Discussing Autism

The Supreme Court ruled on Monday the 21st that parents should never have to pay for a lawyer if they wish to fight a school district over special needs plans. According to Wrightslaw, this is a pro-parent, pro-child decision that will allow parents to represent their child in court for the first time.

The question brought to the Supreme Court was “whether parents, either on their own behalf or as representatives of the child, may proceed in court unrepresented by counsel though they are not trained or licensed as attorneys.”

The Winkelman decision goes far beyond the question about whether parents can represent their children in court. In Winkelman, the Court listed and affirmed parental rights, the importance of parental involvement, and described the essential role parents play in ensuring that their child receives a free appropriate public education (FAPE). The Court also refined the definition of a “free appropriate public education.”

The Court explained that answering this question “…requires us to examine and explain the provisions of IDEA to determine if it accords to parents rights of their own that can be vindicated in court proceedings, or … whether the Act allows them, in their status as parents, to represent their child in court proceedings.”

So, basically, parents who are unhappy with the school districts plan need to follow the IEP (individual Education Plan) procedures, which state that:

The process begins with a meeting “where the parents of the child discuss their complaint” and the school district “is provided with the opportunity to [reach a resolution].” §1415(f)(1)(B)(i)(IV) If the school district “has not resolved the complaint to the satisfaction of the parent within 30 days,” the parents may request a due process hearing. §1415(f)(1)(B)(ii)

Parents still unhappy with those results can, now, file a lawsuit on their child’s behalf. “At that point, however, most courts have said the parents must hire a lawyer.” The Winkelman case has now ruled that parents can fight for their child if they can not afford a lawyer.

Back in 2006 when Jacob Winkelman was 6 years old and first attending elementary school his parents sat down with the IEP team to discuss his schooling plans. Evidentially, they could not come to a conclusion, as his parents had concerns over whether or not Jacob would progress at his elementary school. The Winkelman’s worked with the team to construct an appropriate plan for Jacob’s ASD but could not agree. They then participated in an impartial due process hearing, which is required by IDEA (Individuals with Disabilities Education Act).

IDEA requires that all school districts provide students with disabilities a free and appropriate education but the Winkelman’s saw the Parma’s IEP as not appropriate and sought a private school specializing in ASD to provide their needs. They then requested that Parma School District pay for said private school.

According to IDEA, the school district would only be in violation if they were to:
“(I) imped the child’s right to a free appropriate
public education;
“(II) significantly impede the parents’ opportunity
to participate in the decision making process regarding
the provision of a free appropriate public education to
the parents’ child; or
“(III) caused a deprivation of educational benefits.”
§§1415(f)(3)(E)(i)–(ii).

As a former teacher I find this ruling detrimental to the school system. Yes, all parents should and need to have the right to represent their children but when courts make it increasingly more simple for parents to sue school districts then how long are our school districts going to last?

Additionally, if a parent can not come to agreement with a school district on an IEP and chooses to seek alternative education because of this…then so bit it. Absolutely nothing in life is perfect. No education is perfect and fortunately, there are other options. So far, we have done the best we can for our son, including moving to another school district (just like Chew in AutismVox) seeking outside resources, doing in home therapies, etc. at little cost to ourselves. I know this is not possible for all families, especially ones like the Winkelmans who have five children, but when a school district does try to make accommodations one can compromise, right?

You can read more about this court case here.

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