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

No. 00-509 CLERK

In The

Supreme Court of the United States

%

MARILYN ARONS, RUTH WATSON, AND PARENT

INFORMATION CENTER OF NEW JERSEY, INC.,

Petitioners,

OFFICE OF DISCIPLINARY COUNSEL OF THE

SUPREME COURT OF DELAWARE,

Respondent.

¢

On Petition For Writ Of Certiorari

To The Supreme Court Of The State Of Delaware

¢

RESPONDENT'S BRIEF IN OPPOSITION

TO THE PETITION FOR WRIT OF CERTIORARI

¢

MicuHaet S. McGInniss

Counsel of Record

Disciplinary Counsel

Mary M. JOHNSTON

Chief Disciplinary Counsel

Orrice OF DiscipLINARY COUNSEL

200 West Ninth Street, Suite 300-A

Wilmington, DE 19801

(302) 577-7042

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does the Individuals with Disabilities Education Act

(“IDEA”) clearly manifest a Congressional purpose to

supersede the states’ historic authority and compelling

interest in regulating the practice of law, and require

states to permit non-lawyer representation of parties in

IDEA due process hearings?

il

PARTIES TO THIS PROCEEDING

The petitioners in this case are Marilyn Arons, Ruth

Watson, and the Parent Information Center of New Jersey,

Inc., a non-profit crganization with which Ms. Arons and

Ms. Watson are affiliated. The respondent is the Office of |

Disciplinary Counsel of the Supreme Court of the State of

Delaware, which is the arm of that court responsible for

investigating and prosecuting matters involving the

unauthorized practice of law in Delaware. The United

States filed a brief amicus curiae in the Supreme Court of

Delaware in support of Ms. Arons, Ms. Watson, and the

Parent Information Center of New Jersey, Inc. The United

States is not a party to this proceeding.

ili

TABLE OF CONTENTS

Page

SORTER IOUT SUNS R IED ssc e ncn cnncnsseencccacice i

PARTIES TO THIS PROCEEDING.................. ii

pet OR Bae Boy ©) yy | re iN

asenmeemees Ge Bites CASE... cite ccc eee e eee 1

REASONS FOR DENYING THE WRIT............. 4

A. The IDEA Does Not Authorize “Individuals With

Special Knowledge And Training With Respect To

The Problems of Children With Disabilities” To

Represent Parties In Due Process Hearings....... s

1. Persuasive Third Circuit Case Law Supports

The Supreme Court Of Delaware’s Inter-

i ee 2 PE sien kawecaaaseenees 5

2. The Department Of Education’s Expansive

Interpretation Of 20 U.S.C. § 1415(h) Is Not

Entitled To Great Deference From This

ke oy wk 64.6 bo nee 0 ORK 11

B. The IDEA Does Not Preempt The Traditional

State Authority To Regulate The Unauthorized

ET EE ein chub encbseacsaurrececssacae 18

C. The Due Process Clause Of The United States

Constitution Does Not Support The Petitioners’

Interpretation Of The IDEA.................... 25

PE SUNCUG SK AGLG AWS a edueedvasaececceesecs 29

iv

TABLE OF AUTHORITIES

Page

CASEs:

Alden v. Maine, 527 U.S. 706 (1999)..............0008- 4

Arons v. New Jersey St. Bd. of Educ., 842 F.2d 58 (3d

Cir.), cert. denied, 488 U.S. 942 (1988).......... passim

In re Arons, 756 A.2d 867 (Del. 2000)................. 3

In re Arons, No. UPL-4, 1996 (Del. Bd. on the

Unauthorized Practice of Law, Sept. 24, 1999),

TG, Fae Te OOF CER: GN 6k chi veeeenkaeness 2

CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993) ..5, 20

California v. ARC Am. Corp., 490 U.S. 93 (1989)...... 20

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

Comnecti, inc., 467 US. G57 CIFBE). ..cccccseueccs 11, 12

Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co.,

a ha ee DS 5b bv a ak en ce hee oes 18

Christensen v. Harris Cty., 120 S. Ct. 1655 (2000) ..... 12

Cleary v. Waldman, 167 F.3d 801 (3d Cir.), cert.

meee BO Ee eer rr Sree 12

Coleman v. Thompson, 501 U.S. 722 (1991)............. 4

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

Ge WHEE N50 dns bab Ma peak Kee enwanche ds 9, 10, 28

Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.

eo ee Pree ee ye ere fee ryt ere 25

Consumer Prod. Safety Comm’n v. GTE Sylvania,

at., SEF TIA Ce COPE 6 6 Ads. do be eescedstsaausases 14

Vv

TABLE OF AUTHORITIES - Continued

Page

Converse Cty. Sch. Dist. No. Two v. Pratt, 993

e. ee. GED GX. Wie. BGG) oo. ceciwenncddnvevarda 19

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

Pee Ge SE vo sannrtie cidwaseducdvseckanaieve nes a

Delaware St. Bar Ass'n v. Alexander, 386 A.2d 652

(Del.), cert. denied, 439 U.S. 808 (1978) ........... +9

English v. General Elec. Co., 496 U.S. 72 (1990)....... 18

Evans v. Evans, 818 F. Supp. 1215 (N.D. Ind. 1993) .... 19

Florida Lime & Avocado Growers, Inc. v. Paul, 373

i er ee ee cc hee. Cees ew ks 6 eae eis eee K ts 18

Garcia v. San Antonio Metro. Transit Auth., 469 U.S.

vy Eel | ST TRE EERERELVEEAELELIEXEEESETES ESE ES 20

Geier v. American Honda Motor Co., 120 S. Ct. 1913

EERE RSS re gers, St mone et ar pam nameet rs OA, Saeanr graeme 22

Goldfarb v. Virginia St. Bar, 421 U.S. 773 (1975).... 4, 7, 27

Hines v. Davidowitz, 312 U.S. 52 (1941) ............6. 21

Lassiter v. Department of Social Servs., 452 U.S. 18

ei ae eE ene aur es tins aah OMe eae ¢ oes OM 28

Re @. Tee, Soe ID. SSS CGT I) og ne vcsevcnaccas 27

cation @. Sivadier, GSE UG. 1 (ISBT) ok vince sc ceeccces 28

Mathews v. Eldridge, 424 U.S. 319 (1976) .......... 26, 27

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)

re OT EERE tee Sere | eee ee 18, 20, 22, 23, 24

In re Member of the Bar, 257 A.2d 382 (Del. 1969),

appeal dismissed, 396 U.S. 274-(1970)................ 4

vi

TABLE OF AUTHORITIES - Continued

Page

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware,

ate Me ba? reree ere re rire mre 20

Middlesex Cty. Ethics Comm. v. Garden St. Bar Ass‘n,

er Ais Rae FEE 8 6 kin ie evn ue veveuenes saeeeyes 27

National Fed’n of Federal Employees v. Department of

ae BR 2 eee a eis re eae 8

Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997) ..... 8

Retail Clerks Int'l Ass’n v. Schermerhorn, 375 U.S. 96

Oe reer Peer ry ere a cere r ener 18

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) ..5, 20

Santosky v. Kramer, 455 U.S. 745 (1982).............. 28

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ......... 12

Smith v. Robinson, 468 U.S. 992 (1984)................ 7

Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379

EPREEECEEET ECE ROCOCT ETT eye TS Tee Tee MS

Town of Burlington v. Department of Educ., 736 F.2d

773 (1st Cir. 1984), aff'd sub nom. School Comm. of

Burlington v. Department of Educ., 471 U.S. 359

Me tas LEE LEEEE EL TELIALLAE ee 19

United States v. Texas, 507 U.S. 529 (1993) ............ 9

Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp.

