# Amicus Curiae Brief — Zobrest v. Catalina Foothills School Dist. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0332%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1993 - **Citation:** 509 U.S. 1 ## Text No. 92-91 ~ + - . Ley: >. Iu the Supreme Court of the United States OCTOBER TERM, 1992 BRIEF FOR THE UNITED STATES AS AMICI (LRA SUE PPORTING PETITIONERS ’ ' Ki ‘ ’ . ~ ~ 4} i { / - | ’ if } ‘ | l), / R ‘ ’ . | D TT »? QUESTIONS PRESENTED The United States will address the fol! »wing ques- tions: 1. Whether the Establishment Clause of the First Amendment prevents a government from providing a sign-language interpreter to a deaf child in a sec- tarian high school as part of a general program pro- viding interpreters to similarly handicapped children in all schools. 2. Whether the Individuals with Disabilities Edu- cation Act, 20 U.S.C. 1400 ef seg. (1988 & Supp. II 1991), or regulations promulgated under that Act, prohibit local authorities from using funds granted under the Act to provide a sign-language interpreter to a deaf child in a sectarian high school. (1) TABLE OF CONTENTS Interest of the United States Constitutional, statutory, and regulatory provisions involved Statement Summary of argument Argument: I. The Establishment Clause does not prohibit neutral government programs designed to aid individuals that incidentally may benefit both sectarian and non-sectarian institutions A. The IDEA has a secular purpose: to assist in the education of children with disabili- ties B. Because the IDEA neutrally provides bene- fits to a class defined without reference to religion, it has a permissible and secular primary effect C. The IDEA does not result in excessive en- tanglement with religion Il. Neither the IDEA ner regulations under the IDEA bar respondent from providing an inter- preter to a deaf child in a sectarian high schow! Conclusion Appendix TABLE OF AUTHORITIES Cases: Aaquilar Vv. Felton, A473 US. 402 (1985) 2. Roard of EKducation vy. Merqens, 196 US. 296 (1990) 2.11.12 Bowen V. Kendrick, 487 U.S. 589 (1988) County of Allegheny Vo American Civil Lihertios T’wion, 492 U.S. 573 (1989) (III) Page 14, . 16, 2.17 fo 3 1] 14 22 18 .u4 IV Cases—Continued : Page Edwards Vv. Aquillard, 482 U.S. 573 (1987) 14,16 Everson V. Board of Education, 330 U.S. 1 (1947) 17 Goodall V. Statiord County School Board, 930 F.2d 363 (4th Cir.), cert. denied, 112 S. Ct. 188 (1991) “ Se ASE een Comes . 24 Lee V. Weisman, 112 8. Ct. 2649 (1992) 15 Lemon V. Kurtzman, 403 U.S. 602 (1971) 9,11, 14,17 MeDaniel Vv. Paty, 435 U.S. 618 (1978) 13 Meek V. Pittenger, 421 U.S. 349 (1975) 12, 19, 29 Mueller Vv. Allen, 463 U.S. 388 (1983) 9, 15, 16, 17, 18, 22 Pulido V. Cavazos, 934 F.2d 912 (8th Cir. 1991) {Nn Roemer V. Board of Public Works, 426 U.S. 736 14 School District V. Ball, 473 U.S. 373 (1985) 9, 12,19 Wallace Vv. Jeffree, A472 US. 38 (1985) 14 Widmar V. Vincent, 454 U.S. 263 (1981) 17-18, 19 Witters Vv. Washington Department of Services for the Blind, 474 U.S. 481 (1986) 9, 12. 17, 18, 23 Wolman V. Walter, 433 U.S. 229 (1977) 20, 22 Constitution, statutes, and regulations: U.S. Const. : Amend. I ( Establishment Clause) passim Amend. I (Free Exercise Clause) 8, 10,11 Act of Apr. 13, 1970, Pub. L. No. 91-230, § 601, 84 Stat. 175 3 Elementary and Secondary Education Act of 1965, 20 U.S.C. 2701 ef seq. (1988 & Supp. Il 1991) 2 20 U.S.C. 2791 «f seq. (1988 & Supp. Ul 1991) 4 Individuals with Disabilities Education Act, 26 U.S.C. 1400 ef seq. (1988 & Supp. IIT 1991) 3 20 U.S.C. 1400(a) (1988 & Supp. II] 1991) 3, la, = 2ha 20 U.S.C. 1400(b) (1988 & Supp. 111 1991) 15, la, Pha 26U S.C. 140016) 01) (Supp. IIL 1991) 3, 26a 20 U.S.C. 140006) (3) (Supp. HT 1991) %, 26a 20 U.S.C. 1400(b) (8) (Supp. 111 1991) 15, 16, 27a y Statutes and regulations—Continued : : Page 20 U.S.C. 140006) 09) (Supp. 11 1991) 16, 27a 20 U.S.C. 14006e) (1988) 9, 2a 26U S.C. 1400e) (Supp. 111991) 4,11, 27a 20 U.S.C. 140 2 20 U.S.C. 1411-1420 (1988 & Supp. ITT 1991) 4, $u-25a, 27a-44a 20 U.S.C. 1412-1414 (1988 & Supp. ITT 1991) » 3a-25a, 27a-Aia 26 U.S.C. 141212) (BR) (Supp. 11 1991) 4, 2Ra 20 USC. 1413tay (4) (1988 & Supp. II 1991) 5, Ra-9a, 34a-35a 20 U.S.C. 14123 (a) (4) 0A) (Supp. IT 1997) 5, 23, 34da-35a 20 US. 1413tar C4 OB) (Sapp. I 1991) 5, 35a 2OU S.C. 1415 tep C40 AD - 20 U.S.C. 1419 (1988 & Supp. 11 1991) 4 Special Education for Exceptional Children Act. $$ 15-761 «f eey.. Ariz. Rev. Stat. Ann. (Weet 1991) 3 34C_.F.R.: Pt. 76: Section 76.1 8. a Section 76.522 3, 7, 22, 45a-4Ga Section 76.532 (ap (1) 7, 23, 45a Section 76.532(a) (2) 7. a Section 76.5232 (a) (3) 7. 