Appeal from the United States District Court for the District of New Jersey, D.C. Civil No. 85-0209.
Weis, Higginbotham, and Rosenn, Circuit Judges.
Plaintiff has substantial expertise in the education of handicapped children. Regulations of the State of New Jersey permit her to act as a lay advocate on behalf of parents of handicapped children in administrative hearings to determine the children's appropriate educational placement. The same regulations, however, prohibit her from receiving fees for legal representation in those proceedings. The district court rejected her challenge to that provision and granted summary judgment for defendants. We will affirm.
In 1985, plaintiff brought suit pro se alleging "educational malpractice" against the New Jersey State Board of Education, the New Jersey Department of Education, the Office of Administrative Law, and several state education officials. She added counts asserting libel, misappropriation of her name, tortious interference with her grant applications, as well as a claim seeking compensation for her work as a lay advocate representing parents of handicapped children. The court entered judgment for all defendants on varying grounds. Only the plaintiff's claim for compensation has been appealed.
The mother of two handicapped children, plaintiff has played an active role in New Jersey special education issues since 1976. As a professional educator, she specializes in curriculum development for exceptional children. As a lay advocate, she acts on behalf of parents of handicapped children at administrative hearings conducted by the New Jersey Office of Administrative Law in compliance with the Education for All Handicapped Children Act, 20 U.S.C. §§ 1401-1420 (1976 & 1987 Supp.)
The Act prescribes due process hearings at which parents may contest the appropriateness of the education their handicapped children are receiving. Although the parents may proceed pro se, the Act gives them 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 . . . ." 20 U.S.C. § 1415(d)(1).
Plaintiff is not a lawyer; therefore, she participates in these hearings as an "individual with special knowledge or training." Her performance as a lay advocate is authorized and limited by regulations adopted by the New Jersey Office of Administrative Law, which provides that:
"(a) At a hearing, any party may be accompanied and advised by legal counsel or by individuals with special knowledge or training with respect to handicapped pupils and their educational needs, or both
"(b) A non-lawyer seeking to represent a party shall comply with the application process . . . and shall be bound by the approval procedures, limitations and practice requirements contained [therein] . . ."
N.J.Admin.Code 1:6A-4.2. According to section 4.2(b)(4) of that provision, nonlawyers may not receive a fee for representing a party in administrative proceedings.
In the original complaint, plaintiff sought compensation from the state for her services as a lay advocate at various hearings. In the amended complaint, however, she requested permission to charge the parents fees for her services as would an attorney. She noted that she has spent more than $6,000 per year of her own money to pay expenses incurred in the course of her representation activities. In particular, plaintiff itemized costs of transportation, telephone, heat, and light as well as charges for the purchase of legal materials and research supplies. She argues that she has "done work equal to that of an attorney within the State of New Jersey yet is denied equal pay for that equal work because she is not a member of the New Jersey Bar Association or a graduate of a law school."
The district court acknowledged the plaintiff's considerable efforts as a lay advocate and recognized that she "undoubtedly performs an invaluable service." Nevertheless, the district court held that the Act did not create a right to compensation for lay advocates who are functioning as lawyers by offering and cross-examining witnesses or writing briefs. The New Jersey rule allowing compensation to lawyers but excluding it from lay advocates, in the district court's view, is ...