Should Parents Be Allowed to Represent Themselves and Their Children to Enforce IDEA Rights?

NCD Speaks Out on Supreme Court Winkleman v. Parma City School District Case
NEWS RELEASE

NCD #07531
February 26, 2007
Contact: Mark S. Quigley
202-272-2004
202-272-2074 TTY

National Council on Disability Speaks Out
on Supreme Court Winkleman v. Parma City School District Case

WASHINGTON, D.C. National Council on Disability (NCD) chairperson John R. Vaughn today released the following statement regarding the United States Supreme Court oral argument, which will be heard on February 27, on whether parents may, without a lawyer (pro se), file a lawsuit to enforce their child's rights under the Individuals with Disabilities Education Act (IDEA).

The case of Winkleman v. Parma City School District (No. 05-983) addresses a split among circuit courts, one circuit deciding that there are no limitations on the parents' ability to prosecute pro se an IDEA case in federal court, several circuits ruling that under IDEA parents can only represent pro se their own interests and not those of their child, and the Sixth Circuit said in Winkleman that parents cannot represent themselves or their kids in court under IDEA.

As an independent federal agency that is statutorily charged with the responsibility of promoting disability laws and programs, NCD is concerned about maintaining the ability of parents to obtain the rights and benefits guaranteed to their children under IDEA.

Jacob Winkleman is a student with autism whose parents disagreed with the school district's individualized education program (IEP) for Jacob. After administrative hearings affirmed the IEP, Jacob's parents chose to place him in a private school at their own expense and petitioned a federal district court for reimbursement.
The district court denied their request. At that point, the Winklemans had spent three years and $30,000 in legal fees on a household income of less than $40,000 per year. When the Winklemans appealed the federal district court decision, they sought to argue the case themselves because they could no longer afford legal representation. The U.S. Court of Appeals for the Sixth Circuit dismissed the suit finding that IDEA does not expressly provide for the right of a parent to represent the interests of his/her child in federal court. The circuit court also ruled that non-lawyer parents cannot represent themselves either, because IDEA provides for the rights of the child, not the parents. Based on the circuit court holding, the Cleveland Bar Association initiated an investigation into whether the Winklemans engaged in the unauthorized practice of law in attempting to pursue the matter in federal court.

At stake is the extent of access to IDEA rights and protections for seven million children and youth with disabilities. NCD affirms that in the nearly three decades that NCD has monitored IDEA, it is clearly established that parents are a main enforcement vehicle for ensuring compliance with IDEA. The statutory scheme of IDEA makes parental involvement and access to legal services integral to the protection of a child's rights under IDEA. In conducting its series of evaluative studies on education, NCD has consistently received reports from parents about their inability to find or afford lawyers to assist them with receiving the full benefits of IDEA for their children. NCD also has found through its research that families with children with disabilities are overrepresented among poor populations. NCD notes that there is a severe shortage in Ohio of attorneys with expertise in IDEA, and that the Ohio Legal Rights Service accepts a small percentage of requests by families for legal representation. Thus, it is critical to maintain the ability of parents like the Winklemans to pursue on their own legal recourse if they disagree with administrative decisions regarding the education of their child and cannot find or afford an attorney.
NCD also appreciates the position of the U.S. Solicitor on the matter, who has submitted a brief to the U.S. Supreme Court arguing that the Sixth Circuit holding is "inconsistent with the plain language, structure, and purposes of IDEA."

NCD urges that the resolution of the Winkleman case give full effect to the educational guarantees of IDEA by supporting the rights of parents to pursue the interests of their children regardless of whether they have a lawyer to assist them.

Recent NCD information regarding IDEA issues includes the
following:

Individuals with Disabilities Education Act Burden of Proof: On Parents or Schools?
www.ncd.gov/newsroom/publications/2005/burdenofproof.htm

Lessons for All of Us: Protecting the Right to Education for Persons with Disabilities, www.ncd.gov/newsroom/publications/2005/lessons.htm

Improving Educational Outcomes for Students with Disabilities, www.ncd.gov/newsroom/publications/2004/educationoutcomes.htm

People with Disabilities and Postsecondary Education, www.ncd.gov/newsroom/publications/2003/education.htm

People with Disabilities on Tribal Lands: Education, Health Care, Vocational Rehabilitation, and Independent Living, www.ncd.gov/newsroom/publications/2003/tribal_lands.htm

School Vouchers and Students with Disabilities, www.ncd.gov/newsroom/publications/2003/vouchers.htm

Individuals with Disabilities Education Act Reauthorization: Where Do We Really Stand?
www.ncd.gov/newsroom/publications/2002/synthesis_07-05-02.htm
and Back to School on Civil Rights,
www.ncd.gov/newsroom/publications/2000/backtoschool_1.htm

For more information, contact Mark Quigley or Jeff Rosen at
202-272-2004 or 202-272-2074 TTY.

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Note: NCD is an independent federal agency making recommendations to the President and Congress to enhance the quality of life for all Americans with disabilities and their families.


Source: Mark S. Quigley
Director of Communications
National Council on Disability
1331 F Street, NW Suite 850
Washington, DC 20004
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For more education news issues, see:
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To join the Disability Law Committee, contact Austin Newberry at the Bar, at anewberry@flabar.org.