October 9, 2003
The Disabilities Rights Center and its national membership organization the National Association of Protection and Advocacy Systems (NAPAS) filed an Amici Curiae (Friend of the Court) brief in July 2003 in the special education case of Maroni v. Pemi-Baker Regional School District. The case is currently in the US First Circuit Court of Appeals, on appeal from a decision in the US District Court, District of New Hampshire. Attorneys Wendy Paget and Colleen Cronin represented the DRC and NAPAS in this case.
The Maroni case concerns a specific provision in the Individuals with Disabilities Education Act (IDEA) that guarantees a right to sue in federal court for a party who is not satisfied with the outcome of a due process hearing. Central to this case is a parent’s status as a “party” in court
actions brought concerning their child’s special education under IDEA, and whether they therefore may proceed pro se for their child: that is, on their child’s behalf and without an attorney, in federal court.
The DRC represents many children and parents in special education cases in New Hampshire, both at the due process appeal level and in the courts. There are many more individuals who seek legal assistance from the DRC that do not receive legal representation due to the limited resources of the DRC. Private attorneys willing to take on special education cases are scarce. Therefore many parents, if they want to file an appeal under the IDEA, must proceed without an attorney. Since children cannot represent themselves in court, if parents are not allowed to proceed pro se on behalf of their child and cannot obtain legal representation, these children will be denied access to protection of their rights by the courts.
The US First Circuit Court of Appeals decided the case on October 9, 2003. It found in favor of the plaintiff, Maroni, and reversed and remanded the case to the US District Court. It ruled that the parents’ lawsuits should not have been dismissed because the parents proceeded without a lawyer representing them (pro se). It found that under the IDEA, parents qualify as “parties aggrieved”, and can bring suit for both procedural and substantive issues. It noted that the aim of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education and related services designed to meet their unique needs and prepare them for employment and independent living”. 20 USC 1400(d)(1). The court stated in its decision, “A rule prohibiting pro se representation would subvert Congress’s intent by denying many children with special needs their day in court”. It referenced the amici brief submitted by the DRC and NAPAS in a footnote, stating:
“The amici brief…sets forth the scarcity of representation available to families seeking assistance with special education matters. The DRC, which is New Hampshire’s Protection and Advocacy Agency (P&A), reported that it could provide full representation in only 35 of 390 special education inquiries in 2002. Other P&As reported similar shortages nationwide. Since 2000, Alaska’s P&A provided representation in only 183 of 1,092 requests for help in special education matters, and Arizona’s P&A did so in only 300 of 4,800 cases. Since October 1999, Michigan’s P&A handled only 840 out of 6,015 education-related requests. Massachusetts’ P&A provides representation in less than 10% of special education cases, and Wisconsin’s P&A does so in about 25% of cases that it deems meritorious. In New York, one full-time and one part-time attorney handle over 2,000 requests for help in special education cases.
When parents cannot obtain representation from P&As, they face the even more difficult task of finding private representation. In the amici brief, P&As testify to the shortage of such private attorneys on their referral lists: Michigan has eight, Rhode Island has six, Wisconsin has fewer then ten, Texas has twenty-nine, and Arizona has only one. P&As note that most lawyers are reluctant to accept cases from families seeking judicial review of IDEA due process hearings because such cases require review of extensive administrative records. P&As observe that most lawyers will refuse to take such cases unless they represented the family in the due process hearing.”