Larry Zobrest Sandra Zobrest, Husband and Wife James Zobrest, a Minor, by Larry and Sandra Zobrest, His Parents v. Catalina Foothills School District

963 F.2d 1190, 92 Daily Journal DAR 5998, 92 Cal. Daily Op. Serv. 3723, 1992 U.S. App. LEXIS 8609, 1992 WL 86206

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 1, 1992
• Docket: 89-16035
• Status: Published

Opinions

OPINION

FLETCHER, Circuit Judge:

The Zobrests appeal the district court’s ruling that provision of a state-paid sign language interpreter to James Zobrest while he attends a sectarian high school would violate the Establishment Clause. The Zobrests also argue that denial of such assistance violates the Free Exercise Clause.

We affirm.

BACKGROUND

James Zobrest is a student at Sal-pointe Catholic High School. He is profoundly deaf, qualifying him as a handicapped child under the Federal Education of the Handicapped Act (“EHA”), 20 U.S.C. § 1401(a)(1), and Ariz.Rev.Stat. § 15-761(6); see also 34 C.F.R. § 300.5. The EHA provides federal funds to state and local governments for the purpose of educating handicapped children. Board of Educ. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 3037, 73 L.Ed.2d 690 (1982). In order to obtain federal funds, a state must offer all handicapped children within its jurisdiction a “free appropriate public education.” 20 U.S.C. § 1412(1). Under the program, states and school districts provide handicapped students the services necessary to meet their special educational needs. 20 U.S.C. § 1413(a)(4)(A). Arizona has enacted a statutory scheme designed to meet the educational needs of its handicapped students and to qualify it for federal assistance under the EHA. Ariz.Rev.Stat. §§ 16-761 to 15-772.

Both EHA and state funds are available to provide sign language interpreters. See 34 C.F.R. § 300.13. The parties do not dispute that James needs the assistance of a sign language interpreter in the classroom. The parties have also agreed that, if James attended either a public or a non-religious private school in Arizona, the Catalina Foothills School District (“School District”) would assume full financial responsibility for the employment of a sign language interpreter for James.¹

Salpointe High is a private Roman Catholic school, operated by the Carmelite Order of the Catholic Church. Salpointe is a pervasively religious institution; religious themes permeate the classroom. According to the parties’ stipulation of facts, “[t]he two functions of secular education and advancement of religious values or beliefs are inextricably intertwined throughout the operations of Salpointe.” Salpointe “encourages its faculty to assist students in experiencing how the presence of God is manifest in nature, human history, in the struggles for economic and political justice, and other secular areas of the curriculum.” Religion is a required subject for students enrolled at Salpointe, and the students are strongly encouraged to attend the Mass celebrated there each morning. As a result, a sign language interpreter would be called upon to translate religious precepts and beliefs during the course of James’s education.

Sandra and Larry Zobrest, James’s parents, feel compelled by their religious convictions to enroll James in a Catholic high school.

Prior to their son’s enrollment at Salpointe, the Zobrests requested that the School District supply James with a certified sign language interpreter for his classes at Salpointe, beginning in August 1988. The School District petitioned the Pima County Attorney for an opinion on the constitutionality of providing such a service. The Deputy County Attorney subsequently advised that furnishing an interpreter would offend both state and federal constitutional prohibitions against a state establishment of religion. See U.S. Const. amends. I, XIV; Ariz. Const. art. 2, § 12. In June 1988, the Arizona Attorney General concurred in the Deputy County Attorney’s opinion.²

In August 1988, the Zobrests initiated a civil action under the EHA, 20 U.S.C. § 1415(e), seeking an injunction requiring the School District to provide James with an interpreter. Pending the outcome of this litigation, the Zobrests have employed an interpreter for their son at their own expense. On August 15, 1988, the district court denied the Zobrests’ request for a preliminary injunction. The court found that the Zobrests had not demonstrated a likelihood of success on the merits, because the provision of an interpreter would likely offend the first amendment’s establishment clause.

