Appendix — Arons v. Office of Disciplinary Counsel of the Supreme Court of Delaware

e

1. Decision of the Supreme Court of the State of Delaware,

issued on July 6, 2000. Al-A15.

2. Findings and Recommended Disposition of the Board on

the Unauthorized Practice of Law of the Supreme Court of

the State of Delaware, issued on September 24, 1999. A1l6-

A42.

3. Stipulation, In the Matter of Arons, et al., No. UPL-4,

1999, Before the Board o the Unauthorized Practice of Law

of the Supreme Court of the State of Delaware. Dated August

6, 1998. A43-A53.

4. Stipulation, In the Matter of Arons, et al., No. UPL-4,

1999, Before the Board o the Unauthorized Practice of Law

of the Supreme Court of the State of Delaware. Dated June

23, 1999. A54-A57.

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IN THE SUPREME COURT

OF THE STATE OF DELAWARE

IN THE MATTER OF: MARILYN ARONS, RUTH

WATSON and PARENT INFORMATION CENTER OF

NEW JERSEY, INC., Respondents.

No. 440, 1999

UPL No. 4, 1996

Submitted: May 23, 2000

Decided: July 6, 2000

Before VEASEY, Chief Justice, WALSH, HOLLAND,

HARTNETT,” and BERGER, Justices, constituting the Court

En Banc.

Upon Review of the Findings and Recommended

Disposition of the Board on the Unauthorized Practice of Law.

Affirmed.

Mary M. Johnston, Esquire, Chief Counsel and Michael

S. McGinniss, Esquire, Disciplinary Counsel, (argued), Office

of Disciplinary Counsel, Wilmington, Delaware, for Appellee.

Walter Speed Rowland, Esquire, Wilmington, Delaware

and David C. Vladeck, Esquire (argued) and Amanda Frost,

Esquire, Public Citizen Litigation Group, Washington, D.C. for

Appellants-Respondents.

Retired Justice sitting by designation pursuant to Del.

Const. art. IV Sec. 38.

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Bill Lann Lee, Esquire, Acting Assistant Attorney

General, Mark L. Gross, Esquire, and Lisa J. Stark, Esquire,

Department of Justice, Washington, D.C., for The United States

as Amicus Curiae.

WALSH, Justice:

This is an appeal from a decision of the Board on the

Unauthorized Practice of Law (the "Board"), an arm of the

Supreme Court of Delaware, concluding that the appellants had

engaged in the unauthorized practice of law. The appellants,

supported by the United States Department of Justice as amicus

curiae, contend that the Board erred in not recognizing their

entitlement under federal law to represent parents of children

with disabilities before State administrative agencies. That

entitlement, it is argued, preempts state law and is supported by

due process considerations. We conclude, however, that the

Board's decision is supported by the evidence and free of any

error of law. Accordingly, we affirm.

I

The appellants, Marilyn Arons and Ruth Watson, are,

respectively, the founder and Executive Director of Parent

Information Center of New Jersey, Inc. (collectively

"Appellants"). The Parent Information Center is a non-profit

organization founded in 1977 that provides advice, counseling

and advocacy services to families of children with disabilities.

On five occasions, the Center has represented families of

children with disabilities in "due process" hearings held by the

Delaware Department of Public Instruction pursuant to the

federal Individuals with Disabilities Education Act ("IDEA"),

20 U.S.C. § 1400 et seg.' Four of these five hearings were

‘Because Delaware participates in and receives federal

funds under the IDEA, proceedings governing the special

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handled by Arons, while the other hearing was handled by

Watson. Although neither Arons nor Watson is an attorney,

both possess special knowledge and training with respect to the

problems of children with disabilities.

The IDEA is intended to "ensure that children with

disabilities and their parents are guaranteed procedural

safeguards with respect to the provision of free appropriate

public education." 20 U.S.C. § 1415(a). Under the IDEA, the

parents of a disabled child are entitled to challenge any

proposal to change or initiate, or refusal to change or initiate,

the identification, evaluation, educational placement or any

other aspect of the provision of a free appropriate [*4] public

education service to that child. See id. at § 1415(b)(3). When

complaints are received, "the parents involved in such

complaint shall have the Opportunity for an impartial due

process hearing." Jd. at § 1415(f).

Due process hearings in Delaware are conducted in a

manner typical of contested, adjudicatory hearings. The parties

include the parent(s), the local school board and the

Department of Public Instruction. The hearing is conducted by

a three-member panel consisting of an attorney admitted to

practice in Delaware; an educator who is either certified in the

area of special education or who has been a post-secondary

educator in the area of programs for students with disabilities:

and a lay person with demonstrated interest in the education of

students with disabilities from an approved list compiled by the

Governor's Advisory Counsel for Exceptional Citizens.

Hearings are chaired by the attorney member of the panel.

education of children with disabilities conform to IDEA

requirements, as well as Delaware law.

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Due process hearings usually last from two to four days.

The school board and the Department of Public Instruction are

always represented by counsel. The hearing begins with

opening statements from each party. Evidence is then

presented through witnesses, who are subjected to direct and

cross-examination. Although the rules of evidence do not apply

strictly, the Chair rules on legal issues, the qualification of

experts and objections to relevance, materiality and

admissibility. Following the presentation of evidence, the

parties make closing statements and may be asked to file

written submissions on key questions.

On August 8, 1996, the Office of Disciplinary Counsel

("ODC") filed a petition with the Board requesting that Arons,

Watson and the Parent Information Center be declared to have

engaged in activities constituting the unauthorized practice of

law by representing families of children with disabilities in due

process hearings. While admitting the representation of at least

five such families in Delaware due process hearings, Appellants

denied that their activities, even if amounting to the practice of

law, constitute the unauthorized practice of law. They argued

that section 1415(h)(1) of the IDEA permits the representations

in which they have engaged and preempts any state-law

proscription against the unauthorized practice of law that might

otherwise apply. That section provides that any party to a due

process hearing "shall be accorded .... the mght to be

accompanied and advised by counsel and by individuals with

special knowledge or training with respect to the problems of

children with disabilities." They also claimed that Delaware is

alone among the fifty states in precluding non-lawyer

representation in these circumstances.

The matter was submitted to the Board on a stipulation

of facts, including transcripts of due process hearings, briefs,

oral argument and post-hearing correspondence. On September

AS

24, 1999, the Board issued a written opinion concluding that

the IDEA does not authorize the practice of law by non-

lawyers, including Appellants, in due process hearings. This

appeal followed. Following the entry of this appeal, the United

States Department of Justice sought leave to appear as an

amicus curiae. Leave was granted and the Department has filed

a brief in support of Appellants' position.

II

The present appeal poses the first occasion for this

Court to exercise its power of review of decisions of the Board.

Under Supreme Court Rule 86(e), this Court will accept factual

findings by the Board so long as they are supported by

substantial evidence. We review on ade novo basis findings by

the Board related to legal issues. See Supr. Ct. R. 86(e).

Because the parties stipulated to the facts in this matter and the

only dispute relates to matters of law, this Court's review on all

issues is de novo.

Appellants' principal argument is that the IDEA

guarantees parents the right to have trained non-lawyers

advocate on their behalf in due process hearings. They contend

that the IDEA could hardly be clearer because it draws no

distinction between counsel and "individuals with special

knowledge or training with respect to the problems of children

with disabilities." To the extent that Delaware law conflicts

with federal law, the argument runs, Delaware law is displaced

and federal law governs.

The ODC responds that the IDEA unambiguously

supports its position. It argues that counsel have inherent and

presumptive representational ability and authority, while

educational consultants do not, and that the Statutory language

of section 1415(h) neither creates nor implies an equivalence of

permissible roles for "counsel" and for "individuals with special

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knowledge or training."

Appellants and the ODC each argue that the pertinent

language of the IDEA in dispute -- "the right to be

accompanied and advised by counsel and by individuals with

special knowledge or training with respect to the problems of

children with disabilities" -- unambiguously supports their

respective positions. We do not share the parties’ vision of

clarity. In our view, section 1415(h)(1) is ambiguous to the

extent it appears to confer joint authority on lawyers and non-

lawyers to accompany and advise parents and others affected

by the operation of the due process hearings provided under the

IDEA. That being said, however, case law as well as statutory

history support the ODC's interpretation.

The pertinent language of section 1415(h)(1) has been

discussed by the United States Court of Appeals for the Third

Circuit in Arons v. New Jersey State Board of Education, 3d.

Cir., 842 F.2d 58 (1988). In that case, Appellant Arons sought

an award of fees for her successful representation of parents in

a due process hearing in New Jersey, where state law allows

non-lawyers to represent parents in due process hearings. In

affirming a decision of the United States District Court for New

Jersey that held that the New Jersey regulation authorizing such

fees permitted payment of only legal fees and not those of lay

advocates, the court of appeals rejected the statutory intent

argument advanced by Appellants here. The court explained:

The carefully drawn statutory language

does not authorize these specially qualified

individuals to render legal services. Although

the [IDEA] does give "any party to any hearing"

the right to "present evidence and confront,

cross-examine, and compel the attendance of

witnesses," those functions are not designated to

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be performed by lay advocates. Furthermore,

the statute does not use the word "represent" in

subsection (d)(1), as would be expected if

Congress intended to place expert and legal

counsel on the same footing.

Our search through the legislative

history has failed to uncover any indication that

Congress contemplated that the "individuals

with special knowledge" would act in a

representative capacity. The Senate Report

describes the "individual's" role as one of

consultation, with emphasis on _ the

responsibility to identify educational problems,

evaluate them, and determine proper

educational placement.

The provisions's [sic] text and history

thus cast substantial doubt on the plaintiff's

statement in her brief that "Congress intended

that no distinction be drawn between lawyers

and lay advocates."

