Families get break in special ed cases Top court: Parents don't need lawyer Tuesday, May 22, 2007 • BY JOHN MOONEY • Star-Ledger Staff In the often-litigious world of special education, one of the big challenges facing a parent suing a school district can be finding, and affording, a lawyer. Jeff Podowitz knows that all too well after his dispute with the Cherry Hill schools on behalf of his son, who is classified with multiple disabilities, including dyspraxia, a neurological disorder that impedes his speech. "We were parents realizing there wasn't a lot of help out there," he said yesterday. "The lawyers can pick and choose the cases ... It wasn't just finding them, but finding some who would take the case seriously." Across a decade, the Podowitz family hired a variety of attorneys before arguing the case on their own, a right that won a big boost from the U.S. Supreme Court yesterday when it ruled that parents of the disabled do not need a lawyer to sue their school districts. The decision was praised by family advocates who said it allows parents to avoid the obstacles of finding a lawyer -- not to mention paying the often-steep legal fees. Few on either side of the debate said they expected the ruling would lead to a spike in the number of disputes; a parent taking a district to court without a lawyer remains an intimidating task, officials and others said. But advocates and others said such an option is at least now clarified under the law. Previously, the rules were set by individual courts and agencies. "In many ways, it affects every classroom in America and affects the ability of every parent to say, 'This is what I want for my child,'" said attorney Ilise Feitshans, who filed a friend-of-the-court brief in the latest case on behalf of Podowitz family. "This is fundamental stuff." Each year, nearly 1,000 complaints are filed in New Jersey seeking due process hearings over the placement or services provided a child. Those cases go to administrative judges, before whom a parent may argue the case. But once in state or federal court, various appeals courts have found that a family must have a lawyer to proceed. New Jersey has more than 215,000 children who are classified with a disability, from speech or learning disorders to severe cognitive and physical disabilities. In the Ohio case that the Supreme Court ruled on yesterday, Jeff and Sandee Winkelman argued that they were effectively denied access to the courts because they could not afford a lawyer in their dispute with the Parma, Ohio, school district over the education of their son, Jacob. The parents contested the Parma schools' plan to educate Jacob at a public school and instead said they wanted the district to pay for his $56,000 yearly enrollment in a private school that specializes in educating autistic children. The Winkelmans spent about $30,000 on legal fees since first contesting Jacob's treatment in 2003. Jeff Winkelman has taken a second job, while his wife has researched previous court rulings and wrote her own filings. The child's placement in the private school was not at issue before the high court, but rather his parents' right to argue on his behalf in federal court. In writing for the court, Justice Anthony Kennedy said parents -- just as their children -- have legal rights under the Individuals With Disabilities in Education Act, the main federal special education law. "It is not a novel proposition to say that parents have a recognized legal interest in the education and upbringing of their child," he wrote. Justices Antonin Scalia and Clarence Thomas wrote separate dissenting opinions. They did not oppose the Winkelmans being able to pursue the case on their own, but said it should be on procedural disputes rather than the broader issue of whether their child's education is adequate. The ruling was the second recent decision by the high court to dictate parents' rights in the frequent tug-of-war with districts over special education. In 2005, the court dealt what many said was a blow to families when it ruled that finding the burden of proof in a special education complaint rests with the complaining party, which is typically the parents. That ruling, in a case known as Shaffer vs. Weist, spurred special education advocates and others in New Jersey to try to add new protections for families, including a bill now moving through the Legislature that would place the burden back on school districts. "We have seen a lot of anecdotal evidence (since the Shaffer ruling) where districts say to parents, 'The burden is on you and we'll see you in court,'" said Ronald Chen, the New Jersey public advocate and a leader in the legislative push. Star-Ledger wire services contributed to this report. John Mooney may be reached at jmooney@starledger.com or (973) 392-1548. © 2007 The Star-Ledger. Used by NJ.com with permission.