The Individuals with Disabilities Education Act (IDEA): Supreme Court to Decide Whether Parents May Bring Suit Pro Se

CRS Report for Congress
The Individuals with Disabilities Education
Act (IDEA): Supreme Court to Decide Whether
Parents May Bring Suit Pro Se
Nancy Lee Jones
Legislative Attorney
American Law Division
Summary
The Supreme Court granted certiorari in Winkelman v. Parma City School District
(05-983) to determine whether, and if so, under what circumstances non-attorney parents
of a child with a disability may bring suit without using an attorney under the
Individuals with Disabilities Education Act. The circuit courts are split in their
determinations of this issue with some circuits finding that non-attorney parents may not
proceed pro se, another circuit holding that non-attorney parents have no limitations on
their ability to proceed, and other courts of appeals holding that parents can proceed on
procedural claims but must use a lawyer for substantive claims. This report will not be
updated.
Background
The Individuals with Disabilities Education Act¹ is both a grants statute and a civil
rights statute. It provides federal funding for the education of children with disabilities
and requires, as a condition for the receipt of such funds, the provision of a free
appropriate public education (FAPE). Originally enacted in 1975, the act responded to
increased awareness of the need to educate children with disabilities, and to judicial
decisions requiring that states provide an education for children with disabilities if they
provided an education for children without disabilities.² The statute contains detailed due

¹ 20 U.S.C. §1400 et seq.
² For a more detailed discussion of the congressional intent behind the enactment of P.L. 94-142
see CRS Report 95-669, The Individuals with Disabilities Education Act: Congressional Intent,
by Nancy Lee Jones. IDEA has undergone several reauthorizations, including the most recent
one which resulted in P.L. 108-446. The sixth circuit in Winkelman issued its order after the
effective date of P.L. 108-446. For a discussion of this reauthorization see CRS Report
RL32716, The Individuals with Disabilities Education Act (IDEA): Analysis of Changes Made
(continued...)
Congressional Research Service ˜ The Library of Congress

process provisions, including the right to bring suit in order to ensure the provision of
FAPE. IDEA states in part “[a]ny party aggrieved by the findings and decision ... made
under this subsection, shall have the right to bring a civil action with respect to the
complaint presented pursuant to this section ....”³ The judicial decisions concerning the
rights of non attorney parents of children with disabilities to bring suit without an attorney
have raised issues concerning whether the parents of a child with a disability are “part[ies]
aggrieved” under IDEA. Whether the parents are parties aggrieved turns in large part on
whether the rights guaranteed under IDEA are guaranteed for the child with a disability,
for the parent of such a child, or both. Courts have varied in their views on this issue and
therefore on the issue of whether non-attorney parents have the ability to pursue an IDEA
case pro se.
Lower Court Decisions in Winkelman v. Parma City School
District
Jacob Winkelman has autistic spectrum disorder and, in accordance with an
individualized education program (IEP), was placed in a preschool with the concurrence
of both his parents and the Parma City school district. When he was old enough for
kindergarten, his parents and school officials disagreed on his proper placement with his
parents alleging that the school’s proposed placement at Pleasant Valley elementary
school was not appropriate to Jacob’s needs. After rulings supporting the school district’s
determination by the hearing officer and a state level review officer, the Winkelmans
appealed pro se to U.S. district court. The district court agreed with the administrative⁴
rulings and the Winkelmans appealed, again without a lawyer, to the sixth circuit court
of appeals. The court of appeals issued an order dismissing the appeal unless an attorney⁵
was obtained within thirty days. The Winkelmans then sought and received a stay of this
order from the Supreme Court pending a decision by the Supreme Court. The Supreme
Court granted certiorari on October 27, 2006.
The sixth circuit decision in Winkelman found that the recent sixth circuit decision
in Cavanaugh ex rel. Cavanaugh v. Cardinal Local School District⁶ was dispositive of
the question of whether non-attorney parents of a child with a disability could represent
their child in court. Cavanaugh held that parents could not represent their child in an
IDEA action and that the right of a child with a disability to FAPE did not grant such a
right to the child’s parents. The sixth circuit in Cavanaugh first noted that federal law⁷
allows an individual to act as their own counsel but that generally parents “cannot appear
pro se on behalf of their minor children because a minor’s personal cause of action is her

