Stories and Grievances: Special Education
The US Supreme Court Will Hear Two Education Cases in 2009, Looking Once Again at Parents' Rights
The Court will add two more education cases to its docket for this term—one involving special education, and the other stemming from a lawsuit over the strip-search of a middle school student by school officials looking for over-the-counter and prescription drugs. In the special education case, the justices will return to an issue they deadlocked over in their last term: whether parents in a special education dispute with a school district may be reimbursed for “unilaterally” placing their child in a private school when that child has never received special education services from the district. The issue once again is parental rights, as in the Winkelman case (Winkelman v Parma School District). Parentadvocates.org filed an amicus brief in that case.
Supreme Court to Weigh IDEA, Strip-Search Cases
By Mark Walsh, Education Week, January 16, 2009
The U.S. Supreme Court today agreed to add two more education cases to its docket for this term—one involving special education, and the other stemming from a lawsuit over the strip-search of a middle school student by school officials looking for over-the-counter and prescription drugs.
In the special education case, the justices will return to an issue they deadlocked over in their last term: whether parents in a special education dispute with a school district may be reimbursed for “unilaterally” placing their child in a private school when that child has never received special education services from the district.
With Justice Anthony M. Kennedy recusing himself for undisclosed reasons, the other justices tied 4-4 in a case in 2007 over whether the federal Individuals with Disabilities Education Act permitted a New York City father to win repayment of private school tuition for a child with disabilities who had never enrolled in the city’s school system. The tie in Board of Education of New York City v. Tom F. upheld the tuition reimbursement in that case, but set no national precedent.
The new case, which presumably does not present any barrier to Justice Kennedy’s participation, is from the Forest Grove district in Oregon. The school system is appealing a federal appeals court ruling in favor of parents who sent their son to a private school for children with behavioral and emotional problems some two years after the district’s evaluation had determined the boy was ineligible for special education.
The district re-evaluated the student and determined that he had attention deficit hyperactivity disorder, but that it wasn’t affecting his educational progress. The parents appealed to a hearing officer, who ruled they should be reimbursed for the private residential program where they had enrolled their son, for which monthly tuition was more than $5,000.
A federal district court reversed the hearing officer, but a panel of the U.S. Court of Appeals for the 9th Circuit held 2-1 that the parents were entitled to reimbursement. The IDEA says that such tuition reimbursements for such unilateral private school placements were available only to students “who previously received special education and related services.” The appeals court held that that language did not “create a categorical bar to recovery of private school reimbursement for all other students.”
The district’s appeal in Forest Grove School District v. T.A. (Case No. 08-305) was joined in a friend-of-the-court brief filed by the National School Boards Association, the American Association of School Administrators, and the National Association of State Directors of Special Education. They argued that the 9th Circuit court’s decision would increase the costs of special education by encouraging parents to avoid the process of working with a district to devise an individualized education program, or IEP, for a student with disabilities.
“The 9th Circuit’s decision allows those parents to treat the IEP process as a potential lottery ticket to a government-funded private school education,” the school groups said.
The strip-search case has also attracted attention in education law circles.
In July, the 9th Circuit court ruled that a strip-search of an 8th grader by school authorities looking for prescription-strength Ibuprofen pills violated the student’s rights under the Fourth Amendment.
A panel of the court ruled 8-3 on July 11 that officials at an Arizona middle school “acted contrary to all reason and common sense as they trampled over” the privacy interests of Savana Redding. By a vote of 6-5, the panel held that the assistant principal who ordered the strip-search was not entitled to qualified immunity from liability in the student’s lawsuit.
Ms. Redding was searched in 2003 as part of an investigation into the possession of over-the-counter and prescription medications by students at Safford Middle School in the Safford school district.
After receiving a report that Ms. Redding, who was 13 at the time, had been distributing Ibuprofen pills to fellow students, school officials searched the girl’s backpack, then asked a female administrative assistant to go through her clothing. Ms. Redding had to remove her pants, lift the waist band of her underpants, and lift her shirt and pull out her bra band, according to court papers. No contraband was found.
Ms. Redding and her parents challenged the school officials’ actions as a violation of her Fourth Amendment right against unreasonable searches. They lost before a federal district court and before an initial three-judge panel of the 9th Circuit court. But the 9th Circuit granted a review by a larger panel of judges.
In that decision, the 9th Circuit majority said the strip search was “excessively intrusive,” especially considering that school officials were relying on an uncorroborated tip from another student who had been caught in possession of the pills.
The court further said it should have been clear to the school officials under the U.S. Supreme Court’s 1985 decision in New Jersey v. T.L.O. that the strip-search was unreasonable, and thus an assistant principal who ordered the search did not merit qualified immunity.
