Raskin v. Dallas Indep Sch DistRaskin v. Dallas Indep Sch Dist
STEPHEN A. HIGGINSON, Circuit Judge:
Allyson Raskin filed this pro se action in federal district court alleging, as relevant here, that the Dallas Independent School District (DISD) violated her children‘s rights under the Genetic Information Nondiscrimination Act (GINA),
On appeal, Raskin contends that the district court erred in holding that she cannot represent her children in federal court.2 To support Raskin‘s position, we appointed an amicus, who argues that we should adopt a multifactor test to determine when a parent can proceed pro se. DISD counters that we should adhere to our unpublished caselaw and points to decisions from ten other circuits applying a per se rule against pro se parent representation.
Today, we hold that an absolute bar on pro se parent representation is inconsistent with
I.
This case starts and ends with the text of
But the right to proceed pro se under
Taken by itself,
Other federal statutes can overwrite the general rule against pro se parent representation. We have previously decided that a child‘s appeal from certain administrative decisions under the Social Security Act,
We also look to state law in determining whether one person‘s case belongs to another under
Our unpublished cases6 and authority from other circuits7 have adopted an absolute bar against pro se parent representation without fully accounting for the text of
The absolute bar in our fellow circuits is designed to ensure that when children “have claims that require adjudication,” they receive “trained legal assistance so their rights may be fully protected.” Cheung, 906 F.2d at 61. This policy concern is reflected in the common law and prevails absent federal or state law to the contrary. But where a state has decided that pro se parental representation does adequately protect children‘s rights, the text of
Moreover, in some circumstances, the absolute bar may not protect children‘s rights at all. When counsel is unavailable, the absolute bar “undermine[s] a child‘s interest in having claims pursued for him or her,” and “may force minors out of court altogether.” Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 286 (2d Cir. 2005). “Children represent a disproportionate number of those living in poverty in the United States,” and “[t]here is a dearth of legal services available” in this country “to meet the legal needs of those who cannot afford to pay.” Lisa V. Martin, No Right to Counsel, No Access Without: The Poor Child‘s Unconstitutional Catch-22, 71 FLA. L. REV. 831, 856 (2019). As a result, “the mandate that parents retain counsel to advance their children‘s claims cannot be met by a substantial portion of families.” Id. at 858.
At least in part, the absolute bar expresses our need to “jealously guard[] [our] authority to govern those who practice in [our] courtrooms.” Myers, 418 F.3d at 400. From this perspective, “[r]equiring a minimum level of competence protects not only the [client] but also his or her adversaries and the court from poorly drafted, inarticulate, or vexatious claims,” Collinsgru, 161 F.3d at 231. But Congress did not write an absolute bar into
II.
In this case, the district court faithfully followed our unpublished authority that pro se parents cannot represent their children except in Social Security appeals. However, as we now clarify, because
Still, on remand, the district court remains free to “note the inadequacy of the complaint and dismiss it for failure to state a claim as long as the procedure employed is fair to the parties,” Century Sur. Co. v. Blevins, 799 F.3d 366, 372 (5th Cir. 2015) (citation omitted). In this circuit, “fairness requires that a litigant have the opportunity to be heard before a claim is dismissed, except where the claim is patently frivolous.” Id. A claim is frivolous when it is “so lacking in merit that it [is] groundless.”9 United States v. Mississippi, 921 F.2d 604, 609 (5th Cir. 1991). Since dismissal of a patently frivolous claim does not require a response from a pro se parent, a district court can dismiss a claim alleged by such a parent without considering whether the parent is qualified to bring the suit in the first place. Under those circumstances, dismissal of the claim should ordinarily be without prejudice.
In any event, we leave it up to the district court to decide whether this case is best resolved by considering the implications of federal or state law vis-à-vis
The district court‘s dismissal of the GINA claims is VACATED and the case is REMANDED for further proceedings consistent with this order.