² (...continued)
by P.L. 108-446, by Richard N. Apling and Nancy Lee Jones.
³ 20 U.S.C. §1415(i)(2).
⁴ 411 F.Supp.2d 722 (N.D. Ohio 2005).
⁵ 150 Fed. Appx. 406 (6^th Cir. 2005).
⁶ 409 F.3d. 753 (6^th Cir. 2005).
⁷ 28 U.S.C. §1654. “In all courts of the United States the parties may plead and conduct their
own cases personally, or by counsel.”

own and does not belong to her parent or representative.”⁸ Finding that this general
principle was not abrogated by IDEA, the sixth circuit observed that IDEA explicitly
grants parents the right to a due process hearing but “in stark contrast, the provision of the
IDEA granting ‘[a]ny party aggrieved’ access to the federal courts ... makes no mention
of parents whatsoever.”⁹ In addition, the court observed that the intended beneficiary of
IDEA is the child with a disability, not the parents, and that although IDEA does grant
parents some procedural rights, these only serve to ensure the child’s substantive right and
do not provide the parents with substantive rights.¹⁰
Other Court of Appeals Decisions
The circuit courts are not all in accord with the sixth circuit in finding that parents
may not proceed pro se in an IDEA case. Currently, there is a three way split in their
determinations of this issue with some circuits finding that non-attorney parents may not
proceed pro se, another circuit holding that non-attorney parents have no limitations on
their ability to proceed, and other courts of appeals holding that parents can proceed on
procedural claims but must use a lawyer for substantive claims.
Parents May Proceed Pro Se. In Maroni v. Pemi-Baker Regional School¹¹
District the first circuit held that parents have a right to proceed pro se on both
procedural and substantive grounds. The IDEA language stating that “[a]ny party
aggrieved by the findings and decision ... made under this subsection, shall have the right
to bring a civil action with respect to the complaint presented pursuant to this section ...”¹²
was seen as including parents of children with disabilities. This provision was described
as not making a distinction between procedural and substantive claims and the procedural¹³
and substantive rights under IDEA were described as “inextricably intertwined.” The
first circuit noted that there are some “practical concerns” about recognizing parents as
aggrieved parties: parents may not be the best advocates for their child as they may be
emotionally involved and not able to “exercise rational and independent judgment.”¹⁴ In
addition, pro se litigants were seen as imposing burdens on the courts and schools districts
due to poorly drafted or vexatious claims. However, the Maroni court rejected these
practical concerns finding that, since there is no constitutional right to appointed counsel
in a civil case, having a parent represent them was better for children with disabilities than¹⁵
having no advocate.

⁸ Cavanaugh ex rel. Cavanaugh v. Cardinal Local School, 409 F.3d 753, 755 (6^th Cir. 2005),
quoting Shepherd v. Wellman,313 F.3d 963, 970-71 (6^th Cir. 2002).
⁹ Cavanaugh ex rel. Cavanaugh v. Cardinal Local School, 409 F.3d 753, 756 (6^th Cir. 2005).
¹⁰ Id. at 757.
¹¹ 346 F.3d 247 (1^st Cir. 2003).
¹² 20 U.S.C. §1415(i)(2).
¹³ 346 F.3d 247, 255 (1^st Cir. 2003).
¹⁴ Id. at 258.
¹⁵ For a discussion arguing that the Maroni court correctly interpreted IDEA see M. Brendhan
Flynn, “In Defense of Maroni: Why Parents Should be Allowed to Proceed Pro Se in IDEA
(continued...)