In T.L.O., the Supreme Court upheld the search of a student’s purse for contraband and found that school searches are justified by a “reasonable suspicion” that laws or school rules were violated. Under the ruling, schools must show that a search was reasonable at its inception and in scope.
“The guidance provided by T.L.O. should have been clear to the school officials, who undertook the professional obligation to balance properly the order of the school with the individual liberties of the students who enter the school,” the court said.
The school district’s appeal of that decision in Safford Unified School District v. Redding (Case No. 08-479) was also supported by national school groups. The NSBA and the AASA called for the Supreme Court to provide greater guidance to school administrators about the legality of student searches.
The 9th Circuit court’s ruling “unfairly places school officials in the position of being sued and held personally responsible for good faith decisions intended to protect the health and safety of students entrusted to their care and tutelage,” the education groups said.
The justices indicated that both cases will likely be heard in their April argument session, with decisions expected by the end of the court’s term in June.
Vol. 28, Issue 19
US high court to hear Ore. special ed case
1/16/2009, 4:58 p.m. PT
By MARY HUDETZ, The Associated Press
PORTLAND, Ore. (AP) — The U.S. Supreme Court will use a Forest Grove case to try again to decide when taxpayers must foot the bill for private schooling for special education students.
The Supreme Court heard a similar case from New York in 2007 but split 4-4.
On Friday, the court agreed to hear an appeal from the Forest Grove School District, which was sued by the family of a former high school student diagnosed with attention deficit hyperactivity disorder.
The school failed to address properly the student's learning problems, the parents said, and sought reimbursement for the student's private schooling.
Federal law calls for school districts to reimburse students or their families for education costs when public schools do not have services that address or fulfill the students' needs.
Under the Individuals with Disabilities Education Act, the nation's special education students are entitled to a "free and appropriate public education."
In its appeal to the Supreme Court, the school district says students should at least give public special education programs a try before seeking reimbursement for private school tuition.
"We just believe we have a comprehensive offering in our school district," said Jack Musser, Forest Grove superintendent. "We have programs in our special education department to address every type of disability. We educate many, many students."
Paying for special education students' private education would financially strain the district, said school officials, who also added the teen's problem sprang at least in part from a marijuana habit. In court papers, the student is identified only as T.A.
Mary Broadhurst, the family's lawyer, declined to comment except to say that arguments are set for April and a decision is expected in June.
"My clients are still of the position that this is a private matter to some extent," she said.
When the family took the district to court, an administrative judge ruled in the family's favor, saying the district failed to recognize the teen's poor performance as a disability and offer him proper services.
The judge ordered the Forest Grove district to pay legal fees and reimburse the 19-year-old's family for about $65,000 in tuition and fees at Mt. Bachelor Academy, a Prineville boarding school for students with learning problems.
The teen spent 18 months at the academy, graduated in 2004 and enrolled in a community college.
School officials appealed the order to U.S. District Court, which ruled the Forest Grove district was not liable for the fees. The family took the case to the 9th U.S. Circuit Court of Appeals, which ruled in their favor.
Musser said the district has spent more than $100,000 on legal fees for the case.
"Whether we are in tough economic times or not, we need to watch every penny," he said. "People having their choice of placing anywhere and coming back to the district to seek payment is a very huge financial impact on the school district."
Parentadvocates.org was one of the groups that filed an amicus brief in the case of Winkelman v Parma School District:
Parentadvocates.org Files Amicus Curiae Brief in Support of Jacob Winkelman v Parma City School District
A boon to parents’ rights
Posted By Lyle Denniston On May 21, 2007
In a victory of major proportions for parents who have disabled children of school age, the Supreme Court ruled on Monday that parents have rights all of their own — enforceable by them in court — to assure that their child gets a free public education that fits the youngster’s special needs. The parents, under the Individuals with Disabilities Act, are full legal partners to the child and not just the guardians of the child’s own rights, the Court declared in a ruling written by Justice Anthony M. Kennedy. In going to court, the Court said, the parents may act as their own attorneys. All members of the Court joined at least part of the decision, but two Justices dissented on the broad new parental right recognized by the ruling. The case is Winkelman v. Parma City School District (05-983).
Taking a case that appeared to focus only on whether the parents’ could act as their child’s lawyer when a dispute over a proper educational program for the youngster went to court, the Court turned its decision into a broad finding of parental rights. A law that mandates “extensive parental involvement” in every stage of working out an educational plan for their disabled child does not shut them out of the process when “the time comes to file a civil” lawsuit, the Court said. The word “rights” in the Act, it added, “refers to the rights of parents as well as the rights of the child; otherwise, the grammatical structure would make no sense.”
