Michael F.Shaughnessy
Senior Columnist EdNews.org
Eastern New Mexico University

1. First of all, can you tell us in general, some details about the famed " Winkleman" case. What are the issues?

Like any case before the US Supreme Court, the issue before the Court itself has a life of its own. The issue that the Court will hear concerns “whether parents have a right to prosecute a case under IDEA on behalf of their child” or instead whether they must hire a lawyer.

That question, although very important was not in the forefront of anyone’s concerns when the case started years and years ago.
Many years ago, in a school district in Cleveland, a parent had a child who required special education. That parent sought and obtained and Individualized Education Plan (IEP) for that child under the statute called the Individuals With Disabilities Education Act (IDEA).

That statute, passed into law in 1975 and was known as Public Law 94-142, the Education for All Handicapped Children Act , provides many types of protections against discrimination, but most importantly, it ensures that parents have a voice in their child’s education by considering it a form of contract when the parents, school administration and staff agree upon and write on paper the IEP. That is the basic legal framework of the case, but it is only part of the story. IDEA also has a series of provisions under law, beyond the contract called IEP. Those additional provisions are designed to enforce the IEP.

Just a few of the avenues of recourse enjoyed by parents under IDEA statute include so-called “due process” hearings, mediation and resolution meetings. There is also recourse in the courts when parents disagree with the terms of the IEP, disagree about placement for their child; or if the IEP is not implemented correctly.

If the IEP is not implemented, there are also civil rights proceedings available to parents provided by the government at the state and federal level.

So there is this complex web of laws surrounding the IEP. But that is the beginning of the story.

Along comes the family in the Winkelman case, and they have lost their case against the school district at every level. They go to the Courts of Appeals in Ohio, and the court says, “Wait, you can’t bring your case here, you are a parent, not an attorney, you need an attorney”.

And that is what brings us to the US Supreme Court: when competent parents who care about their child want to enforce rights under the IDEA law or within the terms of the IEP, why can’t they simply bring the case themselves, just as if they were the child since the child is a minor and disabled too?

Or, are we going to say at every court in the USA, if you want to enforce your parental view of your child’s rights regarding education in the USA, you must have an attorney?

From the point of view of costs, the notion that every parent who wants to enforce rights must have a lawyer will be very expensive. When, for example, does one start to need an attorney? If any IEP can end up in the US Supreme Court (and this is the third one in two years to do so) then really it would be silly to go to an IEP meeting or have an evaluation without an attorney.

There is no beginning and no end if the law requires the parents to have an attorney, just more expense in an already complicated swamp of a system that is overburdened and expensive already.

SO that is the question before the Court: can you be just a simple parent interested in enforcing your child’s rights in order to bring a case under the IDEA statute, or must every child be represented by an attorney?

2) How did you get involved?

I am very lucky. There is a brilliant team of young lawyers who were concerned about this case once they found out what happened to the Winkelmans. That team decided to ask the US Supreme Court to stop the proceedings in the Courts of Appeals in order to determine whether the family needs an attorney. It was probably the last thing the school district expected—except of course for what happened next, which is the US Supreme Court heard the petition for the stay, (that’s what stopping a case is called) and actually granted it. I was not part of the team then. But we had heard about each other’s work, because I am very active in the law of special education and advocacy rights for people with disabilities. I taught legislation for five years in a law school, I have drafted successful legislation about special education, and I have a public health degree from the Bloomberg School of Public Health, Johns Hopkins University, in addition to having served as an attorney for a quarter of a century. So we found each other, and I agreed to lend some expertise for free.

Here’s the fascinating part of this history:

The same issues faced by the family in Ohio impact the rights to enforce the IEP under IDEA faced by parents in Cherry Hill New Jersey. And soon it was agreed that the family in Ohio would be supported by several Friends of the Court, including a family whom they never met, facing the same or similar problems in New Jersey.

This case actually, when one thinks about it carefully, impacts the daily life of any child who deserves Special Education regardless whether that student is placed in a private school or a public school or some alternative facility.