**

842 F.2d at 62-63 (citations omitted).

Because the sole issue presented in Arons was whether

a lay advocate, whose authority to represent parents in the

IDEA proceedings was unchallenged, was entitled to seek fees

for her services, the Arons holding is contextually distinct from

the issue posed in this appeal. We find the analysis of the

federalism issue articulated by the court of appeals to be

persuasive. That court's reference to a 1975 Senate Report

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discussing the IDEA? is arguably dicta. Nevertheless, the

contents of the Senate Report describing the nonlawyer's role

as one of consultation is compelling evidence that Congress did

not intend non-lawyers to advocate on behalf of parents in due

process hearings. See Arons, 842 F.2d at 62 (citing S. Rep. No.

94-168 (1975)).

Also supportive of the ODC's proposed interpretation of

the IDEA are a Senate Conference Report addressing the statute

and remarks made by the original author of the Senate bill,

Senator Harrison Williams of New Jersey. The Conference

Report states that in administrative due process hearings a party

is entitled to "the right to counsel and to be advised and

accornpanied by individuals with special knowledge, training

or skills with respect to the problems of handicapped children."

S. Conf. Rep. No. 94-455 (1975). Senator Williams, in

providing a detailed analysis of the legislation before the

Senate on November 19, 1975, echoed those words verbatim.

See 121 Cong. Rec. 37416. This language confirms the clear

distinction that Congress envisioned between the

representational role of counsel and the advisory role of non-

lawyers.

Recent amendments to the IDEA further bolster the

ODC's position. Pursuant to these amendments, one of the

safeguards required for agencies receiving federal funds under

The Senate Report actually discusses the forerunner to

the IDEA, the Education of All Handicapped Children Act

("EHA"). Because the EHA and the IDEA are identical with

regard to the language relevant to the present discussion, this

opinion will not draw a distinction between the two Acts and

will refer to both as the IDEA.

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the IDEA is the adoption of procedures by the agency "that

require the parent of a child with a disability, or the attorney

representing the child, to provide notice" to the state or local

educational agency of certain information in connection with a

complaint. 20 U.S.C. § 1415(b)(6) and (7) (emphasis added).

The word "attorney" is an indisputable reference to a member

of the Bar and not a layperson, even if that layperson possesses

"special knowledge or training with respect to the problems of

children with disabilities." Equally supportive of the ODC's

position is the fact that while the IDEA has been amended

several times since Arons was decided, Congress has not

attempted to overrule that judicial interpretation.

Finally, Congress has explicitly included language in

other federal statutes to permit lay representation where such a

result was intended. See, e.g., 7 U.S.C. § 2020(e)(7) (Food

Stamp Act provision allowing households in certification

process to "be represented by a person other than a member of

the household so long as that person has been clearly

designated as the representative .... and .... is an adult.").

Congress obviously knows how to provide such authority when

it wishes to do so. The absence of similar language in the IDEA

strongly suggests that Congress chose not to create a right to

lay representation in due process hearings.

Appellants place great reliance on, and request our

deference to, an interpretation of section 1415(h)(1) contained

in an April 8, 1981 letter of Theodore Sky, the then acting

General Counsel of the United States Department of Education.

That letter was written in response to a request by the

Superintendent of Public Instruction for the State of

Washington for a "legal analysis regarding the role of lay

advocates in educational agency administrative hearings"

conducted under the IDEA. The superintendent suggested that

the IDEA's language indicates that non-lawyers are not in fact

fain

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authorized to engage in activities conventionally viewed as

legal representation, such as examining and cross-examining

witnesses. In its response, the Department of Education rejected

the superintendent's reading of the IDEA, concluding that

notwithstanding the Senate Conference Report and the absence

in section 1415(h)(1) of the term "represent," lay advocates are

permitted to represent parties at due process hearings and

appeals under the IDEA.

In reaching its conclusion that section 1415(h)(1)

authorizes lay representation in due process hearings, the

Department of Education relied on three factors. First, it

reasoned that because no "bifurcation of function" is set forth

in the statute between counsel on the one hand and individuals

with special knowledge or training on the other, the permissible

roles of the two must be the same. Second, the Department

looked to the remarks of Congressman George Miller and

Senator Alan Cranston, both of California. Congressman

Miller, a member of the Subcommittee on Select Education

which prepared the House bill, explained section 1415(h)(1) to

his colleagues by observing that parents "will have the right to

be accompanied by counsel or other qualified individuals who

possess ‘special knowledge or training with respect to the

education of handicapped children." 121 Cong. Rec. 25539

(1975). Senator Cranston noted that the “procedural

requirements [of the IDEA] are consistent with the existing

California statutory and master plan requirements on this

subject,” which, at the time, permitted the lay representation of

parties in California due process hearings. 121 Cong. Rec.

37419 (1975). Third, the Department relied upon the fact that

lay representation had been authorized by Congress for certain

other types of administrative proceedings.

Because section 1415(h)(1) is arguably ambiguous, the

Department's interpretation of that section is entitled to some

SR TERNS SE SER ome eS

i aad tp Ceca wD Be ties he bd ne aa

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level of deference by this Court. See Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 843-

45, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). Here, however,

that level of deference is modest. Where Congress has not

expressly delegated "authority to an agency to elucidate a

specific provision of the statute by regulation," deference is due

only to a "reasonable" administrative interpretation. /d. at 843-

44. Further, less deference is due to informal agency

interpretations, such as that expressed in the Sky letter, than to

formal agency regulations adopted after a notice and comment

period. See Cleary v. Waldman, 3d Cir., 167 F.3d 801, 807-08

(1999).

Even if this Court were required to give greater

deference to the Department of Education's interpretation of

section 1415(h)(1), it is doubtful whether that interpretation

could withstand the sheer weight of the legal and factual

support for the opposite conclusion. The Department's analysis

of the statute is subject to criticism. First, in concluding that the

permissible roles of counsel and individuals with special

knowledge or training with respect to the problems of children

with disabilities must be the same, the Department overlooked

the inherent and presumptive representational authority with

which counsel are cloaked and non-lawyers are not. Second, the

Department selectively chose statements made by two

lawmakers, while placing no weight on the Senate Report, the

Senate Conference Report, or the remarks of Senator Williams.

Such an approach renders that aspect of the Department's

analysis questionable. See generally Consumer Prod. Safety

Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118, 64 L. Ed. 2d

766, 100 S. Ct. 2051 (1980) ("Contemporaneous remarks of a

single legislator who sponsors a bill are not controlling in

analyzing legislative history."). Finally, the Department's

reliance upon the fact that lay representation had been

authorized by Congress for certain other types of administrative

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_ proceedings is puzzling because as previously noted, that factor

actually supports the opposite conclusion - that Congress knew

how to authorize lay representation when it wished to do so.

Ill

In addition to their statutory interpretation argument,

Appellants contend even if the IDEA does not expressly entitle

them to represent parents in due process hearings, due process

would be violated by forbidding parents from having non-

lawyer representation in hearings under the IDEA. They note

that due process hearings are formal adversarial proceedings in

which the State of Delaware funds the attorneys who argue for

the parents’ adversaries. Denying parents and children access to

"the only assistance available to them," the argument goes

raises "unyielding due process problems."*

The parties agree that Mathews v. Eldridge, 424 US.

319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), governs the

determination of what process is due to safeguard a child's

fundamental right to education. Under Mathews, courts must

consider: (i) the importance of the individual interest involved;

*This Court has some difficulty understanding the

applicability of this argument to the matter at hand. It is not

alleged that forbidding parents from having non-lawyer

assistance in hearings under the IDEA will deprive the

Appellants of their due process rights, nor are the parents,

whose rights are purportedly abridged, parties to this action.

Appellants appear to be acting as surrogates in pressing the due

process claim. We will address Appellants' argument, however,

in the context of adopting a statutory construction that will

avoid constitutional entanglements. See DeBartolo Corp. v.

Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.

568, 575, 99 L. Ed. 2d 645, 108 S. Ct. 1392 (1988).

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(ii) the value of specific procedural safeguards to that interest;

and (iii) the governmental interest in fiscal and administrative

efficiency. See id. at 335.

The ODC acknowledges that the individual liberty

interest at stake in due process hearings under the IDEA is

substantial. It also concedes that some parents will forego their

statutory right to contest changes to their child's education plan

because they cannot afford legal counsel and will opt not to

proceed pro se due to the complexity of the hearings and the

prospect of facing two sets of government lawyers. The ODC

submits, however, that Appellants "grossly and unfairly"

exaggerate the risk that Delaware will deprive children of that

interest unless the children and their parents are allowed to be

represented by lay advocates. In this regard, the ODC notes that

Delaware's Community Legal Aid Society has, on occasion,

provided representation at IDEA due process hearings to

parents and children whose cases satisfy the organization's case

acceptance criteria. The ODC further contends that the State of

Delaware has a compelling interest in regulating the practice of

law within its boundaries, and that this interest significantly

outweighs any potential benefit that some individual parents

and children may obtain through the services of lay advocates.

We agree. A balancing of the Mathews factors suggests

that procedural due process would not be violated by forbidding

parents from having non-lawyer representation in hearings

under the IDEA. While there is no question of the importance

of the individual interests involved, it seems clear that parties

to an IDEA hearing are already provided with substantial

procedural safeguards. The hearings are conducted in a manner

typical of contested, adversarial adjudicatory hearings,

including the direct and cross-examination of witnesses and the

required exchange of witness lists and documents in advance of

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the hearing.’ While we recognize that Appellants possess some

expertise in the area of the educational needs of disabled

children, they admittedly Jack the training and skills that

lawyers are expected to exhibit in matters of evidence and

procedure. Second, it seems logical that the third Mathews

factor, i.e., "governmental interest in fiscal and administrative

efficiency," would encompass this State's exclusive authority to

regulate the practice of law. It would also implicate the ODC's

argument that lay advocates are unregulated and, unlike

members of the Bar, are not answerable to the disciplinary

process that operates as an arm of this Court. This Court does

not exercise its inherent authority to regulate the practice of law

for the purpose of protecting the financial interests of the

lawyer. Our role is to insure that the public will enjoy the

representation of individuals who have been found to possess

the necessary skills and training to represent others.

