Collinsgru v. Palmyra Bd of Ed

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

11-23-1998

Collinsgru v. Palmyra Bd of Ed

Precedential or Non-Precedential:

Docket 96-5807

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Filed November 23, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 96-5807

ROBERT COLLINSGRU; MAURA COLLINSGRU,

on behalf of their son, Francis Collinsgru,

Appellants

v.

PALMYRA BOARD OF EDUCATION

On Appeal From the United States District Court

For the District of New Jersey

(D.C. Civ. No. 96-cv-00457)

Argued: November 6, 1997

Before: BECKER,* ROTH, Circuit Judges, and

DIAMOND, District Judge.**

(Filed November 23, 1998)

PAUL A. LEVY, ESQUIRE (ARGUED)

DAVID C. VLADECK, ESQUIRE

Public Citizen Litigation Group

1600 - 20th Street, NW

Washington, DC 20009

Attorneys for Appellants

_________________________________________________________________

*Honorable Edward R. Becker, United States Circuit Judge for the Third

Circuit, assumed Chief Judge status on February 1, 1998.

**Honorable Gustave Diamond, United States District Judge for the

Western District of Pennsylvania, sitting by designation.

JOSEPH F. BETLEY, ESQUIRE

CRAIG D. BAILEY, ESQUIRE

(ARGUED)

Capehart & Scatchard, P.A.

8000 Midlantic Drive, Suite 300

Mt. Laurel, NJ 08054

Attorneys for Appellee

ERIC R. NEISSER, ESQUIRE

Constitutional Litigation Clinic and

Special Education Clinic

Rutgers Law School

15 Washington Street

Newark, NJ 07102

Attorney for Amici Curiae

OPINION OF THE COURT

BECKER, Chief Judge.

Robert and Maura Collinsgru ("the Collinsgrus"), acting

on behalf of their son, Francis Collinsgru ("Francis"), appeal

from the district court's dismissal of their son's complaint

against the Palmyra Board of Education ("Palmyra"). The

Collinsgrus sought to represent Francis in a civil suit

following a state administrative decision to deny their son

special education services under the Individuals with

Disabilities Education Act, 20 U.S.C. S 1400 et seq. (1994 &

Supp. 1997) (the "IDEA").1 The district court found that it

was bound by our decision in Osei-Afriyie v. Medical College

of Pa., 937 F.2d 876, 882 (3d Cir. 1991), in which we held

that a non-attorney parent could not represent his children

in a tort action in federal court. After holding that the

Collinsgrus could not represent Francis themselves, the

court gave the parents thirty days in which to hire an

attorney for him. When they failed to do so, the district

court dismissed Francis's claims without prejudice for

failure to prosecute. On appeal, the Collinsgrus contend

_________________________________________________________________

1. Cites to the IDEA will be to the 1997 version of the Act unless

otherwise specified.

2

that Osei-Afriyie does not control because: (1) the IDEA

creates the same rights in parents that it creates in

children; (2) the claims in their son's complaint are

functionally their own; and (3) they should therefore be

allowed to proceed pro se on those claims.

We first must consider whether we have jurisdiction over

this appeal, in light of the fact that the district court's order

was neither a final resolution on the merits nor an

interlocutory order of the type clearly appealable under 28

U.S.C. S 1292. We conclude that we have jurisdiction under

the collateral order exception to 28 U.S.C. S 1291. On the

merits, we conclude that the IDEA does not confer joint

substantive rights on parents and their children. We agree

that the IDEA grants parents ample procedural rights to

ensure active parental involvement at all stages of the

development and implementation of a child's individual

educational program, even through the administrative

process. We think, however, that Congress's decision to

endow parents with these procedural rights should not be

read, under the language of the IDEA, to imply that parents

also possess the same underlying substantive rights that

their children possess. Therefore, we do not think that the

Collinsgrus may properly be said to be suing under their

own cause of action. We conclude, in light of the IDEA's

language and the statutory and common law rules guarding

against non-attorney representation of another, that

parents seeking to enforce their child's substantive right to

an appropriate education under the IDEA may not

represent their child in federal court.

I. Background

At all relevant times, the Collinsgrus resided in Palmyra,

New Jersey, and Francis attended the Palmyra Public

Schools. The Collinsgrus maintain that Francis is learning

disabled, and needs to receive an education that will

accommodate his learning disabilities, but the School

Board's Child Study Team decided that he was ineligible to

receive special education services. Accordingly, the

Collinsgrus sought special education services through the

administrative procedures established by the IDEA. Under

the express provisions of the IDEA, the Collinsgrus were

3

able to participate in the administrative proceedings

without legal representation, though they engaged the

assistance of a non-lawyer expert. See 20 U.S.C.

S 1415(h)(1). Following a nineteen-day hearing, the

Administrative Law Judge ("ALJ") determined that Francis's

educational difficulties were not severe enough to warrant

special services.

The Collinsgrus, proceeding pro se, filed a civil suit

contesting this determination in the District Court for the

District of New Jersey. 20 U.S.C. S 1415(i)(2)(A). In their

initial complaint, the Collinsgrus alleged that Palmyra had

inadequately tested Francis for a disability and that the

School Board had interfered with an independent

evaluation of his needs. In addition, they contended that

the decision by the ALJ was contrary to the law and to the

record in the case, and that the ALJ had "manufactured"

testimony. Finally, they asserted that the decision was

tainted by the public policy position of the State

Commissioner of Education that too many students in New

Jersey were being labeled as learning disabled. The Board

answered the complaint, but also objected by letter to the

fact that, rather than hiring a lawyer to represent Francis,

the Collinsgrus were attempting to represent him

themselves. In response, the Collinsgrus amended the

caption of their complaint to emphasize that they were

asserting their own rights as parents under the IDEA, as

well as their son's rights, to ensure that their son received

the free, appropriate education guaranteed by the Act.

The Collinsgrus acknowledge that they would prefer to be

represented by experienced counsel rather than continue to

pursue their appeal in the federal district court pro se.