Because the IDEA statute requires inclusion of special education students in the so-called regular or mainstream classrooms, it is really true that the outcome of this case will have an impact on the daily life of every school child in this nation.

3) Please tell us non attorneys what you mean by "amicus" and what your position is in that regard.

Amicus refers to the notion of a Friend of the Court. If you can, imagine a judge sitting on a complex case who is perplexed by the many different facets of the case and doesn’t really have time to study all the relevant policy concerns or the nuances of the law. He or she may be a sophisticated, knowledgeable judge, who just doesn’t happen to know in very deep detail about this one corner of the law. Not a silly person. A person one can respect, but simply unaware of the problem in the law until confronted with the opportunity to decide a case about it.

So each litigant tells their story and has their side to argue before the judge.

Well, along comes someone else, someone new who has no immediate interest as a named party in the case. They are not the litigants, but they have an interest in the outcome of the case. Maybe they care deeply about the underlying values in the Court’s social policy. Maybe they spend a lot of money or time trying to achieve some of the goals of one of the litigants, especially if one litigant is a government agency.

Or maybe, as in this case, the Amicus, has very similar interests and concerns as one of the litigants, and therefore has experience and expertise and a point of view to be considered that would not be raised by the litigants themselves.

So, imagine this Friend comes along and says, “Come here, judge, let me whisper in your ear before you write your opinion. Let me tell you what I think is the important problem in this case, and what I would do if the judge were me”.

An Amicus must disclose why this is so important to them, in a statement of interest at the outset of their brief. An Amicus cannot alter the course of the case through testimony or by offering evidence the way one sees in a fake trial on television.

An Amicus offers reasoning and insight into the body of evidence, however, and if expressed reasonably in the right context, the views of the Amicus will be taken into account and may even have an influence on the final outcome.

4) What are the possible outcomes of this case and how would they affect first, parent, and then teachers, and then students?

I’ll answer the second part first, because that is an easier question. The effects should be about the same throughout the system, unless the Court writes some new guidelines for these relationships into its opinion when making its ruling.

I think the results would have the same impact for everyone because the question really boils down to whether the system has left any built-in accountability. Whether parents can bring a case on behalf of their child or instead a lawyer does it, we are still concerned with the issue of school district accountability. And these issues will impact the daily life of some teachers but not others and the impact will be determined by the school district’s willingness to provide reasonable accommodations in special education and their demonstrated compliance with law.

Regarding the possible outcomes, of course we cannot read the mind of the Court until the opinion will have been published. But we can make an educated guess about some things.

There are two major possible outcomes:

First, parents win. What do parents win? They win the right to go into a court, even without a lawyer, to pursue their child’s special education rights as protected by the statute and codified by the IEP.

This is a very narrow but very basic right.

It does sound UnAmerican to proclaim that parents have no rights and that the only way a special education student can obtain and enjoy protections of their rights is through a hired attorney.

We have traditionally deferred to parental expertise regarding choices about education throughout US history, with the sole exception perhaps of racial desegregation requirements in the second half of the twentieth century. Parents otherwise can usually choose a religious school or public school or private or even homeschooling.

Furthermore, there is the problem of who decides what is right for the child, if not the child’s own parent?

Presumably, if a child is represented by a lawyer that lawyer is ethically bound to make the best professional decisions, there is no reason to guarantee that such decisions would even take into account or be consistent with the preferences and choices made by the parents.

Another possible outcome is that the parents lose this long-standing highly prized and cherished right. Such an outcome would be strange and it would have implications for other areas of parental rights to make choices regarding education, especially voucher and religious education.

Obviously, if a statutory right to enforce parental choices or concerns does not exist, what can be said about parental rights that are really traditions, such as the choice of religious or secular education? Would each parent who wanted to make such a choice for their student over the school district’s objection then need a lawyer to enforce that right too?

Taking away the parental rights to bring these cases would not make sense under the IDEA statute, but it would make it easier for school districts to do what they want to special education students. This would be a harmful if not dangerous outcome, because it’s inevitable result would be: that no one is accountable in the system even when the system appears to be broken or spend untold large sums of money. So even if the school districts complain that parents don’t make the best decisions that cannot amount to a reason to prohibit parents from making those decisions.

