Order Code RS22540
November 29, 2006
CRS Report for Congress
Received through the CRS Web
The Individuals with Disabilities Education
Act (IDEA): Supreme Court To Decide
Whether Parents May Bring Suit Pro Se
Nancy Lee Jones
American Law Division
The Supreme Court granted certiorari in Winkelman v. Parma City School District
(05-983) to determine whether and, if so, under what circumstances non-attorney parents
of a child with a disability may bring suit without using an attorney under the
Individuals with Disabilities Education Act. The circuit courts are split in their
determinations of this issue, with some circuits finding that non-attorney parents may
not proceed pro se, another circuit holding that non-attorney parents have no limitations
on their ability to proceed, and other courts of appeals holding that parents can proceed
on procedural claims but must use a lawyer for substantive claims. This report will not
The Individuals with Disabilities Education Act1 is both a grants statute and a civil
rights statute. It provides federal funding for the education of children with disabilities
and requires, as a condition for the receipt of such funds, the provision of a free
appropriate public education (FAPE). Originally enacted in 1975, the Act responded to
increased awareness of the need to educate children with disabilities, and to judicial
decisions requiring that states provide an education for children with disabilities if they
provided an education for children without disabilities.2 The statute contains detailed due
20 U.S.C. §1400 et seq.
For a more detailed discussion of the congressional intent behind the enactment of P.L. 94-142
see CRS Report 95-669, “The Individuals with Disabilities Education Act: Congressional Intent,”
by Nancy Lee Jones. IDEA has undergone several reauthorizations, including the most recent
one which resulted in P.L. 108-446. The sixth circuit in Winkelman issued its order after the
effective date of P.L. 108-446. For a discussion of this reauthorization see CRS Report
RL32716, The Individuals with Disabilities Education Act (IDEA): Analysis of Changes Made
Congressional Research Service ˜ The Library of Congress
process provisions, including the right to bring suit in order to ensure the provision of
FAPE. IDEA states in part that “[a]ny party aggrieved by the findings and decision ...
made under this subsection, shall have the right to bring a civil action with respect to the
complaint presented pursuant to this section....”3 The judicial decisions concerning the
rights of non-attorney parents of children with disabilities to bring suit without an attorney
have raised issues concerning whether the parents of a child with a disability are “part[ies]
aggrieved” under IDEA. Whether the parents are parties aggrieved depends largely on
whether the rights guaranteed under IDEA are guaranteed for the child with a disability,
for the parent of such a child, or both. Courts have varied in their views on this issue and
therefore on the issue of whether non-attorney parents have the ability to pursue an IDEA
case pro se.
Lower Court Decisions in Winkelman v. Parma City School
Jacob Winkelman has autistic spectrum disorder and, in accordance with an
individualized education program (IEP), was placed in a preschool with the concurrence
of both his parents and the Parma City school district. When he was old enough for
kindergarten, his parents and school officials disagreed on his proper placement, with his
parents alleging that the school’s proposed placement at Pleasant Valley elementary
school was not appropriate to Jacob’s needs. After rulings supporting the school district’s
determination by the hearing officer and a state-level review officer, the Winkelmans
appealed pro se to U.S. district court. The district court agreed with the administrative
rulings4 and the Winkelmans appealed, again without a lawyer, to the sixth circuit court
of appeals. The court of appeals issued an order dismissing the appeal unless an attorney
was obtained within 30 days.5 The Winkelmans then sought and received a stay of this
order from the Supreme Court pending a decision by the Supreme Court. The Supreme
Court granted certiorari on October 27, 2006.
The sixth circuit decision in Winkelman found that the recent sixth circuit decision
in Cavanaugh ex rel. Cavanaugh v. Cardinal Local School District6 was dispositive of
the question of whether non-attorney parents of a child with a disability could represent
their child in court. Cavanaugh held that parents could not represent their child in an
IDEA action and that the right of a child with a disability to FAPE did not grant such a
right to the child’s parents. The sixth circuit in Cavanaugh first noted that federal law
allows an individual to act as their own counsel7 but that generally parents “cannot appear
pro se on behalf of their minor children because a minor’s personal cause of action is her
by P.L. 108-446, by Richard N. Apling and Nancy Lee Jones.
