Winkelman v. Parma City School District - Amicus (Merits)

No. 05-983

In the Supreme Court of the United States

JACOB WINKELMAN, A MINOR, BY AND THROUGH HIS
PARENTS AND LEGAL GUARDIANS, JEFF AND SANDEE
WINKELMAN, ET AL., PETITIONERS

v.

PARMA CITY SCHOOL DISTRICT

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

PAUL D. CLEMENT
Solicitor General
Counsel of Record

WAN J. KIM
Assistant Attorney General

GREGORY G. GARRE
Deputy Solicitor General

DAVID B. SALMONS
Assistant to the Solicitor
General

DAVID K. FLYNN
GREGORY B. FRIEL
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

KENT D. TALBERT
General Counsel
Department of Education
Washington, D.C. 20202

QUESTION PRESENTED

To what extent, if any, may a non-lawyer parent of a minor child with a disability proceed pro se in a federal court action brought pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq.

In the Supreme Court of the United States

No. 05-983

JACOB WINKELMAN, A MINOR, BY AND THROUGH HIS
PARENTS AND LEGAL GUARDIANS, JEFF AND SANDEE
WINKELMAN, ET AL., PETITIONERS

v.

PARMA CITY SCHOOL DISTRICT

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case presents the question whether and to what extent a non-lawyer parent of a minor child with a dis ability may proceed pro se in a federal court action brought pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq. The De partment of Education administers IDEA and has au thority to promulgate regulations necessary to ensure compliance with the Act. See 20 U.S.C. 1406. The Uni- ted States has participated as an amicus in numerous cases involving the construction of IDEA. See, e.g., Arlington Cent. Sch. Dist. v. Murphy, 126 S. Ct. 2455 (2006); Schaffer v. Weast, 126 S. Ct. 528 (2005); Cedar Rapids Cmty. Sch. Dist. v. Garret F., 526 U.S. 66 (1999); Board of Educ. v. Rowley, 458 U.S. 176 (1982). At the Court's invitation, the United States filed a brief at the petition stage of this case.

STATEMENT

1. The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq., provides federal grants to States for assistance in the education of children with disabilities.1 The Act explicitly seeks to protect the rights of parents as well as children. See 20 U.S.C. 1400(d)(1)(B) (IDEA seeks "to ensure that the rights of children with disabilities and parents of such children are protected."). Under IDEA, a State participating in the grant program must ensure that each child with a disability receives a "free appropriate public education," which includes special education and related services necessary to meet the child's particular needs. 20 U.S.C. 1400(d)(1)(A), 1412(a)(1)(A). The Act guarantees "children with disabilities and the families of such chil dren access to a free appropriate public education." 20 U.S.C. 1400(c)(3) (emphasis added).

IDEA requires local school systems to develop an individualized education program (IEP) for each child with a disability. See 20 U.S.C. 1412(a)(4), 1414(d). "Parents and guardians play a significant role in the IEP process." Schaffer v. Weast, 126 S. Ct. 528, 532 (2005). For example, parents are members of the "IEP team" that develops an IEP for their child. 20 U.S.C. 1414(d)(1)(B). In addition, in developing the IEP, the team must consider, among other factors, "the concerns of the parents for enhancing the education of their child." 20 U.S.C. 1414(d)(3)(A)(ii).

Parents may file an administrative complaint "with respect to any matter relating to the identification, eval uation, or educational placement of the[ir] child, or the provision of a free appropriate public education to such child." 20 U.S.C. 1415(b)(6)(A). Parents are likewise entitled to "an impartial due process hearing" on their complaint before either the local or state educational agency. 20 U.S.C. 1415(f)(1)(A). In addition, the statute gives parents a right to such a hearing when they dis agree with certain decisions by the local education agency pertaining to the child's violation of a code of student conduct. 20 U.S.C. 1415(k)(3)(A); 20 U.S.C. 1415(f)(1)(A). If the local agency conducts the due pro cess hearing, "any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency." 20 U.S.C. 1415(g)(1). After exhausting administrative remedies, "[a]ny party aggrieved by the findings and decision" made in the administrative proceedings has "the right to bring a civil action * * * in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in con troversy." 20 U.S.C. 1415(i)(2)(A).

2. Petitioners are Jeff and Sandee Winkelman and their son, Jacob, who has autism spectrum disorder. Pet. 1-2. The respondent school district proposed an IEP for the 2003-2004 school year that would have placed Jacob at a public elementary school. Pet. App. 4a-5a. Jacob's parents believed the proposed IEP was inadequate and requested a due process hearing in which they alleged that respondent had failed to provide a free appropriate public education for their son. Ibid.

An administrative hearing officer issued an order designating the learning center where Jacob had at tended preschool as his "stay put" placement under 20 U.S.C. 1415(j) during the pendency of the administra tive proceedings. Pet. App. 4a-5a. Instead of sending Jacob to the learning center for the 2003-2004 school year, petitioners enrolled him at their own expense at the Monarch School, a private school that specializes in educating children with autism. Id. at 5a.

In February 2004, the administrative hearing officer issued a decision finding that respondent had provided Jacob with a free appropriate public education as re quired by IDEA. J.A. 21-113; Pet. App. 6a. Petitioners appealed that decision to a state-level review officer, who affirmed the hearing officer's decision. J.A. 114- 158; Pet. App. 6a.