Finally, the record does not support Appellants’

assertion that parents and children will be denied access to "the

only assistance available to them." The stipulation of the parties

does state that the five families represented by the Appellants

looked diligently to find legal counsel to represent them on a

reduced-cost or pro bono basis prior to obtaining Appellants’

services. But the record also reflects that Delaware's

Community Legal Aid Society has in the past provided

representation at IDEA due process hearings to parents and

children whose cases satisfy the organization's case acceptance

“We also believe that the three member panel consisting

of an attorney, an educator in the area of special education, and

a lay person with demonstrated interest in the education of

students with disabilities, affords parents an unbiased hearing

and, coupled with the above mentioned safeguards, adequate

structural protection.

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criteria. The record further reflects that the State Superintendent

of Public Instruction and the district involved are required to

provide information to parents regarding the availability of free

or low-cost legal services which may be available. If it could be

demonstrated that an unmet need exists and that the local bar

could not adequately respond, this Court would consider the

adoption of a rule allowing lay representation in a certain

limited class of cases. See, e.g., Supr. Ct. R. 57 (permitting civil

actions before Justice of the Peace Courts in which an artificial

entity or public body is a party to be prosecuted and/or

defended by an officer or employee of that artificial entity or

public body, who need not be an attorney duly licensed to

practice law in this State). At present, however, such a need has

not been demonstrated.

IV

For the foregoing reasons, the language of section 1415(h)(1)

cannot be interpreted as granting any clear right to lay

representation. This conclusion renders moot Appellants' claim

that the IDEA preempts any state-law proscription against the

unauthorized practice of law that might otherwise apply to the

activities of such individuals with special knowledge or training

in this context. Accordingly, we affirm the decision of the

Board.

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BOARD ON THE UNAUTHORIZED PRACTICE OF LAW

OF THE

SUPREME COURT OF THE STATE OF DELAWARE

IN THE MATTER OF: MARILYN ARONS, RUTH

WATSON and PARENT INFORMATION CENTER OF

NEW JERSEY, INC., Respondents.

No. UPL-4, 1996

(UPL File Nos. 94-12; 95-17)

Mary M Johnston, Chief Counsel, and Michael S. McGinniss

(argued), Disciplinary Counsel, Wilmington, Delaware,

attorneys for Petitioner Office of Disciplinary Counsel

Walter Speed Rowland, Wilmington, Delaware, and David C.

Vladeck (argued) and Amanda Frost, Public Citizen Litigation

Group, Washington, D.C., attorneys for Respondents Marilyn

Arons, Ruth Watson and Parent Information Center of New

Jersey, Inc.

Before: Samuel A. Nolen, Esquire, Panel Chair, and Cheris

Dawn Congo and John W. Paradee, Esquire, Panel Members

FINDINGS AND RECOMMENDED DISPOSITION ~

On August 8, 1996, the Office of Disciplinary Counsel

("ODC") filed a petition with the Board on the Unauthorized

Practice of Law requesting that the Board declare that

respondents Marilyn Arons, Ruth Watson and Parent

Information Center of New Jersey, Inc. have engaged in

activities constituting the unauthorized practice of law by

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representing families of children with disabilities in "due

process" hearings held by the Delaware Department of Public

Instruction pursuant to the federal Individuals with Disabilities

Education Act ("IDEA"), 20 U.S.C. § 1400 et seg.

Respondents timely appeared and responded to the

petition. While admitting the representation of at least five such

families in Delaware due process hearings, respondents deny

that their activities, even if amounting to the practice of law,

constitute the unauthorized practice of law. It is the

respondents' assertion that Section 1415(h)(1) of IDEA, 20

U.S.C. § 1415(h)(1), which provides that any party to a due

process hearing "shall be accorded ... the right to be

accompanied and advised by counsel and by individuals with

special knowledge or training with respect to the problems of

children with disabilities ..»" authorizes the representations in

which they have engaged and preempts any state-law

proscription against the unauthorized practice of law that might

otherwise apply to the activities of such individuals with special

knowledge or training in this context.

The matter was submitted to the Panel on a stipulation

of facts including transcripts of due process hearings, briefs,

oral argument, and post-hearing correspondence. For the

reasons set forth below, we conclude that IDEA does not

authorize the practice of law by nonlawyers in due process

hearings.

** *

Respondents Marilyn Arons and Ruth Watson are the

founder and Executive Director, respectively, of respondent

Parent Information Center of New Jersey, Inc ("Parent

Information Center"). Parent Information Center is a non-profit

Organization founded in 1977 which provides advice,

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counseling and advocacy services to families of children with

disabilities. Parent Information Center operates largely through

volunteers. It does not receive government or corporate

funding, but derives income through membership dues

(assessed on the basis of ability to pay) and contributions. Ms.

Arons is an educator and curriculum specialist by training and

has completed the course work necessary for a Ph.D. in

Neuroscience and Education from Teachers College, Columbia

University, New York. Neither Ms. Arons nor Ms. Watson is

a lawyer.

IDEA was enacted with the purpose of "assur[ing] that

all children with disabilities have available to them... a free

appropriate public education which emphasizes special

education and related services designed to meet their unique

needs" and "that the rights of children with disabilities and

parents of such children are protected." 20 U.S.C. § 1400(c)(1).

In IDEA, Congress devised a system of funding special

education and evaluative procedures, 20 U.S.C. § 1411, and

required states and localities that accept funding to create and

utilize an elaborate plan for providing special education that

identifies children who need special educational assistance and

determines what assistance each child needs. 20 U.S.C. §§

1412-1414.

Delaware participates in and receives federal funds

under IDEA and, accordingly, conforms its proceedings

governing special education of children with disabilities to

IDEA requirements, as well as to Delaware law.

IDEA is intended to “ensure that children with

disabilities and their parents are guaranteed procedural

safeguards with respect to the provision of free appropriate

public education..." 20 U.S.C. § 1415(a). States and localities

must allow "the parents of a child with a disability to examine

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all records relating to such child ... and the provision of a free

appropriate public education to such child..." 20 U.S.C § 1415

(b)(1) "[W]ritten prior notice [must be given] to the parents of

the child" whenever schools either propose to change or

initiate, or refuse to change or initiate, the identification,

evaluation, or educational placement of the child, or the

provision of a free appropriate public education service to the

child (commonly referred to as the "IEP"). 20 U.S.C. §

1415(b)(3)(B). The parents must have the “opportunity to

present complaints with respect to any matter" relating to the

IEP. 20 U.S.C. § 1415(b)(6). When complaints are received,

"the parents involved in such complaint shall have an

opportunity for an impartial due process hearing," 20 U.S.C. §

1415(f), and for an impartial review on appeal to a state

educational agency. 20 U.S.C. § 1415(g). IDEA specifies,

among other things, the following procedural rights of parties

to IDEA due process hearings:

Any party to a hearing conducted pursuant to

subsection (f) or (k) of this section, or an appeal

conducted pursuant to subsection (g) of this

section, shall be accorded--

(1) the right to be accompanied

and advised by counsel and by

individuals with _ special

knowledge or training with

respect to the problems of

children with disabilities;

(2) the right to present evidence

and confront, cross-examine,

and compel the attendance of

witnesses;

ee ll

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(3) the right to a written, or, at

the option of the parents,

electronic verbatim record of

such hearing; and

(4) the right to written, or, at the

option of the parents, electronic

findings of fact and decisions

(which findings and decisions

shall be made available to the

public consistent with the

requirements of section 1417(c)

of this title (relating to the

confidentiality of data,

information, and records) and

shall also be transmitted to the

advisory panel established

pursuant to section 1412(a)(2 1)

of this title).

20 U.S.C. § 1415(h).

Consistent with its obligations under IDEA, the

Delaware Department of Public Instruction provides due

process hearings to address the complaints of parents relating

to IEPs. Detailed regulations address the initiation of such

hearings, the composition and qualifications of the hearing

panel and its members, the conduct of the hearing and the rights

of the parties thereto. Delaware Administrative Procedures

Manual, 72 000 CDR 002-75 through -78 (Weil Pub. 1996).

These regulatory requirements mirror IDEA in providing that

"Any party to a hearing has the right to: (1) be accompanied

and advised by counsel or [sic] by individuals with knowledge

or special training with respect to the problems of students with

disabilities; [and] (2) present evidence, confront, cross-examine

A21

and compel the attendance of witnesses..." /d at 002-77.

The State Superintendent of Public Instruction and the

district involved are required to provide information regarding

the availability of free or low-cost legal services which may be

available. /d. at 002-75, 002-77-78. Insofar as the record

discloses, however, the only legal services organization that has

provided legal representation by counsel at Delaware IDEA due

process hearings is Delaware's Community Legal Aid Society,

Inc., which has, on occasion, provided representation at IDEA

due process hearings to parents and children whose cases

satisfy the organization's case acceptance criteria.

Due process hearings are conducted in a manner typical

of contested, adversarial adjudicatory hearings. The parties

consist of parents; the local school board, which is always

represented by counsel; and the Department of Public

Instruction, represented by a lawyer from the Office of

Attorney General. The hearing panel must consist of one

attorney admitted to practice in Delaware; one educator

certified in the area of special education or who has been a

post-secondary educator in the area of programs for students

with disabilities; and one layperson with demonstrated interest

in the education of students with disabilities who is included on

an approved list compiled by the Governor's Advisory Council

for Exceptional Citizens. Hearings are chaired by the attorney

member of the panel, who is charged with writing the panel's

decision. Although the rules of evidence do not strictly apply,

the Chair makes rulings on matters such as (i) objections (e.g.,

relevance, materiality, and admissibility); (ii) issues of law

(e.g., burden of proof); and (iii) qualifications of experts. In

advance of the hearing, exhibits must be marked and the parties

must exchange witness lists and all documents to be offered.

