What can parents do when they believe their child is not receiving a free appropriate public education but cannot afford to hire an attorney to help enforce their child's rights? What if an attorney is not available from the local legal aid clinic or state protection and advocacy agency? What other options for finding legal assistance are available for families? How can parents hold schools accountable for complying with the Individuals with Disabilities Education Act?

Accountability is one of the 18 core concepts of disability policy affecting families who have children with disabilities (Turnbull, Beegle and Stowe, 2001). Its premise is simple: policy makers and service providers must be accountable for creating and carrying out policy that affects families and their children.

IDEA grants parents the right to challenge any proposal by a school to change or initiate, or refuse to change or initiate any aspect of the free appropriate public education services provided to their child. Such aspects include the identification, evaluation, and educational placement of their child, among many others.

To carry out their challenge rights, IDEA grants parents the right to demand a due process hearing – essentially, a quasi-judicial, administrative trial. Parents may be "represented" by an attorney at these hearings. But, to hire an attorney, a family must have the necessary financial resources. That's not always easy. As President Lincoln noted, a lawyer's time equates with money.

Sadly, there is a significant shortage of competent and affordable lawyers to represent families. That fact mirrors another one about the American justice system: According to research carried out by the American Bar Association, 70 to 80 percent of low or middle-income households are unable to obtain legal counsel when they need advice or representation (Russello and Kapp, 1996).

To respond to families' needs for assistance in due process hearings, some family advocacy organizations have assigned a non-lawyer to serve as the family's legal representative. That approach benefits families by giving them a way to hold schools accountable for their decisions, but it also creates problems with the interpretation and application of IDEA. Nowhere are the problems better illustrated than in the 2000 decision of the Delaware Supreme Court in the matter of Marilyn Arons, Ruth Watson and Parent Information Center of New Jersey, Inc. (756 A.2d 867). And nowhere are the problems more clearly left unresolved than in that decision. (For more information about Marilyn Arons, take a look at this issue's "Real Story: Marilyn Arons: Teacher, Advocate, and Parent.")

In Arons, the Delaware Supreme Court ruled that lay advocates (individuals not admitted to practice law) representing parents in due process hearings were unlawfully engaging in the practice of law. The court based the decision on IDEA's language and legislative history, holding that the statute authorizes lay advocates to provide only consultation and support, not legal representation. Further, the court relied on state law that defines what constitutes the practice of law and limiting that practice to people admitted to practice.

Additionally, the court ruled that a family's rights to due process – essentially, the right to be represented in court – are not violated when a state prohibits lay advocates from representing them in these quasi-judicial hearings. The reason, said the court, is that IDEA provides other "substantial procedural safeguards" to families.

The court recognized, however, that families need low-cost access to legal representation and said that, "if it could be demonstrated that an unmet need exists and that the local bar could not adequately respond, this court would consider the adoption of a rule allowing lay representation in a certain limited class of cases." The court provided little guidance in helping to determine when an "unmet need" would exist or defining what it meant by a "limited class of cases."

The court's ruling severs a means for families to be represented in due process hearings. By barring lay advocates, the court forces families to represent themselves or to hire lawyers to represent them. Those families who cannot afford to hire an attorney or who do not have access to free or low-cost counsel now have decreased access to the procedural safeguards provided to them under IDEA and little recourse, through the administrative hearings, to hold policy makers accountable for their decisions. Although the Arons decision recognizes a family's right to due process, it forecloses one route for families to pursue the remedy. Little is gained by the procedural safeguards of IDEA if parents cannot hold schools accountable for their educational decisions and actions.

Congress is currently in the process of reauthorizing IDEA and is grappling with many of the issues addressed by the court in Arons. The Senate reauthorization (Senate Bill 1248) explicitly allows lay advocates to represent families in due process hearings. The House of Representatives reauthorization (H.R. 1350) retains IDEA's current language regarding who can represent families in due process hearings (the current law does not restrict families to being represented by lawyers), but it limits the fees that a court may award to attorneys who represent families in those hearings. Limiting the award of attorney fees may further reduce families' access to services that can help them hold service providers accountable.

Ultimately, lay advocate representation for families will be an issue for Congress to resolve by balancing the interests of parents, their advocates, lawyers, schools and service providers. The issue of lay representation is by no means an easy matter to resolve.

First, families must have access to the courts to hold practitioners accountable for their decisions. That is why lay advocates should be able to represent families in due process hearings.

But lay advocacy is just that: representation in quasi-legal forums by people not trained to practice law. Several policy options respond to the legitimate concern about the quality of lay advocacy. Families should also have the ability to hold lay advocates accountable in their role as legal representatives. Courts that wish to permit lay advocates to represent them should, in cooperation with state departments of education and the state bar association, provide opportunities for lay advocates to receive training in how to conduct a due process hearing and how to represent a student in one. Further, the courts, together with state legislatures, should develop rules of court and laws that enable families to hold lay advocates liable for malpractice.

Second, the conduct of the quasi-judicial hearings may be less than efficient when lay advocates are involved, which is why lay advocates should be trained if they are to be allowed to represent families. Moreover, the economic incentives for lawyers to exclude lay advocates from these and similar hearings have to be balanced against the interests of families to hold practitioners accountable.

The bottom line is simply this: Without adequate access to the courts through affordable and competent representation, families cannot take advantage of the fundamental rights afforded to them under the due process clause of the 14th Amendment to the United States Constitution and re-affirmed by the IDEA. The core concept of accountability, then, means little to families unless they can secure some kind of representation – even lay representation – in forums where their and their children's rights are adjudicated. Excluding lay advocates, as the Arons decision does, and limiting attorney fees, as the House of Representatives bill does, cut to the heart of the core concept of accountability.