Zobrest v. Catalina Foothills School District

PETITIONER:Zobrest
RESPONDENT:Catalina Foothills School District
LOCATION:Catalina Foothills School District

DOCKET NO.: 92-94
DECIDED BY: Rehnquist Court (1991-1993)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 509 US 1 (1993)
ARGUED: Feb 24, 1993
DECIDED: Jun 18, 1993

ADVOCATES:
John C. Richardson – Argued the cause for the respondent
William B. Ball – Argued the cause for the petitioners
William C. Bryson – Department of Justice, argued on behalf of the United States, as amicus curiae, supporting the petitioners

Facts of the case

James Zobrest was deaf since birth. He attended public school through the eighth grade where the local school board provided a sign-language interpreter. Zobrest’s parents elected to send their son to a Roman Catholic high school and requested that the local school board continue to provide their son with a sign-language interpreter. The school board denied the request on constitutional grounds. The Zobrests then filed suit, alleging that the Individuals with Disabilities Education Act (IDEA) and the Free Exercise Clause of the First Amendment required the school district to provide the interpreter and that the Establishment Clause did not bar such relief. The District Court granted the school district 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.

Question

May a school district decline to provide an interpreter to a deaf child based on the Establishment Clause of the First Amendment?

William H. Rehnquist:

We’ll hear argument next in No. 92-94, Larry Zobrest v. the Catalina Foothills School District.

Mr. Ball, you may proceed.

William B. Ball:

Chief Justice Rehnquist, may it please the Court:

The important issue posed by this case is whether Jim Zobrest, the petitioner, a profoundly deaf boy, would have to have forsaken education in the State-qualified religious school of his parents’ conscientious choice if he were to participate in a program designed by the Congress of the United States to aid the education of all handicapped children, including children in public and religious… including public and private and religious schools.

Now, the courts below answered that question by saying yes, and that is the respondent’s position and that of the respondent’s amici.

Now, Jim, in order to be educated, had to have the service of a certified sign language interpreter, a related service under the Education of the Handicapped Act.

He had to have it on the place where his education was going to happen, and the place where his education was going to happen was Salpointe Catholic High School, a high school which meets the requirements of Arizona’s compulsory attendance law and which is accredited as a college preparatory school by the North Central Association of Colleges and Schools.

But it’s also a school which is pervasively religious, and on the ground, the sole ground that to afford Jim a sign language interpreter, on the premises of a pervasively religious school, would violate the Establishment Clause, the court… the respondent school district denied him the service.

Antonin Scalia:

Mr. Ball, before you get too far, just clarify one point for me.

Under the statute, could… does the statute only provide for in-kind furnishing of services?

Would the statute not permit the parents to hire their own sign language interpreter and be reimbursed?

William B. Ball:

Yes, Your Honor.

We don’t find any authority in the statute for the school district, for example, to have paid the parents money so they could go and hire the interpreter.

In fact, there is a… under section 1415… the subsection I can’t recall… it seems… would seem to preclude that.

All the funds therefore… funds therefore could not be disbursed to the parents for that purpose.

Antonin Scalia:

1415 is what–

William B. Ball:

Yes.

David H. Souter:

–Let me ask you a different question about what may just positively be prohibited.

At any point have you litigated the effect of the Arizona constitution or the effect of the statute and the regulations on the ultimate question of entitlement here?

William B. Ball:

We have never… in this case because solely the Federal Establishment Clause was raised, we have not in any way gone into the Arizona constitutional question.

David H. Souter:

And you haven’t litigated the legal as distinct from the constitutional issue.

William B. Ball:

I’m sorry?

David H. Souter:

You haven’t litigated the question of legal entitlement, entitlement under the law and the regulations, as distinct from the constitutional issue.

William B. Ball:

Well, we have not litigated it because, in fact, the process had already gone a great distance.

The school district at the–

David H. Souter:

No, I’m not necessarily faulting you for it.

I just want to make sure that I am right that the record simply does not contain determinations on these two issues.

William B. Ball:

–No, Justice Souter, but I think it’s important that I add there the fact that at the time the parents applied for EHA help to the school district, the… Jim was already enrolled at Salpointe Catholic High School, and the issuance of the individualized education program to him took place in the context of the fact that that’s where he was and that the sole problem… the sole problem… and this appears in the individualized education report itself.

The sole problem was the Establishment Clause.

Now, the key issue, as we see–

Sandra Day O’Connor:

Have you taken a look at the statutory provision and the regulations here, and are you… would you conclude that they clearly require the provision of the services in private schools?

William B. Ball:

–Yes.

The… to begin with, section 1415(a)–

Sandra Day O’Connor:

Or does it leave it open to the State to decide?

William B. Ball:

–Well, they don’t leave the… the statute doesn’t leave it open to the State to decide whether private school children will be included, and the statute also provides and the regulations provide that there will be provision made for the education of children enrolled in all private schools.

And the regulations, the… under 30 of the Code of Federal Regulations… specify even parochial schools.

They use that term, and the only question then is where and under what circumstances those services would be provided.

But there has to be afforded the child in the private school, including a parochial school, a genuine opportunity.

He must be furnished or she must be furnished services of the same scope and quality as those provided for public school children.

William H. Rehnquist:

Did the school district ever raise any objection based on the regulations or the statute?

William B. Ball:

None whatever.

Their sole… Chief Justice, their sole objection throughout was the Establishment Clause.

In fact, throughout the proceedings before the district court and before the court of appeals, they insisted that Jim would be provided… would be required to be provided the services by them on the premises of a public school or of any… any… nonsectarian private school.

Now, the key issue, as we see it, is whether the… furnishing of an interpreter to Jim would have had a primary effect advancing religion.

We are regarding the entanglement problem raised as a lesser issue.

If time permits, I will cover that or if, of course, I’m asked.

The respondent give three reasons why they believe it has a primary effect advancing religion.

One is that it would constitute support for a religious institution.

I think we can dispose of that rather quickly.

Salpointe Catholic High School has no interest in the case.

It would get nothing in the money… in the way of money or materials by accommodating and taking on the burden of accommodating an interpreter, a certified sign language interpreter, for one boy.

