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Supporting Students With Disabilities In Their Pursuit Of Education

Ethics

Ethics And Special Education Advocacy

There are many dimensions to ethics in special education advocacy. Ethics is more complex than just the basic question of right versus wrong. Ethics is about standards of conduct and moral judgment. Both organizations and individuals must have values that guide the way they operate and do their work. Ethics is the most challenging part of decision making. The advocate must be able to identify key ethical issues, articulate guidelines for decision-making and develop a process he or she can apply to their activities. Ethics involves two key components – the approach to substantive issues (e.g. commitment to integration) and the method by which the advocate achieves an outcome.

The special education advocacy taught in this course could best be described as legally-based advocacy. The instructors in the course are primarily lawyers and the discussion will be primarily of “the law.” Even when other areas are added (educational testing, behavioral interventions, cultural competency, etc.), they are added because it is what “the law requires.” An advocacy course taught predominantly by psychologists, for example, might look quite different.

Understanding Role Of Non-Lawyer Advocates In Oklahoma

  • Special education advocates are not a recognized profession in Oklahoma, have no certification or license, have no enforceable ethics code, have no statutory confidentiality privilege, have no educational or competence standards and may not practice law. Read the “Ethics” section of this website to learn more about the role of non-lawyer advocates, particularly the Attorney General’s Opinion and the Oklahoma Supreme Court’s opinion in R. J. Edwards, Inc. v. Hert (see below)
  • If someone tells you they are associated in some manner with the PEA program and you believe they are not following the ethical guidelines contained in this website, please use “Contact Us” section of this website. The law center does not have any regulatory authority to supervise the conduct of participants in the program but will investigate to determine why they are claiming to be associated with the program.

Understanding A Client’s Relationship With The Law Center

  • Communication with a person who attended the PEA training program or communication of information through this website (1) does not create or constitute an attorney-client relationship, (2) is not intended as a solicitation to create an attorney-client relationship to provide legal services as to any particular matter, and (3) is not intended to convey or constitute legal advice from a qualified attorney. You should not act upon any such information without seeking legal counsel on your specific matter. The information on this website is made available for informational purposes only, is not legal advice and is subject to change without notice.
  • In order to provide services to students with disabilities, the law center must first determine eligibility for the student. If you have not talked with the law center and established eligibility first, no attorney-client relationshipis created with the attorneys at the law center. If you have any questioins about establishing an attorney-client relationship, contact the law center directly.

What Can Non-Lawyer Advocates Do In Oklahoma?

In Oklahoma, lay advocates are prohibited from engaging in the unauthorized practice of law. Key opinions related to unauthorized practice of law include:

  1. Attorney General’s Opinion, dated July 19, 2006, answering the question, “Does IDEA permit lay advocates with special training in special education to represent parents in due process hearings?”
  2. R. J. Edwards, Inc. v. Hert, 504 P.2d 407 (1972). This opinion by the Oklahoma Supreme Court was relied on by the Attorney General in the above opinion.

Use of the Advocate or Paralegal in a P&A Practice: Limitations Based on Unauthorized Practice of Law, by James R. Sheldon, Jr., JD and Ronald M. Hager, JD, of Neighborhood Legal Services, Inc. Article explains the applicable ethical rules that apply to protection and advocacy (P&A) programs use of advocates, legal assistants, paralegals and others to help deliver advocacy services to eligible clients.

Before You Retain a Lay Advocate, by Jennifer L. Bollero, JD, from Wrightslaw’s FETA website.

Can Non-Lawyer Parents Represent The Interests Of Their Children With Disabilities In Federal Court?

On May 21, 2007, the U. S. Supreme Court issued an opinion in the Winkelman case. For an analysis of the opinion, read the Wrightslaw analysis, “Supreme Court Rules: Parents Have Independent, Enforceable Rights.” Because the Court ruled that parents enjoy rights under IDEA, they are entitled to prosecute IDEA claims on their own behalf. In light of the holding, the Court did not reach petitioner’s argument concerning whether IDEA entitles parents to litigate their child’s claims pro se .

On February 27, 2007, the U. S. Supreme Court heard Oral Argument in Jacob Winkelman, et. al. v. Parma City Schools . The decision will resolve a split among circuits about whether non-lawyer parents may represent the interests of their children with disabilities in federal court.

This case generated intense interest after the Cleveland Bar Association launched an investigation of the Winkelmans and other Ohio parents for the Unauthorized Practice of Law. In April 2006, the Ohio Supreme Court ordered “the Cleveland Bar Association to show cause, through the production of evidence … why the complaint it has filed against [the parents] …. should not be dismissed … because it appears that the parents have not engaged in the unauthorized practice of law.” Related article

The Solicitor General for the United States is supported the parents in this case and filed a brief urging the Supreme Court to decide the case and resolve the split among circuit. A brief filed by the Solicitor General advised that “IDEA’s procedural protections are designed to encourage parental involvement in the ultimate goal of having the child receive a free appropriate public education. The IDEA statement of purpose explicitly recognizes the statute’s mission ‘to ensure that the rights of children with disabilities and parents of such children are protected.'” 20 U.S.C. § 1400(d)(1)(B)

See Wrightslaw for comprehensive article written while the case was pending at the U. S. Supreme Court. click here

Read transcript of oral argument before US Supreme Court. click here

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