Zobrest v. Catalina Foothills Sch.
509 US 1 (Decided June 18, 1993)
Bill Long
Though the Court may have reached unanimity 11 days previously in another Establishment Clause case (see Lamb's Chapel), it returned to its 5-4 near-deadlock in this case when it held that the Catalina Foothills School District did not offend the Establishment Clause by supplying an interpreter for a deaf parochial school student to accompany him to his classes and interpret the lessons to him each day. Only two Justices (Blackmun and Souter) dissented on the merits of the case, however. All four dissenters (also including Justices Stevens and O'Connor) would have vacated the decision below, which disallowed the practice, and remanded for a hearing on how the practice comported with both the Individuals with Disabilities Education Act (Act) and the regulations adopted under it (especially 34 CFR 76.532(a)(1)).
Relevant Issues
Both the District Court and the Ninth Circuit disallowed the supplying of such an interpreter, on the grounds that the interpreter would act as a conduit for the child's religious inculcation. The Ninth Circuit applied the Lemon test, and concluded that the supply of such an interpreter violated the "effects" prong of that test.
Chief Justice Rehnquist, writing for the majority, had two issues on his plate. First, why should the Court issue an opinion on the constitutional merits of the issue when the alleged violation was of a statute and federal regulation and the Court's practice was not to decide 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? The Chief Justice pointed out that this practice could be ignored in the instant case because at both levels below, the central issue presented for judgment was the constitutional one. On this point the dissenters accused the majority of issuing an advisory opinion because, by avoiding the meaning of the Act or regulation, the Court was merely saying what might be permissible under the Establishment Clause and not what must be forbidden (or allowed) under the Act and regulation.
Having disposed of the procedural objections, the Chief Justice, second, turned to the merits of the case and concluded that the provision of services here was more like the neutral benefits provided in Mueller (1983) and Witters (1986) than like those forbidden in Meek (1975) and Ball (1985). In Mueller, for example, the Court rejected an Establishment Clause challenge to a MN law allowing taxpayers in to deduct certain educational expenses in computing their state income tax, even though more than 90% of the deducions went to parents whose children attended sectarian schools. The key issue was a general benefit made available to citizens. Likewise, in Witters the Court held that the State of Washington could not forbid, under the Establishment Clause, aid to a blind student if he wanted to use it at a Bible College and planned to study to be a pastor or missionary. The point in Witters, which was significant for the Court in this case, is that any aid that flowed to the religious institutions did so only as a result of the genuinely independent and private choices of aid recipients.
Here, too, the aid flowed to the parents of the deaf student, and they could have chosen to use the aid in a variety of school settings. The fact that they chose to the interpreter in a Catholic school did not remove the indirect character and general availability of the aid, as well as the choice of options possessed by the parents.
The Dissent on the Merits
I have already mentioned the procedural problem the dissenters had with the majority decision. With respect to the merits, the two dissenters argued that the key difference between Zobrest and earlier cases was that this was the first time in which the Court authorized a public employee to participate directly in religious indoctrination. An interpreter for the deaf is quite different than the mere provision of tuition aid for a blind person. The interpreter represents the public schools (the state) and must, as part of his or her job, be the conduit of religious knowledge. Both sides stipulated that the secular and the religious were "inextricably intertwined" in Salpointe High School, where Zobrest attended, and the interpreter would certainly have to communicate the content of the theological instruction to the student as well as the words of Mass, attendance at which was mandatory.
Crucial for the dissenters was the difference between the provision of something whose content was immutable (textbooks, which were approved in Allen), and the provision of the medium for communication of a religious message (as here). As they said, "This case..involves ongoing, daily, and intimate governmental particpation in the teaching and propagation of religious doctrine." This union of church and state in the pursuit of a common enterprise is likely to place the imprimatur, so to speak, of governmental approval upon the favored religion.
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