*Of the United States Court of Appeals for the Sixth Circuit,

sitting by designation.

United States Court of Appeals

For the First Circuit

No. 03-1407

MICHAEL D. MARONI, as parent and next friend of MICHAEL M.,

Plaintiff, Appellant,

v.

PEMI-BAKER REGIONAL SCHOOL DISTRICT,

Defendant, Appellee.

No. 03-1700

MICHAEL D. MARONI, as parent and next friend of MICHAEL M.;

MARGARET A. MARONI, as parent and next friend of MICHAEL M.

Plaintiffs, Appellants,

v.

PLYMOUTH SCHOOL DISTRICT,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

 Lynch, Circuit Judge,

Lipez, Circuit Judge,

and Siler,* Senior Circuit Judge.
Scott F. Johnson for appellants.

Diane M. Gorrow for appellees.

Colleen Cronin and Wendy Paget on brief for amici curiae

Disability Rights Center, Inc., and National Association of

Protection and Advocacy Systems, in support of appellants.

October 9, 2003
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LYNCH, Circuit Judge. Michael M. is a student with

disabilities within the meaning of the Individuals with

Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. That

Act grants rights intended to lead school districts to provide

disabled students with a free appropriate public education (FAPE).

Id. § 1412(a)(1). Michael and his parents brought two federal

lawsuits to assert rights under IDEA. Both suits were dismissed

sua sponte by the district court because the parents proceeded

without counsel. We hold that this was error and reverse. 

I.

Michael M. was a middle school student in the Plymouth

School District from 1998 to 2001 and then became a high school

student in the Pemi-Baker Regional School District after 2001. In

both school systems, he and his parents sought due process hearings

under the Act regarding Michael's individualized education program

(IEP) and the procedures employed to develop and implement it.

Dissatisfied in each instance with the findings and decision

reached in the hearings, the Maronis then sought judicial review

under IDEA. They instituted suit in federal court, without

counsel, against Plymouth on December 18, 2001, and then against

Pemi-Baker on November 20, 2002. In the suit against Plymouth, the

caption of the complaint included Michael M. and his parents, and

in the suit against Pemi-Baker, it included Michael M. and his

father. In each suit, Michael M.'s parent(s) purportedly sued as
1As explained later, Collinsgru would not justify denial of a

motion to amend inasmuch as that case permits parents to sue under

IDEA for procedural rights and the complaint here asserted such

claims. 

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his next friend. Neither school district objected to the parent(s)

bringing the cases on a pro se basis. Nonetheless, a magistrate

judge for the District of New Hampshire, performing a screening

function in pro se cases, concluded that Michael's father could not

sue pro se as next friend under 28 U.S.C. § 1654 in the Pemi-Baker

case. Michael's father then sought to amend their complaint to

assert what he claimed were his own rights under IDEA. Pemi-Baker

opposed the motion to amend, arguing that Michael's father had no

individual claim under IDEA. The magistrate judge denied the

motion to amend without discussion except a citation to Collinsgru

v. Palmyra Board of Education, 161 F.3d 225 (3rd Cir. 1998).1

Adopting the magistrate judge's reasoning, the district court then

dismissed the complaint without prejudice on January 23, 2003.

Michael's father filed a motion to reconsider on February

7, 2003. In the supporting affidavit, he admitted that the Maronis

did not meet the financial need criteria for court-appointed

counsel, but indicated that they had been unable to find a lawyer

who would take the case on a pro bono or contingency basis. The

court denied the motion on March 10, 2003.

On the same day, the same district court judge held that

Michael's parents also could not proceed pro se in the suit against
2State law is used to determine the age of majority. Fed. R.

Civ. P. 17(b). IDEA provides a free appropriate public education

to children aged three through twenty-one. 20 U.S.C. §

1412(a)(1)(A). Claims are mooted after students turn twenty-two.

See, e.g., St. Johnsbury Acad. v. D.H., 240 F.3d 163, 168-69 (2d

Cir. 2001).

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the Plymouth School District. The court stated that non-attorney

parents could not appear pro se for their children in IDEA cases

and that the case would be dismissed if Michael did not appear with

counsel by April 18, 2003. Michael's parents, acting on his behalf

as next friends, then filed a motion for the court to appoint

counsel based on Michael's lack of financial resources. The court

denied their motion without discussion. On April 28, 2003, the

court dismissed the case because "no appearance [had] been filed on

behalf of Michael M. by an attorney authorized to practice in this

court." 

The Maronis appeal the dismissal of both cases, arguing

that the district court erred in prohibiting them from pursuing

claims for procedural and substantive violations of IDEA without an

attorney. In their brief, the Maronis also request that this court

reverse the denial of appointment of counsel if it finds that they

may not pursue their claims without a lawyer. This court

consolidated the two appeals.

II.