On July 20, 1989, the district court granted the School District’s motion for summary judgment, holding that the furnishing of a sign language interpreter would in fact offend the first amendment. The court noted that:

The interpreter would act as a conduit for the religious inculcation of James— thereby promoting James's religious development at government expense. That kind of entanglement of church and State is not allowed.

Zobrest v. Catalina Foothills School District, No. CIV-88-516 (D.Ariz. Oct. 19, 1989) (order granting summary judgment). The court did not pass on the question of whether the employment of a sign language interpreter would also violate the Arizona Constitution. The Zobrests appeal this order.

STANDARD OF REVIEW

We review the district court’s grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether genuine issues of material fact exist and whether the district court correctly applied the law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

Whether the provision of a state-financed sign language interpreter to a student enrolled in a private sectarian school violates the establishment clause is a question of constitutional law that we review de novo. See Carreras v. City of Anaheim, 768 F.2d 1039, 1042 n. 2 (9th Cir.1985). We likewise review de novo the constitutionality of the school district’s decision to withhold aid from the Zobrests. Id.

DISCUSSION

I. The Establishment Clause

The first amendment provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” U.S. Const. amend. I. This prohibition extends to the states through the fourteenth amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

A. The Lemon v. Kurtzman Test

To “guide” the Establishment Clause inquiry, the Supreme Court has fashioned a three-part test. Mueller v. Allen, 463 U.S. 388, 394, 103 S.Ct. 3062, 3066, 77 L.Ed.2d 721 (1983). In general terms, a statute will be upheld if: the statute has a “secular legislative purpose”; the statute’s “principal or primary effect [is] one that neither advances or inhibits religion”; and, the statute does not “foster an excessive government entanglement with religion.” Id. (citing Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971)).

B. Secular Legislative Purpose

The Supreme Court has noted its “reluctance to attribute unconstitutional motives” to a statute’s drafters, “particularly when a plausible secular purpose for the [program] may be discerned from the face of the statute.” Mueller v. Allen, 463 U.S. at 394-95, 103 S.Ct. at 3067. The statutes at issue here evince a secular purpose.

In enacting the EHA, Congress made clear its secular purpose:

It is the purpose of this Chapter to assure that all handicapped children have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of handicapped children and their parents or guardians are protected, to assist States and Localities to provide for the education of all handicapped children, and to assess and assure the effectiveness of efforts to educate handicapped children.

20 U.S.C. § 1400(c).

The Arizona counterpart to the EHA reveals a similar goal of providing the state’s handicapped children with the assistance they might need to enjoy full and equal educational opportunities.

Thus, the EHA and the corresponding Arizona statutes pass the first part of the Lemon test. However, we find their proposed application cannot survive the second part of that test.³

C. Statutes’ Primary Effect

In Grand Rapids School District v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985), the Supreme Court held that programs under which public school employees provided classes in private schools violated the Establishment Clause, where all but one of the private schools involved were sectarian in nature. The Court found that the programs “may impermissibly advance religion in three ways.” Grand Rapids, 473 U.S. at 385, 105 S.Ct. at 3223. One of the impermissible effects the Court cited was that “the programs may provide a crucial symbolic link between government and religion, thereby enlisting — at least in the eyes of impressionable youngsters — the powers of government to the support of the religious denomination operating the school.” Id. The Court noted, “Government promotes religion as effectively when it fosters a close identification of its powers and responsibilities with those of any — or all— religious denominations as when it attempts to inculcate specific religious doctrines.” Id., 473 U.S. at 389, 105 S.Ct. at 3225. The Court cited a lower court opinion, which stated that, “Under the City’s plan public school teachers are, so far as appearance is concerned, a regular adjunct of the religious school.... The religious school appears to the public as a joint enterprise staffed with some teachers paid by its religious sponsor and others by the pub-lie.” Id., 473 U.S. at 392, 105 S.Ct. at 3227 (quoting Felton v. Secretary, United States Dept. of Ed., 739 F.2d 48, 67-68 (1984)). The Supreme Court concluded that “the symbolic union of government and religion in one sectarian enterprise ... is an impermissible effect under the Establishment Clause.” Grand Rapids, 473 U.S. at 392, 105 S.Ct. at 3227; see also Goodall by Goodall v. Stafford County Sch. Bd., 930 F.2d 363, 370-72 (4th Cir.) (provision of sign language interpreter to sectarian school student under EHA and Virginia implementing regulations would violate Establishment Clause), cert. denied, — U.S. —, 112 S.Ct. 188, 116 L.Ed.2d 149 (1991).