Although the Collinsgrus are represented by attorneys from

the Public Citizen Litigation Group in their appeal before

this Court, these attorneys have entered their appearance

solely for the purpose of litigating the regionally and

nationally important question of the Collinsgrus' right to

proceed pro se before the district court. The Collinsgrus

concede that they do not qualify for appointment of counsel

under the in forma pauperis statute, 28 U.S.C. S 1915

(1994). However, because of the magnitude of this litigation,

the Collinsgrus explain that they cannot afford to retain an

4

attorney on a normal fee basis to handle their civil case,

nor have they been able to locate an attorney willing to take

their case on a contingent fee or pro bono arrangement.

The district court held that the Collinsgrus were not

entitled to represent Francis pro se in the civil action,

reasoning that this result was compelled by our decision in

Osei-Afriyie. The district court also rejected the Collinsgrus'

effort to characterize their IDEA appeal as an assertion of

their own claims. Rather, the court ruled, Francis was the

real party in interest and must be represented by an

attorney. The court gave the Collinsgrus thirty days to

retain counsel, prescribing that, if counsel were not

retained, Francis's claims would be dismissed pursuant to

Fed. R. Civ. P. 41(b) for failure to prosecute.

When the Collinsgrus failed to retain counsel, the district

court dismissed Francis's claims, staying the parents'

claims pending resolution of the present appeal. Although

the Collinsgrus sought certification of an interlocutory

appeal under 28 U.S.C. S 1292(b) (1994), the district court

refused to certify the issue. The court did, however, advise

the Collinsgrus that they could invoke the collateral order

exception identified in Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541 (1949), in order to seek immediate

interlocutory review under 28 U.S.C. S 1291 (1994). The

Collinsgrus then filed a motion in the district court

requesting that it clarify which claims they could maintain

as parents and which only their son could maintain. The

district court declined to provide this clarification,

concluding that such a ruling would constitute an advisory

opinion. This appeal followed.

II. Appellate Jurisdiction and Standard of Review

As a threshold matter, we must determine whether we

have jurisdiction to hear this appeal. The district court

dismissed only Francis's claims for failure to prosecute; the

Collinsgrus appeal from this dismissal, as well as from the

related determination that the Collinsgrus could not

represent Francis themselves. However, the Collinsgrus also

made certain claims on their own behalf under the IDEA;

the district court stayed these claims until the issue of

5

Francis's representation is resolved. As a result, the

challenged order did not finally resolve the merits of this

case, which would have authorized ordinary review under

28 U.S.C. S 1291, nor was the order of an injunctive

nature, such that it would have been immediately

appealable pursuant to 28 U.S.C. S 1292(a). Both the

Collinsgrus and the School Board submit that the question

whether parents may represent their children in federal

civil actions following administrative findings under the

IDEA falls within the collateral order exception to the

requirement of finality imposed by S 1291. Despite the

agreement of both parties, we have an independent

obligation to examine our jurisdiction to hear this appeal.

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31

(1990).

This Court has jurisdiction over interlocutory appeals

under S 1291 only if the challenged order falls within the

collateral order exception to the finality requirement of

S 1291. An appeal from a non-final order will lie if:

(1) the order from which the appellant appeals

conclusively determines the disputed question; (2) the

order resolves an important issue that is completely

separate from the merits of the dispute; and (3) the

order is effectively unreviewable on appeal from afinal

judgment.

In re Ford Motor Co., 110 F.3d 954, 958 (3d Cir. 1997). This

test derives from the Supreme Court's opinion in Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).

The first prong is easily met here. It is beyond dispute

that the district court's order of October 29, 1996, denying

the Collinsgrus leave to represent their son in a civil suit

following the administrative denial of special education

rights under the IDEA, leaves no room for further

consideration of this issue by the district court. The court's

order gave the Collinsgrus thirty days to obtain outside

counsel or face dismissal of those claims brought solely on

behalf of Francis, for failure to prosecute. The Collinsgrus

have no further opportunities before the district court to

reopen the question of their ability to represent Francis.

6

The second prong is also satisfied. First, the question

whether the Collinsgrus may represent their son in federal

district court is entirely separate from the merits of the

underlying action. The Collinsgrus argue that they are

entitled to represent their son's interests in federal court

proceedings under 28 U.S.C. S 1654 and the IDEA. Review

of this question will not require us to consider the

underlying subject matter of this action -- that is, whether

Palmyra improperly denied Francis appropriate special

educational services and interfered with the parent's

procedural rights. See Devine v. Indian River County Sch.

Bd., 121 F.3d 576, 580 (11th Cir. 1997) (stating that

immediate review of parental representation would not

involve the court in the subject matter of the case), cert.

denied, 118 S. Ct. 1040 (1998).

Under the second prong of the collateral order doctrine,

we must also examine the importance of the issue to be

reviewed. In re Ford Motor Co., 110 F.3d at 959. "[F]or the

purposes of the Cohen test, an issue is important if the

interests that would potentially go unprotected without

immediate appellate review of that issue are significant

relative to the efficiency interests sought to be advanced by

adherence to the final judgment rule." Id. Accordingly, we

must balance the importance of the Collinsgrus' right to

represent their son in these proceedings with our interests

in finality and in avoiding piecemeal appeals. See id. at

959-60 (citing Lauro Lines S.R.L. v. Chasser, 490 U.S. 495,

503 (1989) (Scalia, J., concurring)). Unless appellants are

able to obtain review of the question whether they may

represent their son, it appears that they will be unable to

proceed in the district court on a number of claims.

Moreover, the question of the parents' right to represent

their child under the IDEA, already litigated to the court of

appeals level in other circuits, see infra, is very important

to the administration of the IDEA. Accordingly, we conclude

that the question presently before us is of sufficient

consequence to outweigh our usual interest in finality.

The final prong of the Cohen analysis is less easily met.

This prong requires that the order appealed from be

effectively unreviewable after final judgment. The Supreme

Court has imposed significant restrictions upon

7

interlocutory appeals of orders regarding legal

representation. See Richardson-Merrell, Inc. v. Koller, 472

U.S. 424 (1985) (denying interlocutory appeal from order

disqualifying opposing counsel in civil case); Flanagan v.

