Amicus Curiae Brief — Winkelman Ex Rel. Winkelman v. Parma City School Dist.

i238 eee Dec 5 AO.

wo

-

No. 05-983

gn The

Supreme Court of the Gnited States

°

JACOB WINKELMAN, ET AL.,

Petitioners,

v.

PARMA CITY SCHOOL DISTRICT,

Respondent.

S

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

¢

BRIEF OF THE EQUAL JUSTICE FOUNDATION,

THE OHIO LEGAL ASSISTANCE FOUNDATION,

AND THE OHIO LEGAL RIGHTS SERVICE AS

AMICI CURIAE SUPPORTING THE PETITIONERS

+

KATHLEEN M. TRAFFORD BENSON A. WOLMAN

PAUL G. ROZELLE Counsel of Record

ROBERT J. KRUMMEN DIANNA J. PARKER

JOSHUA A. KIMSEY EQUAL JUSTICE FOUNDATION

PORTER WRIGHT MORRIS 88 East Broad Street,

& ARTHUR LLP Suite 1590

41 South High Street Columbus, Ohio 43215-3506

Columbus, Ohio 43215-6194 (614) 221-9800

ROBERT M. CLYDE MICHAEL KIRKMAN

LISA L. ESCHLEMAN OHIO LEGAL RIGHTS SERVICE

OHIO LEGAL 50 West Broad Street,

ASSISTANCE FOUND. Suite 1400

10 West Broad Street, Columbus, Ohio 43215-5923

Suite 950

Columbus, Ohio 43215-3483

TABLE OF CONTENTS

Page

REI RE REare ee aan ay SRP i

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INTEREST OF AMICI CURIAE ............ccccccssssseeeeeseeeeees 1

SUMMARY OF THE ARGUMENT .................ccceeeseeeeees 2

ITE wis ccnstiicntinicisiinniintipantivamipianeiiiiinaentitenadaintings 4

A. This Court Has Long Recognized the

Fundamental Due Process Right of Parents to

Direct the Education and Upbringing of Their

SRN sceiniiieiastnindcictinnitaieieidittievainibenauibicagtipiatsiniioatetin 4

B. Requiring Parents of a Child with a Disability

to Obtain Counsel to Enforce Their Own and

Their Child’s IDEA Claims in Court Deprives

Them of Their Right to Equal Access to the

II ccicsicenibicctnsecncbiintetiiniedbaiibigititnantnninsepaiaieapies 7

1. The private interest affected is a funda-

mental liberty interest...............ccccseceeeeseeeeeees 8

2. The risk of erroneous deprivation is great

and permitting parents to represent their

children under the IDEA reduces this risk.... 9

3. The State’s interests are insufficient to

overcome the fundamental private right

SITTIN isc esisichnsinticihacieteicieeimeapnbilinginniaiieielataiaaeed 10

Ga RSET Drcnnetuseccnncensnneseesannenneinescesnvesiuanenetsnneiénmte 15

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TABLE OF AUTHORITIES

Page

CASES

Bates v. State Bar of Ariz., 433 U.S. 350 (1977).......... 11, 12

Buckley v. Valeo, 424 U.S. 1 (1976)........cccccsecccseseeseeeenseees 10

Cavanaugh v. Cardinal Local Sch. Dist., 409 F.3d

Fee Se a iiaptvindeithecniensittsttedhtinbiputeanipeniininin 7,9

Cleveland Bar Ass’n v. CompManagement, Inc., 818

Pa SOR NNT MUD ecictincehnsiserpitnteccsiinnieitaicciehiitintnemnbinii 11

Farrington v. Tokushige, 273 U.S. 284 (1927)...........:.seee00 5

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ............:cecceeeeeeeees 8

