# Petitioners Brief — Dellmuth v. Muth > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1400%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1989 - **Citation:** 491 U.S. 223 ## Text —— Supreme Court, U.S. ( ) FILED ) DEC 1 1988 NO. -87-1855 | | | JO@EPH F. SPANIOL, JR. IN THE SUPREME COURT /OF_THE CLERK | UNITED STATES;wwe ..._ * OCTOBER TERM, 1987 THOMAS K. GILHOOL, Petitioner Vv. RUSSELL A. MUTH, JR, et al., Respondents On Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit BRIEF FOR PETITIONER LeRoy S. Zimmerman Attorney General Maria Parisi Vickers Chief Deputy Attorney General Chief, Eastern Region Counsel of Record John G. Knorr, III Chief Deputy Attorney General Chief, Litigation Section Gregory R. Neuhauser Senior Deputy Attorney General Attorneys for Petitioner OFFICE OF ATTORNEY GENERAL 206 State Office Bldg. Philadelphia, PA 19130 Telephone (215) 560-2402 0? i. Whether the Education for All Handicapped Children Act, which makes no mention of the Eleventh Amendment and does not refer to State liability, thus. fails to contain the requisite unmistakable expression of Congressional intent needed to abrogate the Eleventh Amendment immunity of the States? 2. Whether Pennsylvania's Secretary of Education, a cabinet member and chief executive officer of the Department of Education, should be precluded from deciding special education administrative appeals under the Act? TABLE OF CONTENTS QUESTIONS PRESENTED .......... TABLE OF AUTHORITIES ........4.. OPINIONS BELOW .....ceeeeeveves STATEMENT OF JURISDICTION ..... CONSTITUTIONAL PROVISIONS INVOLVED .. STATUTORY PROVISIONS INVOLVED.. STATEMENT OF THE CASE ......... RGUMENT UMMARY OF ARGUMENT ........+.4.-. I. CONGRESS DID NOT ABROGATE THE STATES' ELEVENTH AMENDMENT IMMUNITY WHEN IT ENACTED THE EDUCATION FOR ALL HANDICAPPED CHILDREN ACT ......... II. THE EHA DOES NOT PRECLUDE REVIEW OF DUE PROCESS HEARINGS BY A CHIEF EXECUTIVE OFFICER OF THE STATE AGENCY WHEN THE STATE AGENCY IS NOT INVOLVED IN THE DEVELOPMENT OF THE INDIVIDUALIZED EDUCATION PROGRAM oitin ll 24 27 58 93 CASES PAGE Alabama v. Pugh, 438 U.S. 781 (1978) ........ 28 Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985) ........ passim. Brandon E, v. Wisconsin Dept. of Public Instruction, 595 F.Supp. 740 er. ., BOOED coccccecs 87 Burlington School Committee of the Town of Burlington v.,_ Department of Education, 471 U.S. 359 (1985) ........ 54, 58, 59 60 Cain v. Yukon Public School District, * 775 F.2d 15 PMs BOGOR. ccccccccces 87 vy. Piphus, 435 U.S. 247 (1978) ......-. 55, 56 Colin K. by John K. vy, Schmidt, 715 F.2d 1 (lst Cir. 1983).. 87 -iii- David D. v. Dartmouth Schoo] Committee, 775 F.2d 411 (lst Cir. 1985) cert. denied, 475 U.S. 1140 Ta. dngenveucens sweeebouks 39, 40 793 F.2d 1470 (9th Cir. 1986), affirmed on other grounds sub nom. Honig v. Doe, No. 86-728 eT ee eee 41 Dugan v. Rank, a i, Oe CMOS 6no ceews 29 Edelman v. Jordan, Ee 27, 28, 29, 31 Employees of Department of Public Health and Welfare v. Missouri Department of Public Health and Welfare, See Wa ee nD oseetecees 27, 31 ae als Be CD dcctecesece 44, 54 Fitzpatrick v. Bitzer, ae as Ge OE Sacscdeces 30 Garcia v. San Antonio 469 U.S. 528 (1985) .......... 35, 36 @i Yo , , Are ee 796 F.2d 940 (7th Cir. 1986) Goldberg v. Kelly, 397 U.S. 254 (1970) .... «uae Green v. Mansour, 474 U.S. 64 (1985) .......... 672 F.2d 321 (3d Cir. 1982) Hans v. Louisiana, 134 U.S. 1 (1890) ....-eeeeees Helms v. McDonald, 647 F.2d 800 (5th Cir. 1981), cert. denied 455 U.S. 946 458 U.S. 176 (1982) ........ 59, 65 -Hensley v. Eckerhart, 461 U.S.C. 424 (1983) ....... Honig v. Doe, No. 86-728 (Jan. 20, 1988)... Hortonville Joint School Dist. No. ] v. Hortonville Educational Ass'n, 426 U.S. 482 (1976) .....4.4.. 41 74 44 87 27 87 58, 84 22 41, 58, 60 73 Hutto v. Finney, 437 U.S. 678 (1978) ......... 749 F.2d 652 CABER CEE. B9OE) ccccccccceces Miener v. State of Missouri, 673 F.2d 969 (8th Cir. 1982), cert. denied, 459 U.S. 909 (1983) ......... Mills v. Board of Education , tobeleh at ikea 348 F.Supp. 866 (D.C. 1972).. Parden v. Terminal Ry. Co., 377 U.S. 184 (1964) .......... Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984) .......... Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 343 F.Supp. 279 (E.D. Pa. 1971) and 343 F.Supp. 1257 Some DOs BOTED coccccccceces Quern v. Jordan, 440 U.S. 332 (1979) ........4.. -vi- 87 41 59, 27 27, 29, 72 28, passim. 25, 33 31, Reitel v. Sonotone Corp.., 8 2 Se FO ae 69 Robert M. v. Benton, 634 F.2d 1139 DC. MED ccscoccesceces 87 Smith v. Robinson, 468 U.S. 992 (1984) ......... 58, 59 United States v. Morgan, rn iii, Ge CMD coocevess 73 Victoria L. by Carol A. v. District School Board, 741 F.2d 369 CRU Gee. BBD ccccccccence 87 Vogel v. School Board of Montrose, 491 F.Supp. 989 Ss Gs BED “SC ceccccosceess 87 420 U.S. 308 (1975) ........4.. 45 CONSTITUTIONAL PROVISIONS PAGE U.S. Const. Amend. XI ......... passim. U.S. Const. Amend. XIV, rh. BD ese e6eeeb6eo0seeesses 5 ES er 5, 30 -vii- FEDERAL STATUTES AND REGULATIONS PAGE Education for All Handicapped Children Act of 1975, P.L. No. 74-172, 20 U.S.C. §§1400-1461 ......... passim. 20 U.S.C. §1400(b)(9) ......... 6. 3?. 50 BO U.B.C. BAGRRCG) wccccccccecs 79 eT Te ere 80 20 U.S.C. §1413(a)(3)(A) ...... 81 20 U.S.C. §1413(a)(3)(B) ...... 81 BO GU.B.C. BAGAECD) cecccccceccs 81 20 U.S.C. §1414(b)(2)(A)(i) ... 81 20 U.S.C. §1414(b)(3) ......... 83 20 U.S.C. §1414(d) ........00.. 72, 82 i. Pee . oc ccwneeees 6 ZO BU.B.C. SISGASCD) coccccccvces 82 20 U.S.C. §1415(b)(1) ......... 7 20 U.S.C. §1415(b)(2) ......6.-, 8, 61, 69, 70 26 U.8.C. BIEIS(S) wccccccccces 8, 62 BO U.B.6C. BRGRE ccccccceocevess 53 -viii- ne A EO a ee Ae. Handicapped Children's Protection Act, Pub. L. 99-372, 100 Stat. 796 (1986) codified at ep ames MOORREGD cocvccecceces 38 20 U.S.C. §1415(e)(2) ......-.- 9, 37 20 U.S.C. §1415(e)(4)(G) ...... 10, 38, 43 Rehabilitation Act of 1973 (§504) 29 U.B.C. SIGE wccccccvcccvesses 15, 34 29 U.S.C. §794a(b) .......eeeee 46 Rehabilitation Act Amendments of 1986, Pub. L. 99-506, 100 Stat. 1807 (1986) ee ee’ eee 47, 48 ee, cho ectcevsdeeee 15, 31, 46 OD Di, DIED ccanccvcessesess 45, 46 SO U.8.. GRBBELAD oc ccccsccess 3 00 O.Ow. CLE ccvcctsdesss 63 -~ix- ee eS a rer 42 Pa.Cons.Stat. §8521(b) PA O.B. GEPBAGDCAD co cvccccss MISCELLANEOUS 3 K. Davis, Administrative Law Treatise §19:2, at 372 C2G GG, J9GO) cocccccccccccees 1 Koch, Administrative Law and Practice meets GS GSO CSCO) cccccccess S. Conf. Rep. No. 94-455, 94th Cong. lst Sess. 47, reprinted in 1975 U.S. Code Cong. & Ad. News BETO wcccccccccccccceceseccees S. Conf. Rep. No. 94-455, 94th Cong., lst Sess. 49, reprinted in 1975 U.S. Code Cong. & Ad. News BEGG, 2908 wccccccccecscsvccces S. Conf. Rep. No. 94-168, 94th Cong., 2d Sess. 29, 47, reprinted in 1975 U.S. Code Cong. & Ad. News GZS, 24393, 24670 wcccccecccces 74 74 63 88 80, 91 ts United States Department of Education Fourth Annual Report to Congress on the Implementation of Public Law 94- 142: The Education for All