When are parents able to bring Individuals with Disabilities Education Act claims, for themselves or their children, without legal counsel?
Jeff and Sandee Winkelman contested the adequacy of their eight-year-old autistic son’s “Individual Education Plan,” designed by Parma City School District, under the Individuals with Disabilities Act (IDEA). Both the administrative hearing board and the federal district court that heard the Winkelmans’ claim approved the plan. The Winkelmans appealed the decision without a lawyer. The court of appeals dismissed the Winkelmans’ claim, holding that parents are barred from litigating IDEA claims pro se on behalf of their children. The Winkelmans argue that IDEA permits pro se litigation, while Parma City claims educational policy and precedent suggest otherwise. Courts of appeals are split on whether parents can litigate pro se their own procedural IDEA claims, their children’s substantive IDEA claims, or neither. The case will settle the split and define the scope of parental rights under IDEA and pro se litigation under federal law in general.
Questions as Framed for the Court by the Parties
Whether, and if so, under what circumstances, non-lawyer parents of a disabled child may prosecute an Individuals with Disabilities in Education Act, 20 U.S.C § 1400 et seq., case pro se in federal court?
Under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. (2003), states and local school boards receive federal grants for assistance in educating children with disabilities. Any state receiving federal funds must provide each enrolling disabled child with a “free appropriate public education” (FAPE), which includes special education and related services tailored to the child’s needs. 20 U.S.C. §§ 1400(d)(1)(4), 1412(d)(1)(A). To achieve this goal, a school board must develop an “individualized education program” (IEP) for each child with a disability. 20 U.S.C. § 1412(a)(4). Parents of disabled children are entitled to review this plan, 20 U.S.C. § 1415(b)(1), and if dissatisfied, may seek an “impartial due process hearing” from the school board. 20 U.S.C. § 1415(b)(6), (f)(1). At these hearings, parents have the right “to be accompanied and advised by counsel” and “to present evidence and confront, cross-examine, and compel the attendance of witnesses.” 20 U.S.C. § 1415(h)(1),(2). If parents are not satisfied with the findings, they may “bring a civil action with respect to the complaint” in federal district court. 20 U.S.C. § 1415(i)(2)(A).
On June 2, 2003, Jeff and Sandee Winkelman met with officials of the Parma City School District (“the School District”) to discuss the District’s IEP for their son Jacob, who suffers from autism. Brief for Petitioners at 5. The Winkelmans claimed that the plan did not adequately meet their son’s needs because it did not provide sufficient one-to-one teaching and occupational, speech, and music therapy. Id. at 5–6.
The Winkelmans filed a request with the School District’s superintendent for a due process hearing under IDEA. Id. at 6. Meanwhile, Jacob spent his kindergarten year at the Monarch School, a private school specializing in the education of autistic children. Id. However, the Winkelmans could not afford the $56,000 annual tuition and had to withdraw Jacob from the school the following year. Id. At that time, the Winkelmans earned a combined income of less than $40,000 and also cared for Jacob’s autistic sister, Jenna. Id. at 6, note 2. On February 25, 2004, the officer at the due process hearing ruled against the Winkelmans, finding that the School District’s plan provided Jacob with a FAPE. Id. at 6. The State Level Review Office affirmed on appeal. Id.
Dissatisfied, Jacob’s parents filed the current action in the U.S. District Court for the Northern District of Ohio, claiming that the School District had violated Jacob’s substantive rights and their own procedural rights during the hearings. Id. at 6–7. On June 2, 2005, the District Court affirmed the administrative findings. Id. at 9. On appeal, the U.S. Court of Appeals for the Sixth Circuit conditionally dismissed the case because the Winkelmans had brought the appeal pro se, without the assistance of counsel. Id. at 10. The Sixth Circuit relied on its prior decision in Cavanaugh v. Cardinal Local Sch. Dist., 409 F.3d 753 (6th Cir. 2006), in which the Court ruled that parents could not bring claims under IDEA without counsel. Id. at 9–10.
The Winkelmans sought and were granted a stay of the Sixth Circuit’s order pending review by the U.S. Supreme Court. Id. at 10. Counsel agreed to argue the case for the Winkelmans on a pro bono basis. Id. at 10, n. 9.
In 2005, there were almost seven million children in the United States suffering from a physical, emotional, or mental disability. Table 1-1, Dept. of Education, Office of Special Education Programs, Data Analysis System System. To enable states and local school boards to provide adequate special education to these children, the Individuals with Disabilities Education Act (IDEA) gives states and local school boards federal grants. IDEA § 1400(d)(1)(A). To ensure that IDEA is effective, claimants can seek relief in federal court. See IDEA § 1415(j)(2)(A).