Harris v. Apfel, 209 F.3d 413 (5th Cir. 2000)................... 13

Honig v. Doe, 484 U.S. 305 (1988) ........:cccscssseresseeseereesees 14

In re Primus, 436 U.S. 412 (1978) ...........:ccccccsceeseseecteeeeeees ll

Leis v. Flynt, 439 U.S. 438 (1979)...........ccsccccessssrecesssrseeees 11

M.L.B. v. S.L.J., 519 U.S. 102 (1996) ...........cccceceesereeees 8, 10

Machadio v. Apfel, 276 F.3d 103 (2d Cir. 2002)................ 13

Mathews v. Eldridge, 424 U.S. 319 (1976) .............000. 3, 8,9

Meyer v. Nebraska, 262 U.S. 390 (1923)...........cccccceceeeeenees 5

Middlesex County Ethics Comm. v. Garden State

Bar Ass'n, 457 U.S. 423 (1968) ........ccccccccssossscccccosscscceees 11

NAACP v. Button, 371 U.S. 415 (19638).................cceeeeseeees ll

Ortwein v. Schwab, 410 U.S. 656 (1973) ............ccccceeeeeeees 10

Pierce v. Society of Sisters, 268 U.S. 510 (1925).............00 5

Prince v. Massachusetts, 321 U.S. 158 (1944) ..............c0000- 5

Reno v. Flores, 507 U.S. 292 (1993) ...............sseceeeeceeeeereeenes 4

Santosky v. Kramer, 455 U.S. 745 (1982)............:ccccceseeeeeee 5

‘ig

TABLE OF AUTHORITIES - Continued

Page

Sperry v. Florida, 373 U.S. 379 (19638) .........ccsessseceeeeeeees 13

State v. Whisner, 351 N.E.2d 750 (Ohio 1976) ..............0000 6

Troxel v. Granville, 530 U.S. 57 (2000).........cccccccsccsseseseeeees 4

Washington v. Glucksberg, 521 U.S. 702 (1997)............. 4,6

Wisconsin Pub. Iniervenor v. Mortier, 501 U.S. 597

Dena ccnisciibeicadaniaabeidaidinsiistiniaaibintibiiataidhisitanesiiieay nina nitiniisiaanel 13

Wisconsin v. Yoder, 406 U.S. 205 (1972) ............cccccceeeeees 5,6

CONSTITUTIONAL PROVISIONS

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8 RE Sk Sa EI ee ew 4

STATUTES

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Es Ob EE cnncsopinnndtasitiennnseteccndeeiensinatineenuibaiesdblinadie 3

Se RUE SEIN ition ceiniihincebsiineiopepiniinnasnateiceghinbadivenistanbeandenias 12

er ee Oe IED winiitirndisicnsindiibihiiemnenisttnininienenenmsmaniabeiinnls 12

Sa ae Ae I hicsiincseiitsitntisictntatenesnneinsiaeamsenioeiaiaiebiai 12

Se a SII iicitnenssbctectssiniensuccsinentetsimninmnitndtminntineniaets 14

a ey Oe eee tciidccicacipinninaptciensninncencvetapicstsncsttinnaaieaninliis 3

ae es Oe EE IID aiesretininscccsinnnenitpcsmncnsiisniciibanialigeiidini 1

Ohio Revised Code § 5123.60 ................ccccseeseseesereeeeseeeeeeeees 1

RULE

Be GD. BR, OD cccesecrsensnsrsunsensnesensnenanessensemneasenpsvcosennttiinesaseusein 1

iv

TABLE OF AUTHORITIES - Continued

OTHER AUTHORITIES

Louis Brandeis, Other People’s Money (National

Home Library Foundation ed. 1933) .............secsseeseeres 10

1

INTEREST OF AMICI CURIAE’

Amicus curiae, the Equal Justice Foundation (“EJF”)

is an Ohio-based nonprofit organization that represents

the poor and disadvantaged who may otherwise not have

access to the legal system. It undertakes class-action and

other impact litigation on behalf of individuals with

disabilities, minorities, immigrants, children, the aging,

victims of predatory lending and consumer fraud, tenants

denied their rights, and institutionalized persons.

Amicus curiae, the Ohio Legal Assistance Foundation

(“OLAF”), is a nonprofit entity committed to ensuring

equal access to justice by providing legal representation,

resources, programs, and services throughout the State of

Ohio to serve the unmet civil legal needs of the State’s

poor. Integral to that mission, OLAF seeks to ensure that

individuals and families have access to all of Ohio’s courts,

whether through paid or pro bono counsel.