United States, 465 U.S. 259 (1984) (denying interlocutory

appeal from an order granting motion to disqualify counsel

in a criminal case); Firestone Tire & Rubber Co. v. Risjord,

449 U.S. 368 (1981) (denying interlocutory appeal from an

order denying motion to disqualify opposing counsel in a

civil case). The Court of Appeals for the Eleventh Circuit,

facing the same question that we face here, found a

relevant difference between questions of representation by

counsel, which were raised in these Supreme Court cases,

and questions of pro se representation. We agree that the

principles of those cases do not prevent us from exercising

jurisdiction over the question presented in this case.

The Devine court concluded that the question whether a

party may appear pro se in proceedings before a district

court cannot be effectively reviewed on appeal."[T]he right

to represent one's self is effectively lost if not immediately

vindicated," because the harm in erroneously denying a

party leave to proceed pro se is that it injures his dignity

and autonomy, something that cannot later be repaired.

121 F.3d at 580. Although the dignity/autonomy rationale

loses lustre in light of our ultimate holding -- that much of

what the Collinsgrus allege is their own case is actually

their son's -- we believe that a concern with the rationale

is at least colorable in this situation. We also think that

questions of appealability should be decided ex ante and

not ex post.

Finally, we think that the denial of the right to proceed

pro se is analogous to an order denying a litigant leave to

proceed in forma pauperis, which is immediately

appealable. Roberts v. United States Dist. Court for the N.

Dist. of Cal., 339 U.S. 844, 845 (1950). Like denial of leave

to proceed in forma pauperis, denial of leave to proceed pro

se in a civil action may operate to bar many litigants from

prosecuting or defending their claims. Because these orders

effectively close the courthouse door to litigants, the

majority of courts to consider the issue have held that

orders denying leave to proceed pro se are immediately

8

appealable. See, e.g., C.E. Pope Equity Trust v. United

States, 818 F.2d 696 (9th Cir. 1987); O'Reilly v. New York

Times, 692 F.2d 863 (2d Cir. 1982). But see Flora Constr.

Co. v. Fireman's Fund Ins. Co., 307 F.2d 413 (10th Cir.

1962) (denying interlocutory appeal of court's refusal to

permit company to appear pro se by its non-attorney

president).

We conclude that, because of the impact of the order on

the litigant's case, the district court's order denying the

Collinsgrus leave to represent Francis is effectively

unreviewable on appeal from a final judgment, and hence

we have jurisdiction to hear this appeal.

We review for abuse of discretion a district court's

dismissal for failure to prosecute pursuant to Rule 41(b).

Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 341

(3d Cir. 1982). However, to the extent that the district

court's dismissal of Francis's claims was based upon its

construction of the IDEA, we will exercise plenary review.

See In re TMI, 67 F.3d 1119, 1123 (3d Cir. 1995), cert.

denied sub nom Metropolitan Edison Co. v. Dodson, 517

U.S. 1163 (1996).

III. Discussion

A. The Right to Proceed Pro Se

It has long been recognized that a litigant in federal court

has the right to proceed as his or her own counsel. 28

U.S.C. S 1654 (1994) ("In all courts of the United States the

parties may plead and conduct their own cases personally

or by counsel . . . ."). In contrast, under Rule 17 of the

Federal Rules of Civil Procedure, minors are precluded from

determining their own legal actions. Rather, under Rule

17(c), a representative or guardian "may sue or defend on

behalf of the infant." It is, however, well-established in this

Circuit that the right to proceed pro se in federal court does

not give non-lawyer parents the right to represent their

children in proceedings before a federal court. See Osei-

Afriyie v. Medical College of Pa., 937 F.2d 876, 883 (3d Cir.

1991). Other circuits follow this rule as well. See Devine,

121 F.3d at 581-82; Cheung v. Youth Orchestra Found., 906

F.2d 59, 61 (2d Cir. 1990); Meeker v. Kercher, 782 F.2d

9

153, 154 (10th Cir. 1986); Johns v. County of San Diego,

114 F.3d 874, 876-77 (9th Cir. 1997); Hickey v. Wellesley

Sch. Comm., 14 F.3d 44, 1993 WL 527964, at *2 (1st Cir.

Dec. 21, 1993) (unpublished disposition).

Our leading case regarding the ability of parents who are

not attorneys to represent their children in federal court

actions is Osei-Afriyie. Francis Osei-Afriyie brought, on

behalf of himself and his two daughters, a number of tort

claims relating to the treatment of his daughters for

malaria. The case came before this court after Osei-Afriyie,

a non-attorney, had represented himself and his daughters

in a trial in the district court. A verdict was entered against

him and his daughters after the jury found that he had not

brought the case within the applicable statute of

limitations. The district court had erroneously failed to

instruct the jury regarding tolling of the statute of

limitations in cases involving minors. We directly attributed

this error to Osei-Afriyie's lack of experience and training as

a lawyer. 937 F.2d at 882. Accordingly, we vacated the

district court's judgment to the extent that it adjudicated

the children's claims and remanded these claims. We held

that the Osei-Afriyies could opt to obtain counsel, request

appointment of counsel under the in forma pauperis

statute, or let the children wait until they were old enough

to pursue their own claims pro se, but the children could

not be represented by their father. Id. at 883. Accord Johns,

114 F.3d at 876-77; Cheung, 906 F.2d at 62.

The requirement of representation by counsel is based

upon two cogent policy considerations. First, there is a

strong state interest in regulating the practice of law.

Requiring a minimum level of competence protects not only

the party that is being represented but also his or her

adversaries and the court from poorly drafted, inarticulate,

or vexatious claims. See Brown v. Ortho Diagnostic Sys.,

Inc., 868 F. Supp. 168, 172 (E.D. Va. 1994) (noting that

"the conduct of litigation by a nonlawyer creates unusual

burdens not only for the party he represents, but also for

his adversaries and the court"). The second consideration is

the importance of the rights at issue during litigation and

the final nature of any adjudication on the merits. Not only

is a licensed attorney likely to be more skilled in the

10

practice of law, but he or she is also subject to ethical

responsibilities and obligations that a lay person is not. In

addition, attorneys may be sued for malpractice. See id.