Were we to sanction the aid the Zobrests seek, a public employee would be at James Zobrest’s side in each of his classes at a sectarian school. With James, the employee would attend religion classes, the nominally “secular” subjects, in which as the parties stipulate, Salpointe faculty are encouraged to “assist students in experiencing how the presence of God is manifest,” and the masses at which Salpointe encourages attendance. The interpreter would be the instrumentality conveying the religious message and experience. This presence and function of an employee paid by the government in sectarian classes would create the “symbolic union” Grand Rapids found impermissible. By placing its employee in the sectarian school to perform this function, the government would create the appearance that it was a “joint sponsor” of the school's activities.⁴

Two lines of cases the Zobrests cite in support of their appeal are distinguishable from the case at hand. First, this case does not involve “the sort of attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from [a] neutrally available ... benefit....” Mueller v. Allen, 463 U.S. at 400, 103 S.Ct. at 3070. In Mueller v. Allen, the Supreme Court upheld a Minnesota program under which all parents were entitled to tax deduction for the cost of their children’s “tuition, textbooks and transportation.” The Court noted that, “by channeling whatever assistance it may provide to parochial schools through individual parents, Minnesota has reduced the Establishment Clause objections to which its action is subject.” Id., 463 U.S. at 399, 103 S.Ct. at 3069. Similarly, in Witters v. Wash. Dept. of Servs. for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986), the Court held that the award of special education assistance to a visually handicapped student who sought to use that assistance at a sectarian college did not violate the Establishment Clause. Again, the Court emphasized the private individual’s decision in directing state provided aid: “In this case, the fact that aid goes to individuals means that the decision to support religious education is made by the individual, not by the State.” Witters, 474 U.S. at 488, 106 S.Ct. at 752.

Were we to grant the Zobrests the relief they request, public aid would not be channeled to the sectarian school through the decision of an individual. Instead, the government would be required to place its own employee in the sectarian school. On the facts before us, these cases are unavailing.

Nor can the Zobrests rely on cases in which the Supreme Court has upheld the provision to sectarian schools of aid where the “purely secular content of the goods and services provided” was “easily ascertainable.” Goodall, 930 F.2d at 371 (emphasis original). “It is, of course, true that as part of general legislation made available to all students, a State may include church-related schools in programs providing bus transportation, school lunches, and public health facilities — secular and nonideological services unrelated to the primary, religion-oriented educational function of the sectarian school.” Meek v. Pittenger, 421 U.S. 349, 364, 95 S.Ct. 1753, 1763, 44 L.Ed.2d 217 (1975); see also Lemon v. Kurtzman, 403 U.S. at 616, 91 S.Ct. at 2113 (“Our decisions ... have permitted the States to provide church-related schools with secular, neutral, or nonideological services, facilities or materials.”). In approving such aid to sectarian schools, the Supreme Court has been careful to emphasize the secular nature of this aid. For example, in Board of Educ. v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), the Court upheld the provision of secular subject textbooks to all schools, including sectarian schools, in New York. The Court observed, “Although the books loaned are those required by the parochial school for use in specific courses, each book loaned must be approved by the public school authorities; only secular books may receive approval.” Allen, 392 U.S. at 244, 88 S.Ct. at 1927. In Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977), the Supreme Court upheld funding for the provision to sectarian schools of secular textbooks, standardized tests and scoring services, speech and hearing diagnostic services and off-site therapeutic and remedial services. In discussing each of these categories, the Court emphasized the secular nature of the aid provided and the capacity for its complete separation from any entanglement; for example, with regard to standardized tests, the Court noted: “The nonpublic school does not control the content of the test or its result. This serves to prevent the use of the test as a part of religious teaching....” Wolman, 433 U.S. at 240, 97 S.Ct. at 2601. However, in Wolman the Court did not permit funding for the purchase of instructional materials for loan to parents or for field trip services; with regard to the latter category, the Court stated, “The field trips are an integral part of the educational experience, and where the teacher works within and for a sectarian institution, an unacceptable risk of fostering of religion is an inevitable by-product” Id., 433 U.S. at 254, 97 S.Ct. at 2608.

