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Tuesday, February 27, 2007

Law - More on: Two parents' rights cases before the U.S. Supreme Court [Updated]

The case involving the right, if any, of a non-attorney parent to represent his child in court, reported on in this ILB entry yesterday, was argued today before the Supreme Court. Here is an AP report:

Parents should not be forced to hire a lawyer to sue public school districts over their children's special education needs, the lawyer for parents of an autistic child told the Supreme Court Tuesday.

"What we're advocating here is access to the courts," said Jean-Claude Andre, who represents Jeff and Sandee Winkelman, and their son, Jacob, in their fight against the Parma, Ohio school district.

Until now, most federal courts have said parents don't have the right to sue and, if they are not lawyers, cannot represent their children in lawsuits filed under the Individuals With Disabilities in Education Act, the main federal special education law.

The Winkelmans can't afford a lawyer or the cost of private schooling for 9-year-old Jacob. Neither parent is a lawyer. * * *

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. * * *

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

Pierre Bergeron, a lawyer for the school district, said the law exists to protect the rights of children, not their parents. Andre, representing the Winkelmans free of charge, said the law closely links the rights of children and their parents.

Several justices indicated they agree with Andre. "Throughout the whole act, they talk about parents and students," said Justice Stephen Breyer.

Chief Justice John Roberts, Justice Samuel Alito and Justice Antonin Scalia seemed most skeptical of the parents' claims.

Alito said he is concerned that parents who represent themselves or their children would have "difficulty maintaining emotional detachment" from the lawsuit.

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, they must find a lawyer, the 6th U.S. Circuit Court of Appeals ruled in the Winkelmans' case. People who are not lawyers can represent themselves in court proceedings, but not other parties. The appeals court said the law requires the child to be the plaintiff.

Here is the 71-page transcript of today's oral arguments. Here, from SCOTUSblog, is an argument preview, with links to the briefs.

[Update 2/28/07] Here is the NYT's Linda Greenhouse's coverage of yesterday's oral arguements in the Parma case. A quote:

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.

Posted by Marcia Oddi on February 27, 2007 03:15 PM
Posted to General Law Related