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

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

LARRY ZOBREST, ET AL..

Petitioners,

v.

CATALINA FOOTHILLS SCHOOL DISTRICT,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF

ARIZONA SCHOOL BOARDS ASSOCIATION, INC.

IN SUPPORT OF RESPONDENT

a

__ Robert J. DuComb, Jr.

Counsel of Record

Sharon B. Shively

SACKS, TIERNEY & KASEN, P.A.

2929 North Central Avenue, 14th Floor

Phoenix, Arizona 85012-2742

Thomas W. Pickrell

General Counsel

ARIZONA SCHOOL BOARDS ASSOCIATION, INC.

3852 N. 29th Avenue

Phoenix, Arizona 85017

‘BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the Individuals with Disabilities Education Act,

20 U.S.C. § 1400 et seq. (1988 & Supp. III 1991), or its

implementing regulations, require a state governmental agency to

provide a sign-language interpreter to a deaf child in a sectarian

school.

2. Whether the present controversy should be resolved by

application of the three-part Lemon test.

3. Whether the Establishment Clause of the First

Amendment bars a public school district from providing a sign-

language interpreter to a deaf child at a sectarian school.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...............

TABLE OF AUTHORITIES ..............

INTEREST OF THE AMICUS .............

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

II.

NEITHER THE IDEA NOR ITS

IMPLEMENTING REGULATIONS REQUIRE

CATALINA FOOTHILLS TO PROVIDE AN

INTERPRETER TOA DEAF CHILD IN A

SECTARIAN SCHOOL

A.

IDEA does not require a local education

agency to provide an interpreter to a deaf

child in a sectarian school. ..........

The Courts below did not rule on the

question of whether the IDEA requires

Catalina Foothills to provide an interpreter

to a deaf child at a sectarian school... . . .

THE PRESENT CONTROVERSY

SHOULD BE RESOLVED BY

APPLICATION OF THE THREE-PART

LEMON TEST

7 = an ae a ee ee eS Oe Se Ss eS a a ae eG o& CU

CONCLUSION

APPENDIX

THE ESTABLISHMENT CLAUSE BARS

A PUBLIC SCHOOL DISTRICT FROM

PROVIDING AN INTERPRETER TO A

DEAF CHILD AT A _ SECTARIAN

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TABLE OF AUTHORITIES

Cases Page

Aguilar v. Felton, 473 U.S. 402 (1985)... ...... 11, 12, 14

Califano v. Yamasaki, 422 U.S. 682 (1979)... 22... 10

Edwards v. Aguillard, 482 U.S. $78 (1987) ........... 1

Goodall by Goodall v. Stafford

County School Board, 930 F.2d 363 (4th Cir.),

cert. denied, _ U.S. ___, 112 S. Ct. 2649

RE ARR os PERE RE oa A ag i 5, 6, 12, 13

Grand Rapids School Dist. v. Ball,

UU I 13

Hunt v. McNair, 413 U.S. 734 (1972) .............. 13

Lemon v. Kurtzman, 403 U.S. 602 (1971) ....... 10, 12, 14

McNair v. Cardimone, 676 F. Supp. 1361

(S.D. Ohio 1987), aff'd,

McNair v. Oak Hills Local Sch. Dist. ,

872 F.2d 153 (6th Cir. 1989) ..................... 5

Meek v. Pittenger, 421 U.S. 349 (1974) ._.......... 11, 12

Walz v. Tax Comm'n, 397 U.S. 664 (1970) _.......... 12

Witters v. State Commission for the Blind,

112 Wash.2d 363, 771 P.2d 1119, cert. denied,

RINE, ote a 6

Witters v. Washington Department of

Services for the Blind, 474 U.S. 481 (1986) ............ 6

IV

Cases Page

Wolman v. Walter, 433 U.S. 229 (1977) ... 2... .. 13

Work v. McKenzie, 661 F. Supp. 225 (D.D.C. 1987) ...... 5

Zobrest v. Catalina Foothills School District,

ay 9

Constitutions

United States Const. amend. 1 ............. i, 5, 6, 7, 12

eS 6

Washington Const. art. 1,§ 11 .................... 6

Statutes and Regulations

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34 C.F.R. § 76.65l(ayl) ... 2.2.2.2. 2. ee

34 C.F.R. §§ 76.651-76.662 ..................... 4

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Statutes and Regulations Page No. 92-94

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34 C.F.R. § 76.659 IN THE

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LARRY ZOBREST, ET AL...

ES Re ER Gee Se hale pe meee 4 Petitioners.

Stanley G. Feldman & David L. Abney, CATALINA FOOTHILLS SCHOOL DISTRICT,

The Double Security of Federalism: Respondent.

Protecting Individual Liberty Under

bam RLS. 7 ON WRIT OF CERTIORARI TO THE UNITED STATES

Ne ee a ee OF FOR THE N Cir

BRIEF AMICUS CURIAE OF

ARIZONA SCHOOL BOARDS ASSOCIATION, INC.

IN SUPPORT OF RESPONDENT

<=

INTEREST OF THE AMICUS

This brief is filed with consent of both parties. Letters of

consent are on file with the Clerk of this Court.