ANDREW S. OLDHAM, Circuit Judge, dissenting in part and concurring in the judgment:
Since the First Judiciary Act in 1789, every person—including a minor—has enjoyed a right to litigate pro se in federal court. The question presented is whether a parent can vindicate that right for her children, just as she can vindicate her children‘s other rights. The district court said no. The majority says maybe. I would say absolutely.
I.
Allyson Raskin is not an attorney. On October 4, 2021, however, she filed a pro se complaint on behalf of herself and her minor children against the Dallas Independent School District and the District‘s Superintendent, the Board of Trustees, and various Board members (collectively “Dallas ISD“). The complaint listed both minor children (“JD1” and “JD2“), as well as Ms. Raskin, as plaintiffs. On October 26, 2021, Dallas ISD filed a motion to dismiss the complaint, arguing in relevant part that Ms. Raskin lacks standing to proceed pro se on her children‘s behalf. Ms. Raskin responded by filing a “Response to Motion to Dismiss,” an “Amendment to Complaint,” and an “Emergency Motion for a Preliminary Injunction“—all on November 16, 2021. All of her district court pleadings were cogent, persuasive, and included citations to relevant legal authorities.
In a puzzling opinion, the district court dismissed the complaint for lack of subject matter jurisdiction. “For a legal dispute to
Ms. Raskin timely appealed. She filed two excellent briefs in our court. She timely and properly filed the Record Excerpts required by our rules. And on November 9, 2022, Ms. Raskin presented oral argument in front of our panel. Ms. Raskin was a passionate and effective advocate.
II.
“Jurisdiction is always first.” Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021) (quotation omitted). The district court sua sponte held that it somehow lacked subject matter jurisdiction over this case. That was wrong for at least three reasons.
First, as noted above, it takes just one plaintiff with standing to create a justiciable case or controversy. Dep‘t of Commerce, 139 S. Ct. at 2565. The two minor children, JD1 and JD2, unquestionably satisfy this requirement. They have concrete and particularized injuries, traceable to the defendants’ conduct, and redressable by a favorable judicial decision. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The complaint contains well-pleaded facts, for example, that JD1 has suffered anxiety, depression, and social ostracism on account of Dallas ISD‘s policies. JD2 likewise suffered anxiety, but it was so severe that JD2 was forced out of Dallas ISD and into a small private school. That is far more than our cases require to establish JD1‘s and JD2‘s standing.
Second, the district court seemed troubled by Ms. Raskin‘s invocation of her children‘s injuries in addition to her own. But jus tertii standing is well established in the law. See, e.g., Craig v. Boren, 429 U.S. 190, 193 (1976). In fact, the Supreme “Court almost routinely . . . permit[s] assertions of third-party standing upon finding (i) some sort of ‘relationship’ between the litigants seeking third-party standing and those whose rights they want to assert and (ii) some sort of impediment to third parties’ effective assertion of their own rights through litigation.” RICHARD H. FALLON, JR., JOHN F. MANNING, DANIEL J. MELTZER, & DAVID L. SHAPIRO, HART & WECHSLER‘S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 165 (7th ed. 2015). And these rules appear easily satisfied here. Like the near-beer vendor in Craig, Ms. Raskin has her own independent injuries—Ms. Raskin, for example, has been forced to spend $10,000 a year in JD2‘s tuition on account of Dallas ISD‘s policies. And that allows her to complain not only of her own injuries but also of her children‘s. The “special relationship” between a mother and her children makes the beer vendor-vendee relationship in Craig pale in comparison. And there‘s an obvious obstacle to JD1 and JD2‘s effective assertion of their own rights—Dallas ISD‘s extraordinary efforts to prevent this case from being heard, and its intrepid lawyers’ at-all-costs litigation strategy proves it.
