STATE OF RHODE ISLAND
COMMISSIONER OF EDUCATION
L. DOE, S. DOE, and A. DOE on behalf of their
children X DOE, Y. DOE, and Z. DOE, and on
behalf of a class of similarly situated children
in the Providence School District,
Petitioners/Appellants,
vs.
RHODE ISLAND BOARD OF EDUCATION,
COUNCIL ON ELEMENTARY AND
SECONDARY EDUCATION, AMY
BERETTA, COLLEEN A. CALLAHAN,
BARBARA COTTAM, KAREN DAVIS,
GARA BROOKE FIELD, JO EVA GAINES,
MARTA V. MARTÍNEZ, DANIEL P.
MCCONAGHY, and LAWRENCE PURTILL,
in their official capacities members of the
RHODE ISLAND BOARD OF EDUCATION,
COUNCIL ON ELEMENTARY AND
SECONDARY EDUCATION, and
PROVIDENCE SCHOOL DISTRICT,
Respondents/Appellees
RIDE No. 18-089P
(On remand from the Superior Court)
INTERIM DECISION
Held: School district’s motion to dismiss class action portion of remanded complaint (which alleged that district’s provision of various services to English Language Learners violated both state and federal law) on grounds that Commissioner lacked authority to provide class-wide relief is denied as broad statutory delegation of authority to Commissioner impliedly authorized such authority, which has been exercised by the Commissioner in the past.
December 5, 2022
I. Introduction and Procedural History
On June 14, 2022, the Rhode Island Superior Court reversed a March 30, 2020 decision of the Rhode Island Council on Elementary and Secondary Education (the “Council”) affirming a March 8, 2019 decision of the Commissioner dismissing Petitioner’s complaint challenging the legality of the Providence Public School District’s (the “PPSD’s”) Collaboration/Consultation Model for providing various services to English Language Learner (“ELLs”).[1] The Complaint was filed on behalf of three named children and “a class of similarly situated children” in the PPSD who allegedly did not receive “ELL services consistent with state and federal law.”[2]
The Rhode Island Department of Elementary and Secondary Education (“RIDE”) Hearing Officer who originally heard the case held that the Collaboration/Consultation Model – which, among other things, addresses the manner by which ELL certified case managers collaborate with educators – did not violate the Rhode Island Regulations Governing the Education of English Language Learners (the “State Regulations”). The Hearing Officer found “sufficient evidence” that the Model contained components from the “approved models” listed in the State Regulations and concluded that “[v]iewed in their entirety” the Regulations “do not support Petitioners’ claim that all ELL instruction must be delivered by an ‘ELL teacher.”[3]
The Hearing Officer reached this conclusion despite the fact that the United States Department of Justice (the “DOJ”) had earlier found that the Model “‘fail[ed] to provide EL[L] students any direct EL[L] services from an instructor qualified to provide those services and is devoid of any curriculum that is distinct from the regular education curriculum.’”[4] Indeed, seven months earlier the PPSD agreed to discontinue its use of the Model pursuant to a settlement agreement with the DOJ (the “DOJ Settlement”).[5] However, the RIDE Hearing Officer ruled that the DOJ Settlement was not relevant to Petitioners’ claims, which were based on state law, and granted PPSD’s motion for summary judgment,[6] a ruling which, as noted, was affirmed by the Council, and then reversed by the Superior Court.