Michael M. is a minor, as are most children with IDEA

claims.2 Were Michael M. an adult, he could proceed pro se by
3Two circuits have created a similar exception in cases

contesting the denial of Supplemental Security Income benefits to

children, and have held that parents may sue pro se as next friends

on behalf of their child in such cases. See Machadio v. Apfel, 276

F.3d 103, 105 (2d Cir. 2002); Harris v. Apfel, 209 F.3d 413, 417

(5th Cir. 2000).

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virtue of 28 U.S.C. § 1654, which provides that "[i]n all courts of

the United States the parties may plead and conduct their own cases

personally or by counsel as, by the rules of such courts,

respectively, are permitted to manage and conduct causes therein."

Because of his minority, he is disqualified from representing

himself. Here, his parents seek to do what Michael's age prevents

him from doing.

The Maronis advance two themes as to why they should be

permitted to proceed pro se. The first theme, which we will call

a statutory joint rights theory, is that IDEA itself grants

"parties aggrieved" the right to bring suit in federal court

asserting statutory violations and that parents are "parties

aggrieved." If parents are indeed parties under IDEA, they may

then proceed pro se under 28 U.S.C. § 1654. The second theme, the

common law next-friend theory, is that courts should create an

exception exempting IDEA cases from the usual common law rule

preventing non-attorney parents from proceeding pro se on behalf of

their minor child.3

The issue is one of first impression for this court.

Without addressing the issue before us, this court has referred to
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parents as "aggrieved parties" entitled to judicial review under

IDEA. In Providence School Dep't v. Ana C., 108 F.3d 1 (1st Cir.

1997), we stated that "[u]nder the provisions of the IDEA, all

aggrieved parties, school committees and parents alike, are

entitled to judicial review." Id. at 4; see also Rafferty v.

Cranston Pub. Sch. Comm., 315 F.3d 21, 25 (1st Cir. 2002) ("[After

a due process hearing, a]ny aggrieved party can appeal the findings

and decision of the hearing officer to the state educational

agency. If the parent remains dissatisfied, she can bring a civil

action in federal district court." (citations omitted) (emphasis

added)). This court has also treated parents as having rights

under IDEA. See Maine Sch. Admin. Dist. No. 35 v. Mr. & Mrs. R.,

on their own behalf and on behalf of their son, S.R., 321 F.3d 9,

18 (1st Cir. 2003) ("[P]arents ordinarily must exhaust their

administrative remedies before appealing to a federal court . . .

."); Weber v. Cranston Sch. Comm., 212 F.3d 41, 51 (1st Cir. 2000)

(finding parents' claims to be within the zone of interests

protected under IDEA and citing IDEA's statement of statutory

purpose, which specifies the statute's mission "to ensure that the

rights of children with disabilities and parents of such children

are protected"); Kathleen H. v. Mass. Dep't of Educ., 154 F.3d 8,

13 (1st Cir. 1998) (assuming without discussion that parents can be

named plaintiffs in their individual capacity in an IDEA suit).

These rights have included not only procedural but also substantive
-7-

rights. See Maine Sch. Dist., 321 F.3d at 17-18 (referring to

parents' rights in the context of a compensatory education claim,

which entitles a child to further special education services under

IDEA to compensate for past deprivations); Kathleen H., 154 F.3d at

13 (involving judicial review of substantive claims raised in a due

process hearing).

Although this court has not directly considered the issue

before us, the legal landscape is not empty on this question. Two

circuits have interpreted IDEA as granting parents the right to sue

pro se for procedural violations. Collinsgru, 161 F.3d at 233

("[IDEA] clearly grants parents specific procedural rights, which

they may enforce in administrative proceedings, as well as in

federal court."); Wenger v. Canastota Cent. Sch. Dist., 146 F.3d

123, 125 (2d Cir. 1998) (per curiam) ("[The parent of a child with

special needs] is, of course, entitled to represent himself on his

claims that his own rights as a parent under the IDEA were violated

by the [school district's] failure to follow appropriate

procedures."). Collinsgru further held, over a strong dissent,

that parents could not sue pro se for "substantive" claims (i.e.,

denial of FAPE). We read Wenger as not discussing this latter

issue, although it does prohibit parents from proceeding pro se on

behalf of their children as next friends. See Wenger, 146 F.3d at

124 (relying on the common-law rule against non-attorney parents

representing their children pro se in civil suits). In addition,
4But see Doe v. Bd. of Educ. of Baltimore County, 165 F.3d

260, 263-64 (4th Cir. 1998) (in the context of determining whether

attorney-parents may recover attorneys' fees for representing their

children in IDEA cases, stating that "we do not believe that the

IDEA's provision of rights to parents means that an attorney-parent

actually represents himself when he pursues IDEA services for his

child").

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two other circuits have held without analysis that parents may not

sue pro se on behalf of their children under IDEA. See Navin v.

