In the
United States Court of Appeals
For the Seventh Circuit
No. 00-4109
Patrick Navin,
Plaintiff-Appellant,
v.
Park Ridge School District 64,
Fred Schroeder, and Sally Pryor,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 2735--Suzanne B. Conlon, Judge.
Submitted October 16, 2001--Decided November 6, 2001
Before Bauer, Easterbrook, and Evans,
Circuit Judges.
Per Curiam. Patrick Navin, whose son
J.P. Navin is enrolled in Park Ridge
School District, disagrees with the way
the school has addressed J.P.'s dyslexia.
J.P.'s educational plan calls for 500
minutes of tutoring per week. Contending
that the tutoring was being provided by a
crossing guard supervisor with no skill
(or at least no certification) in
educating dyslexic youths, Patrick asked
for a hearing under the Individuals with
Disabilities Education Act, see 20 U.S.C.
sec.1415, and filed this suit when the
hearing officer terminated the proceeding
without addressing the merits. The
district court dismissed the suit, ruling
that non-custodial parents lack standing
under the idea. Patrick is divorced from
Margaret Murnighan, J.P.'s mother, and
the divorce decree gives Margaret custody
of J.P., including the right to make
educational decisions. This means, the
district court held, that Patrick lacks
any legal interest in J.P.'s educational
plan.
Two preliminary issues require
attention. First, Patrick filed suit not
only for himself but also on behalf of
J.P., acting as J.P.'s next friend. It is
doubtful that a non-custodial parent may
use the next-friend device to seize
control of the child's educational
decisionmaking, when a divorce decree has
given those choices to the custodial
parent. Cf. T.W. v. Brophy, 124 F.3d 893
(7th Cir. 1997). We do not pursue this
subject, however, because Patrick did not
retain a lawyer. Patrick was free to
represent himself, but as a non-lawyer he
has no authority to appear as J.P.'s
legal representative. See Collinsgru v.
Palmyra Board of Education, 161 F.3d 225,
231 (3d Cir. 1998); Wenger v. Canastota
Central School District, 146 F.3d 123,
124-26 (2d Cir. 1998); Devine v. Indian
River County School Board, 121 F.3d 576,
581-82 (11th Cir. 1997). The notice of
appeal is signed only by Patrick and
therefore is ineffective to seek review
on behalf of J.P.; the district court's
dismissal of his claim therefore is
conclusive, and the appeal proceeds with
Patrick as the only appellant. Second,
the defendants contend that the suit must
be dismissed because Patrick failed to
appeal within the state system. But in
1997 Illinois eliminated the need to
pursue two tiers of administrative
review, see 105 ILCS 5/14-8.02a(i), so
Patrick was free to file his complaint
when he did.
If the divorce decree had given Margaret
not only custody but also every
instrument of influence over J.P.'s
education, then the district court's
decision would be correct. Although the
idea grants rights to "parents," and the
regulatory definition of "parent"
includes all biological parents, see 34
C.F.R. sec.300.20, which implies that a
divorced parent retains statutory rights,
nothing in the idea overrides states'
allocation of authority as part of a
custody determination. See Susan R.M. v.
Northeast Independent School District,
818 F.2d 455, 457 (5th Cir. 1987). If the
decree had wiped out all of Patrick's
parental rights, it would have left him
with no claim under the idea. But this is
not what the divorce decree does. The
district court did not analyze its
language, but it is in the record and
shows that Patrick retains some important
rights, including the opportunity to be
informed about and remain involved in the
education of his son./* If Patrick and
Margaret disagree about educational
decisions, then Margaret's view prevails-
-unless under state law the school
district's view prevails over either
parent's wishes, and in that event
Patrick's rights under the decree to
influence the school's choices are even
more important.
Patrick sought the hearing because he
believed not only that the school
district's plan for J.P.'s education was
substandard but also that the school
district was not providing all of the
educational benefit required by the
existing plan. Nothing in the divorce
decree strips Patrick of his parental
interest in these matters, so the hearing
officer erred in dismissing the
proceeding solely on account of the
divorce, and the district court erred in
dismissing the ensuing suit for want of
standing.
On remand the district court must decide
whether Patrick's claims are
incompatible, not with the divorce decree
itself, but with Margaret's use of her
rights under the decree. Margaret has
hired a private tutor to work with J.P.
and appears to be content with the
results--though she is not a party, and
appearances thus may be deceiving. It is
not clear whether Margaret hired the
tutor because she wants to terminate the
school district's control (exercising a
right to private education that all
parents have, and that Margaret holds to
the exclusion of Patrick) or because
Margaret, like Patrick, believes that the
school district's choice of tutor was
inappropriate. If the former, then the
parents are at loggerheads and Patrick
cannot use the idea to upset choices
committed to Margaret by the state court;
if the latter, then the parents at least
potentially have a mutual interest in
changing the school district's plan (or
its implementation of the plan) and
Patrick's retained interest under the
divorce decree comes to the fore. Patrick
may have additional interests (such as
his demand to see educational records)
that are within the scope of his retained
rights no matter what choices Margaret
makes on J.P.'s behalf. The district
court must determine the precise nature
of Patrick's claims, evaluate their
status under the divorce decree, and
proceed to adjudicate those claims that
Patrick retains under the decree and that
are not trumped by Margaret's use of her
own powers under that decree.
Vacated and Remanded
FOOTNOTE
/* Paragraph 7(l) of the decree provides: "Each
party has authority to inspect the children's
school records and to communicate with teachers,
school personnel, and counselors, to discuss the
children's standing and progress and to partici-
pate in school activities; the parties agree to
share equally the tuition and costs incurred in
connection with said education."