Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-23-1998

Collinsgru v. Palmyra Bd of Ed
Precedential or Non-Precedential:

Docket 96-5807




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Filed November 23, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-5807

ROBERT COLLINSGRU; MAURA COLLINSGRU,
on behalf of their son, Francis Collinsgru,
Appellants

v.

PALMYRA BOARD OF EDUCATION

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 96-cv-00457)

Argued: November 6, 1997

Before: BECKER,* ROTH, Circuit Judges, and
DIAMOND, District Judge.**

(Filed November 23, 1998)

       PAUL A. LEVY, ESQUIRE (ARGUED)
       DAVID C. VLADECK, ESQUIRE
       Public Citizen Litigation Group
       1600 - 20th Street, NW
       Washington, DC 20009

Attorneys for Appellants



_________________________________________________________________

*Honorable Edward R. Becker, United States Circuit Judge for the Third
Circuit, assumed Chief Judge status on February 1, 1998.

**Honorable Gustave Diamond, United States District Judge for the
Western District of Pennsylvania, sitting by designation.
       JOSEPH F. BETLEY, ESQUIRE
       CRAIG D. BAILEY, ESQUIRE
        (ARGUED)
       Capehart & Scatchard, P.A.
       8000 Midlantic Drive, Suite 300
       Mt. Laurel, NJ 08054

       Attorneys for Appellee

       ERIC R. NEISSER, ESQUIRE
       Constitutional Litigation Clinic and
        Special Education Clinic
       Rutgers Law School
       15 Washington Street
       Newark, NJ 07102

       Attorney for Amici Curiae

OPINION OF THE COURT

BECKER, Chief Judge.

Robert and Maura Collinsgru ("the Collinsgrus"), acting
on behalf of their son, Francis Collinsgru ("Francis"), appeal
from the district court's dismissal of their son's complaint
against the Palmyra Board of Education ("Palmyra"). The
Collinsgrus sought to represent Francis in a civil suit
following a state administrative decision to deny their son
special education services under the Individuals with
Disabilities Education Act, 20 U.S.C. S 1400 et seq. (1994 &
Supp. 1997) (the "IDEA").1 The district court found that it
was bound by our decision in Osei-Afriyie v. Medical College
of Pa., 

, 882 (3d Cir. 1991), in which we held
that a non-attorney parent could not represent his children
in a tort action in federal court. After holding that the
Collinsgrus could not represent Francis themselves, the
court gave the parents thirty days in which to hire an
attorney for him. When they failed to do so, the district
court dismissed Francis's claims without prejudice for
failure to prosecute. On appeal, the Collinsgrus contend
_________________________________________________________________

1. Cites to the IDEA will be to the 1997 version of the Act unless
otherwise specified.

                                2
that Osei-Afriyie does not control because: (1) the IDEA
creates the same rights in parents that it creates in
children; (2) the claims in their son's complaint are
functionally their own; and (3) they should therefore be
allowed to proceed pro se on those claims.

We first must consider whether we have jurisdiction over
this appeal, in light of the fact that the district court's order
was neither a final resolution on the merits nor an
interlocutory order of the type clearly appealable under 28
U.S.C. S 1292. We conclude that we have jurisdiction under
the collateral order exception to 28 U.S.C. S 1291. On the
merits, we conclude that the IDEA does not confer joint
substantive rights on parents and their children. We agree
that the IDEA grants parents ample procedural rights to
ensure active parental involvement at all stages of the
development and implementation of a child's individual
educational program, even through the administrative
process. We think, however, that Congress's decision to
endow parents with these procedural rights should not be
read, under the language of the IDEA, to imply that parents
also possess the same underlying substantive rights that
their children possess. Therefore, we do not think that the
Collinsgrus may properly be said to be suing under their
own cause of action. We conclude, in light of the IDEA's
language and the statutory and common law rules guarding
against non-attorney representation of another, that
parents seeking to enforce their child's substantive right to
an appropriate education under the IDEA may not
represent their child in federal court.

I. Background

At all relevant times, the Collinsgrus resided in Palmyra,
New Jersey, and Francis attended the Palmyra Public
Schools. The Collinsgrus maintain that Francis is learning
disabled, and needs to receive an education that will
accommodate his learning disabilities, but the School
Board's Child Study Team decided that he was ineligible to
receive special education services. Accordingly, the
Collinsgrus sought special education services through the
administrative procedures established by the IDEA. Under
the express provisions of the IDEA, the Collinsgrus were

                                3
able to participate in the administrative proceedings
without legal representation, though they engaged the
assistance of a non-lawyer expert. See 20 U.S.C.
S 1415(h)(1). Following a nineteen-day hearing, the
Administrative Law Judge ("ALJ") determined that Francis's
educational difficulties were not severe enough to warrant
special services.

The Collinsgrus, proceeding pro se, filed a civil suit
contesting this determination in the District Court for the
District of New Jersey. 20 U.S.C. S 1415(i)(2)(A). In their
initial complaint, the Collinsgrus alleged that Palmyra had
inadequately tested Francis for a disability and that the
School Board had interfered with an independent
evaluation of his needs. In addition, they contended that
the decision by the ALJ was contrary to the law and to the
record in the case, and that the ALJ had "manufactured"
testimony. Finally, they asserted that the decision was
tainted by the public policy position of the State
Commissioner of Education that too many students in New
Jersey were being labeled as learning disabled. The Board
answered the complaint, but also objected by letter to the
fact that, rather than hiring a lawyer to represent Francis,
the Collinsgrus were attempting to represent him
themselves. In response, the Collinsgrus amended the
caption of their complaint to emphasize that they were
asserting their own rights as parents under the IDEA, as
well as their son's rights, to ensure that their son received
the free, appropriate education guaranteed by the Act.

