And Justice for All

Tomorrow (Tuesday, 27th of February, 2007) the Winkelman case is scheduled for oral arguments before the Supreme Court of the United States.

I know this may be boring to those outside of the US, but this is something that is important to all parents of special needs kids in this country. Basically, the question at hand is whether parents can be allowed to represent their children before a Federal court when cases under the Individuals with Disabilities Education Act (IDEA) are tried.

Generally speaking, only a lawyer can practice law, and one must be hired to represent you before the court. And, in an ideal world, we all would like an attorney to represent us and our child's interest when appearing in court.

There are only two problems with that. First of all is the shortage of lawyers trained in special education law. The second big hurdle, of course, is money. It costs a lot to hire attorneys, and by the time a case makes its way to a Federal court most families are going to be tapped out when it comes to raising funds.

To backtrack a little, I'll give you a short synopsis of the case, which illustrates how the system works. The Winkelmans have two children on the autism spectrum. One, according to them, was adequately educated by the local school district. The other one exhibited many "behaviors" in pre-school, and the parents felt that the school was not providing an appropriate education, and had an inadequate plan to provide a free appropriate public education (FAPE) which is the law.

The Winkelmans enrolled their son in a private school that specialized in autism, while petitioning the school district for reimbursement of the funds they were paying in tuition (greater than $50K/ year on a yearly income of less than $40K/ year). They were initially denied placement in this school, and appealed the case to a Federal court. The court has postponed deciding this aspect of the case. Rather, the court ruled that the parents could not represent their child before the court, and that they must retain an attorney. This is the only aspect of the case that is up before the Supreme Court tomorrow. Two more in-depth discussions of this case can be found here and here.

So why is this so important? Most things are decided at a local district level and never get to court, so what's the big deal?

The deck is already stacked against parents in advocating for their children's rights for a FAPE under IDEA in the LRE (Least Restrictive Environment). Anyone that has gone to an IEP (Individual Education Plan) meeting for their child knows of what I speak. Typically at our IEP's the ratio varies from 15:2 to 20:4, in terms of how many people the school district has lined up on their side vs. how many we have on ours (one or two parents, advocate, lawyer). School districts often like to make the rules up as they go along, and try to get parents to sign off on whatever it is that they (the district) want to do. If you as a parent are not fully aware of your rights and the law, it is easy to get bulldozed in the process.

If indeed you call the district out for acting badly, then they have a team of lawyers at their disposal, and public funds to pay them with. You, of course, have to pay for your own lawyer. If you and the district can't agree on a plan for your child, then you are entitled to file what's called "due process". The latest iteration of the IDEA rules spell out that if the parent's suit is judged to be frivolous or without merit, then the parents are responsible to also pay for the opposing side's legal fees.

Two recent Supreme Court decisions also tend to tilt the playing field against parents. The first is the Schaffer case, where the court decided that the burden of proof rests with the plaintiff (the family) when pressing a case against the school district. The other decision is the Arlington Central case, where the court decided that even if the parents won, they could not recover their lawyers' fees from the school district (generally speaking-but not always in civil suits, the loser is liable for lawyer's fees for both sides).

Before the court tomorrow, the school district is expected to argue that parents need to hire lawyers because a) parents are not smart enough to properly represent their children's rights, and b) if parents are allowed to represent their kids, then a flock of ill conceived and frivolous suits will clog the court system.

I hope that the Supreme Court exercises some common sense here. Most parents that would go this route are very sophisticated when it comes to knowledge and interpretation of special education law. They are also smart enough to get a lawyer if they can, but representing their child themselves may be their only choice if they cannot afford a lawyer and their is no lawyer willing to take the case for free. Also, pursuing a case in court is expensive, in terms of time and money, even without the cost of your lawyer figured in. I know that parents of special needs kids aren't going to be running out and filing frivolous lawsuits.

If the Supreme Court rules against the parents, then the deck will be stacked even higher against parents. Only the most well healed parents will be able to afford the cost of a lawsuit against the school districts. The districts, realizing this, will be able to be even more arbitrary in their decisions on what are appropriate services. And our children will suffer.

Joe is 208