Home > Court Expands Rights of Parents

The Special Ed Advocate newsletter
It's Unique ... and Free!

Enter your email address below:

 

2018 Training Programs

Feb 8 - Oakland, CA

Apr 24 - Kansas City, MO

Apr 26 - St. Louis, MO

May 4 - Bowie, MD

Full Schedule

Be a Hero ...

 Jason at Ft. Benning
... to a Hero
Learn more

Wrightslaw

Home
Topics from A-Z
Free Newsletter
Seminars & Training
Yellow Pages for Kids
Press Room
FAQs
Sitemap

Books & Training

Wrightslaw Storesecure store lock
  Advocate's Store
  Student Bookstore
  Exam Copies
Training Center
Bulk Discounts
New! Military Discounts
Mail & Fax Orders

Advocacy Library

Articles
Doing Your Homework
Ask the Advocate
FAQs
Newsletter Archives
Summer School Series
Success Stories
Tips

Law Library

Articles
Caselaw
IDEA 2004
No Child Left Behind
McKinney-Vento Homeless
FERPA
Section 504
Fed Court Complaints

Topics

Advocacy
ADD/ADHD
Allergy/Anaphylaxis
American Indian
Assistive Technology
Autism Spectrum
Behavior & Discipline
Bullying
College/Continuing Ed
Damages
Discrimination
Due Process
Early Intervention (Part C)
Eligibility
Episodic, such as
   Allergies, Asthma, etc

ESSA
ESY
Evaluations
FAPE
Flyers
Future Planning
Harassment
High-Stakes Tests
Homeless Children
IDEA 2004
Identification & Child Find
IEPs
ISEA
Juvenile Justice
Law School & Clinics
Letters & Paper Trails
LRE/Inclusion
Mediation
Military / DOD
Parental Protections
PE and Adapted PE
Privacy & Records
Procedural Safeguards
Progress Monitoring
Reading
Related Services
Research Based Instruction
Response to Intervention (RTI)
Restraints/Abuse
Retention
Retaliation
School Report Cards
Section 504
Self-Advocacy
Teachers & Principals
Transition
Twice Exceptional (2e)
VA Special Education

Resources & Directories

Advocate's Bookstore
Advocacy Resources
Directories
  Disability Groups
  International
  State DOEs
  State PTIs
Free Flyers
Free Pubs
Free Newsletters
Legal & Advocacy
Glossaries
   Legal Terms
   Assessment Terms
Best School Websites

 

Court Expands Rights of Parents

By Howard Weiss-Tissman, Vermont Brattleboro Reformer
May 22, 2007

A Supreme Court decision that allows parents to represent their children in court could lead to more disputed special education cases in Vermont. The court on Monday ruled in favor of Jeff and Sandee Winkelman and their son, Jacob, in their case against the Parma City School District in Ohio.

Parents in every state can ask for a due process hearing with the state department of education when they disagree with decisions made at the local school.

But if parents are not happy with the due process determination and want to take their complaints to court, most federal judges, including those in Vermont's 2nd Circuit, would not accept the case unless the families hire a lawyer, or if the parents are lawyers.

The Winkelmans argued in the 6th circuit that they could not afford to hire a lawyer and had a right to represent their child.

The Supreme Court on Monday sided with the Winkelmans, allowing parents around the country to take their complaints about special education decisions to the next level without having to consider legal fees before proceeding.

"This is an important case," said Marc Eagle, an attorney with the Vermont Department of Education. "This means that parents will not be blocked at the door coming into court without a lawyer."

Eagle said he has seen federal judges dismiss special education cases when parents are not able to afford a lawyer.

Under the Individual With Disabilities in Education Act, the federal special education law, public schools are required to provide a free and appropriate education for all children.

Disputes sometimes arise when parents feel that the school districts are not offering their child the best services.

Karin Edwards, director of student support services at the Vermont Department of Education, said very few cases in the state are argued at the federal level.

Since 1999, of the 260 due process hearings in Vermont, only five ended up in the second circuit. Parents are allowed to represent themselves at the due process level, though they are also permitted to hire legal counsel for that hearing.

