Constitutional Law Cases: Rehnquist Court: 1990 - 1999
U.S. Supreme Court
Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993)
509 U.S. 1
Zobrest Et Al. v. Catalina Foothills School District
Certiorari to the United States
Court of Appeals for the Ninth Circuit
No. 92-94
Argued February 24, 1993
Decided June 18, 1993
Petitioners, a deaf child and his parents, filed this suit after respondent school
district refused to provide a sign-language interpreter to accompany the child to
classes at a Roman Catholic high school. They alleged that the Individuals with Disabilities
Education Act (IDEA) and the Free Exercise Clause of the First Amendment required
respondent to provide the interpreter, and that the Establishment Clause did not bar
such relief. The District Court granted respondent summary judgment on the ground
that the interpreter would act as a conduit for the child's religious inculcation,
thereby promoting his religious development at government expense in violation of
the Establishment Clause. The Court of Appeals affirmed.
Held:
1. The prudential rule of avoiding constitutional questions if there is a nonconstitutional
ground for decision is inapplicable here, since respondent did not urge upon the District
Court or the Court of Appeals any of the nonconstitutional grounds it now raises in
this Court. Pp. 6-8.
2. The Establishment Clause does not prevent respondent from furnishing a disabled
child enrolled in a sectarian school with a sign-language interpreter in order to
facilitate his education. Government programs that neutrally provide benefits to a
broad class of citizens defined without reference to religion are not readily subject
to an Establishment Clause challenge just because sectarian institutions may also
[509 U.S. 1, 2] receive an attenuated financial benefit. Mueller v. Allen, 463 U.S.
388 ; Witters v. Washington Dept. of Services for Blind, 474 U.S. 481 . The same reasoning
used in Mueller and Witters applies here. The service in this case is part of a general
government program that distributes benefits neutrally to any child qualifying as
disabled under the IDEA, without regard to the sectarian-nonsectarian, or public-nonpublic
nature of the school the child attends. By according parents freedom to select a school
of their choice, the statute ensures that a government-paid interpreter will be present
in a sectarian school only as a result of individual parents' private decisions. Since
the IDEA creates no financial incentive for parents to choose a sectarian school,
an interpreter's presence there cannot be attributed to state decision making. The
fact that a public employee will be physically present in a sectarian school does
not by itself make this the same type of aid that was disapproved in Meek v. Pittenger,
421 U.S. 349 , and School Dist. of Grand Rapids v. Ball, 473 U.S. 373 . In those cases,
the challenged programs gave direct grants of government aid - instructional equipment
and material, teachers, and guidance counselors - which relieved sectarian schools
of costs they otherwise would have borne in educating their students. Here, the child
is the primary beneficiary, and the school receives only an incidental benefit. In
addition, an interpreter, unlike a teacher or guidance counselor, neither adds to
nor subtracts from the sectarian school's environment, but merely interprets whatever
material is presented to the class as a whole. There is no absolute bar to the placing
of a public employee in a sectarian school. Pp. 8-14.
963 F.2d 1190, reversed.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, SCALIA, KENNEDY,
and THOMAS, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which SOUTER,
J., joined, and in which STEVENS and O'CONNOR, JJ., joined as to Part I, post, p.
14. O'CONNOR, J., filed a dissenting opinion, in which STEVENS, J., joined, post,
p. 24.
William Bentley Ball argued the cause for petitioners. With him on the briefs was
Thomas J. Berning.
Acting Solicitor General Bryson argued the cause for the United States as amicus
curiae urging reversal. On the brief were Solicitor General Starr, Assistant Attorney
General Gerson, Deputy Solicitor General Roberts, Ronald J. Mann, Jeffrey C. Martin,
and Susan Craig. [509 U.S. 1, 3]
John C. Richardson argued the cause for respondent. With him on the brief was Gary
F. Urman. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for the Alexander
Graham Bell Association for the Deaf by Bonnie P. Tucker; for the American Jewish
Congress et al. by Marc D. Stern, Lois C. Waldman, Oliver S. Thomas, and J. Brent
Walker; for the Christian Legal Society et al. by Michael W. McConnell, Steven T.
McFarland, and Bradley P. Jacob; for the Deaf Community Center, Inc., by Jay Alan
Sekulow, James M. Henderson, Sr., Mark N. Troobnick, Jordan W. Lorence, Keith A. Fournier,
John G. Stepanovich, Thomas Patrick Monaghan, and Walter M. Weber; for United States
Catholic Conference by Mark E. Chopko, John A. Liekweg, and Phillip H. Harris; for
the Institute for Justice by William H. Mellor III and Clint Bolick; and for the National
Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties
Union et al. by Bradley S. Phillips, Steven R. Shapiro, John A. Powell, Steven K.
Green, Steven M. Freeman, and Samuel Rabinove; for the Arizona School Boards Association,
Inc., by Robert J. DuComb, Jr.; for the Council on Religious Freedom by Lee Boothby,
Robert W. Nixon, Walter E. Carson, and Rolland Truman; for the National School Boards
Association by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon;
and for the National Committee for Public Education and Religious Liberty et al. by
David B. Isbell, T. Jeremy Gunn, and Elliot M. Mincberg.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner James Zobrest, who has been deaf since birth, asked respondent school
district to provide a sign-language interpreter to accompany him to classes at a Roman
Catholic high school in Tucson, Arizona, pursuant to the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. 1400 et seq., and its Arizona counterpart, Ariz.Rev.Stat.Ann.
