updated 2/27/2007 9:10:46 PM ET 2007-02-28T02:10:46

Parents should not be forced to hire a lawyer to sue public school districts over their children’s special education needs, the lawyer for parents of an autistic child told the Supreme Court Tuesday.

“What we’re advocating here is access to the courts,” said Jean-Claude Andre, who represents Jeff and Sandee Winkelman, and their son, Jacob, in their fight against the Parma, Ohio, school district.

Until now, most federal courts have said parents don’t have the right to sue and, if they are not lawyers, cannot represent their children in lawsuits filed under the Individuals With Disabilities in Education Act, the main federal special education law.

The Winkelmans can’t afford a lawyer or the cost of private schooling for 9-year-old Jacob. Neither parent is a lawyer.

The parents objected to the Parma schools’ plan to educate Jacob at a public school. They wanted the district to pay for his $56,000 yearly enrollment in a private school that specializes in educating autistic children.

The Winkelmans have spent about $30,000 in legal fees since first contesting Jacob’s treatment in 2003. Jeff Winkelman has taken a second job while his wife has researched previous court rulings and written her own filings

The special education law gives every child the right to a free appropriate public education, which in the case of special needs children sometimes means enrollment in a private facility.

It is unclear how many parents forgo lawsuits because they can’t afford them, although advocates for disabled children said in court papers that most parents of disabled children lack the means to hire a lawyer.

Whether Jacob should have private schooling at public expense is not before the Supreme Court, only his parents’ right to go into federal court without a lawyer.

Pierre Bergeron, a lawyer for the school district, said the law exists to protect the rights of children, not their parents. Andre, representing the Winkelmans free of charge, said the law closely links the rights of children and their parents.

Several justices indicated they agree with Andre. “Throughout the whole act, they talk about parents and students,” said Justice Stephen Breyer.

Chief Justice John Roberts, Justice Samuel Alito and Justice Antonin Scalia seemed most skeptical of the parents’ claims.

Conflict of interest?
Alito said he is concerned that parents who represent themselves or their children would have “difficulty maintaining emotional detachment” from the lawsuit.

Parents unhappy with a district’s plan can appeal the decision through an administrative process. If they remain dissatisfied, they can file a civil lawsuit on their child’s behalf, federal courts have said.

At that point, however, they must find a lawyer, the 6th U.S. Circuit Court of Appeals ruled in the Winkelmans’ case. People who are not lawyers can represent themselves in court proceedings, but not other parties. The appeals court said the law requires the child to be the plaintiff.

The Bush administration and 12 Democratic lawmakers, including Sen. Edward Kennedy of Massachusetts, have sided with the Winkelmans. They contend Congress clearly intended the special education law to allow parents to go into court without a lawyer’s help.

“Congress recognized the interests of parents in guiding the course and substance of their child’s education,” the Democrats’ legal brief said.

In response, the school district said Congress declined to make explicit parents right to sue in the most recent amendments to the special education law.

The case number is Winkelman v. Parma City School District, 05-983.

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