Who gets to represent children in federal court?  Adults have long been permitted to represent themselves in federal court under the plain meaning of 28 U.S.C. § 1654.  And, many adults do just that every year.  But what if the real party in interest is a minor child?  Who, if anyone, can exercise that child’s right to proceed pro se?

This Note argues that the correct reading of 28 U.S.C. § 1654 would permit parents to litigate pro se in federal court where the real party in interest is their minor child.  This is based on a straightforward, grammatically correct construction of 28 U.S.C. § 1654 which would compel courts to allow that practice.  It is also further supported by the canon of constitutional avoidance, which should counsel courts to steer clear of the constitutional rights of parents and children implicated here.  Parents have a constitutional right to rear and raise their children, and children have a fundamental right to access the courts.

This reading of the statute, however straightforward it may seem, is not the reading adopted by the majority of federal appellate courts that have addressed the question as to whether the parent of a minor can proceed pro se on behalf of the minor.  Thus, in the alternative, this Note proposes a system of deference to state law based on Federal Rule of Civil Procedure 17 to determine if a parent can litigate pro se on behalf of their minor child in federal court.  By reading state laws, federal courts can determine if parents may represent their children pro se in the federal courts of those specific states.

To properly address this legal issue, this Note also describes the history of the “counsel mandate” that has been imposed on minor children and their parents.  From the recognition of an absolute counsel mandate in the U.S. Court of Appeals for the Tenth Circuit’s decision in Meeker v. Kercher, to the creation of inconsistent exceptions to the counsel mandate throughout the circuits, to the U.S. Supreme Court’s decision to not reach the issue in Winkelman v. Parma City School District, courts have been unclear about whether and when parents may represent their children pro se in federal court.  Then, most recently, the U.S. Court of Appeals for the Fifth Circuit upended the counsel mandate again by opening the door to federal and state law overrides in Raskin v. Dallas Independent School District.  In effect, these decisions have left significant questions for litigants and courts dealing with adult representatives in federal court.

Now, petitions for certiorari have been filed in Warner v. School Board of Hillsborough County and Grizzell v. San Elijo Elementary School to address whether parents may litigate pro se on behalf of their minor children.  This question implicates the constitutional rights of parents and children and fundamental access to justice–related issues.  Because of the importance of this question, and the likelihood that the Supreme Court will grant certiorari on it, this Note will provide essential background and guidance to litigants, lawyers, and judges dealing with this complicated question moving forward.