Amicus Curiae Brief — Zobrest v. Catalina Foothills School Dist.

IN THE

Supreme Court of the Unite

October Term, 1992

LARRY ZOBREST, SANDRA ZOBREST, husband and wife;

JAMES ZOBREST. a minor, by LARRY and SANDRA

ZOBREST, his parents.

Petitioners,

v.

CATALINA FOOTHILLS SCHOOL DISTRICT,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF THE AMERICAN JEWISH

CONGRESS, BAPTIST JOINT COMMITTEE ON PUBLIC

AFFAIRS AND THE UNION OF AMERICAN HEBREW

CONGREGATIONS IN SUPPORT OF PETITIONERS

Marc D. STERN

Counsel of Record

Lots C. WALDMAN

American Jewish Congress

15 East 84th Street

New York, New York 10028

(212) 360-1545

Oxiver S. THOMAS

J. BRENT WALKER

Of Counsel

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICUS

STATEMENT OF THE CASE

STATEMENT OF THE FACTS

I.

II.

IIl.

THE ONLY ISSUE THE COURT

NEEDS TO DECIDE IS THAT

THE ESTABLISHMENT CLAUSE,

AS CONSTRUED IN LEMON v.

KURTZMAN AND ITS PROGENY

DOES NOT BAR PROVIDING

ZOBREST AN INTERPRETER

THE AID AT ISSUE HERE

POSES NO THREAT TO THE

INSTITUTIONAL SEPARATION

INTENDEv BY THE

ESTABLISHMENT CLAUSE

A DETAILED ANALYSIS UNDER THE

THREE-PART TEST CONFIRMS THE

PERMISSIBILITY OF PROVIDING

ZOBREST AN INTERPRETER

A. The Aid Has A Secular

Purpose > 6 6 @

B. Providing A Sign Language

Interpreter Has A Primary

Effect That Is Secular

1. Presence on Parochial

School Premises

iii

16

27

29

30

31

-ii- Pe

2. Translation of Religous

Subject Matter

C. Witters Is Controlling Here

D. Providing An Interpreter

Does Not Create Undue

Entanglement

E. Providing a Translator

Will Not Create Controversy

Along Religious Lines

CONCLUSION

36

40

47

50

52

-iii-

TABLE OF AUTHORITIES

CASES

Aguilar v. Felton,

473 U.S. 402 (1985)

Ashwander v. T.V.A.,

297 U.S. 288 (1936)

Board of Education v.

Allen,

392 U.S. 236 (1968)

Bowen v. Kendrick,

487 U.S. 589 (1988)

Casey v. Planned

Parenthood,

112 S.Ct. 2791 (1992)

County of Allegheny

v. ACLU,

492 U.S. 373 (1989)

Edwards v. Aguillard,

482 U.S. 378 (1987)

Estate of Thornton v.

Caldor, Inc.,

472 U.S. 703 (1985)

Everson v. New Jersey,

330 U.S. 1 (1947)

Page(s) —

passim

23,

ll,

44,

ll,

ll,

15,

14

36

30,

50

15

-iv-

Cases

Fowler v. R.I.,

345 U.S. 67 (1953)

Grand Rapids City School

District v. Ball,

473 U.S. 373 (1985)

Hernandez v. CIR,

490 U.S. 680, (1989)

Jimmy Swaggert Ministries

v. Bd. of Equalization

of California, 110 §.Ct.

688 (1990)

Larkin v. Grendel’s Den,

459 U.S. 116 (1982)

Lee v. Weisman,

112 S.Ct. 2649 (1992)

Lemon v. Kurtzman,

403 U.S. 602 (1971)

Levitt v. PEARL,

413 U.S. 472 (1973)

Lynch v. Donnelly,

465 U.S. 688 (1984)

McCollum v. Bd. of Ed.,

333 U.S. 203 (1948)

Meek v. Pittenger,

421 U.S. 349 (1975)

Page(s) —

23

passim

49

49

19, 25

17

passim

37

9, 10,

26, 28

15

passim

-Vvq

Cases

Mueller v. Allen,

463 U.S. 388 (1983)

O’Hair v. Andrus,

613 F.2d 931

(D.C. Cir. 1979)

Patterson v. McClean

Credit Union,

491 U.S. 164 (1989)

Payne v. Tennessee,

501 U.S. (1991)

PEARL v. Nyquist,

413 U.S. 756 (1973)

PEARL v. Regan,

444 U.S. 646 (1980)

Regents v. Ewing,

474 U.S. 214 (1985)

Roemer v. Bd of

Public Works,

426 U.S. 736 (1976)

School Committee of The

Town of Burlington v.

Department of Educ.,

471 U.S. 358 (1985)

School District of Abington

Township v. Schempp,

374 U.S. 201 (1963)

Page(s)

10, 29,

41, 50

23

15

15

ll, 26

- 9, 10

36, 49

14

42

35

8

-vi-

Cases

Stone v. Graham,

449 U.S. 39 (1980)

Texas Monthly Inc.

v. Bullock,

489 U.S. 1 (1989)

Tilton v. Richardson,

403 U.S. 672 (1971)

Tony and Susan Alamo

Foundation v.