Park Ridge Sch. Dist. 64, 270 F.3d 1147, 1149 (7th Cir. 2001)

(citing without further explanation cases in other circuits);

Devine v. Indian Ridge County Sch. Bd., 121 F.3d 576, 581-82 (11th

Cir. 1997) (stating without explanation that "there is no

indication that Congress intended to [allow parental representation

in] federal court" for IDEA claims). Conversely, one circuit has

assumed, without discussion, that parents may bring their own

substantive claims in district court. Kirkpatrick v. Lenoir County

Bd. of Educ., 216 F.3d 380, 383 (4th Cir. 2000) (treating parents

as within the "parties aggrieved" requirement of IDEA because 20

U.S.C. § 1415(i)(2)(A) provides that "[a] party that is unsatisfied

with the state review officer's decision has further recourse in

either federal or state court" and the parents were "dissatisfied"

with the officer's decision regarding their claims that their

daughter was denied FAPE).4

Courts have also, without discussion, almost uniformly

permitted parents to sue pro se under the predecessor statute to

IDEA, the Education for All Handicapped Children Act (EHA), 20
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U.S.C. § 1401 et seq. See Kruelle v. New Castle County Sch. Dist.,

642 F.2d 687, 690 & n.4 (3rd Cir. 1981) (parents may proceed pro se

under the EHA, with the court noting without further explanation

that the statute allows any "party aggrieved" by a due process

hearing to sue in federal district court); Susan R.M. v. N.E.

Indep. Sch. Dist., 818 F.2d 455 (5th Cir. 1987) (pro se parent may

bring suit under the EHA, without discussion); Gregory K. v.

Longview Sch. Dist., 811 F.2d 1307 (9th Cir. 1987) (same);

Schreiber v. Ridgewood Bd. of Educ., 952 F. Supp. 205 (D.N.J. 1997)

(same); Muth v. Central Bucks Sch. Dist., 839 F.2d 113 (3d Cir.

1988) (parent may proceed with pro se appeal under the EHA, without

discussion), rev'd on other grounds sub nom., Dellmuth v. Muth, 491

U.S. 223 (1989); Rettig v. Kent City Sch. Dist., 788 F.2d 328 (6th

Cir. 1986) (same). IDEA employs the same "party aggrieved"

language as the EHA regarding who may bring suit. Compare 20

U.S.C. § 1415(e)(2) (1994) (superseded 1997), with 20 U.S.C. §

1415(i)(2)(A). 

For the reasons that follow, we conclude that parents are

"parties aggrieved" within the meaning of IDEA, 20 U.S.C. §

1415(i)(2)(A), and thus may sue pro se. We also conclude that they

are "parties aggrieved" regardless of whether the rights asserted

are procedural or substantive. In so holding, we acknowledge the

legitimate interests of the school districts, which never sought

the dismissal of these actions but chose to defend those dismissals
-10-

on appeal. The school districts take the position that parents may

not sue pro se for either procedural or substantive rights under

IDEA. They are concerned that permitting parents to proceed pro se

will mean more meritless IDEA suits will be brought, requiring

school districts to hire counsel and placing a considerable burden

on their already stretched budgets. The concern is real; still,

there are ways to lessen the risk, discussed later. In the end, it

is Congress that makes these policy judgments. Our view is that

Congress, in enacting IDEA, thought that risk an acceptable price

to pay to vindicate the aims of the statute, which seeks "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 and prepare

them for employment and independent living." 20 U.S.C. §

1400(d)(1).

A. Statutory Text of IDEA

The right-to-sue provision of IDEA, 20 U.S.C. §

1415(i)(2)(A), provides that "[a]ny party aggrieved by the findings

and decision made [in a due process hearing] under subsection (f)

or (k) . . . , and any party aggrieved by the findings and decision

[regarding attorneys' fees] under this subsection, shall have the

right to bring a civil action . . . in a district court of the
5The language in the first set of ellipses is "who does not

have the right to an appeal [to the state educational agency] under

subsection (g)." 20 U.S.C. § 1415(i)(2)(A). This is an exhaustion

requirement. There is a right to sue from state educational agency

hearings, which are themselves subsection (f) hearings. 20 U.S.C.

§ 1415(f).

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United States."5 The initial question is whether the term "party

aggrieved" includes parents. We view this as a pure issue of

statutory construction. If Congress included parents within the

term "parties aggrieved," then the issue of whether parents as next

friends under the common law may be parties under 28 U.S.C. § 1654

is irrelevant.