Handicapped Children Act el ee ae eee ane ee 6 68 78 United States Department of Education Ninth Annual Report to Congress on the Implementation of the Education of the — Handicapped Act, FO GEE bodebecesccoesencecece 77 -xi- NO. 87-1855 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1987 THOMAS K. GILHOOL, Petitioner Vv >. RUSSELL A. MUTH, JR, et al., Respondents ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT is OPINIONS BELOW The opinion of the Court of Appeals reported at 839 F.2d 1133 (3d Cir. 1988) and may be found in the appendix to the petition for writ of certiorari. (Pet. App. la). The District Court opinion of June 2, 1986 is reported at 646 F.Supp. 280 (E.D. Pa. 1986) and may be found in the appendix to the petition for writ of certiorari. (Pet. App. 83a). The District Court opinion of August 28, 1986 has not been reported but may be found in the appendix to the petition for writ of certiorari. (Pet. App. 112a). The District Court opinion of February 20, 1987 has not been reported but may be found in the appendix to the petition for writ of certiorari. (Pet. App. 19la). STATEMENT OF JURISDICTION The opinion of the Court of Appeals was filed on January 29, 1988. (Pet. App. la) and the petition for certiorari was filed within ninety days thereafter. The jurisdiction of the Court is invoked pursuant to 28 9.6s¢. §1254(1). CONSTITUTIONAL PROVISIONS INVOLVED Re The Eleventh Amendment to the United States Constitution provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced Or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const. Amend. XI. 2. The Fourteenth Amendment to -the United States Constitution provides in pertinent part: . All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law’ which shall abridge the privileges » & « Or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, Or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. Amend. XIV, Sec. l. The Congress’ shall have the power to enforce, . by appropriate legislation, the provisions of this article. U.S. Const. Amend. XIV, Sec. 5. : | | | | | | STATUTORY PROVISIONS INVOLVED 20 U.S.C. §1400. Congressional Statements and Declarations (b) Findings The Congress finds that - (9) it is in the national interest that the Federal Government assist State and local efforts to provide programs to meet the educational needs of handicapped children in order to assure equal protection of the law. §1415. Procedural Safeguards Establishment and maintenance (a) Any State educational agency, any local educational agency, and any intermediate educational unit which receives assistance under this subchapter shall establish and maintain procedures in accordance with subsection (b) through subsection (e) of this section to assure that handicapped children and their parents or guardians are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies and units. Required procedures; hearing (b) (1) The procedures required by this section sha)l include, but shall not be limited to - (E) an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of 4 free appropriate public education to such child. 20 U.S.C. §1415(b) (2) Whenever a complaint has been received under paragraph (1) of this subsection, the parents Or guardian shall have an opportunity for an impartial due process hearing which shall be conducted by the State educational agency or by the local educational agency or intermediate educational unit, as determined by State law or by the State educational agency. No hearing conducted pursuant to the requirements of this paragraph shall be conducted by an employee of such agency or unit involved in the education or care of the child. Review of local decision by State educational agency (c) If the hearing required in paragraph (2) of subsection (b) of this section is conducted by a local educational agency or an intermediate educational unit, any party aggrieved by the findings and decision rendered in such a hearing may appeal to the State educational agency which shall conduct an impartial review of such hearing. The officer conducting such review shall make an independent decision upon completion of such review. 20 U.S.C. -§1415(e) Civil action; jurisdiction; attorneys fees (2) Any party aggrieved by the findings and decision made under subsection (b) of this section who does not have the right to an appeal under subsection (c) of this section, and any party aggrieved by the findings and decision under subsection (c) of this section, shall have the right to bring a Civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. 20 U.S.C. §1415(e) (4) (G) The provisions of subparagraph (F) [describing Situations when the court shall reduce attorneys fees awarded under this section] shall not apply in any action Or proceeding if the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section. STATEMENT OF THE CASE l. This case arises out of a dispute over the appropriate educational program for a gifted handicapped child. Respondent Russell A. Muth, Jr., alleged that his son, Robert Alexander Muth (Alexander), was denied a “free, appropriate public education" in violation of the Education for All Handicapped Children Act of 1975, Pub. L. No. 94-172, codified at 20 U.S.C. §§1400-1461, (the “Act” or “EHA"). (Pet. App. 14la). The defendants were the Pennsylvania ] Secretary of Education, the Central Bucks (Pennsylvania) School District, lthe original defendant was Secretary Robert C. Wilburn, sued only in his official capacity. His current successor in: office is Thomas K. Gilhool, the petitioner in this Court. oe. S28 « niall and Dr. Thomas L. Newman, Superintendent of the School District. (School District defendants) (Pet. App. la-8a). 2. Alexander, already diagnosed as learning disabled, first enrolled in the Central Bucks School District in 1980 where an individualized edvcational program (IEP) placed him in a learning disability resource room for some subjects and “mainstreamed,” or placed him in regular classes, for other subjects. Changes in Alexander's’ IEP were made with his father's participation and approval until June of 1983, when the School District proposed placing Alexander in the learning disabled classroom setting for all substantive subjects in the 1983-84 school year. (Pet. App. 9a-lla). oe 12 « Muth disagreed with the School District's proposal, requested a due process hearing and requested that no change be made in Alexander's current placement until a hearing was held. In September 1983, Muth enrolled Alexander in a private school in Massachusetts for learning disabled students.” (Pet. App. 13a). The due process hearing was held on September 30, 1983 before an impartial hearing officer who, on October 3l, 1983 2Alexander remained at that private school until April 1985 when he was transferred by his father to Wyncote Academy, a private school in Pennsylvania with no special education program. At the beginning of the academic year 1986-87, Aiexander returned to the Central Bucks’ School District. (Pet. App. 