S. at 1011–12.

2. Systemic exception to exhaustion

Against this backdrop, we turn to the systemic exception to
exhaustion. In Beth V. by Yvonne V. v. Carroll, our Court
stated that we viewed allegations of systemic legal deficiencies
as a traditional basis for excusing the IDEA’s exhaustion
requirement. See 87 F.3d 80, 89 (3d Cir. 1996). But we had
no need in Beth V. to address the contours of any systemic
exception, and since then we have not discussed the systemic
exception in a precedential opinion. See generally J.T. v.
Dumont Pub. Schs., 533 F. App’x 44, 54 (3d Cir. 2013) (not
precedential). We draw, then, upon principles of IDEA
exhaustion already formulated by other courts as we seek to
give some shape to the scope of the systemic exception.

As an initial matter, the fact that a complaint “is structured
as a class action seeking injunctive relief, without more, does
not excuse exhaustion.” Hoeft v. Tucson Unified Sch. Dist.,
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967 F.2d 1298, 1308 (9th Cir. 1992) (describing futility or
inadequacy exception to exhaustion requirement). Relatedly,
the systemic exception is not met every time a plaintiff
challenges centralized, uniform policies that affect all students
within a school or school district. See Hoeft, 967 F.2d at 1304;
Ass’n for Cmty. Living in Colo. v. Romer, 992 F.2d 1040, 1044
(10th Cir. 1993). Instead, to satisfy the systemic exception, a
plaintiff must challenge policies that are “truly systemic . . . in
the sense that the IDEA’s basic goals are threatened on a
system-wide basis” and must not “focus[] on the shortcomings
of a particular component of . . . special education.” Hoeft, 967
F.2d at 1305; see also Parent/Pro. Advoc. League v. City of
Springfield, 934 F.3d 13, 27–28 (1st Cir. 2019) (determining
that plaintiffs did not allege truly systemic failures and
declining to decide whether to recognize systemic exception to
IDEA’s exhaustion requirement).

Claims that do meet the systemic exception often challenge
policies that concern the administrative dispute-resolution
mechanism itself. See Hoeft, 967 F.2d at 1309 (“Exhaustion
may also be excused because of inadequacy of administrative
remedies where the plaintiffs’ substantive claims themselves
concern the adequacy of the administrative process.”). Given
the congressional policies animating the exhaustion
requirement and the superiority of local problem-solving, it is
not surprising that the systemic exception to exhaustion is
largely limited to those procedural violations that “effectively
deprive[] plaintiffs of an administrative forum.” Id. at 1305;
cf. John Hart Ely, Democracy and Distrust: A Theory of

-27-
Judicial Review 75–77 (1980) (justifying judicial intervention
where courts must “make sure the channels of political
participation and communication are kept open”).

For example, in Mrs. W. v. Tirozzi—which our Court in
Beth V. relied upon when recognizing the systemic
exception—the “Plaintiffs’ complaint allege[d] that the
defendants[] fail[ed] to make bona fide attempts to resolve
their complaints against the Bridgeport Board of Education and
the Connecticut Department of Children and Youth Services
and to implement fully and conduct an informal [complaint
resolution procedure].” 832 F.2d 748, 752 (2d Cir. 1987).
Other cases out of the Second Circuit similarly share the
“common element” that “plaintiffs’ problems could not have
been remedied by administrative bodies because the
framework and procedures for assessing and placing students
in appropriate educational programs were at issue, or because
the nature and volume of complaints were incapable of
correction by the administrative hearing process.” J.S. v. Attica
Cent. Sch., 386 F.3d 107, 113–14 (2d Cir. 2004) (collecting
cases).

The takeaway from this jurisprudence is that the systemic
exception applies when plaintiffs challenge policies that
threaten basic IDEA goals—not mere components of special
education programs—including policies that undermine the
framework of the administrative hearing process. With that in
mind, we consider whether Plaintiffs’ claims satisfy the
systemic exception.

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 3. Plaintiffs do not meet the systemic exception

In Plaintiffs’ own words, “[i]t is undisputed that the
[School] District provides some translation and interpretation
services to LEP parents; Plaintiffs dispute the adequacy of the
quantity, quality, and consistency of those services resulting
from the [School] District’s policies and practices.” JA1367
(Plaintiffs’ Response to School District’s Statement of
Undisputed Facts ¶ 16). By its terms, such a challenge does
not meet the requirements of the systemic exception.