However, low-income parents like Jeff and Sandee Winkelman face substantial financial hurdles in gaining access to courts to protect their rights. Of all the disabled children educated by IDEA grants, a quarter (almost two million) live below the poverty line and two-thirds (4.5 million) live in households with income of $50,000 or less. See Mary Wagner et al., The Children We Serve: The Demographic Characteristics of Elementary and Middle School Students with Disabilities and Their Households, 29 (Sept. 2002). A recent study by the American Bar Association found that 60 to 70 percent of all Americans cannot afford lawyers to meet their non-routine legal needs. See David C. Vladeck, In re Arons: The Plight of the “Unrich” in Obtaining Legal Serivces, Research Paper No. 657461, Georgetown Univeristy Law Center: Public Law & Legal Theory Working Paper Series, 6 (2004). For the poorest parents, legal services are simply not affordable and limited resources restrict free legal aid to a lucky few. See Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans, Legal Services Corporation, 4 (September 2005). Moreover, for parents like the Winkelmans, who do not financially qualify for most legal aid, access to lawyers is almost as restricted.
The difficulty of securing either pro bono counsel or affordable legal aid may force parents either to prosecute IDEA rights without counsel or to forfeit these rights. However, a prohibition on pro se representation by parents may actually serve a child’s needs better than costly litigation. See Brief of the Council of the Great City Schools as Amicus Curiae in Support of Respondent at 5. A bar on pro se representation by parents may encourage informal resolution of disputes and give parents and schools “expanded opportunities to resolve their disputes in positive and constructive ways.” See id. That way, the primary focus, the child’s educational needs, would not be overshadowed by litigation that imposes high costs on school districts with limited budgets. Id. at 10. Preventing pro se representation by parents may also prevent adverse consequences to children, ranging from “less than optimal representation” to unintended waivers of the child’s substantive rights. Id. at 22.
In Winkelman v. Parma City School District, the U.S. Supreme Court must decide whether, and to what extent, non-lawyer parents may prosecute IDEA cases without professional legal aid. The issue has splintered the federal courts of appeals along a 1–4–1 line. Four circuits permit parents to assert their own claims without a lawyer, but forbid them from representing their child. See Devine v. Indian River County Sch. Bd., 121 F.3d 576 (11th Cir. 1997); Collinsgru v. Palmyra Bd. Of Educ., 161 F.3d 225 (3rd Cir. 1998); Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123 (2nd Cir. 1998); Navin v. Park Ridge Sch. Dist. 64, 270 F.3d 1147 (7th Cir. 2001). In contrast, the First and Sixth Circuit Courts of Appeals have each taken different approaches, the First Circuit permitting pro se prosecution of all claims regardless of their nature, and the Sixth Circuit denying any proceeding in the absence of counsel. See respectively, Maroni v. Pemi-Barker Reg’l Sch. Dist., 346 F.3d 247 (1st Cir. 2003); Cavanaugh, 409 F.3d 753.
The District argues that the Winkelmans lack sufficient legal expertise to litigate complicated claims and could make mistakes that would harm their child in the future. See Respondent’s Brief in Opposition to Petition for Writ of Certiorari (Brief Opposing Writ) at 16–17; Brief for Nat’l School Bds. Ass’n as Amici Curiae in Support of Respondents (NSBA Brief) at 23. This outcome is particularly poignant in the IDEA context, given the vulnerability of disabled child to protect himself against his parents’ missteps. The District also contends that there is a common-law rule preventing litigants from bringing pro se claims on behalf of others and that Congress explicitly declined to supplant this rule. See Brief Opposing Writ at 10.
The Winkelmans respond that preventing them from personally representing their own and Jacob’s claims in court effectively leaves them with no other choice than to forfeit their claims. See Brief of Autism Society as Amici Curiae in Support of Petitioners (ASA Brief) at 7–9. This in turn, they contend, denies them the constitutional right to direct the education and upbringing of their children. See Brief of Equal Justice Foundation at Amici Curiae in Support of Petitioners (Equal Justice Brief) at 4.
Consequences of Possible Outcomes
A Supreme Court decision could result in three different outcomes. First, the Court could follow Cavanaugh and hold that parents cannot prosecute any IDEA claims pro se. This would lead to the surprising conclusion that parents cannot even bring claims based on their own rights under IDEA.
Second, the Supreme Court could permit parents to prosecute their procedural rights pro se but prohibit them from bringing a claim based on their child’s right to a FAPE. Blocking parents from bringing their child’s judicial claims without legal assistance limits the scope of parents’ rights under IDEA, permitting them to argue due process violations but restricting access to courts for the primary claim. Likewise, denying parents without lawyers from arguing on behalf of their child in court could undermine the enforcement of IDEA, preventing parents—arguably the most willing candidates to ferret out inadequate education—from ensuring the vitality of IDEA.