134a-135a) made recommendations which included changes in the IEP proposed by _ the School District but did not order that Alexander be placed in a private school as Muth had requested. Both Muth and the School District appealed the hearing officer's decision to the Secretary of Education who remanded the case to the hearing officer with instructions to the School District to revise the IEP. The revised IEP was presented to the hearing officer, but Muth raised objections and on July 25, 1984 the hearing officer decided that the modified IEP was an appropriate program of Education for Alexander. Muth appealed to the Secretary and on October 24, 1984 the Secretary affirmed the hearing officer's decision. While these administrative proceedings were underway, on April 27, > « 1984, Muth filed suit in federal district court. (Pet. App. 13a-17a). a. In the District Court, Muth Claimed that Alexander was denied a "free, appropriate public education” in violation of the EHA, § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("§ 504") and 42 U.S.C. § 1983. Muth sought reimbursement for his son's tuition for the private school placement he claimed was the suitable’ placement for his child. (J. App. 11-13, 35). Thereafter, on March 21, 1985, Muth sought and was granted leave to file an amended complaint in which he dropped the claims pursuant to § 504 and § 1983. (J. App. 6, 39). In response to the Secretary's motion for summary judgment, the District Court held that the Eleventh Amendment’ barred Muth's Claim for retroactive monetary relief against the Secretary but left open the = a question of whether injunctive relief would be appropriate. (J. App. 50-51).) Muth was then permitted to file a second amended complaint in which the District Court allowed him to raise two issues against the Secretary: (1) whether the Secretary's involvement in the due process hearing violated Muth's due process’ rights under the EHA; and (2) whether the delays in the due process procedure violated plaintiff's rights under the EHA. The District Court did not permit Muth to raise damage claims based on the Fourteenth Amendment and expressly precluded a claim which sought tuition reimbursement from the State (J. App. 80- 82). The second amended complaint also 3Muth raised this issue for the first time in the second amended complaint. - ol EEE oor named the School District defendants who were alleged to have denied Alexander a free appropriate public education in violation of the EHA. The relief sought encompassed declaratory and injunctive relief, reimbursement for private school placement and attorney's fees. (J. App. 100-101). By memorandum opinion and order of June 2, 1986, the District Court held that Pennsylvania's statutory scheme for providing parents of handicapped children with administrative process violates the provisions of the EHA. More specifically, the District Court held: (1) that Pennsylvania's initial hearing and review are both conducted at the _ state level in contravention of federal law, (Pet. App. 90a-95a); o 29 « (2) that even if the initial hearing were a local one, a remand by the Secretary to the hearing officer violates’ the finality requirement of federal law, (Pet. App. 102a-104a); and (3) that because the Secretary must be considered an employee of Pennsylvania's state educational agency, he is an improper reviewing officer under federal law. (Pet. App. 10la-102a). The District Court did not resolve the issue of tuition reimbursement, stating that it would hold a hearing to determine whether the IEP which the School District had proposed would have provided Alexander with an appropriate free education. (Pet. App. 108a). Prior to trial, the District Court advised the Secretary that it would reconsider whether the Eleventh — Amendment presents’ a jurisdictional bar to an award of money damages against the Secretary, and invited submission of a trial brief on that issue. (Pet. App. 168-169). 4. After a bench trial, the District Court issued an opinion and order on August 28, 1986, holding that the IEP prepared by the School District for the 1983-84 school year would have afforded Alexander an appropriate education. (Pet. App. 156a) However, in light of the procedural violations previously found, and without any finding of substantive due process deprivations, the District Court held 4In effect, the District Court thus modified its previous ruling and permitted an amendment to the second amended complaint, to allow Muth to raise a money damage claim against the Secretary. » is that Muth was entitled to reimbursement for one year's private school expenses for his handicapped child. (Pet. App. 166a). While acknowledging that the School District was prepared, in September 1983, to provide Alexander an appropriate education, the District Court nonetheless found that the 10 month delay caused by the Secretary's remand precluded Muth (1) from participating in the process which directly affected his son's education, (Pet. App. 165a), and (2) from reevaluating (in December 1983 rather than in October 1984) the wisdom of Alexander's private school placement. (Pet. App. 166a). Consequently, the District Court held that the appropriate remedy was reimbursement for one full year of tuition at the private school. e 36 « The District Court further held that the EHA abrogated the Eleventh Amendment immunity of the states; consequently, the Secretary, sued in his official Capacity, was found to be jointly and severally liable with the School Distiict for the reimbursement award made to Muth. (Pet. App. 174a-177a; 187a-188a). In an opinion filed on February 20, 1986, the District Court awarded Muth attorney's fees to be paid jointly by the Secretary and the School District. (Pet. App. 210a-212a). -¥ The parties cross-appealed to the Court of Appeals for the Third Circuit, which affirmed the judgment of the District Court on every issue except its award of attorneys' fees. [Pet. App. 4a-5a).> That issue was remanded to the District Court’ for allocation of fees in accordance with Hensley Vv. Eckerhart, 461 U.S. 424 (1983). [Pet. App. 8la-82a]. SThe Court of Appeals saw no need to reach the issue of whether Pennsylvania's two-step hearing and review procedure conforms to federal law. (Pet. App. 52a-58a). Therefore, a reversal by this Court on the issue of the Secretary's participation in the administrative review procedure will require a remand to the Court of Appeals for a decision on that unaddressed issue. » 22 « The Secretary's petition for rehearing en banc was denied. He sought and was granted review from this Court on the issues of the Eleventh Amendment and the bar to his hearing’ special education appeals under the EHA. The Secretary's petition for writ of certiorari was granted on October 3, 1988. SUMMARY OF ARGUMENT l. The Court of Appeals erred in holding that by enacting the EHA pursuant to Section 5 of the Fourteenth Amendment, Congress abrograted the sovereign immunity of the States as it is constitutionalized by the Eleventh Amendment. Such abrogation is possible, but only when Congress makes "its intention unmistakably clear in the language of the statute,” Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985). There is no clear language in the EHA, or the 1986 amendment upon which the Court of Appeals also relies, which even suggests that Congress considered eliminating the States’ immunity from suit in federal court. 