Although the parental right of meaningful participation
could rightly be called a “basic goal” of the IDEA, the
provision of translation and interpretation services is only one
component of ensuring meaningful participation. See, e.g., 34
C.F.R. § 300.322(e) (“The public agency must take whatever
action is necessary to ensure that the parent understands the
proceedings of the IEP Team meeting, including arranging for
an interpreter.” (emphasis added)). Plaintiffs admit as much.
See Oral Arg. Recording at 14:43–15:48 (“I actually think,
your Honor, that we are seeking relief for a component of
meaningful participation by parents . . . .”). And as the District
Court correctly observed, whether a parent needs a certain
translation or interpretation service in order to meaningfully
participate requires an individualized inquiry. See Summary
Judgment Op., 458 F. Supp. 3d at 289–90.

Plaintiffs’ claim also does not implicate policies which
undermine access to the administrative hearing process itself.
If the non-translation of an IEP, for example, deprives a parent
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of the right of meaningful participation, then a parent is still
free to pursue administrative procedures to remedy that denial
of a FAPE. Of course, this relief cannot be obtained if the
parent is unaware that he or she can turn to administrative
procedures. Consequently, the most troubling parts of the
record before us are indications that some parents in the School
District do not receive or cannot access translated versions of
the Procedural Safeguards Notice. See, e.g., JA1439 (Perng
Decl. ¶ 14) (“I am aware that the District has Procedural
Safeguards translated but many parents report to me that they
have not received a translated version of this document.”); see
also Br. for Amici Curiae Pennsylvania Immigration and
Citizenship Coalition et al., 15, 23–25.

But Plaintiffs do not claim that they have been harmed by
the School District’s failure to provide a translated Procedural
Safeguards Notice. Indeed, the only claim from any Plaintiff
that is specific to the Procedural Safeguards Notice is from Ms.
Perez’s declaration that, while the School District does
translate the notice and it may sometimes be given to LEP
parents, she has not received a Spanish version since her
deposition in the instant litigation. Plaintiffs’ alleged harms
stem from the School District’s failure to translate documents
like NOREP/PWNs and draft IEPs or provide interpretation
services which prevents Plaintiffs from meaningfully
participating in IEP Team meetings. See Class Cert. Op., 2019
WL 1745737, at *14 (“[T]he statutory mandate at issue here .
. . is the requirement that the School District provide enough
language services to allow for ‘meaningful participation’ by

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parents in the education of their special needs students.”). This
claim does not meet the systemic exception to exhaustion.

Plaintiffs resist this conclusion by pointing to the fact that
the hearing officer for T.R. and A.G. stated that he had “no
authority to order wholesale changes in the [School] District’s
policies or practices.” JA134. Under Plaintiffs’ conception,
exhausting the administrative process is futile because the
process cannot result in the Plaintiffs’ desired relief of
wholesale, systemic changes to the School District’s
translation and interpretation services. But Plaintiffs
misunderstand the import of the hearing officer’s decision.
The hearing officer was faced with a demand to certify a class
at the administrative level and enter relief for all LEP parents
in the School District. The hearing officer correctly concluded
that he had no authority to find that a policy was a per se
violation of the IDEA or that a policy resulted in violation for
all similarly situated students or parents. If this truism—that
administrative hearings cannot order class-wide relief—were
sufficient to satisfy the systemic exception, the IDEA’s
exhaustion requirement would be meaningless every time Rule
23 relief was invoked.

Looking beyond Plaintiffs’ class-action overtures, it is clear
that they can obtain relief through the administrative process.
As the same hearing officer explained, “[i]f a systemic policy
or practice yields a violation of an individual student or
parent’s rights,” the hearing officer may “enjoin schools from
implementing [the] policy” and “order the [School] District to
correct procedural violations.” JA134. To put it concretely,
-31-
both Ms. Perez and Ms. Lin could bring the same IDEA claim
from their complaint before a hearing officer who could then
order that the School District provide each parent with
translated IEPs, more qualified or consistent interpretation
services, or whatever process would ensure meaningful
participation for that parent.8 Both the claim and the relief
would be individualized, even if the relief could create
spillover benefits for other LEP parents and thus “could, in
theory, provide a universally positive outcome.” Summary
Judgment Op., 458 F. Supp. 3d at 290.

Plaintiffs failed to exhaust their administrative remedies
under the IDEA. Their failure to exhaust cannot be excused by
invoking the systemic exception to exhaustion. Thus, the
District Court properly concluded that it lacked subject matter
jurisdiction as to Plaintiffs’ IDEA claim, and we will affirm.

B. Non-IDEA Claims

Remaining for our review are Plaintiffs’ non-IDEA claims
for violations of Section 504 of the Rehabilitation Act, the
ADA, Title VI of the Civil Rights Act, the EEOA, and
Pennsylvania law. As to three of those claims—under the
Rehabilitation Act, ADA, and Pennsylvania law—Plaintiffs
rely on the same arguments they deployed in opposing
summary judgment on their IDEA claim. For the same reasons

8
Indeed, Ms. Lin secured in mediation an agreement with the
School District for some translation and interpretation services
through the IEP process.
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as those set forth above, we will affirm as to these claims.