147 (N.D.N.Y. 1997), aff'd, 181 F.3d 84 (2d Cir.

1999), and aff'd, 208 F.3d 204 (2d Cir. 2000),

petition for cert. filed, __ U.S.L.W. ___ (U.S. Sept.

ie SD SPO. COMED oe cnn saivsitacscdnncenanens 26

Vii

TABLE OF AUTHORITIES - Continued

Page

Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597

| MS EXE ER EEE ETOCS eT eer eee ee 8, 19, 21

Woods v. New Jersey Dep't of Educ., 858 F. Supp. 51

Se ae SPUN WA5 bb anc REA N Ed eee wacead vaub seks 16

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

Ss SO Aa bw h ENG a i ao Sees bck ee ca eek bu wewaaen 16

STATUTES:

National Traffic and Motor Vehicle Safety Act of

1966, 80 Stat. 718 (1966), 15 U.S.C. § 1381 et seq.

8 SIRS ate Fores gsr See re vege eran We ORT” Ee 22

Be Weare OO ROP CIID s 5 6.6 avon on ese bbned onda 23

Individuals with Disabilities Education Act, 20

J ee og 8 Pe er rma oon 1

Se Sas Ee I a cane eb os nce leadawe bein berntes 12

yr Bt ee 2! | ae rT eer eet 1

ee Ses Oe EG hc Gh hs bo ewkbs binge heasGacceen 1

ee Gees Se SPE rw W add cew bcd Lavonaneeaabe 10

ae as Oe I hk ko a KGS Viekesdeaeheseas pe

Br Whee We RI 65 ak cada be Sah onuss 0c bee passim

ee ee Se NED cw edvedckeculeeseeseussauue 11

eS te | reer eh ee 13, 23, 24

Medical Devices Amendments of 1976, 90 Stat. 539

(1976), 21 U.S.C. §§ 306c-360k, 379, 379a & 42

CF ae 2 PR rr ate art peers 23

ete ae | ene ciunieaniimeuurls 24

Vili

TABLE OF AUTHORITIES - Continued

Page

21 US.C. § S7 fa) ... 2. eccecccccccccrccccccccecee 24

OS 15

Oe es Be IE FO 6 6 vk cen ccvcdccsionenewsen ces 22

Ge is Se NUE oi ce veksdanenpeuasse des beveseses 23

MISCELLANEOUS:

ee Gs ee NEO 6 occ kececierdenesnvi teens 15

Letter of Theodore Sky, Acting General Counsel,

Department of Education, to the Honorable

Frank B. Brouillet, State of Washington (Apr. 8,

ot EPP ETT Tee eee Te eee a» & 8, 2

S. Rep. No. 168, 94th Cong., 1st Sess. (1975),

reprinted in 1975 U.S.C.C.A.N. 1425, 1470-71..... 8, 14

S. Conf. Rep. No. 455, 94th Cong., 1st Sess. 49

(1975), reprinted in 1975 U.S.C.C.A.N. 1425, 1503 .... 14

Th AAR “

ee ee ee

STATEMENT OF THE CASE

The Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. § 1400 et seq., is intended to “ensure

that children with disabilities and their parents are guar-

anteed procedural safeguards with respect to the provi-

sion 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 initi-

ate, or refusal to change or initiate, the identification,

evaluation, educational placement or any other aspect of

the provision of a free appropriate public education ser-

vice to that child. See id. § 1415(b)(3). When complaints

are received, “the parents involved in such complaint

shall have the opportunity for an impartial due process

hearing.” Id. § 1415(f)(1). The IDEA also provides that, at

this hearing, any party “shall be accorded . . . the right to

be accompanied and advised by counsel and by individ-

uals with special knowledge or training with respect to

the problems of children with disabilities.” 20 U.S.C.

§ 1415(h)(1).

On August 8, 1996, the Office of Disciplinary Counsel

(“ODC”), an arm of the Supreme Court of Delaware, filed

a petition with the Board on the Unauthorized Practice of

Law of the Supreme Court of Delaware (the “Board”),

requesting the Board to find that Marilyn Arons, Ruth

Watson, and the Parent Information Center of New Jersey,

Inc. (hereinafter “petitioners”) had engaged in the

unauthorized practice of law in Delaware. Petitioners

Arons and Watson are non-lawyers with “special knowl-

edge and training with respect to the problems of chil-

dren with disabilities.” Pet. App. A55 ({ 3). In connection

with IDEA due process hearings conducted before the

Delaware Department of Public Instruction (“DPI”), they

advised, counseled, and represented at least five Dela-

ware families. Pet. App. A49 ({{ 18-19).

The legal issues before the Board were (1) whether

the IDEA provides for representation by non-attorneys in

Delaware due process hearings convened pursuant to

that statute, and if so, whether the IDEA preempts any

contrary state statute, regulation or rule; and (2) whether

legal, as well as public policy, considerations mandate the

conclusion that the petitioners’ activities in connection

with due process hearings constitute the unauthorized

practice of law in Delaware.

The ODC stipulated to certain matters relating to the

facts of the underlying cases. The stipulation was filed

with the Board on August 6, 1998. Pet. App. A43. Prior to

the hearing before the Board on June 23, 1999, the parties

agreed to and submitted certain amendments to the stip-

ulation. Pet. App. A54.

On September 24, 1999, the Board issued a written

opinion concluding that the petitioners had engaged in

the unauthorized practice of law. In re Arons, No. UPL-4,

1996 (Del. Bd. on the Unauthorized Practice of Law, Sept.

24, 1999) (Pet. App. A16), aff'd, 756 A.2d 867 (Del. 2000).

Following the entry of an appeal by the petitioners to the

Supreme Court of Delaware, the United States sought

leave to appear in that court as an amicus curiae, which

was granted. The United States Department of Justice

filed a brief in support of the petitioners. After briefing

was complete, the court heard oral argument.

a

On July 6, 2000, in an en banc opinion, the Supreme

Court of Delaware announced its decision that the peti-

tioners had engaged in the unauthorized practice of law.