The Collinsgrus acknowledge that they would prefer to be
represented by experienced counsel rather than continue to
pursue their appeal in the federal district court pro se.
Although the Collinsgrus are represented by attorneys from
the Public Citizen Litigation Group in their appeal before
this Court, these attorneys have entered their appearance
solely for the purpose of litigating the regionally and
nationally important question of the Collinsgrus' right to
proceed pro se before the district court. The Collinsgrus
concede that they do not qualify for appointment of counsel
under the in forma pauperis statute, 28 U.S.C. S 1915
(1994). However, because of the magnitude of this litigation,
the Collinsgrus explain that they cannot afford to retain an

                                4
attorney on a normal fee basis to handle their civil case,
nor have they been able to locate an attorney willing to take
their case on a contingent fee or pro bono arrangement.

The district court held that the Collinsgrus were not
entitled to represent Francis pro se in the civil action,
reasoning that this result was compelled by our decision in
Osei-Afriyie. The district court also rejected the Collinsgrus'
effort to characterize their IDEA appeal as an assertion of
their own claims. Rather, the court ruled, Francis was the
real party in interest and must be represented by an
attorney. The court gave the Collinsgrus thirty days to
retain counsel, prescribing that, if counsel were not
retained, Francis's claims would be dismissed pursuant to
Fed. R. Civ. P. 41(b) for failure to prosecute.

When the Collinsgrus failed to retain counsel, the district
court dismissed Francis's claims, staying the parents'
claims pending resolution of the present appeal. Although
the Collinsgrus sought certification of an interlocutory
appeal under 28 U.S.C. S 1292(b) (1994), the district court
refused to certify the issue. The court did, however, advise
the Collinsgrus that they could invoke the collateral order
exception identified in Cohen v. Beneficial Indus. Loan
Corp., 

(1949), in order to seek immediate
interlocutory review under 28 U.S.C. S 1291 (1994). The
Collinsgrus then filed a motion in the district court
requesting that it clarify which claims they could maintain
as parents and which only their son could maintain. The
district court declined to provide this clarification,
concluding that such a ruling would constitute an advisory
opinion. This appeal followed.

II. Appellate Jurisdiction and Standard of Review

As a threshold matter, we must determine whether we
have jurisdiction to hear this appeal. The district court
dismissed only Francis's claims for failure to prosecute; the
Collinsgrus appeal from this dismissal, as well as from the
related determination that the Collinsgrus could not
represent Francis themselves. However, the Collinsgrus also
made certain claims on their own behalf under the IDEA;
the district court stayed these claims until the issue of

                               5
Francis's representation is resolved. As a result, the
challenged order did not finally resolve the merits of this
case, which would have authorized ordinary review under
28 U.S.C. S 1291, nor was the order of an injunctive
nature, such that it would have been immediately
appealable pursuant to 28 U.S.C. S 1292(a). Both the
Collinsgrus and the School Board submit that the question
whether parents may represent their children in federal
civil actions following administrative findings under the
IDEA falls within the collateral order exception to the
requirement of finality imposed by S 1291. Despite the
agreement of both parties, we have an independent
obligation to examine our jurisdiction to hear this appeal.
FW/PBS, Inc. v. City of Dallas, 

, 230-31
(1990).

This Court has jurisdiction over interlocutory appeals
under S 1291 only if the challenged order falls within the
collateral order exception to the finality requirement of
S 1291. An appeal from a non-final order will lie if:

       (1) the order from which the appellant appeals
       conclusively determines the disputed question; (2) the
       order resolves an important issue that is completely
       separate from the merits of the dispute; and (3) the
       order is effectively unreviewable on appeal from afinal
       judgment.

In re Ford Motor Co., 

, 958 (3d Cir. 1997). This
test derives from the Supreme Court's opinion in Cohen v.
Beneficial Indus. Loan Corp., 

(1949).

The first prong is easily met here. It is beyond dispute
that the district court's order of October 29, 1996, denying
the Collinsgrus leave to represent their son in a civil suit
following the administrative denial of special education
rights under the IDEA, leaves no room for further
consideration of this issue by the district court. The court's
order gave the Collinsgrus thirty days to obtain outside
counsel or face dismissal of those claims brought solely on
behalf of Francis, for failure to prosecute. The Collinsgrus
have no further opportunities before the district court to
reopen the question of their ability to represent Francis.

                                6
The second prong is also satisfied. First, the question
whether the Collinsgrus may represent their son in federal
district court is entirely separate from the merits of the
underlying action. The Collinsgrus argue that they are
entitled to represent their son's interests in federal court
proceedings under 28 U.S.C. S 1654 and the IDEA. Review
of this question will not require us to consider the
underlying subject matter of this action -- that is, whether
Palmyra improperly denied Francis appropriate special
educational services and interfered with the parent's
procedural rights. See Devine v. Indian River County Sch.
Bd., 

, 580 (11th Cir. 1997) (stating that
immediate review of parental representation would not
involve the court in the subject matter of the case), cert.
denied, 

(1998).

Under the second prong of the collateral order doctrine,
we must also examine the importance of the issue to be
reviewed. In re Ford Motor 

. "[F]or the
purposes of the Cohen test, an issue is important if the
interests that would potentially go unprotected without
immediate appellate review of that issue are significant
relative to the efficiency interests sought to be advanced by
adherence to the final judgment rule." 

must balance the importance of the Collinsgrus' right to
represent their son in these proceedings with our interests
in finality and in avoiding piecemeal appeals. See 

(citing Lauro Lines S.R.L. v. Chasser, 

,
503 (1989) (Scalia, J., concurring)). Unless appellants are
able to obtain review of the question whether they may
represent their son, it appears that they will be unable to
proceed in the district court on a number of claims.
Moreover, the question of the parents' right to represent
their child under the IDEA, already litigated to the court of
appeals level in other circuits, see infra, is very important
to the administration of the IDEA. Accordingly, we conclude
that the question presently before us is of sufficient
consequence to outweigh our usual interest in finality.

