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

Supreme C Us,

FILE

MAY

No. 00-509 oo

In the Supreme Court of the Unites STS"

MARILYN ARONS, ET AL., PETITIONERS

V.

OFFICE OF DISCIPLINARY COUNSEL

OF THE SUPREME COURT OF DELAWARE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF DELAWARE

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

BARBARA D. UNDERWOOD

Acting Solicitor General

Counsel of Record

WILLIAM R. YEOMANS

Acting Assistant Attorney

General

PAUL D. CLEMENT

Deputy Solicitor General

EDWARD C. DUMONT

Assistant to the Solicitor

General

MARK L. GROSS

LISA J. STARK

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Individuals with Disabilities Education

Act, 20 U.S.C. 1400 et seq., which requires that States

afford parties to administrative “due process” hearings

“the right to be accompanied and advised by counsel

and by individuals with special knowledge or training

with respect to the problems of children with disabili-

ties,” 20 U.S.C. 1415(h)(1) (Supp. IV 1998), establishes a

clear federal right to non-lawyer representation in

those proceedings that preempts a contrary state rule -

against the unauthorized practice of law.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Arons v. New Jersey State Bd. of Educ., 842 F.2d

58 (3d Cir.), cert. denied, 488 U.S. 942 (1988) ............. 5, 7,13

Aster v. Robbins, 519 U.S. 452 (1907) ...c.ssescsossssssssnssacssssese 12

Burlington Sch. Comm. v. Massachusetts Dep’t of

Se Oe te SI CRD i snhsnvisnaninionsnsisotessobnsctoonamencsies 10,15

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

Council, Inc., 467 U.S. S37 (19B4) ....ccceccosccsressssesssenssovesssess 12

Christensen v. Harris County, 529 U.S. 576

I lila cease irhuticlsnde beaaereceepinaneeblioahpeiancsibaennetensianninnneasis 13

Collingsgru v. Palmyra Bd. of Educ., 161 F.3d

IIT: IIE cise oenceaconibosietih nsilccenblnvetntenreetinieaqabeasateae 14

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

SEIT aisila siesta tek lcabiaciedcidniiohandasheapionbarepaitsnadahenadiiateneinpnbaunicsoininataninn 14

Devine v. Indian River County Sch. Bd., 121 F.3d

576 (11th Cir. 1997), cert. denied, 522 U.S. 1110

I edhe al dahsdeihikieeetitininsindaesdiainssonitedbbasskspnabeanitenbindans 14

Doe v. Board of Educ., 165 F.3d 260 (4th Cir. 1998),

COPE. GoniSd, GIS U.S. 1159 (1GOS) ...rccsecssscsssosessversevesssssscoess 14

Hendrick Hudson Dist. Bd. of Educ. v. Rowley,

I I cc. cali canscinignaahicenensicinkesnanemeinmnacaseasiorses 10

NationsBank of N.C., N.A. v. Variable Annuity -

EAPO FB: 0, BEB V2 SOE (GBB) sivcvcissscrcssessssarisssrssscccrses 12

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

BRR SR PGIM alk RIMMED -astsnsanisvusannsinsonindsainnsstnannsasanscsansnonssensesonsases 14,17

Your Home Visiting Nurse Servs., Inc. v. Shalala,

I issu dnisaahtuilasinghinababsinsdannbiscenonnbinantexsnnsesnt 12

Z.A. v. San Bruno Park Sch. Dist., 165 F.3d

(IIT)

Se Ce Ces BD ei cnscitrcnicheacnacncsicrcasisacamatinneseiaibbaiianenininnss 13

Statutes:

Individuals with Disabilities Education Act Amend-

ments of 1997, Pub. L. No. 105-17, Tit. I, § 101,

RR EPR eee RE PAN EN Re PES OP hice ee en 1.2

Individuals with Disabilities Education Act, 20 U.S.C.

ROD OC 00 CORUII. VSD scisincctnsicrnnicanvssniosuctiniionssecins 1

ee ae II “hse ala eh dihenisncsciasiiaipemsere connciiinnibiinraanhomiaatiad 1

TE EME depcencnicsecesinaintnaticsntoectiiciens 9

Se ees. MUNI ssccntiehietes iss ecbdadecesind cabelas anita san 2

Se a IED’ sacenhcinsmeenitinchioscteeaphcadcnecinnennnsapiebnioned eds 2

ea SD ceicicisaecdaeenhediptidsinnshncastibapcignaaennknctiianttiie 7

AE aA Ee CD Mihsinhirenintyenscessannmeicentcaiguitinteonin 13

Br eiice IIE ER ecostcntetindbinicceiindleaciebeenionshdennessippradeeireluadantonl 2

20 U.S.C. LAIST) ....c.rccccscncereees 2,3, 5, 6, 8, 10, 12, 13

BPE eta PAINE istanntelipscisecnaniacnabidianannaiiieesiconnemioies 11

Del. Code Ann. tit. 14, § 3137(d)(1)-(8) (1999) oe 3

Miscellaneous:

RAE Clean. Fee SE CID wiseaesetrninsccsiernnesniciesnieepenstniianiivrsaionis 7

S. Conf. Rep. No. 455, 94th Cong., Ist Sess. (1975) ............ 5,7

U.S. Dep’t of Educ., Twenty-Second Annual Report

to Congress on the Implementation of the Individuals

with Disabilities Education Act (2000) ......cccscsessesseeeeees 15

In the Supreme Court of the Gnited States

No. 00-509

MARILYN ARONS, ET AL., PETITIONERS

V.

OFFICE OF DISCIPLINARY COUNSEL

OF THE SUPREME COURT OF DELAWARE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF DELAWARE

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the Court’s

order inviting the Solicitor General to file a brief

expressing the views of the United States.

STATEMENT

1. The Individuals with Disabilities Education Act

(IDEA), 20 U.S.C. 1400 et seq., establishes a coopera-

tive program under which the federal government

makes grants to participating States to assist them in

providing public education to children with disabilities.

See generally 20 U.S.C. 1400(d) (Supp. V 1999) (state-

ment of statutory purposes).’ Delaware participates in

‘ Congress revised the IDEA extensively in 1997. Individuals

with Disabilities Education Act Amendments of 1997, Pub. L. No.

