Court weighs parents’ rights under idea

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’s 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. (“Court to Hear IDEA Case on Parents’ Rights,” 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. “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 special education law permits eight distinct rights that parents can assert for themselves, 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. ‘UPHILL’ ARGUMENT While the Winkelmans were 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

“are still intended [to be] beneficiaries of appropriate education,” just as their children are also beneficiaries, he said. 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 children’s individualized education programs. 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 school 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 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 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 “least needy” can sue, put their children in private schools, and wait for reimbursement of the costs if they win. “It’s the

people who can’t [afford those steps] who have no alternative—they have to take what the school district gives them,” she said. A decision is expected by the end of the court’s term in June.