The final prong of the Cohen analysis is less easily met.
This prong requires that the order appealed from be
effectively unreviewable after final judgment. The Supreme
Court has imposed significant restrictions upon

                                7
interlocutory appeals of orders regarding legal
representation. See Richardson-Merrell, Inc. v. Koller, 

(1985) (denying interlocutory appeal from order
disqualifying opposing counsel in civil case); Flanagan v.
United States, 

(1984) (denying interlocutory
appeal from an order granting motion to disqualify counsel
in a criminal case); Firestone Tire & Rubber Co. v. Risjord,

(1981) (denying interlocutory appeal from an
order denying motion to disqualify opposing counsel in a
civil case). The Court of Appeals for the Eleventh Circuit,
facing the same question that we face here, found a
relevant difference between questions of representation by
counsel, which were raised in these Supreme Court cases,
and questions of pro se representation. We agree that the
principles of those cases do not prevent us from exercising
jurisdiction over the question presented in this case.

The Devine court concluded that the question whether a
party may appear pro se in proceedings before a district
court cannot be effectively reviewed on appeal."[T]he right
to represent one's self is effectively lost if not immediately
vindicated," because the harm in erroneously denying a
party leave to proceed pro se is that it injures his dignity
and autonomy, something that cannot later be 

. Although the dignity/autonomy rationale
loses lustre in light of our ultimate holding -- that much of
what the Collinsgrus allege is their own case is actually
their son's -- we believe that a concern with the rationale
is at least colorable in this situation. We also think that
questions of appealability should be decided ex ante and
not ex post.

Finally, we think that the denial of the right to proceed
pro se is analogous to an order denying a litigant leave to
proceed in forma pauperis, which is immediately
appealable. Roberts v. United States Dist. Court for the N.
Dist. of Cal., 

, 845 (1950). Like denial of leave
to proceed in forma pauperis, denial of leave to proceed pro
se in a civil action may operate to bar many litigants from
prosecuting or defending their claims. Because these orders
effectively close the courthouse door to litigants, the
majority of courts to consider the issue have held that
orders denying leave to proceed pro se are immediately

                               8
appealable. See, e.g., C.E. Pope Equity Trust v. United
States, 

(9th Cir. 1987); O'Reilly v. New York
Times, 

(2d Cir. 1982). But see Flora Constr.
Co. v. Fireman's Fund Ins. Co., 

(10th Cir.
1962) (denying interlocutory appeal of court's refusal to
permit company to appear pro se by its non-attorney
president).

We conclude that, because of the impact of the order on
the litigant's case, the district court's order denying the
Collinsgrus leave to represent Francis is effectively
unreviewable on appeal from a final judgment, and hence
we have jurisdiction to hear this appeal.

We review for abuse of discretion a district court's
dismissal for failure to prosecute pursuant to Rule 41(b).
Donnelly v. Johns-Manville Sales Corp., 

, 341
(3d Cir. 1982). However, to the extent that the district
court's dismissal of Francis's claims was based upon its
construction of the IDEA, we will exercise plenary review.
See In re TMI, 

, 1123 (3d Cir. 1995), cert.
denied sub nom Metropolitan Edison Co. v. Dodson, 

(1996).

III. Discussion

A. The Right to Proceed Pro Se

It has long been recognized that a litigant in federal court
has the right to proceed as his or her own counsel. 28
U.S.C. S 1654 (1994) ("In all courts of the United States the
parties may plead and conduct their own cases personally
or by counsel . . . ."). In contrast, under Rule 17 of the
Federal Rules of Civil Procedure, minors are precluded from
determining their own legal actions. Rather, under Rule
17(c), a representative or guardian "may sue or defend on
behalf of the infant." It is, however, well-established in this
Circuit that the right to proceed pro se in federal court does
not give non-lawyer parents the right to represent their
children in proceedings before a federal court. See Osei-
Afriyie v. Medical College of Pa., 

, 883 (3d Cir.
1991). Other circuits follow this rule as well. See 

; Cheung v. Youth Orchestra Found., 

, 61 (2d Cir. 1990); Meeker v. Kercher, 

153, 154 (10th Cir. 1986); Johns v. County of San Diego,

, 876-77 (9th Cir. 1997); Hickey v. Wellesley
Sch. Comm., 

, 

, at *2 (1st Cir.
Dec. 21, 1993) (unpublished disposition).

Our leading case regarding the ability of parents who are
not attorneys to represent their children in federal court
actions is Osei-Afriyie. Francis Osei-Afriyie brought, on
behalf of himself and his two daughters, a number of tort
claims relating to the treatment of his daughters for
malaria. The case came before this court after Osei-Afriyie,
a non-attorney, had represented himself and his daughters
in a trial in the district court. A verdict was entered against
him and his daughters after the jury found that he had not
brought the case within the applicable statute of
limitations. The district court had erroneously failed to
instruct the jury regarding tolling of the statute of
limitations in cases involving minors. We directly attributed
this error to Osei-Afriyie's lack of experience and training as
a 

. Accordingly, we vacated the
district court's judgment to the extent that it adjudicated
the children's claims and remanded these claims. We held
that the Osei-Afriyies could opt to obtain counsel, request
appointment of counsel under the in forma pauperis
statute, or let the children wait until they were old enough
to pursue their own claims pro se, but the children could
not be represented by their father. 

Accord 

; 

.