15-761 et seq. (1991 and Supp. 1992). The United States Court of Appeals for the Ninth
Circuit decided, however, that provision of such a publicly employed interpreter would
violate the Establishment Clause of the First Amendment. We hold that the Establishment
Clause does not bar the school district from providing the requested interpreter.
[509 U.S. 1, 4]
James Zobrest attended grades one through five in a school for the deaf, and grades
six through eight in a public school operated by respondent. While he attended public
school, respondent furnished him with a sign-language interpreter. For religious reasons,
James' parents (also petitioners here) enrolled him for the ninth grade in Salpointe
Catholic High School, a sectarian institution. 1 When petitioners requested that respondent
supply James with an interpreter at Salpointe, respondent referred the matter to the
county attorney, who concluded that providing an interpreter on the school's premises
would violate the United States Constitution. App. 1018. Pursuant to Ariz.Rev.Stat.Ann.
15253(B) (1991), the question next was referred to the Arizona attorney general, who
concurred in the county attorney's opinion. App. to Pet. for Cert. A-137. Respondent
accordingly declined to provide the requested interpreter.
Petitioners then instituted this action in the United States District Court for the
District of Arizona under 20 U.S.C. 1415(e)(4)(A), which grants the district courts
jurisdiction over disputes regarding the services due disabled children under the
IDEA. 2 Petitioners asserted that the IDEA and the Free Exercise Clause of the First
Amendment require respondent to provide James with an interpreter at Salpointe, and
that the Establishment Clause does not bar such relief. The complaint sought a preliminary
injunction and "such other and further relief as the Court deems just and proper."
App. 25. 3 The District Court denied petitioners' [509 U.S. 1, 5] request for a preliminary
injunction, finding that the provision of an interpreter at Salpointe would likely
offend the Establishment Clause. Id., at 52-53. The court thereafter granted respondent
summary judgment, on the ground that "[t]he interpreter would act as a conduit for
the religious inculcation of James - thereby, promoting James' religious development
at government expense." App. to Pet. for Cert. A-35. "That kind of entanglement of
church and state," the District Court concluded, "is not allowed." Ibid.
The Court of Appeals affirmed by a divided vote, 963 F.2d 1190 (CA9 1992), applying
the three-part test announced in Lemon v. Kurtzman, 403 U.S. 602, 613 (1971). It first
found that the IDEA has a clear secular purpose: "`to assist States and Localities
to provide for the education of all handicapped children.'" 963 F.2d, at 1193 (quoting
20 U.S.C. 1400(c)). 4 Turning to the second prong of the Lemon inquiry, though, the
Court of Appeals determined that the IDEA, if applied as petitioners proposed, would
have the primary effect of advancing religion, and thus would run afoul of the Establishment
Clause. "By placing its employee in the sectarian school," the Court of Appeals reasoned,
"the government would create the appearance that it was a `joint sponsor' of the school's
activities." 963 F.2d, at 1194-1195. This, the court held, would create the "symbolic
union of government and religion" found impermissible in School Dist. of Grand Rapids
v. Ball, 473 U.S. 373, 392 (1985). 5 In contrast, the dissenting judge argued that
"[g]eneral welfare programs neutrally available to all children," such as the IDEA,
pass constitutional muster, "because their benefits diffuse over the entire population."
963 F.2d, at 1199 (opinion of Tang, [509 U.S. 1, 6] J.). We granted certiorari, 506
U.S. 813 (1992), and now reverse.
Respondent has raised in its brief in opposition to certiorari and in isolated passages
in its brief on the merits several issues unrelated to the Establishment Clause question.
6 Respondent first argues that 34 CFR 76.532(a)(1) (1992), a regulation promulgated
under the IDEA, precludes it from using federal funds to provide an interpreter to
James at Salpointe. Brief in Opposition 13. 7 In the alternative, respondent claims
that, even if there is no affirmative bar to the relief, it is not required by statute
or regulation to furnish interpreters to students at sectarian schools. Brief for
Respondent 4, n. 4. 8 And respondent adds that providing such [509 U.S. 1, 7] a service
would offend Art. II, 12, of the Arizona Constitution. Tr. of Oral Arg. 28.
It is a familiar principle of our jurisprudence that federal courts will not pass
on the constitutionality of an Act of Congress if a construction of the Act is fairly
possible by which the constitutional question can be avoided. See, e.g., United State
v. Locke, 471 U.S. 84, 92 (1985), and cases cited therein. In Locke, a case coming
here by appeal under 28 U.S.C. 1252 (1982 ed.), we said that such an appeal "brings
before this Court not merely the constitutional question decided below, but the entire
case." 471 U.S., at 92 . "The entire case," we explained, "includes nonconstitutional
questions actually decided by the lower court, as well as nonconstitutional grounds
presented to, but not passed on, by the lower court." Ibid. Therefore, in that case,
we turned "first to the nonconstitutional questions pressed below." Ibid.
Here, in contrast to Locke and other cases applying the prudential rule of avoiding
constitutional questions, only First Amendment questions were pressed in the Court
of Appeals. In the opening paragraph of its opinion, the Court of Appeals noted that
petitioners' appeal raised only First Amendment issues:
"The Zobrests appeal the district court's ruling that provision of a state-paid sign
language interpreter to James Zobrest while he attends a sectarian high school would
violate the Establishment Clause. The Zobrests also argue that denial of such assistance
violates the Free Exercise Clause." 963 F.2d, at 1191.