(1)

i :

2

the IDEA program, and must comply with the Act’s

requirements in the administration of the program

within the State. See Pet. App. A2 n.1, A44.

Among other things, the IDEA requires Delaware to

provide certain procedures “to ensure that children

with disabilities and their parents are guaranteed

procedural safeguards with respect to the provision of

free appropriate public education.” 20 U.S.C. 1415(a).

Those procedures must incluae “an opportunity to

present complaints with respect to any matter relating

to the identification, evaluation, or educational place-

ment of the child, or the provision of a free appropriate

public education to such child.” 20 U.S.C. 1415(b)(6).

When such a complaint is made, “the parents involved

* * * shall have an opportunity for an impartial due

process hearing. ” 20 U.S.C. 1415(f)(1).. Moreover, at

any such hearing each party, including the parents,

must be accorded certain rights, including “the right to

be accompanied and advised by counsel and by indi-

viduals with special knowledge or training with respect

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

1415(h)(1).

2. Petitioners Arons and Watson are non-lawyers

who have “special knowledge or training with respect

to the problems of children with disabilities” within the

meaning of Section 1415(h)(1). Pet. App. A55. Each of

them has appeared with and on behalf of the parents of

a disabled child in at least one IDEA “due process

hearing” conducted by the Delaware Department of

Public Instruction. Jd. at A2-A3, A49.

105-17, Tit. I, § 101, 111 Stat. 37. Unless otherwise indicated, ref-

erences in this brief are to the Act as set out in the 1999 Supple-

ment to the United States Code.

3

Such hearings are held before a three-person panel,

chaired by an attorney licensed to practice law in

Delaware and including an “educator knowledgeable in

the field of special education and special educational

programming” and a “lay person with demonstrated

interest in the education of the handicapped.” Del.

Code Ann. tit. 14, § 3137(d)(1)-(3) (1999); see Pet. App.

A46. The parties are parents, .the local school board,

and the State Department of Public Instruction. The

matters at issue “typically involve complex factual

questions relating to the unique learning needs of the

disabled child[,] * * * the adequacy and accuracy of

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

the child’s problem, and the remedial measures needed

to address the child’s disability.” Jd. at A47. Fact

witnesses typically include school officials such as

teachers, counselors, and principals, and expert wit-

nesses include neurologists, psychiatrists, psycholo-

gists, physicians, and others with special knowledge of |

educational and developmental matters. Jd. at A47-

A48.

At the hearings that gave rise to this litigation, the

local school boards and the Delaware Department of

Public Instruction were represented by legal counsel.

Pet. App. A46. In each case, parents of a disabled child

sought assistance from petitioners because they could

not find a lawyer who was willing to handle their case

for a fee they could afford to pay. Jd. at A49-A51.

Petitioners accompanied these parents to the IDEA

hearings and, on their behalf, “made statements, exam-

ined and cross-examined witnesses, raised objections,

proffered records and exhibits, and submitted briefs

and other documents to the panel.” Jd. at A49. With-

out petitioners’ assistance, none of the parents would

4

have invoked the right to an IDEA hearing. Jd. at A50;

see id. at A50-A51.

3. In August 1996, the Delaware Office of Discipli-

nary Counsel initiated a proceeding before the Board on

the Unauthorized Practice of Law of the Supreme

Court of Delaware (the Board), challenging petitioners’

practice of representing parents at IDEA hearings.

Pet. App. Al6. After briefing and argument on stipu-

lated facts, the Board concluded that such representa-

tion constituted the practice of law, and that it was

unauthorized if performed by persons, like petitioners,

who were not admitted to the Delaware bar. See 7d. at

A23-A42.

The Board rejected petitioners’ argument that their

activities were not “unauthorized” under state law

because the IDEA supplies federal authorization for

qualified non-lawyers to represent parents at IDEA

hearings. First, the Board noted the state Supreme

Court’s traditional jurisdiction over the practice of law

within the State. Pet. App. A24-A27. Turning to the

language of Section 1415(h)(1), the Board distinguished

the Act’s provision that parents may be “accompanied

and advised” by “individuals with special knowledge or

training” from provisions in other statutes that, in the

Board’s view, used terms such as “agent” or “repre-

sentative” to express an “inten[tion] to allow represen-

tation of parties by nonlawyers in administrative or

other proceedings.” Jd. at A27 (emphasis added).

The Board concluded that the “plain language” of

Section 1415(h)(1) does not authorize lay representa-

tion, because Congress “used words—‘accompanied and

advised’—which do not ordinarily convey the concept of

representation.” Jd. at A28.

The Board found support for that conclusion in the

Act’s legislative history, noting a comment in the

5

Senate Conference Report that a party has a “right to

counsel and to be advised and accompanied by individu-

als with special knowledge, training or skills with

respect to the problems of handicapped children.” Pet.

App. A29 (quoting S. Conf. Rep. No. 455, 94th Cong.,

Ist Sess. (1975)). In the Board’s view, that language

“confirm[ed] the clear distinction between the repre-

sentational role of counsel and the advisory role of

nonlawyers.” Jbid. The Board also drew support from

the reasoning of the Third Circuit in Arons v. New

Jersey State Board of Education, 842 F.2d 58, cert.

denied, 488 U.S. 942 (1988), which upheld a scheme

under which New Jersey permitted certain non-lawyers

to represent parents at IDEA hearings, but prohibited

non-lawyers from receiving fees for such representa-

tion. See Pet. App. A29-A31.

The Board refused to defer to the contrary position of

the United States Department of Education, set out in

a 1981 opinion letter. Pet. App. A31-A35; see App.,

infra, 1a-12a (reprinting opinion letter). The Board

first reasoned that there was no room for deference

because “[t]he usage of the phrase ‘accompanied and

advised’ rather then the term ‘represented’ or words of

similar import,” in the context of Section 1415(h)(1),

established unambiguously that “Congress did not

intend to mandate a right to lay representation.” Pet.

App. A82-A83. In any event, the Board concluded that

the position adopted by the Secretary of Education was

not a “‘reasonable’ administrative interpretation,” 7d. at

A33, because the Secretary “overlooked the inherent

and presumptive representational authority with which

counsel are cloaked,” and which “nonlawyers simply do

not share,” id. at A34; relied on different legislative

history from that found persuasive by the Board, 7d. at

A34-A35; and drew a conclusion different from that

6

drawn by the Board from the fact that Congress had

authorized lay representation in various other admini-

strative proceedings, id. at A35.