With Monday's ruling, parents might be more inclined to challenge a state's due process decision, knowing that they will be allowed to argue their own case in court.

Edwards also said that there is a shortage of attorneys in the state who specialize in special education law, and the court's ruling Monday breaks down one more barrier for parents who want to have a judge decide a case.

"One problem in Vermont is that there are not a lot of lawyers available to represent parents," Edwards said. "It's expensive and only a handful cover the whole state. There is not a lot of low cost legal firms that do this work."

Mia Karvonides, an attorney with the Vermont education department who specializes in special education law, said she was surprised with the Supreme Court decision.

The Supreme Court justices, in their ruling, determined that parents have a stake in special education decisions and have a right to argue their cases before a judge.

The justices did not determine that parents should represent their children for the good of the education, but rather, that the parents are participants in the process and deserve to have their arguments heard.

"Basically, they are saying that parents have an independent, enforceable right and can represent themselves," Karvonides said. "The courts say that a parent can not represent a minor. It is a common law concept. But in special education cases they have an important role, and the court recognized that. They are identifying the parent's rights as being something in addition to the child's rights."

Special education advocates were celebrating the decision Monday, but Karvonides said it was important to proceed cautiously before arguing a special education case on their own in federal court.

A new provision in the special education law allows the prevailing party to gather legal fees from the side that loses the case. Parents who bring their cases to the federal level, and lose, may be on the hook for paying legal fees for the school district, as well as losing their child's case.

"It is always better to go forward with an attorney," she said. "Attorneys have experience and screen a case before going forward. It is good to have a third party look at a case."

Peter Wright, a national special education attorney and advocate, said the court's ruling Monday signified a major change from past rulings that favored school districts.

"The pendulum has now swung back in favor of parents," Wright said. "The Supreme Court has made it clear that parents have the same rights the kids do. It goes back to the roots of the law. It is a great ruling."

Wright also said that the decision will probably not significantly increase the number of parents who choose to argue their case in court. But with Monday's ruling, schools that use the threat of a law suit might be less inclined to do so.

"This will help parents negotiate with school districts and give parents more leverage," he said. "Schools might not be so fast to draw a line in the sand and say, 'If you don't like our decision then sue us.'"

And Connie Curtin, executive director of the Vermont Parent Information Center said the Court decision, while not having a great influence on cases in Vermont, did favor families and children.

"I think it is a good decision that parents can represent a child in the court system," said Curtin. "There are parents that want to do that, and it is good to know that parents who want to that, can."

The Associated Press contributed to this report.

 

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon The Special Ed Advocate: It's Free!

 

Wrightslaw: Special Education Legal Developments and Cases 2016, by Pam and Pete Wright
About the Book

Wrightslaw: Special Education Law, 2nd Edition, by Pam and Pete Wright
About the Book

Wrightslaw: All About IEPs
About the Book

Wrightslaw: All About Tests and Assessments
About the Book

Surviving Due Process: Stephen Jeffers v. School Board
About the DVD Video

 

Copyright © 1998-2017, Peter W. D. Wright and Pamela Darr Wright. All rights reserved.

Contact Us | Press Mission l Our Awards l Privacy Policy l Disclaimer l Site Map

Free Shipping on Orders over $35


The Advocate's Store

Get Help!

Wrightslaw on FacebookWrightslaw on TwitterWrightslaw YouTube Channel 

Wrightslaw Books
Wrightslaw: Special Education Law, 2nd Edition, by Pam and Pete Wright

About the Book

Wrightslaw: From Emotions to Advocacy
About the Book

Wrightslaw: All About IEPs
About the Book

Wrightslaw: All About Tests and Assessments
About the Book

Surviving Due Process: Stephen Jeffers v. School Board
About the DVD Video

Student Discounts

Military Discounts


The Advocate's Store

Wrightslaw Multimedia Training


Understanding Your Child's
Test Scores (1.5 hrs)

Wrightslaw Special: $14.95

Wrightslaw Mutimedia Training Download


Special Education Law & Advocacy Training
(6.5 hrs)

Wrightslaw Special: $49.95