3. On July 15, 2004, petitioners filed an action in fed eral court pursuant to 20 U.S.C. 1415(i)(2), challenging the administrative decision rejecting their IDEA claims. Pet. App. 6a; J.A. 11-20. The complaint listed three plaintiffs: Jacob's parents and Jacob "by and through" his parents. J.A. 11-12. Petitioners alleged that respon dent violated both IDEA's procedural requirements and its substantive guarantee by failing to provide Jacob a free appropriate public education. J.A.17; see Pet. App. 10a-22a. Petitioners sought, inter alia, reimbursement for the cost of educating Jacob at the Monarch School. J.A. 19; Pet. App. 6a. Petitioners later sought a prelimi nary injunction designating the Monarch School as Ja cob's stay-put placement, but the district court denied the request. See Winkelman v. Parma City Sch. Dist., 166 Fed. Appx. 807, 808-809 (6th Cir. 2006). On June 2, 2005, the district court rejected all of petitioners' IDEA claims and granted judgment in favor of respondent. Pet. App. 3a-23a.

4. Petitioners filed two pro se appeals. The first ap peal challenged the district court's denial of a prelimi nary injunction regarding Jacob's stay-put placement at the learning center he had attended. See No. 04-4159 (6th Cir.). On September 20, 2005, the Sixth Circuit or dered dismissal of that appeal unless petitioners re tained counsel within 30 days. Resp. Br. in Opp. App. 2b-4b (Resp. App.). The court relied on its decision in Cavanaugh v. Cardinal Local Sch. Dist., 409 F.3d 753 (6th Cir. 2005), which held that IDEA does not grant parents the right to represent their child pro se in fed eral court and that "parents cannot pursue their own substantive IDEA claim pro se." Resp. App. 3b (citing Cavanaugh, 409 F.3d at 756-757). In response to the Sixth Circuit's order, petitioners retained counsel. Id. at 5b-7b. On January 25, 2006, the Sixth Circuit af firmed the denial of the preliminary injunction. See Winkelman, 166 Fed. Appx. at 808-811.

Petitioners also filed a pro se appeal from the district court's merits decision. See No. 05-3886 (6th Cir.). On November 4, 2005, the court of appeals ordered dis missal of that appeal unless petitioners retained counsel within 30 days. Pet. App. 1a-2a. Relying on its order in petitioners' preliminary injunction appeal, the Sixth Cir cuit stated that "Jeff and Sandee Winkelman are not permitted to represent their child in this court nor can they pursue their own IDEA claim pro se." Id. at 2a. Petitioners are challenging that order in this Court.

The Sixth Circuit's holding appears to prohibit par ents from proceeding pro se not only on substantive claims under IDEA, but also on procedural claims. Al though recognizing that parents have procedural rights under IDEA, the court in Cavanaugh stated that those "procedural rights exist only to ensure that the child's substantive right to a [free appropriate public educa tion] is protected." 409 F.3d at 757. The court therefore concluded that "any right on which the [parents] could proceed on their own behalf would be derivative of their son's right to receive a [free appropriate public educa tion], and wholly dependent upon the [parents'] proceed ing, through counsel, with their appeal on [their son's] behalf." Ibid. The Sixth Circuit applied its reasoning in Cavanaugh to preclude petitioners from appearing pro se on both their substantive and procedural IDEA claims in this case. Pet. App. 2a; Resp. App. 4b (requir ing dismissal of entire appeal).

5. On December 2, 2005, Justice Stevens issued a stay of the Sixth Circuit's order of November 4, 2005, pending the timely filing and disposition by this Court of a petition for a writ of certiorari.

SUMMARY OF ARGUMENT

Under a correct reading of IDEA, the parents of a child with a disability may proceed pro se when they bring a civil action in federal court either to enforce pro cedural rights under the statute or to seek relief for a substantive violation of the right to a free appropriate public education.

A. This case turns on whether parents may be "part[ies] aggrieved" under 20 U.S.C. 1415(i)(2)(A). IDEA provides that "[a]ny party aggrieved by the find ings and decision" made in a due process hearing or ad ministrative appeal under the statute may bring a civil action in state or federal court. Ibid. If parents are "part[ies] aggrieved" for purposes of Section 1415(i)(2)(A), then they have a right to proceed pro se if they wish under 28 U.S.C. 1654, which provides that "[i]n all courts of the United States the parties may plead and conduct their own cases personally or by coun sel." 28 U.S.C. 1654 (emphasis added).

B. IDEA's text and structure demonstrate that parents are "part[ies] aggrieved" under Section 1415(i)(2)(A) when they bring a civil action to enforce either procedural or substantive rights under the stat ute. It is undisputed that parents are "part[ies] ag grieved" under 20 U.S.C. 1415(g)(1), which authorizes administrative appeals from adverse decisions rendered in due process hearings. It follows logically that Con gress had parents in mind when it authorized a civil ac tion by "[a]ny party aggrieved by the findings and deci sion" made in those administrative hearings. 20 U.S.C. 1415(i)(2)(A). Under well-established principles of stat utory construction, the Court should interpret the phrase "[a]ny party aggrieved" to have the same mean ing in Section 1415(i)(2)(A) as it does under Section 1415(g)(1).

Moreover, parents themselves enjoy several rights under IDEA that are not merely derivative of the rights guaranteed for their children. When any of those rights is violated, the parents themselves are aggrieved par ties. In addition to enjoying numerous procedural safe guards under IDEA, parents share with their child the substantive right under the statute to a free appropriate public education. For example, Congress found that IDEA "has been successful in ensuring children with disabilities and the families of such children access to a free appropriate public education." 20 U.S.C. 1400(c)(3) (emphasis added). Other statutory provisions emphasize that parents should not be required to bear the cost of educating their child with a disability. 20 U.S.C. 1401(9) and (29), 1412(a)(10)(B)(i). Indeed, Congress authorized reimbursement of parents under certain circumstances for private school tuition when a local educational agency violates its statutory obligation to provide a free appropriate public education. See 20 U.S.C. 1412(a)(10)(C)(ii).