Finally, the Board rejected petitioners’ related argu-

ment that the Delaware prohibition on lay representa-

tion was preempted by virtue of a conflict with federal

law. Pet. App. A36-A41. The Board noted that “regu-

lation of the practice of law is a traditional State

function,” and reasoned that it could “find preemption

of this area * * * only if [it could] conclude that

preemption was the ‘manifest intent’ of Congress.” Jd.

at A38-A39; see also id. at A387. Based on its statutory

analysis, the Board perceived no actual conflict between

the Delaware rule and Section 1415(h)(1). Jd. at A39.

The Board did “recognize the force of [petitioners’]

contention that representation of families of children

with disabilities by laypersons * * * could serve the

accomplishment of the full objectives of Congress under

IDEA,” particularly in light of a record showing that

the families represented by petitioners “were unable to

find attorneys who would agree to represent them on a

standard fee-for-service basis, a low-cost basis or pro

bono.” Jd. at A39-A40. It concluded, however, that

“(t]he absence of a universe of low cost or pro bono

attorneys willing to take on [IDEA] cases” did not

“demonstrate that the purpose and objectives of Con-

gress are impeded by the [State’s] traditional prohibi-

tion of legal representation of parties by persons

untrained in the law.” Jd. at A40.

4. The Supreme Court of Delaware affirmed. Pet.

App. Al-Al5. At the outset, the court rejected the

parties’ respective contentions that the plain language

of Section 1415(h)(1) compelled resolution of the pre-

emption issue one way or the other. Jd. at A5-A6. The

court concluded, to the contrary, that the statutory

7

provision “is ambiguous to the extent it appears to

confer joint authority on lawyers and non-lawyers to

accompany and advise parents” in IDEA “due process”

hearings. Jd. at A6.

In interpreting that ambiguous provision, the court

looked first to the Third Circuit’s opinion in Arons v.

New Jersey State Board of Education, supra. Pet.

App. A6-A8. It quoted with approval the Third Cir-

cuit’s observations that the IDEA does not specifically

refer to lay advocates presenting evidence or perform-

ing other specific representational functions, that it

does not use the word “represent,” and that the court of

appeals’ “search through the legislative history ha[d]

failed to uncover any indication that Congress contem-

plated that the ‘individuals with special knowledge’

[referred to in the Act] would act in a representative

capacity.” Id. at A6-A7 (quoting Arons, 842 F.2d at 62-

63).

Turning to federal legislative materials, the Supreme

Court noted a Senate Report that described the lay

advocate’s role as one of “consultation,” which the court

regarded as “compelling evidence that Congress did not

intend non-lawyers to advocate on behalf of parents in

due process hearings.” Pet. App. A8. The court con-

cluded that statements in a Conference Report and in

floor debate, to the effect that parents would have “‘the

right to counsel and to be advised and accompanied by

individuals with special knowledge,’” “confirm[ed] the

clear distinction that Congress envisioned between the

representational role of counsel and the advisory role of

non-lawyers.” Jbid. (in part quoting S. Conf. Rep. No.

455, supra, and 121 Cong. Rec. 37,416 (1975) (statement

of Sen. Williams)).

The court adverted to Congress’s later amendment of

Section 1415(b)(7) to require that notice of an IDEA

8

complaint be given by “the parent of a child with a .

disability, or the attorney representing the child,”

which the court believed provided further support for

the argument that the Act does not contemplate lay

representation of parents at IDEA hearings. Pet. App.

A8-A9. It noted also that Congress had not amended

the Act in response to the Third Circuit’s decision in

Arons. Id. at A9. In addition, the court agreed with the

Board that Congress’s “explicit{] inclu[sion of] lan-

guage in other federal statutes to permit lay represen-

tation” showed that Congress “knows how to provide

such authority when it wishes to do so,” and “strongly

suggests that Congress chose not to create a right to

lay representation in [IDEA] due process hearings.”

Ibid.

The Supreme Court acknowledged (Pet. App. A10-

All) that it owed “some level of deference” to the

interpretation of Section 1415(h)(1) adopted by the

Secretary of Education, as set out both in the 1981

opinion letter and in an amicus curiae brief filed with

the court in this case (see id. at A5). In the court’s

view, however, the degree of deference required was

“modest,” because deference was “due only to a ‘reason-

able’ administrative interpretation,” and because “less

deference is due to informal agency interpretations,

such as that expressed in the [1981 opinion] letter, than

to formal agency regulations adopted after a notice and

comment period.” Jd. at All. In any event, although it

never actually declared that the Secretary’s interpreta-

tion was incorrect or unreasonable, the court did not

defer to that interpretation. Observing, instead, that

the Secretary’s analysis was “subject to criticism”

(ibid.), the court concluded that “the language of section

1415(h)(1) cannot be interpreted as granting any clear

right to lay representation.” Jd. at Al5. Because that

conclusion, in the court’s view, “render[ed] moot [peti-

tioners’] claim that the IDEA preempts any state-law

proscription against the unauthorized practice of law,”

the court affirmed the Board’s decision that petitioners

must cease and desist from representing the parents of

children with disabilities at IDEA hearings. Jbid.

Finally, the Supreme Court addressed (Pet. App.

A12-A15) an argument, advanced by petitioners in that

court, that in view of the apparent lack of affordable

legal representation available to parents in IDEA

administrative proceedings, “due process would be

violated by forbidding parents from having non-lawyer

representation” (id. at Al2). In rejecting that conten-

tion, the court indicated that it was not persuaded on

the record before it that denial of lay representation

would deprive many parents of “the only assistance

available to them” in IDEA hearings. Jd. at Al4. The

court observed, however, that “[{iJf it could be demon-

strated that an unmet need exists and that the local bar

could not adequately respond, th{e] Court would con-

sider the adoption of a rule allowing lay representation

in a certain limited class of cases.” Jd. at A15.

DISCUSSION

1. The IDEA was enacted “to ensure that all chil-

dren with disabilities have available to them a free ap-

propriate public education,” and in that process “to en-

sure that the rights of children with disabilities and

parents of such children are protected.” 20 U.S.C.

