Playing lawyers: the implications of endowing parents with substantive rights under IDEA in Winkelman v. Parma City School District.

• Author: Steiner, Logan
• Position: Individuals with Disabilities Education Act

Congress has long struggled with how best to protect the educational interests of children with disabilities. (1) The Individuals with Disabilities Education Act (IDEA) (2) seeks to prevent discrimination against children with disabilities and to assist in providing them a free appropriate public education (FAPE) by authorizing federal grants to states. (3) The Act also supplies legal remedies if a child with a disability is not given a FAPE. (4) Until recently, courts of appeals have disagreed about whether parents of children with disabilities may prosecute IDEA claims pro se in federal court, (5) Last Term, in Winkelman v. Parma City School District, the Supreme Court held that parents of a child with autism spectrum disorder were "entitled to prosecute IDEA claims," including substantive claims to a FAPE, on their own behalf--effectively allowing parents to litigate their children's substantive interests. (6) The Court in Winkelman failed to consider the policies underlying the common law prohibition against non-attorney representation. An analysis of the relevant common law principles reveals that such representation compromises the state's interest in regulating the practice of law and the rights of the children themselves.

Between 2001 and 2003, Jeff and Sandee Winkelman worked in conjunction with the Parma City School District to develop an Individualized Education Program (IEP) that would allow their autistic son Jacob to attend a specialized, private preschool. (7) When Jacob was entering kindergarten, however, the school district's proposed IEP placed him in the special education room at a public elementary school. (8) The Winkelmans desired that he be placed in a private school specializing in autism. (9) Without an attorney, the Winkelmans, claiming that Jacob had been denied his right to a FAPE, proceeded through the various stages of administrative review provided for under IDEA. (10) Having lost at each stage of administrative appeal, the Winkelmans, "on their own behalf and on behalf of Jacob," sought a remedy in the United States District Court for the Northern District of Ohio. (11)

The district court found that the school district had provided Jacob a FAPE. (12) The court reasoned that, although the school district had failed to provide "goals and objectives for occupational therapy" in Jacob's IEP, this "only constituted a procedural technical violation of the IDEA and not reversible error." (13) The court further reasoned that Jacob's placement in a public school was justifiable in light of the "overwhelming consensus that Jacob need[ed] more peer interaction and that he would receive some educational benefits from [the public school]." (14) Thus, based on the pleadings and records from the administrative hearings, the district court upheld the IEP and assigned the Winkelmans to bear their own costs. (15)

Continuing to proceed pro se, the Winkelmans appealed to the United States Court of Appeals for the Sixth Circuit. (16) Before reaching the merits of the case, the Sixth Circuit evaluated the plaintiffs' standing under IDEA to appear pro se on behalf of Jacob. (17) Citing its recent holding in Cavanaugh v. Cardinal Local School District, (18) the court held that the IDEA does not abrogate the common law rule preventing non-attorney parents from representing their minor children pro se. (19) Looking primarily to legislative intent, the court reasoned that Congress would have carved out an exception for parents to represent children in federal proceedings if it had intended them to have such a right. (20) The court further cited Cavanaugh for the proposition that "IDEA does not grant parents a substantive right to have their child receive a free appropriate public education." (21) The Sixth Circuit dismissed the appeal with the caveat that the Winkelmans could continue to pursue the claim if they obtained an attorney within thirty days of the entry of the opinion. (22)

The Supreme Court reversed. Writing for the Court, Justice Kennedy held that "IDEA grants parents independent, enforceable rights" that "encompass the entitlement to a free appropriate public education." (23) The Court was faced with two distinct inquiries: whether parents have substantive rights under IDEA independent of their children's rights, and whether non-lawyer parents can represent their children pro se under IDEA. (24) The Court did not reach the latter issue because it found that parents are real parties of interest in IDEA actions and, accordingly, that they are able to litigate their own claims pro se. (25)

The Court justified its holding with statutory analysis, an interpretation of legislative intent, and policy considerations. After reviewing the relevant provisions of IDEA, Justice Kennedy used what the Winkelmans termed "a comprehensive reading" to conclude that "IDEA does not differentiate ... between the rights accorded to children and the rights accorded to parents." (26) The Court catalogued several of IDEA's references to parental involvement, including a provision allowing parents to serve as members of the IEP team, (27) as well as provisions calling for "procedural safeguards [to] protect the informed involvement of parents." (28) The Court reasoned that because "parents enjoy enforceable rights at the administrative stage ... it would be inconsistent with the statutory scheme to bar them from continuing to assert these rights in federal court." (29) The Court cautioned that "the statute prevent[ed] [it] from placing too much weight on the implications to be drawn" from the absence of an express conferral of substantive parental rights given that "other entitlements are accorded in less clear language." (30) With this justification, Justice Kennedy effectively dismissed Justice Scalia's dissenting argument that the true inconsistency would lie in the IDEA delineating procedural rights for parents while merely implying that they have substantive rights. (31)

The Court supplemented its interpretation of the statute with a note on congressional intent and several policy arguments. (32) Justice Kennedy maintained that because IDEA mandates a FAPE be provided "at no cost to parents," Congress did not intend to require parents to hire a lawyer. (33) The Court further emphasized "that 'the education of children with disabilities can be made more effective by ... strengthening the role and responsibility of parents.'" (34) The Winkelman decision, it claimed, would support parents' own "legal interest in the education and upbringing of their child." (35)

Concurring in part and dissenting in part, Justice Scalia agreed with the majority that parents may "seek reimbursement for private school expenses or redress for violations of their own procedural rights" on a pro se basis under the IDEA. (36) He disagreed, however, that parents may "challenge the substantive adequacy of their child's FAPE" and asserted that "parents have no right in the education itself." (37) Accordingly, Justice Scalia concluded that non-attorney parents do not have a right to proceed pro se in seeking a determination of substantive rights, including that the IEP for their child is substantively inadequate. (38)

Justice Scalia's argument relied on "the interaction between the IDEA and the general pro se provision in the Judiciary Act of 1789." (39) The Judiciary Act (40) specifies that parties in a federal court proceeding may "plead and conduct their own cases personally." (41) Justice Scalia interpreted this phrase to mean that a parent may bring a civil action pro se only if he or she is a "party aggrieved" under IDEA. (42) Justice Scalia then found that IDEA granted two types of rights to parents: rights of reimbursement for school expenditures and certain procedural rights. (43) He did not, however, locate any language giving parents the right to a FAPE for their children. (44) Thus, according to Justice Scalia, by "concluding that parents may proceed pro se ... when they challenge the substantive adequacy of their child's FAPE--so that parents may act without a lawyer in every IDEA case"--the majority "sweeps more broadly than the text allows." (45)

In the final paragraphs of his opinion...