Respondent did not urge any statutory grounds for affirmance upon the Court of Appeals,
and thus the Court of Appeals decided only the federal constitutional claims raised
by petitioners. In the District Court, too, the parties chose to [509 U.S. 1, 8] litigate
the case on the federal constitutional issues alone. "Both parties' motions for summary
judgment raised only federal constitutional issues." Brief for Respondent 4, n. 4.
Accordingly, the District Court's order granting respondent summary judgment addressed
only the Establishment Clause question. App. to Pet. for Cert. A35.
Given this posture of the case, we think the prudential rule of avoiding constitutional
questions has no application. The fact that there may be buried in the record a nonconstitutional
ground for decision is not, by itself, enough to invoke this rule. See, e.g., Board
of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 572 (1987).
"Where issues are neither raised before nor considered by the Court of Appeals, this
Court will not ordinarily consider them." Adickes v. S.H. Kress & Co., 398 U.S. 144,
147 , n. 2 (1970). We therefore turn to the merits of the constitutional claim.
We have never said that "religious institutions are disabled by the First Amendment
from participating in publicly sponsored social welfare programs." Bowen v. Kendrick,
487 U.S. 589, 609 (1988). For if the Establishment Clause did bar religious groups
from receiving general government benefits, then "a church could not be protected
by the police and fire departments, or have its public sidewalk kept in repair." Widmar
v. Vincent, 454 U.S. 263, 274 -275 (1981) (internal quotation marks omitted). Given
that a contrary rule would lead to such absurd results, we have consistently held
that government programs that neutrally provide benefits to a broad class of citizens
defined without reference to religion are not readily subject to an Establishment
Clause challenge just because sectarian institutions may also receive an attenuated
financial benefit. Nowhere have we stated this principle more clearly than in Mueller
v. Allen, 463 U.S. 388 (1983), and Witters v. Washington Dept. of Services for Blind,
474 U.S. 481 (1986), two cases dealing specifically with government programs [509
U.S. 1, 9] offering general educational assistance.
In Mueller, we rejected an Establishment Clause challenge to a Minnesota law allowing
taxpayers to deduct certain educational expenses in computing their state income tax,
even though the vast majority of those deductions (perhaps over 90%) went to parents
whose children attended sectarian schools. See 463 U.S., at 401 ; id., at 405 (Marshall,
J., dissenting). Two factors, aside from States' traditionally broad taxing authority,
informed our decision. See Witters, supra, at 491 (Powell, J., concurring) (discussing
Mueller). We noted that the law "permits all parents - whether their children attend
public school or private - to deduct their children's educational expenses." 463 U.S.,
at 398 (emphasis in original). See also Widmar, supra, at 274 ("The provision of benefits
to so broad a spectrum of groups is an important index of secular effect"); Board
of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 248 (1990)
(plurality opinion) (same). We also pointed out that, under Minnesota's scheme, public
funds become available to sectarian schools "only as a result of numerous private
choices of individual parents of school-age children," thus distinguishing Mueller
from our other cases involving "the direct transmission of assistance from the State
to the schools themselves." 463 U.S., at 399 .
Witters was premised on virtually identical reasoning. In that case, we upheld against
an Establishment Clause challenge the State of Washington's extension of vocational
assistance, as part of a general state program, to a blind person studying at a private
Christian college to become a pastor, missionary, or youth director. Looking at the
statute as a whole, we observed that "[a]ny aid provided under Washington's program
that ultimately flows to religious institutions does so only as a result of the genuinely
independent and private choices of aid recipients." 474 U.S., at 487 . The program,
we said, "creates no financial incentive for students [509 U.S. 1, 10] to undertake
sectarian education." Id., at 488. We also remarked that, much like the law in Mueller,
"Washington's program is "made available generally without regard to the sectarian-nonsectarian,"
or public-nonpublic nature of the institution benefited." Witters, supra, at 487 (quoting
Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 782 -783, n.
38 (1973)). In light of these factors, we held that Washington's program - even as
applied to a student who sought state assistance so that he could become a pastor
- would not advance religion in a manner inconsistent with the Establishment Clause.
Witters, supra, at 489.
That same reasoning applies with equal force here. The service at issue in this case
is part of a general government program that distributes benefits neutrally to any
child qualifying as "disabled" under the IDEA, without regard to the "sectarian-nonsectarian,
or public-nonpublic nature" of the school the child attends. By according parents
freedom to select a school of their choice, the statute ensures that a government-paid
interpreter will be present in a sectarian school only as a result of the private
decision of individual parents. In other words, because the IDEA creates no financial
incentive for parents to choose a sectarian school, an interpreter's presence there
cannot be attributed to state decision making. Viewed against the backdrop of Mueller
and Witters, then, the Court of Appeals erred in its decision. When the government
offers a neutral service on the premises of a sectarian school as part of a general
program that "is in no way skewed towards religion," Witters, supra, at 488, it follows
under our prior decisions that provision of that service does not offend the Establishment
Clause. See Wolman v. Walter, 433 U.S. 229, 244 (1977). Indeed, this is an even easier
case than Mueller and Witters in the sense that, under the IDEA, no funds traceable
to the government ever find their way into sectarian schools' coffers. The only indirect
economic benefit a sectarian school might receive by dint of the IDEA is the disabled
child's tuition - and that is, [509 U.S. 1, 11] of course, assuming that the school
makes a profit on each student; that, without an IDEA interpreter, the child would
have gone to school elsewhere; and that the school, then, would have been unable to
fill that child's spot.
