Monday, February 26, 2007

Parents of Autistic Child Bring Ohio Case to the Supreme Court

The back story of the Winkelman family's case, headed to oral arguments before the Supreme Court on Tuesday, is not new. Jacob has an autism spectrum disorder. His Parma, Ohio school district team and his family disagree on where he should attend school; the school district said instruction in a "resource room" at an elementary school would help him learn the social skills he needed to continue his development. His family argued Jacob needed a program that specializes in services for kids with autism to make progress in his education. (Jacob, now 9, has attended the Monarch School, a specialized autism program, for most of the last four years, according to this Associated Press report published today.)

So under the Individuals with Disabilities Education Act, Jacob's parents sought legal relief to get Jacob the educational supports he need. The wrinkle here is that when they ran out of money for lawyers, Sandee and Jeff Winkelman represented their son themselves -- even though they are not lawyers.

The question before the Supreme Court on February 27 is whether, and under what circumstances, non-lawyer parents of children with disabilities can represent their child in court. (See the Supreme Court website page for the case here. Links to the briefs filed by the Winkelmans and the Parma, Ohio School District are available here, via the American Bar Association website.)

Among those filing briefs siding with the Winkelmans is the Bush administration, which argues that Congress intended to give parents the right to represent their child in federal court if needed, according to The Cleveland Plain Dealer. The newspaper's website has a good writeup of the case which you can see here.

The school district argues that it's expensive for cash-strapped school districts to have to defend lawsuits against amateur litigators. It's also possible for amateur litigators to cause harm to their child's legal rights, the district says.

Of course it's also expensive to hire a lawyer, or pay for the Monarch School's $60,000 tuition bill, as the Winkelmans argue. This passage from a good article about the case on gives good context for watching the case:

The issue of nonlawyer representation has been hard-fought around the country by desperate parents who say there are not enough lawyers able or willing to take on their costly and complex disputes with local school districts. Circuit courts have split over the issue, setting the stage for high court review.

Meanwhile, a skilled corps of parent-advocates has sprung up to fill the void left by lawyers. As a reward for the parents' zeal, however, some local bar associations have gone after them, claiming they are engaging in the unauthorized practice of law. After negative publicity last year, the Cleveland Bar Association withdrew a complaint against a parent who aided the Winkelmans -- at least until the Supreme Court rules in their case.

Substantively, Parma and other public school organizations are telling the Court that under common law and the IDEA, nonlawyers simply may not represent others in court. Parents untrained in the law, they say, can sometimes harm their children's cases by faulty advocacy. It costs more money to defend against nonlawyer litigators, they add, which stretches the resources of money-starved school districts. "The states never signed up for such a bargain," says Parma's lawyer, Christina Peer of Squire, Sanders & Dempsey, in a brief to the Court. She adds, "Attorneys inject a measure of objectivity often lacking in an area punctuated by emotion."

You can read more background about the case here. The Supreme Court is expected to issue a ruling by July, The Plain Dealer reported.

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