Family Forum / Parenting / Spanking / May 2007

Legal Victory for Families of Disabled Students
Mark Duncan/Associated Press
Sandee Winkelman and her husband, Jeff, rear, sued the Parma, Ohio,
schools over the education of their son Jacob.

By LINDA GREENHOUSE
Published: May 22, 2007
WASHINGTON, May 21 - A Supreme Court decision on Monday gave parents
of children with disabilities the right to go to court without a
lawyer to challenge their public school district's individualized
plan for their child's education.

The 7-to-2 decision involved an interpretation of the federal law
that gives all children the right to a "free appropriate public
education," regardless of disability. Millions of children receive
benefits under the law, the Individuals with Disabilities Education
Act. Most federal appeals courts have ruled that when a dispute
brings families and school districts into court, the parents cannot
proceed without a lawyer.

Many parents, including the couple from Parma, Ohio, who brought this
case, either cannot afford a lawyer or cannot find one. Increasingly,
school districts have been bringing parents who seek to handle their
own cases into court on charges of violating state statutes against
the "unauthorized practice of law."

The Supreme Court's ruling will therefore change the status quo in
many parts of the country, opening federal courthouse doors that were
previously closed to parents. The Bush administration supported the
parents in this case, Jeff and Sandee Winkelman, who were represented
in the Supreme Court without charge by a lawyer from Los Angeles,
Jean-Claude André.

The court's analysis, in a majority opinion by Justice Anthony M.
Kennedy, was based on the conclusion that the statute guarantees
rights not only to children, but also to their parents. Consequently,
Justice Kennedy said, when parents go to court to protest the school
district's proposal for their child, they are representing their own
interests, as everyone is entitled to do in any federal court case,
and are not acting as the unauthorized lawyers for someone else.

One of the oldest federal laws on the books, derived from the
original Judiciary Act of 1789, provides that "in all courts of the
United States the parties may plead and conduct their own cases
personally or by counsel."

Whether parents may represent their child in court, as opposed to
themselves, is a question "we need not reach," Justice Kennedy said,
in light of the majority's conclusion that the interests of parents
and children in a child's education are inextricably intertwined. The
decision by Congress to recognize parental rights under the statute
was "fully in accord with our social and legal traditions," Justice
Kennedy said.

The two dissenters were Justices Antonin Scalia and Clarence Thomas.
In an opinion by Justice Scalia, they said the statute permitted
parents to represent themselves in certain administrative
proceedings, like a hearing on whether they are entitled to
reimbursement for private school expenses.

But while the statute gives parents a right to reimbursement under
certain circumstances, Justice Scalia argued, the "substantive right"
to a "free appropriate public education" belongs not to the parent
but to the child, "for it is he who receives the education."

Justice Scalia continued: "The parents of a disabled child no doubt
have an interest in seeing their child receive a proper education.
But there is a difference between an interest and a statutory right."

The case, Winkelman v. Parma City School District, No. 05-983, began
with the parents' dissatisfaction with the school district's
educational plan for the youngest of their five children, Jacob, who
has a form of autism. Unable to afford a lawyer, they filed their own
lawsuit in Federal District Court in Cleveland. They lost, and while
the case was on appeal, the United States Court of Appeals for the
Sixth Circuit ruled in another case that parents bringing such suits
could not proceed without a lawyer.

The appeals court, based in Cincinnati, ordered the Winkelmans' case
dismissed unless they retained a lawyer within 30 days. Justice John
Paul Stevens, who oversees the Sixth Circuit, granted a stay of that
order to enable the Supreme Court to decide what to do.

The court asked the Bush administration for the views of the
Department of Education, which agreed with the Winkelmans. Solicitor
General Paul D. Clement urged the justices to accept the parents'
appeal and overturn the Sixth Circuit's decision.

The National School Board Association and other school management
groups entered the case on the side of the school district. They
warned that allowing parents to proceed without lawyers
would "increase the already burdensome costs of special-education
litigation" because parents lack professional experience and judgment
and would be "emotionally invested in the outcome of the case."

Of the Parma district's 13,000 students, 2,200, or about 17 percent,
are identified as special-education students, a proportion similar to
that in many other districts. School districts frequently complain
that while they must comply with many federal requirements for
special education, there is less and less federal money available.

In another action on Monday, the court dismissed an appeal brought by
the State of Missouri in a death penalty case. The case, Roper v.
Weaver, No. 06-313, was argued two months ago, with the state
maintaining that a federal appeals court improperly granted habeas
corpus to a death row inmate, William Weaver.

In an unsigned opinion, over the dissenting votes of Justices Scalia,
Thomas and Samuel A. Alito Jr., the court said that on
reconsideration and for procedural reasons, fairness to the defendant
required dismissal. Justice Scalia, joined by the other two
dissenters, denounced the result as "a rare manifestation of judicial
clemency unrestrained by law."