20 U.S.C. §1415(i)(2).
411 F.Supp.2d 722 (N.D. Ohio 2005).
150 Fed. Appx. 406 (6th Cir. 2005).
409 F.3d. 753 (6th Cir. 2005).
28 U.S.C. §1654. “In all courts of the United States the parties may plead and conduct their
own cases personally, or by counsel.”
own and does not belong to her parent or representative.”8 Finding that this general
principle was not abrogated by IDEA, the sixth circuit observed that IDEA explicitly
grants parents the right to a due process hearing but “in stark contrast, the provision of the
IDEA granting ‘[a]ny party aggrieved’ access to the federal courts....makes no mention
of parents whatsoever.”9 In addition, the court observed that the intended beneficiary of
IDEA is the child with a disability, not the parents, and that although IDEA does grant
parents some procedural rights, these only serve to ensure the child’s substantive right and
do not provide the parents with substantive rights.10
Other Court of Appeals Decisions
The circuit courts are not all in accord with the sixth circuit in finding that parents
may not proceed pro se in an IDEA case. Currently, there is a three-way split in their
determinations of this issue, with some circuits finding that non-attorney parents may not
proceed pro se, another circuit holding that non-attorney parents have no limitations on
their ability to proceed, and other courts of appeals holding that parents can proceed on
procedural claims but must use a lawyer for substantive claims.
Parents May Proceed Pro Se. In Maroni v. Pemi-Baker Regional School
District,11 the first circuit held that parents have a right to proceed pro se on both
procedural and substantive grounds. The IDEA language stating that “[a]ny party
aggrieved by the findings and decision ... made under this subsection, shall have the right
to bring a civil action with respect to the complaint presented pursuant to this section....”12
was seen as including parents of children with disabilities. This provision was described
as not making a distinction between procedural and substantive claims, and the procedural
and substantive rights under IDEA were described as “inextricably intertwined.”13 The
first circuit noted that there are some “practical concerns” about recognizing parents as
aggrieved parties: parents may not be the best advocates for their child as they may be
emotionally involved and not able to “exercise rational and independent judgment.”14 In
addition, pro se litigants were seen as imposing burdens on the courts and schools districts
due to poorly drafted or vexatious claims. However, the Maroni court rejected these
practical concerns finding that, since there is no constitutional right to appointed counsel
in a civil case, having a parent represent them was better for children with disabilities than
having no advocate.15
Cavanaugh ex rel. Cavanaugh v. Cardinal Local School, 409 F.3d 753, 755 (6th Cir. 2005),
quoting Shepherd v. Wellman,313 F.3d 963, 970-71 (6th Cir. 2002).
Cavanaugh ex rel. Cavanaugh v. Cardinal Local School, 409 F.3d 753, 756 (6th Cir. 2005).
Id. at 757.
346 F.3d 247 (1st Cir. 2003).
20 U.S.C. §1415(i)(2).
346 F.3d 247, 255 (1st Cir. 2003).
Id. at 258.
For a discussion arguing that the Maroni court correctly interpreted IDEA see M. Brendhan
Flynn, “In Defense of Maroni: Why Parents Should be Allowed to Proceed Pro Se in IDEA
Parents May Not Proceed Pro Se. In addition to the court of appeals decisions
in Winkelman v. Parma City School District and Cavanaugh ex rel. Cavanaugh v.