Respondent contends, however, that this case differs from Mueller and Witters in
that petitioners seek to have a public employee physically present in a sectarian
school to assist in James' religious education. In light of this distinction, respondent
argues that this case more closely resembles Meek v. Pittenger, 421 U.S. 349 (1975),
and School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985). In Meek, we struck
down a statute that, inter alia, provided "massive aid" to private schools - more
than 75% of which were church-related - through a direct loan of teaching material
and equipment. 421 U.S., at 364 -365. The material and equipment covered by the statute
included maps, charts, and tape recorders. Id., at 355. According to respondent, if
the government could not place a tape recorder in a sectarian school in Meek, then
it surely cannot place an interpreter in Salpointe. The statute in Meek also authorized
state-paid personnel to furnish "auxiliary services" - which included remedial and
accelerated instruction and guidance counseling - on the premises of religious schools.
We determined that this part of the statute offended the First Amendment as well.
Id., at 372. Ball similarly involved two public programs that provided services on
private school premises; there, public employees taught classes to students in private
school classrooms. 9 473 U.S., at 375 . We found that those programs likewise violated
the Constitution, relying largely on Meek. 473 U.S., at 386 -389. According to respondent,
if the government could not provide educational services on the premises of sectarian
schools in Meek and Ball, then it surely cannot provide James with an interpreter
on the premises of Salpointe. [509 U.S. 1, 12]
Respondent's reliance on Meek and Ball is misplaced for two reasons. First, the programs
in Meek and Ball - through direct grants of government aid - relieved sectarian schools
of costs they otherwise would have borne in educating their students. See Witters,
474 U.S. at 487 ("[T]he State may not grant aid to a religious school, whether cash
or in kind, where the effect of the aid is `that of a direct subsidy to the religious
school' from the State") (quoting Ball, supra, at 394). For example, the religious
schools in Meek received teaching material and equipment from the State, relieving
them of an otherwise necessary cost of performing their educational function. 421
U.S., at 365 -366. "Substantial aid to the educational function of such schools,"
we explained, "necessarily results in aid to the sectarian school enterprise as a
whole," and therefore brings about "the direct and substantial advancement of religious
activity." Id., at 366. So, too, was the case in Ball: the programs challenged there,
which provided teachers in addition to instructional equipment and material, "in effect
subsidize[d] the religious functions of the parochial schools by taking over a substantial
portion of their responsibility for teaching secular subjects." 473 U.S., at 397 .
"This kind of direct aid," we determined, "is indistinguishable from the provision
of a direct cash subsidy to the religious school." Id., at 395. The extension of aid
to petitioners, however, does not amount to "an impermissible `direct subsidy'" of
Salpointe, Witters, supra, at 487, for Salpointe is not relieved of an expense that
it otherwise would have assumed in educating its students. And, as we noted above,
any attenuated financial benefit that parochial schools do ultimately receive from
the IDEA is attributable to "the private choices of individual parents." Mueller,
463 U.S., at 400 . Disabled children, not sectarian schools, are the primary beneficiaries
of the IDEA; to the extent sectarian schools benefit at all from the IDEA, they are
only incidental beneficiaries. Thus, the function of the IDEA is hardly "`to provide
desired financial [509 U.S. 1, 13] support for nonpublic, sectarian institutions.'"
Witters, supra at 488 (quoting Nyquist, supra, at 783).
Second, the task of a sign-language interpreter seems to us quite different from
that of a teacher or guidance counselor. Notwithstanding the Court of Appeals' intimations
to the contrary, see 963 F.2d, at 1195, the Establishment Clause lays down no absolute
bar to the placing of a public employee in a sectarian school. 10 Such a flat rule,
smacking of antiquated notions of "taint," would indeed exalt form over substance.
11 Nothing in this record suggests that a sign-language interpreter would do more
than accurately interpret whatever material is presented to the class as a whole.
In fact, ethical guidelines require interpreters to "transmit everything that is said
in exactly the same way it was intended." App. 73. James' parents have chosen of their
own free will to place him in a pervasively sectarian environment. The sign-language
interpreter they have requested will neither add to nor subtract from that environment,
and hence the provision of such assistance is not barred by the Establishment Clause.
The IDEA creates a neutral government program dispensing aid not to schools, but
to individual handicapped children. If a handicapped child chooses to enroll in a
sectarian school, [509 U.S. 1, 14] we hold that the Establishment Clause does not
prevent the school district from furnishing him with a sign-language interpreter there
in order to facilitate his education. The judgment of the Court of Appeals is therefore
Reversed.
Footnotes
[ Footnote 1 ] The parties have stipulated: "The two functions of secular education
and advancement of religious values or beliefs are inextricably intertwined throughout
the operations of Salpointe." App. 92.
[ Footnote 2 ] The parties agreed that exhaustion of administrative remedies would
be futile here. Id., at 995.
[ Footnote 3 ] During the pendency of this litigation, James completed his high school
studies and graduated from Salpointe on May 16, 1992. This case nonetheless presents
a continuing controversy, since petitioners seek reimbursement for the cost they incurred
in hiring their own interpreter, more than $7,000 per year. Id., at 65.