The attorneys' fees provisions of IDEA further con firm that Congress viewed parents as real parties in interest who may pursue their own procedural and sub stantive claims in court. See 20 U.S.C. 1415(i)(3)(D) and (E). Those provisions specifically identify the "parents" as the "prevailing party." The 2004 amendments to IDEA reaffirmed that parents are real parties in inter est when they bring civil actions under IDEA. See 20 U.S.C. 1415(i)(3)(B) and (F).

C. The parents' right to proceed pro se in IDEA ac tions should not depend on whether their claims are deemed procedural, as opposed to substantive, in nature. One court of appeals has held that parents may litigate their own procedural IDEA claims pro se, but are barred from proceeding without an attorney when bring ing claims challenging the denial of the substantive right to a free appropriate public education. See Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 227, 230-236 (3d Cir. 1998). That approach not only conflicts with con gressional intent but also is unworkable in practice be cause procedural and substantive rights under IDEA are inextricably intertwined. In order to obtain relief in the administrative hearing and in federal court, a party who alleges a procedural violation of IDEA typically must demonstrate that the procedural flaw resulted in the denial of the substantive right to a free appropriate public education. See 20 U.S.C. 1415(f)(3)(E)(ii); Kingsmore v. District of Columbia, 466 F.3d 118 (D.C. Cir. 2006). Thus, even if the party's claim is deemed "procedural," a court typically will have to resolve the question of whether a substantive violation has occurred.

D. Although permitting parents to proceed pro se could increase the amount of meritless IDEA litigation, it is for Congress, not the courts, to decide whether that risk outweighs the harm that would occur if parties with meritorious claims are denied their day in court because they cannot find or afford an attorney. In any event, such policy concerns cannot justify adopting an interpre tation of IDEA that is contrary to the plain language and structure of the statute.

ARGUMENT

PARENTS MAY PROCEED PRO SE IN FEDERAL COURT WHEN THEY BRING A CIVIL ACTION UNDER IDEA

The Sixth Circuit's holding barring parents from appearing pro se in civil actions under IDEA is inconsis tent with the plain language, structure, and purposes of the statute. Parents are "part[ies] aggrieved" under 20 U.S.C. 1415(i)(2)(A) when they bring a civil action either to enforce procedural rights under IDEA or to seek re lief for a substantive violation of the statutory right to a free appropriate public education. Consequently, par ents are parties in their own right in IDEA actions, not merely guardians of their children's rights, and there fore have a right under 28 U.S.C. 1654 to proceed pro se if they wish on their IDEA claims.

A. 28 U.S.C. 1654 Entitles Parents To Proceed Pro Se In Federal Court On IDEA Claims If They Qualify As "Part[ies] Aggrieved" Under 20 U.S.C. 1415(i)(2)(A)

IDEA provides that "[a]ny party aggrieved by the findings and decision" made in a due process hearing or administrative appeal under the statute may bring a civil action in state or federal court. 20 U.S.C. 1415(i)(2)(A). This Court has recognized that parents are among those who may file a civil action under IDEA. See Honig v. Doe, 484 U.S. 305, 312 (1988) ("At the con clusion of [a due process] hearing, both the parents and the local educational agency may seek further adminis trative review and, where that proves unsatisfactory, may file a civil action in any state or federal court."); School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 361 (1985) (noting "the right of the parents * * * to challenge in administrative and court proceed ings a proposed IEP with which they disagree").2 Con gress expressly provided that parents may file adminis trative complaints "with respect to any matter relating to * * * the provision of a free appropriate public edu cation" to their children, and it specifically required that "the parent of a child with a disability" shall "provide notice" to the educational agency in the complaint con cerning, inter alia, "a description of the nature of the problem of the child" under the school's proposed place ment and "a proposed resolution of the problem to the extent known and available to the parents at the time." 20 U.S.C. 1415(b)(6) and (7) (2000) (emphases added).

This Court has not addressed whether parents are "part[ies] aggrieved" under 20 U.S.C. 1415(i)(2)(A) enti tled to sue on their own behalf or, instead, whether they may sue only on behalf of their children.3 That issue is key to the resolution of the question in this case, because Congress has provided that "[i]n all courts of the United States the parties may plead and conduct their own cases personally or by counsel." 28 U.S.C. 1654 (empha sis added). Thus, if parents are "part[ies] aggrieved" for purposes of Section 1415(i)(2)(A), then they are entitled under 28 U.S.C. 1654 to proceed pro se in a federal court action under IDEA.4

B. Parents Are "Part[ies] Aggrieved" Under Section 1415(i)(2)(A) When They Pursue Either Procedural Or Substantive Claims Under IDEA

In providing a right to bring a civil action under IDEA, Congress used the broad phrase "[a]ny party aggrieved by the findings and decision" of the hearing officer to define those who are entitled to bring a civil action under Section 1415(i)(2)(A). There is no dispute that parents typically are "part[ies]" to the administra tive due process hearing. Indeed, the Act expressly identifies parents as parties who are entitled to file ad ministrative complaints. See, e.g., 20 U.S.C. 1415(b)(8), 1415(o). Nor can there be any doubt that parents who lose during the administrative process are "aggrieved" within the meaning of Section 1415(i)(2)(A). As this Court has explained, "[h]istory associates the word 'ag grieved' with a congressional intent to cast the standing net broadly." FEC v. Akins, 524 U.S. 11, 19 (1998). A person is "aggrieved" if he or she has "legal rights that are adversely affected" or has "been harmed by an in fringement of legal rights." Black's Law Dictionary 73 (8th ed. 2004). Parents are "aggrieved" when they bring suit seeking relief either for a violation of their own pro cedural rights under IDEA or for a violation of the sub stantive right to a free appropriate public education.

