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IDEA decision from US Supreme Court!
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<blockquote data-quote="Martie" data-source="post: 46743" data-attributes="member: 284"><p>Hi everyone,</p><p></p><p>Here are some comments on the Winkelman case written by an attorney friend of mine who occasionally has lurked here. I thought you might find it interesting.</p><p></p><p><span style="color: #FF0000">Atty: Here are some more comments about Winkelman. </p><p></p><p>I consider the Winkelman case quite important because it gives parents standing. Agencies love to shut people out of review proceedings by asserting they lack standing. The door is open now; there is no doubt about that</span></p><p></p><p></p><p><span style="color: #3333FF">Martie: You exceed my knowledge: I know what standing means, but is that the same concept as what I said about parents having rights under IDEA that are separate from their childrens rights?</p><p></span></p><p></p><p><span style="color: #FF0000">Atty: Yes, you are on the right track. I know how lawyers think and the SD lawyers would have argued the act was intended to benefit children, not parents, and the children naturally could not assert their rights. How could they? They were mere children, and if the parents arguments were correct the children were [also] disabled. It would be a specious and cynical argument, but one that school board lawyers would have asserted. I have attached a printout of the Winkelman case with this message, and I have highlighted some of the arguments Justice Scalia makes in his dissent. He is presenting this specious and cynical argument in a veiled way. Notice that he believes parents might present meritorious appeals if they are seeking MONEY, but not if they are seeking a good education for their children :frown: . Justice Scalia argues, in effect, your work [as a advocate] inherently tends to be unmeritorious. What a loathsome person he is!</span></p><p></p><p>****************************************************************</p><p></p><p>Justice SCALIA, with whom Justice THOMAS joins, concurring in the judgment in part and dissenting in part:</p><p></p><p>I would hold that parents have the right to proceed pro se under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. (2000 ed. and Supp. IV), <em>when they seek reimbursement for private school expenses</em> or redress for violations of their own procedural rights, <em>but not when they seek a judicial determination that their child's free appropriate public education </em></p><p><em></em></p><p>. . . </p><p><em></em></p><p><em>Pro se cases impose unique burdens on lower courts-and on defendants, in this case the schools and school districts that must hire their own lawyers. Since pro se complaints are prosecuted essentially for free, without screening by knowledgeable attorneys, they are much more likely to be unmeritorious.</em> And for courts to figure them out without the assistance of plaintiff's counsel is much more difficult and time-consuming. In both categories of pro se parental suit permitted under a proper interpretation of the statute, one or the other of these burdens is reduced. <em>Actions seeking reimbursement are less likely to be frivolous, since not many parents will be willing to lay out the money for private education without some solid reason to believe the FAPE was inadequate. </em></p><p></p><p>***************************************************************</p><p></p><p>I responded as follows:</p><p></p><p><span style="color: #3333FF">Martie: Thank you for explaining Winkelman further to me. What Scalia is also saying is really grounded in a lot of case law about parent recovery after the fact for private tuition expenditures which are only available to a very limited set of parents. Saying <em>a priori </em>tuition expenditures by parents reduce the chances of frivolous lawsuits is just another way of saying that it is burdensome enough to have to put up with <em>pro se</em> litigants, <em>but at least it can be limited to those rich enough to pay private tuition (sometimes for years) before we have to be annoyed by them.</em> It is also true, however, that he values money more that FAPE, as you said. Sandra Day OConnor shot this money before FAPE down hard in the Shannon Carter caseOConnor was so sarcasticit was GREAT However, Scalia has forgotten what the court did in Weast because <em>pro se</em> cases are hardly free in that experts are not reimbursable and they certainly do not work for free. It is easier for a poor parent to get legal representation <em>pro bono</em> than it is to get expert evaluations and testimony <em>pro bono</em>. This is in part because law schools maintain legal clinics, and some of them are interested in Special Education law---psychiatric departments have no analog. The other reason is psychologists and M.D.s are insufficiently committed to social justice in my opinion. </span></p><p></p><p>The bottom line here is I have been hearing from students since Monday with most of them asking if this will make a difference. It will not in practice because very few parents are capable of doing what the Winkelman's did. However, for the SC to have ruled the other way, would have just about gutted parents' rights--so the decision is very important AND it was 5-2 with Scalia and Thomas dissenting (of course.)</p><p></p><p>The important thing for most people is that SELF-EDUCATION is available to all parents and makes it more likely that difficult children will get FAPE without going to Due Process let alone court. In this area, we can all improve and hopefully, prevail in time to help our difficult children.</p><p></p><p>Best to you all,</p><p></p><p>Martie :warrior:</p></blockquote><p></p>