Amicus curiae, the Ohio Legal Rights Service

(“OLRS”) is an independent state agency chartered at Ohio

Revised Code § 5123.60 to protect and advocate for the

rights of people with disabilities. OLRS has been desig-

nated by the Governorof Ohio as the protection and

advocacy system (“P&A”) under federal law for people with

disabilities in Ohio. See 42 U.S.C. § 10541 et seg. Under

both state and federal law, OLRS investigates abuse,

neglect, and rights violations affecting people with dis-

abilities, and pursues administrative, legal, and policy

* Pursuant to S. Ct. R. 37.6, amici state that no counsel to a party

authored this brief in whole or in part and that no person other than

the amici curiae and their members made a financial contribution

toward the preparation and submission of this brief. Letters reflecting

the consent of the parties have been lodged with the Court.

2

remedies to those violations. As the P&A for Ohio, OLRS

has extensive experience representing children with

disabilities in special education cases before administra-

tive bodies and in federal court. The National Disability

Rights Network (a membership organization of P&As from

around the nation) and the Kentucky, Tennessee, and

Michigan P&As (as P&As from the Sixth Circuit) have

also filed an amicus brief in this case. OLRS recognizes

that this case has implications for every Ohio child with a

disability and their parents, and therefore joins in this

brief with other Ohio-based civil justice groups while

supporting the position taken by the other P&A amici.

Amici share a common interest in this case: If re-

sources are not sufficient to provide representation, then it

is imperative that those unable to afford or to obtain

counsel can access the courts and prosecute their claims

pro se. Amici share a further concern over the limited legal

representation available to children with disabilities and

their parents under the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C. § 1400 et seg., and in

whether the holding of the Sixth Circuit deprives those

families of the constitutionally enshrined right to due

process.

°

SUMMARY OF THE ARGUMENT

The IDEA expressly places parents in charge of their

children’s procedural and substantive rights to a free

appropriate public education (“FAPE”). At the heart of the

IDEA are its procedural “safeguards” and, most funda-

mentally, the right of parents to contest decisions by school

boards that deny their children an effective educational

3

opportunity. See 20 U.S.C. § 1415(a). The IDEA empowers

parents to advance those rights both by initiating adminis-

trative hearings to determine the most appropriate educa-

tion and by filing suit to review adverse administrative

decisions. Despite this grant of statutory authority, the

Sixth Circuit has held that parents may not jointly renre-

sent themselves and their child with a disability in 2 + uit

in federal court. EJF, OLAF, and OLRS anticipate that

petitioner and other amici will thoroughly brief this Court

on how the Sixth Circuit’s holding is contrary not only to

the language and purpose of the IDEA, but also to the

general right of self-representation. See 28 U.S.C. § 1654

(permitting individuals to “plead and conduct their own

cases personally”).

Beyond undermining the IDEA’s guarantee of a FAPE,

if parents who cannot afford or obtain an attorney are not

permitted to prosecute an IDEA case pro se in court, such

a rule, were it permitted to stand, would set up an unten-

able constitutional dilemma. Not only will the rights

afforded children with disabilities and their parents under

the IDEA be rendered meaningless and unenforceable, but

the resulting scheme would violate the long-standing

fundamental due process right of parents to control and

direct the education and upbringing of their children.

Balancing the factors established in Mathews v.

Eldridge, 424 U.S. 319 (1976), in the present case requires

that parents of a child with a disability be permitted to

pursue their own and their children’s rights under the

IDEA in federal court without requiring that they obtain

counsel. At stake is a fundamental private right; the risk of

erroneous deprivation of that right is great; and any state

interest is either congruent with the interest of the parents

and their children (ensuring the child’s education and that

he or she becomes a productive citizen) or minimal at best

4

(ensuring the competent practice of law by a parent of a

child with a disability who was already permitted to

“practice law” at an earlier due process hearing). Prohibit-

ing parents from asserting IDEA claims pro se unconstitu-

tionally denies them, and their children, the right to a

FAPE solely because those parents are unable to afford or

otherwise obtain legal counsel.

¢

ARGUMENT

A. This Court Has Long Recognized the Fundamen-

tal Due Process Right of Parents to Direct the

Education and Upbringing of Their Children.

The Fifth Amendment to the United States Constitu-

tion provides that no person shall be “deprived of life,

liberty, or property, without due process of law.” U.S.

Const. amend. V. The Fourteenth Amendment to the

United States Constitution provides that no State shall

“deprive any person of life, liberty, or property, without

due process of law.” U.S. Const. amend. XIV, §1. Our

judicial system has long recognized that the Due Process

Clause guarantees more than fair process. Washington v.