Due process hearings begin with opening statements

A22

from each party. Because the school board bears the burden of

going forward, it presents its case first. Evidence is presented

through witnesses, who are subjected to direct and cross

examination. After the school board rests, the Department of

Public Instruction is afforded an opportunity to present its case.

The parents put their case on last, although there is then an

opportunity for rebuttal testimony. Following the presentation

of evidence, the parties give closing statements to the panel and

may be asked to file written submissions on key questions. On

average, hearings last from two to four days.

Although due process hearings have the trappings of

formal adjudications, the issues presented for resolution

typically involve complex factual questions relating to the

unique learning needs of the disabled child. The fact witnesses

who appear at these hearings are typically school officials

(teachers, guidance counselors, and principals), and the expert

witnesses are generally neurologists, psychiatrists,

psychologists, physicians, and others with expertise in

educational and developmental sciences.

Ms. Arons and Ms. Watson are nonlawyers with

"special knowledge or training with respect to the problems of

children with disabilities." As part of their advice, counseling

and advocacy services to families of children with disabilities,

respondents frequently represent such families in IDEA due

process hearings. Parent Information Center has handled

approximately 500 due process hearings on behalf of families

of children with disabilities, mostly in New York and New

Jersey but also in Pennsylvania and, on at least five occasions,

in Delaware.’ It is not asserted that the families of children with

'In Delaware hearings relating to Nicholas DeCrease,

Kevin Coale, Matthew Hayes and Shawn White were handled

A23

disabilities whom respondents have represented at due process

hearings in Delaware believed that respondents were lawyers,

or that respondents held themselves out as such. Indeed it is

stipulated that these families sought legal counsel, but could not

find an attorney willing to represent them on a standard fee-for-

service basis, or to represent them on some reduced cost or pro

bono basis. At the Delaware due process hearings identified

above, Ms. Arons or Ms. Watson presented the parents'

positions to the panel, including by making opening statements,

examining and cross-examining witnesses, making and arguing

evidentiary objections, introducing exhibits, proffering other

records and documents, presenting procedural motions such as

motions for summary judgment, submitting briefs and other

documents and arguing for particular remedies.

In challenging respondents' representation of parents in

due process hearings, ODC does not seek to prove that the

respondents did not provide diligent and effective service to she

families involved. For their part, respondents do not argue that

their role in the due process hearings at issue did not constitute

the "practice of law," which in any event is commonly

understood to include such activities as those engaged in by

respondents and iisted above in their "pursuit, as an advocate

for another, of a legal remedy within the jurisdiction of a quasi

judicial tribunal." Delaware State Bar Ass'n v. Alexander, Del.

Supr., 386 A.2d 652, 661 (1978), quoting Tumulty vy.

Rosenblum, N.J. Supr., 48 A.2d 850, 852 (1946). Accordingly,

the central issue for our decision is whether IDEA preempts the

Delaware Supreme Court's authority to prohibit nonlawyers

from practicing law in due process hearings by virtue of the

provision in 20 U.S.C. § 1415(h)(1) requiring that parents be

by Ms. Arons. The hearing in Delaware relating to Phillip Russ

was handled by Ms. Watson.

A24

accorded "the right to be accompanied and advised ... by

individuals with special knowledge and training with respect to

the problems of children with disabilities."

* * *

The Delaware Supreme Court has inherent jurisdiction

over the practice of law within Delaware. Delaware State Bar

Ass'n v. Alexander, 386 A.2d at 654; In re Appeal of

Infotechnology, Inc., Del. Supr., 582 A.2d 215, 220 (1990); Jn

re Petition of Nenno, Del. Supr., 472 A.2d 815, 819 (1983)

(noting significance of separation of powers doctrine). While

aspects of the Court's authority are referenced by statute, see,

e.g., 10 Del. C. § 1906, the source of this inherent authority

rests in the jurisprudence of England transplanted to the

Colonies prior to the time of their separation from the Crown.

In view of the exhaustive treatment of this subject by the

Supreme Court in Delaware Optometric Corp. v. Sherwood,

Del. Supr., 128 A.2d 812, 815-817 (1957), it is unnecessary to

recount in detail the historical development of authorization or

licensure to practice law as a prerequisite to practice that

profession. It is pertinent to observe, however, that from early

times it has been recognized as necessary to the public welfare

to regulate and oversee those who seek to represent the interests

of others before tribunals. Delaware Optometric Corp. v.

Sherwood, 128 A.2d at 816. As our Supreme Court has found:

The justification for the existence of this

[regulatory] power inherently in the courts is the

necessity for the proper administration of

justice, which can be achieved only if the

procedures and practices of the courts are fair

and reasonable, and the officers of the court, the

lawyers, are competent and ethical. Thus it is

that by rule of court requirements are

A25

established for admission to the Bar, and

standards of ethical conduct established, to

which all lawyers must conform to continue in

the practice of law. The policing of these

requirements is achieved by the inherent power

of the court to discipline lawyers for violations.

In re Member of the Bar, Del. Supr., 257 A.2d 382, 383

(1969).

Under the common law rule thus in existence in

Delaware since before the separation of the Colonies from the

Crown, the "admission of attorneys to practice, and the

’There are, of course, those who portray limitation of

the right to practice law as monopolistic or oligarchic economic

protectionism benefitting those already authorized to practice.

While not explicitly advanced by respondents as an argument,

it is alluded to in the briefing. ("The purpose of UPL laws is to

protect the public, not to preserve the lawyer monopoly over

the delivery of legal services.") This is not a pertinent

consideration in the case before us; the stipulated facts establish

that there was no universe of lawyers willing to take on the

cases handled by respondents on a standard fee-for-service

basis. It would in any event not be a pertinent consideration in

Delaware since, at least in Delaware, it is well established that

the right or authority to practice law is not a franchise which

may be protected as a property right against competition.

Delaware Optometric Corp. v. Sherwood, 128 A.2d at 817

("The lawyer's license ... is not the grant of a property right

which the individual may protect by injunction [against

unauthorized competition]. To regard it otherwise is to make

the legal profession a business, and to destroy the very reason

for its existence").

A26

exclusion of unauthorized persons from practice lie within the

province of [the Supreme] court. A violation of [the Supreme]

court's exclusive right to license attorneys at law by presuming

to practice law without such license is a contempt of its

authority and punishable as such." Delaware Optometric Corp.

v. Sherwood, 128 A.2d 816-17.

The policing of the Bar and, thus, of the practice of law

in general takes numerous forms. For example, as the Court

itself noted in upholding mandatory annual assessments for the

benefit of the Clients' Security Trust Fund (now known as the

Lawyers' Fund for Client Protection):

It must be borne in mind that lawyers,

constituting the Board of Bar Examiners by

appointment of this Court, control admissions to

the Bar. In a sense, therefore, the profession

holds out to the public all its members in good

standing as being competent, honest and

devoted to their clients’ interests. This, it seems

to us, is in the nature of a collective

representation by the Bar to the public, and

justifies a collective acceptance of responsibility

when one of its members is false to his oath and

the common precepts of honesty.

In re Member of the Bar, 257 A.2d at 3 83. Similarly, lawyers

are subject to detailed rules of professional conduct (see

Delaware Lawyers' Rules of Professional Conduct), rules

*This approach is not unique to Delaware, but widely

accepted in many other states. See In the Matter of Thomas

Alexander Jr., Bd. on the Unauthorized Practice of Law, UPL-

2, 1992 (July 8, 1993) (Opinion) and cases collected therein.

A27

requiring continuing education (see Delaware Rules for

Mandatory Continuing Legal Education), annual registration

requirements (see Supreme Court Rule 69), rules relating to

abandoned or unclaimed client trust funds (see Supreme Court

Rule 73), rules governing segregation of and accounting for

client funds (see Rule 1. 15, Delaware Lawyers' Rules of

Professional Conduct), and rules restricting and regulating

advertising and other communications about legal services that

might create unjustified expectations or that might otherwise

mislead (see Rules 7.1 - 7.5, Delaware Lawyers’ Rules of

Professional Conduct). It is undisputed that these restrictions,

limitations, requirements and client protections are not

generally applicable to nonlawyers.

Respondents’ conténtion that their practice of law

without admission to practice nonetheless constitutes the

authorized practice of law under IDEA rests principally upon

their assertion that (i) 20 U.S.C. § 1415(h)(1) on its face

authorizes "individuals with special knowledge or training with

respect to the problems of children with disabilities" to

represent parties to due process hearings, by virtue of its

conferral of a right to such parties to be accompanied and

advised by such individuals, and (ii) IDEA thereby preempts

under the Supremacy Clause of the United States Constitution,

U.S. Const. art. VI, cl. 2, the traditional regulation of the

practice of law by the Delaware Supreme Court.

We do not read Section 1415(h) as providing that a

party to a due process hearing may be "represented" by

individuals with special knowledge or training with respect to

the problems of children with disabilities. It provides only that

a party may be "accompanied and advised" by such persons.

Where Congress (or an agency to which Congress has granted

clear regulatory authority) has intended to allow representation

of parties by nonlawyers in administrative or other proceedings,

A28

it has been explicit in its language doing so. See, e.g., Sperry v.

Florida ex rel. Florida Bar, 373 U.S. 379, 384 (1963) (statute

providing that the Commissioner of Patents "may prescribe

regulations governing the recognition and conduct of agents,

attorneys, or other persons representing applicants or other

persons before the Patent Office” authorized Commissioner to

provide by regulation that patent applicant "may be represented

by an attorney or agent authorized to practice before the Patent

Office") (italics in opinion); 7 U.S.C. § 2020(e)(7) (1988) and

7 CFR § 273.15(p)(2) (Food Stamp Act provision and

regulation allowing "households" in certification process to "be

represented ... by a person other than a member of the

household so long as the person has been clearly designated as

the representative ... and ... is an adult" and in grievance

proceedings to "present the case or have it presented by a legal

counsel or other person"); 45 CFR § 205.10(a)(3)(ii1) (1997)

(provision regulating state plans under Social Security Act

allowing applicants and recipients to be "represented by an

authorized representative, such as legal counsel, relative, friend

or other spokesman"); 38 U.S.C. § 5904(a) ("The Secretary

may recognize any individual as an agent or attorney for the

preparation, presentation and prosecution of claims under laws

administered by the Secretary" relating to veterans’ benefits). In

IDEA, by contrast, Congress did not clearly reflect by the

words chosen that lay representation was being authorized.