45a Section 76.532 (a) (4) 7. Ma Sections 76 650-76 (42 3, Ma-52a Sections 76.651-76.662 5, A7a-52a Section T6.65liay¢l) 6, 23, 47a Section 76.6510) §, 1Ra Section 76.65% (a) 6. 18, 5a Section T6.65R8 (hb) 6. 51a Section 76.659 6. 5la Seetion 76.602 6, 52a MCPR.: Pt. 30 5 Sertion-< “ie tite Sew 2 ~ 3%. 53a-Sia Vi Reyulations-—C ontinued : Section 300.403 (a) Section 300.451 (b) Section 300.152 Pts. 300-338 Miscellaneous : Dixie Snow Huefner & Steven F. Huefner, Pwb- liely Financed Interpreter Services for Paro- chial School Students with IDEA-B Disabilities, 21 J.L. & Educ. 223 (1992) U.S. Dep't of Education, To Assure the Free Ap- propriate Public Education of All Children with Disahilitios ¢ 1992) 20-21 Iu the Supreme Court of the United States OcTOLER Tero, 1992 No. 92-94 LARRY ZOBREST, ET AL., PETITIONERS 0. CATALINA FOOTHILLS Scroor. District ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONERS INTEREST OF THE UNITED STATES The principal question in this case is whether the Establishment Clause permits a government author- ity to provide a sign-language interpreter to a deaf child in a sectarian high school as part of a general program providing interpreters to similarly handi- capped children in all schools. Congress's passage of the Individuals with Disabilities Education Act, 20 U.S.C, 1400 ef seg. (1988 & Supp. 111 1991) (IDEA), reflects Congress®% determination that “State and local educational agencies have a responsibility to provide education for all children with disabilities,” (1) ” = Section M00e(b) Cs) (Supp. LL 1991), and that “it is in the national interest that the Federal Govern- ment assist State and local etlorts to provide pro- grams to meet the educational needs of children with disabilities in order to assure equal protection of the law,” Section 1400(b)(9) (Supp. IIL 1991). Ae- cordingly, the United States has a significant inter- est in defending the constitutionality of the program challenged in this case. Also, the Department of Education administers the IDEA program challenged in this case, see 20 U.S.C, 1402, and has promulgated regulations that imple- ment the IDEA. See 34 C.FLR. Pts. 300-338. Sim- ilarly, the Department of Education provides reme- dial educational services to educationally deprived children in low-income areas attending private schools under Chapter 1 of Title I of the Elementary and Secondary Education Act of 1965 (ESEA), 20 U.S.C. 2701 ef seq. (1988 & Supp. IL 1991). The ['nited States has a substantial interest in ensuring that the Court's disposition of this case is informed by the Department of Education's understanding of those progrems. The United States has participated as a party or amicus curize in numerous cases arising under the Establishment Clause. See, ¢.¢.. Lee +. Weisman, 112 S. Ct. 2649 (1992): Board of Education v. Merqensa, 196 US. 226 (1990); County of Allegheny s. Amer- CH Civil Vihe rlies [nion, 102 Us, 573 (1089): Bowen s. Kendrick, AST US. 589 (1988): Willers vs. Weshington Department of Services for the Bl vd, 174 U.S. 481 (1986): Aguilar vy. Felton, A72 US. 102 (1985): School District ». Ball, ATR VS. 278 (1985): Wueller ». Allen, 463 US. 388 (1983). a3 CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED 1. The Establishment Clause of the First Amend- ment provides: “Congress shall make no law respect- ing an establishment of religion.” 2. 20 U.S.C, 1400 and 1412-1414 (1988 & Supp. 11] 1991) are reprinted in an Appendix, infra, la-t4a. 4. 