Secretary of Labor,

471 UTS. 290 (1985)

Wallace v. Jaffree,

472 U.S. 38 (1985)

Webster v. Reproductive

Health Services,

492 U.S. 490 (1989)

Westside Board of Ed.

v. Mergens,

496 U.S. 226 (1990)

Widmar v. Vincent,

454 U.S. 263 (1981)

Witters v. Washington,

474 U.S. 481 (1986)

Wolman v. Walter,

433 U.S. 229 1977)

Page(s)

10

ll

39

49

ll

14

17

23

passim

passim

-vii-

STATUTES

42 U.S.C. § 1751

OTHER AUTHORITIES

Cord, R.L., Separation of Church

and State: Historical Fact and

Current Fiction (1982)

Howe, M., The Garden and the

Wilderness (1965)

Madison, James, Memorial and

Remonstrance

32

15

19

INTEREST OF THE AMICUS

The American Jewish Congress

("AJCongress" ) is an organization of

American Jews founded in 1918 to protect

the civil, political, economic and

religious rights of American Jews. It has

taken a particular interest in the

separation of church and state, believing

that the Establishment Clause of the First

Amendment must be given a broad and

generous reading in order to protect

religious liberty.

The Baptist Joint Committee on Public

Affairs is composed of representatives

from various national cooperating Baptist

conventions and conferences in the United

States. It deals exclusively with issues

pertaining to religious liberty and

church-state separation and believes that

vigorous enforcement of both the

Establishment and Free Exercise Clauses is

efe

essential to religious liberty for all

Americans. The BJC's members include:

Alliance of Baptists; American Baptist

Churches in the U.S.A.; Baptist General

Conference; Cooperative Baptist

Fellowship; National Baptist Convention of

America; National Baptist Convention,

U.S.A., Inc.; National Missionary Baptist

Convention; North American Baptist

Conference; Progressive National Baptist

Convention, Inc. ; Religious Liberty

Council; Seventh Day Baptist General

Conference; and Southern Baptists through

various state conventions and churches.

Because of the congregational autonomy of

individual Baptist churches, the Baptist

Joint Committee does not purport to speak

for all Baptists.

The Union of American Hebrew

Congregations (UAHC) is the congregational

arm of the Reform Jewry, comprising 850

oo

synagogues with a membership of over 1.5

million Jews in the United States. For

over the one hundred years of its

existence, the UAHC has been a passionate

advocate for protecting and strengthening

the religion clauses of the First

Amendment as the indispensable tools for

preserving religious liberty. It has long

held that vigorous enforcement of the

Establishment Clause is the most effective

method for ensuring that religion can

flourish free of government control and

regulation.

Amici believes that separating church

and state, including a ban on government

funding for religion, is as an

indisbensable element of religious liberty

as is protecting religious practice from

governmental interference. To this end

they have opposed schemes to provide aid

to parochial schools.

G0

But like any constitutional prin-

ciple, the principle of separation of

church and state can be carried too far.

When that happens, the Establishment

Clause ceases to protect religious liberty

and begins to impede it. The decision

below falls into the category of too much

of a good thing and hence unnecessarily

penalizes a child exercising his right to

attend a parochial school.

The letters consenting to the filing

of this brief amici curiae are on file

with the Clerk of this Court.

-§-

_STATEMENT OF THE CASE

The description of the proceedings

below are not in dispute. The amici

respectfully refer the Court to the

respective statements of the case of the

Petitioners and Respondent.

STATEMENT OF THE FACTS

The facts are not in dispute. The

amici respectfully refer the Court to the

respective statements of fact of the

Petitioners and Respondent.

-6-

I. THE ONLY ISSUE THE COURT

NEEDS TO DECIDE IS THAT

THE ESTABLISHMENT CLAUSE,

AS CONSTRUED IN LEMON v.

KURTZMAN AND ITS PROGENY

DOES NOT BAR PROVIDING

ZOBREST AN INTERPRETER

But for the Establishment Clause,

James Zobrest ("Zobrest"), who has been

profoundly deaf since birth, would have

had a certified interpreter assigned to

accompany him to his classes and communi-

cate his teachers' and classmates’ words

to him and his thoughts to them. The

courts below, as a well as the Arizona

Attorney General in a formal opinion,

found that because Zobrest attended a

parochial school he was constitutionally

barred from receiving assistance

indispensable to his education.

l. In its opposition to the Petition for

Certiorari at 12-13. Respondent contends

that as a statutory and regulatory matter,

Zobrest is not entitled to a sign language

interpreter in a parochial school. That

contention was not pressed below. Amici

accordingly do not address it here.

a Dn

with the dissent below, we believe

that these authorities have misconcelved

the scope, reach and meaning of existing

case law construing the Establishment

Clause. This Court need go no further

than to correct their errors in

interpreting the corpus of law in this

area’to correct the injustice suffered by

Zobrest. A fortiori, this Court should

not disturb the fundamental underlying

principle of government neutrality toward

religion embedded in Lemon v. Kurtzman,

403 U.S. 602 (1977). Such neutrality is,

as this Court has repeatedly instructed

from the beginning, indispensable to

religious liberty.

Thirty years ago, Justice Goldberg,

joining in a decision banning religious

exercises in the public schools warned

that an

A-

smntutored devotion Lo Lrne

concept of neutrality can lead

to invocation or approval of

resuits which partake not simply

of that non-interference and

non-involvement with the reli

gious which the Constitution

commands, but of a brooding and

pervasive devotion to the secu

lar and a passive, even active,

hostility to the religious.

Such results are not only not

compelled by the Constitution,

Dut it seems to me, are

prohibited by it.

School District of Abington Township ‘.

Schempp, 374 U.S. 201, 306 (1963).

