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WASHINGTON � For Sandee and Jeff Winkelman, the money to pay lawyers ran out in 2004. But they still had their son Jacob to fight for, so they kept going on their own. Jacob, now 9 years old, has autism. At one point for Jacob, says Sandee, “laying on the floor and screaming � that was his day at school.” The Winkelmans wanted something better for Jacob, and next Tuesday their battle against the Parma, Ohio, school district goes before the Supreme Court. But the justices won’t be weighing the best plan for Jacob. Instead, they will decide whether nonlawyer parents such as the Winkelmans can represent their kids when disputes under the Individuals with Disabilities Education Act reach federal court. If the Winkelmans lose, says Georgetown University Law Center professor David Vladeck, “it means these cases just can’t be litigated � not because they’re not valid, but because they are brought by people of modest means. I hope the court understands that.” Vladeck has written extensively on the controversy. 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.” There is no shortage of emotion surrounding the case of Jacob Winkelman. Jacob’s older sister Jenna is also autistic, and Sandee Winkelman says the Parma district did well by her: “She was beautifully educated there.” But when Jacob went into a Parma public preschool, his experience was different. “His behaviors were extremely severe and aggressive,” Sandee says. Teachers and aides would have to hold him down. “He was miserable, and here was his mommy putting him on the bus every day.” When the preschool program ended, the Winkelmans met with school officials to discuss Jacob’s individualized educational program, as called for by the IDEA. The school district’s plan called for Jacob to start kindergarten in a special-education classroom at Pleasant Valley Elementary School. The district still insists its plan is best for Jacob. “I couldn’t see that happening. His behavior was not anywhere near manageable,” Sandee says. She and her husband argued instead that Jacob needed the individualized help available at the private Monarch School, which specializes in educating children with autism. The parents challenged the plan through the state’s administrative appeal process, sometimes aided by lawyers and sometimes not. The school district won the appeals.
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.

The next step was federal court, and the Winkelmans � with a total income of less than $40,000 a year � had no money left for a lawyer to take them there. Sandee sought help, with no success, from state legal aid and other organizations. “These are cases where you can’t do anything else but that case,” she says. “Most practitioners can’t do that, and you don’t have huge law firms specializing in this field.” So Sandee, a nurse by training, did it herself. She talked her way into the Cleveland-Marshall College of Law library and plunged into the Federal Rules of Civil Procedure. “I kept asking, ‘Where’s this statute, or that regulation, and what the heck is shepardizing?’ ” she recalls. Nonetheless, the district court sided with Parma. And on appeal, bad timing appeared to spell the end of their case. Just before the Winkelmans went to the Sixth Circuit U.S. Court of Appeals, it ruled in a different case that nonlawyer parents could not represent children in IDEA cases. With that ruling in mind, the Sixth Circuit ordered the Winkelmans’ appeal dismissed unless they hired a lawyer in 30 days. The Winkelmans despaired as the deadline approached. None of the lawyers they contacted would take their case. But at “the midnight hour,” in Sandee’s words, Los Angeles lawyer Jean-Claude Andre, of counsel with the D.C. firm of Ivey, Smith & Ramirez, called to offer his services pro bono. Ultimately the case was put on hold pending the Supreme Court’s disposition. Andre, who argued and won his first Supreme Court case � a prison-rights dispute � earlier this term, says he came to the Winkelmans at the suggestion of Akin Gump Strauss Hauer & Feld Supreme Court advocate Thomas Goldstein, whom he describes as “my mentor.” Like Goldstein, Andre hunts for cases posing circuit conflicts that might interest the Supreme Court. (Goldstein is a contributor to Legal Times.) In the midst of the litigation came word that the Cleveland Bar Association, acting on a complaint from the Parma School District, was investigating the Winkelmans, as well as another nonlawyer who was helping them, on charges of unauthorized practice of law. “That effectively chopped off my legs,” says Sandee Winkelman. Michael Harvey, a lawyer for the bar association’s unauthorized-practice committee, acknowledges, “It’s a little bit awkward” to be investigating parents of children with disabilities. But the committee was obliged to look into it when the complaint came in from Parma, Harvey says. After local media reported on the probe, it was put on hold until after the Supreme Court rules. “This is not a question of lawyers protecting their turf,” Harvey says. “The legitimate issue is the protection of the beneficiaries of these legal services.” Given the complexity of the IDEA, he adds, “How in God’s name can you say you can competently represent anyone in that field without special training?” At the Supreme Court, nonlawyers by tradition almost never argue cases, so Andre will stand up for the Winkelmans. “It’s an access to justice issue,” he says, noting the dearth of lawyers willing to represent disabled children. Though there is a common-law presumption against nonlawyers representing others � including their children � Andre will argue that the IDEA should be an exception. By analogy, he points out, most courts allow parents to represent their children in challenges to Supplementary Security Income disability decisions. Andre says he’s been compensated with “the best pay a litigator can get: Jacob sends me collages.” Jacob is at Monarch School now and is much improved, Winkelman says. She says the tuition is paid through a patchwork of loans and second mortgages. “It may take us 30 years to pay it off,” she says. Andre has been impressed by the community of parents of special-education students, which has rallied around the Winkelmans’ cause. “It’s like ‘The March of the Penguins,’ ” says Andre. “ They huddle together and take care of their own.” New Jersey parent advocate Marilyn Arons, one of the leaders of that community, says, “The people who work in this field are absolutely demoralized” by the prospect of defeat in the Winkelman case. She is pessimistic, she says, because the high court has shown in recent years that it is “intent on destroying the IDEA.” Last year the court ruled in Arlington Central School District v. Murphy that prevailing parents in IDEA cases may not recover fees for expert witnesses � a major expense. And in 2005, in Schaffer v. Weast, the court said plaintiffs have the burden of proof in administrative hearings under the IDEA. The rulings throw up roadblocks in an already difficult journey, says Georgetown’s Vladeck. “This is a hugely important case for the future of a statute that has been severely cut back,” he says. “I’m very scared, to be honest,” Sandee Winkelman says about the prospect of the court hearing her family’s case. She was not looking for confrontation, she says. “What’s sad is that I’ve never once had an opportunity to sit down with the school district since 2003,” when the appeals began. But she went ahead, she says, because she wants to level the playing field in an area where few lawyers are available to help children like Jacob. “My tax dollars are paying for the district’s legal fees, yet I have to go out and pay for a lawyer, too. “I won’t cave in to the school district and I won’t cave in to the Cleveland Bar. I am just in there advocating for my kids.” Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected].

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