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Can't Find or Afford an Attorney?
Can You Represent Your Child's Interests?

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The answer to this question is - it depends on where you live.

If you live in Ohio, Michigan, Kentucky, or Tennessee, states that are governed by the
U. S. Court of Appeals for the Sixth Circuit, you cannot represent your child's rights under IDEA now.

If you live in Maine, Massachusetts, Rhode Island, New Hampshire, or Puerto Rico, states governed by the U. S. Court of Appeals for the First Circuit, you may represent your child's IDEA rights. (Click here to find your Circuit)

Jacob Winkelman is a young child with an autism spectrum disorder. Jacob and his parents, Jeff and Sandee Winkelman, live in Ohio.

On September 20, 2005, the U. S. Court of Appeals for the Sixth Circuit issued a decision in Jacob Winkelman, et al. v. Parma City Schools, ruling that Jacob's parents were not allowed to represent him but must retain an attorney because "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)

In 2006, the Cleveland Bar Association initiated an investigation into whether Jacob's parents were engaged in the unauthorized practice of law. (Bar Association Battles Parents by Patrick O'Donnell, Cleveland Plain Dealer, April 27, 2006) If found guilty, Jeff and Sandee Winkelman could be fined $10,000.

Unfortunately, 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 (OLRS) received 683 requests for legal assistance. They were able to provide representation to 58 families, less than 10 percent of these cases.

Background: Jacob's Case

In 2001, Jacob's parents met with officials of the Parma City School District. The team decided to place Jacob at the Achievement Center, a preschool program for young children.

Two years later, the parents and public school officials met to decide on an IEP for the next school year. The school offered to place Jacob in a public school kindergarten program. Jacob's parents did not agree that this program met Jacob's unique needs, as required by law.

This led to a disagreement about Jacob's "current educational placement." His parents requested a due process hearing to resolve this question. The Hearing Officer concluded that the Achievement Center was Jacob's current educational placement, although the preschool would not be able to meet his needs much longer. The parents then enrolled Jacob in the Monarch School, a private school that specializes in educating children with autistic spectrum disorders.

A few months later, the Hearing Officer concluded that the public school program was appropriate and denied the parents' request for tuition reimbursement for the Monarch School.

During the due process hearings and administrative appeal, Jacob was represented by his parents. After the parents received an adverse decision from the federal district court, they appealed to the U. S. Court of Appeals for the Sixth Circuit. The Sixth Circuit ruled that parents may not represent their children, nor their own interests in federal court, but must retain an attorney.

On October 27, 2006, the U. S. Supreme Court agreed to hear Jacob's case. They will resolve a split among the circuits about whether parents can represent their children with disabilities in federal court.

Question Presented

"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."

Brief for the United States as Amicus Curiae

Before the Supreme Court agreed to hear Jacob's case, they asked the Solicitor General to submit a brief to express the views of the United States.

The Solicitor General urged the Supreme Court to grant the petition for certiorari: "The Sixth Circuit's holding barring parents from appearing pro se in civil actions under the Act is inconsistent with the plain language, structure, and purpose of IDEA." He urged the Supreme Court to resolve this conflict in light of the critical interests in IDEA litigation, the recurring nature of the question, and the need to ensure that IDEA is applied in a uniform manner.

Split Among Circuits: May Parents Represent Their Children Pro Se?

The brief by the Solicitor General described a split among circuits and asked the Court to "resolve this inter-circuit split."

"As several courts of appeals ... have expressly acknowledged, the circuits are divided on that question."

Collinsgru v. Palmyra (3rd Cir. 1998)

In Collinsgru v. Palmyra, the U. S. Court of Appeals for the Third Circuit held that parents who file IDEA lawsuits in federal court may proceed pro se on their own procedural claims only.

In a divided decision, the court concluded that parents have no substantive rights of their own under IDEA so they cannot proceed to federal court without an attorney. Judge Roth dissented because parents enjoy "joint rights with their [children] under the IDEA which they may pursue pro se in the federal courts."