In reversing the March 30, 2020 decision of the Council, the Superior Court stated that it:
. . . agrees with Petitioners that the Council erred when it upheld the Hearing Officer’s Ruling that the Collaboration/Consultation Model does not violate the State Regulations. In reviewing the District’s use of components from the Approved Models, the Hearing Officer failed to consider whether the resulting Collaboration/Consultation Model complied with the plain language of 200 RICR 20-30-3.1(A)(4).[7] The Hearing Officer also failed to properly consider how the Collaboration/Consultation Model applies to those ELLs who—like X. Doe, Y. Doe, and Z. Doe—are entitled to receive special education services.[8]
In addition, the Court, while making clear that it was “not necessary... to consider whether class certification would be appropriate or permissible,” nonetheless remanded the case “for further proceedings on the issues of compensatory services for Petitioners’ children and the potential certification of a class of similarly situated students.”[9]
II. The Preliminary Issue Regarding Class Certification
After the undersigned Hearing Officer made an unsuccessful attempt to obtain the parties’ agreement to mediate the issues remaining after remand, the PPSD claimed that the Commissioner lacked the legal authority to entertain class action claims and moved to dismiss that portion of Petitioners’ Complaint. The parties were then ordered to brief the following question: “Does the Commissioner of Education have the legal authority to entertain class actions and provide class-wide relief?”
Legal memoranda addressing the question were simultaneously filed by the parties on October 6, 2022 (the “Pets.’ Mem.” and the “PPSD Mem.,” respectively), and the Petitioners filed a Reply Memorandum (the “Pets.’ Reply Mem.”) on November 7, 2022.
III. The Positions of the Parties
1. The PPSD
The PPSD emphasizes that the statutory delegation of duties to the Commissioner – which includes the duty to “require the observance of all laws relating to elementary and secondary schools and education,”[10] to “interpret school law,”[11] and to decide any controversies “arising under any law relating to schools or education,”[12] – does not explicitly include the authority to provide class-wide relief and argues that this lack of explicit authorization deprives the Commissioner of the requisite legal authority to entertain class actions.[13] The PPSD finds it significant that while the General Assembly specifically authorized the Commissioner to issue subpoenas,[14] it “refrain[ed] from granting her the authority to hear class actions,” and thus, according to the PPSD, “it must be presumed that it did not intend to confer to the Commissioner such authority.”[15]
The PPSD also made the point that:
Whereas Section 42-35-10 specifically makes the Superior Court Rules of Evidence applicable to APA hearings, the Superior Court Rules of Civil Procedure... are not referenced in any way and do not apply to any administrative hearings. In fact, in session years 2021 and 2022, Rhode Island’s General Assembly considered bills to make these Rules of Civil Procedure, including Rule 23, applicable to administrative hearings held under the APA. See 2021 RI H.B. 5430 (legislative session 2021); 2021 RI H.B. 7224 (legislative session 2022). In each of these years, the matter was held for further study and did not make it out of committee.[16]
2. The Petitioners
The Petitioners claim that “formal class certification is not required, particularly in the informal context of administrative hearings,” and note that:
RIDE has long recognized its systemic monitoring and enforcement authority in all contexts...[and]... has exercised its broad powers and duties of remediation, including by providing class-wide relief in the context of Commissioner Hearings, to ensure that the laws and regulations are enforced, that the assistance of the state education agency is available to all individuals and groups seeking their enforcement, and that all injured students are made whole.[17]
Indeed, Petitioners claim that the Commissioner “recognized the appropriateness of systemic, class-wide relief for all affected individuals” in her March 8, 2019 decision by ordering PPSD to “‘develop an ELL student progress report form and implement it immediately’ for all EL students, not just the three named individuals.’”[18]
Moreover, Petitioners emphasize that the PPSD “[did] not identify a single case or statute that bars the Commissioner from providing class-wide relief to remedy class-wide legal violations by school districts,”[19] and note that “the language of the enabling statute grants broad authority to the Commissioner... and carves out no exception for complaints brought on behalf of large groups of children seeking systemic, class-wide relief.”[20]
According to the Petitioners, the ability to provide class wide-relief is required since as a condition to the receipt of federal funds for education on behalf of the State, the Commissioner agreed to enforce Title VI of the Civil Rights Act of 1964[21] and the Equal Education Opportunities Act (the “EEOA”) of 1974,[22] and Petitioners emphasize that “[f]ailure to comply can result in federal enforcement actions against the State Agency up to and including termination of ongoing federal assistance or referral to the DOJ for potential prosecution.”[23] In addition, Petitioners note that applicable state law tracks this federal mandate.[24]