1. It is uncontested that parents have the right to bring both procedural and substantive claims under IDEA at the administrative hearing stage (and to ap pear pro se to prosecute those claims, see 20 U.S.C. 1415(h)(2)). See Br. in Opp. 2, 4, 11, 17. Indeed, Con gress specifically contemplated that parents typically would be the parties who file administrative complaints. See, e.g., 20 U.S.C. 1415(b)(6), 1415(b)(8), 1415(o). The statutory language, moreover, indicates that an adminis trative complaint filed by parents under IDEA is consid ered the parents' own complaint and not simply a claim that they are bringing on behalf of their child. IDEA mandates that before the due process hearing takes place, the local education agency must convene a meet ing "where the parents of the child discuss their com plaint, and the facts that form the basis of the com plaint, and the local educational agency is provided the opportunity to resolve the complaint." 20 U.S.C. 1415(f)(1)(B)(i) (emphasis added). This language con firms that parents are parties in interest in their own right during the administrative proceedings.

Having expressly made parents the "party" in inter est in administrative hearings under the Act, it follows that Congress also had parents in mind in providing a right to initiate a civil action to "[a]ny party aggrieved by the findings and decision" made in the administrative proceedings. As the First Circuit has explained, "[b]e cause the statute enables parents to request due process hearings, they are parties to such hearings and thus are logically within the group of 'parties aggrieved' given the right to sue." Maroni v. Pemi-Baker Reg'l Sch. Dist., 346 F.3d 247, 251 (2003); see Collinsgru, 161 F.3d at 237-239 (Roth, J., dissenting). Indeed, in granting "any party aggrieved" by the administrative decision the right to file a civil action, Congress made express refer ence to the administrative complaint. See 20 U.S.C. 1415(i)(2)(A) ("Any party aggrieved * * * shall have the right to bring a civil action with respect to the com plaint presented pursuant to this section.").

Moreover, Congress used precisely the same lan guage in providing that "any party aggrieved by the findings and decision" rendered in a hearing conducted by a local educational agency "may appeal such findings and decision to the State educational agency." 20 U.S.C. 1415(g)(1). Parents-as the principal parties initiating due process hearings under the Act-are unquestionably "part[ies] aggrieved" for purposes of filing an adminis trative appeal. Congress's use of the same broad refer ence to "any party aggrieved" in the provision governing administrative appeals is persuasive evidence that Con gress intended to permit parents to file their own civil actions challenging the outcome of administrative pro ceedings as well. See NASA v. Federal Labor Relations Auth., 527 U.S. 229, 235 (1999) (observing that a phrase "should ordinarily retain the same meaning wherever used in the same statute"). Nor is there any practical reason why Congress would permit parents to litigate administrative proceedings on their own behalf under IDEA but not federal court actions.

2. IDEA confers rights on parents themselves that are not merely derivative of the rights guaranteed for their children. Contrary to the holding of the court of appeals below, parents have procedural rights under IDEA and jointly share with their child the substantive statutory right to a free appropriate public education. When any of those rights is violated, the parents them selves are aggrieved parties under the Act.

a. Parents enjoy several procedural rights under IDEA. See Schaffer v. Weast, 126 S. Ct. 528, 532 (2005) (noting several examples). IDEA requires state and local educational agencies receiving federal funds under the statute "to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education." 20 U.S.C. 1415(a) (emphasis added); accord 20 U.S.C. 1412(a)(6). Those procedural safeguards in clude, among other rights, the right to be members of the team that develops their child's IEP, 20 U.S.C. 1414(d)(1)(B); to be included in "any group that makes decisions on the educational placement of their child," 20 U.S.C. 1414(e); to examine any records relating to their child; to obtain an "independent educational evaluation of the child"; and to participate in meetings that address the evaluation and educational placement of their child, 20 U.S.C. 1415(b)(1). In addition, parents have the right to receive notice whenever the local school system initi ates or changes or refuses to initiate or change the child's identification, evaluation, or educational place ment, or the provision of a free appropriate public edu cation to the child. 20 U.S.C. 1415(b)(3). Parents are also entitled to notice whenever the local school system decides to take disciplinary action against a child with a disability. 20 U.S.C. 1415(k)(1)(H).

