shlep: the Self-Help Law ExPress

On Monday, May 22, the Supreme Court decided Winkelman v. Parma City School District, which Shlep has been covering as it made its way through the courts.  To recap briefly, the case involved two parents, the Winkelmans, of a disabled child who were unsatisfied with the education their son was receiving under the Individuals with Disabilities Education Act (IDEA).  After going through the proper administrative channels, the Winkelman’s appealed to federal court, acting as their own, or alternatively as their son’s, counsel.  The case was dismissed in the Sixth Circuit because the parents were held to not have a right to bring the case to court under IDEA and alternatively, not to have the right to act pro se on their child’s behalf. 

On May 22, the Supreme Court held that parents have a cause of action under IDEA.  They therefore did not reach the question of whether parents may act pro se on their child’s behalf.  However, as Scalia pointed out in his dissent:

Both sides agree…that the common law generally prohibited lay parents from representing their children in court, a manifestation of the more general common-law rule that nonattorneys cannot litigate the interests of another.

It is difficult to guage from the opinion whether the Court would now be open to reconsidering that rule.  The Court does note the tradition that parents have a special interest in their children’s education, but this is a far cry from extending that right to representing the child in legal matters before the court, even those dealing with this fundamental right.

For more commentary, SCOTUSblog  covered this decision in depth, and also links to media coverage at NPR, the New York Times, the Washington Post, and elsewhere.

   Yesterday’s oral argument in the Winkelman IDEA “pro–se-parent” case was apparently quite interesting.  Usually, a person is only allowed to appear at court pro se for himself or herself, and not for another person.  Winkelman asks whether the parent can appear without a lawyer to represent their child to appeal a special ed ruling by a school district (prior post). You can read the oral argument transcript here (via SCOTUSBlog). 

• Linda Greenhouse has given a good summary of the arguments and the responses of various justices in the New York Times: “Justices Hear Arguments on Autism-Case Dispute,” Feb. 28, 2007), as has Mark Sherman of the Associate Press: e.g., Law.com/AP, “Parents Don’t Need Lawyer for Child’s Special Education Needs, High Court Told,” Feb. 28, 2007. 

Greenhouse reported that “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 [the school district’s lawyer] 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’.”

Yesterday’s NYT posting of the AP report stated that several justices had expressed concerns about letting more people appear in federal cases self-represented.   Today’s Law.com/AP report states that “Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Antonin Scalia seemed most skeptical of the parents’ claims. Alito voiced concern that parents who represent themselves or their children would have ‘difficulty maintaining emotional detachment’ from the lawsuit.”

It appears that Justice Antonin Scalia raised the most specific concerns over having more self-represented litigants.  According to the NYT:

  Justice Antonin Scalia told [Jean Claude] 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.

As you might imagine, this shlep Editor agrees with the Winkelmans.

     Oral argument will be held tomorrow (Tuesday, Feb. 27) at the U.S. Supreme Court in the case of Winkelman v. Parma City School District [official docket sheet; update (Feb. 27): SCOTUS Blog Argument Preview].  The question presented to the Court is whether non-lawyer parents of a disabled child may bring a case pro se (without a lawyer) under the Individuals with Disabilities in Education Act [IDEA], 20 U.S.C. § 1400 et seq.  We’ve discussed this important case in two prior postings:  Can a parent be the “self” in “pro se” (Sept. 21, 2006) and Will Winkelman Harm Children? (Nov. 7, 2006).  Six federal circuit courts of appeal have ruled on this issue, but they have a three-way split on how to treat pro se parents under IDEA.

 Today, at his Supreme Court Times weblog, Ross Kunkel predicted a split decision: “The Winkelmans will lose on the primary issue of whether they can, without a lawyer, represent their son in federal court. The Winkelmans will win on the minor issue of whether they can represent themselves as to their own rights.” (via SCOTUS Blog)  You can find a summary of the case, with links to pleadings, prior decisions, and other materials, at this earlier Supreme Court Times LawMemo. 

• As SCOTUS Blog reported last September, the U.S. Solicitor General asked the Court to take this case, and supported the Winkelmans. The SG will participate in tomorrow’s oral argument. At SCT, you’ll find links to amicus briefs by Ohio Coalition for the Education of Children With Disabilities et al.; National School Boards Association et al.; Council of Parent Attorneys and Advocates, Inc., et al.; Autism Society of America, et al.; Senator Edward M. Kennedy, et al.; Equal Justice Foundation, et al. and Council of the Great City Schools. 

  None to soon, the (previously unknown to me) National Council on Disability offered its Two Cents on the issues presented in Winkelman.  NCD is an independent federal agency that makes recommendations to the President and Congress “to enhance the quality of life for all Americans with disabilities and their families.”  It issued a press release today (Feb. 26, 2007), in which it “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.”