In re Arons, 756 A.2d 867 (Del. 2000) (Pet. App. Al). The

court held that the IDEA does not authorize non-lawyer

representation of parties at IDEA due process hearings.

Although the court concluded that the disputed language

in 20 U.S.C. § 1415(h) was ambiguous, it found persua-

sive evidence in the text of the statute, its history in

Congress, and relevant case law interpreting the IDEA

that supported the ODC’s interpretation of the statute.

The court also observed that Congress has explicitly

included language in other federal statutes to permit lay

representation where such a result was intended. Finally,

the court considered and rejected an interpretation of the

IDEA contained in a 1981 Department of Education letter

to the State of Washington, the so-called “Sky Letter.”) In

so doing, the court accorded “modest” deference to the

Department of Education’s interpretation of the IDEA,

which was informal and which was not based upon an

express Congressional delegation of authority to eluci-

date the specific IDEA provision. Moreover, the court

pointed out that, even if greater deference were required,

“it is doubtful whether that interpretation could with-

stand the sheer weight of the legal and factual support

for the opposite conclusion.” Pet. App. A11.

In addition, the court rejected the petitioners’ conten-

tion that adoption of their interpretation of the IDEA was

1 Letter of Theodore Sky, Acting General Counsel,

Department of Education, to the Honorable Frank B. Brouillet,

State of Washington (Apr. 8, 1981).

necessary in order to avoid “constitutional entangle-

ments” with the Due Process Clause of the United States

Constitution. Pet. App. Al2~The court concluded that

procedural due process would not be violated by forbid-

ding parents from having non-lawyer representation in

hearings under IDEA, noting that, among other things,

parties to an IDEA hearing are already provided with

substantial procedural safeguards. The court also gave

significant weight to the strong governmental interest on

the part of the State of Delaware in regulating the prac-

tice of law within its borders.

¢

REASONS FOR DENYING THE WRIT

Review by this Court is not warranted. “This is a case

about federalism,” Coleman v. Thompson, 501 U.S. 722, 726

(1991), that is, about respect for “the constitutional role of

the States as sovereign entities.” Alden v. Maine, 527 U.S.

706, 713 (1999).

This Court has long recognized that “the States have

a compelling interest in the practice of professions within

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

the public health, safety, and other valid interests they

have broad power to establish standards for licensing

practitioners and regulating the practice of professions.”

Goldfarb v. Virginia St. Bar, 421 U.S. 773, 792 (1975).? It is

2 The Supreme Court of Delaware has inherent jurisdiction

over the governance of the practice of law in Delaware. In re

Member of the Bar, 257 A.2d 382, 383 (Del. 1969), appeal dismissed,

396 U.S. 274 (1970); Delaware Optometric Corp. v. Sherwood, 128

also well-established that the states’ historic police

powers cannot be superseded by federal statute unless

that was the “clear and manifest purpose” of Congress in

enacting the statute. CSX Transp., Inc. v. Easterwood, 507

U.S. 658, 679 (1993) (quoting Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1947)).

The statutory interpretations and other legal and

public policy arguments proffered by the petitioners (and

by the United States in the Sky Letter and as amicus curiae

in the proceedings below) must be critically evaluated

against this backdrop of traditional state authority to

regulate the practice of law. Respondent ODC respect-

fully requests that this Court find the petitioners’ argu-

ments for review to be unavailing in light of this

compelling state interest.

A. The IDEA Does Not Authorize “Individuals

With Special Knowledge And Training With

Respect To The Problems of Children With Dis-

abilities” To Represent Parties In Due Process

Hearings.

1. Persuasive Third Circuit Case Law Supports

The Supreme Court of Delaware’s Inter-

pretation Of The IDEA.

In Arons v. New Jersey State Board of Education, 842

F.2d 58 (3d Cir.), cert. denied, 488 U.S. 942 (1988), the Third

A.2d 812, 816-17 (Del. 1957). The court’s jurisdiction includes

the authority to regulate and proscribe the unauthorized

practice of law. Delaware St. Bar Ass’n v. Alexander, 386 A.2d 652

(Del.), cert. denied, 439 U.S. 808 (1978).

Circuit was called upon to decide whether New Jersey,

which had specifically granted “individual[s] with special

knowledge or training with respect to the problems of

children with disabilities” the authority to represent par-

ents and children with disabilities in IDEA due process

proceedings, could enforce a New Jersey rule prohibiting

such persons from collecting attorneys’ fees. Id. at 59-61.

- Petitioner Marilyn Arons contended that because the

IDEA itself (and not merely New Jersey law) “confers on

parents the right to be represented by a lay advocate,”

Congress must have intended for lay advocates to charge

fees in order to encourage the continued use of such

services. Id. at 61. The Third Circuit regarded this conten-

tion as the “[e]ssen[ce]” of Ms. Arons’ argument on

appeal, and squarely confronted and rejected it. Id.

In refuting Ms. Arons’ argument, the Third Circuit

concluded that “[t]he carefully drawn statutory language

does not authorize these specially qualified individuals to

render legal services.” Id. at 62. The court explained its

holding as follows:

Although the Act does give “[a]ny party to any

hearing” the right to “present evidence and con-

front, cross-examine, and compel the attendance

of witnesses,” those functions are not desig-

nated to be performed by lay advocates. Fur-

thermore, the statute does not use the word

“represent” in subsection [(h)(1)], as would be

expected if Congress intended to place expert

and legal counsel on the same footing.

Id. at 61. The court also pointed out that “[t]he highly

specific language of the [IDEA] has led the Supreme

Court to read the statutory provisions narrowly.” Id. at

62-63 (citing Smith v. Robinson, 468 U.S. 992, 1014 (1984)).

The Third Circuit’s analysis of the IDEA was further

informed by its recognition that “the States have a com-

pelling interest in the practice of professions within their

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

public health, safety, and other valid interests they have

broad power to establish standards for licensing practi-

tioners and regulating the practice of professions.” Id. at

63 (quoting Goldfarb v. Virginia St. Bar, 421 U.S. 773, 792

(1975)). The court noted that “[iJn the absence of explicit

provisions, we are not convinced that Congress intended

to limit the states’ traditional control over the practice of

law.” Id. at 63. Because “[nJothing in the statutory lan-

guage demonstrates a congressional desire to supersede

the states’ authority to regulate the legal profession,” the

court concluded that the IDEA does not authorize “indi-

viduals with special knowledge” to perform traditional

representative functions. Id. at 61-62. The non-lawyer

adviser may undertake representative functions only if

permitted to do so under state law. Id. at 62.