Anzona School Boards Association, Inc. (ASBA), is an

Anizona nonprofit corporation, the members of which are the

governing boards of most of the 223 public school districts in the

State of Arizona, including Respondent. ASBA’s members, as local

education agencies, are charged with the responsibility of providing

special education and related services in accordance with the

vi

Individuals with Disabilities Education Act, 20 U.S.C. § 1400

et seq. (1988 & Supp. III 1991).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

ASBA adopts Petitioners’ and Respondent's listing of

constitutional and statutory provisions involved in this matter.

STATEMENT OF THE CASE

ASBA incorporates by reference the statement of the case

contained in the brief of Respondent Catalina Foothills School

District ("Catalina Foothills”).

SUMMARY OF THE ARGUMENT

The Court of Appeals for the Ninth Circuit has correctly

affirmed the judgment of the District Court by holding that the

Establishment Clause bars a public school district from providing a

sign-language interpreter to a deaf child at a sectarian school. In so

ruling, however, neither the District Court nor the Court of Appeals

reached the question of whether the governing statutory scheme, the

Individuals with Disabilities Education Act, 20 U.S.C. § 1400 er

seq., and its implementing regulations, require a state governmental

agency to provide a sign-language interpreter to a deaf child in a

sectarian school.

This present controversy can and should be resolved by

application of the three-part Lemon test. This Court should

conclude, as a result, that the Establishment Clause bars a public

school district from providing a sign-language interpreter to a deaf

child at a sectarian school.

NEITHER THE IDEA NOR ITS

IMPLEMENTING REGULATIONS

REQUIRE CATALINA FOOTHILLS TO

PROVIDE AN INTERPRETER TO A

DEAF CHILD IN A_ SECTARIAN

SCHOOL

Petitioners Zobrest claim in their reply to brief in opposition

to the petition that the IDEA requires Catalina Foothills to provide

an interpreter to a deaf child in a sectarian high school and that this

legal conclusion was adopted by the courts below. (R. Br. Op. 1)’.

These allegations, however, are incorrect in both respects.

I.

A. IDEA does not require a

local education agency to

provide an interpreter to a

deaf child in a sectarian

school.

In 1970, Congress enacted the Education of the Handicapped

Act, now known as the Individuals with Disabilities Education Act

("IDEA"). Congress provided in Subchapter II of the IDEA for a

program of federal grants to aid state and local authorities in

providing educational assistance for children with disabilities. See

20 U.S.C. §§ 1411-1420 (1988 & Supp. III 1991).

The fundamental requirement for obtaining a grant under the

IDEA is that the State make available “a free appropriate public

education for all children with disabilities” in the State. 20 U.S.C.

§ 1412(2)(B) (Supp. II] 1991). Section 1413(a)(4) (1988 & Supp.

II] 1991) directly addresses the State's obligations with respect to

children in private scitools. If school authorities have selected the

'"R. Br. Op.” refers to the Reply to Brief in Opposition to Petition

for Writ of Certiorari.

private school as the means of providing a “free appropriate public

education” to the child, Section 1413(a)(4)(B) (Supp. III 1991)

requires the State to provide the appropriate services in all cases “at

no cost to * * * parents or guardian." With respect to children

placed by their parents in private schools after rejecting an appropri-

ate public school placement, the public agency need only make

provision for the participation of such children in the appropriate

special education or related service. Section 1413(a)(4)(A) (Supp.

III 1991).

This statutory direction is explained more fully in the regula-

tions which implement the grant program established by the IDEA.

See 34 C.F.R. Pt. 300. Section 300.403(a) provides that when

children with disabilities are placed in a private school by their

parents’ choice "the public agency is not required by this part to pay

for the child’s education at the private school or facility." Instead,

the agency is required only to "make services available to the child

as provided under §§ 300.450-300.452." Section 300.452, in turn,

provides that the agency "shall provide special education and related

services designed to meet the needs of private school children with

disabilities residing in the jurisdiction of the agency."

The meaning of this requirement is clarified by the provisions

of 34 C.F.R. §§ 76.651-76.662, which establish general regulations

for participation by private school students in the various grant

programs administered by the Department of Education. Those

regulations require the agency to “provide students enrolled in

private schools with a genuine opportunity for equitable participation

[in the programs offered by the agency to other students]." Section

76.651(a)(1). Benefits provided to students in private schools must

"be comparable in quality, scope, and opportunity for participation

to the program benefits that the [agency] provides for students

enrolled in public schools. Section 76.654(a). Where "necessary to

provide equitable program benefits” that are “not normally provided

by the private school," the agency “may use program funds to make

public personnel available” in the private school’s facilities. Section

76.659.

