Zobrest v. Catalina Foothills School District

CASES ADJUDGED

															IN THE

															SUPREME COURT OF THE UNITED STATES

															AT

															OCTOBER TERM, 1992

															Syllabus ZOBREST ET AL. v. CATALINA FOOTHILLS SCHOOL DISTRICT CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT No. 92-94. Argued February 24, 1993-Decided June 18, 1993 Petitioners, a deaf child and his parents, filed this suit after
respondent school district refused to provide a sign-language
interpreter to accompany the child to classes at a Roman Catholic
high school. They alleged that the Individuals with Disabilities
Education Act (IDEA) and the Free Exercise Clause of the First
Amendment required respondent to provide the interpreter and that
the Establishment Clause did not bar such relief. The District
Court granted respondent summary judgment on the ground that the
interpreter would act as a conduit for the child's religious
inculcation, thereby promoting his religious development at
government expense in violation of the Establishment Clause. The
Court of Appeals affirmed.

															Held:

															1. The prudential rule of avoiding constitutional questions if
there is a nonconstitutional ground for decision is inapplicable
here, since respondent did not urge upon the District Court or the
Court of Appeals any of the nonconstitutional grounds it now raises
in this Court. Pp.6-8.

															2. The Establishment Clause does not prevent respondent from
furnishing a disabled child enrolled in a sectarian school with a
signlanguage interpreter in order to facilitate his education.
Government programs that neutrally provide benefits to a broad
class of citizens defined without reference to religion are not
readily subject to an Establishment Clause challenge just because
sectarian institutions may also 2 receive an attenuated financial benefit. Mueller v. Allen, 463 U.
S. 388 ; Witters v. Washington Dept. of Services for
Blind, 474 U. S.
481 . The same reasoning used in Mueller and Witters applies here. The service in this case is part of a
general government program that distributes benefits neutrally to
any child qualifying as disabled under the IDEA, without regard to
the sectarian-nonsectarian, or public-nonpublic nature of the
school the child attends. By according parents freedom to select a
school of their choice, the statute ensures that a government-paid
interpreter will be present in a sectarian school only as a result
of individual parents' private decisions. Since the IDEA creates no
financial incentive for parents to choose a sectarian school, an
interpreter's presence there cannot be attributed to state
decisionmaking. The fact that a public employee will be physically
present in a sectarian school does not by itself make this the same
type of aid that was disapproved in Meek v. Pittenger, 421
U. S. 349 , and School Dist. of Grand Rapids v. Ball, 473 U.
S. 373 . In those cases, the challenged programs gave direct
grants of government aid-instructional equipment and material,
teachers, and guidance counselors-which relieved sectarian schools
of costs they otherwise would have borne in educating their
students. Here, the child is the primary beneficiary, and the
school receives only an incidental benefit. In addition, an
interpreter, unlike a teacher or guidance counselor, neither adds
to nor subtracts from the sectarian school's environment but merely
interprets whatever material is presented to the class as a whole.
There is no absolute bar to the placing of a public employee in a
sectarian school. Pp.8-14. 963 F.2d
1190 , reversed.

															REHNQUIST, C. J., delivered the opinion of the Court, in which
WHITE, SCALIA, KENNEDY, and THOMAS, JJ., joined. BLACKMUN, J.,
filed a dissenting opinion, in which SOUTER, J., joined, and in
which STEVENS and O'CONNOR, JJ., joined as to Part I, post, p. 14. O'CONNOR, J., filed a dissenting opinion, in which STEVENS,
J., joined, post, p. 24. William Bentley Ball argued the cause for
petitioners.

															With him on the briefs was Thomas J. Berning. Acting Solicitor General Bryson argued the cause for the United
States as amicus curiae urging reversal. On the brief were
Solicitor General Starr, Assistant Attorney General Gerson, Deputy
Solicitor General Roberts, Ronald J. Mann, Jeffrey C.
Martin, and Susan Craig. 3 John C. Richardson argued the cause for
respondent.

															With him on the brief was Gary F. Urman. * CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

															Petitioner James Zobrest, who has been deaf since birth, asked
respondent school district to provide a sign-language interpreter
to accompany him to classes at a Roman Catholic high school in
Tucson, Arizona, pursuant to the Individuals with Disabilities
Education Act (IDEA), 20 U. S. C. § 1400 et seq., and its
Arizona counterpart, Ariz. Rev. Stat. Ann. § 15 761 et seq.
(1991 and Supp. 1992). The United States Court of Appeals for the
Ninth Circuit decided, however, that provision of such a publicly
employed interpreter would violate the Establishment Clause of the
First Amendment. We hold that the Establishment Clause does not bar
the school district from providing the requested interpreter.