Here, as the parties stipulate, the interpreter would be required to act in a school environment in which “the two functions of secular education and advancement of religious values or beliefs are inextricably intertwined.” Unlike the aid approved in Allen and Wolman, then, the assistance the state would provide in this case cannot be said to be of a clearly secular and separable nature.⁵

Thus, if applied as the Zobrests propose, the statutes at issue fail to survive the second part of the Lemon test. We therefore find that state provision of the aid the Zobrests seek would violate the Establishment Clause.

II. Free Exercise Clause

We turn now to the second issue the Zobrests raise: does denial of the assistance of a sign language interpreter unconstitutionally infringe on their rights under the Free Exercise Clause? We find that it does not.

The government places a burden on an individual’s free exercise rights when it forces the individual to choose between adhering to her religion, thus forgoing state provided benefits, and abandoning a religious precept in order to receive those benefits. Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963). The imposition of such a burden violates the Free Exercise Clause unless it is justified by some compelling state interest. Id., 374 U.S. at 406, 83 S.Ct. at 1795. Thus, in Sherbert v. Vemer, the Supreme Court held that South Carolina could not deny unemployment compensation to a member of the Seventh Day Adventist church because she refused to accept any job which required her to work on Saturday, her faith’s Sabbath. Id., 374 U.S. at 404, 83 S.Ct. at 1794. South Carolina sought to justify its restriction on benefits as a means of combatting fraud; however, the Supreme Court rejected this argument, noting that there was no evidence of fraud, nor had the state demonstrated that it could not accomplish its goal by some less restrictive means. Id., 374 U.S. at 407, 83 S.Ct. at 1795-96.

Here, denial of aid to the Zobrests does impose a burden on their free exercise rights. They will have either to forgo a sectarian education for James in order to receive the assistance of a sign language interpreter for him at school, or they will have to pay the cost of the interpreter’s services themselves, while keeping him at Salpointe.

However, a compelling state interest justifies the imposition of this burden. The government has a compelling interest in ensuring that the Establishment Clause is not violated. Goodall, 930 F.2d at 370; see also Doe v. Village of Crestwood, Ill., 917 F.2d 1476 (7th Cir.1990) (affirming grant of injunction against mass during public festival held in public park; government cannot convey the message that it is endorsing religion). It is difficult to imagine a more compelling interest than avoiding a violation of the Constitution. Likewise, here, there is no “less restrictive means” by which the state may accomplish that goal.

Thus, the refusal to provide James Zo-brest with a state paid sign language interpreter while he attends a sectarian high school does not violate the Free Exercise clause.⁶

The judgment of the district court is AFFIRMED.

1 . The bulk of EHA benefits are targeted for students enrolled in public schools or placed in private schools by state or local officials. See 20 U.S.C. § 1413(a)(4)(B). When parents voluntarily enroll their handicapped children in private school, the state need not pay those children’s tuition. 34 C.F.R. § 300.403(a). The state and local school district, however, still must provide "special education and related services” to the private school children. 34 C.F.R. § 300.452(a). For 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’s parents enrolled him in a non-sectarian private school or public school, the School District would be obliged to provide a sign language interpreter for him.

