Document Type


Publication Date

January 2014


This article previously appeared in 45 University of Toledo Law Review 471 (2014).


Wal-Mart v. Dukes overturned the certification of a class of a million and a half female employees alleging sex discrimination in Wal-Mart’s salary and promotion decisions. The Supreme Court ruled that the case did not satisfy the requirement that a class have a common question of law or fact, and said that the remedy sought was not the type of relief available under the portion of the class action rule permitting mandatory class actions. Over the last two years, courts have struggled with how to apply the ruling, especially how to apply it beyond its immediate context of employment discrimination litigation. In two prominent cases under the Individuals with Disabilities Education Act (IDEA), the federal courts of appeals have displayed remarkably different attitudes about class actions after Wal-Mart. This article will discuss these two leading cases, describe additional post-Wal-Mart class action decisions in IDEA and analogous contexts, then consider how Wal-Mart will affect the litigation decisions of advocates trying to address systemic violations of IDEA, and the courts’ likely reactions. Analysis of Wal-Mart and the cases decided in its wake suggests that group litigation to enforce IDEA will continue to be viable, but also that the litigation will change. Plaintiffs bringing IDEA class actions will likely attempt to distinguish Wal-Mart as a case preoccupied with interpreting underlying employment discrimination law. They will frame their cases as challenges to specifically defined policies and practices, and they will probably propose smaller, more tightly circumscribed classes or subclasses. They will also be likely to pursue non-class action approaches to addressing systemic violations of the law, bringing individual actions for broad relief, asking for group administrative remedies, and seeking action by governmental entities with the power to sue to enforce the IDEA rights. Much has been written about the Wal-Mart and its impact on class action procedure and the enforcement of substantive law. This Article seeks to contribute to the discussion by analyzing the case’s application to a field in which class action litigation has been a prominent means of enforcing important statutory rights, and by determining how litigants and courts are likely to respond.

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