(emphasis added)

Justice Goldberg provided no simple

test which would enable courts to avoid

the very overzealousness against which he

warned so passionately. On the contrary,

he admitted that there was "no simple and

clear measure which by precise application

can readily and invariably demark the per-

missible from the impermissible.” Id.

Recognition of the inherent and

unavoidable complexity of the

LRstablishment Clause nas Lecume

commonpiace. Lynch v. Donnelly, 465 U.S.

646 (1984); FEAFL v. Fegan, 444 U.S. 646

(1980).

Snort of abandoning the enterprise

altogether, then, there is no alternative

but to grapple with difficult marginal

cases and run the risk that in some cases

judges will, as happened here, apply the

Establishment Clause improperly.

This problem of difficult cases at

the margin is not limited to- the

Establishment Clause. It is equally true

of the Fourth Amendment, the Double

Jeopardy Clause, and the Confrontation

Clause. Difficult cases are, moreover,

not limited to constitutional cases. Such

cases are equally likely under the

Bankruptcy Code and the Tax Code as well.

It is inevitable that cases at the

margin will sometimes be wrongly decided,

-10-

no matter where the margin is. It hardly

follows that the possibility of error is

reason for discarding a well settled rule

of law because in some such marginal case

some judge or judges produce a mis-

application leading to an improper or

incorrect result.

Those who follow this Court's

decisions in even the most cursory fashion

know that, complaining in large part of

its complexity, several members of the

Court have expressed a willingness to

jettison, modify or limit the existing

Standards of Lemon v. Kurtzman for

adjudicating cases arising under the

Establishment Clause.’ Lee v. Welsman,

2. That test has been explicated and

elaborated in numerous decisions of this

Court. See, e.g., Meek v. Pittenger, 421

U.S. 349 (1975); Wolman v. Walter, 433 U.S.

229 (1977); Stone v. Graham, 449 U.S. 39

(1980); PEARL v. Regan, 444 U.S. 646 (1980);

Mueller v. Allen, 463 U.S. 388 (1983); Lynch

v. Donnelly, 465 U.S. 688 (1984); Aguilar v.

Felton, 473 U.S. 402 (1985); Estate of

(continued... )

stile

[a3 8.6s. 2649 (1992) (Scalia, Bee

dissenting); County of Allegheny v. ACLU,

492 U.S. 573, 655 (1989) (Kennedy, J.,

dissenting). Any decision to repudiate

Lemon in this case would have a

substantial impact on the law, over and

above the bare fact of the overruling in

one fell swoop of numerous decisions of

this Court.

Literally hundreds of federal and

state court decisions apply the Lemon

principles to a myriad fact patterns --

some predictable, some not. The decided

cases are but a small fraction of the

impact of Lemon on the law in this area.

2.(...continued)

Thornton v. Caldor, Inc., 472 U.S. 703

(1985); Grand Rapids City School District v.

Ball, 473 U.S. 373 (1985); Wallace v.

Jaffree, 472 U.S. 38 (1985); Edwards v.

Aguillard, 482 U.S. 378 (1987); Bowen v.

Kendrick, 487 U.S. 589 (1988); County of

Allegheny v. ACLU, 492 U.S. 573 (1989); Texas

Monthly Inc. v. Bullock, 489 U.S. 1 (1989);

PEARL v. Nyquist, 413 U.S. 756 (1973).

o£Se

There are settled administrative and

political understandings of Lemon and its

progeny, understandings which govern the

day to-day operation of many governmental

agencies, including the public schools,

social welfare agencies, park authorities,

the military and taxing authorities, to

name but a “few. All of these under-

standings would be cast into doubt by a

repudiation of Lemon, no matter how

carefully crafted an opinion overruiing

Lemon might be.

Overruling Lemon would not simply

excise from the iaw whatever untoward

aspects of lemon the Court might identify

in the way a micro-surgeon uses lasers to

excise unwanted growths. Because the

Lemon test has become so entrenched, and

is so much a part of the warp and woof of

the law in this area. Lemon cannot be

abandoned without unsettling literally

ei Re

every other decision in this area, whether

the Court intends that result or not.

We do not say that Lemon can or

should never be reexamined -- although we

believe that decision to be fundamentally

sound -- but that the Court should do so

only where a case would be decided one way

under the Lemon test and some other way

under another test. In other words,

consideration of whether to overrule a

case of the significance and import of

Lemon should be avoided except in a case

in which the viability of Lemon is outcome

determinative.

This is not a novel suggestion. This

Court has long recognized that Constitu-

tional adjudication is governed by a rule

of strict necessity. As Justice Brandeis

explained in his authoritative catalog of

principles of constitutional adjudication,

"|tjhe Court will not formulate a rule of

a thin

constitutional law broader than is

required by the precise facts to which it

is to be applied." Ashwander v. T.V.A.,

297 U.S. 288, 347 (1936), cited in,

Webster v. Reproductive Health Services,

492 U.S. 490, 525-526 (1989) (O'Connor,

J., concurring); Regents v. Ewing, 474

U.S. 214, 222 (1985).

A rule of necessity ought especially

to govern whether the Court overrules

prior cases in those instances in which

the case under consideration is not a

relic of the law. A re-examination of an

existing constitutional standard is

appropriate where the rule has become a

lifeless hulk, because of some other

caselaw or statutory developments. Lemon,

by contrast, has been and is an integral

otte

part of the law for three decades or

more. Whether Lemon is, or ought to

continue to be, authoritative, and what

impact stare decisis ought to have on that

decision, Compare, Casey Vv. Planned

Parenthood, 112 S.Ct. 2791 (1992) and

Patterson v. McClean Credit Union, 491

U.S. 164 (1989) with Payne v. Tennessee,

501 U.S. __—_—s« (1991), are questions which

may have to be addressed some day, but not

now and not in this case.

