Saturday, September 16, 2017

Special Education Law - Part XIII #lawyers

This is another post in our ongoing series on the basics of special education law.  Please let us know how you are enjoying this series.  We feel that this is a good introduction for newbies and a good refresher for seasoned pros.  

The federal regulations implementing IDEA provide that parties to due process hearings have a right to be accompanied by legal counsel and by individuals with special knowledge or training with respect to the problems of kids with disabilities "...except that whether parties have the right to be represented by non-attorneys at due process hearings is determined under State law." 34 C.F.R. §300.512.  This regulation was changed a few years ago to reverse a previous long standing policy of the department of Education that had permitted non-attorney advocates to fully represent parents in the past. To be clear a parent may still have an advocate present to advise her, but the advocate may not be able to represent the parent depending upon state law.

There is one US Supreme Court decision concerning legal representation: 
In Winkelman by Winkelman v. Parma City Sch. Dist  550 U.S. 516, 127 S.Ct 1994,  47 IDELR 281 (5/21/2007) the Supreme Court ruled by a 7 to 2 margin that the IDEA grants independent enforceable rights to parents as well as students.  Accordingly, the court concluded that parents may pursue their own IDEA appeals in federal court without being represented by an attorney.  NOTE: This decision applies only to federal court appeals of due process decisions.  All parties agreed that a parent may appear at a due process hearing without counsel. Also many courts have held that a parent must retain legal counsel to assert their child's rights in federal court.

See also, Rideau ex rel TR v Keller Independent Sch Dist 819 F.3d 155, 67 IDELR 166 (5th Cir 4/5/16) Fifth Circuit declined to extend Winkleman to grant parents a cause of action under §504 or ADA for their anguish resulting from mistreatment of their child by a teacher

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