"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."
Background of Case
Jacob Winkelman is a young child with an autism spectrum disorder. Jacob and his parents, Jeff and Sandee Winkelman, live in Ohio.
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.
Due Process Hearing
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 parents may not represent their children, nor their own interests in federal court, but must retain an attorney.
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, holding 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)
Bar Association Investigates Parents for Unauthorized Practice of Law (UPL)
After this decision, 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.
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 the requests for help.
Supreme Court Agrees to Hear Case
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.
Brief for the United States as Amicus Curiae
Before the U. S. Supreme Court agreed to hear Jacob's case, they invited the Solicitor General to submit a brief "to express the views of the United States." Read Brief of Solicitor General.
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.
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 of Appeals 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."
Procedural Protections and arental 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's brief 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."
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 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 Pleadings
Petition for Writ of Certiorari - Parents' request that U. S. Supreme Court hear their case; includes reasons why the high court needs to resolve the split among circuits on this issue. (02/02/06)
Respondent Parma City School District's Brief in Opposition to Petition for Certiorari (04/06/06)
Reply Brief for the Petitioners (04/18/06)
Supplemental Brief in Support of Petition for Writ of Certiorari - Supplemental Brief includes documents filed by the Cleveland Bar Association in their investigation of the Winkelmans’ pro se litigation; also documents in the UPL complaint by the Cleveland Bar against other non-lawyer parents who litigated their disabled child’s IDEA cases pro se in U. S. District Court. (03/30/06)
Second Supplemental Brief in Support of Petition for Writ of Certiorari - After the school's brief in opposition and the parents' reply brief were filed with the U. S. Supreme Court, the Ohio Supreme Court ordered “the Cleveland Bar Association to show cause, through the production of evidence ... why the complaint it has filed against [the parents] * * * should not be dismissed ...” because it appears that the parents have not engaged in the unauthorized practice of law. Cleveland Bar Ass’n v. Woods, 109 Ohio St. 3d 1418 (2006).(05/08/06)
Links to Amicus Briefs
Briefs Requesting that Supreme Court Grant Certiorari
Brief from the United States as Amicus Curiae
Brief of Amici Curiae: Council of Parent Attorneys and Advocates, The ARC and TASH
Amicus Briefs on the Merits
Brief of the Ohio Coalition for the Education of Children With Disabilities and the Autism Society of Ohio as Amicus Curiae
Brief of Amici Curiae: Council of Parent Attorneys and Advocates and eleven other advocacy organizations
Note: We understand that briefs have been filed by other amicus curiae, including Senators Kennedy and Harkin, and Representatives Miller and Kucinich. We will continue to add briefs as they become available.
Links to Cases About Parental Representation
Cavanaugh v. Cardinal Local Sch. Dist., 409 F.3d 753 (6th Cir. 2005)
Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225 (3rd Cir. 1998)
Maroni v. Pemi-Baker Regional Sch., 36 F.3d 247 (1st Cir. 2003)
Jacob Winkelman, et al., v. Parma City Sch. Dist. (6th Cir. 2005)
Articles about Jacob Winkelman's Case
Can You Represent Your Child's Rights Under IDEA? by Peter W. D. Wright and Pamela Wright
Government Urges Review of Parents' IDEA Role - Posted on Scotusblog by Lyle Denniston
Pro Se Plea: Parents Seek the Right to Represent Their Son's Case in Federal Court on ParentAdvocates.org
Bar Association Battles Parents - Says Couple Served as Lawyers by Patrick O'Donnell, Cleveland Plain Dealer