5) What would be the relevance for Parent Teacher Associations (if any)?

This is a vital case that touches fundamental aspects of daily life of education for every child in the USA and therefore is of vital interest to every school Parent.
I repeat: This case has an impact on the daily life of every school child in the USA and their parents. That’s a lot of people. This is true because:

The fundamental tenet that parents have a right to go to court about choices in education of their children strikes at the heart of every parent.

Furthermore, the fact that every student is entitled to special education if needed, regardless whether the schooling is public or private, and that such students must be integrated into the classroom whenever possible under the IDEA statute’s requirements for “inclusion” means that the rules written into the opinion in this case will apply to every pre-K, kindergarten, middle school and secondary school classroom in the nation.

6) Historically, the IEP team, (Individual Educational Program) has determined the placement for children with special needs. What input do parents have, and how much, as non educators, SHOULD they have?

Well, that question really gets to the facts in Winkelman in the courts below.

Unfortunately, those questions are not directly of concern to our US Supreme Court. But the statute does answer this question by protecting the rights to “parental involvement” at several levels, and by requiring that parents be notified about IEP meetings and given the opportunity to participate in IEP deliberations. Some people, such as an errant father who also might refuse visitation or custody—some parents may choose to refuse to exercise any of those rights. But parents who are diligent can and may exercise those rights.

It is widely believed in the field that even though parents are a pain to deal with at meetings sometimes, parental input is nonetheless invaluable for creating an IEP that is operationalizable.

Parents have insights into the abilities and limits of their children and they have the ability to provide oversight when the child must perform tasks (such as homework assignments) in order to attain the written goals of the IEP. And parental co-operation is often required to obtain services. Not simply by signing a consent form but also to actually bring a child to necessary services such as speech and language training or tutors or occupational therapy.

I hasten to add that students have the right to attend their IEP at any age and the law even requires that an explanation be written if they do not attend after a specific age.

Few parents encourage their child to attend the IEP meetings, and this is really sad because ultimately, the child is the third party beneficiary of this IEP contract and whatever the child cannot or will not do can be written into pretty text on a lot of paper, but will ultimately only be achieved with their buy-in, active participation and willingness to perform the tasks required to achieve the goals in the IEP.

7) If parents disagree with their child's educational placement, does the law allow for other options, mediation etc

Yes, but what rights will parents have to access these systems if every student must be represented by a lawyer?

8) Should parents have to procure an attorney to get their child the appropriate education that parents believe they should have or should schools have to use their counsel to place the child in an environment that they believe appropriate?

Absolutely. Sad but true that winning Winkelman is a win for an illusory right.

Few physicians can take out their own appendix while under the knife or under the anesthetic. So too with bringing one’s own case. Everyone needs the right to bring a case, but few people should actually do so. Law school is expensive, however, and some people who are smart and wise and aware of their rights, like the family in Cherry Hill, (one parent is a doctor and one is a dentist) may have difficulty finding a lawyer to enforce protections for a free education.
There is an important distinction between having the right to bring a case and actually bringing it on one’s own without professional guidance or supervision. That does not require turning the IDEA statute into a Lawyer’s Full-Employment Act however, and how that plays out in daily life is one of the joys of practicing law.

9) What question have I neglected to ask?

What can parents do? I often have written:

Winning Civil rights is not a spectator sport. The right to special education is a civil right,

Get the best evidence. Have your child evaluated even when you think nothing is wrong. Ask a lot of questions. Do not take comfort in the friendly arms of denial. Make schools accountable for achieving IEP goals and get the very best information when writing an IEP. And most of all, stand up for your child’s rights.

ILISE L. FEITSHANS, JD and ScM, Barnard College, Columbia University B.A. Cum Laude 1979; Georgetown University Law Center JD 1983; Johns Hopkins University School of Hygiene and Public Health ScM 1996 has been writing about occupational health law, international laws governing health and disability laws andspeaking to parent groups for several years.

Published February 13, 2007 EdNews.org