1400(d)(1)(A)-(B). Although the Act is built on a coop-

erative model that “emphasizes the participation of the

parents in developing the child’s educational program

and assessing its effectiveness,” Congress “recogniz[ed]

that this cooperative approach would not always pro-

duce a consensus between the school officials and the

10

parents, and that in any disputes the school officials

would have a natural advantage.” Burlington Sch.

Comm. v. Massachusetts Dep’t of Educ., 471 U.S. 359,

368 (1985). Accordingly, in framing the Act, “Congress

incorporated an elaborate set of * * * ‘procedural

safeguards’ to insure the full participation of the par-

ents and proper resolution of substantive disagree-

ments.” Ibid.; see also, e.g., Hendrick Hudson Dist. Bd.

of Educ. v. Rowley, 458 U.S. 176, 205-206 (1982) (“It

seems to us no exaggeration to say that Congress

placed every bit as much emphasis upon compliance

with procedures giving parents and guardians a large

measure of participation at every stage of the adminis-

trative process * * * as it did upon the measurement

of the resulting [individualized educational program]

against a substantive standard.”).

IDEA “due process” hearings of the sort at issue

here are a critical component of the Act’s “procedural

safeguards.” See Burlington, 471 U.S. at 369. The Act

provides that, at such hearings, the parents of a

disabled child have “the right to be accompanied and

advised by counsel and by individuals with special

knowledge or training with respect to the problems of

children with disabilities.” 20 U.S.C. 1415(h)(1). Since

1981, the Secretary of Education has interpreted that

language to require States that receive funds under the

IDEA to allow qualified non-lawyers to represent

parents at IDEA due process hearings. See App.,

infra, la-12a.

As amicus curiae in the Delaware Supreme Court,

the United States argued that the IDEA’s language

and structure support the Secretary’s position. See

U.S. Amicus Br. 15-24; cf. Pet. App. A6. In conferring

on parents the right to be “accompanied and advised” at

such hearings, Section 1415(h)(1) applies those terms

11

equally to “counsel” and to “individuals with special

knowledge or training” in the area. There is, moreover,

no dispute that the Act authorizes parents to represent

themselves (according them, for example, the right to

“present evidence and confront [and] cross-examine

* * * witnesses,” 20 U.S.C. 1415(h)(2)), and that it

authorizes lay experts to “accompan[y]” parents to such

hearings and to “advise[]” them step-by-step on how to

proceed. In view of those provisions, it makes little

sense to read the Act to permit participating States to

require parents who do not have a lawyer to use “a

clearly wasteful, time-consuming, and imprecise pro-

cess whereby the expert’s questions and evidence are

funneled through parents” acting pro se, simply

because the Act uses the word “advised” rather than

the word “represented.” U.S. Amicus Br. 4; see Pet.

App. A6-A7.

The Delaware Suprere Court focused on lawyers’

traditional role in providing “representation” in adver-

sary proceedings, and posited a “clear distinction that

Congress envisioned between the representational role

of counsel and the advisory role of non-lawyers.” Pet.

App. A8; see id. at A3-A4, A6-A9. Lawyers, however,

also traditionally “accompan[y] and advise[]” (or pro-

vide “counsel”) to their clients, in both adversary and

non-adversary settings. The court did not suggest that

petitioners would be engaging in the unauthorized

practice of law if they provided parents with detailed

advice concerning their rights under the IDEA and the

procedures available for protecting those rights, or if

they assisted parents in negotiating with school officials

concerning what types of assistance would be

appropriate for theiz disabled children. Yet such advice

or assistance might equally, and perhaps more tradi-

tionally, be provided by a lawyer. The terms used in

12

Section 1415(h)(1) do not by themselves readily |

communicate any “clear distinction” in roles between

lawyer and non-lawyer “advise[rs].”

Indeed, the Supreme Court of Delaware acknowl-

edged that the language of the IDEA was at least

“ambiguous” in this regard. Pet. App. A6 (noting that

the Act “appears to confer joint authority on lawyers

and non-lawyers to accompany and advise parents

* * * [at] due process hearings”). The court also

acknowledged that, in view of that ambiguity, it owed

at least “some level of deference” to the Secretary of

Education’s interpretation of the Act. Jd. at A10-A11

(citing Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 848-845 (1984)). In

fact, however, the court neither deferred to the

Secretary’s interpretation, nor explained why that

interpretation was not “a permissible construction of

the statute.” 467 U.S. at 843. The court’s summary

analysis (Pet. App. All-A12) and its observation that

the Secretary’s position is “subject to criticism” (zd. at

All) do not adequately justify the court’s decision,

which effectively “substitute[s] its own construction of

a statutory provision for a reasonable interpretation

made by the [Secretary].” Chevron, 467 U.S. at 844.

2 See Chevron, 467 U.S. at 843 n.11 (“The court need not con-

clude that the agency construction was the only one it permissibly

could have adopted * * *, or even the reading the court would

have reached if the question initially had arisen in a judicial

proceeding.”); see also, e.g., Your Home Visiting Nurse Servs., Inc.

v. Shalala, 525 U.S. 449, 453 (1999) (deference to Secretary’s

reading of statutory provision is required where the construction

is “within the bounds of reasonable interpretation”); Auer v.

Robbins, 519 U.S. 452, 462 (1997) (deferring to agency’s interpreta-

tion of its regulation, expressed in legal brief); NationsBank of

N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251 (1995)

13

2. Nonetheless, the question of federal authorization

of lay representation in IDEA hearings does not

warrant this Court’s review at the present time.

a. The Delaware Supreme Court is the first court to

have squarely addressed whether Section 1415(h)(1)

creates a federal right of lay representation at IDEA

hearings. While two federal courts of appeals have

touched on the question, in each case the issue pre-

sented was not whether federal law compels a state to

permit a lay representative to appear in an IDEA

hearing, but whether, if such a representative appears,

federal law authorizes an award of attorney’s fees.

Thus, in Z.A. v. San Bruno Park School District, 165

F.3d 1273 (9th Cir. 1999), the court noted (id. at 1275-

1276), in passing, that a lawyer not admitted to the bar

in California “could only appear at [a California IDEA]

hearing in a nonlawyer advisor capacity,” citing both

20 U.S.C. 1415(d)(1) (1994) (now Section 1415(h)(1))

and an identically worded provision of the California

Education Code. However, the issue before the court

was “whether a lawyer who prevails in a state admini-

strative proceeding must be admitted to the [state] bar

in order to collect attorney’s fees under the IDEA,” 165

F.3d at 1275, and the court held (id. at 1276) that

admission was required in order to collect such fees.