2 . The parties agreed that, in light of the Deputy County Attorney’s and Attorney General's decisions, exhaustion of the EHA’s administrative review procedure, 34 C.F.R. §§ 300.506 to 300.510, would be futile. Exhaustion of the EHA’s administrative procedures is not required when it is futile. Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 606, 98 L.Ed.2d 686 (1988); see also Wilson v. Marana Unified School Dist., 735 F.2d 1178, 1181 (9th Cir.1984).

3 . The Supreme Court has generally considered the validity of a challenged statute "on its face." Bowen v. Kendrick, 487 U.S. 589, 600, 108 S.Ct. 2562, 2569, 101 L.Ed.2d 520 (1988). However, "[t]here is ... precedent for distinguishing between the validity of a statute on its face and its validity in particular applications.” Id.,Id., 487 U.S. at 602, 108 S.Ct. at 2570. For example, in Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973), the Supreme Court ruled on the validity of South Carolina’s aid under a revenue bond act to an individual college, rather than on the constitutionality of the act as a whole. The court stated: "To identify 'primary effect,’ we narrow our focus from the statute as a whole to the only transaction presently before us." Hunt, 413 U.S. at 742, 93 S.Ct. at 2874. In Bowen, while the court found the challenged statute to be facially valid, it directed the district court to "consider on remand whether particular ALFA grants have had the primary effect of advancing religion.” Bowen, 487 U.S. at 622, 108 S.Ct. at 2581. In this case, we consider only the validity of one very specific proposed application of the statutes at issue. Consideration of the statutes “as applied” seems particularly appropriate because their descriptions of the aid to be provided are extremely broad. See 20 U.S.C. § 1413(a)(4)(A) (requiring states to establish policies and procedures to ensure "by providing for such children special education and related services" that children with disabilities participate in aid programs); Ariz.Rev.Stat. § 15-764 (requiring educational authorities to “provide special education and related services for all handicapped children”).

4 . One might attempt to distinguish Grand Rapids on the grounds that all but one of the courses at issue in that case were taught in elementary school, while the Zobrests seek aid for their son while he attends a Catholic high school. However, while the Supreme Court in Grand Rapids expressed special concern for "children of tender years,” 473 U.S. at 390, 105 S.Ct. at 3226, it did not limit its holding to elementary schools. Further, the Zobrests “feel it particularly essential that, at the time of adolescence, James be enrolled in a religious school.” They thus implicitly acknowledge the vulnerability of young people of James’ age.

5 . It could be argued that we might uphold the statutes insofar as they permit James Zobrest to receive the services of a state-paid interpreter during "secular” subjects, prohibiting only the presence of the interpreter during religion classes and mass. While we do not find it otherwise necessary to discuss the third part of the Lemon test, we do note that such a solution would place this case within the "Catch 22" in which "the very supervision of the aid to assure that it does not further religion renders the statute invalid." Bowen v. Kendrick, 487 U.S. 589, 615, 108 S.Ct. 2562, 2578, 101 L.Ed.2d 520 (1988). Were we to uphold aid to the Zobrests under these conditions, the government would be required to monitor closely the interpreter’s activities to ensure that assistance was not provided at prohibited times. Moreover, as religious instruction at Salpointe is not limited to specific classes, but pervades the entire curriculum, this monitoring would be the kind of "comprehensive, discriminating and continuing state surveillance," Lemon, 403 U.S. at 619, 91 S.Ct. at 2114, the Establishment Clause condemns. See Meek v. Pittenger, 421 U.S. at 369-72, 95 S.Ct. at 1765-67 (discussing entanglement problems created by need to ensure that "teachers play a strictly nonideological role").

6 . The Zobrests also argue that denying James Zobrest the assistance of a sign language interpreter would violate the Equal Protection Clause. As our analysis above makes clear, in this context the Free Exercise clause does not provide a fundamental right for the Zobrests: they have no entitlement to state support for James’ religious education in the form they seek. Nor can the Zobrests show that the state’s treatment of James Zobrest is subject to strict scrutiny because he is a member of a protected class. The state’s refusal to send a state-paid interpreter into a religious school is rationally related to its goal of avoiding a violation of the First Amendment. Thus, the Zobrests’ Equal Protection argument must fail.