Glucksberg, 521 U.S. 702, 719 (1997). The Due Process

Clause also includes a substantive component that “pro-

vides heightened protection against government interfer-

ence with certain fundamental rights and _ liberty

interests.” Troxel v. Granville, 530 U.S. 57, 65 (2000)

(citing Glucksberg, 521 U.S. at 720); see also Reno v.

Flores, 507 U.S. 292, 301-02 (1993) (referring to the

Court’s “line of cases which interprets the Fifth and

Fourteenth Amendments’ guarantee of ‘due process of law’

to include a substantive component, which forbids the

government to infringe certain ‘fundamental’ liberty

5

interests at all, no matter what process is provided, unless

the infringement is narrowly tailored to serve a compelling

state interest”) (citations omitted).

The liberty interest at issue in this case — the inter-

ests of parents in the care, custody, control, and education

of their children — is perhaps the oldest of the fundamental

liberty interests recognized by our Constitution. Parental

choices involving the rearing of their children and its

relation to family life are among the most basic of consti-

tutionally protected liberty interests. Meyer v. Nebraska,

262 U.S. 390, 399 (1923). Accord Santosky v. Kramer, 455

U.S. 745, 753 (1982); Wisconsin v. Yoder, 406 U.S. 205,

231-33 (1972); Farrington v. Tokushige, 273 U.S. 284, 298-

99 (1927); Pierce v. Society of Sisters, 268 U.S. 510, 534-35

(1925).

More than 80 years ago in Meyer, this Court held that

the “liberty” protected by the Due Process Clause includes

the fundamental right of parents to “establish a home and

bring up children” and “to control the education of their

own.” Meyer, 262 U.S. at 399-401. Two years later in

Pierce, the Court expanded that interest to include the

right “to direct the upbringing and education of children

under their control.” Pierce, 268 U.S. at 534-35. As ex-

plained in Pierce, “[t}he child is not the mere creature of

the State; those who nurture him and direct his destiny

have the right, coupled with the high duty, to recognize

and prepare him for additional obligations.” Jd. at 535. In

Prince v. Massachusetts, 321 U.S. 158 (1944), the Court

confirmed the constitutional aspect of a parent’s right to

direct and control the upbringing of children: “It is cardi-

nal with us that the custody, care and nurture of the child

reside first in the parents, whose primary function and

6

freedom include preparation for obligations the state can

neither supply nor hinder.” Jd. at 166 (emphasis added).

Subsequent cases have expanded and explained the

fundamental right of parents to determine the care,

custody, and control of their children. In Wisconsin v.

Yoder, this Court recognized the right of parents to man-

age their children’s education. 406 U.S. at 231-33. The

Court held that the rights of Amish parents to guide the

religious training of their children trumped the State’s

admittedly significant interest in having children attend

school until the age of sixteen. Id. As the Court explained,

“(t]he history and culture of Western civilization reflect a

strong tradition of parental concern for the nurture and

upbringing of their children. This primary role of parents

in the upbringing of their children is now established

beyond debate as an enduring American tradition.” Jd. at

232. In Glucksberg, the Court recognized that “in addition

to the specific freedoms protected by the Bill of Rights, the

‘liberty’ specially protected by the Due Process Clause

includes the right{] ... to direct the education and up-

bringing of one’s children.” Glucksberg, 521 U.S. at 720

(citing Meyer and Pierce). In effect, this Court has long and

consistently recognized that parents themselves are the

real parties in interest, who possess a constitutionally

protected due process right, in matters concerning the

appropriate education, placement, and treatment of their

children. See State v. Whisner, 351 N.E.2d 750, 769 (Ohio

1976) (“[T}he right of a parent to guide the education .. . of

his or her children is indeed a ‘fundamental right’ guaran-

teed by the due process clause of the Fourteenth Amend-

ment.”).

7

Thus, under this Court’s long-established due process

jurisprudence, when parents sue on behalf of their chil-

dren under the IDEA, it is their own fundamental, consti-

tutional rights that they are invoking — or, at the very

least, those rights are held jointly by parents and their

child. Under this Court’s extensive precedents, the Due

Process Clause protects the fundamental right of parents

to evaluate, make decisions, and stridently defend the

care, custody, control, and education of their children.