Rather, it used words -- "accompanied and advised" -- which do

not ordinarily convey the concept of representatic:.‘

“We do not accept the argument that, in lumping

“counsel" and “individuals having special knowledge or

training" together in Section 1415(h)(1), the statutory language

implies an equivalence of permissible roles for the two

categories of persons. Counsel have inherent and presumptive

representational authority, while individuals with special

A29

Accordingly, we find that the plain language of Section

1415(h)(1) does not authorize individuals having special

knowledge or training with respect to the problems of children

with disabilities to represent parties in due process hearings.

While it is a basic tenet of Statutory construction that

resort to extrinsic aids to construction is unnecessary in the

absence of ambiguity, and we find no ambiguity in the carefully

drawn language of the statute, we note that the Joint

Explanatory Statement of the Committee of Conference set

forth in the Senate Conference Report, which addressed IDEA

(then known as the Education of All Handicapped Children

Act) as finally adopted, explained the due process provisions as

providing the "right to counsel and to be advised and

accompanied by individuals with special knowledge, training

or skills with respect to the problems of handicapped children."

S. Conf. Rep. No. 94-445, reprinted in 1975 U.S.C.C.A.N.

1480, 1503. This language confirms the clear distinction

between the representational role of counsel and the advisory

role of nonlawyers which we perceive.

Our finding is consistent with that expressed by the

United States Court of Appeals for the Third Circuit in Arons

v. New Jersey State Board of Education, 842 F.2d 58 (3d Cir.),

cert. denied, 488 U.S. 942 (1988). There, Ms. Arons sought an

knowledge or training with respect to the problems of children

with disabilities do not. Indeed, it is an ancient and original

function of counsel to represent others in pleading cases -- to

stand in the client's stead -- while it is no traditional part of the

role of individuals with special knowledge or training in the

problems of children with disabilities to do so, so far as this

record reveals. Congress may be presumed to have understood

this.

A30

award of fees for her successful representation of parents in a

due process hearing, but was denied fees on the ground that the

New Jersey regulation authorizing such fees permitted payment

only of legal fees, and not fees of lay advocates.’ Ms. Arons

appealed, arguing that the no-lay-fee rule stood as an obstacle

to the full accomplishment of the IDEA objectives (because the

rule would discourage parties from using nonlawyer

representatives which Ms. Arons claimed (and here claims)

Section 1415(h)(1) authorized) and was therefore preempted by

IDEA.

The Third Circuit squarely rejected this view. It said:

The carefully drawn statutory language

does not authorize these specially qualified

individuals to render legal services. Although

the Act does give "[a]ny party to any hearing"

the right to "present evidence and confront,

cross-examine, and compel the attendance of

witnesses," Id. § 1415(d)(2) [now (h)(2)], those

functions are not designated to be performed by

lay advocates. Furthermore, the statute does not

use the word "represent" in subsection (d)(1)

[now (h)(1)], as would be expected if Congress

intended to place expert and legal counsel on

the same footing.

Our search through the legislative

*By regulation, New Jersey permits -- as a matter of

state law -- the representation of parents in due process

hearings by nonlawyers. Indeed respondents advise that

Delaware is alone among the fifty states in precluding

nonlawyer representation in these circumstances.

A31

history has failed to uncover any indication that

Congress contemplated that the "individuals

with special knowledge" would act in a

representative capacity. The Senate Report

describes the "individual['s]" role as one of

consultation, with emphasis on __ the

responsibility to identify educational problems,

evaluate them, and determine proper

educational placement. S. Rep. No. 168, 94th

Cong., Ist Sess., reprinted in 1975 U.S. Code

Cong. & Admin. News pp. 1425, 1470-71.

The provisions's text and history thus

cast substantial doubt on the plaintiff's

statement in her brief that "Congress intended

that no distinction be drawn between lawyers

and lay advocates."

842 F.2d at 62. Whether or not binding in a precedential way,

we find this analysis persuasive and note that in none of the

amendments of IDEA adopted since Arons was decided has

Congress attempted legislatively to overrule this judicial

interpretation.

Respondents argue that, notwithstanding the foregoing,

we are bound to give controlling deference to an interpretation

of the "accompanied and advised" language found in an April

8, 1981 letter of Theodore Sky, then Acting General Counsel of

the United States Department of Education (the "Sky Letter"),

in which he concluded that notwithstanding the Senate

Conference Report and the absence in Section 1415(h)(1) of the

term "represent," lay advocates are permitted to represent

parties at administrative hearings and appeals. Letter of

Theodore Sky, Acting General Counsel, Department of

Education, to the Honorable Frank B. Brouillet. Superintendent

A32

of Public Instruction, State of Washington (April 8, 1981).

In Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984), the United States Supreme

Court addressed deference to administrative statutory

interpretations. Under the Court's analysis, the first question is

"whether Congress has directly spoken to the precise question

at issue. If the intent of Congress is clear, that is the end of the

matter ...." 467 U.S. at 842. If the statute is silent or ambiguous

on the issue, however, a court must determine whether the

agency's construction is permissible. Jd. at 843. If Congress

expressly delegated "authority to the agency to elucidate a

specific provision of the statute by regulation ... [sJuch

legislative regulations are given controlling weight unless they

are arbitrary, capricious, or manifestly contrary to the statute."

Id. at 843-44. If the legislative delegation is merely implicit,

however, deference is due only to a "reasonable" administrative

interpretation. Jd. at 844. Less deference is due to informal

agency interpretations, which is what is involved here, than to

formal agency regulations adopted after a notice and comment

period. See, e.g., Cleary ex rel. Cleary v. Waldman, 167 F.3d

801, 807-08 (3d Cir. 1999); Converse County Sch. Dist. No.

Two v. Pratt, 993 F. Supp. 848, 859 n. 4 (D.Wyo. 1997).

In Section 1415(h)(1) Congress has spoken directly to

the precise question of who may assist parties in such hearings:

counsel, who have inherent representational authority, and

individuals with special knowledge or training with respect to

the problems of children with disabilities, who do not. The

usage of the phrase "accompanied and advised" rather than the

term "represented" or words of similar import, when viewed

against the long-established regulation of the practice of law

under State, not federal or administrative, authority, and the

evidence that Congress well knew how to authorize lay

representation in clear terms when it wished to do so, establish

A33

that Congress did not Intend to mandate a right to lay

representation in due process hearings.° Congress chose not to

include language in Section 1415(h)(1) according

representational authority to the identified Category of

nonlawyers. Thus we conclude that, because the intent of

Congress is clear, deference to the conclusion stated in the Sky

Letter is not required.

Even if the Congressional intent were less than clear,

Congress did not explicitly delegate to the United States

Department of Education the responsibility to determine issues

of authority to practice law, that is, to elucidate whether under

the "accompanied and advised" clause parties to due process

hearings are entitled to be represented by nonlawyers.

Therefore, only a "reasonable" administrative interpretation

requires deference. Accordingly we next review the Sky

Letter's analysis of the question.

In reaching its conclusion that Section 1415(h)(1)

authorizes lay representation in due process hearings the Sky

Letter relied on three factors. F irst, it reasoned that because no

"bifurcation of function" is set forth in the statute between

counsel on the one hand and individuals with special

The ease with which Congress could have made its

intention clear had it wished to authorize lay representation is

illustrated by the approach taken in the New York

Administrative Code, which provides that "the parties to the

proceeding may be represented by legal counsel or by

individuals with special knowledge or training ... and may be

accompanied by other persons of their choice.” Connors v.

Mills, 34 F. Supp. 2d 795, 807 (N.D.N.Y. 1998), quoting N.Y.

Comp. Codes R. & Regs. tit. 8 § 200.5(c)(5) (1998) (italics

supplied).

A34

knowledge or training with respect to the problems of children

with disabilities on the other, the permissible roles of the two

must be the same. In reaching this conclusion, however, Sky

overlooked the inherent and presumptive representational

authority with which counsel are cloaked, traditional authority

which nonlawyers simply do not share. For the reasons

expressed in footnote 4 above, this factor although overlooked

is highly relevant.

Second, Sky placed no weight on the Senate Conference

Report, but rested his interpretation on the remarks of a single

Senator (Senator Cranston), who noted that the "procedural

requirements [of IDEA] ... are consistent with the existing

California statutory and master plan requirements on this

subject." 121 Cong. Rec. 37418-9 (1975) (italics ours). Sky

then observed that under California practice at the tune, lay

advocates represented parties in California due process

hearings.’ Leaving to one side reliance upon a general

statement of procedural consistency between two statutory

schemes to prove an intention that there be identity between the

two schemes on a narrow and specific subsidiary point, Sky's

reliance on the remarks of a single Senator to the exclusion of

a distinction evident in the Senate Conference Report renders

his analysis unpersuasive. See Consumer Prod. Safety Comm'n

v. GTE _ Sylvania Inc., 447 US. 102 (1980)

("[C]Jontemporaneous remarks of a single legislator who

sponsors a bill are not controlling in analyzing legislative

’Subsequently, however, it has been held that not even

an attorney may appear in a representative capacity at a due

process hearing unless he or she is a member of the California

Bar. See Z.A. v. San Bruno Park Sch. Dist., 165 F.3d 1273 (9th

Cir. 1999).