The direction to provide or make available the special program

or service, of course, does not translate into a mandatory require-

ment to provide and make available the program or service on the

premises of a private school. The provision and availability of the

service can easily be accomplished by offering the service at a free

public school. Indeed, these statutes and regulations make clear

that, while the IDEA allows a public agency to provide the services

of an interpreter at a private school, it is not required to do so unless

placement of the child at a private school has been selected by public

school authorities as the means by which to educate the child. See

Goodall by Goodall v. Stafford County School Board, 930 F.2d 363

(4th Cir.), cert. denied, _: U.S. __, 112 S. Ct. 2649 (1991);

McNair v. Cardimone, 676 F. Supp. 1361 (S.D. Ohio 1987), aff'd,

McNair v. Oak Hills Local Sch. Dist., 872 F.2d 153 (6th Cir. 1989);

Work v. McKenzie, 661 F. Supp. 225 (D.D.C. 1987).

Indeed, the unresolved legal question is not whether the IDEA

requires a public agency to provide interpretive services, but whether

such services are prohibited in this context. The Education

Department General Regulations (EDGAR) specify that:

1. No State or subgrantee may use its grant or

subgrant to pay for any of the following:

a. Religious worship, instruction,

or proselytization.

b. Equipment or supplies to be

used for any of the activities

[described above. ]

34 C.F.R. § 76.532(a)(1). The United States, as amicus curiae, has

contended that this provision is intended to reach no farther than the

Establishment Clause of the First Amendment. See Brief for the

United States as Amicus Curiae Supporting the Petitioners, p. 23.

But the United States Court of Appeals for the Fourth Circuit has

interpreted and applied this provision without reference to the

Establishment Clause and, under a set of facts that were substantially

5

the same as those of this case, held that this provision prohibits the

delivery of cued speech interpretive services at a sectarian school.

Goodall, 930 F.2d at 369.

The resolution of this legal issue will also require a determina-

tion as to whether delivery of interpretive services at a sectarian

school would violate the Arizona Constitution. Article 2, Section 12

of the Arizona Constitution states:

No public money or property shall be appropriated for or

applied to any religious worship, exercise, or instruction,

or to the support of any religious establishment.

Arizona’s Attorney General has opined that the provision of interpre-

tive services under the circumstances of this case would violate the

Arizona Constitution. (J.A. 9-18)’ The Attorney General’s

analysis appears to assume that the reach of Article 2, Section 12 of

the Arizona Constitution is the same as that of the Establishment

Clause of the First Amendment, but the Arizona courts have not

endorsed this analysis. To the contrary, the broader and more

specific prohibitions expressed in Article 2, Section 12 of the

Arizona Constitution suggest that this provision has a greater scope

than that of the Establishment Clause.’ Indeed, the then Vice Chief

Justice of the Arizona Supreme Court (now, Chief Justice) has stated

? "J.A." refers to the Joint Appendix.

> In Witters v. Washington Department of Services for the Blind, 474

U.S. 481 (1986), this Court ruled that financial assistance paid directly to

a blind recipient under a state vocational rehabilitation program did not

violate the First Amendment. This Court remanded the matter to the state

courts for a determination as to whether the financial assistance would

violate Article 1, Section 11 of the Washington State Constitution, a

provision which is similar to Article 2, Section 12 of the Arizona

Constitution. On remand, the Washington Supreme Court concluded that

the financial assistance did violate its State Constitution. Witters v. State

Commission for the Blind, 112 Wash.2d 363, 771 P.2d 1119, cert. denied,

493 U.S. 850 (1989).

that the textual protections of the First Amendment in the United

States Constitution are much narrower than the Arizona Constitution:

[OJur constitutional framers not only adopted the

suggestions from Congress, they went much farther in

delineating the proper scope of church and state

interaction, banning public support of sectarian schools

and prohibiting sectarian instruction at state schools.

Under the first amendment’s establishment clause, the

United States Supreme Court has allowed the limited use

of public funds for support of sectarian schools. For

instance, the court upheld noncategorical grants to

religious colleges and universities, reimbursing church-

sponsored public schools for performing various testing

and reporting services mandated by state law, loaning

public textbooks to sectarian students, tax deductions for

expenses incurred by taxpayers in sending their children

to parochial schools and providing classes to sectarian

students in public facilities on a “shared-time” basis. All

of these direct and indirect aids to religious educational

institutions would face a difficult examination under the

broad, specific textual provisions of the Arizona

Constitution. For instance, the prohibition against

appropriating and applying public funds to property to

support even a religious “exercise” refers to more than

legislative appropriation: iit includes executive and

administrative contact.

Stanley G. Feldman & David L. Abney, The Double Security of

Federaliem: _P ing Individual Lil Under The Ar

Constitution, 1988 Ariz. St. L.J. 115, 143-44 (footnotes omitted).

B. The Courts below did not

rule on the question of

whether the IDEA requires

Catalina Foothills to provide

an interpreter to a deaf child

at a sectarian school.

Regardless of whether the legal issue is whether the IDEA

requires, permits or prohibits the delivery of interpretive services to

a deaf child at a sectarian school, a ruling on this legal issue was not

made by the lower courts in this case. Zobrests claimed in their

verified amended complaint that the IDEA required Catalina

Foothills to provide an interpreter. (J.A. 21-22) This allegation was

denied in Catalina Foothills’ answer. (J.A. 55) In their stipulation

of facts, the Zobrests and Catalina Foothills agreed only that

Catalina Foothills “would be obligated under the [IDEA] to pay the

cost of a certified sign-language interpreter for James Zobrest if he

were enrolled in a local public high school." (J.A. 86) Upon cross-

motions for summary judgment, the District Court ruled that:

Based upon the stipulated facts in the record it is clear

that plaintiff James Zobrest requires the services of a sign

language interpreter at Salpointe Catholic High School.