[ Footnote 4 ] Respondent now concedes that "the IDEA has an appropriate `secular
purpose.'" Brief for Respondent 16.
[ Footnote 5 ] The Court of Appeals also rejected petitioners' Free Exercise Clause
claim. 963 F.2d 1190, 1196-1197 (CA9 1992). Petitioners have not challenged that part
of the decision below. Pet. for Cert. 10, n. 9.
[ Footnote 6 ] Respondent may well have waived these other defenses. For in response
to an interrogatory asking why it had refused to provide the requested service, respondent
referred only to the putative Establishment Clause bar. App. 59-60.
[ Footnote 7 ] That regulation prohibits the use of federal funds to pay for "[r]eligious
worship, instruction, or proselytization." 34 CFR 76.532(a)(1) (1992). The United
States asserts that the regulation merely implements the Secretary of Education's
understanding of (and thus is coextensive with) the requirements of the Establishment
Clause. Brief for United States as Amicus Curiae 23; see also Brief for United States
as Amicus Curiae in Witters v. Dept. of Services for Blind, O.T. 1985, No. 84-1070,
p. 21, n. 11 ("These regulations are based on the Department's interpretation of constitutional
requirements"). This interpretation seems persuasive to us. The only authority cited
by the Secretary for issuance of the regulation is his general rulemaking power. See
34 CFR 76.532 (1992) (citing 20 U.S.C. 1221e-3(a)(1), 2831(a), and 2974(b)). Though
the Fourth Circuit placed a different interpretation on 76.532 in Goodall v. Stafford
County School Board, 930 F.2d 363, 369 (holding that the regulation prohibits the
provision of an interpreter to a student in a sectarian school), cert. denied, 502
U.S. 864 (1991), that court did not have the benefit of the United States' views.
[ Footnote 8 ] In our view, this belated contention is entitled to little, if any,
weight here, given respondent's repeated concession that, but for the perceived federal
constitutional bar, it would have willingly provided James with an interpreter at
Salpointe as a matter of local policy. See, e.g., Tr. of Oral Arg. 31 ("We don't deny
that . . . we would have voluntarily done [509 U.S. 1, 7] that. The only concern that
came up at the time was the Establishment Clause concern").
[ Footnote 9 ] Forty of the forty-one private schools involved in Ball were pervasively
sectarian. 473 U.S., at 384 -385.
[ Footnote 10 ] For instance, in Wolman v. Walter, 433 U.S. 229, 242 (1977), we made
clear that "the provision of health services to all schoolchildren - public and nonpublic
- does not have the primary effect of aiding religion," even when those services are
provided within sectarian schools. We accordingly rejected a First Amendment challenge
to the State's providing diagnostic speech and hearing services on sectarian school
premises. Id., at 244; see also Meek v. Pittenger, 421 U.S. 349, 371 , n. 21 (1975).
[ Footnote 11 ] Indeed, respondent readily admits, as it must, that there would be
no problem under the Establishment Clause if the IDEA funds instead went directly
to James' parents, who, in turn, hired the interpreter themselves. Brief for Respondent
11 ("If such were the case, then the sign language interpreter would be the student's
employee, not the School District's, and governmental involvement in the enterprise
would end with the disbursement of funds").
JUSTICE BLACKMUN, with whom JUSTICE SOUTER joins, and with whom JUSTICE STEVENS and
JUSTICE O'CONNOR join as to Part I, dissenting.
Today, the Court unnecessarily addresses an important constitutional issue, disregarding
longstanding principles of constitutional adjudication. In so doing, the Court holds
that placement in a parochial school classroom of a public employee whose duty consists
of relaying religious messages does not violate the Establishment Clause of the First
Amendment. I disagree both with the Court's decision to reach this question and with
its disposition on the merits. I therefore dissent.
I
"If there is one doctrine more deeply rooted than any other in the process of constitutional
adjudication, it is that we ought not to pass on questions of constitutionality .
. . unless such adjudication is unavoidable." Spector Motor Service, Inc. v. McLaughlin,
323 U.S. 101, 105 (1944). See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501
(1985); Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring); Liverpool,
New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39
(1885). This is a "fundamental rule of judicial restraint," Three Affiliated Tribes
of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 157 (1984),
which has received the sanction of time and experience. It has been described as a
"corollary" to the Article III case or controversy requirement, see Rescue Army v.
Municipal Court of Los Angeles, 331 U.S. 549, 570 (1947), and is grounded in basic
[509 U.S. 1, 15] principles regarding the institution of judicial review and this
Court's proper role in our federal system, ibid.
Respondent School District makes two arguments that could provide grounds for affirmance,
rendering consideration of the constitutional question unnecessary. First, respondent
maintains that the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400
et seq., does not require it to furnish James Zobrest with an interpreter at any private
school so long as special education services are made available at a public school.