A35

history").* The "well-established presumption that Congress is

understood to legislate against a background of common-law

principles," of which the "rule that a non-lawyer may not

represent another person in court is a venerable [one]" would to

the contrary lead a court a court to be "reluctant to assume,

absent strong evidence to the contrary, that Congress intended

to override this well-settled rule using ambiguous statutory

language " Collinsgru v. Palmyra Bd. of Educ, 161 F.3d 225,

231-32 (3d Cir. 1998).

Third, and finally, Sky relied upon the fact that lay

representation has been authorized by Congress for certain

other types of administrative proceedings. But this conclusion

failed to consider that in the examples relied upon by Sky the

intention to allow lay representation was explicit. Indeed it is

these very examples, some of which we have detailed above in

concluding that Congress knew how to authorize lay

representation when it wished to do so, and others of which are

self-evidently to the same effect, that demonstrate that

Congress did not choose in this instance to authorize lay

representation.

For these reasons we cannot conclude that the

interpretation of Section 1415(h)(1) reached in the Sky Letter

"Sky also failed to note or credit the remarks of Senator

Williams, who (in contrast to Senator Cranston) provided a

detailed analysis of the legislation and remarked, as the Senate

Conference Report had, that parents would have "the right to

counsel and to be advised and accompanied by individuals with

special knowledge, training or skills with respect to the

problems of handicapped children." 121 Cong. Rec. 37416.

A36

is one to which we must grant controlling deference.” We turn

next to respondents’ argument that to the extent Delaware law

proscribes their practice of law in due process hearings as

unauthorized, principles of federal preemption arising under the

Supremacy Clause of the United States Constitution override

Delaware's regulatory authority.

Under principles of federal preemption, state law may

be preempted in either of two general ways. First, "[ilf

Congress evidences an intent to occupy a given field, any state

3 law falling within that field is preempted." Silkwood v. Kerr -

McGee Corp., 464 U.S. 238, 248 (1984), reh'g denied, 465 U.S.

1074 (1984). Second, if Congress "has not entirely displaced

state regulation over the matter in question, state law is still

preempted to the extent it actually conflicts with federal law,

that is, when it is impossible to comply with both state and

federal law, or where the state law stands as an obstacle to the

accomplishment of the full purposes and objectives of

Congress." Jd. (citation omitted). See also Florida Lime &

Avocado Growers. Inc. v. Paul, 373 U.S. 132, 142-3 (1963);

Hines v. Davidowitz, 312 U.S. 52, 67 (1941). In these latter

categories, "the proper approach is to reconcile ‘the operation

of both statutory schemes with one another rather than holding

one completely ousted.”” Wylain. Inc. v. TRE Corp., Del. Ch.,

412 A.2d 338, 346 (1979), quoting Merrill Lynch, Pierce

*Two other letters expressing administrative

interpretations have been brought to our attention: Request of

Eig, EHLR [1987 Transfer Binder] 211:270, Supp. 57 (CCR

Publishing Co.); Virginia Dep't of Education, EHLR [1987

Transfer Binder] 257:349, Supp. 84 (CCR Publishing Co.).

Both are brief and conclusory, failing to express any

administrative analysis which might otherwise call for

deference.

_———— Lee

OT et bar Me is eg ee)

A37

Fenner & Smith Inc. v. Ware, 414 U.S. 117, 127 (1973). See

also Shamrock Assocs. v. Texas Am. Energy Corp., Del. Ch.,

517 A.2d 658, 661-62

"Federal statutes impinging upon important state

interests ‘cannot ... be construed without regard to the

implications of our dual system of government....’” BEP vy.

Resolution Trust Corp., 511 U.S. 531, 544 (1993), reh ’g

denied, 512 U.S. 1247 (1994), quoting Frankfurter, Some

Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527,

539-40 (1947). Thus, there is a "presumption against finding

preemption of state law in areas traditionally regulated by the

States." California v. ARC America Corp, 490 U.S. 93, 101

(1989). "As is always the case in our preemption

jurisprudence," where "federal law is said to bar state action in

fields of traditional state regulation ... we have worked on the

‘assumption that the historic police powers of the States were

not to be superseded by the Federal Act unless that was the

clear and manifest purpose of Congress.”” California Div. of

Labor Standards Enforcement v. Dillingham Constr., N.A., Inc.,

519 U.S. 316, 325 (1997), quoting N.Y. State Conf. of Blue

Cross & Blue Shield Plans v. Travellers Ins. Co., 514 U.S. 645,

655 (1995). See also Department of Revenue v. ACF Indus.,

Inc., 510 U.S. 332, 345 (1994) ("When determining the breadth

of a federal statute that impinges upon or preempts the States'

traditional powers, we are hesitant to extend the statute beyond

its evident scope"). Accordingly, "where the intent to override

is doubtful, our federal system demands deference to long-

established traditions of state regulation." BEP v. Resolution

Trust Corp., 511 U.S. at 546.

It is not claimed that in enacting IDEA Congress

intended to occupy the field of education of children with

disabilities to the exclusion of the States. Rather, respondents

argue that Delaware's assertion of authority to regulate the

A38

practice of law by prohibiting those not admitted to practice

from representing parties in due process hearings conflicts

directly with the mandate of Section 141 S(h)(1) according

parents of children with disabilities the right, as respondents see

it, to be represented by respondents as individuals with special

knowledge or training with respect to the problems of children

with disabilities.

It cannot be gainsaid that the regulation of the practice

of law is a traditional State function -- existing indeed since the

founding of the Union. Nor can it be doubted that the States

have a substantial interest in the regulation of the practice of

law within their borders. As the United States Supreme Court

noted only months before the Education of All Handicapped

Children Act (now IDEA) was adopted in 1975, "the States

have a compelling interest in the practice of professions within

their boundaries, and ... as part of their power to protect the

public ... they have broad power to establish standards for

licensing practitioners and regulating the practice of

professions.... The interest of the States in regulating lawyers is

especially great since lawyers are essential to the primary

governmental function of administering justice, and have

historically been ‘officers of the courts."" Goldfarb v. Virginia

State Bar, 421 U.S. 773, 792, reg’h denied, 423 U.S. 886

(1975). This compelling state interest has been recognized

specifically in the IDEA context:

The requirement of representation by counsel is

based upon two cogent policy considerations.

First, there is a strong state interest in regulating

the practice of law. Requiring a minimum level

of competence protects not only the party that is

being represented but also his or her adversaries

and the court from poorly drafted, inarticulate,

or vexatious claims. See Brown v. Ortho

A39

Diagnostic Sys., Inc., 868 F. Supp. 168, 172

(E.D.Va. 1 994) (noting that "the conduct of

litigation by a nonlawyer creates unusual

burdens not only for the party he represents, but

also for his adversaries and the court"). ... Not

only is a licensed attorney likely to be more

skilled in the practice of law, but he or she is

also subject to ethical responsibilities and

obligations that a lay person is not. In addition,

attorneys may be sued for malpractice. See id.

Collinsgru, 161 F.3d at 231; see also Arons, 842 F.2d at 63.

Accordingly, in interpreting IDEA, we may find preemption of

this area of "traditional regulation" or "historic police power"

of the States only if we can conclude that preemption was the

"manifest intent" of Congress.

For the reasons we have outlined above we cannot so

conclude. First, we do not interpret the language of Section

1415(h)(1) as granting any clear right to lay representation.

Thus we see no actual conflict between the state and federal

schemes. Sperry v. Florida ex rel. Florida Bar, relied upon by

respondents, likewise does not establish preemption on these

facts. See Arons, 842 F.2d at 61-62 (analyzing Sperry and

rejecting a similar, if not the identical, claim). It would, indeed,

be contra~y to the established precepts cited above for us to

interpret Section 14150(1) so expansively as to extend it

beyond its evident scope into an area of traditional State

regulation when we see no manifest intent of Congress that it

be so extended. It is more reasonable to harmonize the State and

federal schemes than to set one above the other where such is

not necessary to the federal purpose. Wylain, Inc. v. TRE

Corp., 412 A.2d at 346.

We recognize the force of respondent's contention that

A40

representation of families of children with disabilities by

laypersons such as themselves could serve the accomplishment

of the full objectives of Congress under IDEA. At least insofar

as this record reflects the parties in question were unable to find

attorneys who would agree to represent them on a standard fee-

for-service basis, a low-cost basis or pro bono. But the mandate

of Congress under Section 1415 is not that the parents of

children with disabilities who disagree with an IEP receive free

or low-cost representation. The Congressional mandate is that

they "shall have an opportunity for an impartial due process

hearing" We cannot conclude on the evidence before us that

under the procedures adopted by the State that opportunity is

lacking. The absence of a universe of low cost or pro bono

attorneys willing to take on these cases -- which, notably,

Congress sought to remedy by amending IDEA to allow an

award of attorneys fees to prevailing parents while pointedly

not amending Section 1415(h)(1) to clarify the claimed right to

lay representation -- does not in itself demonstrate that the

purpose and objectives of Congress are impeded by the

traditional prohibition of legal representation of parties by

persons untrained in the law.’°

In so concluding we make no qualitative judgment

concerning the efficacy of the services and advocacy

respondents themselves have provided. It is no part of our task

to reach such a judgment. By all accounts respondents are

‘Respondents fear that the prohibition against the

practice of law by respondents will result in intractable due

process concerns. The cases cited by respondents do not,

however, lead us to conclude that there is a generalized due

process right to representation by lay advocates in the context

of IDEA due process hearings.

A41

vigorous and knowledgeable advocates in the educational field

in which they are active. Other lay advisors present or future

may not be as knowledgeable, vigorous or able.

Nor is our task to determine whether lay representation

in these circumstances should be permitted, or to fix the

conditions and qualifications which might be placed upon any

such lay representation. In this area as in many others there are

those for whom it will be difficult to find free or affordable

legal representation. Many other States -- perhaps all except

Delaware — have decided to allow nonlawyer representation

and have presumably settled upon schemes of regulation and

oversight which they have concluded are sufficient in their

local circumstances. Respondents and ODC agree that this is an

issue that should be addressed, but it must be addressed to the

proper body with rule-making authority and is not proper to our

adjudicatory function.