Likewise, the Third Circuit’s decision in Arons v.

New Jersey State Board of Education, 842 F.2d 58, 61-

63, cert. denied, 488 U.S. 942 (1988), involved only the

availability of attorney’s fees, because state law

(deferring to statutory interpretation advanced in letter granting

Comptroller of the Currency’s permission for bank to engage in

certain activities); but see Christensen v. Harris County, 529 U.S.

576, 586-588 (2000) (declining to accord full Chevron deference to

interpretation set out in agency opinion letter).

14

expressly permitted lay representation. See id. at 60,

62.° In any event, to the extent the Arons opinion

included language relevant to the question of whether

Section 1415(h)(1) authorizes lay representation (as

opposed to mandating payment for such representa-

tion), the Third Circuit’s analysis was consistent with

that of the Delaware Supreme Court in this case. See

Pet. App. A6-A7 (quoting and relying on Arons), A9.

Accordingly, the Delaware Supreme Court’s decision

does not create any judicial conflict that requires

resolution by this Court.‘

3 It appears that Arons’ statements that state law authorized

lay representation may have been over-simplified. A later district

court decision notes that at the time Arons was decided, New

Jersey permitted lay representation only on the theory that it. was

“required by federal statute or regulation.” Woods v. New Jersey

Dep’t of Educ., 858 F. Supp. 51, 53 n.4 (D.N.J. 1993). Woods also

explains, however, that after Arons the applicable state court rules

were amended specifically to permit lay representation in IDEA

hearings, even in the absence of any federal mandate to that effect.

Ibid. In any event, the Third Circuit’s analysis in Arons proceeded

from the premise that state law authorized lay representation

without regard to federal law. See also Connors v. Mills, 34 F.

Supp.2d 795, 806-808 (N.D.N.Y. 1998) (concluding that New York

law provides for lay advocacy at IDEA hearings, but rejecting

payment of attorney’s fees to non-lawyers “[iJn the absence of

affirmative state action in promulgating regulations that govern

the training and conduct of lay advocates”).

4 Cf. Collingsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 230-

237 (3d Cir. 1998) (although the IDEA gives parents themselves

the right to represent their children in administrative hearings, it

confers no right to proceed in federal court without a lawyer);

Devine v. Indian River County Sch. Bd., 121 F.3d 576, 581-582

(11th Cir. 1997) (same), cert. denied, 522 U.S. 1110 (1998); Doe v.

Board of Educ., 165 F.3d 260 (4th Cir. 1998) (refusing to award

fees to attorney parent who represented child in court proceeding

under the IDEA), cert. denied, 526 U.S. 1159 (1999).

15

b. The practical significance of this case is not yet

clear. The Delaware Supreme Court’s decision applies,

of course, only in that State, and petitioners represent

(Reply Br. 3) that all other States have, at least until

now, permitted non-lawyer representation at IDEA

hearings. Unless other States decide both to follow

Delaware’s lead as a matter of state law and to adopt its

interpretation of federal law, the decision in this case

will have little national significance.

Within Delaware itself, the issue of lay representa-

tion at IDEA hearings is likely to arise in only a small

number of cases. The State’s IDEA program provided

benefits to over 16,000 children and young adults (ages

3-21) in the 1998-1999 school year. U.S. Dep’t of Educ.,

Twenty-Second Annual Report to Congress on the

Implementation of the Individuals with Disabilities

Education Act Al (Table AA1) (2000). The Delaware

Department of Education informs us, however, that in a

seven-year period from 1989 through 1996—the year

that unauthorized practice proceedings were com-

menced against petitioners, see Pet. App. A43—the

State received, on average, between eight and nine

requests for IDEA hearings each year, and a hearing

was ultimately required in an average of only three

such cases per year. Those figures are open to inter-

pretation: The small number of requested hearings

could reflect the inadequacy of the representation

available to aggrieved families, as much as or rather

than the successful functioning of the Act’s ideally

“cooperative approach.” Burlington, 471 U.S. at 368;

see Pet. App. A50-A51. Nonetheless, they suggest that

the practical problem created by the state Supreme

Court’s decision is, for the moment, limited in scope.

Where a hearing is held, moreover, the Delaware

Supreme Court’s decision does not purport to preclude

16

qualified non-lawyers from accompanying parents and

providing them with advice and guidance. It prohibits

them only from engaging directly in the sort of specific

representational activities—such as “making opening

statements, examining and cross-examining witnesses,

[and] making and arguing evidentiary objections,” Pet.

App. A23 (Board opinion), A49 (stipulation)—that the

State has determined constitute the practice of law. Cf.

id. at A8 (distinguishing between consultation or advice

and advocacy or representation). While indirect

assistance will never be an ideal way to help parents

protect their own and their children’s interests, it will

sometimes suffice.

Finally, the Supreme Court’s opinion indicates that

the court is prepared to consider whether existing

mechanisms are sufficient to meet the need for

representation on behalf of children with disabilities

and their parents. See Pet. App. A13-A15; see also id.

at A41 (Board’s opinion) (“(Petitioners] and [the state

Office of Disciplinary Counsel] agree that [nonlawyer

representation] is an issue that should be addressed,

but it must be addressed to the proper body with rule-

making authority[.]”). This case was argued and de-

cided on the basis of stipulated facts. See id. at A43-

A57 (stipulation and amendment). Although the stipu-

lation identifies only one legal services organization

that has provided counsel at IDEA hearings, id. at A55,

and strongly suggests that there is an unmet need for

free or low-cost representation at such hearings, see id.

at A49-A51, the Supreme Court concluded that the

record before it did not support petitioners’ contention

that the court’s decision concerning lay representation

would deny “parents and children * * * ‘the only

assistance available to them.’” Jd. at Al4.

17

The court expressly stated, however, that “[iJf it

could be demonstrated that an unmet need exists and

that the local bar could not adequately respond, th[e]

Court would consider the adoption of a rule allowing lay

representation” in appropriate cases. Pet. App. Alb.