The driving purpose of the law, is not just “to facilitate vindication of a child’s rights,” Justice Kennedy wrote. “It is not a novel proposition to say that parents have a recognized legal interest in the education and upbringing of their child,” the Justice added, citing the Court’s famous parental rights decisions in Pierce v. Society of Sisters in 1925 and Meyer v. Nebraska in 1923. “Without question, a parent of a child with a disability has a particular and personal interest in fulfilling ‘our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.’”
In practical terms, the ruling means that parents of a disabled youngster are not limited to taking part in review within the school system of a child’s educational needs or to recovering their own money that they had paid to send their child to a private school because of the public schools’ failure to provide a proper, free education. Rather, it means that they also have an entitlement all of their own to an adequate educational plan in the public school system — an entitlement that they may enforce directly in court. “The status of parents as parents is not limited to matters that relate to procedure and cost recovery,” the Court said. “The adequacy of the educational program is, after all, the central issues in the litigation.”
The Court went on to rule that a parents’ lawsuit seeking to vindicate their own rights in court may not be dismissed because they are acting as their own attorneys in attacking a school’s plan for their child. “Parents enjoy rights under IDEA; and they are, as a result, entitled to prosecute IDEA claims on their own behalf,” the Court said. In light of that opportunity, the Court added, it did not have to decide whether parents could act as the attorney in court on behalf of their child, if they were not lawyers themselves.
Kennedy’s opinion was joined in full by Chief Justice John G. Roberts, Jr., and by Justices Samuel A. Alito, Jr., Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.
Justice Antonin Scalia, joined by Justice Clarence Thomas, dissenting on the key point, concluding that parents do not have any independent right to sue to seek a more adequate educational plan for their disabled child. They should be allowed to sue acting as their own lawyer, the dissenters said, but only to seek reimbursement for any private school expenses they had incurred, or to enforce their procedural rights in the review of their child’s needs that takes place within the school system, local or statewide. Thus, Scalia wrote, they should not have a right to sue without a lawyer when they are want to challenge the adequacy of the schools’ proposed plan for their child.
The majority’s recognition of independent rights in the parents, regarding the adequacy of a plan, “sweeps far more broadly than the text [of IDEA] allows,” the dissenters said. That right, they contended, “obviously inheres in the child, for it is he who receives the education.” The parents have an interest in that education, but no right to it, under the law, Scalia wrote. “The text of the IDEA makes clear that parents have no right to the education itself.”
The case involved the parents and an eight-year-old boy, Jacob Winkelman. He and his parents, Jeff and Sandee, living in Parma. Beginning in July 2001, Jacob, who is autistic, attended pre-school at a special achievement center because he did not do well in the public pre-school program. In discussing an educational plan for the year 2003-2004, public school officials suggested that Jacob go to a regular elementary school, but be taught in a special education classroom.
The parents objecgted, saying the program would not be satisfactory because it did not offer occupational therapy for Jacob, had too little speech therapy, and no music therapy. In the meantime, they placed Jacob in Monarch School, which specializes in teaching austistic students. It cost them $56,000 a year, so they did not enroll him there for the 2004-2005 year, but rather taught him at home, with one to two hours a week at Monarch.
After the public elementary school plan was found adequate, the parents sued in federal court, but the District Court upheld the plan. The Winkelmans took the case on to the Sixth Circuit Court, which dismissed the lawsuit because the parents were acting as their own lawyer.
Wrightslaw Summary of the arguments
Can Parents Represent Their Children's Rights Under IDEA?
by Peter Wright, Esq. & Pamela Wright, MA, MSW
The answer to this question is - it depends.
If you live in Maine, Massachusetts, Rhode Island, New Hampshire, or Puerto Rico, the U. S. Court of Appeals for the First Circuit ruled that you may represent your child's IDEA rights at every stage of the process.
If you live in Ohio, Michigan, Kentucky, or Tennessee, the U. S. Court of Appeals for the Sixth Circuit ruled that you cannot represent your child's IDEA rights and must retain an attorney. If you cannot find or afford an attorney, your child's case will be dismissed - and you may be prosecuted for Unauthorized Practice of Law (UPL). (Find your Circuit)
Purpose of IDEA: To Ensure that Rights of Children with Disabilities and Their Parents Are Protected
On September 20, 2005, the United States Court of Appeals for the Sixth Circuit ruled that "the IDEA does not grant parents the right to represent their child in federal court." Jacob Winkelman, et al. v. Parma City Schools (6th Cir. 2005)
Compare this statement with the second purpose of IDEA "(B) to ensure that the rights of children with disabilities and parents of such children are protected . . ." See 20 USC 1400(d)(1)(B) at page 33 in Wrightslaw: IDEA 2004 and at page 137 in Wrightslaw: From Emotions to Advocacy, 2nd Edition.