There are additional reasons why we are reluctant tofind

that Congress intended parents to be able to represent their

children in IDEA cases. First, there is a well-established

presumption that Congress is understood to legislate

against a background of common-law principles. "[T]he

courts may take it as given that Congress has legislated

with an expectation that the [common-law] principle will

apply except `when a statutory purpose to the contrary is

evident.' " Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501

U.S. 104, 108 (1991). See also 3 Sutherland Statutory

Construction S 61.03 (Norman Singer ed., 5th ed. 1992)

("When there is no indication that Congress . . . intended to

abolish a well-established common-law doctrine through

the passage of a statute, the act will be interpreted in a way

that will preserve the common-law doctrine."). In United

States v. Texas, 507 U.S. 529 (1993), the Court held that

"[i]n order to abrogate a common-law principle, the statute

must `speak directly' to the question addressed by the

common law." Id. at 534. Indeed, a "party contending that

legislative action changed settled law has the burden of

showing that the legislature intended such a change."

Green v. Bock Laundry Mach. Co., 490 U.S. 504, 521

(1989). And in United States v. Ron Pair Enters., Inc., 489

U.S. 235 (1989), the Court noted that this rule of statutory

interpretation is particularly apt when the statutory

provision at issue is ambiguous, when prior law reflected

significant policy considerations of longevity and

importance, and when a proposed interpretation is in clear

conflict with an important federal or state law. Id. at 245.

The rule that a non-lawyer may not represent another

person in court is a venerable common law rule. See, e.g.,

Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41, 42 (1st

Cir. 1982) (noting that federal courts have consistently

rejected attempts at third-party lay representation);

Guajardo v. Luna, 432 F.2d 1324, 1325 (5th Cir. 1970)

(stating that an ordered society has a valid interest in

limiting legal representation to licensed attorneys); Brown v.

Ortho Diagnostic Sys., Inc., 868 F. Supp. 168, 170 (E.D. Va.

11

1994) ("Except in the rarest of circumstances, federal

courts have been uniformly hostile to attempts by non-

attorneys to represent others in court proceedings."). We

are reluctant to assume, absent strong evidence to the

contrary, that Congress intended to override this well-

settled rule using ambiguous statutory language. In light of

the rule's significant policy implications, we hold that the

plaintiffs have failed to meet their burden of showing

Congress's intent to change the common-law rule against

non-lawyer representation.

It is true that remedial statutes like the IDEA are to be

construed liberally. The rule of liberal construction,

however, appears to be most often applied to the remedies

created, not the parties permitted to invoke the statute. See

Miller v. Robertson, 266 U.S. 243, 248 (1924) (holding that

a remedial provision should be liberally construed to give a

remedy in all cases intended to be covered); United States

v. Stephens, 208 F.2d 105, 107 (5th Cir. 1953) ("[C]ourts

cannot, upon the pretence [sic] of construing[a statute],

enlarge its coverage to bring within it those not expressly or

by clear intendment embraced within its terms.").

Yet another tool of statutory construction helps us

understand what Congress intended. The canon of

expressio unius est exclusio alterius means that explicit

mention of one thing in a statute implies a congressional

intent to exclude similar things that were not specifically

mentioned. See Russello v. United States, 464 U.S. 16, 23

(1983) (holding that "where Congress includes particular

language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that

Congress acts intentionally and purposely [sic] in the

disparate inclusion or exclusion"); United States v. Azeem,

946 F.2d 13, 17 (2d Cir. 1991) (explaining the doctrine). In

the IDEA, 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.

12

B. Plaintiffs' Joint Rights Theory

The Collinsgrus proffer a second argument, in which they

contend that the analysis of whether parents may proceed

pro se on behalf of their children is different under the

IDEA than it is under a tort case like Osei-Afriyie. They

assert that because an IDEA appeal involves the nature of

the education to be afforded to their son, it is very much

their own case. As parents, they are responsible for their

son's education. See Meyer v. Nebraska, 262 U.S. 390, 400

(1923) ("[I]t is the natural duty of the parent to give his

children education suitable to their station in life. . . .").

They are entitled to make fundamental decisions regarding

his education. See, e.g., Pierce v. Society of Sisters, 268

U.S. 510 (1925) (enjoining enforcement of Compulsory

Education Act, which prevented parents from choosing to

send their children to private schools); Meyer, 262 U.S. at

400-03 (holding that parents are entitled to control the

education of their children and that the state may not

arbitrarily proscribe certain areas of instruction).

Accordingly, the Collinsgrus assert that they are the real

parties in interest in this case.

They recognize, of course, that Meyer and Pierce, which

are grounded in the Due Process Clause of the Federal

Constitution, are insufficient to confer upon them the right

to represent their children, and that the IDEA itself must be

the source of any such right. They contend, however, that

the Act does contain authority for them to represent not

only their own rights and interests, but also, albeit

indirectly, those of their son in proceedings before the

district court. We therefore turn to the IDEA to determine

whether Congress intended to create substantive rights in

the parents of disabled children.

1. Introduction

The primary purpose of the IDEA is

to ensure that all children with disabilities have

available to them a free appropriate public education

that emphasizes special education and related services

designed to meet their unique needs; to ensure that the

rights of children with disabilities and parents of such

13

children are protected; . . . and to assess, and ensure

the effectiveness of, efforts to educate children with

disabilities.

20 U.S.C. S 1400(d). For the most part, the IDEA is

unambiguous as to what rights it provides to parents and

children. It clearly grants parents specific procedural rights,

which they may enforce in administrative proceedings, as

well as in federal court. Additionally, the IDEA permits

parents to represent their children in administrative due

process hearings before state or local agencies. 20 U.S.C.

S 1415(h)(2); 34 C.F.R. S 303.422(b)(2) (providing that

parents have the right to present evidence and examine

witnesses in administrative due process hearings held

pursuant to the IDEA).