A decision overruling Lemon is far

broader than is required by the precise

3. Lemon itself did not create the three

part test out of whole cloth. Instead, the

three part test was — by this Court

as a distillation of the teachings of its

prior cases going back to Everson v. New

Jersey, 330 U. S. 1 (1947) and McCollum v.

Bd. of Ed., 333 U.S. 203 (1948). It is not

surprising that critics of Lemon v. Kurtzman

do not begin their criticism of the Court's

work with that case, but with its earlier

decisions. See, e.g., R.L. Cord, Separation

of Church and State: Historical Fact and

Current Fiction (1982). Thus, the attack on

Temon is a convenient mask for an attack on

a half century of decisions by this Court.

o1G-

facts to which it is to be applied because

the provision of rs) sign language

interpreter does not violate the

Establishment Clause as interpreted

employing the Lemon criteria. We believe,

with the dissent below, that the proper

application of Lemon and its progeny,

including Justice Marshall's opinion in

Witters v. Washington, 474 U.S. 481

(1986), compel the conclusion that if

Arizona were to provide Zobrest with a

Sign language interpreter, it would not

violate the Establishment Clause. This is

a sufficient holding to dispose of this

case.

II. THE AID AT ISSUE HERE

POSES NO THREAT TO THE

INSTITUTIONAL SEPARATION

INTENDED BY THE

ESTABLISHMENT CLAUSE

In evaluating Zobrest's challenge to

the decision below, it is important to

keep in mind the underlying purposes of

-17-

the Establishment Clause. Most of the

provisions of the Bili of Rights act as a

direct buffer between the government and

its citizens. That is to say, they

regulate directly the actions of

government as they intrude upon the life

of the citizen.

The right to freedom of speech, the

right to petition for redress of

grievance, and the right to be free of

unlawful searches and seizures, and the

various trial rights of the criminal

defendants embodied in the Bill of Rights

operate in precisely this way. A major

component of the Establishment Clause

operates in the same way by barring

government from coercing participation in

religious exercises. Lee v. Weisman, 112

S.Ct. 2649 (1992); Westside Board of

Education v. Mergens,; 496 U.S. 226 (1990).

-18-

The Lemon test extends the

Establishment Clause beyond the problem of

direct coercion to structure the

relationships between religion and

government. Viewed this way, the

Establishment Clause is not only a

guarantee of individual liberty, but also

a principle of political organization.

The Court has understood the

Establishment Clause in this way because

it has found, correctly in our view, that

maintaining government neutrality in

matters of religion was for the founding

generation an indispensable element of

religious liberty. This was so for two

distinct reasons.

State sponsorship of religion was

thought to corrupt religion, a point

emphasized in the colonial era by the

influential Roger Williams, M. DewWolf

Howe, The Garden and the Wilderness (1965)

_ ee

2 i®e

and borne out then and now by experience.

On the other hand, insinuating religion

into governmental functions necessarily

diminishes the liberty of those who do not

share the religious views of those who

have captured the mechanisms of government

to their own theological advantage or

those who wish their religious behavior

and belief to be the product of their own

religious choices, not a respons. to

secular power, points emphasized by James

Madison in his seminal Memorial and

Remonstrance.

In Larkin v. Grendel’s Den, 459 U.S.

116, 126 (1982) this Court quoted Lemon,

403 U.S. at 614, for the broad and general

proposition that "(t]he objective [of the

Establishment Clause] is to prevent, as

far as possible, the intrusion of either

(Church or State] into the precincts of

the other”. The Court went on to observe

-20-

that this was not a rule enunciated for

the first time in Lemon but was of lengthy

and distinguished ancestry:

The structure of our government

has, for the preservation of

civil liberty, rescued the

temporal institutions from

religious interference. On the

other hand, it has_ secured

religious liberty from the

invasion of civil authority.

Watson v. Jones, 13 Wall. 679

730, 20 L.Ed. 666 (1872),

quoting Harmon v. Dreher, 1

Speers Eq. 87,120 (S.C.App.

1843).

As these and other cases make

clear, the core rationale

underlying the Establishment

Clause is preventing "a fusion

of governmental and religious

functions." [citations omitted]

In Grand Rapids City School District

v. Ball, 473 U.S. 373 (1985), the Court

applied Lemon's three-part test to

invalidate a system of providing aid to

parochial schools in the form of public

school teachers to provide’ remedial

instruction. In that case, this Court

-2l1-

began its discussion of Lemon by putting

the test into a political and

institutional context by describing the

Clause and the Lemon test as intended to

preserve a certain political distance

between the political and religious

powers. 473 U.S. at 382.

Justice Brennan continued that mode

of analysis throughout his opinion. Thus,

later in its opinion the Court observed

that:

Our cases have recognized that

the Establishment Clause guards

against more than direct, state-

funded efforts to indoctrinate

youngsters in specific religious

beliefs. Government promotes

religion as effectively when it

fosters a close identification

of its powers and responsi-

bilities with those of any -- or

all -- religious denominations

as when it attempts to inculcate

specific religious doctrines.

