Federal law generally bars parents who are not lawyers from representing their children in court, but the U.S. Supreme Court considered last week whether the Individuals with Disabilities Education Act creates an exception to that rule.
Jeff and Sandee Winkelman, who are not lawyers, want to represent their son in a lawsuit against the Parma, Ohio, school district, near Cleveland, over the child鈥檚 educational placement.
They cannot afford a lawyer, and they argue that the special education law allows them to represent their son, Jacob, who has autism. The Winkelmans also contend that they may argue for their own rights under the federal law. (鈥淐ourt to Hear IDEA Case on Parents鈥� Rights,鈥� Feb. 21, 2007.)
Although the parents lost on both issues in the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, other federal appeals courts have recognized the right of nonlawyer parents to represent themselves, at least on procedural issues.
The stakes for parents and school districts are great, given that the IDEA covers 6 million children.
鈥淧arents are real parties in interest in IDEA suits, regardless of the claim being asserted,鈥� argued Jean-Claude Andr茅, the lawyer representing the Winkelmans during the Feb. 27 arguments in Winkelman v. Parma City School District (Case No. 05-983). He told the justices that the special education law permits eight distinct rights that parents can assert for themselves, during the administrative process that can eventually be brought to court.
鈥淎ll eight of those provisions refer unambiguously to the parent鈥檚 complaints,鈥� not to the child鈥檚, Mr. Andr茅 said.
鈥楿phill鈥� Argument
While the Winkelmans were seeking reimbursement from the school district of their costs in sending Jacob to a specialized private school, 鈥渙ur position is that the full bundle of rights鈥� can be claimed by parents, Mr. Andr茅 said.
Parents 鈥渁re still intended [to be] beneficiaries of appropriate education,鈥� just as their children are also beneficiaries, he said.
That sparked a retort from Justice Antonin Scalia. 鈥淭he child is entitled to an appropriate public education, and the parents are entitled to have it provided free,鈥� he said. 鈥淭hat鈥檚 really the only interest they have on the table, it seems to me, separate and apart from their status as representatives or guardians of the child.鈥�
The Bush administration joined the argument on the side of the Winkelmans.
David B. Salmon, an assistant U.S. solicitor general, argued that 鈥渢he term 鈥榮pecial education鈥� is defined to be specially designed instruction at no cost to parents. 鈥� So it is defined as the parents鈥� interest.鈥�
Chief Justice John G. Roberts Jr. and Justice Ruth Bader Ginsburg both noted the extensive administrative process laid out in the IDEA that guarantees that parents are involved directly in developing their children鈥檚 individualized education programs.
Parents can be 鈥渁ggrieved parties for the purpose of the administrative process,鈥� said Justice Ginsburg. 鈥淭he question is, when that鈥檚 done, [whether] they also constitute aggrieved parties鈥� who may therefore represent themselves in court.
But when Pierre H. Bergeron, a Cincinnati lawyer representing the 13,000-student Parma school district had his turn, Justice Stephen G. Breyer said he was puzzled by the district鈥檚 insistence that the parents had no rights, given language in the statute on procedural rights 鈥渇or both children and the parents鈥� and stating that any 鈥減erson aggrieved鈥� is entitled to a hearing.
鈥淭hroughout the whole act, they talk about the parents and the student,鈥� Justice Breyer said. 鈥淵ou鈥檙e trying to convince me. And it sounds like an uphill battle.鈥�
Mr. Bergeron said 鈥渢he 鈥榩arty aggrieved鈥� [a term used in the law] does mean a party entitled to a remedy.鈥�
鈥淎ll relief must be based on the substantive rights of the child,鈥� he added.
Who Would Benefit?
The high court鈥檚 eventual decision in the case may determine whether many low-income parents of children with disabilities have meaningful access to the federal courts, advocates for families say. They cite a scarcity of free legal aid and the reluctance of private lawyers to take IDEA cases on behalf of families unless they are very likely to prevail. The law provides for awards of legal fees to the prevailing party in the case.
Justice Scalia revealed his suspicion that the parents most likely to benefit from the right to represent themselves were not the poorest ones.
To Mr. Andr茅, he asked whether disadvantaged parents were likely to become well versed in the intricacies of the IDEA, as well as in federal court procedures.
鈥淚 mean, the people [who] you鈥檙e [asserting are] benefiting here are the people least likely to have familiarized themselves with the statute and the procedures, 鈥� Justice Scalia said.
Mr. Andr茅 suggested that low-income parents can argue credible cases on their own behalf if the proceedings are conducted by 鈥渁 capable district judge.鈥�
Justice Ginsburg expressed the worry that low-income families might have no recourse in federal court if they may not represent themselves in such cases.
She said that the parents who are the 鈥渓east needy鈥� can sue, put their children in private schools, and wait for reimbursement of the costs if they win. 鈥淚t鈥檚 the people who can鈥檛 [afford those steps] who have no alternative鈥攖hey have to take what the school district gives them,鈥� she said. A decision is expected by the end of the court鈥檚 term in June.