Third, even if all of that‘s wrong, it doesn‘t defeat Article III jurisdiction. As the Supreme Court has said, “limitations on a litigant‘s assertion of jus tertii are not constitutionally mandated, but rather stem from a salutary ‘rule of self-restraint’ designed
Jurisdiction, this Court has observed, is a word of many, too many, meanings. In particular, this Court has emphasized the distinction between limits on the classes of cases a court may entertain (subject-matter jurisdiction) and nonjurisdictional claim-processing rules, which seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times . . . .
To police this jurisdictional line, this Court will treat a procedural requirement as jurisdictional only if Congress “clearly states” that it is. This principle of construction is not a burden courts impose on Congress. To the contrary, this principle seeks to avoid judicial interpretations that undermine Congress’ judgment. Loosely treating procedural requirements as jurisdictional risks undermining the very reason Congress enacted them.
Procedural rules often seek to promote the orderly progress of litigation within our adversarial system. Limits on subject-matter jurisdiction, in contrast, have a unique potential to disrupt the orderly course of litigation. Branding a rule as going to a court‘s subject-matter jurisdiction alters the normal operation of our adversarial system. For purposes of efficiency and fairness, our legal system is replete with rules like forfeiture, which require parties to raise arguments themselves and to do so at certain times. Jurisdictional bars, however, may be raised at any time and courts have a duty to consider them sua sponte. When such eleventh-hour jurisdictional objections prevail post-trial or on appeal, many months of work on the part of the attorneys and the court may be wasted. Similarly, doctrines like waiver and estoppel ensure efficiency and fairness by precluding parties from raising arguments they had previously disavowed. Because these doctrines do not apply to jurisdictional objections, parties can disclaim such an objection, only to resurrect it when things go poorly for them on the merits.
Given this risk of disruption and waste that accompanies the jurisdictional label, courts will not lightly apply it to procedures Congress enacted to keep things running smoothly and efficiently. Courts will also not assume that in creating a mundane claims-processing rule, Congress made it unique in our adversarial system by allowing parties to raise it at any time and requiring courts to consider it sua sponte.
Wilkins v. United States, 143 S. Ct. 870, 875–76 (2023) (quotation omitted). I am aware of no rule—and neither the district court nor Dallas ISD cited any—that suggests failure to hire an attorney is a jurisdictional defect. Thus, the federal courts have subject matter jurisdiction over this dispute.
The majority opinion says otherwise only by ignoring Ms. Raskin‘s original complaint, the numerous factual allegations in it, and the four legal claims it pleaded. The majority opinion justifies this result by holding that Ms. Raskin‘s “Amendment to Complaint” operated to delete and then supersede her original complaint. See ante, at 2 n.1. I dissent from that determination.
An amendment supplements—rather than supersedes—the original complaint if the amendment “refers to and adopts or incorporates by reference the earlier
Every reasonable defendant would understand that Ms. Raskin amended her complaint rather than superseded it. In her amendment, Ms. Raskin explained that after filing the original complaint, she discovered “[n]ew information not available at the time of the original filing” that further “substantiates Plaintiff‘s case.” Accordingly, she added five new counts on top of her original four. And she numbered the additional claims in the Amendment as Counts V through IX—obviously supplementing (rather than deleting and superseding Counts I through IV in the original complaint). She also omitted all the prefatory content that she included in the original complaint, including a list of the parties, the basis for jurisdiction and venue, and a statement of the facts (altogether, roughly 20 pages of material)—obviously relying on that material to survive the Amendment. And lest there be any residual doubt, Ms. Raskin titled her filing as an ”Amendment to Complaint,” not, for example, an ”Amended Complaint.” This was more than enough to “enable the responding party to easily determine the nature and extent of the incorporation.” Ass‘n of Cemetery Tour Guides, 56 F.4th at 1033 (quotation omitted). In fact, I cannot imagine how any reasonable defendant could receive Ms. Raskin‘s “Amendment” and understand it to do anything other than what it says—that is, it made an “Amendment” to the original complaint by adding five new claims without deleting the first four (and the accompanying allegations).1
III.
