The federal government enacted the McKinney-Vento Homeless Assistance Act to assure that homeless children have the same educational rights and protections as those with places to live. The law requires all local educational agencies to ensure the rights of those without a roof over their heads. But when La Dell Grizzell enrolled her kids in San Elijo Elementary School in San Marcos, California, her children were slapped, made fun of, and subjected to hurtful racial slurs.

Grizzell had no money to hire an attorney but went to court anyway to seek justice on her own. Regardless of a lack of pro bono attorneys in her area, a three-justice panel from the Ninth Circuit Court of Appeal followed precedent and ruled that non-lawyers may represent themselves, but no one else, in court. The opinion, authored by Kim McLane Wardlaw with concurrences by Circuit Judges Richard A. Paez and Gabriel P. Sanchez, affirmed the ruling from Presiding District Judge Cathy Ann Bencivengo of the Southern District of California on August 7.

While the content of their ruling was sympathetic to Grizzell’s plight, an established rule called the “counsel mandate” holds that non-lawyers cannot represent their children pro se while they are making their claims. This came despite Grizzell’s argument that the “unyielding application of the counsel mandate raised grave implications for children’s access to justice,” as required by McKinney-Vento.

The Grizzell children were repeatedly terrorized at school. White students shouted racial epithets at them, slapped one of them with a lunch box, took their food and threw it in the trash, and repeatedly yelled, “black people are trash.” In addition, one child had a “for sale” sign placed around her neck. But according to the plaintiff, it wasn’t just their schoolmates who discriminated against them. Teachers and staff also made hurtful comments, subjected them to “disparate disciplinary measures” and engaged in 40 instances of “discrimination, retaliation, conspiracy and abuse of power.”

As a result of this unacceptable treatment, Grizzell took her kids out of school and filed her complaint against defendants the San Elijo Elementary School and the San Marcos Unified School District. In addition to her claims about how her children were treated, she filed claims under the Fourteenth Amendment’s Equal Protection and Due Process Clauses as well as Title IV and VI of the Civil Rights Act of 1964 and other federal and state education laws, including McKinney-Vento, which was codified as 42 U.S. Code § 11431(1). That law states, “Each State educational agency shall ensure that each child of a homeless individual and each homeless youth has equal access to the same free, appropriate public education, including a public preschool education, as provided to other children and youth.”

Despite their horrific treatment, the laws that were enacted to prevent the type of behavior to which her children were subjected, and the mother’s desire to hold the school accountable, Wardlaw’s opinion said that according to Johns v. County of San Diego, 114 F.3d 874, 866 (9th Cir. 1997), “Our binding precedent forecloses her from doing so.” That case says, “…a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child.” She further explained that “it goes without saying that it is not in the interest of minors or incompetents that they be represented by non-attorneys…”

In response, Grizzell raised many legitimate concerns about the counsel mandate. She cited 28 U.S.C. § 1654 as a law that is “inconsistent with a child’s statutory right to proceed ‘personally’” in court because of the “fundamental rights of access and equal protection and ‘parental right to care, custody and control of children.” She added that the Johns case makes “the perfect the enemy of the good, foreclosing paths to relief for children from low-income families whose options are representation by a pro se parent or no legal recourse at all.” She also pointed out that other circuits “have been more flexible.”

Despite these other rulings and their own policy concerns, the Ninth Circuit concluded that the panel “was bound by the ruling set forth in Johns. Wardlaw said the panel must not allow Grizzell to represent her children “absent ‘clearly irreconcilable’ intervening precedent of a higher authority.” Grizzell herself conceded that “the only path to relief in her case is en banc review.”

Wardlaw does seem troubled by having to rule against Grizzell, but she insists that the Ninth Circuit has no choice but to follow Johns. She said, “Grizzell unquestionably raises concerns with grave implications for children’s access to justice.” Thus, the panel affirmed the district court’s dismissal without prejudice of the mother’s claims on behalf of her children.

Unfortunately, a footnote to Grizzell’s case said that her motion for an initial en banc hearing was denied as were her motions to dismiss the defendant’s answering brief and her motion for reconsideration because they were “moot.” An en banc hearing could be granted if a majority of non-recused active judges votes that it will be heard. This didn’t happen even though her appeal motion, according to Metropolitan News-Enterprise, was prepared by the UC Davis School of Law Civil Rights Clinic and two lawyers from Virginia.

Even with legal representation, the fate of the Grizzell children did not change. It is difficult to agree with Ninth Circuit Judge Sidney Thomas, who wrote the opinion in Johns that said “… it is not in the best interest of children” that they be represented without counsel.” Perhaps an en banc panel should consider whether representation by a loving parent, who is perhaps even better able to tell their story, warrants a new hearing.