The requirement of representation by counsel is based
upon two cogent policy considerations. First, there is a
strong state interest in regulating the practice of law.
Requiring a minimum level of competence protects not only
the party that is being represented but also his or her
adversaries and the court from poorly drafted, inarticulate,
or vexatious claims. See Brown v. Ortho Diagnostic Sys.,
Inc., 

, 172 (E.D. Va. 1994) (noting that
"the conduct of litigation by a nonlawyer creates unusual
burdens not only for the party he represents, but also for
his adversaries and the court"). The second consideration is
the importance of the rights at issue during litigation and
the final nature of any adjudication on the merits. Not only
is a licensed attorney likely to be more skilled in the

                               10
practice of law, but he or she is also subject to ethical
responsibilities and obligations that a lay person is not. In
addition, attorneys may be sued for malpractice. See 

additional reasons why we are reluctant tofind
that Congress intended parents to be able to represent their
children in IDEA cases. First, there is a well-established
presumption that Congress is understood to legislate
against a background of common-law principles. "[T]he
courts may take it as given that Congress has legislated
with an expectation that the [common-law] principle will
apply except `when a statutory purpose to the contrary is
evident.' " Astoria Fed. Sav. & Loan Ass'n v. Solimino, 

, 108 (1991). See also 3 Sutherland Statutory
Construction S 61.03 (Norman Singer ed., 5th ed. 1992)
("When there is no indication that Congress . . . intended to
abolish a well-established common-law doctrine through
the passage of a statute, the act will be interpreted in a way
that will preserve the common-law doctrine."). In United
States v. Texas, 

(1993), the Court held that
"[i]n order to abrogate a common-law principle, the statute
must `speak directly' to the question addressed by the
common law." 

Indeed, a "party contending that
legislative action changed settled law has the burden of
showing that the legislature intended such a change."
Green v. Bock Laundry Mach. Co., 

, 521
(1989). And in United States v. Ron Pair Enters., Inc., 

(1989), the Court noted that this rule of statutory
interpretation is particularly apt when the statutory
provision at issue is ambiguous, when prior law reflected
significant policy considerations of longevity and
importance, and when a proposed interpretation is in clear
conflict with an important federal or state law. 

The rule that a non-lawyer may not represent another
person in court is a venerable common law rule. See, e.g.,
Herrera-Venegas v. Sanchez-Rivera, 

, 42 (1st
Cir. 1982) (noting that federal courts have consistently
rejected attempts at third-party lay representation);
Guajardo v. Luna, 

, 1325 (5th Cir. 1970)
(stating that an ordered society has a valid interest in
limiting legal representation to licensed attorneys); Brown v.
Ortho Diagnostic Sys., Inc., 

, 170 (E.D. Va.

                               11
1994) ("Except in the rarest of circumstances, federal
courts have been uniformly hostile to attempts by non-
attorneys to represent others in court proceedings."). We
are reluctant to assume, absent strong evidence to the
contrary, that Congress intended to override this well-
settled rule using ambiguous statutory language. In light of
the rule's significant policy implications, we hold that the
plaintiffs have failed to meet their burden of showing
Congress's intent to change the common-law rule against
non-lawyer representation.

It is true that remedial statutes like the IDEA are to be
construed liberally. The rule of liberal construction,
however, appears to be most often applied to the remedies
created, not the parties permitted to invoke the statute. See
Miller v. Robertson, 

, 248 (1924) (holding that
a remedial provision should be liberally construed to give a
remedy in all cases intended to be covered); United States
v. Stephens, 

, 107 (5th Cir. 1953) ("[C]ourts
cannot, upon the pretence [sic] of construing[a statute],
enlarge its coverage to bring within it those not expressly or
by clear intendment embraced within its terms.").

Yet another tool of statutory construction helps us
understand what Congress intended. The canon of
expressio unius est exclusio alterius means that explicit
mention of one thing in a statute implies a congressional
intent to exclude similar things that were not specifically
mentioned. See Russello v. United States, 

, 23
(1983) (holding that "where Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that
Congress acts intentionally and purposely [sic] in the
disparate inclusion or exclusion"); United States v. Azeem,

, 17 (2d Cir. 1991) (explaining the doctrine). In
the IDEA, Congress expressly provided that parents were
entitled to represent their child in administrative
proceedings. That it did not also carve out an exception to
permit parents to represent their child in federal
proceedings suggests that Congress only intended to let
parents represent their children in administrative
proceedings.

                               12
B. Plaintiffs' Joint Rights Theory

The Collinsgrus proffer a second argument, in which they
contend that the analysis of whether parents may proceed
pro se on behalf of their children is different under the
IDEA than it is under a tort case like Osei-Afriyie. They
assert that because an IDEA appeal involves the nature of
the education to be afforded to their son, it is very much
their own case. As parents, they are responsible for their
son's education. See Meyer v. Nebraska, 

, 400
(1923) ("[I]t is the natural duty of the parent to give his
children education suitable to their station in life. . . .").
They are entitled to make fundamental decisions regarding
his education. See, e.g., Pierce v. Society of Sisters, 

(1925) (enjoining enforcement of Compulsory
Education Act, which prevented parents from choosing to
send their children to private schools); 

(holding that parents are entitled to control the
education of their children and that the state may not
arbitrarily proscribe certain areas of instruction).
Accordingly, the Collinsgrus assert that they are the real
parties in interest in this case.

They recognize, of course, that Meyer and Pierce, which
are grounded in the Due Process Clause of the Federal
Constitution, are insufficient to confer upon them the right
to represent their children, and that the IDEA itself must be
the source of any such right. They contend, however, that
the Act does contain authority for them to represent not
only their own rights and interests, but also, albeit
indirectly, those of their son in proceedings before the
district court. We therefore turn to the IDEA to determine
whether Congress intended to create substantive rights in
the parents of disabled children.

       1. Introduction

The primary purpose of the IDEA is

       to ensure that all children with disabilities have
       available to them a free appropriate public education
       that emphasizes special education and related services
       designed to meet their unique needs; to ensure that the
       rights of children with disabilities and parents of such

                               13
       children are protected; . . . and to assess, and ensure
       the effectiveness of, efforts to educate children with
       disabilities.

20 U.S.C. S 1400(d). For the most part, the IDEA is
unambiguous as to what rights it provides to parents and
children. It clearly grants parents specific procedural rights,
which they may enforce in administrative proceedings, as
well as in federal court. Additionally, the IDEA permits
parents to represent their children in administrative due
process hearings before state or local agencies. 20 U.S.C.
S 1415(h)(2); 34 C.F.R. S 303.422(b)(2) (providing that
parents have the right to present evidence and examine
witnesses in administrative due process hearings held
pursuant to the IDEA).