They have no program.

John Paul Stevens:

Yes, but… may I just… perhaps it’s too minor, but at least they will have him paying his tuition there.

If he can’t get the interpreter, he’d have to go to school someplace else.

William B. Ball:

No.

The tuition would not be paid for at all by the school district.

John Paul Stevens:

No, no, no, but his parents are paying the tuition now.

William B. Ball:

They did, indeed.

John Paul Stevens:

But they will not be paying that tuition to the school if he goes to school someplace else.

William B. Ball:

The parents will pay the tuition to the school where their child is enrolled.

John Paul Stevens:

That’s right, so that if he doesn’t get the interpreter, he won’t attend the school, and they won’t get that particular tuition.

That’s all I’m saying.

It’s perhaps a small point.

But is it not true that he needs an interpreter wherever he goes to school?

William B. Ball:

Absolutely so.

John Paul Stevens:

And if he can’t get it here, he’ll have to go to school elsewhere.

William B. Ball:

Yes.

Then he’d have to give up the religious education.

John Paul Stevens:

And the school would lose that amount of tuition.

William B. Ball:

The school would lose that amount of tuition–

John Paul Stevens:

Maybe that’s not significant.

William B. Ball:

–for one child.

John Paul Stevens:

But they will lose at least that much.

William B. Ball:

With all respect, Your Honor, I think it is not significant.

John Paul Stevens:

Well, it’s probably more than the cost of the interpreter, isn’t it?

William B. Ball:

It is more than the cost of the interpreter, but here’s a school with many children.

This is one interpreter for one child.

We’re speaking of one school, and–

Antonin Scalia:

And unless the school loses money on each child, which a lot of schools do–

William B. Ball:

–Yes.

Antonin Scalia:

–and the deficit made up out of contributions.

William B. Ball:

They had no program for the deaf.

There’s no real market to bring in deaf children.

Sign language interpreters who are certified are very, very scarce.

The second reason which the respondent attempts to advance is that a certified sign language interpreter will inadvertently or intentionally inculcate religion in the children.

Here I think the respondents totally misconceives what certification of a sign language interpreter amounts to.

Under… in Arizona, an interpreter must be qualified under the interpreter quality assurance system.

He is a member of the registry, the national registry of interpreters for the deaf, and thus is bound to a very strict code as to what the interpreter’s function is.

It’s simply to translate American sign language into spoken English, spoken English into American sign language, and that’s it.

David H. Souter:

Mr. Ball, isn’t there a slightly different argument which has greater strength here, and that is not that the interpreter is going to inject a religious element that is not there, but that the interpreter is, as I understand it, a kind of necessary functionary for the religious message to get through?

David H. Souter:

And, therefore, the interpreter is… in effect, is just as necessary as having the teacher or the priest or whatnot there and, therefore, is just as much an integral part of the conveyance of the religious message as some of the equipment, for example, which was denied to schools under our prior cases under Meek and Wolman on the theory that they might be used for that purpose.

William B. Ball:

Well, in the first place, the interpreter is indeed, a… the window of communication of religion in the schools.

He will be conveying religion.

No doubt about it.

It’s a given in the case.

The fact that he does that does not put him… does not create an image of authority to him in any sense that a teacher has.

He… the respondents have said that he becomes part of a teaching team integrated, as you were saying, into the teaching apparatus of the school.

In fact, he’s not a member of… if he’s a member of the team, he’s a member as interpreter.

He doesn’t come under the strictures of Lemon… of Wolman and Meek in terms of the… in terms of his function.

David H. Souter:

Yes, but tape recorders, or whatever the equipment–

William B. Ball:

Yes.

David H. Souter:

–was in those cases, I suppose didn’t acquire any such aura either, and yet their potential use for the purpose of this kind of communication was forbidden.

And why isn’t this interpreter, even if we assume the kind of neutrality of the role that you describe, in the same boat with the equipment?

William B. Ball:

Well, you bring me back to Meek, Justice Souter.

In Meek, I find nothing by which the Court said that a hearing aid, for example, could not be loaned or provided to a… for the use of a child in a religious school.

David H. Souter:

Well, how about a hearing aid that is only used during school hours when the school’s purpose is religious?

That would have been a different case, wouldn’t it?

William B. Ball:

Well, in our case it’s used… the interpreter is used for the whole educational program, and there we get to the question of whether the fact that he is used for religious purposes, as well as secular purposes, results in a primary effect advancing religion.

David H. Souter:

Well, only because the school has secular, as well as religious, purposes.

William B. Ball:

Exactly.

David H. Souter:

And what I was trying to suggest is that it seems to me that the interpreter here is pretty much in the category not of the hearing aid that’s used during all waking hours and outside the school, but in the position of the equipment which is used only during the school, which was the problem in Meek and–

William B. Ball:

But it was a problem in Meek, if I may say this, only because the… of the massive size of the program.

I well realize what the Court said in Meek about the fact that the inanimate object could be turned to religious uses.

But as I’ve reread Meek very, very carefully, it’s quite clear that in an effort to distinguish the Meek situation from what the Court faced in Allen v. Board of Education, the Court was saying, well, here you’re into a massive program of supplying materials and supplies and equipment to parochial school systems.

I think the interpreter… I think if the boy must be denied this… the service of an interpreter here because it would be like the hearing aid and that the hearing aid was forbidden in Meek, I don’t think it becomes a realistic application of Meek.

Antonin Scalia:

–Mr. Ball, you’re not really going to try to reconcile all our entanglement cases, are you, or anything?

[Laughter]

Are you going to tell us why a globe is okay, but a book isn’t and you know?

William B. Ball:

The answer is that–

Antonin Scalia:

Senator Moynihan’s question, what about a map and a book?

William B. Ball:

–The answer is that I will not, Your Honor–

[Laughter]

You couldn’t.

[Laughter]

William B. Ball:

The next reason given by the respondent… and this was the reasoning… one reason of the court of appeals why the furnishing of the sign language interpreter to Jim would have had a primary effect advancing religion… is that it would have created a symbolic union of church and state.

