Sandee Winkelman says that when she and her husband, Jeff, pursued an appeal against their son’s school district over an education program they believed was inappropriate for the boy, it wasn’t the inexperienced lawyers they could occasionally afford to hire who helped them the most.
As the two parents took up the legal process themselves, it was law students at Cleveland State University who showed Ms. Winkelman around the school’s law library, explained how to look up special education case law, and helped her absorb the rules of federal civil procedure.
“I got thrown into a library that had a lot of students with big hearts,” said Ms. Winkelman, 44, who lives just a street away from the home where she grew up in this suburb south of Cleveland.
And now, the Winkelmans are continuing to fight for the right of parents to choose a path they say they never really wanted to take—representing their son in court.
Next week, the U.S. Supreme Court will hear arguments on whether parents have the right under the federal Individuals with Disabilities Education Act to represent their children in federal courts on matters related to the children’s individualized education programs, or IEPs. The appeal in Winkelman v. Parma City 69ý (Case No. 05-983) is the third stemming from the main federal special education law that the high court has heard in the past two years. (“IDEA Issues Getting Ear of High Court,” Nov. 8, 2006.)
In 2003, the Winkelmans’ youngest son, Jacob, who has autism, was preparing for kindergarten in the 13,000-student Parma school district after two years in a publicly funded regional preschool program for children with disabilities.
Parma district officials say they developed an appropriate IEP for Jacob at a school in the district that has regular education students alongside students with special needs. But his parents contended that Jacob required more support than the district was willing to provide.
Appellate Dismissal
The dispute went through administrative hearings, with the school district prevailing at each step and the Winkelmans hiring lawyers when they could afford them on a household income at the time of less than $40,000 a year. Mr. Winkelman is a medical technician; Ms. Winkelman cares for Jacob and his 13-year-old sister, Jenna, who also has autism. The couple also has two older sons, James, 22, and Jeffrey, 19.The Winkelmans then turned to the federal courts. They lost in U.S. District Court in Cleveland, where they had a lawyer.
When they appealed to the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, they could no longer afford legal representation. They sought to argue the case themselves, but federal court rules generally don’t allow nonlawyers to represent another person’s interests in court. In November 2005, a three-judge panel of the 6th Circuit court dismissed the case on that basis.
The Winkelmans argue that requiring parents to get lawyers means that many families are shut out of federal court because of the expense, and because of a shortage of lawyers willing to take on special education cases. Supporting the family’s position are a number of disability-advocacy groups, as well as the Bush administration, which argues that parents themselves can be aggrieved parties in special education cases “who may pursue their own procedural and substantive claims in court.”
The school district contends that there is no language in the special education law that supports a departure from the basic procedural rule that a nonlawyer cannot represent another party’s interests in court. Parents don’t have the legal skills to represent their children in court, in contrast to less formal due-process hearings, where hearing officers may give them deference, the district contends. The National School Boards Association and Ohio-based school administration groups have filed a friend-of-the-court brief on the side of the district.
Now a 9-year-old 3rd grader, Jacob was talkative and cheerful last week during a one-on-one swim exercise class at an indoor pool not far from his home. His mother watched intently as an instructor coaxed him to swim from one end of the pool to another.
Out of the water and dry, Jacob flitted from subject to subject, asking if a visitor was “here to write his story,” pleaded with his mother for a trip to Wendy’s, told the story of how he got a Nintendo Wii game system for Christmas, and explained that he’s learning about healthy foods at the Monarch School, the private program he now attends. The french fries he wanted from Wendy’s don’t really qualify, he agreed.
As he continued chatting, though, Sandee Winkelman asked him, “How’s your engine running?”—a question that prompted Jacob to roll his eyes. His mother said she recognized signs that he was getting himself wound up, and that would mean a hard time getting him to sleep when they got home.
Jacob’s behaviors would make it impossible for him to be placed in a large school setting without support, Ms. Winkelman said.
Just placing Jacob in a school alongside students without disabilities would not ensure any meaningful interaction with them, she said. “It’s a nice thought for him,” she said, “but it’s not going to work.”
The Parma district has about 2,150 special education students, about 16 percent of the total enrollment. The national average is 12 percent.
Michele J. Nolan, the director of special education for the district, said she often hears from parents who have had positive reports on the district’s programs. She said the district has never had a proper chance to educate Jacob. About 29 percent of the students at Pleasant Valley Elementary, the 500-student school where Jacob was assigned, have disabilities, according to state records.
“The students have been very successful. Parents are happy,” Ms. Nolan said. With the IEP that has already been developed, along with any needed fine-tuning after Jacob starts school, he could learn well there, she believes. “We just want the chance to try,” she said.
Jean-Claude Andre, the Los Angeles-based lawyer representing the Winkelmans in the Supreme Court, said that if parents are allowed to represent their children at the administrative level, it makes sense that they be allowed to continue that representation before a judge in a civil court.
The 6th Circuit appeals court, Mr. Andre said, “pretty much adopted an all-or-nothing approach: Get a lawyer or get out.”
Remaining at Odds
Christina Henagen Peer, the lawyer representing the school district, said that administrative-hearing judges are allowed to be deferential to a parent’s lack of legal knowledge, but a civil-court judge has less leeway.
“It’s not in the child’s best interest to have a very complicated issue being advocated by someone who isn’t an attorney,” she said.
Ms. Peer also said it’s not as difficult as the Winkelmans and their supporters contend to get legal representation. The IDEA regulations require that school districts provide a list of free or low-cost legal options to parents when a due-process complaint is filed.
The Supreme Court’s decision in the case, which is likely to come by late June, wouldn’t have an immediate impact on Jacob’s school placement. Even with the question of representation resolved, the parents and the school district are still at odds over his education. Ms. Nolan said the district has experienced teachers and therapists waiting for him. What’s missing from his education now is interaction with peers who do not have autism, Ms. Nolan said.
“The benefit continues to be the socialization opportunities with typical peers,” Ms. Nolan said.
Ms. Winkelman said she’d like to see the case resolved with Parma creating “the best autism program that anyone has ever seen.”
Right now, “they don’t have a program,” she maintained. “They tell everyone that, but they don’t.”