The statute also creates a right to bring a civil action in
federal court following a state administrative decision on
the adequacy of the child's individualized education
program (the "IEP"). 

The Collinsgrus
concede that the IDEA does not explicitly provide parents
with the right to continue to represent their children in
federal district court. Instead, they argue that the language
of the IDEA, as well as the statute's underlying policy
concerns, exhibit Congress's intent to create joint rights in
the child and the parents to have the child educated
appropriately. As we shall now explain, we do not think
Congress displayed such an intent, and therefore decline to
import the concept of joint rights into the IDEA byfinding
that the Collinsgrus are a real party in interest in Francis's
case.

In any case turning on statutory interpretation, our goal
is to ascertain the intent of Congress. Dole v. United
Steelworkers of America, 

, 35 (1990). To
accomplish this goal, we begin by looking at the statute's
language. If the language is plain, we need look no further.
United States v. Ron Pair Enters., Inc., 

, 241
(1989). If the statutory language is ambiguous or unclear,
we may look behind the language to the legislative history
for guidance. United States v. Sherman, 

, 313
(3d Cir. 1998).

In this case, we will require relatively clear evidence of
Congress's intent to create joint rights in the IDEA. We note

                               14
here that the Collinsgrus' argument is analogous to asking
us to find that they possess a private right of action under
the IDEA. As we have stated in the context of private rights
of action, "Where a statute does not explicitly create a right
of action for a particular party, a court may find such a
right implied only where it can confidently conclude
Congress so intended." State of New Jersey v. Long Island
Power Auth., 

, 421 (3d Cir. 1994). See also
Florida Dept. of Bus. Regulation v. Zachy's Wine and Liquor,
Inc., 

, 1403 (11th Cir. 1997) (same), cert.
denied, 

(1998). Compare Touche Ross & Co.
v. Redington, 

, 572 (1979) (noting that when
Congress wished to provide a private damage remedy in the
Securities Exchange Act of 1934, it knew how to do so and
did so expressly).

We also note that the Supreme Court has "long since
abandoned its hospitable attitude toward implied rights of
action." Thompson v. Thompson, 

, 190 (1988)
(Scalia, J., concurring). Because the case at bar is
comparable to a request for a private right of action, we
take heed of this guidance; only if we can "confidently
conclude" from the text and legislative history of the IDEA
that Congress intended to create joint rights will we find
such rights in the Act.

       2. Language of the IDEA

Unlike many cases that raise issues of statutory
construction, we deal here not with a particular statutory
phrase, but with language scattered throughout the statute.
The Collinsgrus point to a number of words or phrases
that, they argue, evidence Congress's intent to treat parents
as parties in interest. First, they rely on language in S 1415
that provided attorneys' fees to the "parents or guardian of
a handicapped child or youth who is the prevailing party."
S 1415(e)(4)(B) (1988). However, in 1997 Congress amended
this section to read, ". . . to the parents of a child with a
disability who is the prevailing party," which suggests that
it is the child who should be considered the prevailing
party. 

(1997). Second, they point to
S 1415(e)(4) (1988), which prohibits attorneys' fees for
services performed after settlement offers. However,

                                 15
S 1415(e)(4)(E) (1988) allows for the award of attorneys' fees
"to a parent or guardian who is the prevailing party" if he
was substantially justified in rejecting the settlement offer.
(This section is now S 1415(i)(3)(E) (1997) and refers to "a
parent who is the prevailing party.") The plaintiffs contend
that these subsections make clear that an IDEA suit is the
parents' own case for 28 U.S.C. S 1654 pro se
representation purposes. However, it is just as logical to
read this language simply as a reference to the procedural
cases in which parents clearly have standing as parties.

Third, the Collinsgrus point to another discussion of
attorneys' fees that states, "[W]henever the court finds that
. . . the attorney representing the parent did not provide to
the school district the appropriate information in the due
process complaint . . . the court shall reduce . . . the
amount of attorney's fees." 

(emphasis
added). However, in the same section, the statute places
the notice requirement either on "the parent of a child with
a disability, or the attorney representing the child." 

While the former language may be read to
suggest that it is the parent's case, the latter language
suggests that it is the child's case.

Fourth, the Collinsgrus invoke the IDEA's introductory
language, which states that one purpose of the IDEA is "to
assure that the rights of handicapped children and their
parents or guardians are protected." Id.S 1400(c) (1988)
(emphasis added) (now S 1400(d)(1)(B), which states that
one purpose is to "ensure that the rights of children with
disabilities and parents of such children are protected").
However, as noted earlier, it is undisputed that parents do
possess rights under the IDEA; indeed, they possess
explicit rights in the form of procedural safeguards. The
Collinsgrus argue that the IDEA draws no clear distinction
between procedural and substantive rights, and cite
Heldman v. Sobol, 

(2d Cir. 1992), for this
proposition. In Heldman, the court stated that "the
procedural rights, in and of themselves, form the substance
of IDEA." 

However, the Supreme Court has
distinguished quite clearly between substantive and
procedural rights under the Act. In Board of Education v.
Rowley, 

(1982), the Court stated:

                               16
       When the elaborate and highly specific procedural
       safeguards embodied in S 1415 are contrasted with the
       general and somewhat imprecise substantive
       admonitions contained in the Act . . . [i]t seems to us
       no exaggeration to say 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.

In short, the language of the IDEA is unclear on its face.
Some of its language can be read to suggest that Congress
intended parents and children to share the underlying
substantive right -- that is, that Congress meant both to
give children a substantive right to an appropriate
education and to give their parents the substantive right to
have their children receive an appropriate education. But it
is equally logical to read the IDEA the other way. Under
these circumstances, in which the Collinsgrus have not
made out their case convincingly, we turn to the legislative
history of the Act for further guidance.