** *

Our task is to determine whether what respondents did

as revealed on this record constituted the practice of law, and

if so whether or not it was the authorized practice of law. We

find that in representing the families of Nicholas DeCrease,

Kevin Coale, Matthew Hayes, Shawn White and Philip Russ in

due process hearings conducted by the Delaware Department of

Public Instruction, engaged in the practice of law, that such

practice of law was unauthorized inasmuch as respondents are

not admitted to practice in Delaware, and that such practice of

law was not otherwise authorized under IDEA or any other

pertinent statute or regulation. Accordingly, we recommend

that the Court enter its Order:

1. Declaring that Marilyn Arons, Ruth Watson and

Parent Information Center of New Jersey, Inc., in representing

A42

the parents of Nicholas DeCrease, Kevin Coale, Matthew

Hayes, Shawn White and Philip Russ in due process hearings

conducted by the Delaware Department of Public Instruction

respondents engaged in the unauthorized practice of law; and

2. Directing Marilyn Arons, Ruth Watson and Parent

Information Center of New Jersey, Inc. to cease and desist

immediately from the unauthorized practice of law in the State

of Delaware.

Rule 16 of the Board provides that "[uJnless otherwise

ordered by the Supreme Court or the Board, costs ... shall be

assessed against the respondent in any case where the Court

determines that the respondent has engaged in the unauthorized

practice of law.” In so providing, Rule 16 calls for an exercise

of discretion regarding the award of costs. We believe this is an

appropriate case, in the exercise of that discretion, not to award

costs against respondents. Respondents raised legitimate issues

of significant public interest and presented a good faith defense

in a highly professional manner. Accordingly, we recommend

that the Order entered by the Court provide further:

3. Each party shall bear her or its own costs.

FOR THE BOARD:

Samuel A. Nolen

Hearing Panel Chair

Dated: September 24, 1999

A43

BOARD ON THE UNAUTHORIZED PRACTICE OF LAW

OF THE SUPREME COURT OF THE STATE OF

DELAWARE

In the Matter of: Marilyn Arons, Ruth Watson, and Parent

Information Center of New Jersey, Inc.

No. UPL-4, 1996

UPL File Nos. 94-12; 95-17

STIPULATION

The Office of the Disciplinary Counsel ("petitioner"

and Marilyn Arons, Ruth Watson, and the Parent Information

Center of New Jersey, Inc. ("respondents"), through their

undersigned counsel, hereby Stipulate and agree that if an

evidentiary hearing were to be held in this matter, the facts

adduced would be as follows:

The Petiti

1. This proceeding was initiated by a Petition filed by

the Office of Disciplinary Counsel on August 8, 1996. An

answer to the Petition, on behalf of all of the respondents, was

timely filed on September 13, 1996. Copies of the Petition and

Answer are appended hereto.

2. The Petition does not allege that the Office of

Disciplinary Counsel has ever received a complaint by any

parent regarding the conduct of respondents, and no such

complaint has ever been received. Indeed, the only complaints

petitioner has received regarding the efforts of respondents

A44

have been made by school boards and their lawyers, who are

the adversaries of these parents in the due process hearings and

who have lost cases to respondents.

Nature of the Due Process Hearings

3. The gravamen of the Petition is that the respondents

violated Delaware’s rules against the unauthorized practice of

law by assisting parents of disabled children in due process

hearings held by the Department of Public Instruction of the

State of Delaware.

4. The due process hearings arise under the Individuals

with Disabilities Education Act ("IDEA"), a federal statute that

was enacted because Congress recognized that "more than half

of the children with disabilities in the United States do not

receive appropriate educational services." 20 U.S.C.

1400(b)(3). IDEA was enacted with the purpose of "assur[ing]

that all children with disabilities have available to them . . . a

free appropriate public education which emphasizes special

education and related services designed to meet their unique

needs" and "that the rights of children with disabilities and their

parents or guardians are protected." 20 U.S.C. 1400(c).

Accordingly, Congress devised a system of funding special

education and evaluative procedures, 20 U.S.C. 1411, and

required states and localities that accept funding to create and

utilize an elaborate plan for providing special education that

identifies children who need special educational assistance and

determines what assistance each child needs. 20 U.S.C. 1412-

1414.

5. The State of Delaware participates in IDEA and

receives federal funds under IDEA. Accordingly, the due

process hearings that are the subject of this proceeding must be

conducted in accordance with the dictates of IDEA, see 20

A45

U.S.C. 1413, 1415(a), as well as Delaware law.

6. As noted, the heart of the IDEA is the “assur[ance]

that handicapped children and their parents or guardians are

guaranteed procedural safeguards with respect to the provision

of free appropriate public education... .."_ 20 U.S.C. 141S(a).

States and localities must allow "the parents or guardians of a

child with disability to examine all relevant records with

respect to . . . the child and the provision of a free appropriate

public education to such child." 20 U.S.C. 1415(b)(1)(A).

"[W]ritten prior notice [must be given] to the parents or

guardian of the child" whenever schools either propose to

change or initiate, or to refuse to change or initiate, the

identification, evaluation, placement, or provision of special

educational services for the child (commonly referred to as the

"IEP"). 20 U.S.C. 1415(b)(1)(C). This notice must be fully

informative to "the parents or guardian," who must have the

“opportunity to present complaints with respect to any matter"

relating to the IEP. 20 U.S.C. 1415(b)(1)(D) & (E). When

complaints are received, "the parents or guardian shall have an

opportunity for an impartial due process hearing," 20 U.S.C.

1415(b)(2), and for an impartial review on appeal to a state

educational agency. 20 U.S.C. 1415(c).

7. "Any party to any [due process] hearing conducted

pursuant to subsections (b) and (c) shall be accorded the right,"

among other things, "to be accompanied and advised by

counsel and by individuals with special knowledge or training

with respect to the problems of children with disabilities," to

present evidence and examine witnesses, to obtain a transcript

of the hearing, and to obtain written findings of fact and

decisions. 20 U.S.C. 1415(d).

8. Consistent with its obligations under IDEA, the

Delaware Department of Public Instruction provides due

A46

process hearings for parents who believe that their local school

districts have failed to fulfill their duties under IDEA. These

are formal adjudicatory hearings that are held before a three-

member panei appointed by the Department of Public

Instruction. Parents play no role in the selection of panel

members. The panels consist of an attorney (who is always the

chairperson), an educator (generally a professor of special

education or related field at a Delaware college or university),

and a lay person. Lay committee members are selected from a

list of individuals who have passed a training course sponsored

by the Department of Public Instruction. Every panel therefore

consists of two nonlawyers and one lawyer.

9. The due process hearings are governed both by

federal law (which is set forth above) and Delaware law, which

provides that "[a]ny party to a hearing has the right to be

accompanied and advised by counsel or by individuals with

special knowledge or training with respect to the students with

disabilities." Delaware Administrative Manual, at 85.

10. Due process hearings are conducted in a manner

typical of contested, adversarial adjudicatory hearings.

11. The parties consist of parents, who, as explained

more fully below, are not represented by attorneys; the local

school board, which is always represented by counsel; and the

Department of Public Instruction because the State ultimately

bears a portion of the cost of providing a disabled child an

appropriate education tailored to suit the child’s unique needs.

Accordingly, the State is separately represented at these

hearings by a lawyer from the Office of Attorney General.

Thus, due process hearings always involve at least two

instrumentalities of government represented by counsel,

arrayed against the parents.

A47

12. Due process hearings are chaired by the attorney

member of the panel, who is charged with writing the panel’s

decision. Although the rules of evidence do not strictly apply,

the Chair makes rulings on matters such as (I) objections (e.g.,

relevance, materiality, and admissibility); (ii) issues of law

(e.g., burden of proof ); and (iii) qualifications of experts. In

advance of the hearing, exhibits must be marked and the parties

must exchange witness lists and all documents to be offered.

13. Due process hearings begin with opening

statements from each party. Because the school board bears the

burden of going forward, it presents its case first. Evidence is

presented through witnesses, who are subjected to direct and

cross-examination. After the school board rests, the

Department of Public Instruction is afforded an Opportunity to

present its case. The parents put their case on last, although

there is then an opportunity for rebuttal testimony. Following

the presentation of evidence, the parties give closing statements

to the panel and may be asked to file written submissions on

key questions. On average, hearings last from between two and

four days.

14. Although due process hearings have the trappings

of formal adjudications, the issues presented for resolution

typically involve complex factual questions relating to the

unique learning needs of the disabled child. Asa result, the

parties’ representatives must be familiar with, and able to

understand, the clinical aspects of the child’s condition -- skills

and training which lawyers ordinarily lack. The testimony at

these hearings generally focuses on the adequacy and accuracy

of the school board’s testing, evaluation, and diagnosis of the

child’s problem, and the remedial measures needed to address

the child’s disability. The fact witnesses who appear at these

hearings are typically school officials (teachers, guidance

counselors, and principals), and the expert witnesses are

A48

generally neurologists, psychiatrists, psychologists, physicians,

and others with expertise in educational and developmental

sciences. Thus, nonlawyers with "special knowledge and

training with respect to the problems of children with

disabilities," like Ms. Arons and Ms. Watson, are fully capable

of presenting the parents’ case to the panel. 20 U.S.C. 1415(d).

Parent Information Center of New Jersey, Inc.

15. The Parent Information Center of New Jersey

("PIC") is a non-profit organization that was founded in 1977

by respondent Marilyn Arons, a public school teacher and

curriculum specialist, who has completed all of her course work

for a Ph.D. in Neuroscience and Education from Teachers

College, Columbia University, in New York. PIC provides

advice, counseling, and, at times, advocacy services to families

who have children with disabilities. PIC’s work is performed

almost entirely through its staff of unpaid volunteers and

operates out of the homes of its family/volunteer members.