The Supreme Court of Delaware found the Third

Circuit’s analysis of the “federalism issue” in Arons to be

persuasive. Pet. App. A7. The court also agreed that the

Senate Report on the Education for All Handicapped

Children Act of 1975 (the forerunner to the IDEA), which

described the non-lawyer’s role as one of “consultation,”

provides 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 (noting

that Congress distinguished between the duties attributa-

ble to “counsel” and “individuals with special knowl-

edge,” insofar as the latter’s role was to be “one of

consultation, with emphasis on the responsibility to iden-

tify educational problems, evaluate them, and determine

proper educational placement”) (citing S. Rep. No. 168,

94th Cong., 1st Sess. (1975), reprinted in 1975 U.S.C.C.A.N.

1425, 1470-71) (emphasis added).4 |

3 The Supreme Court of Delaware concluded that the

language of 20 U.S.C. § 1415(h)(1) “is ambiguous to the extent it

appears to confer joint authority on lawyers and nonlawyers to

accompany and advise parents and others affected by the

operation of the due process hearings provided under the

IDEA.” Pet. App. A6. Therefore, the court looked to legislative

history to clarify the meaning of the statutory language.

4 The petitioners cite three of this Court’s cases in support

of their assertion that this Court has “repeatedly cautioned

against the use of committee reports in interpreting statutory

language.” Pet., at 18-19. No such generalized disparagement of

Congressional reports is to be found in those decisions. In each

case, there were special circumstances that made the report in

question far less reliable than the reports cited by the Supreme

Court of Delaware in the case at bar. See National Fed’n of Federal

Employees v. Department of Interior, 526 U.S. 86, 96 (1999) (report

concerned a bill that was not enacted into law); Reno v. Bossier

Parish Sch. Bd., 520 U.S. 471, 483-84 (1997) (footnote in report,

where disputed statutory provision was reenacted without

change, was unpersuasive evidence that there had been a

change in the settled interpretation of the provision); Wisconsin

Pub. Intervenor v. Mortier, 501 U.S. 597, 609-10 (1991) (two

principal committees responsible for the bill were in

disagreement over whether it preempted pesticide regulation

by political subdivisions).

The petitioners contend that the IDEA “draws no

distinction between [lawyers and specialized lay advo-

cates], treating [them] exactly the same.” Pet., at 12. How-

ever, the petitioners wrongly assume that the IDEA

contemplates that “counsel” and “individuals with spe-

cial knowledge” will necessarily perform identical func-

tions at IDEA due process hearings. In reality, although

both categories of persons may “accompan[y] and advise

[]” parties to such hearings, this language does not

require that the subject matter and content of the contem-

plated “advice” be identical. See Arons, 842 F.2d at 62

(discussing the above-quoted language from the 1975

Senate Report).

Moreover, counsel have inherent and presumptive

representational authority, while expert educational con-

sultants do not. There is a well-established presumption

that Congress is understood to legislate against a back-

ground of common-law principles, of which the “rule that

a non-lawyer may not represent another person in court

is a venerable [one].” Collinsgru v. Palmyra Bd. of Educ.,

161 F.3d 225, 231-32 (3d Cir. 1998).5 See United States v.

> In Collinsgru, the Third Circuit held that non-lawyer

parents of children with disabilities do not have the right under

the IDEA to represent their children in the federal courts. In so

holding, the court emphasized that, in the absence of strong

evidence of Congressional intent to the contrary, the IDEA is to

be interpreted in a way that preserves the venerable common-

law rule that a non-lawyer may not represent another person in

court. The court also based its decision on the following public

policy considerations: (1) the “strong state interest in regulating

the practice of law”; and (2) the importance of the rights at

issue, including the risk that those rights could be prejudiced by

a lay representative not qualified in the law or accountable for

ethical violations. 161 F.3d at 231.

10

Texas, 507 U.S. 529, 534 (1993) (“In order to abrogate a

common-law principle, the statute must ‘speak directly’

to the question addressed by the common law.”). The

IDEA grants the right to engage in the activities

described by 20 U.S.C. § 1415(h)(2) (i.e., presenting evi-

dence, cross-examining witnesses, and compelling the

attendance of witnesses) to the parties. The IDEA is silent

as to whether these functions may be performed by a

non-lawyer who is not a party to the action. A silent

statute can hardly be said to “speak directly” to the

question of whether the IDEA supersedes the states’ com-

mon-law rules on the practice of law by non-lawyers. See

Collinsgru, 161 F.3d at 231-32.

Finally, as the Supreme Court of Delaware noted in

its decision, recent amendments to the IDEA further sup-

port an interpretation that the IDEA does not authorize

lay representation at due process hearings. Pursuant to

these amendments in 1997, one of the safeguards required

for agencies receiving federal funds under 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 connec-

tion with a complaint. 20 U.S.C. § 1415(b)(6)-(7)

(emphasis added). The word “attorney” is an indisputa-

ble 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.” Pet. App. A8-9. In addition, it is relevant to

note that Congress, in passing the Handicapped Chil-

dren’s Protection Act of 1986, which created a statutory

right to reasonable attorneys’ fees and related costs for a

11

prevailing party at an IDEA due process hearing, did not

include any provision granting such fees for lay advo-

cates. See 20 U.S.C. § 1415(i)(3)(B); Arons, 842 F.2d at

61-62. -

2. The Department Of Education’s Expansive

Interpretation Of 20 U.S.C. § 1415(h) Is Not

Entitled To Great Deference From This

Court.

Citing Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), the petitioners

contend that the Supreme Court of Delaware erred by

failing to accord great deference to the views expressed

by the United States Department of Education, which

advocates an expansive interpretation of 20 U.S.C.

§ 1415(h), mandating that every state receiving federal

IDEA funds permit non-lawyers to represent parents at

IDEA due process hearings. The Department's views on

this issue were laid out in an informal 1981 policy letter

(“the Sky Letter”), and in the United States’ brief as

amicus curiae in the proceeding before the Supreme Court

of Delaware.®

© The Sky Letter was written by the then acting General

Counsel for the Department of Education, Theodore Sky, 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” under the IDEA. The superintendent

had suggested that the IDEA’s language indicates that non-

lawyers are not in fact authorized to engage in activities

conventionally viewed as legal representation, such as

examining and cross-examining witnesses. See Pet. App. A9-10.

12

This Court has articulated certain conditions to the

exercise of deference to administrative interpretations of

federal statutes. Where Congress has not expressly dele-

gated “authority to an agency to elucidate a specific

provision of the statute by regulation,” deference is due

only to a “reasonable” administrative interpretation. Pet.