The statute also creates a right to bring a civil action in

federal court following a state administrative decision on

the adequacy of the child's individualized education

program (the "IEP"). Id. S 1415(i)(2)(A). The Collinsgrus

concede that the IDEA does not explicitly provide parents

with the right to continue to represent their children in

federal district court. Instead, they argue that the language

of the IDEA, as well as the statute's underlying policy

concerns, exhibit Congress's intent to create joint rights in

the child and the parents to have the child educated

appropriately. As we shall now explain, we do not think

Congress displayed such an intent, and therefore decline to

import the concept of joint rights into the IDEA byfinding

that the Collinsgrus are a real party in interest in Francis's

case.

In any case turning on statutory interpretation, our goal

is to ascertain the intent of Congress. Dole v. United

Steelworkers of America, 494 U.S. 26, 35 (1990). To

accomplish this goal, we begin by looking at the statute's

language. If the language is plain, we need look no further.

United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241

(1989). If the statutory language is ambiguous or unclear,

we may look behind the language to the legislative history

for guidance. United States v. Sherman, 150 F.3d 306, 313

(3d Cir. 1998).

In this case, we will require relatively clear evidence of

Congress's intent to create joint rights in the IDEA. We note

14

here that the Collinsgrus' argument is analogous to asking

us to find that they possess a private right of action under

the IDEA. As we have stated in the context of private rights

of action, "Where a statute does not explicitly create a right

of action for a particular party, a court may find such a

right implied only where it can confidently conclude

Congress so intended." State of New Jersey v. Long Island

Power Auth., 30 F.3d 403, 421 (3d Cir. 1994). See also

Florida Dept. of Bus. Regulation v. Zachy's Wine and Liquor,

Inc., 125 F.3d 1399, 1403 (11th Cir. 1997) (same), cert.

denied, 118 S. Ct. 1402 (1998). Compare Touche Ross & Co.

v. Redington, 442 U.S. 560, 572 (1979) (noting that when

Congress wished to provide a private damage remedy in the

Securities Exchange Act of 1934, it knew how to do so and

did so expressly).

We also note that the Supreme Court has "long since

abandoned its hospitable attitude toward implied rights of

action." Thompson v. Thompson, 484 U.S. 174, 190 (1988)

(Scalia, J., concurring). Because the case at bar is

comparable to a request for a private right of action, we

take heed of this guidance; only if we can "confidently

conclude" from the text and legislative history of the IDEA

that Congress intended to create joint rights will we find

such rights in the Act.

2. Language of the IDEA

Unlike many cases that raise issues of statutory

construction, we deal here not with a particular statutory

phrase, but with language scattered throughout the statute.

The Collinsgrus point to a number of words or phrases

that, they argue, evidence Congress's intent to treat parents

as parties in interest. First, they rely on language in S 1415

that provided attorneys' fees to the "parents or guardian of

a handicapped child or youth who is the prevailing party."

S 1415(e)(4)(B) (1988). However, in 1997 Congress amended

this section to read, ". . . to the parents of a child with a

disability who is the prevailing party," which suggests that

it is the child who should be considered the prevailing

party. Id. S 1415(i)(3)(B) (1997). Second, they point to

S 1415(e)(4) (1988), which prohibits attorneys' fees for

services performed after settlement offers. However,

15

S 1415(e)(4)(E) (1988) allows for the award of attorneys' fees

"to a parent or guardian who is the prevailing party" if he

was substantially justified in rejecting the settlement offer.

(This section is now S 1415(i)(3)(E) (1997) and refers to "a

parent who is the prevailing party.") The plaintiffs contend

that these subsections make clear that an IDEA suit is the

parents' own case for 28 U.S.C. S 1654 pro se

representation purposes. However, it is just as logical to

read this language simply as a reference to the procedural

cases in which parents clearly have standing as parties.

Third, the Collinsgrus point to another discussion of

attorneys' fees that states, "[W]henever the court finds that

. . . the attorney representing the parent did not provide to

the school district the appropriate information in the due

process complaint . . . the court shall reduce . . . the

amount of attorney's fees." Id. S 1415(i)(3)(F)(iv) (emphasis

added). However, in the same section, the statute places

the notice requirement either on "the parent of a child with

a disability, or the attorney representing the child." Id.

S 1415(b)(7). While the former language may be read to

suggest that it is the parent's case, the latter language

suggests that it is the child's case.

Fourth, the Collinsgrus invoke the IDEA's introductory

language, which states that one purpose of the IDEA is "to

assure that the rights of handicapped children and their

parents or guardians are protected." Id.S 1400(c) (1988)

(emphasis added) (now S 1400(d)(1)(B), which states that

one purpose is to "ensure that the rights of children with

disabilities and parents of such children are protected").

However, as noted earlier, it is undisputed that parents do

possess rights under the IDEA; indeed, they possess

explicit rights in the form of procedural safeguards. The

Collinsgrus argue that the IDEA draws no clear distinction

between procedural and substantive rights, and cite

Heldman v. Sobol, 962 F.2d 148 (2d Cir. 1992), for this

proposition. In Heldman, the court stated that "the

procedural rights, in and of themselves, form the substance

of IDEA." Id. at 155. However, the Supreme Court has

distinguished quite clearly between substantive and

procedural rights under the Act. In Board of Education v.

Rowley, 458 U.S. 176 (1982), the Court stated:

16

When the elaborate and highly specific procedural

safeguards embodied in S 1415 are contrasted with the

general and somewhat imprecise substantive

admonitions contained in the Act . . . [i]t seems to us

no exaggeration to say that Congress placed every bit

as much emphasis upon compliance with procedures

giving parents and guardians a large measure of

participation at every stage of the administrative

process . . . as it did upon the measurement of the

resulting IEP against a substantive standard.

Id. at 205-06.

In short, the language of the IDEA is unclear on its face.

Some of its language can be read to suggest that Congress

intended parents and children to share the underlying

substantive right -- that is, that Congress meant both to

give children a substantive right to an appropriate

education and to give their parents the substantive right to

have their children receive an appropriate education. But it

is equally logical to read the IDEA the other way. Under

these circumstances, in which the Collinsgrus have not

made out their case convincingly, we turn to the legislative

history of the Act for further guidance.