IDEA, moreover, makes clear that the procedural rights guaranteed parents are necessarily intertwined with the substantive right to a free appropriate public education. It directs that administrative hearing offi cers make decisions "on substantive grounds based on a determination of whether the child received a free ap propriate public education." 20 U.S.C. 1415(f)(3)(E)(i). But it expressly provides that, "[i]n matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education" if the procedural inadequacies "significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a free appro priate public education to the parents' child." 20 U.S.C. 1415(f)(3)(E)(ii). Congress thus recognized that the procedural protections-most of which are expressly guaranteed to the parents-are themselves inextricably tied to the substantive guarantee of a free appropriate public education. As this Court observed in Board of Education v. Rowley, 458 U.S. 176, 205-206 (1982):

It seems to us no exaggeration to say that Con gress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at ev ery stage of the administrative process, see, e.g., Section 1415(a)-(d), as it did upon the measure ment of the resulting IEP against a substantive standard. We think that the congressional em phasis upon full participation of concerned par ties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that ade quate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive con tent in an IEP.

b. Parents of a child with a disability also have a sub stantive right under IDEA to a free appropriate public education for their child. The language of IDEA con firms that Congress viewed the right to a free appropri ate public education as one held jointly by parents and their child. For example, in enacting IDEA, Congress found that, "[s]ince the enactment and implementation of the Education for All Handicapped Children Act of 1975, [IDEA] has been successful in ensuring children with disabilities and the families of such children access to a free appropriate public education." 20 U.S.C. 1400(c)(3) (emphasis added). Congress similarly recog nized (and common sense makes clear) that denial of a free appropriate public education adversely affects not just the child with a disability but also his or her family. See 20 U.S.C. 1400(c)(2)(E) (2000) (before IDEA, "fami lies were often forced to find services outside the public school system, often at great distance from their resi dence and at their own expense") (emphasis added).5 Parents typically bear the cost of educating their child if the "free" guarantee is not honored. Thus, while a child suffers a harm by the denial of an appropriate edu cation, the parents are likewise harmed where, as here, the child ultimately receives an appropriate education, but only at significant financial cost to the parents.

Other provisions of the Act further emphasize that parents ought not be required to bear the cost of educat ing their child with a disability. For example, the Act defines "free appropriate public education" to mean "special education and related services" that, among other things, are provided "at public expense" and "without charge," 20 U.S.C. 1401(9), and it defines "spe cial education" to mean "specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability," 20 U.S.C. 1401(29) (emphasis added); see 20 U.S.C. 1412(a)(10)(B)(i) (requiring, under certain circumstances, that children with disabilities placed in private schools by public agencies be "provided special education and related services, in accordance with an [IEP], at no cost to their parents") (emphasis added).

Moreover, Congress authorized courts, under certain circumstances, to order local educational agencies "to reimburse the parents" for private school tuition. 20 U.S.C. 1412(a)(10)(C)(ii); see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993) (discussing courts' au thority under IDEA to order reimbursement to par ents); Burlington, 471 U.S. at 369 (same). Petitioners sought such reimbursement in their federal court com plaint. See pp. 4-5, supra. The statute's authorization of reimbursement to parents confirms that Congress viewed parents as real parties in interest when they challenge the denial of a free appropriate public educa tion. Indeed, the child himself would typically lack the capacity to contract on his own behalf for private educa tional services, see, e.g., Ohio Rev. Code Ann. § 3109.01 (LexisNexis 2003) (defining "age of majority" for con tracting purposes to be eighteen years), and would lack standing to seek reimbursement of private school ex penses under IDEA because the child does not suffer any out-of-pocket loss as a result of attending private school, see Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299-300 (4th Cir. 2005) ("In the usual case, the par ents of the disabled child will be the appropriate ones to seek reimbursement because they will have incurred the expense and suffered the subsequent monetary in jury.").

c. The attorneys' fees provisions of IDEA also con firm that Congress viewed parents as real parties in interest who may pursue their own substantive and pro cedural claims in court. IDEA prohibits a court from awarding attorneys' fees in "any action or proceeding under this section for services performed subsequent to the time of a written offer of settlement to a parent" if, in addition to other conditions, "the relief finally ob tained by the parents is not more favorable to the par ents than the offer of settlement." 20 U.S.C. 1415(i)(3)(D)(i) and (D)(i)(III) (emphasis added). If the child were the only real party in interest, it would be strange for Congress to focus so specifically on the relief obtained "by the parents" and the extent to which such relief was "favorable to the parents." 20 U.S.C. 1415(i)(3)(D)(i)(III).6 Indeed, the attorneys' fees provi sions specifically identify the parent as a "prevailing party" in an IDEA action. 20 U.S.C. 1415(i)(3)(E) (au thorizing an attorneys' fees award to "a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer") (emphasis added); see Arlington Cent. Sch. Dist. v. Murphy, 126 S. Ct. 2455, 2460 (2006) (noting authority of courts to award reason able attorneys' fees in IDEA actions to "prevailing par ents"); Schaffer, 126 S. Ct. at 532-533 (same).7 It would be more than passing strange for the statute to classify parents as "prevailing parties," but not "parties ag grieved" under 20 U.S.C. 1415(i)(2)(A).

d. The 2004 amendments to IDEA reaffirm that par ents are real parties in interest when they pursue IDEA claims in court. As amended in 2004, the statute autho rizes an award of attorneys' fees.

(I) to a prevailing party who is the parent of a child with a disability;

(II) to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or

(III) to a prevailing State educational agency or local educational agency against the attorney of a parent, or against the parent, if the parent's complaint or subsequent cause of action was presented for any improper pur pose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

20 U.S.C. 1415(i)(3)(B)(i) (emphasis added). In addition, with limited exceptions, the current version of IDEA mandates that a court reduce the amount of attorneys' fees if "the parent, or the parent's attorney, during the course of the action or proceeding, unreasonably pro tracted the final resolution of the controversy." 20 U.S.C. 1415(i)(3)(F). Those provisions reflect Con gress's understanding that parents are real parties in interest in IDEA litigation.

