Winkelman: Scalia frets over pro se burden on courts


   Yesterday’s oral argument in the Winkelman IDEA “prose-parent” case was apparently quite interesting.  Usually, a person is only allowed to appear at court pro se for himself or herself, and not for another person.  Winkelman asks whether the parent can appear without a lawyer to represent their child to appeal a special ed ruling by a school district (prior post). You can read the oral argument transcript here (via SCOTUSBlog). 

Greenhouse reported that “While several justices tipped their hands, it was difficult to read the court as a whole. Justice Stephen G. Breyer said Mr. Bergeron would have an ‘uphill battle’ to persuade him that despite the statute’s numerous references to parents, the phrase ‘party aggrieved’ should be interpreted as applying only to children and not to parents.” And

houseG “Justice David H. Souter told Mr. Bergeron [the school district’s lawyer] that the statutory right to a ‘free appropriate public education’ appeared to be ‘a right of the family group, the parents and the child together, rather than the right of the child alone’.”

Yesterday’s NYT posting of the AP report stated that several justices had expressed concerns about letting more people appear in federal cases self-represented.   Today’s report states that “Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Antonin Scalia seemed most skeptical of the parents’ claims. Alito voiced concern that parents who represent themselves or their children would have ‘difficulty maintaining emotional detachment’ from the lawsuit.”

It appears that Justice Antonin Scalia raised the most specific concerns over having more self-represented litigants.  According to the NYT:

scaliaGestureHeraldS  Justice Antonin Scalia told [Jean Claude] André, the Winkelmans’ lawyer, that lawyers “protect the court from frivolous suits.” When suits are brought without lawyers, “we make a lot more work for federal district judges,” he added.

Mr. André’s response that “a capable district judge can look at the case and decide whether the school should have complied with the statutory mandate” did not satisfy Justice Scalia.

“And do it right after reading pro se prisoner petitions, right?” the justice said, using the legal term for a case filed without a lawyer. “You’d have a nice evening’s work,” he added.

“We think that pro se parents are quite different from pro se prisoners,” Mr. André replied.

As you might imagine, this shlep Editor agrees with the Winkelmans.


  1. Kay

    March 1, 2007 @ 11:11 pm


    hmmm…. Scalia doesn’t live in the real world as does a Pro Se~
    Try finding an attorney for a medmal case- after talking with and being turned down by 50 of them – what can a plaintiff do?
    I recently checked the Sacramento CA case index- I punched in “Hospital” and up came 3 or 4 pages of current cases.

    Guess what…….. NINE OUT OF TEN – were In Pro Per [Pro Se] That is incredible.
    But why is that?? Because lawyers won’t start up their PORSCHE for anything under the cap of 250K

    Is a plaintiff supposed to just bite the bullet and live with their injury because they cannot find a a lawyer?

    Scalia, get real!

  2. MaryWhisner

    March 2, 2007 @ 7:19 pm


    This reminds me of one of the (many) interesting chapters in Legal Ethics Stories (KF306.A4 L43 2006 at Reference Area): “In re Arons: the plight of the ‘unrich’ in obtaining legal services, by David C. Vladeck. A working paper version of the chapter is on SSRN for download. Prof. Vladeck begins:

    Marilyn Arons is nobody’s fool. Tall, with piercing blue eyes and a measured, powerful voice, she is an imposing presence in a courtroom. She is a riveting speaker. Her arguments are not simply lucid; they are forceful, well-reasoned, and almost always irresistible. She is in total command. It is no surprise that she wins most of her cases. And it is no surprise that for twenty-five years she has struck fear in the hearts of her adversaries — lawyers for school boards in New Jersey, Pennsylvania, New York, and, for a brief period, Delaware. Her clients — disabled children and their families — revere her. More than any other advocate, she has shaped the law governing the educational rights of disabled children. What makes this story even more remarkable is that Marilyn Arons is not a lawyer.

    Special ed can be expensive, so schools don’t always provide what a child needs without some pressure. IDEA sets up an administrative procedure to resolve disputes between families and school districts.

    At IDEA hearings involving significant issues, like the placement of the child in a private school, the school boards and the states are represented by counsel. Rarely can parents find or afford lawyers. Anticipating this disparity, IDEA says that parents may be “accompanied and advised” in these proceedings “by counsel and by individuals with special knowledge and training with respect to children with disabilities. Mrs. Arons is an individual with special knowledge and training, with a record of success in due process hearings in many jurisdictions.”

    She helped families in New York, New Jersey, and Pennsylvania navigate the system, but when she started handling hearings in Delaware, the bar prosecuted her for unauthorized practice of law (UPL). And the Delaware Supreme Court agreed. In re Arons, 756 A.2d 867, Delaware courts link (Del. 2000).

    It’s quite a gripping — and disturbing — story about the barriers to access to justice.

  3. Shannon Kernahan

    May 22, 2007 @ 2:49 pm


    I am not a lawyer. I am not a teacher. I am a mother.
    A mother of a child with Down Syndrome.
    A child who I can confidently ascertain will never be a..
    menace to society

    Yet, some of the powers that be would rather waste tax payers money on all of those….

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