Autism Vox

Pro Se Parents

by Kristina Chew, PhD on February 28th, 2007

Yesterday, the Supreme Court heard an appeal brought by the parents of Jacob Winkelman, a 9-year-old autistic boy from Parma, Ohio, concerning their right to go to court without a lawyer to challenge their school district’s plans to educate him. Jacob’s parents, Jeff and Sandee Winkelman, were unable to afford a lawyer and filed a lawsuit on their own in which they questioned the appropriateness of their son’s education and requested that the Parma School District pay for tuition at a private autism school, the Monarch School in Shaker Heights. 16 months ago, they lost in Federal Court in Cleveland and, while their case was on appeal, the Federal States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled that such suits as theirs could not be pursued without a lawyer. As reported in today’s New York Times:

The case caught the justices’ attention; Justice John Paul Stevens granted a stay of the Sixth Circuit’s order; the full court asked the federal government’s advice on whether to take the case; Solicitor General Paul D. Clement, representing the views of the Department of Education, told the court that the Sixth Circuit was wrong and should be reversed; and the justices agreed in late October to hear the case, Winkelman v. Parma City School District, No. 05-983.

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.

The two lawyers emphasized that, in such cases, parents are not only serving as representatives of their children, but are advocating for their own rights; parents, as Salmons said, “’share in the substantive right to a ‘free appropriate public education’ under the act.’” Pierre H. Bergeron, who represented the Parma City School District, argued rather that, according to the rights given to children under the Individuals with Disabilities Education Act (IDEA), such rights are “derivative.’”

Pro se is the legal term for a case filed without a lawyer; the Latin literally means “for the sake of oneself.” André, the lawyer for the Winkelmans, indeed noted to Justice Antonin Scalia that “‘We think that pro se parents are quite different from pro se prisoners.’”

Club 166 (a parent of an autistic son) has a thoughtful overview of the Winkelmans’ case in And Justice For All; he notes that

I hope that the Supreme Court exercises some common sense here. Most parents that would go this route are very sophisticated when it comes to knowledge and interpretation of special education law. They are also smart enough to get a lawyer if they can, but representing their child themselves may be their only choice if they cannot afford a lawyer and their is no lawyer willing to take the case for free. Also, pursuing a case in court is expensive, in terms of time and money, even without the cost of your lawyer figured in. I know that parents of special needs kids aren’t going to be running out and filing frivolous lawsuits.

A year and a half ago, my husband Jim and I were in regular negotiations with our previous school district on behalf of our son Charlie’s education. Due to the issues surrounding the appropriateness of his school placement, Charlie was struggling tremendously, and our family was too; Charlie made it clear that he did not want to go to his old school (he once threw his shoes out the window of my car as we were driving there). I started to write my Autismland blog out of a feeling of desperation about getting Charlie the right school placement. Charlie is now in a school that he likes a lot and is learning a lot in and this has made all the difference for him and for our family—-parents, in the words of Salmons (quoted above), do indeed “’share in the substantive right to a ‘free appropriate public education’ under the act [the IDEA].’” It takes a whole family to advocate for Charlie.

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POSTED IN: Education, Legal Issues, Legislation, Parenting