However, the provision of a publicly-paid sign language

interpreter at Salpointe, a pervasively sectarian school,

would violate the separation of church and state.

There is no indication in the District Court’s opinion that it

concluded, as a preliminary matter leading to the constitutional basis

for its ruling, that the IDEA required Catalina Foothills to provide

James Zobrest with a sign-language interpreter at Salpointe Catholic

High School. Rather than ruling on the statutory question, the

District Court perhaps assumed, at least for the purposes of the

cross-motions for summary judgment, that Catalina Foothills might

voluntarily agree to provide an interpreter if it was not barred from

doing so by the Federal or Arizona Constitutions. In any event,

there is no indication that it considered the issue of whether the

IDEA required, as opposed to permits, the Catalina Foothills School

District to provide an interpreter for James Zobrest.

In affirming the District Court’s summary judgment, the Court

of Appeals for the Ninth Circuit stated that it did not feel any need

to rule on the statutory question because it believed that a stipulation

of the parties permitted the Court to bypass the issue:

For the purposes of this litigation, the parties do not

dispute that sign language interpretation is one of the

“special education and related services” to which James

is entitled. The parties agree that, if James’ parents

enrolled him in a non-sectarian private school or public

school, the School District would be obligated to provide

a sign language interpreter for him.

Zobrest v. Catalina Foothills School District, 963 F.2d 1190, 1192

n.1 (9th Cir. 1992). The problem here, however, is that there was

no stipulation to the effect that a sign-language interpreter is a

“special education related service” to which James would be entitled

to receive in a private school. Rather, the only stipulation was that

~ > entitled to these services in a public school setting. (J.A.

Regardless of whether the Ninth Circuit correctly or incorrectly

characterized the disputed facts or the parties’ stipulations, the

unalterable fact is that neither the District Court nor the Ninth

Circuit considered the merits of, or ruled on, the issue of whether

the IDEA requires the placement of a sign-language interpreter in

any setting other than a public school. Whether the School District

voluntarily would have provided an interpreter is no longer of any

concern. James Zobrest has graduated from school, and thus any

issue as to voluntary provision of such services is moot. In addition,

as described above, and as indicated in the Arizona Attorney General

Opinion rendered on this very situation, (J.A. 9-18), the Arizona

Constitution would prohibit the School District from voluntarily

providing services.‘

The important point is that no court has yet addressed the issue

of whether the IDEA requires the services at issue here to be

provided. ASBA urges the Court to avoid any confusion regarding

this point by clarifying in its opinion that the question as to whether

the IDEA requires a public agency to provide an interpreter to a deaf

child in a sectarian school has not yet been addressed. If the case

is affirmed, there is no need to reach this issue. If the Court

reverses on the constitutional issue, it should remand this case to the

District Court to resolve the remaining issues in the case, including

the issue as to the required, as opposed to permissive, application of

the IDEA to the parochial school fact situation presented. In the

alternative, this Court could dismiss the grant of certiorari as

improvidently granted on the basis that the lower courts should have

resolved the statutory issue before addressing the constitutional issue.

See Califano v. Yamasaki, 422 U.S. 682, 692 (1979). This,

perhaps, would be the desirable course of action to avoid completely

the necessity of adjudicating the constitutional issue presented.

Il. THE PRESENT CONTROVERSY

SHOULD BE RESOLVED BY

APPLICATION OF THE THREE-PART

LEMON TEST

The briefs filed by the Zobrests and Catalina Foothills indicate

that both parties believe that the present controversy can and should

be resolved by a straightforward application of the three-part inquiry

recognized by this Court in Lemon v. Kurtynan, 403 U.S. 602

(1971). Various amici filing briefs in support of the Zobrests,

however, have suggested that this Court should reexamine the use of

the Lemon test in its Establishment Clause analysis. See, e.g., Brief

of the United States as Amicus Curiae Supporting Petitioners, p. 15,’

* Note that Catalina Foothills determined that it would follow the

dictates of the Attorney General Opinion. (J.A. 94).

10

n.11. While ASBA recognizes the concerns of some members of

this Court regarding the difficulty in applying the Lemon test, see,

e.g., Aguilar v. Felton, 473 U.S. 402, 429 (1985) (O’Connor, J.,

dissenting); Edwards v. Aguillard, 482 U.S. 578, 636 (1987)

(Scalia, J., dissenting), ASBA urges this Court to continue to

recognize the three-part approach — purpose, effect and

entanglement — as the proper framework of analysis for

determining whether government action impairs the objectives of

the Establishment Clause.

