Ohio Parents go to US Supreme Court

[Guest guest]

Dear Friend of ASO:

An article on the Winkelman v. Parma City School District court case (US Supreme Court Case No. 05-983). On Friday, October 27, 2006, the United States Supreme Court said it would decide whether parents who are not lawyers have the right to represent their disabled child and/or themselves in a federal court lawsuit over the child’s public education opportunities. The parents have been threatened with being prosecuted for the unauthorized practice of law if they file suit over their disabled child’s access to an equal public education under federal law without hiring a lawyer to bring the suit. In addition, the parents’ lawsuit was dismissed solely because they did not have a lawyer.

The ASA was one of the organizations that filed a "friend of the court" brief urging the US Supreme Court to even hear the case. The ASA is also filing a similar brief siding with the parents for the actual Supreme Court case.

While ASO would very much like to also file such a brief, we are unfortunately not in a financial postion to do so. We do support parents who are not lawyers having the right to represent their disabled child and/or themselves in a lawsuit over their child’s public education opportunities.

We will keep you posted on the results of this case - please visit our website for updates.

FYI - Please share.

Sincerely,

Barbara C. YavorcikPresidentAutism Society of Ohio701 S. Main St.Akron, OH 44311(330) 376-0211fax: (330) 376-1226email: askASO@...home: byavorcik@...web: www.autismohio.org--------------------------------------------------------

IDEA Issues Getting Ear of High Court

Justices to Decide Whether Parents Allowed to Represent Their Children in Court Cases

By Trotter

By granting review of its third case in two years involving the Individuals with Disabilities Education Act, the U.S. Supreme Court has signaled a renewed interest in resolving legal conflicts arising under the federal law that governs services provided to nearly 6.7 million schoolchildren in special education.

The justices have agreed to consider 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.

The high court’s 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 scarcity of free legal aid and the reluctance of private lawyers to take IDEA cases unless they are very likely to prevail. The law provides for awards of legal fees to the prevailing party in the case.

Though a lawyer is the best option, “at least if parents will go [into court] on their own, they have a chance that a hardworking federal judge or law clerk will help level the playing field and at least give the parents a chance to prevail, rather than having no access at all,†said Jean-Claude André, the Los Angeles lawyer representing the family in the new case. Some legal experts worry, though, that children’s interests will suffer if their parents are allowed to represent them in such proceedings.

Building-Block Cases

The justices on Oct. 27 granted review of Winkelman v. Parma City School District (Case No. 05-983), which likely will be argued in February. The spurt of IDEA cases—the new addition to the docket and the pair of closely watched cases decided in the 2005-06 term—recalls the series of IDEA disputes the court tackled in the 1980s.

Legal experts said last week, however, that the recent cases don’t have the landmark status of those decided two decades ago, which hammered out definitions of the appropriate education due to a child with disabilities, the nature of the related services the child was entitled to, and the school district’s responsibility to reimburse parents for a private school placement, among others.

Those earlier cases were building blocks that still shape interpretations of the special education law, originally passed by Congress in 1975 as the Education for All Handicapped Children Act, said A. Zirkel, an authority on the IDEA who is a professor of education and law at Lehigh University, in Bethlehem, Pa.

By contrast, the latest IDEA cases in the high court have turned on “very technical, legalistic fine points that would be interesting to litigators†and “not a school practitioner issue,†Mr. Zirkel argued.

One of last term’s decisions, Schaffer v. Weast, established that the party seeking a due-process hearing—usually parents of a child with disabilities in a dispute with the school district—bears the burden of proof in the case. The other IDEA decision last term, Arlington Central School District v. , held that parents are not entitled to be reimbursed for fees paid to nonlawyer experts who helped them win disputes under the law.

Naomi E. Gittins, a senior lawyer at the National School Boards Association, agreed that the Schaffer and Arlington Central cases and the potential ruling in Winkelman do not present “the major issues people think of when they think of IDEA.†But, she said, “they are important in terms of making sure there’s uniform administration of the law.â€

The NSBA usually files friend-of-the-court briefs in any accepted Supreme Court appeal affecting school districts, but Ms. Gittins said the andria, Va.-based group has not yet decided whether to file one in Winkelman.

Other IDEA issues are stirring in some lower federal courts that are much more vexing to educators and families, Mr. Zirkel of Lehigh said. Those issues include: what today constitutes the “free, appropriate public education†guaranteed by the IDEA; whether the “least-restrictive environment†for the child means inclusion, whenever possible, in regular classes or something else; and, most recently, whether a child’s appropriate education should be guided by the specific learning disability or the child’s “response to intervention.â€

Before the cases in the 2005-06 term, the high court had not delivered a major IDEA decision in seven years.

The newly accepted appeal stems from a lawsuit by Jeff and Sandee Winkelman, two Ohio parents who challenged the appropriateness of a school’s educational plan for their son , who has autism spectrum disorder.

After several administrative hearings at which the parents represented their son, the Winkelmans sued the 13,000-student Parma district in U.S District Court in Cleveland, challenging decisions by hearing officers that the district had provided their son a free, appropriate public education as required under the IDEA.

The district court ruled in favor of the school system in June 2005. A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled unanimously in November of last year that the parents could not proceed in that court without a lawyer.

The parents appealed to the Supreme Court, and in May the justices asked the Bush administration to weigh in. In a brief filed Sept. 20, U.S. Solicitor General D. Clement suggested that the 6th Circuit court’s holding, barring parents from representing themselves under the federal special education law, was “inconsistent with the plain language, structure, and purposes of IDEA.â€

The Parma district, in a brief opposing Supreme Court review, argued that the IDEA allows parents to represent their children in state administrative proceedings under the federal law, but not in federal court proceedings.

The high court has not addressed whether parents are entitled to sue on their own behalf under the IDEA or if their right to file an IDEA lawsuit derives only from their child’s rights under the law, the solicitor general said.

While the 6th Circuit court held that nonlawyer parents may not press an IDEA case in federal court under any circumstance, another federal appeals court has ruled that nonlawyer parents are not limited at all. Four other appellate courts have held that such parents need a lawyer to press a child’s substantive claims under the IDEA, but not the parents’ procedural claims.

Access Is Issue

Whether the right is derivative is key, Solicitor General Clement argued, because a nonlawyer parent can only represent himself or herself and not the child.

Experts who generally favor families in IDEA disputes, as well as those who favor school districts, disagreed about whether allowing nonlawyer parents to conduct IDEA appeals would be harmful to the child or might be the best available alternative.

P. Borreca, a lawyer with Bracewell Giuliani, a Houston-based firm that often represents school districts in IDEA cases, said that “most of the jurisdictions, certainly ours in the U.S. Court of Appeals for the 5th Circuit, have said the rights provided by the law belong to the child, and you are, in a sense, doing a child an injustice by not hiring an attorney.â€

Kathleen Boundy, a co-director of the Center for Law and Education, a legal-advocacy group in Boston, agreed that the issue of parents’ legal representation of their children was complex, and a second-best solution to ensuring that low-income families have better access to legal representation.

“We basically need legal services across the country,†she said. “How many parents can really represent themselves pro se†the legal term for self-representation.

J. Eig, a Chevy Chase, Md., lawyer who has represented families in many IDEA cases, including the Supreme Court appeal last term in Schaffer v. Weast, said that though he supports the parents in the Winkelman case, an irony is that if the parents win the right to represent themselves in federal court, “one has to believe that in the long run, the school districts are going to win more IDEA cases against unskilled parents representing themselves.â€