With respect to the remaining Title VI and EEOA claims,
Plaintiffs argue that their claims are not subject to IDEA’s
exhaustion requirement. Recall that the IDEA’s exhaustion
requirement applies to claims “under the Constitution, the
[ADA], title V of the Rehabilitation Act [including § 504], or
other Federal laws protecting the rights of children with
disabilities” where the relief sought is the denial of a FAPE.
Fry, 137 S. Ct. at 750 (alterations in original) (quoting 20
U.S.C. § 1415(l)). Whether a suit seeks relief for denial of a
FAPE is determined by looking to the gravamen of the
complaint, both as a whole and with respect to each individual
claim. See Wellman, 877 F.3d at 132. Plaintiffs argue that the
gravamen of their two claims is for something other than the
denial of a FAPE.9 A review of their complaint convinces us

9
Plaintiffs do not suggest that claims under Title VI or the
EEOA fall outside the IDEA’s exhaustion requirement because
those statutes are not “Federal laws protecting the rights of
children with disabilities.” 20 U.S.C. § 1415(l). Several
district courts in this circuit have suggested that because Title
VI prohibits racial and national origin discrimination, but not
disability discrimination, claims under Title VI do not fall
within § 1415(l). See D.C. v. Pittsburgh Pub. Schs., 415 F.
Supp. 3d 636, 653 n.4 (W.D. Pa. 2019); Blunt v. Lower Merion
Sch. Dist., 559 F. Supp. 2d 548, 561 (E.D. Pa. 2008), aff’d, 767
F.3d 247, 255, 264 n.28 (3d Cir. 2014) (dismissing cross-
appeal on Title VI exhaustion as moot without deciding
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otherwise.

The factual allegations in the complaint recount at length
how the School District’s under-provision of translation and
interpretation services has compromised the educational
services provided to the members of the Student Class and the
meaningful participation rights of members of the Parent Class.
Each count, after incorporating these factual allegations,
realleges denial of a FAPE under a different guise. In their
Title VI count, Plaintiffs assert that the School District’s under-
provision of translation and interpretation services fails “to
ensure meaningful participation by Parent Plaintiffs and
members of the Parent Class.” JA360 (Compl. ¶ 128). In their
EEOA count, Plaintiffs allege that the School District “has
impeded equal participation by Student Plaintiffs and the
members of the Student Class in the [School] District’s special
education and other instructional programs.” JA359 (Compl.
¶ 125). Furthermore, every count of the complaint requests a
common set of declaratory and injunctive relief regardless of
the right allegedly violated.

The Plaintiffs fare no better under Fry’s suggested
inquiries. Clearly, the Plaintiffs could not have brought the
same claims—about participation in educational services—
against a public theater or library. See 137 S. Ct. at 756–57.

merits). Because Plaintiffs contest only the “gravamen”
portion of the exhaustion inquiry and have not argued that
§ 1415(l) does not apply, this issue is forfeited and we need not
address it.
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Nor could Plaintiffs have brought these claims as mere visitors
to a school within the School District. Id. In other words, these
are “not the sort of claim[s] that would be brought by a
nonstudent against a non-school facility.” Wellman, 877 F.3d
at 134. And the history of these proceedings supports the
conclusion that Plaintiffs seek to remedy the denial of a FAPE.
Original Plaintiffs to the operative complaint had already
exhausted administrative remedies for the denial of the FAPE,
and the operative complaint still includes in Count One a claim
under the IDEA for denial of a FAPE. Both facts cut against
Plaintiffs’ position. Cf. Fry, 137 S. Ct. at 757 (“[P]rior pursuit
of the IDEA’s administrative remedies will often provide
strong evidence that the substance of a plaintiff’s complaint
concerns the denial of a FAPE, even if the complaint never
explicitly uses that term.”).

Because the gravamen of Plaintiffs’ non-IDEA claims is
the denial of a FAPE, those claims are subject to the IDEA’s
exhaustion requirement. Plaintiffs did not exhaust their
administrative remedies and no exception to exhaustion
applies. We will therefore affirm the District Court’s grant of
summary judgment in favor of the School District.

V. CONCLUSION

Plaintiffs did not pursue the administrative process
established by the IDEA for resolving claims of procedural
violations and FAPE denials. Because Plaintiffs’ IDEA claim
does not fit within a systemic exception to exhaustion, we will
not excuse such a failure to exhaust. The District Court lacked
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jurisdiction to address Plaintiffs’ IDEA claim. The District
Court also could not decide Plaintiffs’ remaining non-IDEA
claims because they too sought relief for the denial of a FAPE.
With none of Plaintiffs’ claims surviving summary judgment,
we have no reason to address the inherently procedural
questions raised by their class certification motion. We will
affirm the orders of the District Court.

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