TO: NDSC Members and Affiliated Parent Groups

FROM: Susan Goodman, Director Governmental Affairs

DATE: May 1, 2007

NDSC joins as a Friend of the Court in Another I.D.E.A. Case

On February 27, 2007, the U.S. Supreme Court heard oral argument in the case of Winkelman v. Parma City Schools . The action was brought by Sandee and Jeff Winkelman, parents of Jacob, a child with autism. The suit alleges that an Ohio school district failed to include appropriate services in an Individual Education Program (IEP) prepared for Jacob. NDSC joined in an amicus brief filed in the Supreme Court on behalf of the parents.

The claim against the school district was brought in the U.S. District Court, Northern District of Ohio, claiming the Ohio district's ruling had denied Jacob a free appropriate public education (FAPE). The Winkelmans also alleged violation of procedural safeguards surrounding the IEP development and dispute process.

The District Court ruled against the parents and they appealed to the 6th U.S. Circuit Court of Appeals. However, the 6th Circuit dismissed the parents' claim, determining that the IDEA does not allow non-attorney parents to represent their children pro se in federal court. (A party to a lawsuit who represents himself is appearing in the case "pro se"). The Supreme Court decided to hear Winkelman to determine to what extent, if any, non-lawyer parents may represent their child with a disability in Federal Court under the Individuals with Disabilities Education Act .

The Supreme Court's ruling on the issue will turn on its interpretation of the phrase "parties aggrieved." This is the language in IDEA that says who may claim a violation of a student’s right to FAPE. Attorneys for the Winkelmans argue that IDEA gives parents, not just children and school districts, a right of action under that provision.

Although an individual may represent himself in a court of law, he may not represent another person, including family members, unless he is admitted to practice law in that court. The Individuals with Disabilities Education Act (IDEA) clearly provides parents the right to represent their child in administrative hearings. However, there is no language on whether parents may represent their child in Court. The attorney for the parents argued that IDEA grants them the right to represent their own interests, in addition to the rights of their minor child, and that the rights of the parents and child are inseparable. The Assistant Solicitor General supported the parents’ position on behalf of the United States.

The attorney for Parma City Schools argued that parents have no right under the IDEA to represent their children’s interests in federal court.
The Court is expected to issue a decision by the end of this term. To read a summary of the case, go to http://www.wrightslaw.com/news/07/winkelman.parma.htm.

U.S. State Department Responds to Request for an Explanation
On Failure to Sign U.N. Convention

In the last issue of the Newsline, we urged readers to sign the petition asking the U.S. to sign the U.N. Convention on the Rights of Persons with Disabilities. You may still sign that petition by linking to http://www.aapd.com/UN/petition.html . Below is an April 5, 2007 e-mail response by the U.S. State Department to a disability advocate’s request for an explanation

Thank you for your message to Ambassador Wolff concerning the United Nations Convention on the Rights of Persons with Disabilities. Early in the negotiations for the Convention, the U.S. delegation stated that given the complexity of regulations and enforcement mechanisms needed to ensure equal opportunity for those with disabilities, it would be more productive for nations to pursue reforms at home rather than negotiate a new United Nations convention. For this reason, the U.S. stated that it did not intend to become party to the Convention.

At the same time, the United States joined constructively in the work of the Committee during the negotiations of the treaty, including the sharing of our experiences and offering technical assistance upon request on key principles and elements. We feel that our involvement has improved the treaty. Specifically, we provided technical advice, drawing on our experience in disabilities law and policy, and highlighted a number of issues for members of the Ad Hoc Committee to consider. There is much to be proud of in the document, including its principles of equality and non-discrimination and the strong provisions on important subjects, including political participation, access to justice, accessibility, health, the crucial role of the family, and end of life issues.

We can be proud of our nation's commitment to the rights and dignities of persons with disabilities, which is embodied in the vast array of strong national laws, notably the historic Americans with Disabilities Act. The United States has shown strong leadership in combating discrimination and inequality on the basis of disability. In 2001, President Bush announced the New Freedom Initiative designed to expand the potential for disabled persons to access technologies, education, workplace and homeownership opportunities, as well as new technologies.

We appreciate your interest in this important issue.

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