Justices Weigh Whether Parents May Represent...

Discussion in 'Special Ed 101' started by Sheila, Mar 1, 2007.

  1. Sheila

    Sheila Moderator

    Their Children in IDEA Cases


    http://www.edweek.org/ew/articles/2007/02/27/25idea_web.h26.html?

    By Andrew Trotter

    The U.S. Supreme Court heard arguments today in a case testing whether parents who are not lawyers have a right to represent themselves, or their child, in federal court in disputes with school districts over the child’s educational placement under the federal Individuals with Disabilities Education Act.

    The case was brought by a Cleveland family, who sued the Parma City School District after they could not resolve a disagreement over the individual educational program for their nine-year-old son, who has autism.

    The parents, Jeff and Sandee Winkelman, who are not lawyers, want to represent their son, Jacob, in federal district court. Common law federal court rules traditionally bar non-lawyers from representing anyone other than themselves in the courts. But the Winkelmans contend that the special education law allows them to argue for their son and advocate for their own rights under the law.

    “Parents are real parties in interest in IDEA suits, regardless of the claim being asserted,” argued Jean-Claude André, 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 voluminous special education law permits eight distinct complaints that parents can assert during the administrative process that can eventually be brought to court.

    “All eight of those provisions refer unambiguously to the parent’s complaints,” not to the child’s, Mr. André said.

    Although the Winkelmans were only seeking reimbursement from the school district of their costs in sending Jacob to a specialized private school, “our position is that the full bundle of rights” can be claimed by parents, Mr. André said.

    Parents, Mr. André said, “are still intended [to be] beneficiaries of appropriate education,” just as their children are also beneficiaries.

    That sparked a retort from Justice Antonin Scalia.

    “The child is entitled to an appropriate public education, and the parents are entitled to have it provided free,” he said, “That’s 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.”

    The Bush administration joined the argument on the side of the Winkelmans.

    David B. Salmon, an assistant U.S. solicitor general, argued that “the term ‘special education’ is defined to be specially designed instruction at no cost to parents. … So it is defined as the parents’ interest.”

    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 child’s educational plan.

    Parents can be “aggrieved parties for the purpose of the administrative process,” said Justice Ginsburg. “The question is, when that’s done, [whether] they also constitute aggrieved parties” who may therefore represent themselves in court.

    But when Pierre H. Bergeron, a Cincinnati lawyer representing the 13,000-student Parma City district had his turn, Justice Stephen G. Breyer said he was “puzzled” by the district’s insistence that the parents had no rights, given language in the statute on procedural rights “for both children and the parents” and stating that any “person aggrieved” is entitled to a hearing.

    “Throughout the whole act they talk about the parents and the student,” Justice Breyer said. “You're trying to convince me. And it sounds like an uphill battle.”

    Mr. Bergeron, representing the Parma City schools, said “the ‘party aggrieved’ [a term used in the law] does mean a party entitled to a remedy.”

    “All relief must be based on the substantive rights of the child,” he added.

    Who Would Benefit?
    The high court’s 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. André, he asked whether disadvantaged parents were likely to become well versed in the intricacies of the IDEA, as well as in federal court procedures.

    “I mean, the people [who] you’re [asserting are] benefiting here are the people least likely to have familiarized themselves with the statute and the procedures, ” Justice Scalia said.

    Mr. André suggested that low-income parents can argue credible cases on their own behalf if the proceedings are conducted by “a capable district judge.”

    Justice Ginsburg worried that low-income families might have no recourse in federal court if they are not allowed to represent themselves in such cases.

    Noting that parents who are the “least needy” can sue, put their child in a private school, and wait for reimbursement of the costs if they win, she said, “It’s the people who can’t [afford those steps] who have no alternative—they have to take what the school district gives them.”
     
  2. slsh

    slsh member since 1999

    Huge case, in my humble opinion. If the Justices rule against the parents, we will need to change the wording of IDEA to "free and appropriate public education for those children with parents who have enough disposable income to hire an attorney to insure FAPE". The rest of us will be sunk (like we're not anyway).

    on the other hand, how 'bout a new provision in IDEA requiring SDs to provide equal legal representation to parents as they themselves utilize? Up front, prior to anyone prevailing in court. One can dream anyway...
     
  3. Martie

    Martie Moderator

    This is a huge case--if only because the Supreme Court granted cert. It will not literally affect very many people because there are not too many non-attorneys who could cut it in Federal Court, but what will come out of this, in my opinion, is an endorsement, or not, of parents as the natural advocates for their children and therefore, in possession of rights they exercise on the child's behalf.

    I'm not optimistic--but hope lingers past all evidence to the contrary.

    Martie
     
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