UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
AMY FRENCH, a person with a disability, by her parent, GARY FRENCH,
Plaintiff,
v. 5:04-CV-434 (FJS/GJD) NEW YORK STATE DEPARTMENT OF EDUCATION, FAYETTEVILLE-MANLIUS BOARD OF EDUCATION, Superintendent of Schools, DR. PHILIP MARTIN, and Assistant Superintendent LISA MIORI-DINNEEN,
Defendants.
APPEARANCES OF COUNSEL
GARY FRENCH Manlius, New York 13104 Plaintiff pro se
OFFICE OF THE NEW YORK ADRIENNE J. KERWIN, AAG STATE ATTORNEY GENERAL The Capitol Albany, New York 12224 Attorneys for Defendant New York State Department of Education
BOND, SCHOENECK & KING, PLLC JONATHAN B. FELLOWS, ESQ. One Lincoln Center Syracuse, New York 13202-1355 Attorneys for Defendants Fayetteville-Manlius Board of Education; Superintendent of Schools Dr. Philip Martin; and Assistant Superintendent Lisa Miori-Dinneen.
SCULLIN, Senior Judge
ORDER
Gary French, appearing pro se on behalf of his daughter Amy French, brought this action
alleging causes of action under the Individuals with Disabilities Education Act, Articles 65 and
89 of the New York Education Law, 42 U.S.C. § 1983, the Americans with Disabilities Act, and
the Rehabilitation Act. See Complaint generally. Defendants Fayetteville-Manlius Board of
Education, Superintendent of Schools Dr. Philip Martin, and Assistant Superintendent Lisa
Miori-Dinneen have filed a motion for summary judgment; and Defendant New York State
Department of Education has filed a motion to dismiss.
In the Second Circuit, "'a non-attorney parent must be represented by counsel in bringing
an action on behalf of his or her child.'" Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123, 124
(2d Cir. 1998) (per curiam) (quotation omitted). The Court recognizes that the Supreme Court
recently held that parents have independent rights under the IDEA. See Winkelman ex rel.
Winkelman v. Parma City Sch. Dist., --- U.S. ----, 127 S. Ct. 1994, 2005 (2007) ("We conclude
IDEA grants parents independent, enforceable rights. These rights, which are not limited to
certain procedural and reimbursement-related matters, encompass the entitlement to a free
appropriate public education for the parents' child."). In doing so, however, the Supreme Court
did not reach the question of whether parents are entitled to litigate their children's claims pro se.
See id., 127 S. Ct. at 2007 ("In light of our holding we need not reach petitioners' alternative
argument, which concerns whether IDEA entitles parents to litigate their child's claims pro se.").
The Second Circuit very recently recognized the distinction in Winkelman between
parents' and children's rights under the IDEA. See U.S. ex rel. Mergent Servs. v. Flaherty, ---
F.3d ---, 2008 WL 3840769, *5 n.2 (2d Cir. Aug. 19, 2008) (noting, in a qui tam action, that
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"Winkelman reaffirmed the rights of parents, who have rights under the IDEA distinct from those
afforded their children, to assert their own interest pro se" (citation omitted)).
Therefore, based upon the relevant case law, the Court concludes that Gary French cannot
pursue the claims in the complaint, all of which he asserted on behalf of his daughter, Amy
French, pro se. See Complaint at ¶ 5. In the interests of fairness and justice, however, the Court
will provide Gary French with two options to correct this problem: (1) he may hire an attorney,
seek pro bono counsel, or otherwise acquire legal representation and continue to pursue the
complaint as filed; or (2) he may, and the Court hereby grants leave to, amend the complaint to
assert only his own claims and continue to appear pro se.
Accordingly, the Court hereby
ORDERS that, within forty-five (45) days from the date of this Order, Gary French shall
either notify the Court and opposing counsel in writing that he has obtained counsel to represent
his daughter's claims or file an amended complaint in a manner consistent with this Order such
that he is only asserting claims on his own behalf; and the Court further
ORDERS that, if Plaintiff fails to comply with the terms of this Order within forty-five
(45) days from the date of this Order, the Court will dismiss the complaint without prejudice and
without further order; and the Court further
ORDERS that Defendants Fayetteville-Manlius Board of Education, Superintendent of
Schools Dr. Philip Martin, and Assistant Superintendent Lisa Miori-Dinneen's motion for
summary judgment is DENIED without prejudice and with leave to renew; and the Court further
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ORDERS that Defendant New York State Department of Education's motion to dismiss
is DENIED without prejudice and with leave to renew after renew.
IT IS SO ORDERED.
Dated: September 24, 2008 Syracuse, New York
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