Third, the Court could allow parents to argue pro se both on their own behalf and on behalf of their children. If the Court permits pro se derivative judicial claims, parents will be able to pursue complaints against a school board’s education plan with greater frequency than if parents are barred from bringing such claims. This freedom might increase the accountability of school boards for providing quality education for disabled children. However, lowering the barriers to judicial access might also expose school boards to increased litigation by parents, which could strain their resources and divert their attention from administering education. See NSBA Brief at 25. Similarly, allowing parents to argue judicial IDEA claims without legal support might open the door to lay prosecution of other types of derivative claims, licensing guardians to argue pro se on behalf of dependents for any issue. The Court may fear a slippery slope, where the fundamental rights of a child or dependent could be compromised by a guardian’s non-expert representation.
Faced with these three different options, the Court will likely consider the interests of the disabled child himself to tip the balancing scale. The Court must account for, on one hand, the possibility that inexperienced parents will make a mistake that causes serious and irreversible harm to the child’s interests, and on the other, the possibility that school boards will be immune from culpability for failing to deliver adequate education to America’s neediest children.
The Winkelmans’ Arguments
The Winkelmans have three basic arguments: (1) that the legislature intended the IDEA to allow parents to proceed pro se; (2) that allowing parents to proceed pro se is the best policy for promoting education of children with disabilities; and (3) parents are the best advocates for their children.
The Statute Gives Rights to Parents and Children
The IDEA dictates that parents play a strong role in designing the Individualized Education Plan (IEP) of their child—giving parents access to all relevant records and requiring that parents have written notice of any changes in the child’s educational services. See Brief for the Council of Parent Attorneys and Advocates as Amicus Curiae in Support of Petitioner (CPAA Brief) at 7; Petition for Certiorari at 3. Likewise, IDEA also gives parents significant power in the administrative process. Petition for Certiorari at 3. During the initial administrative hearing, parents have a right to present evidence, compel attendance of witnesses and cross-examine witnesses called by the school district. Petition for Certiorari at 4; 20 U.S.C. § 1415(h). Parents then have a right to appeal without counsel to the relevant state agency. See CPAA Brief at 17.
The Winkelmans argue that it would be illogical for the legislature to deny them the right to bring IDEA claims pro se while at the same time: (1) expressly giving parents wide discretion in designing their child’s education; (2) allowing parents to question the IEP before a hearing board; and (3) appeal decisions of the board to a state agency. Indeed, there is nothing in the statute or its legislative history that limits the parents’ rights for judicial review. See CPAA Brief at 15. Parents pursue other claims on behalf of their children without counsel. See Equal Justice Brief at 13 (social security claims). In fact, in its 2004 review of the IDEA, the Senate expressly endorsed the parents’ right to proceed pro se to appeal administrative hearings. Petition for Certiorari at 16–17.
The Winkelmans further argue that they have their own substantive right to appear before the court. Under IDEA, all reimbursement for required private schooling goes expressly to parents, not their children. See 20 U.S.C. § 1415(a)(10(B)(i); Brief for the United States as Amicus Curiae (U.S. Brief) at 13. Also, the statute envisions parents, not children, bringing suits and obtaining relief from inadequate IEPs. See 20 U.S.C. § 1415(i)(3)(D)(i); U.S. Brief at 14. Given that parents have a monetary interest under the IDEA, the Winkelmans argue that they, as parents, have a right to appear in court independent of the child. As parties with substantive rights in the court, they have a right to proceed pro se. See 28 U.S.C. § 1654; U.S. Brief at 10. Furthermore, the Winkelmans argue that the term “parties aggrieved” includes parents when referring to appeal to state agencies, where parents are allowed to proceed pro se. See 20 U.S.C. § 1415(h); Petition for Certiorari at 18.
Educational Policy Demands Justice for Children
Second, the Winkelmans argue that allowing parents to proceed pro se vindicates the policy that disabled children receive adequate education. To be effective, IDEA cases must be handled quickly. The legal system can take years to produce a just and final outcome, and while cases wind through the courts, children with disabilities grow older without adequate education. See CPAA Brief at 5. There are seven million children with disabilities in America. See Petition for Certiorari at 10; CPAA Brief at 10–11. A quarter of these children, 1,750,000, live below the poverty line. See ASA Brief at 7. Two-thirds, or four and a half million of them, live in households with a medium income of $50,000. See Petition for Certiorari at 10; CPAA Brief at 10–11. Like the Winkelmans, these families are not able to afford legal counsel in protracted appellate proceedings. Seeking free or subsidized legal assistance is not an option either. Four out of five families eligible for legal assistance are rejected due to a lack of resources. CPAA Brief at 12.
