And the impact of the Winkelman decision is. . . .

The U.S. Supreme Court’s May 21, 2007 decision in Winkelman v. Parma City School District says parents are permitted to represent their own special education interests in federal court.  Parents, schools, and the courts will, of course, feel the impact of this decision; only the degree of impact, particularly the amount of litigation, remains uncertain.

The Court’s actual pronouncement is not very remarkable. That parents have certain special education rights has never really been in doubt. All the decision adds is that parents have the right to enforce IDEA’s “other mandates” such as the child’s right to FAPE. “Parents may seek,” the Court wrote at page 15, “to enforce this mandate through the federal courts, we conclude, because among the rights they enjoy is the right to a free appropriate public education for their child.” (Emphasis added.)  

In other words, parents have the right to “enforce” a right, that is, the child’s right to FAPE. 

In my view, this is a case where the dissent got it right:

the majority decision takes a fundamental common law rule, complete eviscerates it, and does so based on reading between the lines despite no clear statutory text intending to upset existing law. Be that as it may, the dissent is not now the law.

In the end, parent attorneys probably will use the Court’s broad words of substantive parental rights to drive new due process issues, Section 1983 Civil Rights litigation and money damages claims. Ultimately, this concern, too, will come before the Supreme Court as the Courts of Appeal are split on whether a simple violation of IDEA gives rise to money damages, either directly or via § 1983. More on that later when I discuss A.W. v. The Jersey City Public Schools in "Money damages, disabilities, and education."

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