And this can be… and the respondent addresses this under two headings.

One refers the… the first heading refers to the impressionable youngsters, Jim’s peers, who would be… who would see that interpreter as symbolizing a union of church and state, as an endorsement by the school district of a Catholic school.

I can only stretch my imagination so far, but it goes to the breaking point when I’m thinking of Jim’s peers, these impressionable youngsters, saying something like, guys, you see that fellow who’s making those signs.

Well, it’s like awesome.

Right here in chem lab we’re seeing a violation of the Establishment Clause–

[Laughter]

–of the First Amendment.

Byron R. White:

I thought the argument was for establishment that here is the State furnishing directly financial support for a sectarian purpose.

William B. Ball:

Yes, but–

Byron R. White:

None of that symbolism business.

It’s just that they’re… you’re not supposed to furnish money to a… you think the State could… under our cases could just pay for the… pay for… contribute to the sectarian schools the amount of that to the extent they are furnishing a secular education?

William B. Ball:

–I was dealing only with the question of a symbol, an image of endorsement, in the eyes of impressionable youngsters, and I simply don’t think that it… that that flies, that these children would do… would have any particular impression of it.

If they did, they might say the school district is helping Jim.

Well, that’s neat.

I would think that would be a far more likely image that the kids would have.

Secondly, they say that furnishing the interpreter would create the image of a joint enterprise of church and state.

This again… here they rely on Ball v. Grand Rapids School District, but there you had 40 sectarian schools.

You had a massive infiltration of teachers, public teachers, into religious schools.

You had leasing arrangements.

Nothing like the image that one boy with one interpreter in one school can conceivably provide to the public.

The–

Sandra Day O’Connor:

Would the case be different if we were dealing with a tutor for a homebound student in a parochial school, someone who had to convey their own views of the materials to–

William B. Ball:

–Oh, very much so.

Sandra Day O’Connor:

–instruct the child?

William B. Ball:

Very much so, yes.

William B. Ball:

Here the… sign language interpreters have been described to me as regarding themselves as nonpersons, which gets us very close to the hearing aid example that Justice Souter raised.

I think the primary effect that this furnishing of the interpreter would have is simply to enable a youngster to get an education in the general branches of learning.

The respondent says that the… that one reason why you can see a primary effect advancing religion here is that the parents chose a religious school, and their motivation was to get him a religious education.

Of course, it was, but was there not a far more obvious reason, namely, to get this boy equipped for the business of life by getting an education in the general branches of learning, learning the same math that will be learned in a public school, the same modern foreign languages, the same computer literacy, everything that he would get in a public school in order to enable him to become independent, to become self-sustaining, and to survive in a world not always hospitable to deaf people?

There has been much talk in the media about whether we are seeking an overruling in this case of Lemon v. Kurtzman.

Nothing in Lemon bars, as we see it, the providing of this service to this boy.

I think, however, that the respondents and their supporting amici come perilously close themselves to seeking an overruling of Lemon because they appear to ask this Court to strike the primary effects test from the Lemon test, and instead of saying primary effect, advancing religion, they seem to be urging the Court to say any effect accommodating religion.

I’ll reserve what time I have left for rebuttal.

William H. Rehnquist:

Thank you, Mr. Ball.

Mr. Bryson, we’ll hear from you.

William C. Bryson:

Mr. Chief Justice, and may it please the Court:

We agree with Mr. Ball that the principal issue in this case is whether the second test from Lemon is satisfied, and we submit that the primary effect in this case of the benefit that was conferred is not to advance religion and that the second test in Lemon, therefore, would indicate that this is not an establishment of religion.

I think it’s useful to look at perhaps the most succinct statement of the test under Lemon, the succinct… most succinct recent statement that this Court has made, and that comes in a concurring opinion of Justice Powell… excuse me… which was joined by two other members of the Court and was endorsed by yet another two members of the Court.

So, in a sense, it speaks for a majority of the Court in the Witters case.

And he said, quote, State programs that are wholly neutral in offering education assistance to a class, defined without reference to religion, do not violate the second part of the Lemon test because any aid to religion results from the private choices of individual beneficiaries.

Now, that is this case, as we see it.

This–

Antonin Scalia:

I’m a little concerned about the interpreter here.

He’s a public employee, isn’t he?

William C. Bryson:

–Yes.

Antonin Scalia:

And he is directed to go to a Catholic school and listen to sectarian theology and then impart it to… I assume he has to listen to it and understand it before he can translate it.

Right?

Doesn’t that trouble you?

It troubles me a bit.

William C. Bryson:

He has to understand the words.

I’m not sure he has to understand the–

Antonin Scalia:

Well, he has to listen to it.

William C. Bryson:

–Yes.

Oh, yes.

Antonin Scalia:

He has to listen to it.

Antonin Scalia:

I mean, what if he’s a… you know, an adamant anti-Catholic?

Can he turn down the assignment?

William C. Bryson:

Well, of course, he could turn down the assignment for any reason he chose.

He could turn down the assignment because he had to drive too far.

But typically with sign language interpreters–

Antonin Scalia:

This is… does the Federal Government let you do that?

I mean, it’s a–

[Laughter]

William C. Bryson:

–Well, he… this is a State government, Your Honor.

[Laughter]

Antonin Scalia:

A State government.

[Laughter]

William C. Bryson:

He could… typically sign language interpreters have many occasions in which they will hear things that they disagree with and will sign them nonetheless.

That’s just part of the job.

They are not expected to agree or disagree with whatever they’re signing, and they’re not expected to change, by virtue of their own predilections, anything that they hear.

Now, the themes that I think that you can trace through this Court’s Establishment Clause cases, in the aid to schools area at least, that we can tease out from Justice Powell’s statement are as follows.

First, where the service is made available directly to the individual as opposed to the school, you will ordinarily not find an Establishment Clause violation.

Similarly, where there’s a broad class that is the recipient of the service that is not based on religion… in this case, everyone who is the subject of a disability was a student… that also indicates no Establishment Clause problem.

Third, where the school gets no financial benefit out of the arrangement.