If this identification conveys a

message of government endorse-

ment or disapproval of religion,

a core purpose of the

Establishment Clause is

violated. [citations omitted]

; -22-

473 U.S. at 389.

In short, the Lemon test is not an

inflexible rule which operates in

isolation from social and political

realities. Rather it is a device for

screening those practices which are likely

to bring about church-state relations of

the kind which are harmful to religious

liberty and those that are not. Grand

Rapids City School District, supra, 473

U.S. at 383, citing, Meek v. Pittenger,

421 U.S. 349 (1975).

Where a form of governmental

assistance creates no structural links of

the kind the Constitution proscribes, the

Establisnment Clause is not’ violated

merely because the state provides an

incidental, episodic benefit to religion.

To take the simplest example, the

provision of routine police and fire

services to religious institutions does

-23-

not implicate the Establishment Clause

because it does not imply any special,

structured relationship between church and

state. Everson v. Board of Education, 330

U.S. 1, 17-18 (1947).

Likewise, when religious speakers

take advantage of a traditional public

forum to speak, they create no organic

ties between their message and the state.

Widmar v. Vincent, 454 U.S. 263 (1981);

Fowler v. R.I., 345 U.S. 67 (1953); O’Hair

v. Andrus, 613 F.2d 931 (D.C. Cir. 1979).

The Establishment Clause does not restrict

that access, because there is no

institutional relationship between

government and speaker. -

When the Establishment Clause is seen

in this light, the child benefit theory

enunciated in cases such as Everson v. Bd.

of Educ., 330 U.S. 1 (1947) and Board of

Educ. v. Allen, 392 U.S. 236 (1968), is

-24-

not an aberration or merely an

unprincipled bending of principle in the

face of sympathetic claims, but a judgment

that aid to the child does not create the

structured relationship between religion

and government which the Framers believed

threatened religious liberty.

One can disagree with the decision to

classify one or the other benefit as a

child benefit and not a benefit to the

institution. Likewise, the child benefit

principle must be limited by other

Establishment Clause values, including a

history which demonstrates an intent to

forbid government to subsidize religious

education. Still, within a carefully

circumscribed compass, the principle is

sound and well grounded in constitutional

theory.

However, where government shouiders a

substantial part of the financial burden

-25-

of carrying on the function of religious

institutions, or where it yields political

powers to religious institutions, even in

attenuated form, Larkin v. Grendel’s Den,

Supra, or where it endorses and propagates

a religious point of view, Edwards v.

Aguillard, supra, it creates a symbiotic

relationship between itself and the

church -- which is precisely what the

Establishment Clause prohibits.

It is for the reasons that this Court

has not permitted the state to pay the

salaries of teachers of secular subjects

in the parochial schools, Lemon v.

Kurtzman, supra, or even to subsidize or

rebate that part of religious school

tuition allocated to the secular aspects

of parochial school education, or provide

remedial or supplementary educational

programs within the sectarian schools, or

-26-

teach religious theories of origins in the

public schools.*

In each of these cases the state

either assumed part of the responsibility

for the operation of the parochial schools

or itself undertook the role of religious

instructor. In each of these cases, the

government was locked into a permanent,

close and mutually sustaining relationship

with religion.

It is not necessary to defend or

critique every line the Court has drawn in

this area in order to clearly discern the

pattern which emerges from this Court's

decisions. Suffice it so say that the

crucial factor in that pattern -- that of

a symbiotic relationship between church

4. See, PEARL v. Spestes. 413 U.S. 756

(1973); Aguilar v. Felton, 473 U.S. 402

(1985); Grand Aenice City School District v.

Ball, 473 U.S. 373 (1985); Wolman v. Walter,

433 U.S. 229 (1977); Meek v. Pittenger, 421

U.S. 349 (1975); Edwards v. Aguillard, 462

U.S. 378 (1987).

%

-27-

and state where power, authority and

expenses are shared in a systematic way --

would be wholly lacking were the Catalina

School District to provide Zobrest a sign

language interpreter.

III. A DETAILED ANALYSIS UNDER

THE THREE-PART TEST CON-

FIRMS THE PERMISSIBILITY

OF PROVIDING ZOBREST

AN INTERPRETER

In order to pass muster under the

familiar three-part test of Lemon, a

practice must have a secular purpose, a

predominately secular effect, and not

unduly entangle government with religion.

The latter branch of the test has two sub-

parts: it inquires whether a practice

engenders ongoing, repetitive, contro-

versies over direct appropriations and

whether the practice will necessitate

-28-

ongoing governmental supervision of

religious institutions.

In Justice O'Connor's concurrence in

Lynch v. Donnelly, 465 U.S. 668 (1984),

and later adopted by a majority of the

Court in County of Allegheny, supra, 109

S.Ct. at 3102, the Lemon standard has been

explained slightly differently. Under

this formulation, the Lemon inquiry

focusses on the question of governmental

endorsement of religion:

The purpose prong of the Lemon

test asks whether government's

actual purpose is to endorse or

disapprove of religion. The

effect prong asks _ whether,

irrespective of government's

actual purpose, the practice

under review in fact conveys a

message of endorsement or dis-

approval. An affirmative answer

5. Use of the three-part test does nor

require a de novo inquiry in every case.

Courts may decide cases on the basis of other

earlier cases applying the test. This case

presents such an opportunity, as will be

clear in our subsequent discussion of Witters

v. Washington, 474 U.S. 481 (1986).

-29-

to either question should render

the challenged practice invalid.

465 U.S. at 690.

Both as formulated originally in

Lemon and more recently recast in County

of Allegheny, supra, application of the

three-part test in this case demonstrates

that providing Zobrest a sign language

interpreter does not violate the

Establishment Clause.

