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 Home > News > Will Supreme Court Side with the Parents in Winkelman v. Parma? Oral Argument Offers Clues by Wayne Steedman, Esq. (03/01/07)


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Will Supreme Court Side with the Parents in Winkelman v. Parma?
Oral Argument Offers Clues
by Wayne Steedman, Esq.

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On February 27, 2007, the Supreme Court heard oral argument in the case of Winkelman v. Parma City Schools.

In this article, parent attorney Wayne Steedman described the arguments made, how they were received, and questions asked and answered. At the end of oral argument, Mr. Steedman did a "quick unofficial poll" of observers about their predictions.

This article includes links to the transcript of oral argument and a Quick Poll so you can cast your vote about the outcome in this important case.

Sandee and Jeff Winkelman are the parents of Jacob, a child with autism.

Jean-Claude Andre, Esq., Los Angeles, CA, represented the parents.

David B. Salmon, Esq., Assistant to the Solicitor General, Department of Justice, appeared on behalf of the United States, as amicus curiae, supporting the parents.

Pierre H. Bergeron, Esq., Cincinnati, OH, represented the school district.

Question Presented

The question before the Court in Winkelman v. Parma City Schools was to what extent, if any, non-lawyer parents may represent their child with a disability in Federal Court under the Individuals with Disabilities Education Act.

Although an individual may represent himself in a court of law, he may not represent another person unless he is admitted to practice law in that court. This rule applies equally to family members and strangers.

Parental Representation

The Individuals with Disabilities Education Act (IDEA) clearly provides parents the right to represent their child in administrative hearings, but is silent on whether parents may represent their child in Court. Counsel for the parents argued that IDEA grants them the right to represent their own interests, in addition to the rights of their minor child, and that the rights of the parents and child are inseparable. The United States supported the parents’ position.

Counsel for Parma City Schools argued that parents have no right under the IDEA to represent their children’s interests in federal court.

All the Justices seemed to reject this argument, at least in part. Some Justices agreed that parents could represent themselves in seeking a remedy for a school district’s violation of their procedural rights, in addition to tuition reimbursement.

However, Justices Scalia and Roberts appeared to take the position that parents could not bring an action in federal court for a denial of free appropriate public education (FAPE) because the child, not the parents, is entitled to a FAPE.

Justice Scalia rejected the argument by the Solicitor General of the United States that parents who cannot afford an attorney have no recourse but to represent their child themselves, stating these parents would be incapable of representing their children.

Procedural Rights and Substantive Rights

Justice Souter questioned the need for procedural rights if parents could not make a claim for a denial of FAPE. In other words, what good are procedural rights if only the child, not the parent, can challenge the IEP or placement?

School board counsel stated that a Judge or Hearing Officer can not rule that there has been a denial of FAPE based on procedural violations alone. But Justice Souter noted that procedural rights protect the child’s substantive rights to a free appropriate public education (FAPE). If IDEA provides parents with procedural rights and the child with substantive rights, then the two are intertwined and the child’s rights and the parents’ rights are inseparable.

Can Parents Be a “Party Aggrieved”?

Counsel for the school district argued that the IDEA only permits a “party aggrieved” by an administrative decision to file a civil action. The school district asserted that parents are not a party aggrieved, because IDEA does not guarantee them a right to an appropriate education.

But Justice Breyer noted that a parent who is denied tuition reimbursement to which the parent believes he or she is entitled is a party aggrieved under the law.

Justice Roberts also noted that the attorneys’ fees language in the Act provides for reimbursement to “a prevailing party who is the parent of a child with a disability.” The language seems to provide parents “party” status, in contrast to the school district’s argument.

Concerns about Frivolous Lawsuits

Justice Scalia expressed concerns about the likelihood that parents would file frivolous lawsuits.

He noted that attorneys, as officers of the court, are charged with filtering out claims that have no merit and are prohibited from filing frivolous lawsuits. Justice Scalia seemed concerned that these lawsuits could to add more work to Courts that are already overburdened.