3. Legislative History of the IDEA

The legislative history offers little additional guidance

about Congress's purported intent to create joint rights in

parents and children. On one hand, the Senate Report, in

discussing a mediation option in the 1985 amendments,

states, "Although the law has worked very well in most

cases, Congress knew that there would be instances where

parents would be denied the free appropriate public

education to which their handicapped child was legally

entitled . . . ." 131 Cong. Rec. S1979 (Feb. 6, 1985)

(statement of Sen. Weicker) (emphasis added). Earlier, in

considering amendments to the forerunner to the IDEA, the

Education of the Handicapped Act ("EHA"), the Senate

Report stated that "parents of [learning disabled] children

have the right to expect that individually designed

instruction to meet their children's specific needs is

available." S. Rep. No. 94-168, at 10 (1975), reprinted in

17

1975 U.S.C.C.A.N. 1425, 1434. See also id. at 32, 1975

U.S.C.C.A.N. at 1456 (stating that under the Committee's

bill, a state's application for federal funds shall provide that

"special education and related services shall be provided at

no cost to the parents of a handicapped child"); id. at 42,

1975 U.S.C.C.A.N. at 1465 (defining "free appropriate

public education" as "special education and related services

. . . to be provided at public expense, without charge to the

parents or guardians of a handicapped child").

On the other hand, the legislative history refers to the

responsibility of the states to "develop procedures for

appointing the parent or another individual to represent the

interests of the child," which suggests that the role of the

parent is to represent solely the interests of the child, not

to represent jointly held substantive rights. S. Rep. No.

105-17 (1997), 1997 WL 258948, *49. In addition, the

Senate Report to the 1985 amendments to the EHA

indicated that the Act "established an enforceable right to

free appropriate public education for all handicapped

children." 131 Cong. Rec. S1979 (1985). The Report also

noted that the right to judicial review offers protection for

those rights, thus making the procedural rights of the

parents appear derivative of the substantive right of the

child. See id. See also 121 Cong. Rec. S37412 (1975)

(remarks of Sen. Stafford) (referring to "the rights of the

child"); S. Rep. No. 94-168, at 7, 1975 U.S.C.C.A.N. at 1431

(discussing the protection of "the rights of handicapped

children"); S. Rep. No. 105-17, 1997 WL 258948, *56

(stating that S 1415 simplifies the process of delivering

notices to parents about their child's rights).

We conclude that the legislative history sheds little light

on Congress's intent to create joint rights. The above-cited

comments are merely snippets plucked from broad

discussions of the general statutory goals of the Act and do

not arise from explicit discussions of the issue at hand.

Because neither the statutory language nor the legislative

history clearly implies that Congress intended parents to

have joint rights with their children under the IDEA, we will

not read joint rights into the Act.

18

4. Caselaw

We note here that the two other courts of appeals to

consider this issue have reached the same conclusion we

reach today. In Devine, the Eleventh Circuit chose not to

accept the plaintiffs' argument that the IDEA and its

regulations authorize parental representation. 121 F.3d at

581. Instead, the court found no indication that Congress

intended to allow parents to present evidence and examine

witnesses on behalf of their children in federal court

proceedings. The court noted, "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." Id. at 582. The Second Circuit recently raised the

same issue sua sponte and reached a similar conclusion.

See Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123,

124-25 (2d Cir. 1998) (relying on the general rule that a

non-attorney parent must be represented by counsel in

bringing an action on behalf of her child). See also Dacyna

v. Sch. Dist. of Phila., No. 92-CV-2428, 1992 WL 277993, at

*1 (E.D. Pa. Oct. 2, 1992) (stating, in an IDEA case, that a

non-lawyer is not entitled to represent his children in place

of an attorney in federal court); Lawson v. Edwardsburg

Public School, 751 F. Supp. 1257, 1258-59 (W.D. Mich.

1990) (holding that father could not represent daughter's

interests in an EHA case, since he was not an attorney).

While neither the Second nor the Eleventh Circuit

considered the argument that the IDEA creates joint

substantive rights in parents and children, we stillfind that

the reasoning of these courts supports our conclusion.

C. Policy Considerations

Although we believe that the foregoing discussion is

dispositive, we address a number of policy arguments

pressed by the Collinsgrus, which, they claim, make their

reading of the IDEA the most pragmatic reading of the

statute. First and foremost, they remind us of the hard

practical reality that parents are often the only available

advocates for a child's right to an appropriate education.

19

We acknowledge this to be true, for most attorneys will be

reluctant to take on cases like this, characterized as they

are by voluminous administrative records, long

administrative hearings, and specialized legal issues,

without a significant retainer. While we are sympathetic to

this argument, it does not carry the day against the

analysis set forth above. We note too that Congress

obviously contemplated that some parents of disabled

children who were successful in their civil appeals would be

unable to pay their lawyer's fees, as evidenced by the fact

that Congress included provisions for attorneys' fees in the

IDEA. See 20 U.S.C. S 1415(i)(3)(B)-(G).2

The Collinsgrus also argue that the general policy behind

the IDEA favors their argument. In their view, the right of

parents to control and financially support their child's

education and the rights of children to receive an education

are so tightly interwoven that the IDEA must necessarily

protect both sets of rights and must render parents real

parties in interest as to every claim brought under the

IDEA. However, we observe that under the IDEA, a disabled

child can receive a free appropriate education even if the

child has no parents; surrogates may act on behalf of a

child to the same extent that a parent could. See

S 1415(b)(2). In contrast, parents have no rights under the

IDEA if they do not have a disabled child seeking an

education under that statute. To us, this is further evidence

that the rights at issue here are divisible, and not

concurrent.

_________________________________________________________________

2. The Collinsgrus also note that a number of courts, without

questioning the practice, have allowed parents to represent their children

pro se in federal court. See, e.g., Muth v. Central Bucks Sch. Dist., 839

F.2d 113 (3d Cir. 1988), rev'd on other grounds sub nom. Dellmuth v.