2. The principle of federalism which this Court repeatedly has recognized demands that Congressional oe 26 « QC EEE eee | intent to subject States to suit in federal court be clearly articulated, even when Congress legislates to guarantee constitutionally protected rights. Quern v. Jordan, 440 U.S. 332 (1979). Be The clear Congressional intent, which has been misunderstood by the Court of Appeals, is that the EHA be a cooperative effort between the States and the Federal Government. The purpose of this joint effort is the education of handicapped children. Exposing the States to money damage awards for some misjudgment in the placement of a child Or for a procedural due process violation defeats the goals of the Statute by depleting the very funds that States can use for the education of handicapped youngsters. ~- 26 @ 4. The Court of Appeals also erred by holding that the EHA's due process hearing procedure precludes Pennsylvania's Secretary of Education from acting as an impartial reviewing officer because he is the employee of an agency “involved in the education of the child.” Under this view, the Secretary is involved in the education of every child in Pennsylvania simply because he is the responsible supervisor of the _ entire educational system in the State. This interpretation of the statutory language is at odds with the expressed goal of the EHA to make the Secretary responsible for the delivery of educational services to the handicapped; moreover, it is contrary to traditional concepts of impartial decision making. — Be CONGRESS DID NOT ABROGATE THE STATES ' ELEVENTH AMENDMENT IMMUNITY WHEN IT ENACTED THE FDUCATION FOR ALL HANDICAPPED CHILDREN ACT In a long line of cases, this Court consistently has interpreted the Eleventh Amendment as constitionalizing the principle of state sovereign immunity, thus precluding suits against a State in federal court by citizens of that State or other States. Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985); Pennhurst State School and Hospital v, Halderman, 465 U.S. . 89 (1984); Edelman v. Jordan, 415 U.S. 651, (1974); Employees of Department of Public Health and Welfare v. Missouri Department of Public Health and Welfare, 411 U.S. 279 (1973); Parden v. Terminal Ry. Co., 377 U.S. 184. (1964); Hans v. Louisiana, 134 U.S. 1 (1890). The Eleventh Amendment is applicable to suits seeking money damages, Edelman v. Jordan, as well as suits seeking equitable relief, Pennhurst, 465 U.S. at 100-101; Alabama _v. Pugh, 438 U.S. 781 (1978). A State may consent to suit against it in federal court, thereby waiving its immunity, but Pennsylvania has specifically withheld consent. 42 Pa.Cons.Stat. §8521(b), Pennhurst, 465 U.S. at 103 n. 12. In the absence of consent, a suit against the State or one of its agencies is proscribed by the Eleventh Amendment. Pennhurst, 465 U.S. at 100. Moreover, the Eleventh Amendment is a complete bar to suit against a state official who is sued, as the petitioner is sued here, in his official capacity, regardless of whether the suit seeks a o- damages or injunctive relief. Dugan v. Rank, 372 U.S. 609 (1963); Pennhurst, 465 U.S. at 100-103. Although this Court has not decided whether prospective injunctive’ relief may be granted against state officials for violations of federal statutory law, Pennhurst, 465 U.S. at 104 n. 13,° retroactive monetary relief is barred by the Eleventh Amendment. Edelman Vv. Jordan, 415 U.S. at 666-667. 6Edelman _v. Jordan, is not to the contrary. In Edelinan, the state conceded liability for prospective relief. 415 U.S. at 664. a A. In this case, the Court of Appeals for the Third Circuit has misapplied the decisions of this Court when it held that Congress, by enacting the EHA pursuant to §5 of the Fourteenth Amendment, has abrogated the States’ Eleventh Amendment immunity to. suit. (Pet. App. 7la-72a). The Secretary concedes that Congress has the power to abrogate the States' Eleventh Amendment immunity without the States* consent when it legislates to enforce the substantive provisions of the Fourteenth Amendment ; however, there must be unequivocal evidence of such abrogation. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). This Court has long held that the mere literal inclusion of the States among those to whom 4 statute applies does. not os 2 « suffice to eliminate the States' Eleventh Amendment immunity. Scanlon, supra, 473 U.S. at 245-46; Employees, Supra, 422 u.S. at 283-85. In Quern v. Jordan, 440 U.S. 332 (1979) the Court reaffirmed the holding in Edelman v. Jordan, that the Civil Rights Act of 1871, 42 U.S.C. §1983, does not abrogate the States‘ Eleventh Amendment immunity despite the Act's clear intent to vindicate individual rights protected by the Fourteenth Amendment. There the Court stated: There is no question that both the supporters and opponents of the Civil Rights Act of 1871 believed that the Act ceded to the Federal Government many important powers that previously had been considered to be within the exclusive providence of the individual states. [NJeither logic, the circumstances surrounding the adoption of the Fourteenth Amendment, nor the legislative history of the 1871 Act compels, or even warrants, a leap from this proposition to the conclusion that Congress intended by the general language of the Act to overturn the constitutionally guaranteed immunity of the several States. ® Given the importance of the States’ traditional sovereign immunity, if in fact the Members of the 42nd Congress believed that §1 of the 1871 Act overrode that immunity, surely there would have been lengthy debate on this point and it would have been paraded out by the opponents of the Act, along with the other evils’ that they thought would result from the Act. Instead, §1 passed only with limited debate and not one Member of Congress mentioned the Eleventh Amendment or the direct . financial consequences to the States of enacting §1. We can only 28 « conclude that silence on the matter is itself a significant indication of the legislative intent of §1l. Quern, 440 U.S. at 342-343. Certainly the rights Congress sought to protect by the passage of the Civil Rights Act are as constitutionally compelling as the right to equal education which is being advanced by the EHA, yet Congress did not abrogate the States’ immunity in 1871 and it has not done so in the EHA. The Third Circuit's conclusion that, in enacting the EHA Congress abrogated the States’ constitutionally guaranteed immunity, fails to satisfy the stringent criteria defined by this