Petitioners also argue that the PPSD’s “technical argument” based upon the lack of an analogue to the Federal and Superior Court Rules of Civil Procedure governing class actions (Rule 23) “misses the mark because the issues before the Commissioner at this juncture are not limited to whether formal class certification pursuant to Rule 23, such as required in courts, is required or permitted in this context.”[25]
In addition, according to Petitioner’s, the fact that the Legislature considered, but failed to enact, bills to make the Superior Court Rules of Civil Procedure applicable to administrative hearings under the APA “can only be interpreted as a preference for the continued relative informality of Commissioner hearings, where such rules are not strictly applicable but remain useful points of reference. It has nothing to do with class actions and even less to do with class administrative complaints.”[26]
Finally, the Petitioners make various policy arguments, and claim that depriving the Commissioner of her ability to entertain class complaints and provide class-wide relief would:
(a) undermine her authority with local education agencies and thereby “encourag[e] illegal cutbacks of mandated services and noncompliance with civil rights obligations”;[27] and (b) “result in loss of credibility with families who have hitherto depended on it... [and]... inevitably lead to more of the most at-risk children falling through the cracks and being denied timely justice.”[28]
IV. Decision
There is a paucity of caselaw concerning whether a state agency has the capacity to entertain a class action, and whether or not the Commissioner has the authority to do so has not been addressed by any court in Rhode Island.[29] However, the issue was addressed by the Supreme Judicial Court of Massachusetts, albeit in a materially different factual context.
In Massachusetts Elec. Co. v. Massachusetts Commission Against Discrimination,[30] the Court held that the Massachusetts Commission Against Discrimination, a state agency, “was not authorized to allow the bringing of class actions,” opining that:
The commission has only those powers, duties, and obligations conferred on it by statute or reasonably necessary for its proper functioning. Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 356 N.E.2d 236 (1976), and cases cited. General Laws c. 151B does not authorize the maintenance of class actions before the commission. Chapter 151B, § 3, cl. 5, does empower the commission to ‘adopt, promulgate, amend, and rescind rules and regulations suitable to carry out the provisions of this chapter, and the policies and practice of the commission in connection therewith.’ However, no rule or regulation of the commission authorizes the maintenance of class actions.[footnote mitted]. Finally, the authorization of class actions is not the type of ancillary action comprehended within the grant of authority allowing the exercise of powers ‘reasonably necessary’ for the proper functioning of the commission.[31]
The Massachusetts Court also held that the ability to entertain class actions was not “reasonably necessary for the proper functioning” of the Commonwealth’s Rate Setting Commission.[32] However, the duties and authority conferred upon the Commissioner by the Rhode Island General Assembly[33] are far broader than those conferred upon the Massachusetts Commission Against Discrimination and/or the Massachusetts Rate Setting Commission. Thus, these Massachusetts cases are readily distinguishable.
In contrast to the two cited Massachusetts decisions, in Berkshire Cablevision of Rhode Island, Inc., v. Burke,[34] the Rhode Island Supreme Court rejected the claim that the administrator of the Rhode Island Division of Public Utilities and Carriers lacked the authority to promulgate rules concerning Community Antenna Television systems and held that the administrator’s authority was not limited solely to those categories explicitly mentioned in the enabling statute.[35] In so doing, the Court held that grants of legislative authority can be either express or implied,[36] and the Court made clear elsewhere that “regulatory powers may be implied from an act’s language to accomplish the purposes and goals of the statute.”[37]
Moreover, as argued by the Petitioners, the Legislature’s intent to enable the Commissioner to provide class-wide relief according to procedures in the administrative context that are more flexible than those under Rule 23 of the Superior Court Rules of Civil Procedure should be implied because such authority is necessary if the Commissioner is to:
- (a) fulfill her express statutory duties to “require the observance of all laws relating to elementary and secondary schools and education,” “decide any controversies that may be arise under any law relating to schools or education,”[38] and not undermine her credibility with the local educational agencies she is charged with regulating;[39]
- (b) comply with her certification to the federal government that she will enforce, inter alia, Title VI and the EEOA and address systemic violations;[40] and
- (c) meet the needs of the State’s most vulnerable children who may not have the resources to individually enforce their rights.
