Post Winkelman v Ensuring Good Education for Special Needs - PDF document

Post – Winkelman v Ensuring Good Education for Special Needs Children By Barbara E. Etkind, Esq. and Prashant K. Khetan, Esq. Reprinted with permission of publisher. Autism Asperger’s Digest, Nov-Dec 2007 issue. www.autismdigest.com

lman v. Parma A s many parents with spe- for parents to keep in mind. In order meet the unique needs of a child with cial needs children know, it to prevail in the courts, parents must a disability.” To ensure that each child is heart-wrenching to think have established a good record of argu- entitled to a FAPE receives one, the your child is not receiving adequate ments and evidence at the administra- IDEA requires states, until the child care and education from his or her tive level (because new arguments and reaches age three, and schools there- school. The Supreme Court’s recent evidence cannot be submitted during after, to provide special needs stu- decision in Winkelman v. Parma City the later legal proceedings). In addi- dents with individualized education School District, 127 S. Ct. 1994 (May tion, parents must have complied with plans (IEPs) at no cost to the students’ 21, 2007), represents a major step for- all of the procedural requirements at parents. According to the IDEA, the ward in the protection of the rights of the administrative level. Otherwise, the school district must work with par- children with special needs and the case stands a very high chance of being ents to develop an IEP for their child. rights of their parents. In Winkelman , dismissed. Moreover, each time a student’s IEP the Court held that parents of special Parents, beware – understanding and changes, which it should over time, needs children have a right to file law- navigating these proceedings is no easy parents must be involved to ensure suits in federal courts against school task. In this article we hope to provide that their child continues to receive a districts, and can file these suits them- some guidance and suggestions that FAPE. selves, without legal representation, may bring clarity to the process and Congress foresaw the possibility that in order to enforce rights guaranteed lighten the burden for parents facing the IEP provided to a child might be by the Individuals With Disabilities these issues. inadequate and, therefore, included Education Act (IDEA). in the IDEA the procedure parents Background This is a significant ruling because must follow to address any problems. many parents of children with special Parents first must challenge the IEP at needs cannot afford to pay for an attor- More than fifty years ago, the Supreme the “administrative level,” by present- ney. It also is important because it allows Court said that education is perhaps ing a “complaint” that outlines the for a consistent and logical progression the most important function of state parents’ specific concerns with the between administrative proceedings, and local governments. Thirty years IEP. Submission of the complaint will at which parents are permitted to par- before that, the Court said “it is the result in a preliminary meeting with ticipate without legal representation, natural duty of the parent to give his school personnel, at which parents and judicial actions, at which, prior to children education suitable to their are expected to discuss their concerns Winkelman , many federal courts pro- station in life.” and school personnel are supposed to hibited parents from proceeding unless In the case of children with special address them. If the parents are not they either were represented by counsel needs, Congress implemented these satisfied with the school’s response, or were attorneys themselves. Success views by passing the IDEA. The IDEA they may request a hearing, at which a in the courts on IDEA claims (whether was designed to ensure that all chil- “hearing officer” will resolve the issues brought with or without legal coun- dren with special needs have access to raised. If the parents are not satisfied sel), however, depends in very large a free and appropriate public educa- with the decision of the hearing officer, part on the actions taken earlier, dur- tion (commonly known as FAPE). The they are entitled to file suit in federal ing the administrative stage of the case. law defines a FAPE as an educational or state court. Until the Winkelman This is an extremely important point instruction “specially designed . . . to decision, however, most federal courts www.autismdigest.com ■ November - December 2007 49

did not permit parents of children with Winkelmans brought their case to special needs to sue to enforce rights the Supreme Court. On May 21, under the IDEA unless they were rep- 2007, the Supreme Court decided the resented by an attorney. Winkelman case, ruling that parents themselves enjoy rights under the Winkelman v. Parma City IDEA. The Supreme Court noted that School District while the primary goal of Congress was to ensure that children with Jeff and Sandee Winkelman decided disabilities are afforded a free and to fight the Parma City School District appropriate education, that goal can- to obtain an acceptable FAPE for their not be met without recognizing that son, Jacob, who has autism. As part of parents have rights under the stat- this challenge, the Winkelmans argued ute as well. For example, parents are that the school district did not follow entitled – indeed, encouraged – to procedures required under the IDEA play a significant role in the IEP pro- and that they, as parents, should be cess. In addition, parents are entitled entitled to recover the money they had to recover the cost of private school spent to send Jacob to a private school tuition if their child is not provided when the public school did not pro- a FAPE. Therefore, since parents have vide him with an adequate IEP. At the their own rights under the IDEA, the administrative and federal trial court Supreme Court stated that parents level, the Winkelmans were able to hire can sue the school district under the an attorney; but when they were dissat- IDEA and represent themselves (i.e., isfied with the hearing officer and trial without hiring an attorney). court’s decisions and appealed to the Tips for Parents Seeking to court of appeals, they could not afford Challenge a School District counsel. After the trial court rejected the Winkelmans’ arguments and dis- We expect the Winkelman decision missed the case, the Winkelmans will encourage more parents whose appealed to the court of appeals. That children have not received adequate court dismissed their case because the education to challenge school districts Winkelmans were not represented by in court. Of course, doing so can be an attorney. According to the appel- time-consuming, mentally and physi- late court, only children with special cally exhausting, and emotionally needs – not their parents – have rights draining for parents. But, for par- under the IDEA. Therefore, the court ents who wish to pursue such action, of appeals held that the parents had we offer the following tips. However, no right to sue the school district. although Winkleman permits parents, And, because neither Jeff nor Sandee without counsel, to sue in federal court Winkelman is an attorney, they could to enforce the IDEA, the guidance pro- not represent Jacob in an action vided in this article is no substitute for brought to enforce his rights under professional assistance, when possible. the statute. That left only two options: 1 either Jacob could sue and represent From the very beginning, take himself – hardly a realistic alternative a positive and constructive – or the Winkelmans could retain an approach in discussing your attorney to represent their son – also child’s IEP. Do not go into meetings an unrealistic alternative, given the with school personnel with an adver- family’s financial situation. sarial attitude. Although we appreciate With the assistance of attorneys working on a volunteer basis, the Continued on page 56 50 November - December 2007 Autism ■ Asperger’s Digest