       3. Legislative History of the IDEA

The legislative history offers little additional guidance
about Congress's purported intent to create joint rights in
parents and children. On one hand, the Senate Report, in
discussing a mediation option in the 1985 amendments,
states, "Although the law has worked very well in most
cases, Congress knew that there would be instances where
parents would be denied the free appropriate public
education to which their handicapped child was legally
entitled . . . ." 131 Cong. Rec. S1979 (Feb. 6, 1985)
(statement of Sen. Weicker) (emphasis added). Earlier, in
considering amendments to the forerunner to the IDEA, the
Education of the Handicapped Act ("EHA"), the Senate
Report stated that "parents of [learning disabled] children
have the right to expect that individually designed
instruction to meet their children's specific needs is
available." S. Rep. No. 94-168, at 10 (1975), reprinted in

                               17
1975 U.S.C.C.A.N. 1425, 1434. See also 

1975
U.S.C.C.A.N. at 1456 (stating that under the Committee's
bill, a state's application for federal funds shall provide that
"special education and related services shall be provided at
no cost to the parents of a handicapped child"); 

1975 U.S.C.C.A.N. at 1465 (defining "free appropriate
public education" as "special education and related services
. . . to be provided at public expense, without charge to the
parents or guardians of a handicapped child").

On the other hand, the legislative history refers to the
responsibility of the states to "develop procedures for
appointing the parent or another individual to represent the
interests of the child," which suggests that the role of the
parent is to represent solely the interests of the child, not
to represent jointly held substantive rights. S. Rep. No.
105-17 (1997), 

, *49. In addition, the
Senate Report to the 1985 amendments to the EHA
indicated that the Act "established an enforceable right to
free appropriate public education for all handicapped
children." 131 Cong. Rec. S1979 (1985). The Report also
noted that the right to judicial review offers protection for
those rights, thus making the procedural rights of the
parents appear derivative of the substantive right of the
child. See 

121 Cong. Rec. S37412 (1975)
(remarks of Sen. Stafford) (referring to "the rights of the
child"); S. Rep. No. 94-168, at 7, 1975 U.S.C.C.A.N. at 1431
(discussing the protection of "the rights of handicapped
children"); S. Rep. No. 105-17, 

, *56
(stating that S 1415 simplifies the process of delivering
notices to parents about their child's rights).

We conclude that the legislative history sheds little light
on Congress's intent to create joint rights. The above-cited
comments are merely snippets plucked from broad
discussions of the general statutory goals of the Act and do
not arise from explicit discussions of the issue at hand.
Because neither the statutory language nor the legislative
history clearly implies that Congress intended parents to
have joint rights with their children under the IDEA, we will
not read joint rights into the Act.

                               18
       4. Caselaw

We note here that the two other courts of appeals to
consider this issue have reached the same conclusion we
reach today. In Devine, the Eleventh Circuit chose not to
accept the plaintiffs' argument that the IDEA and its
regulations authorize parental 

. Instead, the court found no indication that Congress
intended to allow parents to present evidence and examine
witnesses on behalf of their children in federal court
proceedings. The court noted, "In the absence of such
intent, we are compelled to follow the usual rule-- that
parents who are not attorneys may not bring a pro se
action on their child's behalf -- because it helps to ensure
that children rightfully entitled to legal relief are not
deprived of their day in court by unskilled, if caring,
parents." 

The Second Circuit recently raised the
same issue sua sponte and reached a similar conclusion.
See Wenger v. Canastota Cent. Sch. Dist., 

,
124-25 (2d Cir. 1998) (relying on the general rule that a
non-attorney parent must be represented by counsel in
bringing an action on behalf of her child). See also Dacyna
v. Sch. Dist. of Phila., No. 92-CV-2428, 

, at
*1 (E.D. Pa. Oct. 2, 1992) (stating, in an IDEA case, that a
non-lawyer is not entitled to represent his children in place
of an attorney in federal court); Lawson v. Edwardsburg
Public School, 

, 1258-59 (W.D. Mich.
1990) (holding that father could not represent daughter's
interests in an EHA case, since he was not an attorney).

While neither the Second nor the Eleventh Circuit
considered the argument that the IDEA creates joint
substantive rights in parents and children, we stillfind that
the reasoning of these courts supports our conclusion.

C. Policy Considerations

Although we believe that the foregoing discussion is
dispositive, we address a number of policy arguments
pressed by the Collinsgrus, which, they claim, make their
reading of the IDEA the most pragmatic reading of the
statute. First and foremost, they remind us of the hard
practical reality that parents are often the only available
advocates for a child's right to an appropriate education.

                               19
We acknowledge this to be true, for most attorneys will be
reluctant to take on cases like this, characterized as they
are by voluminous administrative records, long
administrative hearings, and specialized legal issues,
without a significant retainer. While we are sympathetic to
this argument, it does not carry the day against the
analysis set forth above. We note too that Congress
obviously contemplated that some parents of disabled
children who were successful in their civil appeals would be
unable to pay their lawyer's fees, as evidenced by the fact
that Congress included provisions for attorneys' fees in the
IDEA. See 20 U.S.C. S 1415(i)(3)(B)-(G).2

The Collinsgrus also argue that the general policy behind
the IDEA favors their argument. In their view, the right of
parents to control and financially support their child's
education and the rights of children to receive an education
are so tightly interwoven that the IDEA must necessarily
protect both sets of rights and must render parents real
parties in interest as to every claim brought under the
IDEA. However, we observe that under the IDEA, a disabled
child can receive a free appropriate education even if the
child has no parents; surrogates may act on behalf of a
child to the same extent that a parent could. See
S 1415(b)(2). In contrast, parents have no rights under the
IDEA if they do not have a disabled child seeking an
education under that statute. To us, this is further evidence
that the rights at issue here are divisible, and not
concurrent.
_________________________________________________________________

2. The Collinsgrus also note that a number of courts, without
questioning the practice, have allowed parents to represent their children
pro se in federal court. See, e.g., Muth v. Central Bucks Sch. Dist., 

(3d Cir. 1988), rev'd on other grounds sub nom. Dellmuth v.
Muth, 

(1989); Kruelle v. New Castle County Sch. Dist., 

(3d Cir. 1981); see also Susan R.M. v. Northeast Indep. Sch.
Dist., 

(5th Cir. 1987); Gregory K. v. Longview Sch. Dist.,

(9th Cir. 1987); Rettig v. Kent City Sch. Dist., 

(6th Cir. 1986); Schreiber v. Ridgewood Bd. of Educ., 

(D.N.J. 1997). However, in none of these cases did the court
consider whether the IDEA permits parental representation. Therefore,
while we acknowledge that this practice reflects the fact that it is
difficult
for parents to find lawyers to take these cases, we reject the suggestion
that these cases should guide our decision.