Parents' counsel responded: “It is our position that those public policy concerns about pro se litigants burdening the court, burdening opposing counsel are dramatically outweighed by the fact that -- by the reality that two-thirds of the disabled children in the United States come from families that cannot afford counsel …”

Justice Kennedy asked if there was any argument during the case that the Winkelman’s claim was frivolous.

Parents’ counsel responded: “No, there was not. And then that brings me to my last point . . . as a practical matter, there is a very limited private special ed bar and they cherry-pick only the best cases. But that doesn't mean that all the cases that are left are frivolous or meritless. There's a whole universe of cases out there, some of which may be quite strong, some of which may be on the borderline, and some which may be meritless.”

Do Parents Have Necessary Knowledge and Emotional Detachment?

Justice Alito expressed concerns about the practical benefit to parents, in light of the complexity of the IDEA and the difficulty parents would have in maintaining emotional detachment.

Parents' counsel responded: “...parents already have to get to know the statute and the applicable regulations when they bring these cases at the administrative level. By the time they get to court, they are intimately familiar with the facts and intimately familiar with the relevant law. The only thing that's different about the court action and the administrative proceeding is now you have the Federal Rules of Civil Procedure.”

Justice Scalia replied: “These disadvantaged parents that you are referring to who comprise the majority of parents, they're really up on section, you know, (h)(1) and all that stuff? I find that hard to believe. I mean, the people you're assertedly benefiting here are the people least likely to have familiarized themselves with the statute and the procedures.”

Parents' counsel disagreed, and explained his position that parents need access to the Courts:

“I'm not sure we agree, with all due respect, Justice Scalia . . . What we're advocating here is really access to the courts. Let the parents, whether they are brilliant writers or they're not so good at writing, let them at least have access to the courts so . . . a capable district judge can look at the case and decide whether the school should have complied with the statutory mandates.”

"All Rights of the Statute are Shared by the Parent"

Mr. Salmons, Assistant Solicitor General, represented the United States in support of the parents. Mr. Salmons argued that the right to a free appropriate public education is defined in part in terms of the parents’ interests.

He noted that “the Individualized Educational Program or IEP process is the process by which parents are given the right to participate as full members of the IEP team and have a say in helping to define what is an appropriate education for the child.”

“. . . our position is that all the rights of the statute are rights that are shared by the parent.”

Justice Scalia rejected the argument by the Solicitor General that parents who cannot afford an attorney have no recourse but to represent their child themselves, stating these parents would be incapable of representing their children.

Common Law Rule Bans Parental Pro Se Representation

Counsel for the school board opened by citing the common law rule “banning parental pro se representation [that] is as longstanding as it is pervasive.”

Justice Stevens asked how he classified the right to reimbursement, and to whom reimbursement is paid. Mr. Bergeron responded that the reimbursement is paid to the child. Justice Stevens asked, “You reimburse the child for money his parents spent?”

Justice Souter questioned how a child could reimburse his parents for money spent on his behalf. “[If] the reimbursement is paid to the child, now does the child get the money to the parents?”

“Procedural Rights Are for Parents and Students”

Justice Breyer took a different tack: “I'm puzzled about why we're talking about this complicated thing . . . the statute as I read it has a section and it's called procedural, procedural rights . . . And it says that the procedural rights, right at the beginning, are for both the children and the parents . . . Why isn’t that the end of it?”

Although school district counsel continued to argue about the distinctions between the rights of the parent and the child, the Justices did not seem to be persuaded.

After school board counsel advanced an argument about the transfer of rights at the age of majority, Justice Scalia responded: “Not only doesn’t that help you, it seems to me it hurts you. It acknowledges that there are rights accorded to parents.”

Justice Roberts cited the statute about attorneys fees, “that fees are allowed to a prevailing party who is the parent of a child with a disability . . . that’s the most difficult express language for you to deal with.”