Maroni v. Pemi Baker Regional School (1st Cir. 2003)

Five years later, in Maroni v. Pemi Baker Regional School, the U. S. Court of Appeals for the First Circuit "expressly rejected the reasoning of the Third Circuit in Collinsgru" and held that parents are 'parties aggrieved'" under IDEA and may proceed pro se.

Cavanaugh v. Cardinal Local Sch. Dist. (6th Cir. 2005)

Two years later, in Cavanaugh v. Cardinal Local Sch. Dist, "The Sixth Circuit expressly rejected the position of the First Circuit which held that parents may proceed pro se under IDEA."

"The Sixth Circuit held that parents cannot proceed pro se on behalf of their children under IDEA and that parents have no substantive claim of their own to a free appropriate public education."

Parental Involvement Necessary for FAPE

In the amicus brief filed on behalf of Jacob Winkelman and his parents, the Solicitor General wrote, "IDEA's procedural protections are designed to encourage parental involvement in the ultimate goal of having the child receive a free appropriate public education. The IDEA statement of purpose explicitly recognizes the statute's mission "to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(B)

The Solicitor General described the disadvantages parents face when they attempt to obtain a free appropriate public education since "school districts are usually represented by counsel and have ... a built-in advantage over other IDEA litigants."

"We find it unlikely that Congress intended to put parents who attempt to proceed pro se at the even greater disadvantage of preventing their suits from going forward at all."

Counsel of Parent Attorneys and Advocates, The Arc, and TASH: Winkelman Decision Renders IDEA Rights "Empty and Meaningless"

The Council of Parent Attorneys and Advocates (COPAA), The Arc, and TASH filed a brief on behalf of Jacob and his parents. The brief focused on concerns about "the limited number of attorneys available to represent children with disabilities in IDEA proceedings, and whether the rights of parents to represent their own interests pro se are being abridged."

The brief includes interesting statistics about the availability of attorneys who can represent children with disabilities in Ohio and other states and urges the U. S. Supreme Court to grant certiorari to clarify that parents are not engaged in the unauthorized practice of law:

"A frightening prospect for Ohio families is that parental ardor to ensure that a child with disabilities receives FAPE could also result in punishment by the State. The Cleveland Bar Association has recently initiated an investigation as to whether the Winkelman's pro se representation ... constituted the unauthorized practice of law."

"It is unfathomable that the Winkelmans may be prosecuted ... the potential for such actions serves as a significant deterrent to pro se parents seeking enforcement of their children's IDEA rights in court." Read brief.

Links to Amicus Briefs

Brief from the United States as Amicus Curiae:
URL: http://www.harborhouselaw.com/law/plead/winkelman.amicus.doj.cert.pdf

Brief of Amici Curiae: Council of Parent Attorneys and Advocates, The ARC and TASH
URL: http://www.harborhouselaw.com/law/plead/winkelman.amicus1.pdf

Links to Cases About Parental Representation

Cavanaugh v. Cardinal Local Sch. Dist., 409 F.3d 753 (6th Cir. 2005)
URL: http://www.wrightslaw.com/law/caselaw/05/cavanaugh.cardinal.htm


Collinsgru v. Palmyra Bd. of Educ
., 161 F.3d 225 (3rd Cir. 1998)
URL: http://www.wrightslaw.com/law/caselaw/3rd.collinsgru.palmyra.htm

Maroni v. Pemi-Baker Regional Sch., 36 F.3d 247 (1st Cir. 2003)
URL: http://www.wrightslaw.com/law/caselaw/2003/1st.maroni.pemi.baker.htm

Jacob Winkelman, et al., v. Parma City Sch. Dist.
(6th Cir. 2005)
URL: http://www.wrightslaw.com/law/caselaw/05/6th.winkelman.parma.pro.se.htm

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Revised: 10/28/08
Created: 11/13/06



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