The religious heritage of this country is extraordinarily

diverse and becoming more so. Public education in America has

remained relatively free of religious strife because of this Court’s

efforts to establish and maintain a set of standards that ensures a

meaningful separation of church and state. If the Court in this case

develops a “new test,” that action assuredly will send out a

message to schools, students, parents and communities throughout

this country that all of the religion-in-the-schools cases are no

longer “good law” or at least are questionable. Any serious move

away from the strong stand this Court has held in the past to

separate religion and the state will be a clarion call to those who

are eager to establish religion in the schools. Schools will then

face “successive opportunities for political fragmentation and

division along religious lines, one of the principal evils against

which the Establishment Clause was intended to protect." Meek v.

> Justice Powell’s admonition about the risk of political divisiveness

stemming from aid to religion is particularly appropriate:

Public schools, as well as private schools, are under

increasing pressure to meet real and perceived needs. Thus,

any proposal to extend direct governmental aid to parochial

schools alone is likely to spark political disagreement from

taxpayers who support the public schools, as well as from

nonrecipient sectarian groups, who may fear that needed

funds are being diverted from them. In short, aid to

parochial schools of the sort at issue here potentially leads to

“that kind and degree of government involvement in religious

Pittenger, 421 U.S. 349, 372 (1974); see also Lemon v. Kurtzman,

403 U.S. at 622-23.

Il. THEESTABLISHMENT CLAUSE BARS

A PUBLIC SCHOOL DISTRICT FROM

PROVIDING AN INTERPRETER TO A

DEAF CHILD AT A SECTARIAN

SCHOOL

The employment by a public school district of a sign-language

interpreter to accompany a student through all of his activities at a

Catholic high school, including morning mass and religious classes,

to interpret all communication that occurs in the student’s presence,

including prayers and other religious communication, violates the

Establishment Clause of the First Amendment to the United States

Constitution. Judged in light of the three-part Lemon test, provision

of an interpreter under these circumstances would have the primary

effect of advancing religion and would create excessive entanglement

between church and state.

The sign-language interpreter’s presence, at public expense, in

a parochial high school would have the impermissible effect of

advancing religion because the interpreter would benefit the

religious-oriented educational function of the sectarian school, serve

as a conduit for all religious communications to and from the

student, and be used as a tool to facilitate religious interaction. See

Goodall by Goodall v. Stafford County School Board, 930 F.2d at

370-71; see also Meek v. Pittenger, 421 U.S. at 366 (State aid in the

form of instructional materials and equipment which “flows to an

institution in which religion is so pervasive that a substantial portion

of its functions are subsumed in the religious mission . . . has the

life that, as history teaches us, is apt to lead to strife and

Frequently strain a political system to the breaking point."

Aguilar v. Felton, 473 U.S. 402, 416-17 (1985) (quoting Walz v. Tax

Comm'n, 397 U.S. 664, 694 (1970) (opinion of Harlan, J.))

12

impermissible primary effect of advancing religion,” quoting Hunt

v. McNair, 413 U.S. 734, 743 (1972)); Wolman v. Walter, 433 U.S.

229, 250 (1977) ("In view of the impossibility of separating the

secular education function from the sectarian, the state aid [instruc-

tional materials and equipment] inevitably flows in part to support

the religious role of the schools.").

The presence, furthermore, of a publicly paid employee in a

parochial classroom, transmitting religious communications, would

create an impermissible symbolic union between the government and

the religious school. See Goodall by Goodall v. Stafford County

School Board, 930 F.2d at 370-71; see also Grand Rapids School

Dist. v. Ball, 473 U.S. 373, 392 (1985) (Remedial and supplemen-

tary programs conducted by public school employees on premises of

parochial school creates an unacceptable “symbolic union of govern-

ment and religion in one sectarian enterprise.") This Court has

recognized “the danger that publicly employed personnel who

provide [therapeutic] services ... might transmit religious

instruction and advance religious beliefs in their activities.” Wolman

v. Walter, 433 U.S. at 247. There is no question in this case that

the interpreter, acting as a state employee, would transmit religious

instruction in a sectarian school.

Zobrests try to defend this untenable situation by characterizing

an educational interpreter as nothing more than a human hearing aid.

This is simply at odds with reality. According to the National Task

Force on Educational Interpreting:

The educational interpreter is a member of the education-

al team, and is relied upon by the teacher, the deaf

student, and hearing peers, to relay information accurate-

ly and intelligibly both to and from the deaf students and

others as needed. *** While interpreting is the

educational interpreter’s primary role, and the first order

of priority, it may not be his or her only role.

13

(A-2)*. Educational interpreters may be called upon to perform a

number of noninterpretive tasks, including tutoring and other routine

classroom duties. (A-2). In addition, an “educational interpreter’s

responsibilities should include provisions for what might be called

“educational planning” [,] . . . time that is set aside for the

educational interpreter and teacher to discuss course content, lesson

plans upcoming tests, etc.” (A-8). Clearly, an educational

interpreter is not a hearing aid but a teacher's aide, an education

professional who, as part of an education team, is expected to master

the curriculum, including its religious elements, and provide a

supportive role to the teacher and deaf student.

