Can Parents Represent Their Children's Rights Under IDEA?
by Peter Wright, Esq. & Pamela Wright, MA, MSW
Can you represent your child's rights under IDEA?
The answer to this question is - it depends.
If you live in Maine, Massachusetts, Rhode Island, New Hampshire, or Puerto Rico, the U. S. Court of Appeals for the First Circuit ruled that you may represent your child's IDEA rights at every stage of the process.
If you live in Ohio, Michigan, Kentucky, or Tennessee, the U. S. Court of Appeals for the Sixth Circuit ruled that you cannot represent your child's IDEA rights and must retain an attorney. If you cannot find or afford an attorney, your child's case will be dismissed - and you may be prosecuted for Unauthorized Practice of Law (UPL). (Find your Circuit)
Purpose of IDEA: To Ensure that Rights of Children with Disabilities and Their Parents Are Protected
On September 20, 2005, the United States Court of Appeals for the Sixth Circuit ruled that "the IDEA does not grant parents the right to represent their child in federal court." Jacob Winkelman, et al. v. Parma City Schools (6th Cir. 2005)
Compare this statement with the second purpose of IDEA "(B) to ensure that the rights of children with disabilities and parents of such children are protected . . ." See 20 USC 1400(d)(1)(B) at page 33 in Wrightslaw: IDEA 2004 and at page 137 in Wrightslaw: From Emotions to Advocacy, 2nd Edition.
Contrast this statement with the ruling in by the U. S. Court of Appeals for the First Circuit:
"IDEA expressly contemplates that parents will act as advocates for their children at every stage of the administrative process, from initial IEP meetings to administrative due process hearings ... A rule prohibiting pro se representation would subvert Congress's intent by denying many children with special needs their day in court. Where parents could not obtain representation or chose not to pay for counsel, many children with special needs would be precluded from exercising their statutory right to judicial review of their administrative due process hearings." Maroni v. Pemi Baker Regional School (1st Cir. 2003)
One Family's Dilemma
Jacob Winkelman is a young child with an autism spectrum disorder. Jacob and his parents, Jeff and Sandee Winkelman, live in Ohio.
Ohio has a severe shortage of attorneys who represent children with disabilities and their parents. In the twelve months between October 2004 and September 2005, the Ohio Legal Rights Services (Ohio's federally designated protection and advocacy agency for children and adults with disabilities) received 683 requests for legal assistance. They were able to provide representation to 58 families, less than 10 percent of these cases.
"OLRS reports that during the past eight months, out of the eighty-three requests for due process hearings, parents represented themselves and their children pro se in fifty-eight (approximately 70%) of these proceedings because they could not afford representation, could not qualify for representation or could not find pro bono or other representation." (Source: Amicus Brief Filed by the Council of Parent Attorneys and Advocates, the Arc, and TASH)
On September 20, 2005, the U. S. Court of Appeals for the Sixth Circuit ruled that parents may not represent their children, nor their own interests, in federal court, and must must retain an attorney. "...the IDEA does not grant parents the right to represent their child in federal court ... "[T]he text of the IDEA does not support the proposition that its guarantee of a [free appropriate public education] is a right that [a child] shares jointly with his parents." Jacob Winkelman, et al. v. Parma City Schools (6th Cir. 2005)
Bar Investigates Parents for Unauthorized Practice of Law
After the Sixth Circuit issued this decision, the Cleveland Bar Association launched an investigation into whether parents, including Jacob's parents, were engaged in the unauthorized practice of law when they represented their children's rights under IDEA. If found guilty, the parents could be fined $10,000 for each incident and the costs incurred by the Bar for investigating them. (Source: Bar Association Battles Parents by Patrick O'Donnell, Cleveland Plain Dealer, April 27, 2006)
After intense public outcry and an adverse ruling from the Ohio Supreme Court, the Cleveland Bar Association dropped its complaint against the parents -- for now. However, the Bar Association did not rule out the possibility of bringing UPL charges against parents after the Supreme Court issues a decision in Jacob Winkelman's case. (Source: Supplemental Brief in Support of Petition for a Writ of Certiorari)
Because all states have UPL statutes, parents who plan to litigate an IDEA case on behalf of their disabled children cannot feel safe from prosecution unless they live in the First Circuit where they are protected by the decision in Maroni v. Pemi Baker Regional School, (1st Cir. 2003). "Overzealous bar prosecutors in any state outside the First Circuit may follow the Cleveland Bar Association’s lead and seek to punish parents for attempting to vindicate their disabled children’s IDEA rights in federal court the only way that, as a practical matter, many can do so – as pro se litigants. (Source: Second Supplemental Brief in Support of Petition for a Writ of Certiorari)
Supreme Court Grants Cert
On October 27, 2006, the U. S. Supreme Court agreed to hear Jacob's case and and resolve a split among circuits about whether parents can represent their children with disabilities in federal court.
"To what extent, if any, may a non-lawyer parent of a minor child with a disability proceed pro se in a federal court action brought pursuant to the Individuals with Disabilities Education Act."
Wrightslaw Note: We are working on a comprehensive article that will include the history of the case, links to cases, and briefs filed in Jacob Winkelman, et al. v. Parma City School District. This article should be available within the next few days. (11/14/06)