PIC receives no government or corporate funding, and its shoe-

string budget consists of contributions and membership dues

from individuals. Annual membership dues are set on a sliding

scale according to ability to pay. Those who can afford it pay

$100, and those of more modest means can pay as little as a

quarter. Although PIC began in New Jersey, it now does

extensive work in New York State, and it has branched out as

well to other states, including Pennsylvania and Delaware.

Over the past twenty years, PIC has assisted parents on over

20,000 occasions, ranging from crisis intervention, counseling,

and assistance in negotiating IEPs with local school boards to

handling due process hearings. Parents hear of PIC through

word of mouth and are referred to PIC by psychiatrists,

psychologists, neurologists, social welfare organizations, school

officials, child protective agencies, law school clinics, and other

social service agencies. There is no other organization in the

A49

nation that provides services to parents of children with

disabilities similar to those offered by PIC.

16. PIC has handled approximately 500 due process

hearings on behalf of parents with children with disabilities.

Although the bulk of these hearings have been conducted in

New Jersey and New York, a handful have been held in

Pennsylvania and Delaware.

17. No state, apart from Delaware, has ever charged

respondents -- or anyone affiliated with PIC -- with violating

proscriptions against the unauthorized practice of law.

18. The Petition alleges that Ms. Arons provided legal

advocacy to parents involved in no fewer than four due process

hearings conducted by the Delaware Department of Public

Instruction; namely, those involving the children identified as

Nicholas DeCrease, Kevin Coale, Matthew Hayes, and Shawn

White. The Petition further alleges that Ms. Watson provided

legal advocacy services in at least one due process hearing,

which involved a child identified as Philip Russ, conducted by

the Delaware Department of Public Instruction.

19. Respondents did, in fact, accompany and advise the

parents of each of the children identified in paragraph 18 in the

due process hearings and, on behalf of those parents, made

statements, examined and cross-examined witnesses, raised

objections, proffered records and exhibits, and submitted briefs

and other documents to the panel.

20. None of the parents of the children identified in

paragraph 18 can afford the services of a private attorney.

AS0

21. The parents of the children identified in paragraph

18 diligently looked to find legal counsel to represent them in

the due process hearing. None could find an attorney willing

to represent them on a standard fee-for-service basis, and none

could find an attorney willing to represent them on some

reduced-cost or pro bono basis.

22. No legal services or other organization that

provides free or low-cost legal services to people of low or

modest means provides assistance in due precess hearings in

Delaware.

23. There is no source of funding, through fee-shifting

statutes or otherwise, for lawyers to assist parents in due

process hearings in Delaware.

24. Although there are child protection and advocacy

services in Delaware, no organization providing such services

gives assistance to parents in special education cases or due

process hearings.

25. The economic reality is that parents of children

with disabilities who are affluent or reasonably well-off

financially enroll their children at private schools and thus do

not depend on public school authorities to provide their

children with an appropriate education. It is only parents who

are unable to afford private education for their disabled children

who are likely to end up in due process hearings in Delaware.

26. The parents of the children identified in paragraph

18 would not have exercised their right to a due process

hearings under federal and Delaware law but for the availability

and assistance of respondents.

27. None of the parents of the children identified in

ASI

paragraph 18 would have participated in a due process hearing

without respondents’ assistance because they were intimidated

by the formality and complexity of the due process hearing.

With the exception of Mr. and Ms. Hayes, none of the parents

are college graduates, none had legal training of any sort, none

were familiar with the procedures used in due process hearings

conducted by the Department of Public Instruction or in legal

proceedings generally, and none had the grounding in the

technical issues that lay at the core of their disputes with the

local schools boards to enable them to handle the hearings pro

se,

28. None of the parents of the children identified in

paragraph 18 would have participated in a due process hearing

without respondents’ assistance because they were also

intimidated by the fact that the hearing was convened by the

Department of Public Instruction (which is also an adverse

party to the proceeding) and placed them in an adversarial

posture against two instrumentalities of government, each

represented by lawyers.

29. The parents of the children identified in paragraph

18 understood that respondents are not lawyers, do not hold

themselves out as lawyers, and are not members of the

Delaware bar or any other bar. Respondents disclosed those

facts to them at the outset.

30. The parents of the children identified in paragraph

18 each sought out the services of respondents.

31. None of the parents of the children identified in

paragraph 18 were charged a fee of any sort by respondents.

Although the PIC generally requires all of the parents to whom

it provides assistance to become a member of PIC, the parents

of the children identified in paragraph 18 are of modest means.

A52

Respondents have never sought payment to represent parents in

due process hearings and did not seek payment from the parents

of the children identified in paragraph 18. Respondents did not

receive a penny from the parents of Kevin Coale or Matthew

Hayes, and received only nominal amounts from the parents of

Nicholas DeCrease and Phillip Russ to defray travel and other

expenses. Nicholas DeCrease’s parents paid $1,000 for

expenses, which did not begin to cover the actual cost to PIC,

which included extensive travel and other costs. Phillip Russ’

parents contributed $300, which also did not cover PIC’s

actual, out-of-pocket expenses. These payments were made

voluntarily by the parents, and not as a condition for the work

respondents performed on their behalf.

32. The parents of the children identified in paragraph

18 are extraordinarily grateful for the services rendered to them

and their families by respondents and believe that their position

was effectively presented in the due process hearings.

33. In fact, the results respondents achieved for the

children identified in paragraph 18 confirm the effectiveness of

the presentation made on their behalf. In each case, the parents

and child won significant relief, either at the due process

hearing itself, or on judicial review, which is based on the

record created at the due process hearing.

Office of Disciplinary Counsel

/s/

David Curtis Glebe, Esq.

Chief Counsel

300 West Ninth Street

Suite 300-A

A53

P.O. Box 472

Wilmington, Delaware 19899

(302) 577-7042

Petitioner

Dated: August 6, 1998

Ls/_

Walter S. Rowland, Esq.

2501 Willard Street

Wilmington, Delaware 19806-1237

(302) 654-6526

I.D. No. 511

Attorney for Respondents

Of Counsel:

David C. Vladeck, Esq.

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, D.C. 20009-1001

(202) 588-1000

Dated: August 4, 1998

A54

BOARD ON THE UNAUTHORIZED PRACTICE OF LAW

OF THE SUPREME COURT OF THE STATE OF

DELAWARE

In the Matter of:

MARILYN ARONS, RUTH WATSON, and PARENT

INFORMATION CENTER OF NEW JERSEY, INC.

Respondents.

CONFIDENTIAL

No. UPL-4,1996

(UPL File Nos. 94-12; 95-17) OF

AMENDMENTS TO STIPULATION

The Office of Disciplinary Counsel ("Petitioner") and

Marilyn Arons, Ruth Watson, and the Parent Information

Center of New Jersey, Inc. ("Respondents"), through their

undersigned counsel, hereby stipulate and agree to the

following amendments to the Stipulation entered into by the

Petitioner and the Respondents and filed with the Board on the

Unauthorized Practice of Law on August 6, 1998. Where the

language of the Stipulation as been altered, any new or

additional language is underlined; deleted language is in

brackets.

: The first sentence of paragraph 11 of the

Stipulation is amended to read as follows: "Jn cases involving

private placements, like the cases that gave rise to this

proceeding, the parties consist of parents, who, as explained

more fully below, are often not represented by attorneys; the

local school board, which is always represented by counsel; and

A5S5

the Department of Public Instruction because the State

ultimately bears a portion of the cost of providing a disabled

child an appropriate education tailored to suit the child's unique

needs."

y The last sentence of paragraph 11 of the

Stipulation is amended to read as follows: "Thus, due process

hearings concerning private placements [always] involve two

instrumentalities of government represented by counsel,

arrayed against the parents.”

x The last sentence of paragraph 14 of the

Stipulation is amended to read as follows: "Ms. Arons and Ms.

Watson are nonlawyers with ‘special knowledge and training

with respect to the problems of children with disabilities.”

[Thus, nonlawyers with ‘special knowledge and training with

respect to the problems of children with disabilities, like Ms.

Arons and Ms. Watson, are fully capable of presenting the

parents’ case to the panel. 20 U.S.C. § 1415(d).].

4. Paragraph 22 of the Stipulation is amended to read

as follows: “Insofar as the parties are aware, the only legal

services organization that has provided legal representation by

counsel at Delaware IDEA due process hearings is Delaware's

Community Legal Aid Society, Inc., which has, on occasion,

provided representation at IDEA due process hearings to

parents and children whose cases satisfy the organization's

case acceptance criteria." [No legal services or other

organization that provides free or low-cost legal services to

people of low or modest means provides assistance in due

process hearings in Delaware.].

5. Paragraph 23 of the Stipulation is deleted in its

entirety. [There is no source of funding, through fee-shifting

statutes or otherwise, for lawyers to assist parents in due

A56

process hearings in Delaware. ].

6. Paragraph 33 is amended to read as follows: "The

parents and children identified in paragraph 18 obtained some

form of relief, at the due process hearing itself, on judicial

review (which is based upon the record created at the due

process hearing), or through negotiation or settlement.” [In

fact, the results respondents achieved for the children identified

in paragraph 18 confirm the effectiveness of the presentation

made on their behalf. In each case, the parents and child won

significant relief, either at the due process hearing itself, or on

judicial review, which is based on the record created at the due

process hearing. ].

OFFICE OF DISCIPLINARY COUNSEL

/s/

Mary M. Johnston

Chief Counsel

Michael S. McGinniss

Disciplinary Counsel

200 West Ninth Street, #300-A

Wilmington, DE 19801

(302) 577-7042

Petitioner

Dated: June 23, 1999

Ls/

Walter S. Rowland, Esquire

2501 Willard Street

Wilmington, DE 19806-1237

A57

(302) 654-6526

I.D. No. 511

Attorneys for Respondents

Dated: June 23, 1999

Of Counsel:

David C. Vladeck, Esquire

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, D.C. 20009-1001

(202) 588-1000