Can a cousin be a student’s “parent”?

Our special education law, IDEA, has a broad definition of the term “parent.” Just how broad? The 3rd Circuit has determined that a student’s adult cousin qualifies as “parent” under IDEA.

The student had been living with her adult cousin for several years, and the school district treated the cousin as the student’s parent. The cousin gave consent for special education testing, successfully requested an independent evaluation, and was invited to meetings to consider a 504 plan. But when the cousin requested a due process hearing the school district threw up a roadblock. “You can’t do that! You are not the ‘parent’!”

The cousin responded to that with: “Baloney! You’ve been treating me as the parent for years. Why am I all of a sudden not the parent?” In legalese this argument is known as estoppel. The cousin argued that the school’s consistent acknowledgement of her as “parent” of the student “estopped” them from denying it.

That sounds like a pretty good argument, but that’s not what the court based its decision on. The court simply noted this part of the IDEA’s definition of “parent”:

An individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives…. 20 U.S.C. 1401(23)(c).

There is another part of IDEA’s definition of “parent” that creates a hierarchy among the various people who may qualify as a “parent” but that comes up only if the parties are fighting over it. This student had a biological father in the picture, and a grandmother who had a court order giving her custody. If either of them had asserted the right to act as the “parent” their claim would have outranked the cousin. But neither of them did, and in fact, both of them supported the cousin’s effort to act as the “parent.”

It's Q.T. v. Pottsgrove School District, decided by the 3rd Circuit on June 14, 2023. It will be published in the Federal Reporter, but for now can be found at 2023 WL 3987851.


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Tomorrow: ACLU weighs in on school chaplains