                               20
We conclude that the IDEA's language and legislative
history, as well as relevant case law and policy
considerations, suggest that Congress did not clearly intend
to create joint rights in parents under the IDEA. Therefore,
we will affirm the district court's dismissal without
prejudice of Francis's claims on the ground that his parents
may not represent him in federal court.

                               21
ROTH, Circuit Judge, concurring in part and dissenting in
part:

Although I concur with the majority's conclusion that the
District Court's decision here is immediately appealable, I
respectfully dissent from their conclusion in Part III that
the Collinsgrus do not have joint rights with their son
under the IDEA which they may pursue pro se in the
federal courts. I believe that these rights arise from the
special nature of the relationship between parents and their
children and from the role of parents in directing their
children's education rights and opportunities. They are the
rights of both the parents and the children, and they are
overlapping and inseparable. In enforcing their own rights
under the Act, parents are also acting on behalf of their
child. This is so because parents are responsible for their
children's education. See Meyer v. Nebraska, 

,
400 (1923) ("[I]t is the natural duty of the parent to give his
children education suitable to their station in life. . ..").
Parents are entitled to make fundamental decisions
regarding that education. See, e.g., Pierce v. Society of
Sisters, 

(1925) (enjoining enforcement of
Compulsory Education Act preventing parents from
choosing to send their children to private schools); 

(holding that parents are entitled to
control the education of their children and that the state
may not arbitrarily proscribe certain areas of instruction).
For this reason, I find the Collinsgrus to be real parties in
interest in this case, who are entitled to pursue that
indivisible concern which is both their own and their child's
educational goals.

Moreover, this result would be consistent with the
primary purpose of the IDEA -- to assure an appropriate
public education to children with disabilities. The focus of
the IDEA rests upon ensuring appropriate educational
opportunities for children with disabilities. But to
accomplish this, the Act recognizes the integral role of
parents in effectuating its educational goals. This
recognition is evinced in the language and structure of the
Act and in the procedural safeguards that are included to
ensure active parental involvement at all stages of the
development and implementation of a child's individual
education program.

                               22
A key factor in the successful implementation of the goals
of the IDEA are the procedural safeguards that states and
localities are required to accord to "children with disabilities
and their parents or guardians" in order to assure "the
provision of a free appropriate public education." 20 U.S.C.
S 1415(a). The Act requires educational agencies to provide
"an opportunity for parents or guardian of a handicapped
child to examine all relevant records with respect to the
identification, evaluation, and educational placement of the
child, and the provision of a free appropriate public
education to such child, and to obtain an independent
evaluation of the child." 20 U.S.C. S 1415(b)(1)(A). The
educational agency must also provide "written prior notice
to the parents or guardian of the child whenever such
agency or unit -- (i) proposes to initiate or change, or (ii)
refuses to initiate or change, the identification, evaluation
or educational placement of the child or the provision of a
free appropriate public education to the child." 20 U.S.C.
S 1415(b)(1)(C). In addition the educational agency must
provide parents with "an opportunity to present complaints
with respect to any matter relating to the identification,
evaluation, or educational placement of the child, or the
provision of a free appropriate public education to such
child." 20 U.S.C. S 1415(b)(1)(E).

These protections demonstrate that Congress envisioned
that parents would play an active and informed role in the
evaluation and education of their children. The Senate
Committee report recommending passage of the IDEA's
precursor statute explicitly states that,

       [b]y changing the language [of the provision relating to
       individualized educational programs] to emphasize the
       process of parent and child involvement . . . the
       Committee intends to clarify that such individual
       planning conferences are a way to provide parent
       involvement and protection to assure that appropriate
       services are provided to a handicapped child.

Education for All Handicapped Children Act of 1975, S.
Rep. No. 94-168, at 11-12 (1975), reprinted in, 1975
U.S.C.C.A.N. 1425, 1435. In interpreting the IDEA, the
Supreme Court has also cautioned that "[t]he primary
responsibility for formulating the education to be accorded

                               23
a handicapped child . . . was left by the Act to state and
local educational agencies in cooperation with the parents
or guardian of the child." Board of Education v. Rowley, 

, 207 (1982). Courts should avoid imposing their
views regarding preferred educational methods. Rather,
"Congress sought to protect individual children by
providing for parental involvement in the development of
state plans and policies and in the formulation of the
child's individual educational program." 

The Act also provides substantial due process protections
in the form of administrative proceedings and an appeals
procedure in the event that parents have complaints
regarding the educational services provided to their
children. "The parents or guardian shall have an
opportunity for an impartial due process hearing" before
the local educational agency, 20 U.S.C. S 1415(b)(2), and for
an impartial review on appeal to a state educational agency.
20 U.S.C. S 1415(c). At these hearings all parties,
specifically parents, are accorded:

       (1) the right to be accompanied and advised by counsel
       and by individuals with special knowledge or training
       with respect to the problems of handicapped children,

       (2) the right to present evidence and confront, cross-
       examine, and compel the attendance of witnesses,

       (3) the right to a written or electronic verbatim record
       of such hearing, and

       (4) the right to written findings of fact . . ..