A. The Aid Has A Secular Purpose

The court below found that providing

Zobrest with a sign language interpreter

satisfies the secular purpose test, citing

Mueller v. Allen, 463 U.S. 388 (1983).

Respondents apparently do not challenge

this holding.

This is plainly correct. This Court

has never invalidated even a direct

program of aid to parochial schools on

grounds that it lacked a secular purpose.

-30-

Grand Rapids City School District v. Ball,

Supra, 473 U.S. at 383. Cf. Bowen v.

Kendrick, 487 U.S. 589, 602-604 (1988).

And surely the reasonable person of

Justice O'Connor's formulation would not

see in the provision of a sign language

interpreter any suggestion that a

handicapped child enjoyed preferred civic

Status in benefitting from the same

specialized services for the handicapped

in a parochial school that would be

available in a public school.

B. Providing a Sign Language

Interpreter Has A Primary

Effect That is Secular

"As usual in Establishment Clause

cases .. . the more difficult question is

whether the primary effect of the

challenged statute is impermissible.”

Bowen v. Kendrick, 487 U.S. at 604. In

this case, it.was this branch of the test

upon which Zobrest's challenge to the

e$i-

School Board's refusal to provide him with

an interpreter foundered. The Court of

Appeals' focussed specifically on two

aspects of the effects inquiry, neither of

which supports the judgment below.

1. Presence on Parochial

School Premises

Relying most heavily on Aguilar and

Grand Rapids, the Court found that the

ongoing presence of the interpreter, a

public employee, on parochial school

premises was constitutionally suspect.

That presence, the Ninth Circuit held,

would create the appearance of a joint

enterprise between the parochial school

and the respondent.

It is true that in cases like Grand

Rapids, supra, Meek v. Pittenger, supra

and Aguilar v. Felton, supra, this Court

laid heavy stress on the fact that the

publicly provided services would be

afte

provided on school premises. But that

geographic fact standing alone was not

determinative without regard to the nature

of the services provided by government.

There are limited services which can

be constitutionally provided on parochial

school premises, such as health services

and certain diagnostic testiny. Meek v.

Pittenger, supra, 421 U.S. at 371, n.21,

364, 368, n.17; and Wolman v. Walter,

Supra, 433 U.S. at 241-44. Similarly,

government financed school lunch programs

take place on parochial school premises,

42 U.S.C. § 1751, et seq.,° and no one has

thought these programs unconstitutional.

A review of Grand Rapids, Meek and

Aguilar indicates that the fact of

location was a necessary, but not

sufficient, ground for decision. In all

6. In particular, see 42 U.S.C.

§ 1760(d)(3)(A).

-~33-

of these cases, the fear was that the

presence of public school personnel on

school grounds would lead the teacher or

counselor to tailor what was taught to

avoid conflict with the school, or,

because of the educational nature of the

services, would suggest to students that

the public and parochial school personnel

had joined together to provide them with

an education.

Moreover, the central mission of a

parochial school is sectarian education.

Teachers are the vehicles for carrying out

that mission. It was the broad discretion

teachers and counselors enjoy in selecting

how and what to teach which made the

location to such a significant factor, for

it was thought likely to impermissibly

influence those choices.

A sign language interpreter is duty-

bound to translate as literally as

o36-

possibie. There is no discretion to

choose materials or manner of presen-

tation. What is demanded of an

interpreter is a translation which is as

close as possible to what is said orally

by others or by Zobrest. There is as

little room as humanly possible for

discretionary action by the interpreter.

Society places no premium on the

exercise of discretion by interpreters,

which is the opposite of the case with

teachers. Presence on parochial school

premises is not likely to influence what

the interpreter does as it was in Grand

Rapids and Aguilar. The counselors and

therapists at issue in Meek and Wolman,

controlled what was said in the course of

«Din

remediation; Zobrest's interpreter merely

reports or transmits it.’

In any event, even if the presence of

a public employee is particularly

problematic because it creates a symbolic

union of government and religion, the

Respondent could simply have allowed the

Zobrests to hire an interpreter and

reimburse them for those costs. The use

of private providers is authorized under

the Individuals With Disabilities Act,

School Committee of the Town of Burlington

v. Department of Education, 471 U.S. 359

(1985), and in this case would have

permitted the School District to comply

both with its understanding of the

7. A factor of some relevance in Meek and

Wolman was the possibility that educational

material would be diverted to sectarian

users. That possibility is not present here.

The interpreter’s duties are circumscribed

and mot susceptible to conversion to

constitutionally suspect tasks.

-36-

Establishment Clause and its duties under

the Individuals With Disabilities Act.

2. Translation of Religious

Subject Matter

The second basis for a finding of

impermissible sectarian effect was that in

fact the interpreter would be translating

subject matter which was7- religious,

whether in terms of required religious

services or religious material injected

into otherwise secular classes. In the

lower court's view, this fact easily

distinguished this case from Meek, Wolman

and Allen, in all of which the Court

upheld the provision of only secular

diagnostic services and textbooks, not

religious ones. Compare, PEARL v. Regan,

444 U.S. 646 (1980) (discussing

constitutionality of reimbursement for

administering and grading standardized

tests) with Levitt v. PEARL, 413 U.S. 472

-37-

(1973) (same). For several reasons, it is

not ultimately persuasive in this case.