Cardinal Local School District (discussed above), other circuits also have denied parents
the right to proceed pro se. For example, in Devine v. Indian River County School
Board,16 the parents of a child with autism brought suit alleging that the child’s IEP was
inadequate. Although the parents were represented by an attorney at the beginning of the
suit, they informed the court that they wished to discharge the attorney and proceed pro
se. The court noted that IDEA does allow parents to present evidence and examine
witnesses in due process hearings but found
no indication that Congress intended to carry this requirement over to federal court
proceedings. In the absence of such intent, we are compelled to follow the usual rule
— that parents who are not attorneys may not bring a pro se action on their child’s
behalf — because it helps to ensure that children rightfully entitled to legal relief are
not deprived of their day in court by unskilled, if caring, parents.17
Parents May Proceed Pro Se on Procedural Claims But Not Substantive
Claims. In Collinsgru v. Palmyra Board of Education,18 the parents sought special
education services for their son, who they contended had a learning disability. The
parents pursued the administrative remedies under IDEA without an attorney, although
they did retain a non-attorney expert. The administrative law judge found that the child’s
difficulties were not severe enough to qualify for special education and rejected the
parents’ complaint. The parents then filed a civil action in district court. The district
court held that the parents could not proceed pro se to represent their child and rejected
the parents’ assertion that the parents were pursuing their own rights.
The court of appeals in Collinsgru first found that, under general legal theories
regarding pro se representation, IDEA did not allow parents to proceed pro se to represent
their child, stating:
Congress expressly provided that parents were entitled to represent their child in
administrative proceedings. That it did not also carve out an exception to permit
parents to represent their child in federal proceedings suggests that Congress only
intended to let parents represent their children in administrative proceedings.19
The third circuit noted that the requirement of representation by counsel was based on two
policy considerations. First, the court found, there is a strong state interest in regulating
the practice of law. Requiring a minimum level of competence was described as
protecting not only the represented party but also his or her adversaries and the court from
poorly drafted or vexatious claims. Second, the court emphasized the importance of the
Cases,” 80 IND. L.J. 881 (Summer 2005).
121 F.3d 576 (11th Cir. 1997). See also, Navin v. Park Ridge School District 64, 270 F.3d
1147 (7th Cir. 2001).
Id. at 582.
161 F.3d 225 (3d Cir. 1998).
Id. at 232.
rights at issue and the final nature of the adjudication. A licensed attorney would be
subject to ethical obligations and may be sued for malpractice, whereas an individual not
represented by an attorney would not have these protections.
The parents in Collinsgru argued that because they were, as parents, responsible for
their son’s education, they had joint substantive rights with their child under IDEA. They
noted that parents are often the only available advocates for their child and that attorneys
are often unwilling to take IDEA cases because of their specialized and complicated
nature and lack of significant retainers. The court expressed some sympathy for these
arguments but noted that Congress had provided for attorneys’ fees in IDEA and
concluded that IDEA’s statutory provisions indicated that “the rights at issue here are
divisible, and not concurrent.”20 The parents and the child were thus found to possess
different IDEA rights: the parents “possess explicit rights in the form of procedural
safeguards,”21 whereas the child possesses both procedural and substantive rights.
Other courts have also found that parents have procedural rights under IDEA, which
they can bring suit pro se to enforce. In Mosely v. Board of Education of the City of
Chicago,22 the seventh circuit observed that IDEA “provides both children and their
parents with an elaborate set of procedural safeguards that must be observed in the course
of providing the child a free, appropriate public education.”23 Citing Collinsgru for the
proposition that IDEA confers different rights on parents and children, the court found
that the parent’s procedural rights were enough of an interest to allow a pro se suit to
enforce these parental rights to proceed. Similarly, in Wenger v. Canastota Central
School District,24 the second circuit denied a parent’s attempt to bring a suit pro se on
behalf of his child but stated that the parent “... is, of course, entitled to represent himself
on his claims that his own rights as a parent under the IDEA were violated....”25
Id. at 236.
Id. at 234.
434 F.3d 527 (7th Cir. 2006).
Id. at 532.
146 F.3d 123 (2d Cir. 1998), cert. denied, 526 U.S. 1025 (1999).
Id. at 126.