App. All (quoting Chevron, 467 U.S. at 843-44). Further,

less deference is due to informal agency interpretations of

federal statutes, such as those expressed in the Sky Letter

and the United States’ amicus curiae brief, than to formal

agency regulations adopted after a notice and comment

period. See Pet. App. All (citing Cleary v. Waldman, 167

F.3d 801, 807-08 (3d Cir.), cert. denied, 120 S. Ct. 170

(1999)). See also Christensen v. Harris Cty., 120 S. Ct. 1655,

1662-63 (2000) (stating that agency interpretations con-

tained in formats such as opinion letters are “entitled to

respect,” but only to the extent that those interpretations

have the “power to persuade”) (quoting Skidmore v. Swift

& Co., 323, U.S. 134 (1944)). See also 20 U.S.C. § 1406(c)

(1997 amendment to the IDEA, providing that “[t]he Sec-

retary [of Education] may not, through policy letters or

other statements, establish a rule that is required for

compliance with, and eligibility under, this part without

following the requirements” of the Administrative Pro-

cedures Act).

Moreover, considered in the context of the traditional

state authority to regulate the practice of law, the text and

the history of the IDEA reflect that the right to be repre-

sented at a due process hearing by a non-lawyer is a

“gap” in the statute that has been left by Congress to be

filled by the states, and not by the Department of Educa-

tion. Cf. Chevron, 467 U.S. at 844-45 (where an agency has

—_—. —<—s eS

13

reached a “reasonable accommodation of conflicting poli-

cies that were committed to the agency’s care by the

statute,” courts should not disturb it “unless it appears

from the statute or its legislative history that the accom-

modation is not one that Congress would have sanc-

tioned”). See also 20, U.S.C. § 1417(b) (1997 amendment to

the IDEA, providing that “[i]n carrying out the provisions

of [the IDEA], the Secretary [of Education] shall issue

regulations . . . only to the extent that such regulations

are necessary to ensure that there is compliance with the

specific requirements of this chapter”).

The Supreme Court of Delaware was correct in con-

cluding that the Department of Education’s views on the

interpretation of 20 U.S.C. § 1415(h) were entitled only to

“modest deference.” Pet. App. All. Although the Depart-

ment of Education does have day-to-day responsibility

for the IDEA’s implementation and enforcement, see Pet.,

at 16, that does not mean that Congress has given the

Department’s IDEA administrators carte blanche to over-

ride traditional state regulatory powers, such as the

power to regulate the practice of law.

Furthermore, the Supreme Court of Delaware

observed that even if it were required to give greater

deference to the Department of Education’s interpretation

of 20 U.S.C. § 1415(h), “it is doubtful whether that inter-

pretation could withstand the sheer weight of the legal

and factual support for the opposite conclusion.” Pet.

App. A11. First, in concluding that the permissible roles

of “counsel” and “individuals with special knowledge or

training with respect to the problems of children with

14

disabilities” must be the same, the Department of Educa-

tion has overlooked the inherent and presumptive repre-

sentational authority with which counsel are cloaked and

non-lawyers are not. Second, the Department has relied

heavily on selectively chosen statements made by two

Congressional lawmakers in 1975, while placing no

weight on the 1975 Senate Report’ or other aspects of the

legislative history that are inconsistent with the Depart-

ment’s reading of the statute.® See Consumer Prod. Safety

Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980)

(“Contemporaneous remarks of a single legislator who

7 To this day, the Department has failed to acknowledge the

significance of the 1975 Senate Report’s description of the role

of the “individual[ ] with special knowledge” as being “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., 1st Sess.

(1975), reprinted in 1975 U.S.C.C.A.N. 1425, 1470-71) (emphasis

added).

8 The Senate Conference Report on the Education for All

Handicapped Children Act of 1975 (the forerunner to the IDEA),

which explained the provisions of the reconciled bill containing

the “accompanied and advised” provision now codified in 20

U.S.C. § 1415(h)(1) of the IDEA, states that in administrative due

process hearings a party shall be “accorded (1) 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. 455, 94th Cong.,

lst Sess. 49 (1975), reprinted in 1975 U.S.C.C.A.N. 1425, 1503

(emphasis added). This language from the Senate Conference

Report, the document from the legislative history which best

reflects the considered views of the members of both houses of

Congress, draws an unambiguous distinction between (1)

“counsel” (i.e., persons who are members of the Bar) and (2)

specially qualified consultants.

15

sponsors a bill are not controlling in analyzing legislative

history.”).

Finally, the Department of Education’s emphasis on

the fact that lay representation had been authorized by

Congress for certain other types of administrative hear-.

ings is “puzzling,” because “that factor actually supports

the opposite conclusion - that Congress knew how to

authorize lay representation when it wished to do so.”

Pet. App. All-12. The absence of similar language in the

IDEA speaks strongly in establishing that Congress chose

not to authorize lay representation. See Pet. App. A9

(citing 7 U.S.C. § 2020(e)(7), which is the Food Stamp Act

provision allowing households in the 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”).9

9 The contrast between specific language in the Social

Security Act provision on “representation” and 20 U.S.C.

§ 1415(h) of the IDEA is also quite instructive. For example, 42

U.S.C. § 406(a)(1) states, in part:

The Commissioner of Social Security may prescribe

rules and regulations governing the recognition of

agents or other persons, other than attorneys as hereinafter

provided, representing claimants before the

Commissioner on Social Security.

(Emphasis added). Pursuant to this explicitly and statutorily

delegated authority, the Commissioner has adopted specific and

detailed regulations governing the conduct of lay

“representatives” in Social Security proceedings. See 20 C.F.R.

§§ 404.1700-1799.

16

The petitioners attempt to bolster the Department's

construction of 20 U.S.C. § 1415(h) by claiming that it is

“consistent with the case law on this issue.” Pet., at 13

n.3. They cite only Z.A. v. San Bruno Park School District,

165 F.3d 1273, 1276 (9th Cir. 1999) (lawyer admitted to bar

other than California “could appear as a lay advocate” at

an IDEA hearing in California, but could not collect attor-

neys’ fees because of restrictions under state law) and

Woods v. New Jersey Department of Education, 858 F. Supp.

51, 55 (D.N.J. 1993) (attorney-client privilege attaches to

communications between lay advocate and parent during

an IDEA hearing). In each of these cases, state law was

understood by the federal court as having created a right

to non-lawyer representation at IDEA due process hear-

ings. Moreover, unlike the Third Circuit’s ruling in Arons,

the opinions of the courts in these cases contain no sub-

stantial analysis of the statutory language and history of

20 U.S.C. § 1415(h).

Finally, in support of its view that the IDEA preempts

state authority to prohibit non-lawyer representation at

due process hearings, the Department of Education has

heavily relied upon this Court’s decision in Sperry v.