Court in Scanlon. There, the Court refused to find such abrogation of immunity in Congressional passage of the > Rehabilitation Act, 29 U.S.C. §794’ and announced that it will look no further than the four corners of a statute to discern Congressional intent to abrogate State sovereign immunity. The Court said: In making this argument, respondent relies on the pre- and post-enactment legislative history of the Act and inferences f rom general statutory language. To reach respondent's conclusion, we would have to temper the requirement, well established in our cases, that Congress unequivocally express its intention to abrogate the Eleventh Amendment bar to suits 7The statute at issue in Scanlon is similar to the statute at issue here. Both provide a private right of action for prospective relief for all aggrieved parties and neither explicitly provides a damage remedy or other retroactive relief. Both involve programs through which States receive federal assistance. a S28 « against the States in federal court. We decline to do so and affirm that Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute. 473 U.S. at 242 (citations omitted). Because abrogation of state immunity alters the “constitutionally mandated balance of power between the States and the Federal Government,” Ibid. (quoting Transit Authority, 469 U.S. 528, 556 (1985) (Powell, J., dissenting)), the Court emphasized that an unusually high standard of certainty of Congress‘ intent is required to strip the states of their immunity before it will permit lower courts to upset this balance. The Scanlon approach "ensures such certainty.” 473 U.S. at 243. This unusually strict rule of construction is necessary to guard against expansion of federal court jurisdiction by judicial interpretation and to ensure that lower federal courts will not misinterpret the intent of Congress at the expense of the. federal system. Id. Although Congress has the power to override Eleventh Amendment immunity, it does not necessarily follow that it exercised such power in enacting the EHA. In fact, all indicia are to the contrary; there is no reference, either in the language of the statute itself or in the legislative history, that Congress intended this statute to abrogate rights reserved to the States by the Eleventh Amendment. Undeterred by the standard of clarity required by this Court in Scanlon, the Third Circuit found Congress's "unmistakably clear” » 96 « intent to abrogate the effect of the Eleventh Amendment in the preamble to the EHA: 20 This F.Supp. 866 (D.D.C. 1972).? case presents the question of whether Congress, in patterning the EHA on PARC, actually intended to prohibit an important element of the procedural system PARC established. 15See Burlington School Committee, 471 U.S. at 373; Robinson, 468 U.S. at 1010 (referring only to Congress' recognition of "*landmark court cases'"); Rowley, 458 U.S. at 192. -59- The procedural system of the statute, like that established by PARC, requires first that local schools develop "individualized educational programs” (IEP's) for handicapped children in cooperation with parents or guardians.?° l6The IEP is "a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs". Burlington School Committee, 471 U.S. at 368. Parents have a right to “examine all relevant records", Honig, No. 86-728 (Jan. 20, 1988), to participate in the IEP planning conference, and to an opportunity “to present complaints concerning any aspect of the local agency's provision of a free appropriate public education”. Ibid. afte If parents are dissatisfied with the resolution of any complaint, they have the right to an impartial review process as follows: "Whenever [such] a complaint has been’ received..., the parents or guardian. shall have an opportunity for an impartial due process hearing which shall be conducted by the State educational agency or by the local educational agency or intermediate unit, as determined by State law or by the State educational agency. No hearing conducted pursuant to the requirements of this paragraph shall be conducted by an emp loyee of such agency or unit involved in the education or care of the child”. 20 8.8.6. §1415(b) (2) (emphasis supplied). "If [this] hearing... is conducted by a local educational agency or an intermediate educational unit, any party aggrieved by the findings and decision rendered in such a hearing may appeal to the State educational agency which — -§]-— shall conduct an impartial review shall make an independent decision upon completion of such review.” 20 U.S.C. §1415(c) (emphasis supplied). This case focuses on the requirements of the “impartial” state review of the initial hearing. Specifically, the parties agree that, like the initial hearing, the review cannot be conducted by an employee of an agency which is "involved in the education of the chila*.?? 17The report of the Senate Committee which first developed the impartiality requirement suggests’ that Congress may have intended the language “involved with the education of the child" to modify the term “employee”, not the terms “agency or unit." (Footnote continued on next page). a490 17 (Footnote continued from previous page). The Senate Report stated that a hearing “may not be conducted by any State or local educational agency employee who is directly invelved in the education of the child." Senate Conf. Rep. No. 94-455, 94th Cong. lst Sess. 47, reprinted in 1975 U.S. Code Cong, & Ad. News 1470. Subsequently, the Conference Committee deleted the term “directly”, but did not specifically indicate any intent to focus on the agency, as opposed to the employee. Despite this evidence, however, regulations of the United States Department of Education prohibit conduct of a hearing “[by a person who is an employee of a public agency which is involved in the education or care of the child." 34 C.F.R. §300.507. Petitioner here accepts this regulation in light of the ambiguity in the statute. The question, therefore, is whether the Department of Education is “involved” in the education of the child. =423= The parties disagree, however, whether a State Department of Education is necessarily involved in the education of the child merely because of its general oversight role over special education. The state agency is only “involved in. the education of the child” in those circumstances in which the agency is directly providing services to the child or has otherwise participated in the development if the IEP. Moreover, the Secretary of Education, petitioner here, is not an employee of the state agency but a constitutionally appointed member of the State's executive branch, 71 P.S. §67.1(d)(1), whose function is to establish and implement statewide educational policy. Consequently, he is far removed from the individual disputes that arise between parents and the local school districts which are directly afGa involved in the education of the chi1a.?