Accordingly, to the extent the Delaware Supreme

Court’s decision does have an adverse practical effect in

Delaware, the court has indicated a willingness to

reconsider its decision. It is possible, therefore, that

Delaware will, in the reasonably near term, either

provide for the availability of free or low-cost legal

assistance with IDEA hearings, or bring its law back

into conformity with that of other States by adopting an

appropriate express exception to its present legal

practice rules. Cf., ¢.g., Woods v. New Jersey Dep’t of

Educ., 858 F. Supp. 51, 58 n.4 (D.N.J. 1993) (discussed

in note 3, supra). In this respect as in those discussed

above, review of the question presented in this case

would be premature.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

BARBARA D. UNDERWOOD

Acting Solicitor General

WILLIAM R. YEOMANS

Acting Assistant Attorney

General

PAUL D. CLEMENT

Deputy Solicitor General

EDWARD C. DUMONT

Assistant to the Solicitor

General

MARK L. GROSS

LISA J. STARK

Attorneys

May 2001

APPENDIX

{seal omitted]

U.S. DEPARTMENT OF EDUCATION

WASHINGTON, D.C. 20202

April 8, 1981

OFFICE OF THE

GENERAL COUNSEL

The Honorable Frank B. Brouillet

Superintendent of Public Instruction

7510 Armstrong Street, S.W.

Tumwater, Washington 98504

Dear Superintendent Brouillet:

Pursuant to Mr. Steven Minter’s letter of November

5, 1980 to you, this letter provides a legal analysis

regarding the role of lay advocates in educational

agency administrative hearings and appeals conducted

under Part B of the Education of the Handicapped Act,

as amended, 20 U.S.C. 1411 et seg. (EHA).

(1a)

2a

I. AS A CONDITION FOR FUNDING UNDER THE

EHA A STATE MUST COMPLY WITH FEDERAL

REQUIREMENTS

The EHA authorizes federal financial assistance to

states meeting the conditions set forth in the Act. 20

U.S.C. 1411, 1412, 1420. Each state must submit for

federal approval a plan for the operation of the program

within the state which indicates that the program is

being administered in accordance with the applicable

statutory and regulatory requirements. 20 U.S.C. 1413.

See also 34 C.F.R. 300.110; 300.111. Once a state

chooses to participate and receive financial assistance,

the state must comply with the provisions of the EHA —

and its implementing regulations, 34 C.F.R. Part 300.

As the Third Circuit Court of Appeals stated in Battle

v. Commonwealth of Pennsylvania, 629 F.2d 269,

272 (8rd. Cir. 1980) the EHA “establishes a program of

cooperative federalism which sets requirements which

must be complied within order for states to receive

financial assistance.” The principle that acceptance of

assistance under a grant program obligates a state to

meet the requirements of the enabling federal statute

even where state law, regulation or policy provides

otherwise is firmly established.

In King v. Smith, 392 U.S. 309 (1968), the Supreme

Court, in discussing the AFDC program, stated:

There is of course no question that the Federal

Government, unless barred by some controlling con-

stitutional prohibition, may impose the terms and

conditions upon which its money allotments to the

States shall be disbursed, and that any state law or

regulation inconsistent with such federal terms and

3a

conditions is to that extent invalid. 392 U.S. 333,

note 34.

See also Rosado v. Wyman, 397 U.S. 397, 421-423 (1970)

and Van Lare v. Hurley, 421 U.S. 338, 340 (1975)

(“states that seek to qualify for AFDC funding must

operate a program not in conflict with the Social

Security Act”). Townsend v. Swank, 404 U.S. 282, 286

(1971) establishes that “a state eligibility standard that

excludes persons eligible for assistance under federal

AFDC standards violates the Social Security Act and is

therefore invalid under the Supremacy Clause.” See

also Carleson v. Remillard, 406 U.S. 598, 600-601 (1972)

and Miller v. Youakim, 440 U.S. 125, 182 (1979) (a state

foster case scheme inconsistent with the Social Security

Act is invalid under the Supremacy Clause).°

The principles enunciated above are equally appli-

cable to the EHA financial assistance program. In find-

ing state due process procedures inconsistent with the

guarantees of 20 U.S.C. 1415 the court in Monahan v.

Nebraska, 491 F. Supp. 1074 (D. Neb. 1980) stated:

The Education of All Handicapped Children Act

provides specific procedural safeguards which must

be adopted by states receiving funds under the Act.

These safeguards govern educational proceedings in

5 Several other courts have stated that Congress may condition

the grant of federal monies upon a state’s fulfillment of federal re-

quirements, and that once a state elects to participate, it must

meet such requirements. Page v. Preisser, 585 F.2d 336, 341 (8th

Cir. 1978); Bourgeois v. Stevens, 532 F.2d 799, 802 (1st Cir. 1976);

Florida v. Mathews, 526 F.2d 319, 326 (5th Cir. 1976); Connecticut

State Department of Public Welfare v. Department of Health,

Education and Welfare, Social and Rehabilitation Service, 448

F.2d 209, 215 (2nd Cir. 1971).

4a

Nebraska, since it is a recipient of funds under the

Act. Thus, any Nebraska law which is inconsistent

with these federally mandated procedures is super-

seded by the federal law. 491 F. Supp. 1091.

In Vogel v. School Board of Montrose R-14 School

District, 491 F. Supp. 989, 993 (W.D. Mo. 1980) the

court held that “whenever a conflict exists between the

procedural safeguards mandated by 20 U.S.C. § 1415

and state law the applicable federal law is controlling.”

See also Stuart v. Nappi, 443 F. Supp. 1235 (D. Conn.

1978).

Il. A STATE THAT FAILS TO MEET EHA RE-

QUIREMENTS MAY BE DISQUALIFIED FROM

RECEIVING FEDERAL FINANCIAL ASSIS-

TANCE

Under 20 U.S.C. 1413(c) the Secretary of Education

is required to approve a state plan which meets the

requirements of 20 U.S.C. 1413(a) and (b) and which is

submitted. by a state eligible in accordance with 20

U.S.C. 1412. A state plan not meeting these criteria

must be disapproved, and in such an instance federal

grant money would not forthcoming.

In addition, failure by a state educational agency to

comply substantially with 20 U.S.C. 1412 may result in

withholding of federal financial assistance. 20 U.S.C.

1416.

Section 1412(5) of Title 20, United States Code,

requires that in order to qualify for financial assistance

a state must demonstrate that it “has established .. .

procedural safeguards as required by section 1415... .”