Finally, the need for periodic evaluation by other public

employees of the interpreter’s performance, as well as the need for

periodic review by the District of the suitability of the special

education services provided to the student, would create excessive

entanglements between the public and parochial enterprises. See

Aguilar v. Felton, 473 U.S. 402, 413 (1985) ("We have long

recognized that underlying the Establishment Clause is “the objective

. . . t© prevent, as far as possible, the intrusion of either church or

state into the precincts of the other,” quoting Lemon v. Kurtzman,

403 U.S. at 614).

CONCLUSION

For all of the foregoing reasons, ASBA respectfully requests

that this Court (1) clarify in its opinion that it will not address the

legal issue of whether the IDEA requires a local education agency

to provide an interpreter to a deaf child in a sectarian school, (2)

* “A” refers to the Appendix to this Brief.

14

continue its support of the Lemon test in its Establishment Clause

analysis, and (3) affirm the decision below.

Respectfully submitted,

Robert J. DuComb, Jr.

Counsel of Record

Sharon B. Shively

SACKS, TIERNEY & KASEN, P.A.

2929 North Central Avenue, 14th Floor

Phoenix, Arizona 85012-2742

Thomas W. Pickrell

General Counsel

ARIZONA SCHOOL BOARDS ASSOCIATION, INC.

3852 N. 29th Avenue

Phoenix, Arizona 85017

15

EDUCATIONAL INTERPRETING

FOR DEAF STUDENTS

Report of the National Task Force on

Educational Interpreting

Sponsoring Organizations

Alexander Graham Bell Association for the Deaf

Conference of Educational Admunistrators Serving the Deaf

Conference of Interpreter Trainers

Convention of American Instructors of the Deaf

National Association of the Deaf

Registry of Interpreters for the Deaf

Editors:

E. Ross Stuckless

Joseph C. Avery

T. Alan Hurwitz

- 1989 -

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itt. ROLES AND RESPONSIBILITIES

Roles

The fundamental role of the interpreter, regardless of specialty

or place of employment, is to facilitate communication between deaf

persons and others. Educational interpreters facilitate communication

between deaf students and others, including teachers, other service

providers, and peers, within an educational environment, usually a

mainstream or quasi-mainstream setting. The educational interpreter is a

member of the educational team, and is relied on by the teacher, the deaf

student, and hearing peers, to relay information accurately and intelligibly

both to and from the deaf student and others as needed.

The usefulness of an interpreter presupposes that the deaf

student has at least the foundation of a language system, be it English or

a form of sign language. Unfortunately this is not always the case,

particularly among young school-age children. Likewise the usefulness of

an interpreter presupposes that he or she is qualified to interpret in a form

used by the child. If a continuing situation occurs in which the deaf

student is unable to profit from interpreting services, the presence of an

educational interpreter may be a poor use of resources and the child’s

placement or the interpreter assignment should be re-examined. With

young children it is common to use teachers’ aides rather than educational

interpreters in support roles.

At least one national professional organization recommends

that where possible, deaf children interact directly with their teachers in the

early grades when major attention is given to language acquisition.

Consensus among educators of the deaf in support of educational

interpreting increases as the deaf child progresses into the upper elementary

level and beyond.

While interpreting is the educational interpreter’s primary

role, and the first order of priority, it may not be his or her only role.

With appropriate training and skills, the role of the educational interpreter

may extend into non-interpreting areas. These will be discussed under

"Responsibilities."

The relative proportion of time spent by the educational

interpreter in interpreting and non-interpreting roles can be influenced by

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a number of factors. Among these are local circumstances such as number

of deaf students being served in the school district and their distribution

across grade levels and school buildings. Another involves the

qualifications and availability of the interpreting staff and other personnel.

Obviously, the educational interpreter’s background and skills should be

considered in the assignment of non-interpreting tasks.

Also, if an educational interpreter is employed full time by the

school district or institution, he or she is more likely to have non-

interpreting duties than if employed on a part-time or hourly basis. This

is due in part to the fact that interpreters cannot be expected to interpret

continuously and without relief throughout a full school day, particularly

in lecture-type classes where there is little or no respite. This will be

discussed further under the topic of "Working Conditions."

Additionally, in situations where the educational interpreter

works with the same teacher and class throughout the day, the educational

interpreter is likely to have more non-interpreting duties than if he or she

moves from class to class. The educational interpreter is most likely to

have expanded roles that include non-interpreting duties at the primary and

elementary levels.

It is stressed that the educational interpreter’s primary role and

first priority is as an interpreter. While engaged in interpreting, he or she

should not be asked to interrupt this activity in order to perform some

other task. Similarly, when the need arises for both interpreting and some

other task, interpreting should take priority.

This does not imply that the educational interpreter, when not

actually interpreting, should avoid other tasks because of the need to

remain "on call" for interpreting. Judgment is required in each situation.

(See also “Responsibilities and Ethical Considerations.")

Attention should be brought here to what is considered to be

an inappropriate non-interpreting role for the educational interpreter. The

role of the educational interpreter should not include classroom

management, i.e., formal instruction or classroom supervision. Very few

educational interpreters are also trained and certified teachers, and even if

they are, may be qualified to teach only at particular grade levels and in

particular content areas. If the educational interpreter’s duties include

tutoring, it should be under the teacher’s supervision.