The United States endorses this interpretation of the statute, explaining that "the
IDEA itself does not establish an individual entitlement to services for students
placed in private schools at their parents' option." Brief for United States as Amicus
Curiae 13. And several courts have reached the same conclusion. See, e.g., Goodall
v. Stafford County School Bd., 930 F.2d 363 (CA4), cert. denied, 502 U.S. 864 (1991);
McNair v. Cardimone, 676 F.Supp. 1361 (SD Ohio 1987), aff'd sub nom. McNair v. Oak
Hills Local School Dist., 872 F.2d 153 (CA6 1989); Work v. McKenzie, 661 F.Supp. 225
(DC 1987). Second, respondent contends that 34 CFR 76.532(a)(1) (1992), a regulation
promulgated under the IDEA, which forbids the use of federal funds to pay for "[r]eligious
worship, instruction, or proselytization," prohibits provision of a sign-language
interpreter at a sectarian school. The United States asserts that this regulation
does not preclude the relief petitioners seek, Brief for United States as Amicus Curiae
23, but at least one federal court has concluded otherwise. See Goodall, supra. This
Court could easily refrain from deciding the constitutional claim by vacating and
remanding the case for consideration of the statutory and regulatory issues. Indeed,
the majority's decision does not eliminate the need to resolve these remaining questions.
For, regardless of the Court's views on the Establishment Clause, petitioners will
not obtain what they seek if the federal statute [509 U.S. 1, 16] does not require
or the federal regulations prohibit provision of a sign-language interpreter in a
sectarian school. 1
The majority does not deny the existence of these alternative grounds, nor does it
dispute the venerable principle that constitutional questions should be avoided when
there are nonconstitutional grounds for a decision in the case. Instead, in its zeal
to address the constitutional question, the majority casts aside this "time-honored
canon of constitutional adjudication," Spector Motor Service, 323 U.S., at 105 , with
the cursory observation that "the prudential rule of avoiding constitutional questions
has no application" in light of the "posture" of this case, ante, at 8. Because the
parties chose not to litigate the federal statutory issues in the District Court and
in the Court of Appeals, the majority blithely proceeds to the merits of their constitutional
claim.
But the majority's statements are a non sequitur. From the rule against deciding
issues not raised or considered below, it does not follow that the Court should consider
constitutional issues needlessly. The obligation to avoid unnecessary adjudication
of constitutional questions does not depend upon the parties' litigation strategy,
but rather is a "self-imposed limitation on the exercise of this Court's jurisdiction
[that] has an importance to the institution that transcends the significance of particular
controversies." City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 294 (1982).
It is a rule whose aim is to protect not parties, but the law and the adjudicatory
process. Indeed, just a few days ago, we expressed concern that "litigants, by agreeing
on the legal issue presented, [could] extract the opinion of a court [509 U.S. 1,
17] on hypothetical Acts of Congress or dubious constitutional principles, an opinion
that would be difficult to characterize as anything but advisory." United States Nat.
Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 447 (1993).
See United States v. CIO, 335 U.S. 106, 126 (1948) (Frankfurter, J., concurring).
That the federal statutory and regulatory issues have not been properly briefed or
argued does not justify the Court's decision to reach the constitutional claim. The
very posture of this case should have alerted the courts that the parties were seeking
what amounts to an advisory opinion. After the Arizona attorney general concluded
that provision of a sign-language interpreter would violate the Federal and State
Constitutions, the parties bypassed the federal statutes and regulations and proceeded
directly to litigate the constitutional issue. Under such circumstances, the weighty
nonconstitutional questions that were left unresolved are hardly to be described as
"buried in the record." Ante, at 8. When federal-and-state law questions similarly
remained open in Wheeler v. Barrera, 417 U.S. 402 (1974), this Court refused to pass
upon the scope or constitutionality of a federal statute that might have required
publicly employed teachers to provide remedial instruction on the premises of sectarian
schools. Prudence counsels that the Court follow a similar practice here by vacating
and remanding this case for consideration of the nonconstitutional questions, rather
than proceeding directly to the merits of the constitutional claim. See Youakim v.
Miller, 425 U.S. 231 (1976) (vacating and remanding for consideration of statutory
issues not presented to or considered by lower court); Escambia County v. McMillan,
466 U.S. 48, 51 -52 (1984) (vacating and remanding for lower court to consider statutory
issue parties had not briefed and Court of Appeals had not passed upon); Edward J.
DeBartolo Corp. v. NLRB, 463 U.S. 147, 157 -158 (1983) (vacating and remanding for
consideration of statutory question). [509 U.S. 1, 18]
II
Despite my disagreement with the majority's decision to reach the constitutional
question, its arguments on the merits deserve a response. Until now, the Court never
has authorized a public employee to participate directly in religious indoctrination.
Yet that is the consequence of today's decision.
Let us be clear about exactly what is going on here. The parties have stipulated
to the following facts. James Zobrest requested the State to supply him with a sign-language
interpreter at Salpointe High School, a private Roman Catholic school operated by
the Carmelite Order of the Catholic Church. App. 90. Salpointe is a "pervasively religious"
institution where "[t]he two functions of secular education and advancement of religious
values or beliefs are inextricably intertwined." Id., at 92. Salpointe's overriding
"objective" is to "instill a sense of Christian values." Id., at 90. Its "distinguishing
purpose" is "the inculcation in its students of the faith and morals of the Roman
Catholic Church." Religion is a required subject at Salpointe, and Catholic students
are "strongly encouraged" to attend daily Mass each morning. Ibid. Salpointe's teachers
must sign a Faculty Employment Agreement which requires them to promote the relationship
among the religious, the academic, and the extracurricular. 2 They are encouraged
to do so by "assist[ing] students in experiencing how the presence of God is manifest
in nature, human history, in the struggles for economic and political justice, and
other secular areas of the curriculum." Id., at 92. The agreement also sets forth
detailed rules of [509 U.S. 1, 19] conduct teachers must follow in order to advance
the school's Christian mission. 3
At Salpointe, where the secular and the sectarian are "inextricably intertwined,"
governmental assistance to the educational function of the school necessarily entails
governmental participation in the school's inculcation of religion. A state-employed
sign-language interpreter would be required to communicate the material covered in
religion class, the nominally secular subjects that are taught from a religious perspective,
and the daily Masses at which Salpointe encourages attendance for Catholic students.