Florida ex rel. Florida Bar, 373 U.S. 379 (1963). In Sperry, the

Florida Bar challenged the right of a layperson to repre-

sent clients before the United States Patent Office. This

Court rejected the challenge on the ground that Congress

had empowered the Commissioner of Patents to prescribe

regulations governing the practice by “agents, attorneys,

or other persons representing applicants or other parties

before the Patent Office.” Id. at 384. Pursuant to that

express statutory authorization, the Commissioner had

established two separate registers of persons entitled to

17

represent applicants seeking patents. One register consis-

ted of names of attorneys; the other listed non-lawyer

“agents.” Id. In Sperry, this Court called attention to the

long history of practice by non-lawyer agents before the

Patent Office and noted the extended Congressional

debate over the matter. Id. at 388.

Sperry is readily distinguishable from the case at bar.

First, unlike the Patent Office (the agency at issue in

Sperry), DPI is a state, not a federal, agency. Second, there

is no time-honored tradition of practice by non-lawyers

before DPI, nor did Congress engage in any kind of

extensive debate about the activities of lay advisors when

it adopted the relevant IDEA provision. Third, the statute

at issue in Sperry specifically referred to persons “repre-

senting applicants.” Id. at 384 n.3 (emphasis added). Here,

in contrast, the IDEA states only that a party “may be

accompanied and advised by counsel and by individuals

with special knowledge or training.” 20 U.S.C.

§ 1415(h)(1) (emphasis added). See Arons, 842 F.2d at

61-62 (distinguishing Sperry).

Neither the language and history of the IDEA reflect

that Congress intended to require the states to permit

“individuals with special knowledge and training with

respect to the problems of children with disabilities” to

perform traditional representative functions at IDEA due

process hearings. Both the petitioners and the Depart-

ment of Education disregard the historic and compelling

state interest in regulating the practice of law, which has

properly informed the construction of 20 U.S.C. § 1415(h)

by the Third Circuit and by the Supreme Court of Dela-

ware. Because this construction of the IDEA was correct,

review by this Court is not warranted.

18

B. The IDEA Does Not Preempt The Traditional

State Authority To Regulate The Unauthorized

Practice Of Law.

The petitioners argue 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 Consti-

tution override Delaware’s regulatory authority. The

Supreme Court of Delaware properly determined that the

petitioners’ claim of federal preemption was mooted by

the court’s conclusion that 20 U.S.C. § 1415(h)(1) creates

no “clear right to lay representation.” Pet. App. A15.

“Preemption fundamentally is a question of congres-

sional intent.” English v. General Elec. Co., 496 U.S. 72, 78

(1990). See also Medtronic, Inc. v. Lohr, 518 U.S. 470, 485

(1996) (noting that “ ‘[t]he purpose of Congress is the

ultimate touchstone’ in every pre-emption case”) (quot-

ing Retail Clerks Int'l Ass'n v. Schermerhorn, 375 U.S. 96,

103 (1963)). Such intent can either be expressed in the

language of the statute itself, or implied. However,

“{tp]reemption of state law by federal statute or regula-

tion is not favored ‘in the absence of persuasive reasons —

either that the nature of the regulated subject matter

permits no other conclusion, or that the Congress has

unmistakably so ordained.’ ” Chicago & N.W. Transp. Co. v.

Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981) (quoting

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,

142 (1963)).

Congress did not expressly preempt state regulation

of the practice of law in the context of IDEA due process

hearings. Nor do the IDEA or its history reflect that

19

Congress intended to occupy the entire field with respect

to the procedures or the substantive requirements for the

provision of educational and related services to children

with disabilities. Rather, Congress intended to establish a

system of “cooperative federalism” through the IDEA. See

Town of Burlington v. Department of Educ., 736 F.2d 773, 785

(1st Cir. 1984), aff'd sub nom. School Comm. of Burlington v.

Department of Educ., 471 U.S. 359 (1985). “[T]he rule is that

the IDEA preempts state law only if the state standards

are below the federal minimum.” Converse Cty. Sch. Dist.

No. Two v. Pratt, 993 F. Supp. 848, 854-55 (D. Wyo. 1997)

(citing Evans v. Evans, 818 F. Supp. 1215, 1223-24 (N.D.

Ind. 1993)).

The petitioners have argued that the Supreme Court

of Delaware’s prohibition against non-lawyer representa-

tion at IDEA due process hearings is barred under princi-

ples of “implied preemption.” Pet., at 23. More precisely,

the petitioners are asserting that there is an “implied”

actual conflict between federal and state law, based upon

what has come to be known as “obstacle” preemption. See

generally Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597,

606-07 (1991) (explaining the distinctions between

express preemption, implied “field” preemption, and

conflict preemption). As this Court has explained, where

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 accom-

plishment of the full purposes and objectives of Con-

gress.” Id. (emphasis added). In considering assertions of

“conflict” preemption, this Court has emphasized that the

20

proper approach is to reconcile “the operation of both

statutory schemes with one another rather than holding

one completely ousted.” Merrill Lynch, Pierce, Fenner &

Smith, Inc. v. Ware, 414 U.S. 117, 127 (1973). An emphasis

on reconciling state and federal laws and objectives is

particularly appropriate in any preemption analysis

involving the IDEA, in light of the principles of “coopera-

tive federalism” which the statute reflects.

The petitioners have failed to recognize the well-

established presumption against preemption, which is

rooted in the concept of federalism and is designed to

avoid “unintended encroachment on the authority of the

States.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658,

663-64 (1993). Following this presumption, “a court inter-

preting a statute pertaining to a subject traditionally gov-

erned by state law will be reluctant to find pre-emption.

Thus, pre-emption will not lie unless it is the ‘clear and

manifest purpose of Congress.’ ” Id. at 664 (quoting Rice

v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).?° In

this way, the structural safeguards inherent in the normal

operation of the legislative process operate to defend

state interests from undue infringement. See Garcia v. San

Antonio Metro. Transit Auth., 469 U.S. 528, 552 (1985).

10 See also Medtronic, 518 U.S. at 485 (observing that the

presumption against preemption applies “[i]n all pre-emption

cases, and particularly in those in which Congress has

legislated . . . in a field which the States have traditionally

occupied”) (internal quotations omitted); California v. ARC Am.

~€orp., 490 U.S. 93, 101-03 (1989) (relying upon the presumption

against preemption, and finding no conflict preemption of state

indirect purchaser statutes under the federal antitrust laws

based upon an alleged frustration of Congressional purposes).

EE eeEeeO

21

Absent such limitations, federal administrative agencies

would be free to assert preemptive authority over state

governments on issues that involve areas of traditional

state authority, without the constraint of a clear Congres-

sional mandate.

The Department of Education’s view that Delaware’s

enforcement of its rules on the unauthorized practice of

law will frustrate Congress’ objectives in enacting 20

U.S.C. § 1415(h) fails to overcome the presumption

against preemption, in light of the language and history

of the IDEA. As the Supreme Court of Delaware correctly

concluded (consistent with the Third Circuit’s ruling in

Arons), the IDEA simply does not create any “clear right

to lay representation.” (See discussion supra, section I).