Turning to the merits, I first (A) explain that federal and state law allow Raskin to represent her minor children without hiring an attorney. Then I (B) analyze and reject Dallas ISD‘s counterarguments.
A.
The merits of this dispute turn on
Regardless of when exactly the self-representation right emerged, it has deep roots in the American Founding. See Faretta, 422 U.S. at 826 (“In the American Colonies the insistence upon a right of self-representation was, if anything, more fervent than in England.“). The Founding generation maintained an abiding “appreciation of the virtues of self-reliance.” Ibid. Informed by “the ‘natural law’ thinking that characterized the Revolution‘s spokesmen,” the “Founders believed that self-representation was a basic right of a free people.” Id. at 830 n.39. That‘s primarily because the Founders understood “the freedom to state one‘s own case” as “a defense against government oppression” and “a guarantee of individual dignity and autonomy.” No Right, No Access, supra, at 846. Thomas Paine, for example, argued in support of the 1776 Pennsylvania Declaration of Rights by explaining that people had “a natural right to plead [their] own case.” Faretta, 422 U.S. at 830 n.39 (quoting Thomas Paine on a Bill of Rights, 1777, reprinted in 1 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 314, 316 (1971)).
Equally strong as the Founding generation‘s belief in the “virtues of self-reliance” was its “distrust of lawyers.” Id. at 826. The colonists’ anti-lawyer sentiment stemmed from their experiences with the Justices of the King‘s Court as well as the Crown‘s Attorneys- and Solicitors-General—whom many colonists believed “twist[ed] the law to secure convictions” of “those who opposed the King‘s prerogatives.” Ibid. (quoting CHARLES WARREN, A HISTORY OF THE AMERICAN BAR 7 (1911)); see also id. at 827 (“[D]istrust of lawyers became an institution.” (quoting DANIEL BOORSTIN, THE AMERICANS: THE COLONIAL EXPERIENCE 197 (1958))). Throughout the 17th and 18th centuries, this understandable anti-lawyer prejudice intensified “as ‘the lower classes came to identify lawyers with the upper class.‘” Id. at 827 (quoting LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 82 (1973)). And when the time came to draft and ratify the Constitution, such anti-lawyerism and anti-elitism reached a crescendo. Ibid. One Anti-Federalist captured the zeitgeist this way when expressing his frustration with some supporters of the Constitution:
[M]any undesigning citizens may wish [the Constitution‘s] adoption from the best motives, but these are modest and silent, when compared to the greater number, who endeavour to suppress all attempts for investigation; these violent partizans are for having the people gulp down the gilded pill blind-folded, whole, and without any qualification whatever, these generally, of the noble order of Cincinnatus, holders of public securities, men of great wealth and expectations of public office, Bankers and Lawyers: these with their train of dependants from the Aristocratick combination—the Lawyer in particular, keep up an incessant declamation for its adoption, like greedy gudgeons they long to satiate their voracious stomacks with the golden bait—The numerous tribunals to be erected by the new plan of consolidated empire, will find employment for ten times their present numbers; these are the loaves and fishes for which they hunger . . . .
Essay by a Federalist, BOSTON GAZETTE (Nov. 26, 1787), reprinted in 4 THE COMPLETE ANTI-FEDERALIST 117 (Herbert J.