Indeed, had the Legislature intended to preclude the Commissioner from exercising such authority, they likely would not have stood by for years as the Commissioner provided class-wide relief without reference to Rule 23.[41]
Finally, there is no need to grapple with PPSD’s claim that, regardless of the Commissioner’s authority, the class action mechanism is not appropriate in this case, see PPSD Mem. at 6-7, since, as noted by the Petitioners, the claim is outside the scope of this initial proceeding, which is limited to determining the extent of the Commissioner’s legal authority to hear and decide the class action portion of Petitioners’ Complaint.
V. Order
For all the above reasons, IT IS HEREBY ORDERED THAT:
- 1. The PPSD’s motion to dismiss the class action portion of Petitioners’ Complaint is denied;
- 2. The parties shall within forty-five (45) days, i.e., by the close of business on January 19, 2023, meet and attempt in good faith to prepare a list of issues that need to be addressed in order to comply with the June 14, 2022 decision and order of the Superior Court, issues such as the method of notifying members of the class, the type and range of compensatory services to be provided, and the method of delivering such services; and
- 3. Submit a list, or failing agreement, separate lists, of the remaining issues to the undersigned Hearing Officer by the close of business on January 23, 2023.
Footnotes
[1] See L. Doe et al. v. Rhode Island Board of Education, et al., C.A. No. PC 2020-2619 (June 14, 2022) (Vogel, J.).
[2] See id. at *3.
[3] See L. Doe, S. Doe and A. Doe, on behalf of their children X. Doe, Y. Doe and Z. Doe, and on behalf of a class of similarly situated children in the Providence School District v. Providence School District, RIDE No. 18-089P (March 8, 2019) at 7-9.
[4] See L. Doe, et al. (Superior Court), note 1, supra at *5-6. Indeed, in a March 30, 2020 letter, the Commissioner advised the PPSD Superintendent that “utilization of mere consultation is not an acceptable substitute for implementing all aspects of the Collaboration Model,” and in a April 14, 2020 memorandum a Deputy Commissioner advised superintendents and school leaders that use of the “consultation only approach... is not allowed in our state.” Id. at *11.
[5] Id. The DOJ Settlement is dated August 9, 2018.
[6] See L. Doe. et al. (RIDE), note 3, supra at 9.
[7] As noted by the Court, the State Regulations “implement” R.I. Gen. Laws § 16-54-1, which mandates that “limited English proficient students... shall be provided with appropriate programs and services which will make their educational opportunities equal to their English dominant peers,” id., and ensures compliance with federal law by requiring that ELLs “have access to a free, appropriate, public education equal to the education provided to all other students.” L. Doe, et al. (Superior Court), note 1, supra at *18 (quoting 200 RICR 20-30-3.1(A)(4).
[8] Id. at *25.
[9] Id. at *15, *39.
[10] R.I. Gen. Laws § 16-60-6(9)(vii).
[11] R.I. Gen. Laws § 16-60-6(9)(viii),
[12] R.I. Gen. Laws §§ 16-39-1 and 16-39-2.
