COPAA Files Amicus Curiae Brief in Supreme Court Supporting Parents' Rights to Represent Themselves in IDEA Cases

The Council of Parent Attorneys and Advocates filed an amicus curiae brief in the Supreme Court in support of a petition for certiorari in Winkelman v. Parma City School District on April 7, 2006. COPAA's brief urges the Supreme Court to grant the petition and reverse the Sixth Circuit's ban on parents representing themselves pro se in court actions to enforce the educational rights of their children with disabilities under the IDEA. TASH and the Arc of the United States signed on to the brief.

IDEA creates rights between parents and children that are overlapping and inseparable. Even when pursuing their own rights, parents are acting for their children for whose education they are responsible.

The Sixth Circuit decision ignores the IDEA's plain language and the historic importance given to pro se representation. Parents who challenge hearing officer's decision affecting their children are aggrieved parties and are empowered by the IDEA to pursue those cases pro se in court. Indeed, six Circuits have held or suggested that parents can appear pro se in federal court at least to protect procedural rights.

When pro se parents are denied the right to appeal adverse administrative decisions to court, the rights granted through the IDEA are rendered empty and meaningless except for parents who can afford legal counsel. True access to justice requires much more than having the ability to pay for a lawyer or to find a lawyer who will work pro bono. The right to represent oneself is deeply ingrained in U.S. jurisprudence and predates the Constitution.

Many parents are forced to proceed pro se because they have no money or have run out of money during the litigation and are unable to pay for a lawyer whose fees for a federal court appeal can easily exceed $10,000. Importantly, approximately 35% of children with disabilities live in families that earn less than $25,000 a year; over 2/3 earn less than $50,000 a year. Households with incomes just above the eligibility line for publicly-funded legal services are particularly disadvantaged.

In addition, there is a severe shortage of lawyers who take IDEA cases because they are highly specialized, as the Third Circuit recognized in Collinsgru v. Palmyra Board of Education, 161 F.3d 225, 229 (3d Cir. 1998). This leaves many parents unable to obtain qualified counsel.

For example, the Michigan P&A reported that between 1999 and 2006, it received over 10,000 requests for assistance in IDEA cases, but was able to provide direct representation in only 17% of them. For fiscal year 2005, the Arizona Disability Law Center received 1,627 requests for assistance but was able to provide help in only 225 of those cases. Of the 852 cases received in Alaska since 2003, only 9% were handled by an attorney.

The Supreme Court should also grant certiorari to clarify that parents who pursue their rights in court under the IDEA are not engaged in the unauthorized practice of law. It is egregious that parents are being investigated for unauthorized practice of law for their pro se representation of their children's IDEA claims in the lower court.

A team of Baker & McKenzie lawyers led by Lynn S. Preece wrote COPAA's amicus curiae brief as pro bono counsel. They were assisted by volunteers on COPAA's amicus curiae committee. COPAA is grateful for their work.

How to Obtain COPAA's Amicus Brief

COPAA's amicus curiae brief asking the Supreme Court to grant the petition for certiorari in Winkelman v. Parma City School District is available here ( PDF, 21 pgs, 544 KB).

Read COPAA's view of the Cleveland Bar Association's filing, and then withdrawal, of an unauthorized practice of law complaint against two parents, Brian and Susan Woods in May 2006. More

*PDFs require Acrobat Reader for viewing. If you don't have Acrobat Reader installed on your computer, you can download a copy for free.)