® B. Because Congress generally adopted the “due process hearing” system which originated in the PARC decree, PARC provides the starting point for analysis of the EHA. See Rowley, 458 U.S. 176 (1986), (relying on PARC's standard of judicial review to determine standard for EHA). In PARC, the goal was to assure public accountability by placing ultimate responsibility for the education of each individual child on the one person who can combine both policymaking and implementing functions -- the State Secretary of Education. 18mMuth has not argued that the Secretary of Education is 4 biased reviewer for any reason other than that he is an employee of the Department. -§5- The decree provided “that the Secretary of Education shall be responsible for assuring that every mentally retarded child is placed in a program of education and training appropriate to his learning Ccapacities....” 343 F.Supp. at 313. (Consent Decree §40(a)). The reasons: only the Secretary was deemed sufficiently in the public eye that educational decisions would be publicly accountable and only the Secretary was deemed to wield sufficient power to ensure that the best educational decisions were made _ and executed. The “due process hearings” served in part as a mechanism for the Secretary to Carry out this responsibility. The amended stipulation in PARC provided: =E6e "The hearing officer shall be the Secretary of Education, or da person designated by him acting in his stead, but shall not be an officer, emp loyee Or agent of any local district of intermediate unit in which the child’ resides”. (Amended Stipulation ¥3(L)). 343 F.Supp. at 305. Unlike local school districts, therefore, the State Department of Education and especially the Secretary, were given the authority and the responsibility, subject to judicial review, to serve as the guardian of the handicapped. Placing responsibility on the Secretary had the added benefit of institutionalizing a system to educate the Secretary about how to fulfill his overall responsibilities. From below, hearings assured the Secretary a constant flow of information about the 28% educational adequacy of programs’ for individual students. From above, meaningful judicial review would assure that the Secretary would learn from his mistakes and conform future decisions to judicial interpretations of the law. The hearings would provide the Secretary of Education the information necessary to fulfill his obligation “directly [to] provide ... and operate programs” for handicapped children if handicapped children were not properly served by local school districts or “otherwise provided for.” (Amended Consent Decree 451). 343 F.Supp. at 315 Cc. A close examination of the language of the statute suggests’ that Congress adopted the principle of impartiality in PARC. Although a court should attempt to give effect to all of -~6§8- statute's terms, Reitel v. Sonotone Corp., 442 U.S. 330, 339 (1979), the decision of the Court of Appeals would make superfluous Congress’ focus only on agencies “involved in the education of the child." Section 615(b)(2) of the statute, 20 U.S.C. §1415(b)(2), provides’ that a hearing “shall be conducted by the State educational agency or by the local ' . : educational agency or intermediate unit, as determined by State law." (Emphasis supplied). In other words, the hearing to be conducted either by the. state agency or by the school district or intermediate unit serving the child. Under the analysis of the Court of Appeals, all agencies that might conduct hearings would be "involved in the education of the child” because, by the terms of the EHA itself, they all must exercise at least general oversight of handicapped children. If Congress had intended such a result, it should therefore have prohibited conduct of a hearing in all cases “by an employee of such agency or unit.” Instead, however, §615(b)(2) only prohibits conduct of the hearing -"“by an employee of such agency or unit involved in_the education or care of the child”. Ibid. (Emphasis supplied). Congress therefore did not believe that all agencies conducting hearings were necessarily involved in the education of the child and wished to distinguish between involved and uninvolved agencies. By failing to make such a distinction, the decision below eradicates the significance of the modifying phrase “involved in the education of the child.” = = Rather than intending this phrase to be superfluous, Congress could only have intended the distinction made in PARC. “involved in the education of the child" means what it says; it refers not to agencies exercising oversight of all handicapped children, but only to those agencies or units actually providing "the child” with services and actually helping to develop the IEP. In some cases, therefore, this standard does reach state agencies. Congress was aware that state agencies directly provide educational services in some cases and therefore are directly participating in the development of -IEP's. For example, the Pennsylvania Department of Education directly manages three special state schools. Similarly, ~~ = in Mills, the other landmark case on | which Congress’ relied, the Board of Education of the District directly ran the schools. The decree in that case accordingly provided that hearing officers would not “be an official, employee or agent of the Public School System.” Even under the EHA itself, the state agency must in some circumstances provide educational services directly to a child. 20 U.S.C. §1414(d). Rather than attempt to write a blanket rule for all cases, Congress adopted a standard that reflected the numerous educational arrangements throughout the United States while focusing at all times on actual involvement with “the child." This interpretation of the statute is not only consistent with the language of the statute, it is also consistent ~}™= with standards of impartiality. In general, prior exposure or knowledge of the nature of issues involved in a dispute, even engagement in policy-making, does not provide a disqualifying bias but rather is considered a benefit of the administrative process. See, - Hortonville Joint School Dist, No, 1 v. Hortonville Educational Ass'n, 426 U.S. 482, 493 (1976) (decisionmaker is not "disqualified simply because he _ has taken a position, even in public, on a policy issue related to the dispute"); United States v. Morgan, 313 U.S. 409 (1941) ("underlying philosophy” by cabinet secretary did not render him incapable "of judging a particular controversy fairly on the basis of its own circumstances"). See generally = 3 K. Davis, Administrative Law Treatise §19:2, at 372 (2d ed, 1980) ("The law is entirely clear that an announced previous position about law or policy is not a disqualification for exercise of judicial power."). Bias concerns arise . only from prior involvement in the decision under review or prejudgment of the facts of a particular case. See Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (an adjudicator should not “have participated in making the determination under