Initially, the Court of Appeals

relied heavily on Meek v. Pittenger as

authority for the proposition that the

translation of religious material was

impermissible. In that case, this Court

noted that it was not, contrary to Chief

Justice Burger's suggestion, passing on

the “question [of } whether ‘the

Constitution permits the States to give

special assistance to some of its children

whose handicaps prevent their deriving the

benefit normally anticipated from the

education required to become a productive

member of society, and at the same time to

deny those benefits to other children only

because they attend... a church spon-

sored school.'" 421 U.S. at 368, n.17,

citing the separate opinion of Chief

Justice Burger, id. at 386. This case

-38-

presents that very question; Surely Meek

Cannot be said to have decided a question

it reserved in terms which Suggest an

answer different than the one reached by

the Court below.

Moreover, the argument of the Court

of Appeals proves too much. No one has

ever doubted that the state could supply

Zobrest with hearing aids or pay for

Surgery to restore his hearing (if such

Surgery were possible) and could do either

of these knowing that Zobrest would go to

church or attend religious school.

Even Justice Marshall, who was as

Strict a separationist as has ever graced

this Court, acknowledged that general

welfare programs such as these are

permissible even though they enable

beneficiaries to participate more fully in

religious activities, Wolman v. Walter,

Supra, 453 U.S. at 259 (dissenting

-~39-

opinion). While it is certainly relevant

in weighing the constitutionality of

providing Zobrest an interpreter that the

program is provided in a parochial school,

that is an insufficient basis on which to

deny him services which are designed to

allow him to “derive[] the benefit

normally anticipated from the education

required to become a productive member of

society.””

B. Witters is Controlling Here

8. It is important to emphasize the

carefully limited nature of a decision

authorizing aid to Zobrest. What Zobrest

seeks is narrower than the aid that would be

provided under a “voucher” or “choice”

program paying for general tuition at a

parochial high school. A case involving such .

a program would raise troubling and complex

questions not present here, iven the

subsidization of general costs of religious

institutions, the more systematic nature of

the aid provided, the enhanced benefits

furnished to private schools and their

students, and the need to scrutinize the

symbolic and other effects of government aid

to religion at the elementary and secondary

level even more carefully than in cases

involving higher education. See Tilton v.

Richardson, 3 U.S. 672 (1971). In this

case, however, the effect of providing aid to

Zobrest should properly be categorized as

predominantly secular in nature.

-40-

A comparison of the facts in Witters

v. Washington, 474 U.S. 481 (1986), where

the Court rejected a state's contention

that an a i to the handicapped program

could not be extended to circumstances

analogous to those presented here, with

the circumstances presented in Aguilar v.

Felton, 473 U.S. 402 (1985) and Grand

Rapids City School District v. Ball, 473

U.S. 373 (1985) demonstrates why this case

falls on the Witters side of the

constitutional effects line.

In Witters, the state provided

financial assistance to the blind to

purchase vocational training. At least as

far as appeared on the record, Witters,

who was blind, decided of his own volition

to attend a theological seminary and

applied for state aid under the vocational

training program. The state refused to

approve his choice because of the

ite

Establishment Clause. This Court

unanimously reversed.’

In his opinion for the Court, Justice

Marshall emphasized that allowing the

payments to go to the theological seminary

was not a sophisticated way of channeling

state aid to a religious institution.

Only small numbers of persons were able to

take advantage of the vocational program,

and then only if the handicapped

individual decided on his or her own to

use the benefit at a theological

institution. Whatever support flowed from

the state to the institution were

episodic, idiosyncratic and unpredictable,

9. Several Justices, relying heavily on

Mueller v. Allen, 463 U.S. 388 (1983), would

have upheld grants to Witters on an even

broader theory. Because this case is so

easily decided in favor of Zobrest on even

the marrower theory adopted by Justice

Marshall, it is umnecessary to address the

broader theory.

«Ge

and not the product of any policy decision

by the state.

Washington's program could not

reasonably be categorized as "one of those

ingenious plans for channeling state aid

to sectarian institutions.” 474 U.S. at

488. No institution could budget that

aid as a regular part of its income, or

count on the state for any portion of its

budget in any given year. Nor could it

assume that the state would regularly

channel blind students to it. In short,

there was no ongoing, steady and

predictable relationship between church

and state which would offend the

Establishment Clause.

10. By contrast, when the obvious purpose

and effect of a government aid program is to

channel aid to sectarian institutions, it

should be struck as violative of the

Establishment Clause. Such a program is

particularly problematic at the primary and

secondary school level. Compare, e.g., Lemon

v. Kurtzman, supra, with Roemer v. 8d. of

Public Works, 426 U.S. 736 (1976).

-43-

By contrast, in Grand Rapids the

School District provided at public expense

an extensive educational program in the

city’s parochial schools. The courses

offered, though supplementary to an ill-

defined ‘core curriculum', were of the

kind commonly offered by all schools.

These included remedial and enrichment

courses in reading, arithmetic, art,

music, and other courses regularly part of

the public school curriculum. In Felton,

@ local Board of Education provided

remedial instruction on the premises of

the parochial schools, thus relieving

those schools of the burden of providing

these quintessentially educational

services.

The provision of these services to

the parochial schools on the premises of

the schools made the government an ongoing

joint venturer with the religious schools.

-~44-

That was the constitutional defect with

the program. Religion and state need not

be enemies, but they cannot enlist each

other in the pursuit of common interests,

nor so order their interaction so as io be

partners or joint venturers, at least

where the services are religious in

nature. Bowen v. Kendrick, supra.