Muth, 491 U.S. 223 (1989); Kruelle v. New Castle County Sch. Dist., 642

F.2d 687 (3d Cir. 1981); see also Susan R.M. v. Northeast Indep. Sch.

Dist., 818 F.2d 455 (5th Cir. 1987); Gregory K. v. Longview Sch. Dist.,

811 F.2d 1307 (9th Cir. 1987); Rettig v. Kent City Sch. Dist., 788 F.2d

328 (6th Cir. 1986); Schreiber v. Ridgewood Bd. of Educ., 952 F. Supp.

205 (D.N.J. 1997). However, in none of these cases did the court

consider whether the IDEA permits parental representation. Therefore,

while we acknowledge that this practice reflects the fact that it is

difficult

for parents to find lawyers to take these cases, we reject the suggestion

that these cases should guide our decision.

20

We conclude that the IDEA's language and legislative

history, as well as relevant case law and policy

considerations, suggest that Congress did not clearly intend

to create joint rights in parents under the IDEA. Therefore,

we will affirm the district court's dismissal without

prejudice of Francis's claims on the ground that his parents

may not represent him in federal court.

21

ROTH, Circuit Judge, concurring in part and dissenting in

part:

Although I concur with the majority's conclusion that the

District Court's decision here is immediately appealable, I

respectfully dissent from their conclusion in Part III that

the Collinsgrus do not have joint rights with their son

under the IDEA which they may pursue pro se in the

federal courts. I believe that these rights arise from the

special nature of the relationship between parents and their

children and from the role of parents in directing their

children's education rights and opportunities. They are the

rights of both the parents and the children, and they are

overlapping and inseparable. In enforcing their own rights

under the Act, parents are also acting on behalf of their

child. This is so because parents are responsible for their

children's education. See Meyer v. Nebraska, 262 U.S. 390,

400 (1923) ("[I]t is the natural duty of the parent to give his

children education suitable to their station in life. . ..").

Parents are entitled to make fundamental decisions

regarding that education. See, e.g., Pierce v. Society of

Sisters, 268 U.S. 510 (1925) (enjoining enforcement of

Compulsory Education Act preventing parents from

choosing to send their children to private schools); Meyer,

262 U.S. at 400-03 (holding that parents are entitled to

control the education of their children and that the state

may not arbitrarily proscribe certain areas of instruction).

For this reason, I find the Collinsgrus to be real parties in

interest in this case, who are entitled to pursue that

indivisible concern which is both their own and their child's

educational goals.

Moreover, this result would be consistent with the

primary purpose of the IDEA -- to assure an appropriate

public education to children with disabilities. The focus of

the IDEA rests upon ensuring appropriate educational

opportunities for children with disabilities. But to

accomplish this, the Act recognizes the integral role of

parents in effectuating its educational goals. This

recognition is evinced in the language and structure of the

Act and in the procedural safeguards that are included to

ensure active parental involvement at all stages of the

development and implementation of a child's individual

education program.

22

A key factor in the successful implementation of the goals

of the IDEA are the procedural safeguards that states and

localities are required to accord to "children with disabilities

and their parents or guardians" in order to assure "the

provision of a free appropriate public education." 20 U.S.C.

S 1415(a). The Act requires educational agencies to provide

"an opportunity for parents or guardian of a handicapped

child to examine all relevant records with respect to the

identification, evaluation, and educational placement of the

child, and the provision of a free appropriate public

education to such child, and to obtain an independent

evaluation of the child." 20 U.S.C. S 1415(b)(1)(A). The

educational agency must also provide "written prior notice

to the parents or guardian of the child whenever such

agency or unit -- (i) proposes to initiate or change, or (ii)

refuses to initiate or change, the identification, evaluation

or educational placement of the child or the provision of a

free appropriate public education to the child." 20 U.S.C.

S 1415(b)(1)(C). In addition the educational agency must

provide parents with "an opportunity to present complaints

with respect to any matter relating to the identification,

evaluation, or educational placement of the child, or the

provision of a free appropriate public education to such

child." 20 U.S.C. S 1415(b)(1)(E).

These protections demonstrate that Congress envisioned

that parents would play an active and informed role in the

evaluation and education of their children. The Senate

Committee report recommending passage of the IDEA's

precursor statute explicitly states that,

[b]y changing the language [of the provision relating to

individualized educational programs] to emphasize the

process of parent and child involvement . . . the

Committee intends to clarify that such individual

planning conferences are a way to provide parent

involvement and protection to assure that appropriate

services are provided to a handicapped child.

Education for All Handicapped Children Act of 1975, S.

Rep. No. 94-168, at 11-12 (1975), reprinted in, 1975

U.S.C.C.A.N. 1425, 1435. In interpreting the IDEA, the

Supreme Court has also cautioned that "[t]he primary

responsibility for formulating the education to be accorded

23

a handicapped child . . . was left by the Act to state and

local educational agencies in cooperation with the parents

or guardian of the child." Board of Education v. Rowley, 458

U.S. 204, 207 (1982). Courts should avoid imposing their

views regarding preferred educational methods. Rather,

"Congress sought to protect individual children by

providing for parental involvement in the development of

state plans and policies and in the formulation of the

child's individual educational program." Id. at 208.

The Act also provides substantial due process protections

in the form of administrative proceedings and an appeals

procedure in the event that parents have complaints

regarding the educational services provided to their

children. "The parents or guardian shall have an

opportunity for an impartial due process hearing" before

the local educational agency, 20 U.S.C. S 1415(b)(2), and for

an impartial review on appeal to a state educational agency.

20 U.S.C. S 1415(c). At these hearings all parties,

specifically parents, are accorded:

(1) the right to be accompanied and advised by counsel

and by individuals with special knowledge or training

with respect to the problems of handicapped children,

(2) the right to present evidence and confront, cross-

examine, and compel the attendance of witnesses,

(3) the right to a written or electronic verbatim record

of such hearing, and

(4) the right to written findings of fact . . ..

