Winkelman: Pro Se Parents of Children With Disabilities in the Courts (or Not?)

• Publication year: 2009

§ 26 Alaska L. Rev. 271. WINKELMAN: PRO SE PARENTS OF CHILDREN WITH DISABILITIES IN THE COURTS (OR NOT?)

Alaska Law Review
Volume 26, No. 2, December 2009
Cited: 26 Alaska L. Rev. 271

WINKELMAN: PRO SE PARENTS OF CHILDREN WITH DISABILITIES IN THE COURTS (OR NOT?)

Sonja Kerr ^[*]

Abstract

In this Article, the Author examines the rights of parents to litigate pro se on behalf of their children under the Individuals with Disabilities Education Act (IDEA). The Author reviews Alaska and non-Alaska jurisprudence that predates the United States Supreme Court's decision in Winkelman v. Parma City School District. The Author then examines the Winkelman decision itself, as well as the impact of Winkelman on IDEA-related pro se litigation. The Author notes the difficulties that parents continue to face in IDEA-related litigation and concludes by proposing reforms designed to aid parents in protecting the interests of children with disabilities.

Table of Contents

Introduction................................................................................................272

I. The IDEA............................................................................................273

II. Rules Regarding Pro Se Plaintiffs in Alaska...........................275

III. Alaska's Pre-Winkelman Cases.....................................................277

IV. Non-Alaska Pre-Winkelman Cases..............................................279

V. The Winkelman Decision................................................................281

VI. The Impact of Winkelman ...............................................................283

VII. The Future of IDEA Litigation.....................................................285

Conclusion...................................................................................................287

Introduction

Alaska has a long and proud history of pro se litigation. ^[1] Nevertheless, parents of children with disabilities have faced difficulties when attempting to represent themselves and their children in court proceedings seeking to protect the educational opportunities to which the children are entitled under the federal Individuals with Disabilities Education Act (IDEA). ^[2] In May 2007, the United States Supreme Court held, in Winkelman ex rel. Winkelman v. Parma City School District, ^[3] that parents of children with disabilities have the right to represent themselves in special education proceedings in federal courts. ^[4] The court, however, reserved the question of whether parents could represent their children in the same proceedings, focusing instead on the parents' right to proceed pro se to protect their own rights arising under federal law. ^[5] This Article examines the impact of Winkelman in Alaska, where, prior to the Supreme Court's decision, at least two unrepresented parents were prohibited from representing their children in the federal courts. ^[6] The Article also examines the policy implications of permitting parents, some of whom may be disabled, to attempt to navigate through the muddy waters of state and federal courts without counsel. The Author hopes that this Article will foster a close examination of the Winkelman issue in Alaska and other states, especially given the dearth of special education attorneys throughout the United States. ^[7]

I. The IDEA

The Individuals with Disabilities Education Act is a federal law that funds state educational services for disabled children. ^[8] States that accept IDEA funding are obligated to identify students with disabilities and ensure that each eligible student receives a "free appropriate public education" (FAPE). ^[9] The primary vehicle for delivering a FAPE is the Individualized Education Program (IEP). ^[10] An IEP is a document that describes the student's learning goals, as well as the services, strategies, modifications, and accommodations that will be used to reach those goals. ^[11] Under the IDEA, school districts must develop and implement IEPs meeting the unique educational needs of each eligible student. ^[12]

The IDEA strictly mandates parental involvement throughout the development and implementation of a student's IEP. ^[13] This mandate is, in large part, a result of the IDEA's history. The IDEA was born as a result of parental advocacy, particularly by those parents who, long before most states allowed it, demanded that children with disabilities be educated by public schools. ^[14]

Parents are critical members of the "IEP Team," and the IDEA intends that parents and schools work together to ensure the adequacy of student services. Parents must, for example, be given written notice of any changes a school district proposes for their child's education program. ^[15] When the parents and the school cannot agree on an IEP's terms, the parents have a specific right to appeal the school's proposed program through an administrative hearing, often referred to as a "due process" hearing. ^[16] Dissatisfied parents can request an impartial due process hearing to contest specific elements of an IEP, the denial of requested services, or any other objectionable aspects of a proposed plan. ^[17] A hearing examiner is empowered to determine whether a proposed IEP satisfies the requirements of a FAPE, whether the changes requested by the parents will be granted, and whether specific relief, such as ordering private school placement, is appropriate. ^[18]

As the Alaska Supreme Court has pointed out, due process hearings are "formal adjudicatory proceedings in which parents and children have the rights to counsel, to present evidence, and to call, confront, and compel the attendance of witnesses." ^[19] Due process hearings are required to be expedited: once a parent asks for a hearing, a hearing officer has forty-five days in which to issue a final, written decision. ^[20] Parents also have several other rights: the right to bring a child to proceedings concerning the child; the right to an open, public hearing; and the right to free copies of the decision and record. ^[21] Notably, parents typically bear the burden of proof in the administrative process, unless a school district, in the unusual instance, brings the hearing. ^[22] Additionally, the expenses of experts called by the parents are not recoverable as a litigation cost. ^[23]

In short, these "due process hearings" are essentially full-blown trials. By long-standing practice, parents can represent themselves in the due process stage in every state and are permitted to be accompanied by a lawyer or persons with special knowledge or training regarding children with disabilities, known as "lay advocates." ^[24] These lay advocates, however, must be very careful to avoid the unauthorized practice of law, as courts have previously held in some instances that parents seeking to use lay advocates were unable to represent themselves. ^[25]

Once administrative processes have been exhausted, a parent who remains dissatisfied has the right to file an appeal in federal district court or state court. ^[26] In Alaska state court, a party may have as little as thirty days to file an appeal. ^[27] The decisions of the trial court may be appealed to the Alaska Supreme Court or the Ninth Circuit Court of Appeals, depending upon whether the IDEA claim was brought in state or federal court.

II. Rules Regarding Pro Se Plaintiffs in Alaska

Parents of students with disabilities, including those who have represented themselves and their children in administrative forums, may encounter barriers to representation at the appellate stage. In light of these barriers, parents in Alaska should carefully consider which court system they should utilize.

In Alaska state court, plaintiffs who file without legal representation may be able to benefit from rules that are somewhat more relaxed than the rules governing parties with attorneys. The Alaska Supreme Court held, in Breck v. Almer, ^[28] that "[t]he pleadings of pro se litigants should be held to less stringent standards than those of lawyers." ^[29] The court elaborated that judges have a duty to inform a pro se plaintiff of the "proper procedure for the action he or she is obviously attempting to accomplish." ^[30] This holding has developed into a rule that bars Alaska state court judges from dismissing unrepresented plaintiffs' cases on technicalities. ^[31] Instead, judges must ensure that unrepresented plaintiffs are aware of the rules they need to follow and the procedures that are available to them. Under this holding, the Alaska Supreme Court has identified a variety of specific rules and procedures about which judges must inform pro se plaintiffs. For example, a judge must inform a plaintiff of his or her rights to file a reply to a defendant's answer and to defeat a defendant's summary judgment motion by filing opposing affidavits. ^[32] Additionally, pro se plaintiffs should be informed of the correct method for withdrawing admissions so that they do not lose on summary judgment based on those admissions. ^[33] Judges should also inform unrepresented plaintiffs of deficiencies in their appellate paperwork and provide them with opportunities to rectify the problems. ^[34] Further, the Alaska Supreme Court has held that adjudicative officers of administrative agencies generally have the same duties to pro se plaintiffs as state court judges. ^[35] In spite of these and other rulings, a judge's...