Considering the Founding generation‘s self-reliance and distaste for attorneys, it is unsurprising that “the right of self-representation has been protected . . . since the beginnings of our Nation.” Faretta, 422 U.S. at 812. Indeed, many (perhaps most) colonial charters, declarations of rights, and State constitutions guaranteed self-representation. See, e.g., id. at 828 n.37, 829 n.38, 830 n.40 (collecting examples). For example, the Pennsylvania Frame of Government of 1682 provided that “in all courts all persons of all persuasions may freely appear in their own way.” PA. FRAME OF GOV‘T art. VI (1682). The Georgia Constitution in 1777 likewise secured “that inherent privilege of every freeman, the liberty to plead his own cause.” GA. CONST. art. LVIII (1777). And the first Congress did the same when it passed the Judiciary Act of 1789, which provided “in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of . . . counsel.” Pub. L. No. 1-20, 1 Stat. 73, 92. This language is functionally identical to the right at issue in this case and codified at
With the statutory text and the corresponding right properly situated, let‘s begin with the parties’ common ground. The parties first agree that federal law allows children to litigate pro se. Congress was quite clear on that. Nothing in
The parties’ second agreement concerns the Federal Rules. Those Rules direct us to consider state law in determining who has the capacity to sue in federal court. See
The parties disagree on how best to understand state law, but I do not think this is a close question. The Texas Legislature has unequivocally sided with Ms. Raskin: The “parent of a child” has the “right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child.”
I would therefore hold that federal law gives Raskin’s minor children the unequivocal right to “conduct their own cases personally,”
B.
Dallas ISD offers two primary responses: (1) Courts should not respect a parent’s choice to appear for her children without an attorney because we cannot be sure it’s what the child would want; (2) Courts have a freestanding responsibility to ensure the best interest of children before them, and mandatory attorney representation of minor children protects them from their “unskilled, if caring, parents.” Dallas Supp. Br. 1. Both arguments are unavailing.
1.
First, Dallas ISD says that the choice to appear without an attorney isn’t a “true choice” for minors because, under state law, they “cannot determine their own legal actions.” Dallas Supp. Br. 12 (quotation omitted). Dallas ISD quotes liberally from a Second Circuit decision, which says: “[A] non-attorney parent must be represented by counsel” because the “choice to appear pro se is not a true choice for minors,” so “[t]here is thus no individual choice to proceed pro se for courts to respect.” Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990).
That critique, however, fundamentally misunderstands both the law and the parent-child relationship. As to the law, Dallas ISD confuses who has the authority to exercise the
As to the parent-child relationship, Dallas ISD misunderstands that too. Parents make decisions all the time for their children, including decisions that children could not make on their own. See, e.g.,
But on Dallas ISD’s reasoning, none of the judgments parents make on a daily basis deserve our respect because none are “true choices” for minors. That cannot be so. Minors lack capacity to make “true choices” until they reach the age of majority, which is precisely why the law recognizes parents’ rights to make myriad decisions for them—including whether to litigate without an attorney. It would make little sense to “reserve[] this particular litigation choice—whether to be represented by counsel—to child litigants without explanation for why this litigation choice should be set apart from all other choices routinely reserved to children’s legal representatives,” like “whether, when, and where to bring suit, what claims to advance, what information to disclose, and whom to sue.” No Right, No Access, supra, at 848; see also id. at 860–72. To say nothing of the myriad other life-altering choices that parents make concerning their children’s education, medical care, financial affairs, and even military service.
Nor could it be otherwise under
2.
Second, Dallas ISD says time and again that children are “the ward of every court where their rights are brought into jeopardy,” so courts are entitled to vindicate the best interests of those children by protecting them from their “unskilled, if caring, parents.” Dallas Supp. Br. 1, 12–13, 19. That is a startling assertion, and it’s decidedly not the law. Almost 100 years ago, the Supreme Court rejected the notion that every child is a ward and the notion that any organ of government, state or federal, has some sort of freestanding power to gainsay parents’ choices. See Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925) (“The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.“). Rather, the Court has recognized that parents’ interests “in the care, custody, and control of their children” is “perhaps the oldest of the fundamental
In the context of child-rearing, control of a child entails the power and authority to make important decisions about the child’s life. . . . [T]o have control of a child is to govern, oversee, and direct the child. This means more than day-to-day or hour-to-hour supervision and discipline—and certainly more than deciding ‘when a child gets up and goes to bed, how much television she watches, and whether she gets dessert.’ Ante at 158. It means responsibility for the important choices that must be made for the child—choices about where she will live, her medical care, her education, and her future. Such control is by its nature, and by law, the exclusive right and duty of parents in the first instance. When important decisions must be made for a child, someone bears ultimate responsibility for them no matter how many other caregivers may be involved in the child’s life or consulted on the decision. Unless the child’s parents refuse or shirk this responsibility, it is theirs both in law and in fact.