Contrast this statement with the ruling in by the U. S. Court of Appeals for the First Circuit:
"IDEA expressly contemplates that parents will act as advocates for their children at every stage of the administrative process, from initial IEP meetings to administrative due process hearings ... A rule prohibiting pro se representation would subvert Congress's intent by denying many children with special needs their day in court. Where parents could not obtain representation or chose not to pay for counsel, many children with special needs would be precluded from exercising their statutory right to judicial review of their administrative due process hearings." Maroni v. Pemi Baker Regional School (1st Cir. 2003)
One Family's Dilemma
Jacob Winkelman is a young child with an autism spectrum disorder. Jacob and his parents, Jeff and Sandee Winkelman, live in Ohio.
Ohio has a severe shortage of attorneys who represent children with disabilities and their parents. In the twelve months between October 2004 and September 2005, the Ohio Legal Rights Services (Ohio's federally designated protection and advocacy agency for children and adults with disabilities) received 683 requests for legal assistance. They were able to provide representation to 58 families, less than 10 percent of these cases.
"OLRS reports that during the past eight months, out of the eighty-three requests for due process hearings, parents represented themselves and their children pro se in fifty-eight (approximately 70%) of these proceedings because they could not afford representation, could not qualify for representation or could not find pro bono or other representation." (Source: Amicus Brief Filed by the Council of Parent Attorneys and Advocates, the Arc, and TASH)
On September 20, 2005, the U. S. Court of Appeals for the Sixth Circuit ruled that parents may not represent their children, nor their own interests, in federal court, and must must retain an attorney. "...the IDEA does not grant parents the right to represent their child in federal court ... "(T)he text of the IDEA does not support the proposition that its guarantee of a (free appropriate public education) is a right that (a child) shares jointly with his parents." Jacob Winkelman, et al. v. Parma City Schools (6th Cir. 2005)
Bar Investigates Parents for Unauthorized Practice of Law
After the Sixth Circuit issued this decision, the Cleveland Bar Association launched an investigation into whether parents, including Jacob's parents, were engaged in the unauthorized practice of law when they represented their children's rights under IDEA. If found guilty, the parents could be fined $10,000 for each incident and the costs incurred by the Bar for investigating them. (Source: Bar Association Battles Parents by Patrick O'Donnell, Cleveland Plain Dealer, April 27, 2006)
After intense public outcry and an adverse ruling from the Ohio Supreme Court, the Cleveland Bar Association dropped its complaint against the parents -- for now. However, the Bar Association did not rule out the possibility of bringing UPL charges against parents after the Supreme Court issues a decision in Jacob Winkelman's case. (Source: Supplemental Brief in Support of Petition for a Writ of Certiorari)
Because all states have UPL statutes, parents who plan to litigate an IDEA case on behalf of their disabled children cannot feel safe from prosecution unless they live in the First Circuit where they are protected by the decision in Maroni v. Pemi Baker Regional School, (1st Cir. 2003). "Overzealous bar prosecutors in any state outside the First Circuit may follow the Cleveland Bar Association’s lead and seek to punish parents for attempting to vindicate their disabled children’s IDEA rights in federal court the only way that, as a practical matter, many can do so – as pro se litigants. (Source: Second Supplemental Brief in Support of Petition for a Writ of Certiorari)
Supreme Court Grants Cert
On October 27, 2006, the U. S. Supreme Court agreed to hear Jacob's case and and resolve a split among circuits about whether parents can represent their children with disabilities in federal court.
"To what extent, if any, may a non-lawyer parent of a minor child with a disability proceed pro se in a federal court action brought pursuant to the Individuals with Disabilities Education Act."
Wrightslaw Note: We are working on a comprehensive article that will include the history of the case, links to cases, and briefs filed in Jacob Winkelman, et al. v. Parma City School District. This article should be available within the next few days. (11/14/06)
Brief of Solicitor General
Respondent Parma City School District's Brief in Opposition to Petition for Certiorari
Reply Brief for the Petitioners (04/18/06)
Brief of the Ohio Coalition for the Education of Children With Disabilities and the Autism Society of Ohio as Amicus Curiae
Brief of Amici Curiae: Council of Parent Attorneys and Advocates and eleven other advocacy organizations
Pro Se Plea: Parents Seek the Right to Represent Their Son's Case in Federal Court
Duke Law: Winkelman v Parma School District
Cornell Law: Winkelman
US Court of Appeals For The Sixth Circuit