Parents May Not Proceed Pro Se. In addition to the court of appeals decisions
in Winkelman v. Parma City School District and Cavanaugh ex rel. Cavanaugh v.
Cardinal Local School District which were discussed previously, other circuits have also
denied parents the right to proceed pro se. For example, in Devine v. Indian River County¹⁶
School Board, the parents of a child with autism brought suit alleging that the child’s
IEP was inadequate. Although the parents were represented by an attorney at the
beginning of the suit, they informed the court that they wished to discharge the attorney
and proceed pro se. The court noted that IDEA does allow parents to present evidence
and examine witnesses in due process hearings but found “no indication that Congress
intended to carry this requirement over to federal court proceedings. In the absence of
such intent, we are compelled to follow the usual rule — that parents who are not
attorneys may not bring a pro se action on their child’s behalf — because it helps to
ensure that children rightfully entitled to legal relief are not deprived of their day in court
by unskilled, if caring, parents.”¹⁷
Parents May Proceed Pro Se on Procedural Claims but Not Substantive
Claims. In Collinsgru v. Palmyra Board of Education,¹⁸ the parents sought special
education services for their son whom they contended had a learning disability. The
parents pursued the administrative remedies under IDEA without an attorney although
they did retain a non-attorney expert. The administrative law judge found that the child’s
difficulties were not severe enough to qualify for special education and rejected the
parents’ complaint. The parents then filed a civil action in district court. The district
court held that the parents could not proceed pro se to represent their child and rejected
the parents assertion that the parents were pursuing their own rights.
The court of appeals in Collinsgru first found that, under general legal theories
regarding pro se representation, IDEA did not allow parents to proceed pro se to represent
their child stating: “Congress expressly provided that parents were entitled to represent
their child in administrative proceedings. That it did not also carve out an exception to
permit parents to represent their child in federal proceedings suggests that Congress only
intended to let parents represent their children in administrative proceedings.”¹⁹ The third
circuit noted that the requirement of representation by counsel was based on two policy
considerations. First, the court found, there is a strong state interest in regulating the
practice of law. Requiring a minimum level of competence was described as protecting
not only the represented party but also his or her adversaries as well as the court from
poor drafted or vexatious claims. Second, the court emphasized the importance of the
rights at issue and the final nature of the adjudication. A licensed attorney would be
subject to ethical obligations and may be sued for malpractice while an individual not
represented by an attorney would not have these protections.

¹⁵ (...continued)
Cases,” 80 I^ND.L.J. 881 (Summer 2005).
¹⁶ 121 F.3d 576 (11^th Cir. 1997). See also, Navin v. Park Ridge School District 64, 270 F.3d

1147 (7^th Cir. 2001).

¹⁷ Id. at 582.
¹⁸ 161 F.3d 225 (3d Cir. 1998).
¹⁹ Id. at 232.

The parents in Collinsgru argued that since, as parents, they were responsible for
their son’s education, they had joint substantive rights with their child under IDEA. They
noted that parents are often the only available advocates for their child and that attorneys
are often unwilling to take IDEA cases due to their specialized and complicated nature
and since the cases often lack significant retainers. The court expressed some sympathy
for these arguments but noted that Congress had provided for attorneys’ fees in IDEA, and
concluded that IDEA’s statutory provisions indicated that “the rights at issue here are
divisible, and not concurrent.”²⁰ The parents and the child were thus found to possess
different IDEA rights: the parents “possess explicit rights in the form of procedural
safeguards”²¹ while the child possesses both procedural and substantive rights.
Other courts have also found that parents have procedural rights under IDEA which
they can bring suit pro se to enforce. In Mosely v. Board of Education of the City of
Chicago,²² the seventh circuit observed that IDEA “provides both children and their
parents with an elaborate set of procedural safeguards that must be observed in the course
of providing the child a free, appropriate public education.”²³ Citing Collinsgru for the
proposition that IDEA confers different rights on parents and children, the court found
that the parent’s procedural rights were enough of an interest to allow a pro se suit to
enforce these parental rights to proceed. Similarly, in Wenger v. Canastota Central
School District²⁴ the second circuit denied a parent’s attempt to bring a suit pro se on
behalf of his child but stated that the parent “... is, of course, entitled to represent himself
on his claims that his own rights as a parent under the IDEA were violated....”²⁵

²⁰ Id. at 236.
²¹ Id. at 234.
²² 434 F.3d 527 (7^th Cir. 2006).
²³ Id. at 532.
²⁴ 146 F.3d 123 (2d Cir. 1998), cert. denied, 526 U.S. 1025 (1999).
²⁵ Id. at 126.