The only way children in this economic position will be able to press their rights and challenge inadequate IEPs is if their parents can bring claims to court pro se. It would be nonsensical for the government to provide state-funded education and services, but then force parents who rely on that funding to pay for lawyers in court. See CPAA Brief at 7. Barring parents from the courthouse effectively gives schools an automatic reversal of administrative decisions the school disagrees with—merely by taking their case to federal court, where parents do not have the resources to follow. See ASA Brief at 18.
Parents are Zealous Advocates for Their Children
Finally, the Winkelmans argue that as parents they are the most ardent advocates for their child. Petition for Certiorari at 4. No other party will be as protective or as compassionate. They share in the child’s trials and hardships, living with the challenge of raising a disabled child. See CPAA Brief at 6. The child’s struggle becomes their own. As the Council of Parent Attorneys and Advocates wrote, “‘[p]arties aggrieved’ has more than just a technical, legal meaning.” See id. at 5. Parents alone understand their child and know how best to educate him and prepare him for a functional life. From a legal standpoint, this comports with the general understanding that parents have a right to the care, custody and control of the children, including managing their education. See Equal Justice Brief at 6; see also Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Pursuing an adequate education plan is an extension of managing their education.
Parma City School District’s Arguments
The School District first argues that nothing in the text of IDEA or the legislative history behind the statute changed the common law rule forbidding parents from litigating pro se in IDEA cases. They also argue that compelling parents to retain professional legal counsel for IDEA claims protects the child’s educational interests and better serves educational policy.
The Legislature Did Not Change the Law
First, the School District argues that IDEA does not give parents any rights absent their children’s claims. See NSBA Brief at 5. All complaints parents have regarding procedural issues in their IDEA claims exist because their child qualifies for a FAPE. See id. at 6. Therefore, parents have no independent right to proceed in court without counsel.
In addition, IDEA does not give parents any substantive right to have their child receive a free appropriate education. See Brief for Respondent at 19–40. While IEPs are part of the public education system, they are not blank checks for parents to give their children one-on-one private tutoring.
Furthermore, the School District argues that parents are not permitted to litigate their child’s claims without counsel. IDEA did not modify the traditional ban on parents litigating pro se on behalf of their children. See NSBA Brief at 16. IDEA expressly allows parents to represent their children pro se in administrative proceedings but has no analogous provision allowing parents to bring IDEA claims before the courts, suggesting Congress intended to block judicial claims by parents. Winkelman v. Parma City Sch. Dist., 166 Fed. Appx. 807, 807 (6th Cir. 2006). In fact, IDEA accommodates for this ban on pro se litigation by giving parents a number of alternatives avenues to press their child’s IDEA claim outside of the courts (in state agencies and mediation with the school). See NSBA Brief at 9–13.
Educational Policy Demands Adequate Representation
The School District contends that the purpose of the IDEA, to provide adequate education for children with disabilities, is clouded by giving parents the ability to litigate in court without counsel. First, if parents have a right to prosecute procedural IDEA claims independent of their children’s rights, children’s educational rights will no longer be the focus of the litigation. See NSBA Brief at 14. Second, parents untrained in the complexities of court procedure, or IDEA, risk making mistakes that may permanently endanger their child’s future. See Equal Justice Brief at 12. This is even more dangerous at the appellate stage, where the outcome affects not only the parents before the court, but potentially all parents raising children with disabilities. The Winkelmans were well aware of the gravity of IDEA proceedings—they hired counsel to appear before the Impartial Hearing Officer to determine their FAPE. See Brief for Petitioners at 3. If the Winkelmans recognized this at the “trial” stage—and paid for an attorney—it seems illogical that they would not recognize it, and act accordingly, at the appellate stage.
Finally, the School District argues that allowing parents to proceed pro se will greatly diminish the cost to a parent to mount a meritless lawsuit. See U.S. Brief at 18. Parents may do this to force their conception of the child’s best interests on the other parents or grandparents. See NSBA Brief at 15–16. They may also do this to compel school districts to modify their child’s IEP and provide extra benefits to the parent’s children. School districts, afraid of exhausting their limited resources on legal fees, may comply to avoid litigation.
In this case, the Supreme Court will decide whether parents of disabled children can bring IDEA claims to federal court without legal assistance. The Winkelmans argue that because their economic status prevents them from obtaining a lawyer, proceeding pro se is the only way to vindicate their IDEA rights. Parma City School District argues that permitting the Winkelmans’ to proceed pro se may allow them to make legal missteps that will harm their child and will divert precious educational resources away from schools. A Supreme Court decision will clarify the nature of parental rights under IDEA and scope of pro se litigation under federal law.
Written by: Ferve Ozturk & Jamie Rogers