And here, I think in answer to Justice Stevens’ point that the school does, after all, get the tuition, this Court has been very clear in cases going back to Everson, which was the bus transportation case, and going through the Allen case and the Mueller case, the tax deduction case, and Witters, Witters in particular, that the fact that the school gets another student and the associated tuition is not enough to constitute a primary effect for Lemon, the second part of the Lemon test, purposes.

So, there’s no financial benefit here.

Salpointe is essentially in a position of just being a stakeholder with respect to the financial impact of this arrangement.

And finally, that… you have to ask the question of whether there is any expression of endorsement or support for the religious view that is being put forward or for religion at all.

And here again, we submit that there is neither any implicit support on the part of the State for anything that’s being said here in the religious school merely by virtue of the fact that the State is providing the child a means to hear what’s being said, nor is there any sense in which the State is somehow endorsing the message of Salpointe High School in general by providing an interpreter there.

The interpreter is serving as this child’s ears.

This interpreter is doing nothing more than performing at the State’s behest the service of enabling this child to hear whatever it is that–

Sandra Day O’Connor:

Mr. Bryson, may I ask whether it is clear here that the statute and regulations require the State to provide this service?

William C. Bryson:

–The statutes and regulations, Your Honor, do not require it.

The statute operates essentially as this.

The statute gives local educational agencies a great deal of freedom to design programs as they will.

William C. Bryson:

That may mean in some cases that the local educational agency will say we are going to provide certain services, but only in the public schools because it’s just impractical to do it.

There’s nothing that compels.

Sandra Day O’Connor:

That would be consistent with the Federal scheme.

William C. Bryson:

That’s right.

Sandra Day O’Connor:

And if Arizona’s constitution, for example, prohibited the furnishing of a… of services like this, that wouldn’t interfere with the Federal scheme at all.

William C. Bryson:

Well, there’s a provision… the short answer is no, it wouldn’t.

The somewhat longer answer is there is a provision in the statute that allows what’s called bypass, which is to say, if there’s something about local law that generally precludes a certain type of service, then you can go directly to the Federal bypass provision and you can get aid directly from the Federal Government.

So, there is a provision in the statute that deals with that problem.

But the way this case comes to the Court is that it was conceded all the way along that this service would be available to this child except for the fact that he was in a religious school and only then, not because of the choice of the school district, but only because the school district felt compelled by the Establishment Clause to say no.

This case has been purely an Establishment Clause defense to what otherwise would be the school district’s conceded acknowledgement that under their own policies they would provide the service to the child in place.

Now, the school district–

David H. Souter:

Mr. Bryson, may I just keep you interrupted for a moment more and go back to your point on the primary effects test?

If you accept the premise, which I think we all do, that the interpreter is necessary in order to communicate or to hear, however you want to put it, the message, and if you also accept the premise, which is that, I understand it, of the school, that the intertwining of the religious and the secular messages are… is inextricable–

William C. Bryson:

–Yes.

David H. Souter:

–that is, that is really the point of the school as they run it… does it make any sense to try to apply a primary effects test here?

The fact is the entirety of the message is going to have a religious content, a religious overlay, a religious reference, and there’s no way to communicate or to hear anything without communicating or hearing the religion.

Under those circumstances, does the primary effects test make any sense?

William C. Bryson:

I think it does, Your Honor, and that is because what we’re concerned with is asking… is, does this benefit itself actually have the primary effect of advancing religion?

Here, the State has acknowledged that he can get an education at this school that satisfies the State’s requirements.

So, they have defined this institution as a valid secondary school for Arizona purposes.

David H. Souter:

There’s no question it has a secular function too.

William C. Bryson:

That’s right.

Yes.

William C. Bryson:

You would apply primary effect to this case just as you would to the bus driver case or a case in which, for example, the school district provided… suppose we had a severely paralyzed child who needed a nurse to wheel him in a wheel chair from one class to another, including religion classes.

We submit that that would not have the primary effect of advancing religion because although the nurse’s availability would be necessary to his getting his education and in this place, the State would not be in any way promoting religion.

It would be making it possible, it is true, for him to have a religious education.

David H. Souter:

But the nurse would have no role in the communication of the message.

William C. Bryson:

Well, it would have the effect, just as the bus driver… the availability of a bus driver to drive him to school would make it possible for him–

But it is not–

William C. Bryson:

–to receive the message.

David H. Souter:

–I’m sorry.

But at least in those hypos, the functionary was not inextricably bound up with the communication of the message itself.

William C. Bryson:

Well, I think that the only difference, Your Honor, is that in this case the State employee is actually mouthing words as opposed to performing some other service that’s inextricably associated with the receipt of the message.

Take, for example, another hypothetical, a technician on a computer that serves to translate written materials into spoken materials, and there are such computers for someone who’s blind.

Well, the technician isn’t actually speaking the words.

It’s not like a blind reader, but the technician is equally central, essential to the operation of communication.

And we would say that that is perfectly all right under the Establishment Clause.

Thank you.

William H. Rehnquist:

Thank you, Mr. Bryson.

Mr. Richardson, we’ll hear now from you.

John C. Richardson:

Mr. Chief Justice, and may it please the Court:

The constitutional question presented in this case is whether Federal law can require a public school district to hire and place in a parochial school classroom an employee to actively participate in a student’s religious education.

The First Amendment answer to this question is no.

In 1970–

Byron R. White:

–if the money from the school district went directly to the parents to hire a… an interpreter?

John C. Richardson:

–We would not, Your Honor.

Byron R. White:

Why not?

John C. Richardson:

Because this Court’s decision in Witters case has indicated that there’s a difference… and we think there is a crucial difference… between a public employee, standing as a public employee in the classroom and in… and conveying religious information to James than if the State on a one-time payment pays his family for a service that he needs because in that case, the person in the classroom conveying religious information is a… is the Zobrest’s employee, not the school district.

Byron R. White:

So, a public… suppose the interpreter, the sign language interpreter, in a public school is paid on a piecework basis and the… and but that same public person is paid by the parents on a piecework basis to go over to the parochial school.

Would that bother you?