In an environment so pervaded by discussions of the divine, the interpreter's every
gesture would be infused with religious significance. Indeed, petitioners willingly
concede this point: "That the interpreter conveys religious messages is a given in
the case." Brief for Petitioners 22. By this concession, petitioners would seem to
surrender their constitutional claim.
The majority attempts to elude the impact of the record by offering three reasons
why this sort of aid to petitioners survives Establishment Clause scrutiny. First,
the majority observes that provision of a sign-language interpreter [509 U.S. 1, 20]
occurs as "part of a general government program that distributes benefits neutrally
to any child qualifying as "disabled" under the IDEA, without regard to the "sectarian-nonsectarian,
or public-nonpublic nature' of the school the child attends." Ante, at 10. Second,
the majority finds significant the fact that aid is provided to pupils and their parents,
rather than directly to sectarian schools. As a result, "`[a]ny aid . . . that ultimately
flows to religious institutions does so only as a result of the genuinely independent
and private choices of aid recipients.'" Ante, at 9, quoting Witters v. Washington
Dept. of Services for Blind, 474 U.S. 481, 487 (1986). And, finally, the majority
opines that "the task of a sign-language interpreter seems to us quite different from
that of a teacher or guidance counselor." Ante, at 13.
But the majority's arguments are unavailing. As to the first two, even a general
welfare program may have specific applications that are constitutionally forbidden
under the Establishment Clause. See Bowen v. Kendrick, 487 U.S. 589 (1988) (holding
that Adolescent Family Life Act on its face did not violate the Establishment Clause,
but remanding for examination of the constitutionality of particular applications).
For example, a general program granting remedial assistance to disadvantaged schoolchildren
attending public and private, secular and sectarian schools alike would clearly offend
the Establishment Clause insofar as it authorized the provision of teachers. See Aguilar
v. Felton, 473 U.S. 402, 410 (1985); School Dis. of Grand Rapids v. Ball, 473 U.S.
373, 385 (1985); Meek v. Pittenger, 421 U.S. 349, 371 (1975). Such a program would
not be saved simply because it supplied teachers to secular, as well as sectarian,
schools. Nor would the fact that teachers were furnished to pupils and their parents,
rather than directly to sectarian schools, immunize such a program from Establishment
Clause scrutiny. See Witters, 474 U.S., at 487 ("Aid may have [unconstitutional] effect
even though it takes the form of aid to students [509 U.S. 1, 21] or parents"); Wolman
v. Walter, 433 U.S. 229, 250 (1977) (it would "exalt form over substance if this distinction
[between equipment loaned to the pupil or his parent and equipment loaned directly
to the school] were found to justify a . . . different" result); Ball, 473 U.S., at
395 (rejecting "fiction that a . . . program could be saved by masking it as aid to
individual students"). The majority's decision must turn, then, upon the distinction
between a teacher and a sign-language interpreter.
"Although Establishment Clause jurisprudence is characterized by few absolutes,"
at a minimum "the Clause does absolutely prohibit government-financed or government-sponsored
indoctrination into the beliefs of a particular religious faith." Id., at 385. See
Bowen v. Kendrick, 487 U.S., at 623 (O'CONNOR, J., concurring) ("[A]ny use of public
funds to promote religious doctrines violates the Establishment Clause") (emphasis
in original); Meek, 421 U.S., at 371 ("`The State must be certain, given the Religion
Clauses, that subsidized teachers do not inculcate religion,'" quoting Lemon v. Kurtzman,
403 U.S. 602, 619 (1971)); Levitt v. Committee for Public Ed. & Religious Liberty,
413 U.S. 472, 480 (1973) ("[T]he State is constitutionally compelled to assure that
the state-supported activity is not being used for religious indoctrination"). In
keeping with this restriction, our cases consistently have rejected the provision
by government of any resource capable of advancing a school's religious mission. Although
the Court generally has permitted the provision of "secular and nonideological services
unrelated to the primary, religion-oriented educational function of the sectarian
school," Meek, 421 U.S., at 364 , it has always proscribed the provision of benefits
that afford even the "opportunity for the transmission of sectarian views," Wolman,
433 U.S., at 244 .
Thus, the Court has upheld the use of public school buses to transport children to
and from school, Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947), while striking
down the [509 U.S. 1, 22] employment of publicly funded buses for field trips controlled
by parochial school teachers, Wolman, 433 U.S., at 254 . Similarly, the Court has
permitted the provision of secular textbooks whose content is immutable and can be
ascertained in advance, Board of Ed. of Central School Dist. No. v. Allen, 392 U.S.
236 (1968), while prohibiting the provision of any instructional materials or equipment
that could be used to convey a religious message, such as slide projectors, tape recorders,
record players, and the like, Wolman, 433 U.S., at 249 . State-paid speech and hearing
therapists have been allowed to administer diagnostic testing on the premises of parochial
schools, id., at 241-242, whereas state-paid remedial teachers and counselors have
not been authorized to offer their services because of the risk that they may inculcate
religious beliefs, Meek, 421 U.S., at 371 .