review"); Davis, supra, §19:4, at 382 ("{oJne who prejudges adjudicative facts ... may be disqualified"); 1 Koch, Administrative Law and Practice §6.7, at 439 (1980). This conventional view animated PARC and it is therefore likely to have influenced Congress here: due process hearings exist to provide parents with a forum to challenge the decision of aIée school officials. Obviously, neither hearings nor reviews should be conducted by anyone closely associated with the very school officials whose educational plan a parent rejects. In general, however, the state agency and its Secretary are not associated in this way. They are the watchdogs, not the associates, of the school officials who have prepared the IEP rejected by the parents.?? In contrast to this interpretation of impartiality, which is consistent with the responsibility placed by the statute on state agencies, the Court of Appeals offered no explanation of how its interpretation could further the purpose of the Act. The decision below 19petitioner here supervises 501 school districts and 29 intermediate units. 24 P.S. 99-332. refers vaguely to furthering “the ultimate objectives of the process.” It also states that Congress desired “decisionmakers who are not subject to the kind of pressures that employees of an educational agency would necessarily feel.” {[Pet. App. 48a]. But neither the Court below, nor any lower court that has rendered a similar ruling, could provide other than a conclusory explanation of partiality.?° 20systems guaranteeing independence of administrative law judges exist to insulate them from the initial decision in that same case by other members of the agency. When no member of an agency has made a decision under review, the need for guarantees of independence evaporates. Administrative law judges do not exist generally to provide a check on the agency itself; they are a part of the agency and indeed are normally “employees” of the agency. Frequently, decisions of the administrative law judges are themselves reviewable by the heads of an agency. The check on the agency itself comes from judicial review. ~ = In essence, the decision below took an administrative model from other systems and imposed it out of context. The decision gratuitously imposes a purely judicial model on what “framers of the law viewed ... as a means of providing a relatively informal, inexpensive and prompt remedy when agreement could not be reached in the educational planning process." U.S. Dept. of Education, Ninth Annual Report to Congress on the Implementation of the 75 (1987). As a 1982 study revealed, issues presented at GuW@ process hearings are quintessentially decisions of educational policy; they are chiefly decisions involving the appropriateness of a child's schoo] placement, the appropriateness of a student's program -,* and services, or the appropriateness of the evaluation. U.S. Dept. of Education, Fourth Annual Report to Congress on the Implementation of Public Law 94-142: The Education for All Handicapped Children Act 45 (1982). Congress did not seek uniformed decisionmakers, but decisionmakers informed by the experience of working in and struggling with the problems of special education. Given the educational nature of the decisions, it is critical that the agency and the official directly responsible for ensuring statewide compliance with the EHA not be excluded from the decisionmaking process. ~_~ ™ D. When a Senate Subcommittee began developing the due process requirements of the EHA, the PARC plaintiffs advised the subcommittee to adopt this principle of accountability: "The ultimate responsibility and authority to assure 4 free public education appropriate to the educational needs of each school aged mentally retarded child should lie with’ the Secretary of Education." Hearings before the Subcommittee on the Handicapped of the Committee on Labor and Public Welfare, 93rd Cong., lst Sess., Part 3, 1513 (1974) (prepared comments of Pennsylvania Association for Retarded Children) (emphasis supplied). The Senate Committee accepted this advice, and its Report stated that the =~ 9a "Committee bill has been designed {inter alia) oes to assure sole responsibility for the education of all handicapped children by the State educational agency.” S.Conf.Rep. No. 94-168, 94th Cong., 2nd Sess. 29, 47, reprinted in U.S. Code Cong. & Ad. News at 1437-38. On its face, therefore, the EHA makes the “State educational agency responsible for assuring that the requirements of” the statute are carried out. 20 U.S.C. §1412(6). The state educational agency must set forth a plan for the education of the handicapped, and this plan must provide guarantees of appropriate education. 20 U.S.C. §1413. The state educational agency is responsible for “the development ' § and implementation of a comprehensive system of personnel development” including training and the dissemination to teachers of “significant information derived from educational research, demonstration and similar projects”. 20 U.S.C. §1413(a)(3) (A). The state educational agency must adopt “where appropriate, promising educational practices and materials”. 20 U.S.C. §1413(a)(3)(B). Furthermore, the state educational agency must judge the adequacy of a local educational agency's programs. 20 U.S.C. §1414(b). If those programs are inadequate, the state agency should cut off funds. 20 U.S.C. §1414(b)(2)(A)(i). As in PAKC, the state agency should ever =-§le “provide special education and related services directly to handicapped children” if those children are not otherwise served. 20 U.S.C. §1414(d). Like the parties in PARC, Congress also expected due process hearings to complement the other state agency functions. For example, in the 1975 amendments, Congress required that hearings either be conducted initially by the state agency or be reviewed by the state agency. Pub.L. 94-142, §615(b), codified at 20 U.S.C. §1415(b). If Congress did not intend hearing officers to have ae special affinity with the state agency, Congress had no reason to require State involvement in administrative review. -B2- In addition, the statute requires that due process hearing decisions serve both as a means of informing the State agency of local program inadequacies and of helping to stimulate State responses. In determining the adequacy of a local educational agency's programs, the state agency must “consider any decision made pursuant to 4 [due process] hearing... which is adverse to the local educational agency or intermediate educational unit involved in such decision." 20 U-S.C. §1414(b)(3). By making due process hearing decisions subject to judicial review, Congress assured a judicial check on State activities. afiRa In Rowley the Court recognized the relationship between the EHA's hearing process and the statute's mandate that the State be the responsible educational agency. This Court held that the State's responsibility of “acquiring and disseminating" knowledge of good practices, and of “adopting” those practices where appropriate, constituted a “clear statutory directive” that Congress did not intend “courts to overturn a State's choice of appropriate educational theories in a [due process] proceeding.” 