In re H.S., 550 S.W.3d 151, 169–70 (Tex. 2018) (Blacklock, J., dissenting) (quotation omitted).
It’s true, of course, that the best-interest-of-the-child standard is an important one. But Dallas ISD’s invocation of the standard proves both too little and too much here.
First, the too little. The best-interest-of-the-child doctrine derives from the parens patriae doctrine, and it is unclear that federal courts have inherent powers under
Parens patriae means literally “parent of the country.” The parens patriae action has its roots in the common-law concept of the royal prerogative. The royal prerogative included the right or responsibility to take care of persons who are legally unable, on account of mental incapacity, whether it proceed from 1st. nonage: 2. idiocy: or 3. lunacy: to take proper care of themselves and their property.
Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 600 (1982) (quotation omitted); see also Saavedra v. Schmidt, 96 S.W.3d 533, 544 (Tex. App.—Austin 2002) (describing the best-interests standard as a subset of the parens patriae doctrine). But when our Nation inherited these doctrines from Mother England, we bequeathed them to the States—not the federal government. See Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251, 257 (1972) (“In the United States, the ‘royal prerogative’ and the ‘parens patriae’ function of the King passed to the States.“); Fontain v. Ravenel, 58 U.S. (1 How.) 369, 384 (1855) (“Powers not judicial, exercised by the chancellor merely as the representative of the sovereign, and by virtue of the king’s prerogative as parens patriae, are not possessed by the [federal] courts.“).4
And when States use their parens patriae powers to protect the best interests of the child, they do so because the parents cannot agree or because the child has no parents at all. See
Second, Dallas ISD’s invocation of the best-interest-of-the-child standard also proves too much. Even if state courts had freestanding best-interest powers, and even if federal courts had them too, it would prove that we need not create a general prohibition on parents’ rights to sue on behalf of their children. It’s precisely because some courts can sometimes intervene to prevent truly egregious harms that all courts cannot all-the-time intervene to prevent everyday parental decision-making. Thus, we need not decide here whether a federal court could intervene in a truly outrageous case to prevent a parent from prejudicing her unrepresented child’s legal rights. See, e.g.,
IV.
Lastly, a few words about the majority opinion. It claims that this dispute “starts and ends with the text of 28 U.S.C. § 1654.” Ante, at 3. And recall that the statute provides “parties may plead and conduct their own cases personally or by counsel.” The majority puts great weight on the phrase, “their own.” See id. at 3–4. It says that Ms. Raskin can represent her children pro se if, and only if, state or federal law clearly assigns the children’s case to Ms. Raskin—thus making their claims her “own.” Id. at 3–7. And the majority intimates that state and federal law might not be sufficiently clear in this regard. Id. at 7 n.5.
I am troubled by the majority’s approach for three reasons.
First, the majority’s rigid construction of
In all courts of the United States the parties [parentrepresentative] may plead and conduct their own [children’s] cases personally or by counsel.