The wording of the 2004 amendments is significant in three respects. First, as amended, IDEA refers to the parent, not the child, as the "prevailing party." 20 U.S.C. 1415(i)(3)(B)(i)(I). Before 2004, the statute re ferred to both children and parents as prevailing par ties. Compare 20 U.S.C. 1415(i)(3)(B) (2000) (authoriz ing an award of attorneys' fees "to the parents of a child with a disability who is the prevailing party") with 20 U.S.C. 1415(i)(3)(E) (2000) (authorizing an attorneys' fees award to "a parent who is the prevailing party and who was substantially justified in rejecting the settle ment offer"). The 2004 amendments, however, omitted any reference to the child as a prevailing party. This omission bolsters the conclusion that Congress viewed parents as real parties in interest when they pursue IDEA claims in court.

Second, although IDEA repeatedly refers to the "at torney of a parent," the "parent's attorney" or the "at torney representing the parent," 20 U.S.C. 1415(i)(3)(B) and (F), the current version of the statute never men tions the child's attorney. Before the 2004 amendments, the statute referred both to "the attorney representing the parent," 20 U.S.C. 1415(i)(3)(F)(iv) (2000), and "the attorney representing the child." 20 U.S.C. 1415(b)(7) (2000). The 2004 amendments, however, deleted the phrase "the attorney representing the child" and re placed it with "the attorney representing a party." 20 U.S.C. 1415(b)(7). It is unlikely that the 2004 amend ments would have omitted a reference to the child's at torney while including multiple references to the par ent's attorney, if Congress viewed the child as the only interested party in a civil action under IDEA.

Finally, by referring to "the parent's complaint or subsequent cause of action," 20 U.S.C. 1415(i) (3)(B)(i)(III) (emphasis added), the 2004 amendments signal that Congress viewed parents as real parties in interest when they file both administrative complaints and civil actions under IDEA. That language also dem onstrates that Congress viewed the civil cause of action authorized by Section 1415(i)(2)(A) as inherently con nected to the filing of the administrative complaint, which, as discussed, Congress plainly envisioned would be filed by parents as real parties in interest to the ad ministrative proceedings. See pp. 12-13, supra. Fur thermore, while the language of the 2004 amendments reaffirms that parents are real parties in interest in IDEA litigation, nothing in the statute (or legislative history) suggests that this represented any shift in Con gress's understanding as to how IDEA was always in tended to work.8

3. In support of the court of appeals' decision, re spondent has relied heavily on congressional inaction. See Br. in Opp. 5-6, 14-15. In May 2004, the Senate passed a bill that would have amended 20 U.S.C. 1415(i) to provide that "a parent of a child with a disability may represent the child in any action under [IDEA] in Fed eral or State court, without the assistance of an attor ney." 150 Cong. Rec. S5430 (daily ed. May 13, 2004) (emphasis added). The Conference Committee-without explanation-omitted this provision from the final ver sion of the IDEA amendments that Congress enacted in 2004. See H.R. Conf. Rep. No. 779, 108th Cong., 2d Sess. 220 (2004). This failed amendment, however, "lacks persuasive significance." Central Bank of Den ver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187 (1994).

As this Court has emphasized, "failed legislative pro posals are 'a particularly dangerous ground on which to rest an interpretation of a prior statute.'" Central Bank of Denver, 511 U.S. at 187 (citation omitted). "Congres sional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change." Ibid. (citation omitted). At any rate, even if the failed Senate amendment were relevant to whether parents may proceed pro se on behalf of their children, it does not undermine the conclusion that parents may repre sent themselves in federal court on their own substan tive and procedural IDEA claims. Indeed, one natural inference is that Congress ultimately concluded that the Senate amendment was unnecessary because other pro visions of IDEA confirm that parents are real parties in interest entitled to pursue their own substantive and procedural IDEA claims in court, and 28 U.S.C. 1654 already provides that such parties may proceed pro se. See pp. 20-23, supra.

4. Respondent also has relied on the canon of ex pressio unius est exclusio alterius, pointing out that although IDEA contains a provision expressly allowing parties to proceed in an administrative hearing without an attorney, see 20 U.S.C. 1415(h),9 the statute contains no comparable provision pertaining to court actions. See Br. in Opp. 11-12. The expressio unius canon has lim ited force, see Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003), and thus cannot overcome the persua sive textual evidence discussed above. But the canon has no application when there is an independent expla nation for Congress's failure to address the issue explic itly in one of the contexts. Here, the omission reveals nothing about whether Congress intended to authorize parents to proceed pro se in federal court. Congress had no need to address the issue in IDEA because-unlike the situation with respect to administrative proceed ings-another federal statute (28 U.S.C. 1654) already provided parties the right to pursue their own claims pro se in federal lawsuits.

C. Because Procedural And Substantive Claims Under IDEA Are Inextricably Intertwined, The Act Should Not Be Interpreted To Allow Parents To Proceed Pro Se To Enforce Procedural, But Not Substantive, Rights

Unlike the Sixth Circuit, which appears to prohibit parents from proceeding pro se in federal court on any type of IDEA claim (see pp. 5-6, supra), the Third Cir cuit has held that parents may litigate their own proce dural claims pro se, but are barred from proceeding without an attorney when bringing substantive IDEA claims relating to the provision of a free appropriate public education to their children. Collinsgru v. Pal myra Bd. of Educ., 161 F.3d 225, 227, 230-236 (3d Cir. 1998). The Third Circuit's approach-under which the right to proceed pro se hinges on whether the claim is deemed procedural or substantive-not only conflicts with the plain language and structure of the statute (see pp. 12-23, supra), but also is unworkable in practice.