On a plain reading of the statute, we conclude that

parents are "parties aggrieved." In IDEA cases, federal courts

review the outcome of due process hearings. IDEA grants parents

the right to invoke those due process hearings under subsections

(f) and (k): "Whenever a complaint has been received . . ., the

parents involved in such complaint shall have an opportunity for an

impartial due process hearing . . . ." Id. § 1415(f)(1). "If the

child's parent disagrees with a determination that the child's

behavior was not a manifestation of the child's disability or with

any decision regarding placement, the parent may request a

hearing." Id. § 1415(k)(6)(A)(i). Other sections of IDEA also

refer to parents' right to a due process hearing. See id. §

1415(e)(2)(A)(ii) (requiring that mediation not be used to "deny or

delay a parent's right to a due process hearing"). Under IDEA,
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states may permit parents to transfer this right to a due process

hearing to their child only after their child reaches the age of

majority. See id. § 1415(m)(1)(B). Because the statute enables

parents to request due process hearings, they are parties to such

hearings and thus are logically within the group of "parties

aggrieved" given the right to sue.

This reading is buttressed by the provisions of IDEA that

allow appeals to the state educational agency. When a due process

hearing is conducted before a local educational agency, 20 U.S.C.

§ 1415(g) permits "any party aggrieved by the findings and decision

rendered in such a hearing [to] appeal such findings and decision

to the State educational agency." In interpreting section 1415(g),

this court has treated parents as "parties aggrieved" who may bring

appeals to the state educational agency. See Frazier v. Fairhaven

Sch. Comm., 276 F.3d 52, 59 (1st Cir. 2002) (describing section

1415(g) as providing that "if the [due process] hearing is

conducted at the local level, the parent may then appeal to the

state agency"). Other circuits have done the same. See, e.g.,

Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1064 (10th Cir.

2002); Bd. of Educ. v. Kelly E. ex rel. Nancy E., 207 F.3d 931, 935

(7th Cir. 2000). If parents are "parties aggrieved" by due process

hearings when seeking to appeal to a state administrative agency,

then, logically, they are also parties aggrieved by due process

hearings when seeking judicial review. We see no reason that the
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term "party aggrieved" should have a different meaning in section

1415(i) than in section 1415(g). 

This interpretation is further supported by the

requirement of administrative exhaustion. Generally, the right to

bring an IDEA action under 20 U.S.C. § 1415(i)(2)(A) is subject to

the condition precedent that an "aggrieved party" must exhaust

administrative remedies, although there are exceptions. Frazier,

276 F.3d at 59. By statute, it is the parents who may invoke those

administrative remedies. See 20 U.S.C. § 1415(f)(1). It would

make little sense if the parents who are explicitly permitted to

invoke those administrative remedies and to exhaust them could not

be parties for purposes of bringing suit.

The school districts argue that if Congress had intended

the term "party aggrieved" under IDEA to mean parents, it would

have explicitly said so. Congress did explicitly say that parents

could bring due process hearings, and so, the argument is made, the

rule of expressio unius est exclusio alterius means that Congress

did not intend parents to be able to sue. This rule has no

application here. Congress needed to include several categories of

plaintiffs and so used a collective term. The statute does not

refer to "child aggrieved" as it easily could if only the child

could sue. Nor does § 1415(i)(2)(A) refer to school districts,

even though they may seek review under it. See Manchester Sch.

Dist. v. Crisman, 306 F.3d 1, 4 & n.3 (1st Cir. 2002) (reviewing a
6This case does not involve the question of whether attorney

parents proceeding pro se may recover attorneys' fees. Contrast

Doe, 165 F.3d at 263.

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federal civil suit by a school district under § 1415(i)(2)(A));

Maine Sch. Admin. Dist., 321 F.3d at 16 (noting that the school

district "could have appealed [the due process hearing] as part and

parcel of judicial review [provided under] 20 U.S.C. §

1415(i)(2)(A)"). The more likely explanation for IDEA's use of the

term "party aggrieved" instead of "parents" is that Congress sought

to confer the right to judicial review of due process hearings upon

all parties involved in such hearings: school districts, parents,

and children.

The school districts also argue that the term "party

aggrieved" does not include parents because the attorneys' fees

provision, 20 U.S.C. § 1415(i)(3)(B), refers to the child as the

"prevailing party." To put the phrase in context, the award is

expressly made "to the parents of a child with a disability who is

the prevailing party."6 Id. If anything, that language suggests

parents are aggrieved parties who bear the costs and benefits of a

successful suit. Indeed, IDEA's attorneys' fees provision also

uses the phrase "prevailing party" to refer to parents. See id. §

1415(i)(3)(E) (providing that "an award of attorneys' fees and

related costs may be made to a parent who is a prevailing party" in

certain circumstances). This dual usage undercuts any argument
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that the attorneys' fees provision requires the term "party

aggrieved" to exclude parents.

