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A few weeks ago, the U.S. Supreme Court heard oral argument in Winkelman v. Parma School District, No. 05-983. The issue in the case is whether a parent can appeal an administrative hearing held under the Individuals with Disabilities Education Act (IDEA) to federal court without obtaining an attorney. A number of federal appeals courts, including the 6th U.S. Circuit Court of Appeals in Winkelman, have ruled that a parent must obtain an attorney for all or some claims on appeal. Only the 1st Circuit has ruled that a parent may proceed without an attorney on all claims. The rationale behind the decisions requiring an attorney is that the parent is representing the child’s interest (as opposed to his or her own interest pro se) in court, and only attorneys can represent the interests of another in court. Some courts also cite concerns of parents not adequately representing their child’s interests. Neither of these arguments hold true. During oral argument, some of the debate centered on whether the substantive interests at stake were the student/child’s interests, or the parent’s. The substantive requirements of the IDEA obligate public schools to provide students with disabilities with a free and appropriate public education (FAPE). The right to FAPE flows to both the parent and the student. The student has a right to receive FAPE and the parent has a right to ensure that his or her child receives FAPE. These dual rights come from the origins of FAPE, which evolved from parental obligations to send children to school under state compulsory education laws. Court decisions pre-dating the IDEA held that by imposing such obligations on parents, states created a right for parents to send their child to school even if the child had a disability. Courts ruled that this right included the right to receive appropriate educational services at public expense. Congress expressly adopted the position of these courts when it enacted the federal law that is now the IDEA. Therefore, the right to FAPE includes a parental right to have one’s child obtain appropriate education at public expense, and parents should be able to enforce this right in court without an attorney as they would any other right. Second, the IDEA expressly provides that parents can seek an administrative hearing to enforce the right to FAPE. As parties, parents have a variety of rights during the hearing process. The IDEA specifically states that “any aggrieved party” may appeal adverse hearing rulings in state or federal court. As the 1st Circuit noted in its opinion, the parent’s right to appeal due process decisions to federal court includes the right to do so without an attorney. It would be illogical for Congress to provide parents with the ability to enforce the right to FAPE at the administrative level, but not allow them to effectuate an express appeal provision to federal court unless they obtained counsel. Such a result contradicts the legislative history and the language of the IDEA. Congress did not intend for parents’ rights to enforce the IDEA in court to be contingent upon their ability to obtain counsel. Shortage of attorneys Parents struggle to find attorneys who are willing to take special education cases. In my state of New Hampshire, there are only five or six attorneys willing to do so. Amicus briefs filed in the 1st Circuit case demonstrate that as many as 60% to 80% of parents do not have an attorney at the hearing, and very few of them are able to find an attorney to take an appeal. Denying parents the ability to continue on to federal court without an attorney effectively denies them the right to appeal the administrative decision. Moreover, what happens when the school loses at the administrative hearing and appeals? Are parents forced to pay for an attorney in order to defend their administrative victory? If they are unable to afford an attorney, or unable to find one willing to take the case, must a court enter default judgment for the school? Neither result comports with the intent or the language of the law. Finally, concerns about parents not representing the issues well in court are unfounded. The bulk of the work must be done at the administrative hearing. The appeal to federal court is generally limited to the administrative record, so the evidence and legal arguments must be initially made at the hearing. As a result, if parents are going to inadvertently shortchange their children by pursuing claims under the IDEA without an attorney, they will do so at the hearing level when they make decisions about what evidence to present and what arguments to make. Under the IDEA, parents have an absolute statutory right to make these decisions at the hearing without an attorney. An attorney representing a parent in federal court is not going to be able to cure mistakes made by the parent at the hearing. For these reasons, the Supreme Court should overturn the 6th Circuit’s decision and follow the 1st Circuit’s approach to allow parents to pursue all claims on appeal to state or federal court without an attorney. Scott F. Johnson is a professor of law at Concord Law School and an adjunct professor of law at Franklin Pierce Law Center, where he teaches education law courses. He was pro bono counsel to the parent in Maroni v. Pemi-Baker School District, the 1st U.S. Circuit Court of Appeals case finding that parents could proceed in court without an attorney. More information is available at www.nhedlaw.com/cases.htm.

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