See also 34 C.F.R. 300.131. Section 1415(d)(1) provides

that in administrative due process hearings and appeals

conducted pursuant to the EHA any party shall be

ba ‘

accorded “the right to be accompanied and advised by

counsel and by individuals with special knowledge or

training with respect to the problems of handicapped

children ... . Consequently, a state’s compliance with 20

U.S.C. 1415(d)(1) is a condition to its oe of EHA

assistance.

Ill. THE REQUIREMENT OF 20 U.S.C. 1415(d)(1)

The remaining issue concerns the meaning of the

requirement that a party to an educational agency ad-

ministrative hearing or appeal be accorded “the right to

be accompanied and advised by counsel and by in-

dividuals with special knowledge or training with

respect to the problems of handicapped children.” 20,

U.S.C. 1415(d)(1).° See also 34 C.F.R. 300.508(a)(1).

In considering this issue, we have examined what we

understand to be your argument that Congress did not

intend to permit actual representation by lay advocates

at due process hearings. As we understand it, this

argument relies on a sentence in the Conference Report

accompanying P.L. 94-142 stating that in administrative

due process hearings a party shall be “accorded (1) the

6 Satisfying the 42 U.S.C. 1415(d)(1) requirement would render

a state in compliance with the due process requirement of Section

504 of the Rehabilitation Act of 1978, as amended, 29 U.S.C. 794.

Section 504 is a broadly-phrased statute prohibiting discrimination

on the basis of handicap in programs or activities receiving federal

financial assistance. The regulations implementing Section 504

mandate that recipients operating a public elementary or secon-

dary education program establish and implement a system of pro-

cedural safeguards for handicapped persons including an impartial

hearing with opportunity for participation by the person’s parents

and representation by counsel. The regulation goes on to indicate,

however, that “compliance with the procedural safeguards of

section 615 of the Education of the Handicapped Act is one means

of meeting this requirement.” 34 C.F.R. 104.36.

6a

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. REP. NO. 455, 94th Cong., Ist Sess.

49 (1975) reprinted in (1975) U.S. CODE CONG. & AD.

NEWS, 1425, 1503 (see page 9 of Declaratory Ruling 1-

80, issued June 5, 1980 and later rescinded). In

addition, your August 19, 1980, letter to Secretary

Hufstedler, when read in conjunction with Dr. Martin’s

letter of August 14, 1980, addressed to you, appears to

suggest that the absence of the word “represented” in

the EHA, and the usage of the words “accompanied and

advised”, indicates that the issue of representation was

never addressed by the EHA and consequently is a

matter for state determination.

For the following reasons, we are not persuaded that

this is the correct view of the law, and believe that

under the EHA lay advocates are permitted to repre- —

sent parties at administrative hearings and appeals.

First, the statute does not on its face distinguish

between counsel and persons with “special knowledge

or training” in the field of handicapped children with

respect to their involvement at administrative hear-

ings. No bifurcation of function is set forth in the

statute. It appears clear from the statutory language

alone that Congress contemplated that lay advocates,

aswell as attorneys, be permitted to play a role at such

hearings, and did not distinguish between lawyers and

lay persons in defining that role.

Moreover, we believe the legislative history of

EHA-B supports the proposition that attorneys and lay

advocates may engage in the same activities at admini-

strative hearings and appeals. The quotation from the

P.L. 94-142 Conference Report cited in the Declaratory

7a

Ruling is not unambiguous itself, and the construction

given it in the Declaratory Ruling is not supported by

other legislative history.

Section 1415(d)(1) was included in H.R. 7217 as

passed by the House. 121 CONG. REC. 25547 (1975).’

Congressman Miller of California, largely responsible

for developing the impartial due process provisions

of section 1415 [see 121 CONG. REC. 37025, 37027

(1975)], did not distinguish between the role played

by attorneys or lay advocates but rather stated that

“the complainants will have the right to be accompanied

by counsel or other qualified individuals who possess

‘special knowledge or training with respect to the edu-

cation of handicapped children’,” 121 CONG. REC.

25539 (1975).

Senator Cranston, in complimenting Representative

Miller on his work, noted that the “procedural require-

ments . . . are consistent with the existing California

statutory and master plan requirements on this

subject.” 121 CONG. REC. 37418-9 (1975). Prior to and

during the time P.L. 94-142 was under consideration

and ultimately passed by Congress the California

statute concerning educational services for children

with exceptional needs provided that parents dis-

agreeing with the findings of local educational assessors

regarding placement or services offered to the child had

the right to request a hearing before local educational

authorities. At these hearings the parent had the right

“to represent himself or herself, or to select a repre-

7 The Senate predecessor to P.L. 94-142, S.6, as passed by the

Senate, 121 CONG. REC. 19506, 19508 (1975) did not contain a

comparable provision. Technically, the House passed S.6 but

struck all but the enacting clause of S.6 and inserted the provisions

of H.R. 7217.

8a

sentative . . . .” See Assembly Bill No. 4040, Chapter

1532, Section 7022.2(c), filed with California Secretary

of State, September 27, 1974." There was no require-

ment that the representative be an attorney, nor were

any functions reserved to attorneys at such hearings.

We have consulted with the legal office of the California

state educational agency and that office confirms that

lay advocates represented parents in hearings prior to

the passage of P.L. 94-142.

Finally, the House Report accompanying H.R. 7217,

H. REP. NO. 332, 94th Cong., lst Sess. 32 (1975), makes

no mention of the right to counsel but simply states that

persons participating in due process hearings “may be

accompanied and advised by counsel and by individuals

with special knowledge regarding the problems of

handicapped children.” -

In light of the above, and in the absence of any

evidence that the Congress intended to limit the role of

lay advocates at administrative hearings and appeals

conducted pursuant to the requirements of EHA-B, we

believe that attorneys and lay advocates may perform

the same functions at such hearings.

Provision for lay advocates in federal regulation is

not unprecedented. Lay advocates are permitted to

represent parties at several! different kind of federally

mandated administrative hearings conducted by state

or local authorities. For example, under the Food

Stamp Program an aggrieved household entitled to a

fair hearing at the state and local level may “present

the case or have it presented by a legal counsel or other

person.” 7 C.F.R. 273.15(p)(2). A state plan under Title

8 Parents were also permitted access to school records, the

right to present evidence, and the right to call witnesses.