The more significant argument raised by the school

district is that because Congress provided a means for prevailing

children and their parents to recover attorneys' fees, Congress

wanted to preclude pro se pursuit of IDEA cases. While plausible,

this interpretation of Congress's intent would lead to perverse

results. It is one thing to say Congress intended to encourage

attorneys to represent plaintiffs in IDEA claims by allowing for

attorneys' fees. It is entirely another to say that Congress

intended to preclude plaintiffs' suits from going forward pro se

without counsel. That Congress tried to remove one impediment to

the bringing of IDEA suits hardly means Congress intended, sub

silentio, to erect another impediment by forbidding pro se suits by

parents. That is not how attorneys' fees provisions in the other

civil rights statutes have been viewed. Although many civil rights

statutes provide for attorneys' fees, see, e.g., 42 U.S.C. § 12205

(Americans with Disabilities Act); 42 U.S.C. § 1988 (28 U.S.C. §§

1981, 1983, Title VI, and Title IX); 42 U.S.C. § 2000a-3(b) (Title

II); 42 U.S.C. § 2000e-5(k) (Title VII); 29 U.S.C. § 794a(b)

(Rehabilitation Act), none of these provisions has been interpreted

as indicating a legislative intent to prohibit pro se suits. For

these reasons, as well as the larger statutory scheme of IDEA
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discussed below, we reject the school districts' position that

parents are not "parties aggrieved" under IDEA for any purpose.

That leaves the question whether parents are "parties

aggrieved" under 20 U.S.C. § 1415(i)(2)(A) only for purposes of

pursuing claims of procedural violations, but not claims of

substantive violations. This is the view of one circuit, see

Collinsgru, 161 F.3d at 233, and perhaps another, see Wenger, 146

F.3d at 125, and is certainly plausible. The core reasoning is

that parents are "aggrieved" only to the extent that they have

rights under the statute and the only rights they expressly have

are procedural. The school districts, notably, do not adopt this

view -- the problems created for them by permitting pro se suits do

not go away by creating a distinction between procedural and

substantive claims. Further, the school districts are likely

mindful that the distinction is often far from clear; they probably

do not wish to spend their defense dollars litigating the issue of

what is procedural and what is substantive, or what consequences

follow from that determination. 

Again, this is an issue of statutory interpretation: are

parents "parties aggrieved" for purposes of asserting substantive

claims of denial of a free appropriate public education under IDEA?

The statute, we conclude, leads to the interpretation that they

are.
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First, the "parties aggrieved" provision does not make a

distinction between procedural and substantive claims. As a

general rule of administrative law, parties can be "aggrieved" by

both substantive and procedural injuries. See Cella v. Togum

Constructeur Ensemleier En Industrie Alimentaire, 173 F.3d 909, 911

(3rd Cir. 1999); cf. FEC v. Akins, 524 U.S. 11, 19 (1998) ("History

associates the word 'aggrieved' with a congressional intent to cast

the standing net broadly . . . ."). In determining whether a party

is "aggrieved" by an administrative decision and may thus seek

judicial review, the issue is usually not whether the injuries are

substantive or procedural.

Rather, the issue is usually whether the party satisfies

the constitutional and prudential standing requirements. See,

e.g., Kan. City S. Indus., Inc. v. ICC, 902 F.2d 423, 429 (5th Cir.

1990) ("To determine whether a petitioner is aggrieved under 28

U.S.C. § 2344 [a statute permitting 'parties aggrieved' to seek

judicial review of final orders by specified agencies], we

generally incorporate traditional article III and prudential

standing analysis."). To satisfy Article III standing, parties

must show injury-in-fact, causation, and redressability.

McInnis-Misenor v. Maine Medical Center, 319 F.3d 63, 67 (1st Cir.

2003). To meet the prudential standing restrictions, parties must

show that the harm asserted is to themselves and not a generalized

grievance pervasively shared by a large class of citizens, and in
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statutory cases, that the claim is within the "zone of interests"

protected by the statute. Id. at 68.

As to constitutional standing, parental IDEA suits meet

the causation and redressability requirements. The primary issue

is injury-in-fact. Parents whose children are denied FAPE suffer

the injury-in-fact of either paying for private educational

services or risking that their children's education will not fully

prepare their children for employment and independent living. See

Ores v. Willow West Condo. Ass'n, 15 A.D.D. 275 (N.D. Ill. 1996)

(finding that parents suffered injury-in-fact when their disabled

adult sons were denied housing on a discriminatory basis under the

Fair Housing Act, because their sons lost the opportunity to live

independently and the parents thus faced the financial and

emotional burden of continuing to support them). That this injury

to parents is based on harm that their child also suffers does not

serve as a basis for distinguishing procedural and substantive IDEA

claims. When parents raise procedural claims, their injuries are

likewise based on harm to their child; they cannot recover unless

there is "some rational basis to believe that procedural

inadequacies compromised the pupil's right to an appropriate

education, seriously hampered the parents' opportunity to

participate in the formulation process, or caused a deprivation of

educational benefits." Roland M. v. Concord Sch. Comm., 910 F.2d

983, 994-95 (1st Cir. 1990); see also Kings Local School Dist., Bd.
7In drawing such a distinction, the Third Circuit in

Collinsgru relied, inter alia, on a presumption against allowing

parents to seek review regarding substantive claims, based on two

rationales: (1) that implied rights of action are disfavored, and

that allowing parents to proceed pro se on substantive claims is

analogous to creating an implied right of action, and (2) that

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of Educ. v. Zelazny, 325 F.3d 724, 732 (6th Cir. 2003) (stating

that a serious infringement on a parent's opportunity to

participate in the formulation of his or her child's IEP is

actionable because it causes "substantive harm ... and thus

constitute[s] a denial of the child's right to a FAPE"). 