Therefore, the IDEA cannot and does not refiect any

“clear and manifest purpose” on the part of Congress to

supersede the traditional state authority to regulate the

practice of law. Cf. Wisconsin Pub. Intervenor v. Mortier,

501 U.S. 597, 606-15 (1991) (where the text and the legisla-

tive history of the federal statute were ambiguous, there

was no preemption of local regulation in a subject area

involving historic police powers). Moreover, this Court

has observed that the doctrine of preemption does not

undermine a state’s authority to regulate “a distinctive

part of a subject which is peculiarly adapted to local

regulation,” where Congress could have “but did not”

regulate that part of the subject. See Hines v. Davidowitz,

312 U.S. 52, 68 n.22 (1941). The IDEA includes extensive

procedural safeguards in 20 U.S.C. § 1415(h) for the pro-

tection of the interests of parties to due process hearings,

22

but Congress left it for the states - and not the Depart-

ment of Education - to determine whether non-lawyers

are permitted to represent parties at the hearings.

In support of their argument for “obstacle” preemp-

tion, the petitioners have cited this Court’s recent deci-

sion in Geier v. American Honda Motor Co., 120 S. Ct. 1913

(2000). In Geier, this Court held that there is no “special

burden” placed on a court’s application of ordinary prin-

ciples of conflict preemption when a federal statute con-

tains an express preemption clause, and that, based upon

an analysis of the federal agency standard in question,

the injured motorist’s state common-law tort action was

barred by reason of “obstacle” preemption. Id. at 1920-21,

1927. This Court did not call into question the general

applicability of the presumption against preemption, or

the presumption’s particular strength where the federal

government has stepped into areas of traditional state

authority. See, e.g., Medtronic, 518 U.S. at 485 (observing

that a presumption against the preemption of state police

power regulations is “consistent with both federalism

concerns and the historic primacy of state regulation in

matters of health and safety”).

Furthermore, Geier is distinguishable from the case at

bar. The Court addressed the preemptive effect of a “pas-

sive restraints” standard adopted by the United States

Department of Transportation pursuant to its authority

under the National Traffic and Motor Vehicle Safety Act

of 1966 (the “Safety Act”), 80 Stat. 718 (1966), 15 U.S.C.

§ 1381 et seq. (1988) (current version at 49 U.S.C. § 30101

et seq.). The Safety Act broadly delegated to the Depart-

ment of Transportation the authority to establish motor

vehicle safety standards that are “practicable,” “meet the

23

need for motor vehicle safety,” and are “stated in objec-

tive terms.” See 15 U.S.C. § 1392(a) (1988) (current version

at 49 U.S.C. § 30111(a)). In contrast, the IDEA includes a

provision that restricts the ability of the Department of

Education to expand upon, through the use of regulation,

the “specific requirements” of the IDEA, including the

specific requirements contained in 20 U.S.C. § 1415(h)."!

This statutory restriction that Congress has now placed

on the Department of Education refutes any suggestion

that Congress intends for the Department of Education to

engage in expansive inquiries into the underlying “pur-

poses” of 20 U.S.C. § 1415(h), or, based on its conclusions,

to mandate additional procedural safeguards that are not

found in the language of the statute.

The petitioners’ arguments for deference to the

Department of Education’s views on “obstacle” preemp-

tion, based upon this Court’s decision in Medtronic, Inc. v.

Lohr, 518 U.S. 470 (1996), see Pet., at 11, 24, are similarly

unpersuasive. Medtronic involved the preemptive effect

on state law of a provision contained in the Medical

Devices Amendments of 1976 (“MDA”), 90 Stat. 539

(1976), 21 U.S.C. §§ 306c-360k, 379, 379a & 42 U.S.C.

11 See 20 U.S.C. § 1417(b) (1997 amendment to the IDEA,

providing that “[i]n carrying out the provisions of [the IDEA]

the Secretary [of Education] shall issue regulations under this

chapter only to the extent that such regulations are necessary to

ensure that there is compliance with the specific requirements of this

chapter”) (emphasis added). Prior to 1997, 20 U.S.C. § 1417(b)

had provided that “[iJn carrying out the provisions of [the

IDEA], the Secretary shall issue, not later than January 1, 1977,

amend, and revoke such rules and regulations as may be

necessary.” (Emphasis added).

24

§ 3512 (1994), a statute which is administered by the Food

and Drug Administration (“FDA”) by delegation of

authority from the Secretary of the Department of Health

and Human Services (“HHS”). See Medtronic, 518 U.S. at

482 n.5, 496. The Court observed that Congress had

explicitly delegated to the FDA the authority to exempt

state regulations from the preemptive effect of the MDA —

“an authority that necessarily requires the FDA to assess

the pre-emptive effect that the [MDA] and its own regula-

tions will have on state laws.” Id. at 496 (citing 21 U.S.C.

§ 360k(b)).!2 The Court then concluded that “[t]he ambi-

guity in the statute, and the congressional grant of

authority to the agency on the matter contained in it,

provide a sound basis for giving substantial weight to the

agency’s view of the statute.” Id. at 496 (internal quota-

tions and citation omitted). In contrast, Congress’ delega-

tion of regulatory authority to the Department of

Education is much less open-ended, consistent with the

spirit of “cooperative federalism” that underlies the

IDEA. See 20 U.S.C. § 1417(b) (both pre- and post-1997,

discussed supra). Accordingly, Medtronic lends little sup-

port to the petitioners’ argument for deference to the

Department of Education’s views on “obstacle” preemp-

tion.

Finally, it is worth noting that the Congressional

mandate contained in the text of the IDEA is that the

12 See also 21 U.S.C. § 371(a) (broadly delegating to the

Secretary of HHS the authority to promulgate regulations “for

the efficient enforcement” of the Federal Food, Drug, and

Cosmetic Act), cited in Medtronic, 518 U.S. at 496 n.15.

25

parents of children with disabilities must have an “oppor-

tunity for an impartial due process hearing.” 20 U.S.C.

§ 1415(f)(1). The purposes and objectives of Congress

expressed in the IDEA are not impeded by Delaware’s

prohibitions against the unauthorized practice of law. The

more reasonable approach is to harmonize the state and

federal schemes, so that the states are free to adopt their

own rules and regulations concerning the practice of law

by non-lawyers at IDEA due process hearings. See, e.g.,

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

(explicit New York state regulation permitting lay repre-

sentation at IDEA due process hearings); Pet. App. A33

n.6 (report of the Board, quoting the New York regula-

tion).

The Supreme Court of Delaware’s decision is consis-

tent with well-established preemption principles, and

does not require further review by this Court.

C. The Due Process Clause Of The United States

Constitution Does Not Support The Petitioners’

Interpretation Of The IDEA.