John C. Richardson:

I’m not sure I understand the question, but I think the critical distinction is, if I understand the question, is… to me is whether the person in the classroom that’s transmitting the religious information is or is not a public employee functioning at public expense.

We think in Witters, this Court carved out an exception that said when the State provides money to a student or his family and then takes a hands-off approach… and that’s a second condition that we think would be necessary that is not present in this case also… takes a hands-off approach, other than saying here’s what it’s for, but after that, you go get the service, if Mr. Witters in the State of Washington is going to go out and receive education to become a pastor, we don’t see why Mr. and Mrs. Zobrest could not go out and purchase this–

Byron R. White:

Well, what about the school district just giving money to the parochial school to hire a sign language interpreter?

John C. Richardson:

–Of course, that’s a different scenario between giving money to the school and the parent, but I will address that one.

We don’t think we could give money to the school.

We only think we could constitutionally, under Witters, give it to the parent or student.

But there are two reasons why that doesn’t happen.

First, the Individuals with Disabilities and Education Act does not permit us to, and second, the petitioners in this case have made it very clear that they are not seeking money.

They are seeking a service.

They have made it unambiguous, but what they want is a public employee standing in that parochial classroom and informing James Zobrest, after hearing it from the teacher, that there’s life after death.

John C. Richardson:

That’s make a critical distinction.

Sandra Day O’Connor:

Mr. Richardson, what is the Arizona program here?

Does it provide interpreters for deaf children in private schools in Arizona?

Is that Arizona’s policy?

John C. Richardson:

Across the board?

We don’t know because we haven’t gotten there.

I am not aware of any situation where a deaf person… a deaf student has been in a private school.

One of the reasons… the way this case arose–

Sandra Day O’Connor:

What is… what policy are we looking at then?

John C. Richardson:

–We are looking–

Sandra Day O’Connor:

The policy of the school district, this particular school district in Catalina Foothills.

John C. Richardson:

–We’re not even looking at a school-wide policy because these things are so… this particular application is so unusual.

The school district… the State policy is to provide generally related services in special education.

It doesn’t get defined down to a fine tune, but it is not on a student-by-student basis.

It’s just overall.

One of the difficulties in these kind of cases–

Sandra Day O’Connor:

But do you… was it conceded below that Arizona and the school district are required to provide an interpreter to a deaf child?

John C. Richardson:

–We think it is not conceded, and we disagree with respondents in this… in the position–

Sandra Day O’Connor:

Why wasn’t that ever raised or discussed or dealt with?

I don’t understand.

John C. Richardson:

–We’ll explain why.

We think there are three potential bases why this case could have been decided.

And we, in our summary judgment, rose only the Federal constitutional issues, and that’s why the case has come to this point.

We also think there’s a statutory argument to be made, and we think there’s a State constitutional argument to be made.

Sandra Day O’Connor:

But the respondent never made the statutory argument?

John C. Richardson:

We did not yet in the case.

Sandra Day O’Connor:

Or the State constitutional argument.

John C. Richardson:

We did not yet because we can choose to bring a motion for summary judgment on a particular issue.

We brought it on one issue.

It did not… and we won on that particular issue.

John C. Richardson:

We stated expressly in our briefs that we think the remaining issues would remain unadjudicated.

Anthony M. Kennedy:

Well, counsel, at page 34 of the joint appendix, it recites your opposition to the motion for preliminary injunction.

John C. Richardson:

Yes.

Anthony M. Kennedy:

And it says the district admits that the EHA requires it to provide for James, as part of a free, appropriate public education, the services of a sign language interpreter so long as James is educated in a nonparochial setting.

Now, it seems to me that that is a very, very clear concession on your part, and I could point you to two or three similar statements you’ve made in the answers to the interrogatories and in your brief to the Ninth Circuit on this point.

John C. Richardson:

Okay.

That… well, I agree that… this case was filed on August 1.

In the rush of the preliminary injunction hearing, we made that statement in the opposition, and that statement is legally incorrect.

We do not think we have any judicial estoppel from that legal conclusion.

We think that if the district court thinks so, fine, but we don’t think the district court will think so.

There was no argument in this case–

Anthony M. Kennedy:

Well, the Ninth Circuit made a finding that… made a finding error, at least proceeded on the explicit assumption that this was your position.

John C. Richardson:

–My–

Anthony M. Kennedy:

And it seems to me that you’re putting the Ninth Circuit and this Court in a very difficult position by trying now to tell us that the argument is still open.

John C. Richardson:

–I understand that the Ninth Circuit made that statement and that surprised me.

In our brief in the Ninth Circuit, we state expressly on page 6, footnote 3 of that brief that it has never technically been necessary to litigate the statutory issue.

We did admit… and I think is where the Ninth Circuit made its error in that statement.

We did admit and will admit today that James… if James Zobrest had attended a private, nonparochial school, we would have provided it.

There’s a difference between would have provided it and would have been required to provide it under the statute.

But you–

John C. Richardson:

We have always admitted that.

Byron R. White:

–The only reason that you didn’t provide it to him was because he was going to a parochial school.

John C. Richardson:

That’s correct.

Byron R. White:

Any other private school, you would have provided it.

John C. Richardson:

We would… we would have provided it, but I think there’s a distinction there between would have legally been required to provide it and would have.

William H. Rehnquist:

But the only reason you did not provide it to him at a private was… at a private parochial school, as opposed to another private school, was your concern about the Establishment Clause.

John C. Richardson:

That… that’s correct.

We don’t deny that, that we would have voluntarily done that.

The only concern that came up at the time was the Establishment Clause concern, and that’s true.

And we’re admitting that.

John C. Richardson:

We knew–

David H. Souter:

Well, isn’t it also the case that you have not stipulated or agreed that you are required to provide it in a parochial school?

John C. Richardson:

–That’s correct.

The stipulation… once we got past that preliminary injunction hearing, we very carefully stipulated in the stipulation of facts–

David H. Souter:

Well, even before that.

I mean, you never stipulated at the injunction hearing that you were required to provide it in the parochial setting, did you?

John C. Richardson:

–That’s absolutely correct.