As to prudential standing requirements, this court has

found that parental IDEA claims satisfy the zone-of-interests test

when they are "related to the identification, evaluation, or

educational placement of [the claimant's] child . . . , [or] the

provision of a free appropriate public education." Weber, 212 F.3d

at 51 (finding the test satisfied when the parent raised a

retaliation claim under IDEA). Substantive IDEA claims, by

definition, meet this standard. Parental IDEA suits also satisfy

the other two prudential standing restrictions. Such suits assert

parents' own right to seek judicial review under 20 U.S.C. §

1415(i)(2)(A). And the claimed harm to their child's education is

not a generalized grievance.

Second, none of the provisions of IDEA regarding the

right of parents to seek relief in administrative or judicial

hearings draws a distinction between substantive and procedural

rights.7 Due process hearings address both procedural and
Congress legislates against the background of the common law, and

that at common law, a non-lawyer may not represent another person

in court. See Collinsgru, 161 F.3d at 231-34. As to the first

rationale, Congress has already created an express right of action

to seek review of administrative determinations under 20 U.S.C. §

1415(i)(2)(A). The issue is one of ordinary statutory

interpretation: whether the term "parties aggrieved" in §

1415(i)(2)(A) applies to parents as well as children. No right of

action is being implied and, hence, no presumption need be made

concerning Congress's likely intent. Cf. Franklin v. Gwinnett

County Pub. Sch., 503 U.S. 60, 70-71 (1992) (treating the issue as

one of ordinary statutory interpretation where Congress has

expressly created a remedy but the scope of the remedy is

disputed). As to the second rationale, it is precisely because

common law rules present barriers to parental representation that

Congress chose to make parents partners to due process hearings and

to give the right to sue to "parties aggrieved" by those hearings.

If we are wrong in our interpretation or if our interpretation

leads to too many difficulties, Congress may remedy the situation.

8It is true that IDEA does not have a broad enforcement

provision granting standing to any person aggrieved by any

violation of the Act. See Weber, 212 F.3d at 50. That is

irrelevant here because these federal court actions are to review

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substantive issues. A party to an IDEA due process hearing has

rights to present evidence, confront and cross examine witnesses,

and compel testimony. 20 U.S.C. § 1415(h). IDEA's complaint

provision affords parents the "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.

§ 1415(b)(6) (emphasis added). If the parents may pursue

substantive claims of denial of FAPE at due process hearings, they

should be able to pursue substantive claims when they are aggrieved

by the outcome of the due process hearings at which they presented

those claims.8
the outcome of due process hearings. Indeed, in Weber, we found

that a parent asserting a separate retaliation claim had standing

under IDEA in light of the central role played by parents in

advancing their child's interests. Id. at 51.

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Similarly, the attorneys' fees provision does not

distinguish between procedural and substantive claims. If parents

reject settlement offers that meet certain criteria, they cannot

recover attorneys' fees under IDEA. 20 U.S.C. § 1415(i)(3)(D).

This is true regardless of whether the parents reject settlements

for procedural or substantive claims.

Third, procedural and substantive rights under IDEA are

inextricably intertwined. The Supreme Court stated as much in

rejecting the argument that courts have the authority only to

review for compliance by states with IDEA's procedural requirements

and not for the "substance of the state program." See Bd. of Educ.

v. Rowley, 458 U.S. 176, 205-06 (1982) (finding that the procedural

protections of IDEA are based on "the legislative conviction that

adequate compliance with the procedures prescribed would in most

cases assure much if not all of what Congress wished in the way of

substantive content"). "IDEA's procedural guarantees . . . serve

not only to guarantee the substantive rights accorded by the Act;

the procedural rights, in and of themselves, form the substance of

IDEA. Congress addressed the problem of how to guarantee

substantive rights to a diverse group by relying on a process-based

solution." Heldman v. Sobol, 962 F.2d 148, 155 (2d Cir. 1992); see

also Mrs. C. v. Wheaton, 916 F.2d 69, 72 (2d Cir. 1990) (basing the
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conclusion that parties may be "aggrieved" under the Education of

the Handicapped Act by the denial of their procedural claims on the

argument that parties may be aggrieved by the denial of their

substantive claims and that the two types of violations are

intertwined).

B. Statutory Structure of IDEA

The interpretation of parents as "parties aggrieved" for

both procedural and substantive claims is further confirmed by the

structure of IDEA, which relies upon "the central role played by

parents in assuring that their disabled child receives a free

appropriate public education." Weber, 212 F.3d at 51 (quotation

marks omitted). 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)

(emphasis added).