The petitioners claim that the Supreme Court of Dela-

ware erred by rejecting their argument that a prohibition

against non-lawyers representing parents at IDEA due

process hearings creates substantial Due Process prob-

lems, which can be avoided by construing the statute as

requiring states to permit non-lawyer representation.

Pet., at 20-22.

In proceedings that may result in the government

deciding to withhold a service under the IDEA, the Due

Process Clause requires only that the government afford

26

the child with minimal procedural protections. See Wenger

v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 153

(N.D.N.Y. 1997) (citing Mathews v. Eldridge, 424 U.S. 319,

335 (1976)), aff'd, 181 F.3d 84 (2d Cir. 1999), and aff'd, 208

F.3d 204 (2d Cir. 2000), petition for cert. filed, U.S.L.W. (U.S.

Sept. 25, 2000) (No. 00-6315). The complaint and hearing

procedures outlined in the IDEA, and adhered to by the

State of Delaware (see Pet. App. A3, A46-47, and A54-55),

more than satisfy the requirements of the Due Process

Clause.

Balancing the three factors identified by this Court in

Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme

Court of Delaware observed that, while there is no ques-

tion of the importance of the individual interests

involved in IDEA due process hearings, parties to these

hearings “are already provided with substantial pro-

cedural safeguards.” Pet. App. A13. The court noted that

the hearings are conducted in a manner typical of con-

tested, adversarial proceedings, including the direct and

cross-examination of witnesses and the required

exchange of witness lists and documents in advance of

the hearing. Furthermore, the court believed that Dela-

ware’s three member panel, consisting of an attorney, an

educator in the area of special education, and a layperson

with a demonstrated interest in the education of students

with disabilities, “affords parents an unbiased hearing”

and, coupled with the other procedural safeguards, “ade-

quate structural protection.” Pet. App. A14 n.4. The court

also agreed with the ODC that the petitioners had

“grossly and unfairly” exaggerated the risk that Delaware

will deprive children of their individual liberty interests

under the IDEA unless the children and their parents are

27

allowed to be represented by lay advocates. Pet. App.

A13. Moreover, the court found that the record did not

support the petitioners’ assertion that parents and chil-

dren would be denied access to “the only assistance

available to them” if non-lawyer representation was not

permitted. Pet. App. A14.

The Supreme Court of Delaware also properly con-

sidered the compelling state interest in regulating the

practice of law as an important factor in the application

of the Mathews balancing test. The court concluded that

any potential benefit that some individual parents and

children may obtain through the services of lay advocates

was significantly outweighed by the court’s compelling

interest in ensuring that “the public will enjoy the repre-

sentation of individuals who have been found to possess

the necessary skills and training to represent others.” Pet.

App. A13-14.

This Court has recognized that “the states have a

compelling interest in the practice of professions within

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

the public health, safety, and other valid interests they

have broad power to establish standards for licensing

practitioners and regulating the practice of professions.”

Goldfarb v. Virginia St. Bar, 421 U.S. 773, 792 (1975). See

Middlesex Cty. Ethics Comm. v. Garden St. Bar Ass'n, 457

U.S. 423, 434 (1982) (noting that states have an “extremely

important interest” in the regulation and licensing of

attorneys); Leis v. Flynt, 439 U.S. 438, 442 (1979) (“Since

the founding of the Republic, the licensing and regulation

of lawyers has been left exclusively to the States and the

28

District of Columbia within their respective jurisdic-

tions.”).13 The Supreme Court of Delaware’s decision to

prohibit non-lawyer representation at IDEA due process

hearings was fully consistent with its broad authority to

regulate in this area of traditional state power.

The petitioners’ reliance upon cases such as Santosky

v. Kramer, 455 U.S. 745 (1982), Lassiter v. Department of

Social Services, 452 U.S. 18 (1981), and Little v. Streater, 452

U.S. 1 (1981), only serves to highlight the weakness of

their Due Process argument. In Santosky, the Court

required a minimum evidentiary standard of “clear and

convincing evidence” for the termination of parental

rights. 455 U.S. at 769-70. Lassiter also involved the termi-

nation of parental rights, and the Court held that the

failure of the state to appoint counsel for indigent parents

did not violate the Due Process Clause under the circum-

stances of that case. 452 U.S. at 31-32. Little involved “the

creation of a parent-child relationship” in paternity pro-

ceedings, and the Court held that Due Process prohibited

the denial of blood grouping tests to an indigent defen-

dant. 452 U.S. at 16. The petitioners have failed to iden-

tify any case in which this Court has held that the Due

Process Clause requires a state, which has implemented

formal, adversarial hearing procedures for resolving dis-

putes about the provision of government benefits or ser-

vices pursuant to a federal statute, to allow non-lawyers

13 See also Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225,

231 (3d Cir. 1998) (citing “the strong state interest in regulating

the practice of law” as an important consideration in rejecting

an alleged right of a parent to represent a child in IDEA

proceedings in federal court).

29

to engage in traditional representative functions at such

hearings.

The petitioners have fallen far short of demonstrating

that the Supreme Court of Delaware’s decision in Arons

creates any “entanglement” with the requirements of

Constitutional Due Process.

e

CONCLUSION

Review by this Court of the en banc decision of the

Supreme Court of Delaware is not warranted. That court

correctly construed the disputed language found in 20

U.S.C. § 1415(h), concluding that neither the text nor the

history of the IDEA reflect that Congress intended to

require the states to permit “individuals with special

knowledge or training with respect to the problems of

children with disabilities” to represent parties in IDEA

due process hearings. Having found no “clear right to lay

representation” in the IDEA, Pet. App. A15, the court

properly determined that the petitioners’ claim of federal

preemption was moot. This Court’s precedents do not

support the petitioners’ argument for “obstacle” preemp-

tion, particularly in an area of traditional state authority

such as the regulation of the practice of law. Finally, the

requirements of the Due Process Clause are more than

satisfied by the procedural safeguards implemented by

the State of Delaware pursuant to the IDEA. In fur-

therance of the state’s compelling interest in regulating

the practice of law, the Supreme Court of Delaware deter-

mined that the petitioners were not authorized to repre-

sent parents in IDEA due process hearings. This Court

30

should reject the petitioners’ invitation to use the Due

Process Clause as justification for expanding federal

authority under the IDEA beyond the language of the

statute.

For the foregoing reasons, the respondent ODC

respectfully requests that this Honorable Court deny the

petition for writ of certiorari.

Respectfully submitted,

MicHaet S. McGInniss

Counsel of Record

Disciplinary Counsel

Mary M. JOHNSTON

Chief Disciplinary Counsel

Orrice oF DiscipLINARY COUNSEL

200 West Ninth Street, Suite 300-A

Wilmington, DE 19801

(302) 577-7042

Attorneys for Respondent

Dated: November 2, 2000