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A quality education for deaf students who spend all or part of

their school day in a mainstream educational environment depends on

services and people with varied roles. An understanding of the overlapping

and distinguishing roles of teacher, student, educational interpreter,

parents, and others involved in the deaf student’s education should be

understood by all these persons.

Responsibilities

An educational interpreter’s responsibilities are likely to vary

considerably from one work setting to another. Several factors that may

lead to different responsibilities are mentioned under “Roles.”

One major factor has to do with the kinds and levels of

training and experience the educational interpreter brings to the task.

Obviously, the educational interpreter should not be assigned

responsibilities for which he or she is not qualified. By the same token,

the broadly qualified educational interpreter most likely can carry out

numerous responsibilities in addition to interpreting. Sign language

instruction is a good example. Salary, benefits, and other working

conditions should be commensurate with these responsibilities.

Written guidelines and inservice training are one way to

ensure that the educational interpreter’s roles and responsibilities are

understood by teachers and others who make up the educational team, by

the students who will be using the service, by their parents, and of course

by the educational interpreter.

It is also important that a member of the educational

administration staff supervise the activities of the educational interpreter.

While in most instances the supervisor is unlikely to have interpreting

skills, he or she should have a general knowledge of interpreting

requirements. The selection of an individual depends on conditions in the

local system, but in general, neither an outside agency/consultant nor a

teacher in whose class the educational interpreter works is recommended

as the interpreter’s supervisor.

Interpreting Responsibilities

The local educational authority is responsible for prescribing

the mode(s) of communication to be used with deaf students. Those

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mode(s) should be indicated in the interpreter’s job description. It follows

that it is not the interpreter’s responsibility to select the mode(s) of

communication to be used in class. (See also "Responsibilities and Ethical

Considerations.” )

As an important language model for the deaf student, the

educational interpreter should be skilled in the mode(s) of communication

that is/are indicated in the job description and prescribed for classroom use

with the student.

Based on his or her training and experience, the educational

interpreter should also be able to determine whether, and to what extent,

the student understands the mode(s) of communication being used. If the

student has difficulty with instructional content due to not understanding

the mode(s) of communication in use, the educational interpreter should

inform the appropriate member of the educational team.

"In class" interpreting. The instructional content of "in class"

interpreting varies by class and level. Interpreting responsibilities at the

elementary level most likely include a broad range of subject areas, such

as mathematics, social studies, and the language arts, but the depth of

knowledge needed by the educational interpreter in each subject area is not

likely to require special technical background.

The instructional content at the secondary level takes on more

depth, and may necessitate the educational interpreter’s having more

technical knowledge of a particular content area. For interpreting at the

postsecondary level, it is important that the educational interpreter have an

academic background and/or technical knowledge in one or more college-

level disciplines.

In short, the depth of subject knowledge needed to interpret

a third grade class in arithmetic is quite unlike that needed to interpret a

course in calculus or law. It is essential that the educational interpreter

have sufficient knowledge of the content to be able to interpret its concepts

and vocabulary accurately and meaningfuliy. This is likely also to call for

preparation time, e.g., to meet with the instructor, read lecture outlines,

skim required readings in textbooks, and preview uncaptioned instructional

videotapes.

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“Out of class" interpreting. The educational interpreter’s

responsibilities probably will include interpreting coverage of “out of class"

or extracurricular activities. These should be distinguished from other

duties such as lunchroom or playground supervision and duties as a bus

attendant.

Out-of-class activities are those in which the educational

interpreter is present primarily to interpret for the deaf student and others

outside the classroom. Such activities might include field trips, club

meetings, assemblies, counseling sessions, course registrations, athletic

competitions, and other school-related activities. In some school programs,

interpreters may be asked to interpret for deaf parents, deaf teachers, and

other deaf employees.

Out-of-class interpreting assignments requiring hours beyond

the regular working hours should be compensated in some form per local

policy, e.g., stipend, compensation time off, or overtime. Volunteer

activities are at the discretion of the educational interpreter.

Non-Interpreting Responsibilities

Educational interpreters should not be asked to assume

responsibility for duties for which they do not have the needed training

and/or background knowledge. In these cases, time may need to be set

aside by the interpreter and other appropriate staff for “on-the-job” training

and/or support for the interpreter to take workshops and other formal

training elsewhere.

Tutoring. Programs that offer special tutoring services to

their deaf students frequently use educational interpreters to provide this

service. However, as of 1989, very few interpreters had received special

training for tutoring.

If tutoring is part of an educational interpreter’s

responsibilities, it should be carried out under the direct supervision of the

teacher, since the teacher ultimately is responsible for teaching and

assessing student progress.

The educational interpreter and the deaf student are more

likely to be able to communicate directly with one another than are other

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members of the educational staff with the same student, and of course this

is very important in tutoring.

Communication notwithstanding, the educational interpreter’s

ability to tutor effectively depends also on the interpreter’s level of

knowledge about the subject matter being covered. In this respect, at least,

tutoring may indeed be easier to do at the elementary level than at the

secondary level, and easier at the secondary level than at the postsecondary

level where the interpreter may not have indepth knowledge of the course

content. For this reason, among others, it is more common to include

tutoring among the responsibilities of educational interpreters at the K-12

levels than at the postsecondary level.