Spending Clause Argument

In conclusion, school district counsel claimed that lawsuits by non-attorney parents would cause additional expenses to States, expenses that the States did not anticipate when they agreed to implement the IDEA. “It is much more serious and severe than the expert witness fees at issue in Arlington . . . ”

The Justices did not seem to be persuaded by this argument either.

Justice Ginsberg said she could not see how allowing parents to file IDEA claims in Court would cost schools districts more money since parents who represent their children are not entitled to attorneys’ fees.

Justice Roberts noted that when parents who are represented by an attorney are prevailing parties in an IDEA dispute, the school district must reimburse their attorneys’ fees. When parents represent themselves, the school district will avoid this obligation.

Notwithstanding the additional expense argument, some Justices seemed concerned about the potential for frivolous claims brought by parents.

Justice Souter asked school board counsel if there were any figures for frivolous cases brought by lawyers and frivolous cases brought by parents acting pro se. School board counsel acknowledged that there was no data on this issue.

After rebuttal by the parents’ counsel, oral argument ended. The case was submitted at 11:04 a.m.

The Court is expected to issue a decision by the end of this term.

A quick, unofficial poll of observers at oral argument yielded the belief that the Supreme Court is likely to side with the parents on this one.

Will the Court issue a favorable decision for the parents or the school? Will the decision be split or unanimous? You cast your vote about the outcome of this case. Here are the results of the Winkelman Parma poll:

And the results are....

Read the transcript of oral argument.

The Court is expected to issue a decision by the end of this term, in late June or early July 2007. We will be able to answer this question in a few months – or sooner.

The Court may issue a decision more quickly. Pete received a unanimous decision in Florence County School District IV v. Shannon Carter 34 days after oral argument.

Listen to Justice Sandra Day O'Connor read the decision in Shannon Carter's case  

You can download the transcript of oral argument from:

http://www.wrightslaw.com/law/oa/winkelman.parma.pdf or

http://www.wrightslaw.com/law/oa/winkelman.parma.doc

More Winkelman Parma Resources

Supreme Court to Hear Oral Argument in Winkelman v. Parma City Schools on February 27 - This page includes the background of the case, links to briefs from amicus curiae, links to other decisions about parental representation from Courts of Appeals, a discussion of the issues from briefs filed, links to pleadings in the case.

The most recent article about the Winkelman case is “Argument Recap: Winkelman v. Parma City School District on 2/27” by Molly Cutler of the Stanford Supreme Court Litigation.

U. S. Supreme Court

For Supreme Court news, commentary and analysis, orders, opinions, and multimedia, go to Scotusblog.

Oyez is the Supreme Court multimedia site where you can hear podcasts, interviews, and take a virtual tour of the Supreme Court building.

To learn more about the U. S. Supreme Court, and the procedures that govern the Court, go to the official U. S. Supreme Court site.

About the Author


Wayne Steedman is an attorney and founding partner in the law firm of Callegary & Steedman. Mr. Steedman's practice is devoted primarily to the representation of children with disabilities. He has represented his clients in administrative due process hearings and state and federal courts.

In addition to a law degree from the University of Maryland, Mr. Steedman has a Masters Degree in Social Work. For several years, he served as a Due Process Hearing Officer in special education cases. He is an active member of the Council of Parent Attorneys and Advocates (COPAA).

As a member of the Wrightslaw Speakers Bureau, Wayne Steedman provides training for parents, educators, advocates, attorneys, and others who want to ensure that children with disabilities receive quality special education programs. Wayne Steedman's bio

Contact Info

Wayne Steedman, Esq.
Callegary & Steedman, P.A.
301 N. Charles Street, Suite 600
Baltimore, MD 21201
Phone: 410-576-7606 l Fax: 410-576-0454
Website: Callegary & Steedman, PA
Email: wayne@callegarysteedman


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Revised: 03/02/07
Created: 03/01/07



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