There has never been a statement ever made by the respondent school district that we would be legally required.

We would have, but not legally required.

You would have done it.

John C. Richardson:

We would have.

Antonin Scalia:

The only reason you didn’t do it was because it was–

John C. Richardson:

Yes.

Antonin Scalia:

–And had this been a private school, it would have been done.

John C. Richardson:

That’s right.

James Zobrest is–

David H. Souter:

Well, before you go on with that, may I ask you this?

Don’t you understand there to be at least a potential difference under the regulations between what you may be provided or, indeed, permitted to do with respect to a child in a parochial school and one who is in a private, but nonreligious school?

Isn’t there a potential distinction at least there?

John C. Richardson:

–I think that you can… there’s a potential distinction, but I think the bigger distinction is between public and private in general.

I think the United States–

Well, I don’t want to put too–

John C. Richardson:

–amicus brief makes very clear–

David H. Souter:

–Well, I don’t want to put too fine a point on it, but I’m looking at the regulation, which is set out on page 45a of the Government’s brief, which I assume is applicable here, that no State may use its grant… and I’m skipping inessential language… to pay for religious instruction.

Doesn’t that have an effect in distinguishing between church and nonchurch private schools?

John C. Richardson:

–Absolutely, and let’s use an example.

Many students under the IDEA have mental disabilities.

They need the services of a one-on-one aid to assist them academically in the classroom.

Now, in many cases, when a student attends a nonparochial school, a private nonparochial school, we may choose to give that aid because all they’re going to do is assist the student in a secular education.

But if you take that exact situation and put it in a parochial school, you would have an employee whose job it would be to reinforce educational doctrine.

John C. Richardson:

James Zobrest himself, when he went to junior high school at Catalina Foothills School District, was not only provided with a sign language interpreter, not only provided with speech therapy, but he… but the IEP, which is in the record, states that he was provided academic classroom assistance.

Now, I can think of few situations that would be more counter to the First Amendment than to think of an employee sitting in a parochial classroom not even mechanically signing, but assisting in his required class on religion and the other classes–

Byron R. White:

Well, now, you said a moment ago that except for the Establishment Clause, you would have been willing to furnish this service.

John C. Richardson:

–Yes.

Byron R. White:

Apparently you thought that the Federal Government… the act and the regulations would have permitted you to do so.

John C. Richardson:

No, not for this service.

For other services.

We continue to provide him speech therapy services because those are unrelated.

We would not–

Byron R. White:

Yes, but do you think the regulations under the act would have permitted you to… without any thought of the constitutional issue, do you think the regulations would have permitted you to do this at the parochial school?

John C. Richardson:

–No, because those regulations have what they term the Edgar regulations, that have been discussed in the brief, that prohibit any of these program monies to go for religious instruction.

Byron R. White:

Why didn’t you raise this statutory argument?

John C. Richardson:

Because it was not raised… because that–

Byron R. White:

Why didn’t you raise it?

John C. Richardson:

–Because the reality of dealing with the statute is that you have to look statewide, because it’s going to take a long, expensive trial because the answer isn’t a simple yes or no like I probably just told you, but it would depend on the number of statewide students in private schools who have disabilities.

The United States has consistently taken the position in these cases that whether a particular private school student is entitled to a particular service requires you to look statewide at all the private school students with disabilities and whether they’re generally provided equitable opportunities.

Byron R. White:

Well, I’m surprised the United States argument here is with the petitioner, and I would have thought they wouldn’t be there if they thought that the Federal act would have forbidden you to furnish these services.

John C. Richardson:

Well, they don’t because they think Edgar is… these regs are consistent with the First Amendment, and they don’t think the First Amendment is violated.

We think the First Amendment is violated, and even if we accept their premise that the Edgar regulations merely restate the First Amendment, we obviously think, since the First Amendment is violated, so is Edgar.

So–

David H. Souter:

I’m sorry.

May I ask you to clarify one thing for me?

In your response to Justice White, you spoke about the need to make a judgment statewide about the appropriateness of your providing this kind of service in a private school and so on.

John C. Richardson:

–Yes.

David H. Souter:

Aren’t you addressing in that answer a different regulation from the one that I mentioned?

Aren’t you addressing the regulation that… I couldn’t possibly quote it, but it speaks something about its being equitable to provide these kinds of services in a private school setting?

John C. Richardson:

Yes.

David H. Souter:

All right.

Now, that… but that’s a different regulation from the one that I mentioned.

John C. Richardson:

Yes.

David H. Souter:

And I presume… and I’m not suggesting that you take a final position on this any more than I would, but I assume that in any argument, based on the statute and the regulations issued under it, you would also have based an argument on the section that I quoted a moment ago, which has nothing to do with statewide practice, does it?

John C. Richardson:

Yes.

We had already been informed, however, that that just mirrors the First Amendment, and so the United States had taken positions before with the Department of Education in letter rulings that those two are coextensive.

So, the Court ends up always looking at the constitutional issue to define that.

Now–

David H. Souter:

So, basically you wanted to keep the United States off your back, and you realized you were not going to have any trouble with the United States on that issue.

And that’s why it was not litigated.

John C. Richardson:

–Yes.

David H. Souter:

Okay.

John C. Richardson:

I mean, our funds have eventually come… at least 11 and a half percent of them… from the United States, and if we take a distinction… a variance between that statute and the Establishment Clause, we aren’t going to be considered in compliance.

Sandra Day O’Connor:

Mr. Richardson, if what the State provided for a student was simply a hearing aid so the student could go to the parochial school and hear the instruction, is that prohibited by the First Amendment?

John C. Richardson:

It depends how the hearing aid is provided.

I think the relevant distinction was made in the earlier argument.

If a hearing aid is provided for an individual’s general use, I think there is no constitutional concern.

Sandra Day O’Connor:

What if it’s available only for use in school?

John C. Richardson:

And if we add the fact, under the Individuals with Disabilities Education Act under 34 C.F.R. 76-652, that the State must have continuing administration, control over that property, I think this Court’s lessons in Meek and Wolman would say that is not permitted.

Sandra Day O’Connor:

You would rely on Meek.