[QUOTE="Martie, post: 46743, member: 284"] Hi everyone, Here are some comments on the Winkelman case written by an attorney friend of mine who occasionally has lurked here. I thought you might find it interesting. <span style="color: #FF0000">Atty: Here are some more comments about Winkelman. I consider the Winkelman case quite important because it gives parents standing. Agencies love to shut people out of review proceedings by asserting they lack standing. The door is open now; there is no doubt about that</span> <span style="color: #3333FF">Martie: You exceed my knowledge: I know what standing means, but is that the same concept as what I said about parents having rights under IDEA that are separate from their childrens rights? </span> <span style="color: #FF0000">Atty: Yes, you are on the right track. I know how lawyers think and the SD lawyers would have argued the act was intended to benefit children, not parents, and the children naturally could not assert their rights. How could they? They were mere children, and if the parents arguments were correct the children were [also] disabled. It would be a specious and cynical argument, but one that school board lawyers would have asserted. I have attached a printout of the Winkelman case with this message, and I have highlighted some of the arguments Justice Scalia makes in his dissent. He is presenting this specious and cynical argument in a veiled way. Notice that he believes parents might present meritorious appeals if they are seeking MONEY, but not if they are seeking a good education for their children [img]:frown:[/img] . Justice Scalia argues, in effect, your work [as a advocate] inherently tends to be unmeritorious. What a loathsome person he is!</span> **************************************************************** Justice SCALIA, with whom Justice THOMAS joins, concurring in the judgment in part and dissenting in part: I would hold that parents have the right to proceed pro se under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. (2000 ed. and Supp. IV), [i]when they seek reimbursement for private school expenses[/i] or redress for violations of their own procedural rights, [i]but not when they seek a judicial determination that their child's free appropriate public education [/i] . . . [i] Pro se cases impose unique burdens on lower courts-and on defendants, in this case the schools and school districts that must hire their own lawyers. Since pro se complaints are prosecuted essentially for free, without screening by knowledgeable attorneys, they are much more likely to be unmeritorious.[/i] And for courts to figure them out without the assistance of plaintiff's counsel is much more difficult and time-consuming. In both categories of pro se parental suit permitted under a proper interpretation of the statute, one or the other of these burdens is reduced. [i]Actions seeking reimbursement are less likely to be frivolous, since not many parents will be willing to lay out the money for private education without some solid reason to believe the FAPE was inadequate. [/i] *************************************************************** I responded as follows: <span style="color: #3333FF">Martie: Thank you for explaining Winkelman further to me. What Scalia is also saying is really grounded in a lot of case law about parent recovery after the fact for private tuition expenditures which are only available to a very limited set of parents. Saying [i]a priori [/i]tuition expenditures by parents reduce the chances of frivolous lawsuits is just another way of saying that it is burdensome enough to have to put up with [i]pro se[/i] litigants, [i]but at least it can be limited to those rich enough to pay private tuition (sometimes for years) before we have to be annoyed by them.[/i] It is also true, however, that he values money more that FAPE, as you said. Sandra Day OConnor shot this money before FAPE down hard in the Shannon Carter caseOConnor was so sarcasticit was GREAT However, Scalia has forgotten what the court did in Weast because [i]pro se[/i] cases are hardly free in that experts are not reimbursable and they certainly do not work for free. It is easier for a poor parent to get legal representation [i]pro bono[/i] than it is to get expert evaluations and testimony [i]pro bono[/i]. This is in part because law schools maintain legal clinics, and some of them are interested in Special Education law---psychiatric departments have no analog. The other reason is psychologists and M.D.s are insufficiently committed to social justice in my opinion. </span> The bottom line here is I have been hearing from students since Monday with most of them asking if this will make a difference. It will not in practice because very few parents are capable of doing what the Winkelman's did. However, for the SC to have ruled the other way, would have just about gutted parents' rights--so the decision is very important AND it was 5-2 with Scalia and Thomas dissenting (of course.) The important thing for most people is that SELF-EDUCATION is available to all parents and makes it more likely that difficult children will get FAPE without going to Due Process let alone court. In this area, we can all improve and hopefully, prevail in time to help our difficult children. Best to you all, Martie [img]:warrior:[/img] [/QUOTE]
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