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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 1065

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1351%3A3. Public record. Not legal advice.