[13] See PPSD Mem. at 4-5, citing F. Ronci Co. v. Narragansett Bay Water Quality Management District Commission, 561 A.2d 874, 879 (R.I.1989) (“Agency action is only valid, therefore, when the agency acts within the parameters of the statutes that define their powers”); In Re Advisory Opinion to the Governor, 627 A.2d 1246 (R.I. 1993); and Bernard Schwartz, Administrative Law, § 4.4 at 171 (3d ed.1991) ( “[t]he statute is the source of agency authority as well as of its limits. If an agency act is within the statutory limits (or vires), its action is valid; if it is outside them (or ultra vires), it is invalid. No statute is needed to establish this; it is inherent in the constitutional positions of agencies and courts”). The PPSD also contrasted the express authorization provided to the federal District Courts and to the Rhode Island Superior Court under Rule 23 of the Federal and Superior Court Rules of Civil Procedure. See PPSD Mem. at 2.
[14] See R.I. Gen. Laws § 16-39-8.
[15] See PPSD Mem. at 6.
[16] See id. at 5.
[17] See Pets.’ Mem. at 2.
[18] See id. at 9, citing L. Doe, et al. (RIDE), note 3, supra at 9; see also Pets.’ Reply Mem at 2-3, citing Jane R. Doe vs. William M. Davies Jr. Career & Bd., of Trustees, RIDE No. 0010-93 (RIDE Apr. 8, 1993) (In case brought by a single “Jane Doe,” Commissioner ordered retroactive class-wide relief and invalidated the stratified “quota” lottery for admission, required the school to contact all special education students who were illegally denied admission and offer them enrollment); Muggle v. Pawtucket Sch. Comm., RIDE No. 0031-89 (Commissioner invalidated as arbitrary a Pawtucket policy of involuntary transfer of students from one school to another, recognized the standing of one or two parents to represent all affected children, and ordered class-wide relief preventing the transfer of all such students); Heaney v. Westerly Sch. Comm., RIDE No. 0022-93 (RIDE June 17,1993) (Commissioner required the Westerly School Department to restore its athletics and extra-curricular activities for all affected students, not just those named in the complaint).
[19] See Pets’ Reply Mem. at 3.
[20] Id. at 6. And Petitioners add that “the Rhode Island Supreme Court has made clear that statutes enabling administrative agencies need to be construed to enable those agencies to discharge their responsibilities under the law.” Id. at 6-7, citing F. Ronci, note 13, supra, 561 A.2d at 880-881 (Finding that the “lucid language of the enabling act” giving the Commission authority to establish toxic-discharge violations and to act to remedy those violations, necessarily implies the authority to engage in fact-finding and determining liability); and Berkshire Cablevision of Rhode Island, Inc. v. Burke, 488 A.2d 676, 679-80 (R.I. 1985) (Legislative mandate that the agency enforce cable television laws in “the public interest” gives the agency the broad authority to fashion appropriate remedies to achieve these ends.).
[21] See Pets.’ Mem. at 3, citing 42 U.S.C. 2000d et seq. (prohibiting the exclusion of any person from participation in, denial of benefits of, and discrimination under federally assisted programs on ground of race, color, or national origin).
[22] See id., citing 20 U.S.C. 1703 (“No State shall deny equal educational opportunity to a individual on account of his or her race, color, sex, or national origin, by---(f) the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.”).
[23] See id. at 5, citing 34 C.F.R. §100.8; see also id. at 5-6 and note 3, citing Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1041-43 (7th Cir. 1987) (reversing and remanding lower court decision after finding that EEOA requires state education agency enforcement of rights of ELs in local school districts and the state agency is not immune from prosecution on a class-wide basis for its failure to do so); Idaho Migrant Council v. Bd. of Educ., 647 F. 2d 69, 71 (9th Cir. 1981) (Finding that “the State Agency is empowered under state law and required under federal law to ensure that needs of students with limited English language proficiency are addressed.”); U.S. v. Texas, 321 F. Supp. 1043, 1056-57. (Finding that “[t]he State is obligated to oversee the actions of its agencies to insure against violations of the constitutional rights of individuals” [including those protected by Title VI and its implementing regulations] and granting injunctive relief to U.S. Government against the Texas Educational Agency for its systemic failure to do so); and Letter to Anderson, OSEP, July 13, 2010, 56 IDELR 270 (“[I]f the State complaint alleges systemic noncompliance or the State has reason to believe that the violations are systemic, it must investigate the matter. If the State finds systemic violations, it must provide for appropriate remedies to other affected students, including corrective actions to address both past violations and future compliance.”); see also Pets.’ Reply Mem. at 9-10 and note 6, citing Cortez v. Calumet Public Sch. Dist. #132, No. 01 C 8201, 2002 U.S. Dist. LEXIS 18848, at *16 (E.D. Ill. Sept. 30, 2002); Idaho Migrant Council v. Bd. of Educ., 647 F.2d 69, 71 (9th Cir. 1981); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1041-43 (7th Cir. 1987); and U.S. v. Texas, 321 F. Supp. 1043, 1056-57 (E.D. Tex. 1970).