General classroom assistance. The presence of a deaf student

in the regular class most likely adds to the work of the teacher, particularly

at the elementary level where the student can be quite dependent on the

teacher for special attention and assistance. At times when their services

are not needed for interpreting, educational interpreters may volunteer or

be asked by the teacher to assist with some of the more routine classroom

duties, particularly when the interpreter is assigned to the same teacher and

class for most or all of the school day.

This potentially sensitive area for both teacher and interpreter

should be closely monitored by the supervisor. For the protection of both

teacher and interpreter, and for the maintenance of a positive classroom

climate, there must be a good understanding between both as to the level

and kind of general classroom assistance the educational interpreter can

provide the teacher and class without interfering with his/her primary

responsibility for interpreting. In this context, it is emphasized that the

educational interpreter should be prepared to interrupt other classroom

activities when interpreting services are needed. (See also "Responsibilities

and Ethical Considerations." )

Under no circumstances should the educational interpreter take

on the responsibility of the teacher for management of the class.

Sign language instruction. Educational interpreters frequently

are asked to assume an instructional role in teaching sign language to

groups of students and school staff members. The usual preparation and

certification for interpreting does not cover this area of responsibility, and

most interpreters, while capable of providing informal instruction for

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enrichment, are not well prepared to teach formal sign language courses.

However, training and several levels of certification in sign language

instruction are available through the Sign Instruction Guidance Network

(SIGN) of the National Association of the Deaf, and the educational

interpreter might be encouraged to make this a part of his or her

professional development plan.’

Educational planning. The educational interpreter’s

responsibilities should include provisions for what might be_ called

"educational planning". This includes time that is set aside for the

educational interpreter and teacher to discuss course content, lesson plans,

upcoming tests, etc., in order to coordinate educational planning for the

deaf student. At the elementary level, where the educational interpreter is

likely to be working with the same teacher and class over the year, these

meetings should be scheduled on a regular basis, particularly if the

interpreter’s educational duties include tutoring and/or general classroom

assistance.

Educational planning should also include provisions for

"preparation time” — time to preview textbooks and other instructional

materials, to become oriented to subject content and vocabulary and to

selected vocabulary signs, etc. — to enable the interpreter to prepare a

better interpretation. (See also "Schedule.")

Reference was made earlier about the need for continuing skill

development by the educational interpreter, much of which needs to be on

an inservice basis as part of educational planning. This remains essential

until more interpreter preparation programs provide the curriculum to

prepare interpreters to work as specialists in the educational setting.

Responsibilities and Ethical Considerations

In 1979, the Registry of Interpreters for the Deaf (RID)

developed a Code of Ethics, consisting of eight principles and a series of

guidelines. This code was developed essentially for general situations

' For more information, write SIGN, National Association of the

Deaf, 814 Thayer Avenue, Silver Spring, Maryland 20910.

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involving deaf adults as clients, without reference to interpreting for

children or interpreting in educational settings (Frishberg, 1986)’.

As might be expected, the RID Code of Ethics has more

immediate relevance to interpreting for deaf adults than for deaf children,

and for students enrolled in postsecondary and continuing education classes

than for those enrolled at the elementary or secondary levels. Educational

interpreters, therefore, frequently express concerns about the applicability

of particular principles of the RID Code to educational situations.

One of these principles stresses the importance of keeping all

assignment-related information strictly confidential. This importast aspect

of the client-interpreter relationship generally applies to the student-

interpreter relationship as well. A climate of trust should be maintained

between interpreter, teacher, and student. Interpreters should be careful

not to damage that trust by critiquing teachers’ classroom behaviors to

outside parties.

As with many ethical guidelines, exceptions to the

confidentiality principle may occur, particularly when the safety and

welfare of a child or adolescent are involved. For example, as a member

of the educational team, the interpreter should exercise judgment in sharing

information that is relevant to a deaf student’s educational progress with

other members of the team and his or her supervisor. In this regard,

educational interpreters must be aware of, and adhere to, policies and

procedures established by the district for its employees. .

The RID Code also indicates that the interpreter should

interpret in the language most readily understood by the person(s) whom

he or she is serving. However, in the educational setting, it is the

responsibility of school administrators, not interpreters, to determine the

language to be used. If it is clear to the educational interpreter that the

student is deriving little information from the prescribed form of

communication, with consequences for that student’s educational

? Frishberg, N, (1986), Interpreting: An Introduction, Silver

Spring, Maryland: RID Publications.

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development, the interpreter should feel free to discuss this with other

members of the educational team and his or her supervisor.

The RID Code of Ethics addresses interpreting assignments

only. It does not cover the additional responsibilities that are so common

among educational interpreters. Some educational interpreters infer from

this that the RID Code discourages interpreters from assuming

responsibilities in the school beyond interpreting. It does not.

The prevailing opinion among educational interpreters serving

students at all educational levels is that the RID Code of Ethics offers

useful guidance. With some adaptations and the insertion of guidelines that

more closely reflect needs and circumstances within various educational

settings serving deaf students, the Code can provide an appropriate

foundation of ethical principles for educational interpreters.

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