458 U.S. at 207-08. This Court recognized, therefore, that due process hearings are themselves means by which state agencies learn of, adopt and disseminate promising practices. Congress could not logically -84- have intended state agencies to be responsible for developing promising educational policies and yet have intended the head of a state agency to defer to the educational theories of hearing officers outside the employment of the agency. The EHA therefore parallels the PARC decree in important ways that cast doubt on any claim that Congress intended the impartiality requirement announced by the Third Circuit. Like PARC, the EHA relies on the state educational agency to assure appropriate education for each child. Like PARC, the EHA uses the due process hearing mechanism to help accomplish that goal. Forbidding the State Secretary of Education from involvement would undercut these goals. =fGa It would remove from the Secretary the ultimate responsibility for the education of each child; it would therefore reduce the Secretary's accountability to the public and to the courts. The decision below is therefore inconsistent with the structure of the EHA and with its origins in the PARC decree. E. The Court of Appeals ' and every other decision supporting its position have erroneously relied on language in the Conference Report synthesizing Senate and House versions of the EHA.*? The Report states in pertinent part: 21ltwo lower court cases support the holding that the chief executive of a state education agency may review due (Footnote continued on next page). 21(Footnote continued from previous page). process appeals. Victoria L. Vv, District School Board of Lee County, “ts 741 F.2d 369, 374 (llth Cir.1984); Brandon E. v. Wisconsin Department of Public Instruction, 595 F. Supp. 740, 746 (E.D. Wisc. 1984). Several cases support the decision below. In each of these cases, the court based its decision primarily on the language of the Conference Report. See Grymes v. Madden, 672 F.2d 321 (3d Cir. 1982), Helms v. McDonald, 647 F.2d 800, 806 n. 9 (5th Cir. 1981), cert. denied, 455 U.S. 946 (1982); Robert M, v. Benton, 634 F.2d 1139, 1142 (8th Cir.1980); Vogel v. School Board of Montrose, 491 F. Supp. 989, 995 (W.D. Mo. 1980). In Mayson by Mayson v, Teague, 749 F.2d 652 (llth Cir. 1984), the Court of Appeals did not independently analyze the Conference Report but simply adopted the holding of other courts that had. Two Circuit Courts of Appeals have noted the conflicting cases but have not ruled upon the question. See Cain v. Yukon Public School District, 775 F.2d 15, 20 (10th Cir. 1985); Colin K, v. Schmidt, 715 F.2d 1, 5 n. 3 (lst Cir. 1983). =fita S. Conf. Rep. No. 455, 94th Cong. Sess. Cong. "(b) costae conferees point out that any [due process] hearings are not conducted by the agency itself, but rather at the appropriate agency level. The hearing will be conducted by an _ impartial hearing officer since the State or local agency or intermediate unit will be a party to any complaint presented. (c) no hearing may be conducted by an employee of the State or local educational agency involved in the education or care of the child. The conferees have adopted this’ language to Clarify the minimum standard of impartiality which shall apply to individuals conducting due process hearings and individuals conducting d review of the local due process hearing; ° 49, reprinted in 1975 U.S. & Admin. News 1480, 1502. -~88- — | Code, At first glance, this language does appear to support the decision below. Paragraph (b) states that “any” hearing shall be conducted not by the agency but at the appropriate agency level. But paragraph (b) proceeds to explain the reason for this concern: the Conference Committee did not wish the hearing conducted by the agency when the agency is itself a party to the complaint. The report further suggests an awareness that a State will not always be party to a complaint, for it states that a “State or local agency Qr intermediate unit will be a party to any complaint." (Emphasis supplied). In fact, state agencies are typically not parties to a complaint. A court should not extend the concern of the Conference Committee out of context; the prohibition on hearings by employees -~89- should not apply even when a state agency is not a party to a complaint. Paragraph (c) provides even less support to the decision below. Although it equates standards of impartiality for the local and state decision, the standard it enunciates only reiterates the statute. The Report does not prohibit conduct of a hearing by an emp loyee of any "state Or local educational agency,” but only of such agencies “involved in the education of the child.” Like the’ statute, the Report therefore distinguishes between Situations in which state agencies are “involved” and situations in which they are not. The Conference Report at best is ambiguous. No other language in the legislative history supports such 4 view. Indeed, of the original House and Senate bills, only the Senate bill -90- prohibits hearings by employees "involved in the education of the child.” S. Rep. No.94-168, 94th Cong., 2d Sess. 29, 47, reprinted in (1975) U.S. Code. Cong. & Admin. News 1425, 1453, 1470. Nothing in the Senate Report, however, suggests an intent to go beyond the PARC restriction. Nor did any witness testify in favor of d tighter restriction. The Conference Report itself expressed no reason for such a significant change from PARC. In arriving at its holding the Court of Appeals failed to consider that: “{1)n expounding a statute we must not be guided by a Single sentence or a member of a sentence, but look to the provisions of the whole law, and to its object and policy.” Pennhurst State Schoo] and Hopsital v. Halderman, 451 U.S. at 18. =@iea In the absence of clearer statutory language or legislative intent, in light of the structure of the statute, the language of the statute, and the alternative interpretation's failure to accomplish any reasonable purpose, this Court should hold that the Court of Appeals erred in grafting onto the EHA a standard of impartiality not envisioned or required by Congress. =@2e CONCLUSION For the foregoing reasons, petitioner asks the Court to reverse the judgment of the Court of Appeals. LeRoy S. Zimmerman Attorney General Maria Parisi Vickers Chief Deputy Attorney General Chief, Eastern Region Counsel of Record John G. Knorr, III Chief Deputy Attorney General Chief, Litigation Section Gregory R. Neuhauser Senior Deputy Attorney General Attorneys for Petitioner OFFICE OF ATTORNEY GENERAL 206 State Office Bldg. Philadelphia, PA 19130 Telephone (215) 560-2402 Dated: December 1, 1988 =93< --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1400%3A07. Public record. Not legal advice.