# 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%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1993 - **Citation:** 509 U.S. 1 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0332%3A14. Public record. Not legal advice.