Because Parma’s objections to pro se representation in this

case not only threaten to undermine the objectives of the

IDEA, but also deprive the parents of children with

disabilities of constitutionally protected due process rights,

this Court should reject those arguments and reverse the

judgment below.

B. Requiring Parents of a Child with a Disability to

Obtain Counsel to Enforce Their Own and Their

Child’s IDEA Claims in Court Deprives Them of

Their Right to Equal Access to the Courts.

The Sixth Circuit’s decision in Winkelman, and in

Cavanaugh v. Cardinal Local Sch. Dist., 409 F.3d 753 (6th

Cir. 2005), on which the Winkelman Court relied, prohibits

non-attorney parents of children with disabilities from

pursuing pro se appeals of administrative decisions under

the IDEA in federal court. The Winkelmans, and all non-

attorney parents of children with disabilities, are thereby

summarily deprived of the constitutional right to defend

and protect their fundamental interest in the upbringing

and education of their children. The proper test for “de-

termining the procedures that are necessary to ensure

that a citizen is not ‘deprived of life, liberty, or property,

without due process of law’ is the test that [this Court]

8

articulated in Mathews v. Eldridge.” Hamdi v. Rumsfeld,

542 U.S. 507, 529 (2004) (citation omitted). Mathews

requires a careful balancing of three factors.

First, the private interest that will be affected by |

the official action; second, the risk of an errone-

ous deprivation of such interest through the pro-

cedures used, and the probable value, if any, of

additional or substitute procedural safeguards;

and finally, the Government’s interest, including

the function involved and the fiscal and adminis-

trative burdens that the additional or substitute

procedural requirement «vould entail.

Mathews, 424 U.S. at 335. Balancing these factors in the

present case requires that parents of children with dis-

abilities be permitted to pursue their own and their

children’s rights under the IDEA in federal court without

meeting the requirement that they obtain counsel.

1. The private interest affected is a fundamen-

tal liberty interest.

The private interest implicated in the present case is

of the highest constitutional order. Parents have a funda-

mental right to determine the care, custody, and control of

their children — including the right to make decisions

about their child’s education. See Section A, supra. Paren-

tal rights in the upbringing of children “are among asso-

ciational rights this Court has ranked as ‘of basic

importance in our society,’ rights sheltered by the Four-

teenth Amendment against the State’s unwarranted

usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519

U.S. 102, 116 (1996) (citation omitted). This factor weighs

heavily toward permitting parents to pursue relief pro se

in federal court and can only be overcome by a compelling

9

fundamental government interest, which does not exist in

this case.

2. The risk of erroneous deprivation is great

and permitting parents to represent their

children under the IDEA reduces this risk.

The second factor under the Mathews test examines

the risk of erroneous deprivation and the value of addi-

tional procedural safeguards. Under the Sixth Circuit’s

holding, parents of a child with a disability are completely

deprived of the opportunity to defend their own and their

child’s fundamental due process rights. The Sixth Circuit’s

jurisprudence in Winkelman and in Cavanaugh slams the

courtroom door and prevents the parents from pursuing

any form of relief in federal court unless they fortuitously

have the funds to obtain counsel or can obtain pro bono

representation. See Cavanaugh, 409 F.3d at 757 (“There-

fore, any right on which the Cavanaughs could proceed on

their own behalf would be derivative of their son’s right to

receive a FAPE, and wholly dependent upon the Cava-

naughs’ proceeding, through counsel, with their appear-

ance on Kyle’s behalf.”) (emphasis added).

By refusing to recognize the parents’ fundamental

right to control their children’s education, the Sixth

Circuit guarantees deprivation of this right in every IDEA

case. This error can be corrected simply by re-opening the

courtroom door and granting parents the right to proceed

pro se and on behalf of their child with a disability when

appealing an administrative decision under the IDEA.

These additional procedural safeguards impose no addi-

tional costs on the State and merely require that the

parents of a child with a disability be given the same

procedural safeguards as every other party alleging a

10

deprivation of constitutional rights. The courts need not

appoint counsel, nor lower the procedural threshold for

pursuing a civil action, but only permit parents to appear

and plead the appeal.

3. The State’s interests are insufficient to over-

come the fundamental private right impli-

cated.