"[P]rocedural and substantive rights under IDEA are inextricably intertwined," and thus the "distinction between procedural and substantive claims" under the statute "is often far from clear." Maroni, 346 F.3d at 253, 255. This Court recognized as much in Rowley, when it observed that "Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process * * * as it did upon the measurement of the resulting IEP against a substantive standard." 458 U.S. at 205-206. The stat ute's clear emphasis on procedural guarantees, the Court concluded, "demonstrates the legislative convic tion that adequate compliance with the procedures pre scribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." Id. at 206.

The connection between procedural guarantees and substantive rights is underscored by the 2004 amend ments to IDEA, in which Congress limited the grounds on which an administrative hearing officer could grant relief for IDEA violations. Those amendments added a new provision mandating that "a decision made by a hearing officer [in a due process hearing] shall be made on substantive grounds based on a determination of whether the child received a free appropriate public edu cation." 20 U.S.C. 1415(f)(3)(E)(i). Congress provided that, under this provision, procedural violations are deemed sufficiently serious to qualify as a denial of the substantive right to a free appropriate public education where the "procedural inadequacies" (1) "impede[] the child's right to a free appropriate public education"; (2) "significantly impede[] the parents' opportunity to par ticipate in the decisionmaking process"; or (3) "caused a deprivation of educational benefits." 20 U.S.C. 1415(f)(3)(E)(ii). See H.R. Conf. Rep. No. 779, supra, at 219 (explaining that the new provision "allows proce dural violations to rise to the level of a substantive viola tion under certain circumstances").

Similarly, several courts of appeals have held that parents who bring procedural claims under IDEA can obtain relief in federal court only if they demonstrate that the procedural violations interfered with the sub stantive right to a free appropriate public education. See Kingsmore v. District of Columbia, 466 F.3d 118, 119 (D.C. Cir. 2006) (joining "the majority of other cir cuits in ruling that a claim based on a violation of IDEA's procedural requirements 'is viable only if those procedural violations affected the student's substantive rights'") (quoting Lesesne v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006)).10 Consequently, even where the parents' complaint focuses on alleged proce dural violations, the action will typically turn on whether there has been a denial of the substantive right to a free appropriate public education. See Knable v. Bexley City Sch. Dist., 238 F.3d 755, 764-767, 771 (6th Cir.) (conclud ing that violation of parents' procedural rights consti tuted a substantive denial of a free appropriate public education, entitling parents to reimbursement for the costs of sending their son to private school), cert. de nied, 533 U.S. 950 (2001).

Because procedural and substantive IDEA claims are inextricably intertwined, this Court should reject as unworkable an interpretation of the statute that would make the right to proceed pro se dependent on whether the parents' claims are deemed procedural or substan tive. Instead, consistent with congressional intent, the Court should construe IDEA to permit parents to pur sue both procedural and substantive claims pro se in federal court.

D. Policy Concerns About The Burdens Of Meritless Litiga tion Do Not Justify Adopting An Interpretation Of IDEA At Odds With Its Plain Language And Structure

Respondent has argued (Br. in Opp. 15-16), as a pol icy matter, that permitting non-attorney parents to pro ceed pro se may increase the number of meritless IDEA lawsuits and thereby burden school districts and divert scarce resources from the education of children with disabilities. It is true that Congress expressed a con cern about ensuring that litigation costs do not detract from the ultimate objectives of the program, but the balancing of such policy objectives is for Congress, not the courts. See Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Res., 532 U.S. 598, 610 (2001) (refusing to "disregard the clear legislative language" on the basis of "policy arguments").

Congress may have determined that prohibiting par ents from proceeding pro se would have even greater countervailing costs because it could deny some individ uals who have meritorious IDEA claims their day in court. Some lower courts have recognized the difficulty that many parents of disabled children face in finding attorneys willing to represent them in IDEA actions. See Collinsgru, 161 F.3d at 236 ("most attorneys will be reluctant to take on cases like this, characterized as they are by voluminous administrative records, long adminis trative hearings, and specialized legal issues, without a significant retainer"); see also Maroni, 346 F.3d at 257- 258 & n.9. It is for Congress to decide whether the bur den imposed by meritless litigation outweighs the risk that proper claimants will be denied their day in court.

Moreover, Congress has demonstrated that it is sen sitive to the costs imposed by IDEA litigation and has amended the statute to address those costs. In that re gard, the 2004 amendments to IDEA may reduce the risk that pro se lawsuits will unduly burden school dis tricts. As amended in 2004, IDEA expressly allows States and local school districts to recover attorneys' fees from a parent "if the parent's complaint or subse quent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation." 20 U.S.C. 1415(i)(3)(B)(i)(III). This provision may serve as a check on meritless pro se lawsuits or possibly defray their costs. If the 2004 amendments prove to be an inad equate deterrent to frivolous IDEA lawsuits, Congress can further amend the statute to address the problem. But the risk of such lawsuits in itself provides no basis to override the clear indications of Congress's intent to permit parents to proceed pro se in IDEA litigation.

CONCLUSION

The judgment of the court of appeals should be re versed.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

WAN J. KIM
Assistant Attorney General

GREGORY G. GARRE
Deputy Solicitor General

DAVID B. SALMONS
Assistant to the Solicitor
General

DAVID K. FLYNN
GREGORY B. FRIEL
Attorneys

KENT D. TALBERT
General Counsel
Department of Education

DECEMBER 2006

1 Congress reauthorized and amended IDEA in 2004. See Individu als with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 (to be codified at 20 U.S.C. 1400 et seq.). Unless otherwise indicated, citations are to the statute as amended in 2004.