34 CPLR. 76.1, 76.532, 76.650-76.662, and SOO A00-300,452 are reprinted in an Appendix, infra, Ma-a. 4. The Special Education for Exceptional Children Act, $$ 15-761 «¢f seq., Ariz. Rev. Stat. Ann. (West 1991), is reprinted at Pet. App. A106-A127. STATEMENT 1. When Congress enacted the Education of the Handicapped Act in 1970 (now known as the In- dividuals with Disabilities Education Act (IDEA), see 20 USC, 140064) (Supp. ILL 19919), it found that there vere “more than eight million handicapped children in the United States” and that “more than half of the handicapped children in the United States dfid] not receive appropriate educational services which would enable them to have full equality of opportunity.” Pub. L. No, 91-230, $601, 84 Stat. 175, codified os amended at 20 ULS.C. 1400(b) 01) and (3) (Supp. 11 1991). Recognizing that “it is in the national interest that the Federe! Government ixsjst State and hon! efforts to provide programs te meet the educational needs of handicapped children in order to assure equal protection of the law.” Section 1100(b)(9) (Supp. TL 1991), Congress has provided in Subchapter IL of the IDEA for » srogram of federal «rants to aid state and local aw! ‘writies tp providing educational assistance for children with 4 disabilities. See 20 U.S.C. 1411-1420 (1988 & Supp. III 1991). Those grants, together with other federal grants the Department of Education administers to assist children with disabilities,' currently provide more than $2 billion each year in assistance to States and local school districts to assist those children. See U.S. Dep't of Education, To Assure the Free Appro- priate Public Education of All Children with Dis- abilities, A-207 (Table AG1) (1992) (Fourteenth Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act) (hereinafter (92 IDEA Report]... During the 1990- 1991 school year, those programs served more than 42 million children, of whom about 60,000 were identified as children primarily disabled because of a hearing impairment. 1992 IDEA Report, at 7 (Table 1.3). The fundamental requirement for obtaining a grant under the IDEA is that the State make avail- able “a free appropriate public education for all children with disabilities” in the State, 20 U.S.C. 1412(2) (PR) (Supp. IT 1991). But the IDEA’s pur- poses are not limited to children in public schools. To the contrary, Section 1400(¢) (Supp. Hl 1991) states thet the purpose of the IDEA is to “assure that all children with disabilities have available * * * ‘The Department provides grants for three- to five- year-olds with disabilities under the Preschool Grants Pro- gram, 20 U.S.C. 1419 (1988 & Supp. II] 1991), and operates a special program for children with disabilities in state- operated or supported institutions as part of the larger pro- gram for educationally deprived children under the ESEA, see 20 U.S.C. 2791 et seq. (1988 & Supp. IIT 1991). 2 We have lodged a copy of the 1992 IDEA Report with the Court and provided copies to counsel for the parties. a a free appropriate public education,” and “to assist States and localities to provide for the education of all children with disabilities’ (emphasis added).” Section 1413(a)(4) (1988 & Supp. II] 1991) di- rectly addresses the State’s obligations with respeci to children in private schools. If school authorities have selected the private school as the means of pro- viding 2 “free appropriate public education” to the child, Section 1413(a)(4)(B) (Supp. IIT 1991) re- quires the State to provide the appropriate services in all cases “at no cost to * * * parents or guardian.” With respect to children placed by their parents in private schools after rejecting an appropriate public school placement, the public agency must provide for participation of such children i» special education or related services only “to the extent consistent with the number and location of children with disabilities in the State who are enrolled in private elementary and secondary schools.” Section 1413(a) (4) (A) (Supp. IT] 1991). The Secretary of Education has promulgated regu- lations implementing the grant program established by the IDEA. See 34 C.F.R. Pt. 300. Section 300.403(a) provides that when children with dis- abilities are placed in a private school by their par- ents’ choice “the public agency is not required by this part to pay fer the child’s education at the private school or facility’: instead the agency is required to “make services available to the child as provided under S£ 300,450-300.452."" Section 300,452, in turn, provides that the agency “shall provide specia! edu- ention and related services designed to meet ive needs of private school childyen with disabilities re- siding in the jurisdiction of the agency.” The mean- ing of this requirement is clarified hy the provisions of 34 C.F.R. 76.651-76.662, which establish general 6 regulations for participation by private school stu- dents in the various grant programs administered by the Department of Education. Those regulations require the agency to “provide students enrolled in private schools with a genuine opportunity for equit- able participation [in the programs offered by the agency to other students].” Section 76.651(a)(1).’ Benefits provided to students in private schools must “be comparable in quality, scope, and opportunity fur participation to the program benefits that the [agency] provides for students enrolled in public schools.” Section 76.654(a). Where “necessary to provide equitable program benefits” that are “not normally provided by the private school,” the agency “may use program funds to make public personnel available” in the private school’s facilities. Section 76.659." Finally, the regulations do not draw a distinction in eligibility between students in private schools that *That portion of Part 76 of 34 C.F.R. is made directly applicable to IDEA grants by 34 C.F.R. 300.451 (b). ‘The Department of Education has advised us that pro- grams funded under the IDEA during the 1989-1990 school year assisted over 43,000 children placed in private schools by their parents. Although the Department does not collect data on the proportion of those students who attend sectarian private schools, it has advised us that about 80° of the private schools in this country are sectarian. * Funds granted under the program may not be used “to finance the existing level of instruction in a private school or to otherwise benefit the private school.” Section 76.658 (a). Rather, funds must be used “to meet the specific needs of students enrolled in private schools.” Section 76.658 (b) ; see also Section 76.662 (prohibiting use of program funds “for the construction of private school facilities”). 7 are sectarian and those in private schools that are not sectarian. To ensure that grants for students in sec- tarian schools are not used for purposes that violate the Establishment Clause of the First Amendment, 34 C.F.R. 76.532 prohibits the use of federal funds to pay for “[rleligious worship, instruction, or prosely- tization,” Section 76.532(a)(1),° or for activities of schools of divinity, Section 76.532(a) (4). 2. Petitioner James Zobrest is profoundly deaf. Pet. App. Ad; J.A. 87. Accordingly, he requires the services of a sign-language interpreter in order to obtain the benefit of normal classroom instruction. J.A. SS. Before sixth grade, he attended a school for the deaf. Pet. App. A128; J.A. 88. He attended grades six through eight in a public school operated by respondent; respondent provided an interpreter who accompanied him to all of his classes. Pet. App. A128; J.A. S&. For religious reasons, his parents, peti- tioners Larry and Sandra Zobrest, who are Roman Catholics, enrolled James for the ninth grade in the Salpointe Catholic High School, a sectarian institu- tion operated by the Carmelite Order of the Roman Catholic Church. Pet. App. A5; J.A. 89-90. When petitioners asked respondent to provide an interpreter to accompany James to his classes at Salpvinte, re- spondent referred the matter to the Pima County At- tornev, who concluded that it would violate the Es- tablishment Clause to provide an interpreter on Sal- pointe’s premises. J.A. 10-18. In June 1988, the " See also Section 76.532 (a) (2) and (3) (prohibiting the use of federal grants to pay for “[e]quipment or supplies to be used for any of the activities specified in [Section 76.532 (a) (1)!” or for “fejonstruction, remodeling, repair, operation, or maintenance of any facility * * * to be used for any of the activities specified in [Section 76.532(a)(1)]"). 8 Arizona Attorney General concurred in this opinion. Pet. App. A137. 