IDEA provides for extensive parental involvement in the

"centerpiece" of the statute: the individualized education program,

which "describes the disabled child's academic goals and special

education services." Weber, 212 F.3d at 51. IDEA designates

parents as part of the IEP team, 20 U.S.C. § 1414(d)(1)(B)(i),
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mandates revision of the IEP to address information provided either

by or to parents regarding the child's educational needs and

services, id. § 1414(d)(4)(A)(ii)(III), and requires parents to be

members of any group making decisions regarding the educational

placement of their child, see id. § 1414(f).

In general, IDEA requires that state educational agencies

"establish and maintain procedures . . . to ensure that children

with disabilities and their parents are guaranteed procedural

safeguards with respect to the provision of [FAPE]." Id. § 1415(a)

(emphasis added). Under IDEA, school districts must obtain

parental consent for educational evaluations, id. §§

1414(a)(1)(C)(i) & 1414(c)(3), and must provide written prior

notice to parents of any proposed changes to the identification,

evaluation, or educational placement of their child, id. §

1415(b)(3). They must also provide "an opportunity for the parents

of a child with a disability to examine all records relating to

such child and to participate in meetings 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 educational evaluation of the

child." Id. § 1415(b)(1). 

IDEA expressly contemplates that parents will act as

advocates for their children at every stage of the administrative

process, from initial IEP meetings to administrative due process
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hearings. IDEA regulations actually discourage parents and school

districts from bringing attorneys to IEP meetings. See 34 C.F.R.

Part 300, App. A ("The presence of the agency's attorney could

contribute to a potentially adversarial atmosphere at the meeting.

The same is true with regard to the presence of an attorney

accompanying the parents at an IEP meeting.") (answer to question

29). Similarly, at due process hearings, parents have the option

of proceeding pro se or being accompanied by non-attorney

"individuals with special knowledge or training with respect to the

problems of children with disabilities." 20 U.S.C. § 1415(h)(1).

Although IDEA grants parents the right to be accompanied by counsel

at due process hearings, the presence of counsel is not required.

See id. IDEA also authorizes the establishment of parent training

centers to improve parents' effectiveness as advocates for their

children. See id. § 1482. These provisions for parental

involvement are so central to IDEA's statutory scheme that when a

child's parents are not known or cannot be located, IDEA provides

for a surrogate to be assigned to "protect the rights of the

child." Id. § 1415(b)(2). It would be odd for Congress to exclude

parents from the definition of "parties aggrieved" as to

substantive claims, and thus force them to find attorney

representation at the federal court level, after giving parents

such a strong role at every other stage of the process.
9The amici brief submitted by the Disability Rights Center

(DRC) and National Association of Protection and Advocacy Systems

(NAPAS) sets forth the scarcity of representation available to

families seeking assistance with special education matters. The

DRC, which is New Hampshire's Protection and Advocacy Agency (P&A),

reported that it could provide full representation in only 35 of

390 special education inquiries in 2002. Other P&As report similar

shortages nationwide. Since 2000, Alaska's P&A provided

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C. Congressional Intent and Legislative History

The statutory language and structure of IDEA resolve the

issue of whether parents may proceed pro se on both procedural and

substantive IDEA claims. Still, we check our conclusions against

the legislative history to be sure there are no strong indications

that the statute should be read otherwise. Nothing in the

legislative history of IDEA suggests that Congress intended that

IDEA cases as a whole or substantive IDEA claims alone could be

brought in federal court only by lawyers. Far from demonstrating

an intent to circumscribe parental involvement, the legislative

history indicates Congress's commitment to encouraging parental

involvement at every step of IDEA's enforcement process. The

Senate Committee report recommending passage of IDEA's predecessor

statute expressed its intention "to provide parent involvement and

protection to assure that appropriate services are provided to a

handicapped child." See Collinsgru, 161 F.3d at 237-38 (Roth, J.,

dissenting) (quoting the EHA, S. Rep. No. 94-168, at 11-12 (1975)).

A rule prohibiting pro se representation would subvert

Congress's intent by denying many children with special needs their

day in court.9 Where parents could not obtain representation or
representation in only 183 of 1,092 requests for help in special

education matters, and Arizona's P&A did so in only 300 of 4,800

cases. Since October 1999, Michigan's P&A handled only 840 out of

6,015 education-related requests. Massachusetts's P&A provides

representation in less than 10% of special education cases, and

Wisconsin's P&A does so in about 25% of cases that it deems

meritorious. In New York, one full-time and one part-time attorney

handle over 2,000 requests for help in special education cases.

