US Parents Can Represent Children

May 21, 2007 permalink

An important decision by the US Supreme Court helps parents protect their own children. In a court, a person can be represented by himself or a lawyer. American courts have used this rule to prevent parents from speaking for their children in the courts. Now the Supreme Court has rejected the idea, and said that the interest of the child is that of the parent. The practical effect is to allow children of parents who are not wealthy to have a voice in judicial proceedings.

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The Washington Post

Justices Back Parents in Special Ed Case

By MARK SHERMAN, The Associated Press, Monday, May 21, 2007; 4:26 PM

WASHINGTON -- Parents need not hire a lawyer to sue public school districts over their children's special education needs, the Supreme Court ruled Monday.

The decision makes it easier for parents to file federal lawsuits if they are unhappy with a local school system's plans to educate children with mental retardation, autism or other disabilities.

Justice Anthony Kennedy, writing for the court, said not just children, but also their parents have legal rights under the Individuals With Disabilities in Education Act, the main federal special education law.

"They are, as a result, entitled to prosecute IDEA claims on their own behalf," Kennedy said.

Justices Antonin Scalia and Clarence Thomas, who partially dissented from the decision, said they favored giving parents more limited rights to sue.

The decision came in the case of Jacob Winkelman, a 9-year-old autistic boy from Ohio, whose parents argued they were effectively denied access to the courts because they could not afford a lawyer to challenge the school district's plans for their son.

Federal law gives every child the right to a free appropriate public education, which in the case of special needs children sometimes means enrollment in a private facility.

But most federal courts had concluded that parents who are not lawyers and who want to challenge decisions have to hire an attorney to represent them.

The court sided with Jacob and his parents, Jeff and Sandee Winkelman, in their fight against the Parma, Ohio school district in suburban Cleveland.

The Winkelmans can't afford a lawyer or the cost of private schooling for Jacob. Neither parent is a lawyer.

The parents objected to the Parma schools' plan to educate Jacob at a public school. They wanted the district to pay for his $56,000 yearly enrollment in a private school that specializes in educating autistic children.

The Winkelmans have spent about $30,000 in legal fees since first contesting Jacob's treatment in 2003. Jeff Winkelman has taken a second job while his wife has researched previous court rulings and written her own filings.

Sandee Winkelman said she might press the case on behalf of Jacob with one of several attorneys who have offered to represent the family for free. If that doesn't work out, she said, the family would proceed without an attorney.

"I would prefer to give Jacob the best chance with an attorney. That's the best-case scenario," she said after the ruling was announced. "I'm very pleased. It restored a lot of faith I have in the system."

It is unclear how many parents forgo lawsuits because they can't afford them, although advocates for disabled children said in court papers that most parents of disabled children lack the means to hire a lawyer.

Nearly 7 million of the nation's 50 million children in public schools are enrolled in special education programs.

Francisco Negron, general counsel for the National School Boards Association, said he understood that the justices worried about not "foreclosing the right of parents to seek their day in court."

But Negron said the decision left unresolved questions about how effectively parents who are not trained in the law could represent their children's interests in a court proceeding.

"Our greatest concern is whether this means parents will see this an open gate to litigate rather than collaborate. That would be a shame because IDEA has always been about collaboration," Negron said.

Parents unhappy with a district's plan can appeal the decision through an administrative process. If they remain dissatisfied, they can file a civil lawsuit on their child's behalf, federal courts have said. At that point, however, most courts have said the parents must hire a lawyer.

Whether Jacob should have private schooling at public expense was not before the Supreme Court, only his parents' right to go into federal court without a lawyer.

The 6th U.S. Circuit Court of Appeals had ruled in the school district's favor. Monday's ruling overturned that decision.

The case number is Winkelman v. Parma City School District, 05-983.

Source: Washington Post