20 U.S.C. S 1415(d). Thus, during administrative

proceedings under the IDEA, the Act explicitly envisions

that parents will act as advocates for their child's right to

an appropriate education. Congress has also taken steps to

ensure the effectiveness of parents as advocates during

administrative proceedings by authorizing the

establishment of training centers to assist parents in

understanding their rights and their children's' rights

under the Act and to help parents to participate effectively

in administrative due process hearings. 20 U.S.C.

S 1415(e)(2)(B)(I).

24

At the conclusion of all administrative proceedings, the

Act provides the right to bring a civil action in either federal

or state court to "[a]ny party aggrieved by the findings and

decision" made during the administrative proceedings. 20

U.S.C. S 1415(e). Although the language of the Act clearly

delineates an active role for parents during administrative

proceedings under the IDEA, the Act is silent with regard to

the nature of the role of parents during federal court

proceedings under the Act. Thus, it is not clear from the

language of the Act whether parents are "aggrieved parties"

able to bring a court action on their own behalf, or whether

the right to an appeal belongs to their child or belongs to

both parents and child.

The parents here have asserted their own claim under

the IDEA which is still pending in the District Court. The

District Court, however, denied the parents' request that

the court clarify which of the claims before it were claims

of the parents. The stated reason for that denial was that

the parents sought an advisory opinion.

Nevertheless, despite the absence of explicit language in

the IDEA conclusively determining the role of parents in

IDEA appeals, the purpose and language of the IDEA

presuppose the active involvement of parents in enforcing

the educational rights of their children. Through the IDEA,

Congress gave to all children with disabilities the

substantive right to an appropriate education. Children,

however, whether disabled or not, are not able to evaluate

the education they are receiving or to request changes in

the resources and opportunities made available to them.

The IDEA reflects the practical recognition that parents are

the persons who are vested with the authority and the

obligation to oversee their child's education and to enforce

their child's rights under the Act. The Act also invests

parents with the procedural rights and protections

necessary to ensure that they receive access to the

information and resources necessary to enforce the

substantive protections and guarantees of the IDEA.

The Act explicitly defines the rights of parents during

administrative proceedings. See 20 U.S.C.S 1415. Although

the Act does not contain the same explicit definition of the

rights of parents during appeals brought in federal court,

25

there is evidence that Congress did not intend parental

involvement under the IDEA to be confined to the

administrative process. Nor does it make sense, in the

absence of clear Congressional intent, to deny parents, who

are parties with full procedural protections during

administrative proceedings under the Act, the right to

challenge the outcome of these proceedings.

Evidence of congressional intent regarding the role of

parents during federal court proceedings under the IDEA

may be gleaned from the amendment of the Act to include

a fee-shifting provision, authorizing the award of attorneys'

fees to plaintiffs who prevail in appeals from administrative

proceedings. Under the Act, attorneys' fees will be awarded

"to the parents or guardian of a child or youth with a

disability who is the prevailing party." 20 U.S.C.

S 1415(e)(4)(B). Attorneys' fees will not be awarded if the

parents reject a settlement agreement offering more

favorable relief than is ultimately obtained in the judicial

proceedings. 20 U.S.C. S 1415(e)(4)(D)(iii). In contrast, "an

award of attorneys' fees and related costs may be made to

a parent or guardian who is the prevailing party and who

was substantially justified in rejecting the settlement offer."

20 U.S.C. S 1415(e)(4)(E) (emphasis added).

The legislative history of the fee-shifting provisions states

that, "Congress' original intent was that due process

procedures, including the right to litigation if that became

necessary be available to all parents." Handicapped

Children's Protection Act of 1986, S. Rep. 99-112, at 2,

reprinted at, 1986 U.S.C.C.A.N. 1798, 1799. The Senate

Committee Report explicitly states that the fee-shifting

provision should not limit the payment of attorneys' fees to

nonprofit, publicly-funded organizations who provide legal

assistance to parents. Rather, the Committee members

endorsed the principle that "the parents or legal

representative of handicapped children must be able to

access the full range of available remedies in order to

protect their handicapped children's educational rights." Id.

at 17, reprinted at, 1986 U.S.C.C.A.N. at 1806. In this case,

the Collinsgrus argue that the fee-shifting provisions are

insufficient to protect their interests under the Act. They

have not been able to find any attorney to represent them

26

in the IDEA action. Their only remaining avenue to protect

their son's educational rights under the Act is to proceed

pro se with their challenge to the administrative denial of

special education benefits.

The right of children to receive an appropriate education

may well be meaningless without parents to guide the

evaluation of their needs and to monitor the

implementation of their individualized education program.

The procedural safeguards afforded to parents under the

IDEA, including the right to receive attorneys' fees, codify

the role of parents as the guardians of their children's

education. In light of the special relationship between

parents and their children and the special role of parents in

enforcing their children's rights under the IDEA, the right

of parents to control the education of their child and the

right of children to receive an appropriate education are

highly interwoven and interdependent. Accordingly, I

conclude that parents who wish to challenge the outcome

of administrative proceedings under the IDEA are aggrieved

parties with the right to bring an appeal under the Act.

Thus, the rights created by the IDEA are effectively shared

by children and their parents. As parties to IDEA

proceedings, pursuant to 28 U.S.C. S 1654, parents should

be able to proceed pro se in IDEA appeals brought in

federal court to enforce their own rights and those of their

children.

Moreover, the rights at stake in an IDEA proceeding are

markedly different from those raised by a tort claim. A

child's common law claim for damages does not invoke the

fundamental rights and interests of a parent in the same

manner as a claim for educational benefits under the IDEA.

Indeed, many of the benefits of an appropriate education

will be lost if they are not timely pursued. Cf. Osei-Afriyie,

937 F.2d at 882 (noting that under Pennsylvania law, the

civil claims of minors are tolled until they reach the age of

18). Because parents bear the ultimate responsibility for

guaranteeing their child's right to an education, they

should be afforded all available opportunities to enforce and

protect that right.

27

I would therefore recognize the right of parents to proceed

pro se in an IDEA case on their child's behalf, as well as on

their own behalf.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

28