These distinctions perhaps are somewhat fine, but "`lines must be drawn.'" Ball,
473 U.S., at 398 (citation omitted). And our cases make clear that government crosses
the boundary when it furnishes the medium for communication of a religious message.
If petitioners receive the relief they seek, it is beyond question that a state-employed
sign-language interpreter would serve as the conduit for James' religious education,
thereby assisting Salpointe in its mission of religious indoctrination. But the Establishment
Clause is violated when a sectarian school enlists "the machinery of the State to
enforce a religious orthodoxy." Lee v. Weisman, 505 U.S. 577, 592 (1992).
Witters, supra, and Mueller v. Allen, 463 U.S. 388 (1983), are not to the contrary.
Those cases dealt with the payment of cash or a tax deduction, where governmental
involvement ended with the disbursement of funds or lessening of tax. This case, on
the other hand, involves ongoing, daily, and intimate governmental participation in
the teaching and propagation of religious doctrine. When government dispenses public
funds to individuals who employ them to finance private choices, it is difficult to
argue that government [509 U.S. 1, 23] is actually endorsing religion. But the graphic
symbol of the concert of church and state that results when a public employee or instrumentality
mouths a religious message is likely to "enlis[t] - at least in the eyes of impressionable
youngsters - the powers of government to the support of the religious denomination
operating the school." Ball, 473 U.S., at 385 . And the union of church and state
in pursuit of a common enterprise is likely to place the imprimatur of governmental
approval upon the favored religion, conveying a message of exclusion to all those
who do not adhere to its tenets.
Moreover, this distinction between the provision of funds and the provision of a
human being is not merely one of form. It goes to the heart of the principles animating
the Establishment Clause. As amicus Council on Religious Freedom points out, the provision
of a state-paid sign-language interpreter may pose serious problems for the church,
as well as for the state. Many sectarian schools impose religiously based rules of
conduct, as Salpointe has in this case. A traditional Hindu school would be likely
to instruct its students and staff to dress modestly, avoiding any display of their
bodies. And an orthodox Jewish yeshiva might well forbid all but kosher food upon
its premises. To require public employees to obey such rules would impermissibly threaten
individual liberty, but to fail to do so might endanger religious autonomy. For such
reasons, it long has been feared that "a union of government and religion tends to
destroy government and to degrade religion." Engel v. Vitale, 370 U.S. 421, 431 (1962).
The Establishment Clause was designed to avert exactly this sort of conflict.
III
The Establishment Clause "rests upon the premise that both religion and government
can best work to achieve their lofty aims if each is left free from the other within
its respective sphere." Illinois ex rel. McCollum v. Board of Ed. of [509 U.S. 1,
24] School Dist. No. 71, Champaign Cty., 333 U.S. 203, 212 (1948). To this end, our
cases have strived to "chart a course that preserve[s] the autonomy and freedom of
religious bodies while avoiding any semblance of established religion." Walz v. Tax
Comm'n of New York City, 397 U.S. 664, 672 (1970). I would not stray, as the Court
does today, from the course set by nearly five decades of Establishment Clause jurisprudence.
Accordingly, I dissent.
[ Footnote 1 ] Respondent also argues that public provision of a sign-language interpreter
would violate the Arizona Constitution. Article II, 12, of the Arizona Constitution
provides: "No public money or property shall be appropriated for or applied to any
religious worship, exercise, or instruction, or to the support of any religious establishment."
The Arizona attorney general concluded that, under this provision, interpreter services
could not be furnished to James. See App. 9.
[ Footnote 2 ] The Faculty Employment Agreement provides: "`Religious programs are
of primary importance in Catholic educational institutions. They are not separate
from the academic and extracurricular programs, but are instead interwoven with them,
and each is believed to promote the other.'" App. 991.
[ Footnote 3 ] The Faculty Employment Agreement sets forth the following detailed
rules of conduct:
"`1. Teacher shall at all times present a Christian image to the students by promoting
and living the school philosophy stated herein, in the School's Faculty Handbook,
the School Catalog and other published statements of this School. In this role, the
teacher shall support all aspects of the School from its religious programs to its
academic and social functions. I t is through these areas that a teacher administers
to mind, body and spirit of the young men and women who attend Salpointe Catholic
High School."
. . . . .
"`3. The School believes that faithful adherence to its philosophical principles
by its teachers is essential to the School's mission and purpose. Teachers will therefore
be expected to assist in the implementation of the philosophical policies of the School,
and to compel proper conduct on the part of the students in the areas of general behavior,
language, dress and attitude toward the Christian ideal.'" Id., at 91.
JUSTICE O'CONNOR, with whom JUSTICE STEVENS joins, dissenting.
I join Part I of JUSTICE BLACKMUN's dissent. In my view, the Court should vacate
and remand this case for consideration of the various threshold problems, statutory
and regulatory, that may moot the constitutional question urged upon us by the parties.
"It is a fundamental rule of judicial restraint . . . that this Court will not reach
constitutional questions in advance of the necessity of deciding them." Three Affiliated
Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 157
(1984). That "fundamental rule" suffices to dispose of the case before us, whatever
the proper answer to the decidedly hypothetical issue addressed by the Court. I therefore
refrain from addressing it myself. See Rust v. Sullivan, 500 U.S. 173, 223 -225 (1991)
(O'CONNOR, J., dissenting). [509 U.S. 1, 25]