When parents cannot obtain representation from P&As, they face

the even more difficult task of finding private representation. In

the amici brief, P&As testify to the shortage of such private

attorneys on their referral lists: Michigan has eight, Rhode Island

has six, Wisconsin has fewer than ten, Texas has twenty-nine, and

Arizona has only one. P&As note that most lawyers are reluctant to

accept cases from families seeking judicial review of IDEA due

process hearings because such cases require review of extensive

administrative records. P&As observe that most lawyers will refuse

to take such cases unless they represented the family in the due

process hearing.

10Parents already have to spend family resources on litigation

even to proceed pro se in court. The filing fee in district court

is $150. An appeal to a court of appeals requires an additional

$105 filing fee.

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chose not to pay for counsel,10 many children with special needs

would be precluded from exercising their statutory right to

judicial review of their administrative due process hearings. It

is insufficient to answer that district courts can solve the

problem by soliciting counsel to undertake a case or by encouraging

outside representation through the award of attorneys' fees to

prevailing parties under section 1415(i)(3)(B) of IDEA. It may be

difficult for the court to locate counsel willing to act pro bono

in complicated, record-intensive cases; there is no constitutional

right to appointed counsel in a civil case, Andrews v. Bechtel

Power Corp., 780 F.2d 124, 137 (1st Cir. 1985). And attorneys'
11New Hampshire, for example, permits parents to sue on a pro

se basis in state court as long as they are deemed "person[s] of

good character." N.H. Rev. Stat. Ann. § 311:1.

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fees are a partial incentive at best, as they are awarded only to

prevailing parties.

Furthermore, holding that parents are not "parties

aggrieved" -- either for all claims or for substantive claims --

would create another anomaly that we think Congress did not intend.

IDEA gives both state and federal courts jurisdiction to hear

claims under the statute. 20 U.S.C. § 1415(i)(2)(A). Where state

statutes permit parents to proceed pro se in state court as next

friend of their children,11 school districts could remove the cases

to federal court, which would have original jurisdiction under

federal question jurisdiction, 28 U.S.C. § 1331, and the IDEA right

to sue provision, 20 U.S.C. § 1415(i)(2)(A). See Breuer v. Jim's

Concrete of Brevard, Inc., 123 S.Ct. 1882, 1885-86 (2003) (removal

is permissible where jurisdiction expressly lies in both federal

and state court, even if it interferes with the plaintiff's choice

of forum). If the parents did not obtain representation in federal

court, it is likely that the case would be remanded to state court,

thus causing further cost and delay. See Maine Ass'n of

Interdependent Neighborhoods v. Comm'r of Maine Dep't of Human

Servs., 876 F.2d 1051, 1054 (1st Cir. 1989); Mills v. Harmon Law

Offices, 2003 WL 22111105, No. 03-1091, at *3 (1st Cir. Sept. 12,

2003). 
12Amici report that school districts are not represented by

counsel in approximately 8% of cases before the First Circuit and

the courts of New York and Texas that were reported in the

Education Law Reporter. 

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School districts are usually represented by counsel and

have, in that sense, a built-in advantage over other IDEA

litigants.12 We find it unlikely that Congress intended to put

parents who attempt to proceed pro se at the even greater

disadvantage of preventing their suits from going forward at all.

Such an outcome subverts "Congress's original intent [in the

precursor statute to IDEA] . . . 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. No. 99-112, at 2 (1986) (emphasis added).

There are, as Collinsgru expresses, some practical

concerns about recognizing parents as "aggrieved parties."

Children whose interests are advanced by parents who sue pro se may

not have the best advocates. Parents may be emotionally involved

and not exercise rational and independent judgment. See Doe v. Bd.

of Educ., 165 F.3d 260, 263 (4th Cir. 1998). But that is better

for the child than having no advocate at all. Pro se litigants

also impose unusual burdens on courts, and there is a desire to

save courts and school districts from "poorly drafted,

inarticulate, or vexatious claims." Collinsgru, 161 F.3d at 231.

These are risks of the outcome we reach, but risks that can be

dealt with as other pro se problems are. Important interests are
13Because IDEA grants parents the right to sue, we do not reach

the question of whether the parent or the child is the real party

in interest in a parent's IDEA suit. Congress has granted parents

a right of action under IDEA regardless of whether their IDEA suits

present procedural or substantive claims. Given our resolution of

the issue, we need not reach the common law next-friend theory

either. Finally, because we find that the Maronis may proceed

without counsel, we need not reach their request for reversal of

the district court's denial of appointment of counsel.

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at stake in IDEA, and permitting pro se litigation may make it more

likely that those interests will be successfully vindicated. By

contrast, the rule we have rejected guarantees that many claims

that should be vindicated will never receive a full hearing in

court.13

III.

Accordingly, we reverse and vacate the judgment of

dismissal in both actions. We remand and direct that the motion to

amend be allowed in Maroni v. Pemi-Baker Regional School District

and the parents be given a reasonable time to amend in the Maroni

v. Plymouth School District action, in accordance with our opinion.

No costs are awarded. So ordered.