None of the possible State interests implicated in

permitting parents to pursue IDEA appeals pro se are

sufficient to justify infringing a fundamental liberty

interest. Admittedly, the State has an interest in ensuring

that children with disabilities receive a FAPE and become

productive members of society. In this regard, however, the

interests of the State and the parents are identical. Justice

Brandeis once noted the value of oversight and disclosure

for corporations, declaring that “[s]unlight is said to be the

best of disinfectants.” Buckley v. Valeo, 424 U.S. 1, 67

(1976) (quoting Louis Brandeis, Other People’s Money 62

(National Home Library Foundation ed. 1933)). Similarly,

shining the light of federal court review on school district

decisions can serve only to further the goal of ensuring a

FAPE for children with disabilities.

The State may also claim a financial interest in

limiting parents’ access to pursue pro se actions in federal

court for review of IDEA appeals. This Court has acknowl-

edged a State’s legitimate interest in offsetting the costs of

its court system. M.L.B., 519 U.S. at 116 (citing Ortwein v.

Schwab, 410 U.S. 656, 660 (1973)). Despite this legitimate

state interest, the M.L.B. Court held that cost could not

justify prohibiting in forma pauperis appeals in parental

status termination cases. Jd. at 124. Unlike M.L.B., where

the State was forced to fund the cost of record preparation

11

fees for the indigent appellant, the Winkelmans simply

wish to pursue their claims by appearing pro se, at no cost

to the state or federal government or to any other party.

Nor is this a question of requiring court-appointed counsel.

Thus, the State’s financial interest, while a legitimate one,

is insufficient to limit parents’ ability te protect their

fundamental rights.

Another state interest that will be claimed is the

interest in regulating the practice of law. See, e.g., Middle-

sex County Ethics Comm. v. Garden State Bar Ass’n, 457

U.S. 423, 434 (1982); Leis v. Flynt, 439 U.S. 438, 442

(1979). This state interest is not, however, absolute. The

Ohio Supreme Court acknowledges that in certain circum-

stances the interest in requiring an attorney “is out-

weighed by other important considerations.” Cleveland

Bar Ass’n v. CompManagement, Inc., 818 N.E.2d 1181,

1189 (Ohio 2004). The Court, which exercises plenary

power to regulate the practice of law in Ohio, recognizes

that “in certain limited settings the public interest is

better served by authorizing laypersons to engage in

conduct that might be viewed as the practice of law.” Jd.

(upholding administrative rules and tradition authorizing

third parties to represent employers and employees during

worker compensation hearings). The public interest surely

requires the State to relax the traditional prohibition

against unauthorized practice in this narrow legal context,

where its enforcement deprives a parent and child of

individual fundamental rights. See, e.g., In re Primus, 436

U.S. 412, 439 (1978) (free association); Bates v. State Bar

of Ariz., 433 U.S. 350, 383 (1977) (free speech); NAACP v.

Button, 371 U.S. 415, 438-40 (1963) (free association).

The primary concern that legitimizes the State’s

interest in regulating the unauthorized practice of law is

12

protecting the public from poor representation in court.

See, e.g., Bates, 433 U.S. at 361. Such concern for the

public welfare is not implicated by parents acting pro se to

defend their own fundamental rights in federal court. The

Winkelmans are not offering representation to members of

the general public; they are merely seeking to represent

themselves. The State may attempt to argue it is protect-

ing the interest of a child with a disability in receiving

competent legal counsel. Such a claim is not credible

because the State’s position ensures that the child never

has a ¢ay in court, much less effective legal representa-

tion.

The State’s interest in regulating the practice of law is

further minimized in this case by the fact that parents are

permitted to represent their child with a disability at the

administrative due process hearing. Under the IDEA,

parents have an absolute statutory right to pursue issues

in a due process hearing and to make those decisions

without legal counsel. 20 U.S.C. § 1415(f), (h). ff parents

are going to shortchange their child inadvertently by

pursuing IDEA claims without an attorney, they will do so

at the due process hearing when they make critical deci-

sions about what evidence to present and how to cross-

examine the school district’s witnesses. Lodging a claim in

court following exhaustion of the parents’ administrative

remedies does not engender de novo review; the district

court considers the administrative record and may, in its

discretion, take additional evidence. 20 U.S.C. § 1415(i)(2)(b).

