The Supreme Court on Tuesday heard an appeal that will clarify the situation for the parents of millions of children with disabilities and for the public school districts that are obliged to serve them under the Individuals With Disabilities Education Act.
The appeal was brought by the parents of a 9-year-old autistic boy from Parma, Ohio, who were dissatisfied with the school district’s proposal to provide their son’s special education in a public elementary school. Unable to afford a lawyer, the parents, Jeff and Sandee Winkelman, proceeded on their own to file a lawsuit challenging the adequacy of their son Jacob’s program and seeking reimbursement for the tuition at the private school where they had enrolled him.
They lost in Federal District Court in Cleveland. While their case was on appeal, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled that parents could not pursue such suits without a lawyer. Most of the federal circuits agree with that position. The Sixth Circuit ordered the Winkelmans’ case dismissed unless they retained a lawyer within 30 days.
That was 16 months ago, and several events followed, leading to the argument on Tuesday. The case caught the justices’ attention; Justice John Paul Stevens granted a stay of the Sixth Circuit’s order; the full court asked the federal government’s advice on whether to take the case; Solicitor General Paul D. Clement, representing the views of the Department of Education, told the court that the Sixth Circuit was wrong and should be reversed; and the justices agreed in late October to hear the case, Winkelman v. Parma City School District, No. 05-983.
A lawyer from the solicitor general’s office argued for the Winkelmans, as did a lawyer from a Los Angeles law firm who had agreed to handle their Supreme Court appeal without charge. “What we’re advocating here is really access to courts,” that lawyer, Jean-Claude André, told the justices.
The key to the case, Mr. André and David B. Salmons, an assistant to the solicitor general, told the court, lay in the section of the Individuals With Disabilities Education Act providing that a federal lawsuit may be brought by “any party aggrieved” by the prior administrative proceedings aimed at working out differences between parents and school districts.
Both lawyers emphasized that parents should be seen as advocating their own rights in such lawsuits, not simply standing in as representatives of their children. “Our position is that parents share in the substantive right to a ‘free appropriate public education’ under the act,” Mr. Salmons said.
Because parents are “parties” representing their own interests, the lawyers said, they are entitled to invoke the separate federal statute, part of the Judiciary Act, that provides that “in all courts of the United States, the parties may plead and conduct their own cases personally or by counsel.”
Pierre H. Bergeron, representing the Parma City School District, said that to the contrary, claims asserted by parents in these lawsuits were simply “derivative,” based on the rights that the Individuals with Disabilities Education Act gives to children themselves.
The statute gives parents certain procedural rights but not substantive entitlements, Mr. Bergeron said, adding that this was not enough to “circumvent” the basic rule that a person who is not a lawyer cannot represent another person in court.
Bar associations around the country have invoked that underlying rule to bring suits against parents who have brought disability cases on their own, charging the parents with violating state statutes against the “unauthorized practice of law.” The Cleveland Bar Association, in fact, began an investigation of the Winkelmans and another nonlawyer parent who was helping them with their case; the investigation has been put on hold.
The justices were attentive to both sides’ arguments. While several justices tipped their hands, it was difficult to read the court as a whole. Justice Stephen G. Breyer said Mr. Bergeron would have an “uphill battle” to persuade him that despite the statute’s numerous references to parents, the phrase “party aggrieved” should be interpreted as applying only to children and not to parents.
And Justice David H. Souter told Mr. Bergeron that the statutory right to a “free appropriate public education” appeared to be “a right of the family group, the parents and the child together, rather than the right of the child alone.”
On the other hand, Justice Antonin Scalia told Mr. André, the Winkelmans’ lawyer, that lawyers “protect the court from frivolous suits.” When suits are brought without lawyers, “we make a lot more work for federal district judges,” he added.
Mr. André’s response that “a capable district judge can look at the case and decide whether the school should have complied with the statutory mandate” did not satisfy Justice Scalia.
“And do it right after reading pro se prisoner petitions, right?” the justice said, using the legal term for a case filed without a lawyer. “You’d have a nice evening’s work,” he added.
“We think that pro se parents are quite different from pro se prisoners,” Mr. André replied.