John C. Richardson:

Yes, I would rely on Meek and Wolman, plus the added fact that under this particular statutory scheme, the State for that property… again, it’s unlike the money.

They can’t just give it to the student and say now it’s yours.

They must maintain continuing control over that property.

But we also–

Sandra Day O’Connor:

So, if the State just loaned it to the student.

John C. Richardson:

–Well, if they loaned it and could take a hands-off, that would probably provide a different answer, but that’s not what’s permitted under the IDEA.

William H. Rehnquist:

Why should there be that sort of difference?

John C. Richardson:

Because–

William H. Rehnquist:

Now, you’re talking about a difference for First Amendment purposes?

If they loan it and don’t undertake to repair it, it’s okay under the First Amendment, but if they loan it and undertake to maintain it, it’s not?

John C. Richardson:

–It’s not just the repair, but it’s the continuing jurisdiction and control, and maybe simply a loan isn’t enough.

Maybe they’d have to completely give it.

But they can give money to a student.

John C. Richardson:

Perhaps they could give the hearing aid too.

It takes the State issue out of it because is it the State’s hearing aid in the classroom, or is it James Zobrest’s hearing aid?

If it’s James Zobrest’s hearing aid, I have no concern.

William H. Rehnquist:

And the First Amendment turns on that sort of fine spun distinction?

John C. Richardson:

Well, look at what we have in Witters.

The State is able to give–

William H. Rehnquist:

Maybe the answer is yes.

John C. Richardson:

–Yes, it is.

[Laughter]

I mean, the answer is yes because, look, they can give Mr. Witters the money and he can go learn to be a pastor with it, but they couldn’t pay the thing to–

William H. Rehnquist:

Maybe it’s time we tried to straighten out some of that.

John C. Richardson:

–That would be fine, but I also think what you have is a situation–

William H. Rehnquist:

You want to be careful.

[Laughter]

John C. Richardson:

–I also think you have a situation where we think there is a critical distinction between a machine and a human being, and they like to equate it to a hearing aid.

But you’re never going to consider a hearing aid part of the educational team.

You look at exhibit A to the Arizona School Boards Association amicus brief.

It’s a document entitled Educational Interpreting for Deaf Students: A National Task Force.

The professionals in the area say an interpreter is… should properly be considered part of the educational team working in close cooperation with the school teacher to impart the educational lessons of the teacher.

In this case, those educational lessons are spiritual as well as secular.

You’re never going to say that the hearing aid is part of the team.

Byron R. White:

If somebody had invented a robot that could listen and then give… make these signs, sign language, sort of like simultaneous translations in the U.N., you wouldn’t be here I suppose.

John C. Richardson:

Well, no, I think that presents a much more difficult situation than ours, but under Meek v. Wolman, if you… I see no difference between that and a tape recorder.

And also, in Meek v. Wolman–

But it wouldn’t be a–

John C. Richardson:

–they only had the potential to be used for–

Byron R. White:

–It wouldn’t be a public employee.

John C. Richardson:

–It would not be a public employee.

That’s right.

But either is a tape recorder, and right now the tape recorder is constitutionally prohibited.

John C. Richardson:

And the only distinction that Mr. Ball makes is the massive size.

But I think that’s a distinction without a difference.

How can we provide, you know, 1 Bible to a student as opposed to 500?

Where do you draw the line?

How many mechanical devices would we have to give to assist parochial school students in their parochial education before it would become a massive program?

Antonin Scalia:

Can the public provide a hall at which a religious ceremony is conducted?

[Laughter]

John C. Richardson:

Absolutely.

Antonin Scalia:

Absolutely.

John C. Richardson:

Passive accommodation.

Antonin Scalia:

But not the loud speakers.

John C. Richardson:

I think that’s still passive accommodation to rent–

Antonin Scalia:

Oh, the loud speakers are okay.

John C. Richardson:

–To rent the loud speakers.

Antonin Scalia:

But when we get into tape recorders, that’s bad.

John C. Richardson:

There’s a difference between engaging in a religious activity.

In 1970, what we started out… even before Lemon, this Court said that there are three evils that the First Amendment seeks to prevent: sponsorship, financial support, and active involvement of the sovereign in a religious activity.

I do not believe that merely rental or fair market value is anything more than passive accommodation.

I don’t think that’s active involvement in the sovereign even if they rent the whole hall.

But I think when you take a public employee, and you ask that public employee to go to work and during that person’s job duties to convey to James Zobrest that Jesus Christ was the son of God or that he died to save his sins, I think that’s active involvement in a religious activity.

Antonin Scalia:

What about a public employee driving James to the school where he’s going to learn about God?

John C. Richardson:

I have no problem with that at all.

Antonin Scalia:

That’s okay, though.

John C. Richardson:

Because that does not involve them in the delivery of the religious message.

We provided James Zobrest speech therapy services throughout his four years at Salpointe, and we had no objection to doing so.

And if that made James Zobrest more successful in his education at Salpointe, so be it.

We don’t… we have no problem with providing related services that don’t make the public employee become integrally involved in the religious indoctrination that occurs in a parochial school classroom.

We even had an example about someone pushing someone around in a wheel chair.

I think that’s a substantially different case.

You just can’t make it… the only thing they try to… because the wheelchair pusher is not going to be involved–

Antonin Scalia:

Like the bus driver.

John C. Richardson:

–Absolutely.

Those are very different.

But what they try to do is make the distinction that because this person operates mechanically, therefore, per se, he cannot be… he or she can’t be involved in a religious activity.

Therefore, that follows.

Well, let’s look at another example.

Let’s look at an altar boy in church.

An altar boy moves the missal from one side of the altar to the other.

He takes the wine and the water to the priest to assist in preparation of communion.

He lights and put… puts out candle.

Every activity that altar boy undertakes is choreographed in advance.

Every genuflect has been done the same way for 10 years.

The altar boy exercises no discretion at all, but is there any doubt that that person is involved in a religious activity during those activities during Sunday mass?

Of course, not.

The same is true with the interpreter in this case.

There are many, many related services that the school district can give that will not involve the employee in the direct religious indoctrination process.