2 When this Court decided Doe and Burlington, the statute was known as the Education of the Handicapped Act. Congress changed the name of the statute to IDEA in 1990. See Pub. L. No. 101-476, §§ 1, 901(a)(1), 104 Stat. 1103, 1141.

3 The parents' right to file an IDEA action could stem, for example, from Rule 17(c) of the Federal Rules of Civil Procedure, which permits a parent or other guardian to "sue or defend on behalf" of a minor child. If a child is a "party aggrieved" under IDEA, a parent could rely on Rule 17(c) to file an IDEA suit in federal court on the child's behalf. But when a parent sues as "next friend" of his or her minor child, "[i]t is the infant, and not the next friend, who is the real and proper party." Morgan v. Potter, 157 U.S. 195, 198 (1895); cf. Whitmore v. Arkansas, 495 U.S. 149, 163 (1990). Thus, when parents sue solely as representa tives of their children under Rule 17(c), the parents are not "parties" who are "conduct[ing] their own cases" for purposes of 28 U.S.C. 1654, and they may not represent other individuals, including their children, in court. See, e.g., Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 232 (3d Cir. 1998); Myers v. Loudoun County Pub. Schs., 418 F.3d 395, 401 (4th Cir. 2005); Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (per curiam). As discussed, the parents in this case sought to litigate under IDEA in their own right. See pp. 4-5, supra.

4 The fact that IDEA is Spending Clause legislation, while relevant in other contexts, see, e.g., Arlington Cent. School Dist. Bd. of Educ. v. Murphy, 126 S. Ct. 2455, 2459 (2006), does not affect the analysis here. It is 20 U.S.C. 1654, rather than any provision of IDEA, that provides parties, including parents, the right to proceed pro se in federal court, and 20 U.S.C. 1654 is not Spending Clause legislation.

5 As amended in 2004, the provision now states that

Before the date of enactment of the Education for All Handi capped Children Act of 1975 * * * , the educational needs of millions of children with disabilities were not being fully met because * * * a lack of adequate resources within the public school system forced families to find services outside the public school system.

20 U.S.C. 1400(c)(2)(D) (emphasis added).

6 While Congress presumably assumed that parents would oversee litigation involving the rights of their children and so might be the target of settlement offers in that context, the repeated focus on the rights of the parents, here and throughout the statute, and the classification of parents as the "prevailing party" indicate that the parents' rights are more than merely derivative.

7 The statutory language cited above appears in both the pre- and post-2004 versions of the statute. The pre-2004 version of the statute also authorized the award of attorneys' fees "to the parents of a child with a disability who is the prevailing party." 20 U.S.C. 1415(i)(3)(B) (2000). That provision, however, does not affect the other provision recognizing that parents may be a prevailing party, because the fact is that either parents or children, or both, may be prevailing parties under IDEA. In any event, in 2004, Congress amended Section 1415(i)(3)(B) to provide for attorneys' fees "to a prevailing party who is the parent of a child with a disability." 20 U.S.C. 1415(i)(3)(B)(i)(I).

8 Although the Court need not decide which version of the statute applies here, the 2004 amendments govern petitioners' case with respect to the question presented. Those amendments took effect on July 1, 2005, see Pub. L. No. 108-446, § 302(a)(1), 118 Stat. 2803, before the filing of petitioners' merits appeal to the Sixth Circuit. Thus, the statute as amended in 2004 was the version in effect at the time of the proceedings in the court of appeals. Contrast Schaffer, 126 S. Ct. at 532 (applying pre-2004 version of IDEA because that version "was in effect during the proceedings below"). Moreover, there was no reason not to give that provision immediate effect in pending cases. Under Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994), a statute operates retroactively only if "it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Ibid. Respondent surely cannot claim any of its interests are implicated. The opposing party would hardly seem to have a vested interest in precluding the other party from proceeding pro se. Nor is applying this rule to pending cases a retroactive application at all, because the relevant event for judging retroactivity is the ongoing self-representation prospectively. See id. at 290-293 (Scalia, J., concurring); cf. Martin v. Hadix, 527 U.S. 343, 360-361 (1999) (applying attorneys' fees limitations of Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321, in pending cases to legal services provided after effective date of the Act). Thus, applying the 2004 amendments is consistent with Landgraf. In any event, the 2004 amendments did not change the law with respect to pro se representation because, for the reasons explained above, parents enjoyed the right to proceed pro se in federal court under the version of IDEA before 2004. The 2004 amendments simply make the law clearer.

9 "Any party to [an administrative] hearing * * * shall be accorded * * * the right to be accompanied and advised by counsel and by in dividuals with special knowledge or training with respect to the problems of children with disabilities," and "the right to present evi dence and confront, cross-examine, and compel the attendance of witnesses." 20 U.S.C. 1415(h). These procedural rights apply to "all parties," Schaffer, 126 S. Ct. at 532, including local educational agencies.

10 Accord Maroni, 346 F.3d at 254 (1st Cir.); DiBuo v. Board of Educ. 309 F.3d 184, 190-191 (4th Cir. 2002); Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 811-812 (5th Cir. 2003); Nack v. Orange City Sch. Dist., 454 F.3d 604, 609 (6th Cir. 2006); T.S. v. Independent Sch. Dist. No. 54, 265 F.3d 1090, 1095 (10th Cir. 2001), cert. denied, 535 U.S. 927 (2002); School Bd. of Collier County v. K.C., 285 F.3d 977, 981-982 (11th Cir. 2002).