9a

I, IV-A, X, XIV or XVI of the Social Security Act must

provide for hearings at the state or local level at which

an applicant or recipient “may be represented by an

authorized representative, such as legal counsel,

relative, friend, or other spokesman . . .” 45 C.F.R.

205.10(a)(3)(iii). Representation by lay advocates at

federal hearings is commonplace.”

9 A party to a proceeding before the .vcial Security Admini-

stration to determine eligibility for Old Age, Survivors, or Dis-

ability Insurance is afforded the opportunity to be represented by

an attorney or another individual qualified under the regulations to

act as a representative. 20 C.F.R. 404.971, 972. Regulations

implementing the Supplemental Security Income for the Aged,

Blind and Disabled and Medicare programs expressly give a

claimant the right to “appoint as his representative” in federal

administrative proceedings either an attorney or a person other

than an attorney qualified under the regulations. 20 C.F.R.

416.1501, 1503; 42 C.F.R. 405.870, 871. Under 20 C.F.R. 410.684,

685 the same is true in Social Security Administration hearings

conducted to determine entitlement to benefits under Part B of

Title IV of the Federal Coal Mine Health and Safety Act of 1969,

as amended. The Employment Standards Administration of the

Department of Labor permits representation by attorneys or non-

attorneys at hearings conducted pursuant to the Longshoremen’s

And Harbor Workers’ Compensation Act and Part C of Title IV of

the Federal Mine Safety and Health Act, as amended. 20 C.F.R.

702.131, 334; 20 C.F.R. 725.362, 363. In none of the administrative

hearings described above is any distinction made between the role

played by attorneys or non-attorneys. 20 C.F.R. 404.973; 20 C.F.R.

416.1505; 42 C.F.R. 405.872; 20 C.F.R. 410.686; 20 C.F.R. 725.364.

The Veterans Administration “may recognize any individual as an

agent or attorney for the preparation, presentation, and

prosecution of claims under laws administered by the Veterans’

Administration.” 38 U.S.C. 3404(a). See also 38 U.S.C. 3403 and

4005(b)(2), and 38 C.F.R. 14.626-631.

State laws regarding the unauthorized practice of law may not

govern who appears as a representative in such proceedings. See

Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963) in which

10a

While of course each federal grant program admini-

stered by the states must be evaluated according to the

particular statute and regulations under which the

program is authorized, the ‘act that lay representation

before administrative agencies is not an unusual

practice does tend to support the view that Congress

intended to allow such representation at hearings

conducted pursuant to the EHA. There is no reason to

believe that Congress intended to restrict representa-

the state sought to enjoin a non-lawyer authorized by federal

statute to practice before the United States Patent Office from

practicing in Florida because he did not have a law license. The

court rejected Florida’s argument that it had authority to enjoin in

that instance. While noting that under Florida law the preparation

and prosecution of patent applications for others constituted the

practice of law, and that Florida had a substantial interest in

regulating the practice of law within the state, the Supreme Court

held that by virtue of the Supremacy Clause the state law must

yield when incompatible with federal legislation:

A State may not enforce licensing requirements which, though

valid in the absence of federal regulation, give “the State’s

licensing board a virtual power of review over the federal

determination” that a person or agency is qualified and en-

titled to perform certain functions, or which impose upon the

performance of activity sanctioned by federal license additional

conditions not contemplated by Congress. “No State law can

hinder or obstruct the free use of a license granted under an

Act of Congress.” Pennsylvania v. Wheeling & B. Bridge Co.,

13 How. 518, 566. 373 U.S. 385 (footnotes omitted).

The Court stated that Florida could maintain control over the

practice of law within its borders “except to the limited extent

necessary for the accomplishment of the federal objectives” 373

U.S. 402 (footnote omitted), and noted that the authority of

Congress is no less when the State power displaced is exercised by

the state judiciary rather than the state legislature. 373 U.S. 403.

See also Silverman v. State Bar of Texas, 405 F.2d 410 (5th Cir.

1968).

-

lla

tion at EHA hearings and appeals to attorneys, rather

than allowing for the widest possible advocacy.”

The state of Washington may of course regulate the

practice of law within the state but the state’s policy

must not conflict with the EHA if Washington is to

receive funding under the statute. Whether an actual

amendment to state law is necessary in order to allow

representation by lay advocates at administrative

hearings and appeals conducted pursuant to the EHA is

strictly a matter for the state to decide. Our only con-

cern is that WAC 392171-510 appears to prohibit lay

advocates from representing parties at such hearings in

violation of federal requirements.

In reviewing WAC during the preparation of the

analysis we noted that under WAC 1-08-005 each

agency may adopt its own rules of practice and pro-

cedure, including regulating who may appear and

practice before an agency, and further noted that repre-

sentation by lay advocates is in fact permitted before

certain other Washington state agencies. For instance,

in public assistance hearings an appellant may be

“represented, by legal counsel or by a relative, friend or

other spokesman. . . .” WAC 388-08-010, and under

WAC 263-12-020 representation by lay advocates is

permitted at hearings before the Washington Board of

Industrial Insurance Appeals.”

0 In this regard, we deem relevant the fact that there is no

requirement that hearing officers conducting such proceedings be

attorneys. 34 C.F.R. 300.507.

1! According to your own Office’s regulations governing hear-

ings conducted by educational agencies relating to the challenge of

information in records, a parent or adult student “may be-assisted -

or represented by individuals of his or her choice . . . including an

12a

In light of the above, and because it is our under-

standing that the Washington Attorney General’s

Office has not issued a formal opinion on the matter,

you may wish to share this analysis with that Office if

you continue to have reservations about this Depart-

ment’s view of the role of lay advocates in EHA pro-

ceedings. We would be happy to provide any further

assistance you may request, including our views on the

means available to your agency to ensure that lay

advocates are qualified to assist the parents of handi-

capped children, and to ensure that parent advocates

observe reasonable rules of procedure in those pro-

ceedings.

Theodore Sky

Acting General Counsel

By: /s/ BARRY W. STEVENS

BARRY W. STEVENS

Acting Deputy General Counsel

ee: Mr. Ralph Julnes

attorney.” WAC 392-171-585(4). It would appear that lay advo-

cates are permitted to represent parties at such hearings.