The school district has no problem with–

Anthony M. Kennedy:

What is the objection to the involvement?

That it will be seen as sponsorship by the State?

John C. Richardson:

–Absolutely.

It is not even just sponsorship.

Anthony M. Kennedy:

Well, does it depend on the reasonable perception of the reasonable observer?

John C. Richardson:

Yes, but you know, in this… and it does.

But when you look at… it has to be both a subjective… as Justice O’Connor said in her concurring opinion in Lynch, there has to be both a subjective and an objective determination in that regard.

And as this Court’s opinion said last term in Lee v. Weisman, it is beyond dispute that at a minimum the Constitution guarantees the Government may not coerce anyone to support or participate in religion or its exercise.

Even the Justices that dissented in Lee v. Weisman stated expressly that they agreed with that proposition.

Antonin Scalia:

Mr. Richardson, if that is the problem, if there is some difficulty, symbolic or otherwise, about having a public official in this context, then don’t you think maybe the State has some other… some obligation in some other fashion not to impose upon a family with a deaf child a disincentive to go to a religious school?

The child is, in effect, told go to any school you want.

You will have an interpreter.

But if you go to a religious school, no interpreter.

Antonin Scalia:

Now, is that consistent with neutrality?

John C. Richardson:

I believe it is in this situation because let’s say James needed a tutor to help him academically.

We would say the same thing because if you go to any school other than this… than a parochial school, it would… we don’t have to do anything but provide you a secular education.

Antonin Scalia:

But you just repeated it.

Why does that make it fair?

I mean–

John C. Richardson:

It makes it fair–

Antonin Scalia:

–Tell me why–

John C. Richardson:

–because this Court has always acknowledged a limitation on what we have to do when it transcends the Establishment Clause.

Antonin Scalia:

–The only limitation… but you… but there are other ways to get around it.

If that does violate the Establishment Clause, then pay cash money to the parents.

John C. Richardson:

We’d be–

Antonin Scalia:

But there should not be a disincentive to the parents to send their child to the parochial school, should it?

John C. Richardson:

–And if Congress wants to amend the statute to permit that option, that would be fine.

Antonin Scalia:

No.

I’m saying maybe one option or the other must be given.

John C. Richardson:

We don’t have any authority to give another option.

We don’t have authority, statutory authority, in Arizona to pay the parents directly, and that… it’s like books.

I mean, you know, if he chooses to go to the public school, he gets all his books for free.

He doesn’t get all his books for free when he chooses to go to a parochial school.

And certainly you could provide free secular textbooks, but it’s still just a disincentive that he’d have to pay for his religious texts.

Antonin Scalia:

But that’s different.

I mean, that’s… you go to the public school or not.

But this is saying even if you don’t go the public school, you can go to any other school and get the interpreter, but not to a religious school.

John C. Richardson:

The same way with field trip transportation.

Antonin Scalia:

And that’s neutrality.

John C. Richardson:

That is neutrality as this Court has defined it because we have the limitation of the Establishment Clause that public employees shouldn’t become involved in religious activities.

I mean, if we provide it, if we–

Antonin Scalia:

You don’t have to get them involved in religious activities.

You could pay for the services.

John C. Richardson:

–Okay.

We cannot pay for the services as the Federal law is established, and all we’re saying is in this particular application, under the Individuals with Disabilities Education Act, we can’t provide the particular service.

It only allows us to provide the service because it would make us become directly involved in a religious activity or, as we said last term, in the support of religion or its exercise because what is going on in that classroom is the exercise of religion.

And that limitation has always been.

Even the States that said we will give you secular textbooks still didn’t give them all the textbooks.

Even the ones that said we’ll give you bus transportation still doesn’t give parochial students field trip bus transportation because that’s–

Antonin Scalia:

Do you like that distinction?

John C. Richardson:

–I like the distinction–

Antonin Scalia:

That has never struck me as one of the better ones.

[Laughter]

John C. Richardson:

–I like the distinction that public employees cannot be involved in religious activities.

You… you know, if this Court wants to reanalyze whether bus transportation is that, so be it.

Antonin Scalia:

–religious activity, busing them to the zoo for a field trip?

John C. Richardson:

I don’t believe so.

Antonin Scalia:

Yes, I don’t think so.

John C. Richardson:

But I think the interpreter’s activity of informing James Zobrest whether there’s everlasting life is and I think that’s the importance in this case.

In summary, the school district has no objection to the fact that Congress requires it under the IDEA to provide public school students special education and related services and even, under some circumstances, to private school students.

We have no objection to the fact that James Zobrest, who’s an outstanding young man, chose to attend Salpointe.

We gladly provided him speech therapy services, and you can’t use the but for analysis that the Government would.

If that speech therapy allowed him to perform his academic… to do academically better, so be it.

We draw the line in only one place.

When that Federal law… when someone tells us that that Federal law makes us take a public employee and put them in a parochial school classroom to have daily essential involvement in the religious educational process in that classroom, under those circumstances, the governing board members must be able to assure themselves and their taxpaying constituents and their employees that their monies and that their efforts are not being used to religiously indoctrinate a student.

The school board asks nothing more, and the First Amendment commands no less.

Thank you.

William H. Rehnquist:

Thank you, Mr. Richardson.

Mr. Ball, you have 1 minute remaining.

William B. Ball:

Thank you, Your Honor.

I was interested that Mr. Richardson referred to the Arizona School Boards Association brief amicus curiae in connection with his argument that the interpreter will fulfill a teacher’s function.

Exhibit… or the first appendix to the Arizona School Boards’ brief amicus is the report of the National Task Force on Educational Interpreting, and it says that the interpreter’s task in a school is interpreting.

That’s his priority.

William B. Ball:

It goes on to say that the role of the educational interpreter should not include classroom management, that is to say, formal instruction and classroom supervision.

The Court in Meek spoke of teachers and said the teacher remains a teacher.

Well, the interpreter remains an interpreter very, very clearly under the ethical code.

My second point is–

William H. Rehnquist:

Thank you, Mr. Ball.

The case is submitted.