Second, even if the majority’s interpretation of
Third, the majority puts undue emphasis on the general common-law presumption that non-attorneys can’t represent others. Here’s how the analysis goes. The majority cites a bevy of cases establishing a general presumption that, “at common law, non-attorneys could not litigate the interests of others,” ante, at 4–5; then, armed with one citation to a Supreme Court partial dissent, the majority extends this general common-law presumption to encompass parental pro se advocacy in particular, id. at 5; finally, it suggests that to litigate on their children’s behalf, pro se parents must identify a state or federal law that “expressly” “abrogates th[e] common-law rule or its corollary that non-attorney parents cannot act as attorneys for their children,” id. at 7 n.5; see also id. at 5–7. If Ms. Raskin wanted to represent her neighbor or her friend from church, then the majority’s conclusion might follow. But the parent-child relationship is far different from the relationship between an unlicensed non-attorney and a would-be client from the neighborhood or church. The parent-child relationship is a sacred, pre-political bond that preexists both the United States and Texas, and which is uniquely enshrined into state and federal law. That’s likely why none of the cases the majority cites points to any evidence that parents were prohibited from making legal decisions for their children at common law.
The closest the majority comes is its citation to one footnote in Justice Scalia’s partial dissent in Winkelman ex rel. Winkelman v. Parma City School District. 550 U.S. 516, 536 n.1 (2007) (Scalia, J., concurring in the judgment in part and dissenting in part); see ante, at 5. The footnote says, in relevant part:
[P]etitioners also argue that even if parents do not have their own rights under the statute, they nonetheless may act on behalf of their child without retaining a lawyer. Both sides agree, however, that the common law generally prohibited lay parents from representing their children in court, a manifestation of the more general common-law rule that nonattorneys cannot litigate the interests of another.
See Brief for Petitioners 37; Brief for Respondent 9–10; see also, e.g., Collinsgru v. Palmyra Bd. of Ed., 161 F.3d 225, 232 (C.A.3 1998). Nothing in the IDEA suggests a departure from that rule.
The majority cites this (and only this) for the proposition that non-attorney parents were prohibited at common law from representing their children pro se. But the foundation for the Winkelman footnote is shaky at best. For one, Justice Scalia’s partial dissent wasn’t controlling. Seven Justices disagreed with it. Moreover, the Winkelman majority explicitly declined to decide “whether IDEA entitles parents to litigate their child’s claims pro se.” Id. at 535. And finally, the sources Justice Scalia cited do not prove there was a common-law rule “prohibit[ing] lay parents from representing their children in court.” Id. at 536 n.1. Justice Scalia cited Collinsgru v. Palmyra Board of Education, 161 F.3d 225, 232 (3d Cir. 1998). But Winkelman abrogated Collinsgru, and Collinsgru only said there’s a general common-law presumption that “a non-lawyer may not represent another person in court“—not that there was a common law rule prohibiting parents from representing their children pro se. Ibid. And as I explain throughout this opinion, there’s good reason (recognized throughout English and American jurisprudence) to treat the parent-child relationship differently for these purposes. Justice Scalia also cited portions of the parties’ briefs, but they added nothing. The Winkelman petitioner, for example, discussed the general common-law principle that non-attorneys cannot represent others, then cited two cases that also did not discuss parents or children. Petitioner Br. at 37. And the Winkelman respondent cited Collinsgru, which—as explained above—only discussed the general pro se rule. Respondent Br. at 9–10. The Respondent then relied upon various circuit court cases holding that non-attorney parents must be represented by counsel when suing on behalf of their children. Ibid. That, of course, merely begs the question. Those cases also uniformly relied upon the general common-law presumption against pro se representation—not any text, history, or tradition regarding parents and their children.
* * *
Sadly, too many parents today do not share Ms. Raskin’s passionate desire to fight for her children. And even more sadly, too many organs of government today do share Dallas ISD’s passionate desire to stand between parents and their children. Ms. Raskin decided to fight back against that governmental effort, and her right to do so is both ancient and deeply rooted in American law and history. I can find nothing that justifies dismissing this case simply because Ms. Raskin and her children chose, as so many litigants understandably do, not to hire an attorney. Accordingly, I concur in the majority’s decision to vacate and remand. But I would further hold that Ms. Raskin and her children may proceed pro se, full stop. And I respectfully dissent from the majority opinion’s suggestion that Ms. Raskin must move in the district court to reinstate her original complaint.