Date Published: Dec 31, 2009
Brigham Young University Education and Law Journal
Laura McNeal
Page Numbers: 

Certain aspects of special education law concerning parental legal rights are not clear... "Specifically, there has been uncertainty whether non-lawyer parents have the right in court proceedings to challenge pro se the suitability of their child's special education services. The ambiguities of this topic are highlighted by the immense variability in circuit courts decisions throughout the country. Recently, the Supreme Court resolved this unsettled area of law in Winkelman v. Parma City School District" (p.130).


The article goes on to note that with only one exception, federal courts have "held that non-lawyer parents pursuing solely substantive claims were not allowed to represent their children without the assistance of an attorney, based on a their legislative interpretation of IDEA" (p.134). For illustration, note the Third Circuit's opinion "that appearing pro se is explicitly provided for in IDEA, but only when a party is pursuing their own rights. Furthermore, the [court] commented that non-lawyer parents are not allowed to represent their children pro se if the rights asserted are the child's alone" (p.135).


The only federal court that did allow pro se parental representation for substantive violations of IDEA was the First Circuit" which concluded "'that parents are parties aggrived within the meaning of IDEA, and thus may sue pro se'" (p.137).


The Winklemans were parents of a six-year-old child with autism named Jacob, a student of the Parma City School District. They opposed the 2003-2004 IEP because "it failed to provide him with enough music and speech therapy and one-on-one interaction" (p.138). They placed Jacob in a private school at their own expense and pursued administrative review of the IEP. After the hearing officer and state-level review officer rejected their challenge, they sought review in federal district court; that court, too, found that Jacob had been provided with a free appropriate public education as required by IDEA. The Winklemans appealed pro se to the Sixth Circuit, which dismissed the case because they had not retained a licensed attorney to represent their son. (p.138)


"The Supreme Court ruling in Winkelman v. Parma City School District will help promote social justice in American's schools by empowering parents of students with disabilities with substantive rights to appear pro se in federal court to challenge the appropriateness of their child's IEP." (p.147)