This case is on all fours with

Witters. If anything, the aid here is

even more attenuated from an Establishment

Clause point of view than the assistance

upheld in Witters. Here, as in Witters,

the fact that the aid happens to relate to

a religious school is pure happenstance,

both statistically and in fact. Zobrest's

attendance at parochial school was

entirely a matter of personal choice.

The aid does not in any way

underwrite the ordinary costs of operating

a school. No substantial numbers of

-~45-

children need this form of aid in the

Catalina School District, and even fewer

go to parochial schools, so that the

provision of a sign language interpreter

cannot be said to be a subterfuge for

subsidizing parochial school education in

any systematic way. Religious institu-

tions do not receive any disproportionate

share of this aid.

But these are not the only relevant

distinctions. The aid in Witters ulti-

mately helped pay general costs of a

theological education. That is not the

case here, where the aid does not pay for

the substantive courses at all. Classes

in the high school Zobrest attends proceed

in exactly the same manner whether or not

the translator is present. Education is

unaffected for everyone else in the

school. Zobrest is the only beneficiary

of the aid

-46-

Witters permitted the state to pay

the entire cost of a religious education.

Here the education Zobrest is receiving is

both religious and secular, and the bulk

of the cost of Zobrest's education is

borne not by the state, but by his

parents. The state is only being asked to

assume that incremental part of the cost

directly attributable to Zobrest's

handicap. Those costs would not exist but

for Zobrest's handicap, which is not the

case with Witter's tuition payments.

If the State of Washington could

subsidize tuition costs to assist the

handicapped learn a trade without

violating the Establishment Clause or

without setting a dangerous precedent for

more general forms of aid to religious

institutions, a fortiori Catalina

Foothills School District can pay the

-47-

costs of a translator for Zobrest so that

he can have a secondary school education.

D. Providing An Interpreter Does

Not Create Undue Entanglement

The court below did not rest on the

third prong of the Lemon test, except to

dispose hypothetically of the possibility

of having the interpreter present for

secular courses only, a8 a means of

ensuring a secular effect. Such a

proposal might well be unconstitutional

under the undue entanglement branch, but

as we demonstrate in Point II.B., there is

no need to limit the scope of the inter-

preter's activities in this way merely in

rder to avoid creating a sectarian

effect.

What remains for government to ensure

is that the translators do not embark on a

self-generated religious frolic. That is

fairly simply done, because the super-

-48-

vision required to ascertain that is

objective -- does the translator translate

accurately. It makes no difference

whether the interpreter distorts religion,

sociology or English literature; and

whether he does so for religious or other

reasons. The person supervising the

translator has no concern with the content

as such, but with the words used to

transmit these ideas.

Not every form of government

oversight of religious institutions’

activities is unduly entangling because

not every inquiry creates "a comprehen-

sive, discriminatory and continuing state

surveillance” such as might breach this

branch of the Lemon test. Lemon v.

Kurtzman, 403 U.S. at 619; Aguilar v.

Felton, supra. : °

Routine regulatory interaction which

involves no inquiries into’ religious

-49-

doctrines are not unduly entangling.

Hernandez v. CIR, 490 U.S. 680, (1989)

(routine IRS accounting inquiries into the

cost of providing services in exchange for

payments to a § 501(C)(3) organization was

not unduly entangling.)~ Where the

inquiry is routine, almost mathematical,

the undue entanglement test is not

violated. PEARL v. Regan, 444 U.S. 646

(1980). The oversight here involves

words, not numbers, and is therefore

marginally less precise than the audits

considered in PEARL v. Regan, supra.

Still, the inquiry does not require a

government official to pass on religious

truths or to make constant and shapeless

ll. Accord, Tony and Susan Alamo Foundation

v. Secretary of Labor, 471 U.S. 290, 305-06

(1985) (required recordkeeping under the Fair

Labor Statistics Act not unduly entangling);

Jimmy Swaggert Ministries v. 8d. of Equaliza-

tion of "Toliseonias 693 U.S. 378 (1999

(required sales tax records not unduly

entangling).

-50-

value judgments about the activities of

religious institutions. It is, therefore

not unduly entangling.

E. Providing a Translator will

Not Create Controversy Along

Religious Lines

To the extent that there is anything

left of the political divisiveness branch

of the test after Mueller v. Allen supra,

463 U.S. at 403, n.11; Bowen v. Kendrick,

supra, 487 U.S. at 616, it is applicable

only to direct financial subsidies of

parochial schools. Id. These are not

involved here, and hence this branch of

the test is no impediment to the

assistance Zobrest is otherwise entitled

to receive.

But even if the test were now

te

construed as broadly as when it was first

laid down in Lemon v. Kurtzman, 403 U.S.

at 622-25, it is unlikely that occasion-

ally paying for a sign language

-5l-

interpreter in a parochial school would

generate controversy along political

lines. The expenditure would not be a

separate one for parochial school

education.

Moreover, it is unrealistic to think

that there would be any choosing up of

sides along religious lines over a payment

so clearly tied to assisting the handi-

capped. Perhaps some uniquely sensitive

individual might find the assistance

divisive along religious lines, but no

reasonable person would see in this aida

suggestion of governmental preference for

religion.

-52-

CONCLUSION

For the reasons stated, the judgment

should be reversed.

Respectfully Submitted,

§ mae

aA .

AZ a a

Marc D. Stern

Counsel of Record

Lois C. Waldman :

American Jewish Congress

15 East 84th Street

New York, NY 10028

(212) 360-1545

Oliver S. Thomas

J. Brent Walker

(of counsel)

November 17, 1992