Argument Recap: Winkelman v. Parma City School District on 2/27

The following argument recap is by Molly Cutler of the Stanford Supreme Court Litigation Clinic. Her preview of this case is here.

On Tuesday, the Court heard argument in Winkelman v. Parma City School District, considering whether the non-lawyer parents of a disabled child can appear pro se in federal court either on their own behalf or on behalf of their child in a lawsuit under the Individuals with Disabilities Education Act (IDEA).

For petitioners, Jean-Claude Andre of Los Angeles first argued for a broad rule that parents are real parties in interest in IDEA suits regardless whether the claims being asserted are challenges to the school district’s individualized education plan (IEP) for the child or are claims for reimbursement of private school tuition or for denial of procedural guarantees ensured to parents by IDEA. Justice Scalia appeared skeptical of this broad formulation. He asked what parents would be able to get from suing, if not reimbursement or procedural guarantees, and emphasized that the education is guaranteed by statute to the child, not to his parents. Andre conceded that petitioners are seeking reimbursement of tuition, not challenging Jacob’s IEP, and therefore could prevail even if the Court adopted Justice Scalia’s narrower formulation. Chief Justice Roberts also challenged the broadest of Andre’s claims and appeared to agree with Justice Scalia that parents may be “parties aggrieved” only with respect to reimbursement and procedural rights. Justice Ginsburg then seemed to move the argument in a somewhat different direction with a question about the significance of the fact that the statute clearly states that parents are aggrieved parties for purposes of the administrative process, but is silent about whether they can proceed without counsel in court. Andre responded that as long as parents are parties aggrieved, they have the right to litigate their own cases under 28 U.S.C. 1654, returning to the issue of when the parents are real parties in interest.

Justice Scalia then asked several questions about the effect of allowing non-lawyer parents to appearing pro se, stating his concern that petitioners’ proposed rule would “make a lot more work for Federal district judges” and would strip courts of the protection against frivolous suits that representation by counsel provides. Responding to this concern, Andre explained that “those public policy concerns about pro se litigants burdening the court, burdening opposing counsel are dramatically outweighed . . . by the reality that two-thirds of the disabled children in the United States come from families that cannot afford counsel.” In response to Chief Justice Roberts’ questions about the whether the fee-shifting provision in the statute precludes those with meritorious claims from obtaining counsel, Andre asserted that the small private education bar would “cherry-pick” the best cases, leaving many non-frivolous claims un-litigated. Justice Alito added yet another policy perspective to the argument, questioning whether parents would be able to maintain the “emotional detachment” from the litigation necessary to effectively represent their children. Justice Scalia added that he found it “hard to believe” that disadvantaged parents would be informed about the intricacies of IDEA. Andre responded that such parents should at least have “access to the courts” and that capable district judges could determine whether statutory mandates were met, to which Justice Scalia retorted, “And [read parents’ pro se briefs] right after reading pro se prisoner petitions, right? You’d have a nice evening’s work.”

David Salmons, Assistant to the Solicitor General, argued next on behalf of the United States as an amicus in support of petitioners. Salmons opened with a narrow argument seemingly suggested by Justice Scalia’s early questions to Andre: that parents have an explicit right to seek reimbursement for private school tuition and can litigate that right in federal court. This time, Justice Ginsburg asked whether such a rule would establish a right for the least needy – those who could afford to pay private tuition and seek reimbursement later – while providing no relief to those who have no alternative but to keep their children in public schools. Salmons responded that the position of the United States, like petitioners, is that parents share in the substantive right to a free appropriate public education under the IDEA and are real parties in interest to any kind of claim under the statute, but emphasized that the Court could decide for petitioners on narrower grounds.

Salmons and the Court then engaged in a more detailed excavation of the statutory language. First, Salmons pointed out that a free appropriate public education must be provided “without charge and at no cost to parents,” suggesting that at least the “free” aspect of the substantive right is a right of parents. Next, he argued that the procedural right of parents under the IDEA to be part of their child’s education team suggests that an appropriate education involves the parents. Chief Justice Roberts and Justice Scalia asked whether this suggested that parents’ rights should be limited to suing for money or for denied procedures, a limitation Salmons rejected.

Pierre Bergeron of Cincinnati, Ohio, argued on behalf of the respondent school district. He opened by appealing to the common law rule banning parental pro se representation and immediately faced a series of difficult questions from Justices Stevens, Ginsburg, Souter, and Breyer about whether parents at least have a right to seek reimbursement and vindication of their procedural rights under the IDEA. Bergeron responded that reimbursement and parental procedural rights hinge on the rights of the child and may be brought only by the child. Justice Souter then asked whether it could make sense to interpret the IDEA to give parents procedural rights without a corresponding substantive interest. Justice Scalia also pointed out that the text acknowledges that there are rights accorded to parents.

Tuesday’s argument seems to suggest that the Winkelmans will prevail in the argument that non-lawyer parents may appear pro se with respect to reimbursement and procedural claims, but it is unclear whether petitioners succeeded in persuading the Court to adopt a broad rule that would allow non-lawyer parents of disabled children to challenge individualized education plans offered by school districts.