20 U.S.C. S 1415(d). Thus, during administrative
proceedings under the IDEA, the Act explicitly envisions
that parents will act as advocates for their child's right to
an appropriate education. Congress has also taken steps to
ensure the effectiveness of parents as advocates during
administrative proceedings by authorizing the
establishment of training centers to assist parents in
understanding their rights and their children's' rights
under the Act and to help parents to participate effectively
in administrative due process hearings. 20 U.S.C.
S 1415(e)(2)(B)(I).

                               24
At the conclusion of all administrative proceedings, the
Act provides the right to bring a civil action in either federal
or state court to "[a]ny party aggrieved by the findings and
decision" made during the administrative proceedings. 20
U.S.C. S 1415(e). Although the language of the Act clearly
delineates an active role for parents during administrative
proceedings under the IDEA, the Act is silent with regard to
the nature of the role of parents during federal court
proceedings under the Act. Thus, it is not clear from the
language of the Act whether parents are "aggrieved parties"
able to bring a court action on their own behalf, or whether
the right to an appeal belongs to their child or belongs to
both parents and child.

The parents here have asserted their own claim under
the IDEA which is still pending in the District Court. The
District Court, however, denied the parents' request that
the court clarify which of the claims before it were claims
of the parents. The stated reason for that denial was that
the parents sought an advisory opinion.

Nevertheless, despite the absence of explicit language in
the IDEA conclusively determining the role of parents in
IDEA appeals, the purpose and language of the IDEA
presuppose the active involvement of parents in enforcing
the educational rights of their children. Through the IDEA,
Congress gave to all children with disabilities the
substantive right to an appropriate education. Children,
however, whether disabled or not, are not able to evaluate
the education they are receiving or to request changes in
the resources and opportunities made available to them.
The IDEA reflects the practical recognition that parents are
the persons who are vested with the authority and the
obligation to oversee their child's education and to enforce
their child's rights under the Act. The Act also invests
parents with the procedural rights and protections
necessary to ensure that they receive access to the
information and resources necessary to enforce the
substantive protections and guarantees of the IDEA.

The Act explicitly defines the rights of parents during
administrative proceedings. See 20 U.S.C.S 1415. Although
the Act does not contain the same explicit definition of the
rights of parents during appeals brought in federal court,

                               25
there is evidence that Congress did not intend parental
involvement under the IDEA to be confined to the
administrative process. Nor does it make sense, in the
absence of clear Congressional intent, to deny parents, who
are parties with full procedural protections during
administrative proceedings under the Act, the right to
challenge the outcome of these proceedings.

Evidence of congressional intent regarding the role of
parents during federal court proceedings under the IDEA
may be gleaned from the amendment of the Act to include
a fee-shifting provision, authorizing the award of attorneys'
fees to plaintiffs who prevail in appeals from administrative
proceedings. Under the Act, attorneys' fees will be awarded
"to the parents or guardian of a child or youth with a
disability who is the prevailing party." 20 U.S.C.
S 1415(e)(4)(B). Attorneys' fees will not be awarded if the
parents reject a settlement agreement offering more
favorable relief than is ultimately obtained in the judicial
proceedings. 20 U.S.C. S 1415(e)(4)(D)(iii). In contrast, "an
award of attorneys' fees and related costs may be made to
a parent or guardian who is the prevailing party and who
was substantially justified in rejecting the settlement offer."
20 U.S.C. S 1415(e)(4)(E) (emphasis added).

The legislative history of the fee-shifting provisions states
that, "Congress' original intent was that due process
procedures, including the right to litigation if that became
necessary be available to all parents." Handicapped
Children's Protection Act of 1986, S. Rep. 99-112, at 2,
reprinted at, 1986 U.S.C.C.A.N. 1798, 1799. The Senate
Committee Report explicitly states that the fee-shifting
provision should not limit the payment of attorneys' fees to
nonprofit, publicly-funded organizations who provide legal
assistance to parents. Rather, the Committee members
endorsed the principle that "the parents or legal
representative of handicapped children must be able to
access the full range of available remedies in order to
protect their handicapped children's educational rights." 

reprinted at, 1986 U.S.C.C.A.N. at 1806. In this case,
the Collinsgrus argue that the fee-shifting provisions are
insufficient to protect their interests under the Act. They
have not been able to find any attorney to represent them

                               26
in the IDEA action. Their only remaining avenue to protect
their son's educational rights under the Act is to proceed
pro se with their challenge to the administrative denial of
special education benefits.

The right of children to receive an appropriate education
may well be meaningless without parents to guide the
evaluation of their needs and to monitor the
implementation of their individualized education program.
The procedural safeguards afforded to parents under the
IDEA, including the right to receive attorneys' fees, codify
the role of parents as the guardians of their children's
education. In light of the special relationship between
parents and their children and the special role of parents in
enforcing their children's rights under the IDEA, the right
of parents to control the education of their child and the
right of children to receive an appropriate education are
highly interwoven and interdependent. Accordingly, I
conclude that parents who wish to challenge the outcome
of administrative proceedings under the IDEA are aggrieved
parties with the right to bring an appeal under the Act.
Thus, the rights created by the IDEA are effectively shared
by children and their parents. As parties to IDEA
proceedings, pursuant to 28 U.S.C. S 1654, parents should
be able to proceed pro se in IDEA appeals brought in
federal court to enforce their own rights and those of their
children.

Moreover, the rights at stake in an IDEA proceeding are
markedly different from those raised by a tort claim. A
child's common law claim for damages does not invoke the
fundamental rights and interests of a parent in the same
manner as a claim for educational benefits under the IDEA.
Indeed, many of the benefits of an appropriate education
will be lost if they are not timely pursued. Cf. 

(noting that under Pennsylvania law, the
civil claims of minors are tolled until they reach the age of
18). Because parents bear the ultimate responsibility for
guaranteeing their child's right to an education, they
should be afforded all available opportunities to enforce and
protect that right.

                               27
I would therefore recognize the right of parents to proceed
pro se in an IDEA case on their child's behalf, as well as on
their own behalf.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               28