An attorney who appears for the first time at the district

court may not be able to cure mistakes made by the parents

of a child with a disability at the due process hearing.

Given that parents may provide representation to their

child with a disability at the due process hearing, the

13

State’s interest in “protecting” the public from a parent’s

representation of his or her child with a disability at a

subsequent court proceeding is minimal, if one exists at

all.

In fact, permitting parent appearances and pro se

representation of their child with a disability is akin to

permitting parents to pursue claims for social security

income (“SSI”) benefits for their children in federal court.

See Machadio v. Apfel, 276 F.3d 103, 107 (2d Cir. 2002);

Harris v. Apfel, 209 F.3d 413, 416 (5th Cir. 2000). There is

no rational basis for the State te nermit parental represen-

tation in SSI cases in the district court and to deny the

same right in IDEA cases. Concluding that parents may

appear in IDEA cases for their child does not challenge the

State’s interest in regulating the practice of law. See

Sperry v. Florida, 373 U.S. 379, 383 (1963). Rather, it

recognizes a well-established constitutional principle that

state law is preempted when it effectively imposes an

obstacle to rights guaranteed by federal law. See Wisconsin

Pub. Intervenor v. Mortier, 501 U.S. 597, 605 (1991).

There are less restrictive means by which the district

courts can protect the State’s interest in protecting the

public without infringing parents’ fundamental right to

control the education of their children. The district courts

may, for example, ensure appropriate conduct by requiring

parents appearing pro se to observe and comply with the

ethical rules applying to the legal profession. The district

courts also could employ in IDEA cases the same informal

procedures they use to secure representation for pro se

litigants in civil rights cases. District courts have decades

of experience in seeking private attorneys to represent pro

se parties in civil rights cases. Private attorneys may

accept these cases at the request of the court and provide

14

representation on either a pro bono basis or in reliance on

a prevailing party fee-shifting statute. See, e.g., 20 U.S.C.

§ 1415(i(3) (permitting the prevailing party to obtain

attorneys’ fees). Of course, the district court would exercise

its discretion in choosing to appoint counsel in any par-

ticular IDEA case, or it could be unsuccessful in securing

private counsel. But even if counsel is not secured, due

process requires that pro se parents must be permitted to

proceed. Neither the parent and child, nor the State, will

be worse off if the parent and child proceed pro se than if

the district court dismisses their claims for lack of the

ability to secure counsel.

Because the IDEA was intended to ensure the full

participation of parents in all educational decisions involv-

ing their children, see Honig v. Doe, 484 U.S. 305, 311, 324

(1988), and the Sixth Circuit’s holding unquestionably

subverts a parent’s right to challenge such a decision in

court, it cannot stand. Prohibiting parents from asserting

IDEA claims pro se will result in the denial to many

students with disabilities of the right to receive a FAPE

solely because their parents are unable to afford or other-

wise obtain legal counsel. By denying parents the right to

represent their children in federal court, the courts are in

fact depriving children with disabilities of their day in

court. Unless the decision below is set aside, IDEA’s

purpose — giving parents the ability to participate fully in

charting their children’s educational destiny -— will be

thwarted, and the rights of virtually every parent of a

child with a disability will be rendered unenforceable.

+

15

CONCLUSION

For the reasons stated above, this Court should

reverse the judgment of the Sixth Circuit and permit the

Winkelmans to present pro se the IDEA claims concerning

their child’s education.

Respectfully submitted,

BENSON A. WOLMAN

Counsel of Record

DIANNA J. PARKER

EQUAL JUSTICE FOUNDATION

88 East Broad Street, Suite 1590

Columbus, Ohio 43215-3506

(614) 221-9800

KATHLEEN M. TRAFFORD

PAUL G. ROZELLE

ROBERT J. KRUMMEN

JOSHUA A. KIMSEY

PORTER WRIGHT

Morris & ARTHUR LLP

41 South High Street

Columbus, Ohio 43215-6194

ROBERT M. CLYDE

LIsA L. ESCHLEMAN

OHIO LEGAL ASSISTANCE FOUND.

10 West Broad Street, Suite 950

Columbus, Ohio 43215-3483

MICHAEL KIRKMAN

OHIO LEGAL RIGHTS SERVICE

50 West Broad Street, Suite 1400

Columbus, Ohio 43215-5923

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