3. Petitioners then instituted this action in the United States District Court for the District of Ari- ozna, arguing that the IDEA and the Free Exercise Clause of the First Amendment require respondent to provide an interpreter, and that the Establishment Clause does not bar that relief. J.A. 19-26." In re- sponse to petitioners’ request for a preliminary in- junction, respondent “admit[ted] that the [IDEA] requires it to provide for [petitioner] * * * the serv- ices of a sign language interpreter, so long as [peti- tioner] is educated in a non-parochial setting,” J.A. 34, but argued that the Establishment Clause pro- hibited it from providing an interpreter in a parochial setting, J.A. 33-40. On August 15, 1988, the dis- trict court denied petitioners’ request for a prelimi- nary injunction, accepting respondent’s Establishment Clause argument and explaining that it found “no likelihood of success on the merits.” J.A. 52-53. On July 20, 1989, the district court granted summary judgment for respondent. Pet. App. A355. The court stated that “the interpreter would act as a conduit for the religious inculeation of [petitioner]—thereby, pro- 7 The district court had jurisdiction over petitioners’ action under 20 U.S.C. 1415(e) (4) (A), which grants the district court authority over actions brought to resolve disputes over the appropriate services to be provided to handicapped chil- dren under the IDEA. Although respondents initially con- tended that the action should be dismissed based on petition- ers’ failure to exhaust administrative remedies, see J.A. 45- 51, the parties eventually agreed that exhaustion of admin- istrative remedies was not required because exhaustion would be futile. See J.A. 94-95. Because respondents conceded the point in the court of appeals, see Pet. App. A6 n.2, it is not before the Court. 9 moting [petitioner’s] religious development at govern- ment expense.”” /hid, 4. A divided panel of the court of appeals affirmed (Pet. App. Al-A34), applying the three-prong test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971). First, the court concluded that the statute passed the first prong, because “Congress made clear its secular purpose” in the introductory portion of the statute: “to assist States and Localities to provide for the education of all handicapped children.” Pet. App. A8 (quoting 20 U.S.C. 1400(¢c) (1988) ). The court then turned to the second prong, whether the primary effect of the statute advances religion. Pet. App. A9-A13. The court concluded that the sta- tute, as apnlied in this case, fails that prong, reason- ing that the program creates a “symbolic union” of the type found unacceptable in School District y. Ball, 473 U.S. 373, 392 (1985). The court reasoned that the requested interpreter would attend classes at Sal- pointe that would involve religious matters and thus “would he the instrumentality conveying the religious message and experience.” Pet. App. Al10. In the court’s view, “!h]y placing its employee in the sec- tarian school to perform this function, the government would create the appearance that it was a ‘joint sponsor’ of the school’s activities.” bid. j The court distinguished Mueller y. Allen, 463 U.S. 388 (1983), and Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986)— cases in which this Court upheld programs that made governmental benefits available neutrally to classes defined without reference to religion, even in cases where religious entities benefited indirectly—as cases in which the government was not “required to place its own employee in the sectarian school.”’ Pet. App. 10 All. The court also rejected petitioners’ claim that the secular content of the interpreter’s services would be readily ascertainable, relying on the parties’ con- cession that “the interpreter would be required to act in a school environment in which the two functions of secular education and advancement of religious values or beliefs are inextricably intertwined.” Pet. App. A12-A13 (internal quotation marks omitted ).” Judge Tang dissented. Pet. App. A16-A34. He con- cluded that the statute was constitutional because of his view that “similar general educational welfare programs have passed constitutional muster” in this Court’s decisions in Witters and Mueller, Pet. App. A19. He also rejected the majority’s reliance on Ball, explaining that “[g]eneral welfare programs neu- trally available to all children, in both public and pri- vate schools, do not suffer the same constitutional dis- ability [as programs limited to private schools! he- cause their benefits diffuse over the entire population.” Pet. App. A21. Accordingly, Judge Tang would have reversed the district court.” * The court also rejected petitioners’ Free Exercise Clause claim. Pet. App. A13-A15. Although the court agreed that denial of an interpreter would “placfe] a burden on an in- dividual’s free exercise rights,” it found that burden accept- able in light of what it viewed as “a compelling interest in ensuring that the Establishment Clause is not violated.” Pet. App. Al4. Petitioners have not challenged the Free Exercise Clause holding in this Court. Pet. 10 n.9. * During the lengthy pendency of petitioners’ case before the Ninth Circuit panel (more than two years), petitioner James pursued his high school studies; he graduated on May 16, 1992, 2 few weeks after the panel’s decision. Pet. 4. The case nevertheless presents a continuing controversy because petitioners still seek reimbursement for the cost of the inter- 11 SUMMARY OF ARGUMENT 1. Under this Court’s decision in Lemon v. Aurtz- man, 403 U.S. 602 (1971), a statute does not violate the Establishment Clause if it has a secular purpose, its primary effect does not advance religion, and it (oes not lead to excessive entanglement with reli- gion. /d. at 612-613. The program challenged in this case passes that test. a. The statute has a secular purpose, set forth in 20 U.S.C. 1400(¢c) (Supp. III 1991): “to assist States and localities to provide for the education of all children with disabilities.” Neither the court of appeals nor respondent has identified any reason to doubt the sufficiency or validity of that purpose. Accordingly, the statute passes the first prong. Com- pare Board of Education vy. Mergens, 496 U.S. 226, 219 (1990) (plurality opinion of O’Connor, J.) (Court “is normally deferential to a [legislative] articulation of a secular purpose’). b. The primary effect of the statute neither ad- vances nor inhibits religion. The challenged program is part of a general government program that dis- penses benefits neutrally, without regard to whether the beneficiaries support religion, are opposed to re- ligion, or express no opinion. This Court regularly has rejected claims that such programs have a pri- mary effect that advances religion simply because some religious organizations might receive an in- direct benefit. Instead, it has concluded that the pretey they retained. See ibid.; J.A. 42 (respondent's ac- knowledgment that petitioners “may be entitled to reimburse- ment from [respondent] for the additional cost of an inter- preter incurred”). The record suggests that the interpreter cost petitioners approximately $7,000 each year. J.A. 65. 12 primary effect is the secular effect that was the goal of the legislature. For example, in Wifters vy. Wash- ington Department of Services for the Blind, 474 U.S. 481 (1986), this Court rejected an Establish- ment Clause challenge to a program allowing the use of government funds to defray educational ex- penses of a blind student, in a case where the student used the funds to pursue theological studies at a pervasively sectarian institution. The Court should reach the same result here. The court of appeals justified a contrary result by relying on this Court’s decisions in School Dis- trict vy. Ball, 473 U.S. 373 (1985), and Meek v. Pittenger, 421 U.S. 349 (1975). Those cases, how- ever, are not dispositive. Those cases involved the use of public funds to pay teachers who would teach classes in classrooms in sectarian schools. In those cases, the Court concluded that there was a substan- tial risk that the teaching of the publicly funded employees would be affected by the sectarian environ- ment, which would result in the public funds being used to convey sectarian ideology. But petitioners are not asking for a publicly funded teacher; they are asking for an interpreter, who will perform an objective task not likely to be affected by the sec- tarian atmosphere in which he works; as a practical matter, his function is indistinguishable from that of a highly developed hearing aid. Because the inter- preter is not himself teaching the child anything, the fact that his work assists the student in under-