[24] See id. at 4, citing R.I. Gen. Laws § 16-54-1 (“limited English proficient students...shall be provided with appropriate programs and services which will make their educational opportunities equal to their English dominant peers”) and 200 RICR 20-30-3.1(A)(4).
[25] Id. at 4.
[26] Id. at 7 and note 4 (distinguishing Simeone v. Charron, 762 A.2d 442, 446 (R.I. 2000)).
[27] Id. at 11.
[28] Id. at 12.
[29] Almost all of the discussion in the caselaw and commentary relating to class actions on behalf of students concern the shifting interpretations of the requirements of Federal Rule of Civil Procedure 23 that there be a common question of law or fact. See, e.g., Mark C. Weber, IDEA Class Actions After Wal-Mart v. Dukes, 45 U. Tol. L. Rev. 471 (2014).
[30] 375 Mass. 160, 375 N.E.2d 1192 (1978).
[31] 375 Mass. at 176. At the same time, the Court made clear that: We need not decide whether the commission may by rule authorize the maintenance of class actions, see G.L. c. 151B, s 5; cf. Hackley v. Roudebush, 171 U.S.App.D.C. 376, 419-421, 520 F.2d 108, 151-153 n. 177 (1975); Barrett v. United States Civil Serv. Comm'n, 69 F.R.D. 544, 549-554 (D.D.C.1975), or whether class actions may be maintained only in a trial court after court certification, see G.L. c. 151B, s 6; Mass.R.Civ.P. 23, 365 Mass. 767 (1974). Id. at note 10.
[32] See Massachusetts State Pharmaceutical Ass'n v. Rate Setting Com'n, 387 Mass. 122, 438 N.E.2d 107 (1982) (citing Massachusetts Elec. Co. and noting that “[i]n the absence of any statutory authorization for class actions before the division and in the absence of any rule of the division authorizing class actions, we conclude that the class action aspect of the pharmacies' appeal to the division was properly dismissed.”).
[33] See notes 10-12, supra and accompanying text.
[34] 488 A.2d 676 (R.I.1985).
[35] See id. at 680, citing R.I. Gen. Laws § 39–19–6.
[36] See id. at 679-80.
[37] See F. Ronci, note 13, supra, 561 A.2d at 881.
[38] See notes 10 and 12, supra.
[39] Indeed, that the ability to entertain class actions is essential to remedying systemic violations is illustrated by the fact that, as noted by one commentator, organizations like the Southern Poverty Law Center and the Office for Civil Rights of the United States Department of Education have “filed administrative complaints on behalf of students with special needs in various public school systems, claiming failure on a systemic basis to provide equal access to educational services.” See Weber, note 34, supra, at 501-502 and notes 203 and 204 (2014) (citations omitted).
[40] See note 23, supra and accompanying text.
[41] See, e.g., cases cited at note 18, supra.
ANTHONY F. COTTONE, ESQ.
As Hearing Officer for the Commissioner
ANGÉLICA INFANTE-GREEN,
Commissioner
Dated: December 5, 2022