															*Briefs of amici curiae urging reversal were filed for the
Alexander Graham Bell Association for the Deaf by Bonnie P. Tucker;
for the American Jewish Congress et al. by Marc D. Stern, Lois C.
Waldman, Oliver S. Thomas, and J. Brent Walker; for the
Christian Legal Society et al. by Michael W McConnell, Steven T.
McFarland, and Bradley P. Jacob; for the Deaf Community Center,
Inc., by Jay Alan Sekulow, James M. Henderson, Sr., Mark N.
Troobnick, Jordan W Lorence, Keith A. Fournier, John G.
Stepanovich, Thomas Patrick Monaghan, and Walter M. Weber; for the
United States Catholic Conference by Mark E. Chopko, John A.
Liekweg, and Phillip H. Harris; for the Institute for Justice by
William H. Mellor III and Clint Bolick; and for the National Jewish
Commission on Law and Public Mfairs by Nathan Lewin and Dennis
Rapps.

															Briefs of amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by Bradley S. Phillips, Steven R. Shapiro, John A. Powell, Steven K. Green,
Steven M. Freeman, and Samuel Rabinove; for the Arizona
School Boards Association, Inc., by Robert J. DuComb, Jr.; for the Council on Religious Freedom by Lee
Boothby, Robert W Nixon, Walter E. Carson, and Rolland
Truman; for the National School Boards Association by Gwendolyn H. Gregory, August W Steinhilber, and Thomas A.
Shannon; and for the National Committee for Public Education
and Religious Liberty et al. by David B. Isbell, T. Jeremy
Gunn, and Elliot M. Mincberg. 4 James Zobrest attended grades one through five in a school for
the deaf, and grades six through eight in a public school operated
by respondent. While he attended public school, respondent
furnished him with a sign-language interpreter. For religious
reasons, James' parents (also petitioners here) enrolled him for
the ninth grade in Salpointe Catholic High School, a sectarian
institution.1 When petitioners requested that respondent supply
James with an interpreter at Salpointe, respondent referred the
matter to the county attorney, who concluded that providing an
interpreter on the school's premises would violate the United
States Constitution. App. 10-18. Pursuant to Ariz. Rev. Stat. Ann.
§ 15253(B) (1991), the question next was referred to the Arizona
attorney general, who concurred in the county attorney's opinion.
App. to Pet. for Cert. A-137. Respondent accordingly declined to
provide the requested interpreter.

															Petitioners then instituted this action in the United States
District Court for the District of Arizona under 20 U. S. C. §
1415(e)(4)(A), which grants the district courts jurisdiction over
disputes regarding the services due disabled children under the
IDEA.2 Petitioners asserted that the IDEA and the Free Exercise
Clause of the First Amendment require respondent to provide James
with an interpreter at Salpointe, and that the Establishment Clause
does not bar such relief. The complaint sought a preliminary
injunction and "such other and further relief as the Court deems
just and proper." App. 25.3 The District Court denied
petitioners'

															1 The parties have stipulated: "The two functions of secular
education and advancement of religious values or beliefs are
inextricably intertwined throughout the operations of Salpointe."
App. 92.

															2 The parties agreed that exhaustion of administrative remedies
would be futile here. Id., at 94-95.

															3 During the pendency of this litigation, James completed his
high school studies and graduated from Salpointe on May 16, 1992.
This case nonetheless presents a continuing controversy, since
petitioners seek reimbursement for the cost they incurred in hiring
their own interpreter, more than $7,000 per year. Id., at
65. 5 request for a preliminary injunction, finding that the provision
of an interpreter at Salpointe would likely offend the
Establishment Clause. Id., at 52-53. The court thereafter
granted respondent summary judgment, on the ground that "[t]he
interpreter would act as a conduit for the religious inculcation of
James-thereby, promoting James' religious development at government
expense." App. to Pet. for Cert. A-35. "That kind of entanglement
of church and state," the District Court concluded, "is not
allowed." Ibid. The Court of Appeals affirmed by a divided vote, 963 F.2d
1190 (CA9 1992), applying the three-part test announced in Lemon v. Kurtzman, 403 U. S. 602 , 613
(1971). It first found that the IDEA has a clear secular purpose:
"'to assist States and Localities to provide for the education of
all handicapped children.'" 963 F. 2d, at 1193 (quoting 20 U. S. C.
§ 1400(c)).4 Turning to the second prong of the Lemon inquiry, though, the Court of Appeals determined that the IDEA, if
applied as petitioners proposed, would have the primary effect of
advancing religion and thus would run afoul of the Establishment
Clause. "By placing its employee in the sectarian school," the
Court of Appeals reasoned, "the government would create the
appearance that it was a 'joint sponsor' of the school's
activities." 963 F. 2d, at 1194-1195. This, the court held, would
create the "symbolic union of government and religion" found
impermissible in School Dist. of Grand Rapids v. Ball, 473 U.
S. 373 , 392 (1985).5 In contrast, the dissenting judge argued
that "[g]eneral welfare programs neutrally available to all
children," such as the IDEA, pass constitutional muster, "because
their benefits diffuse over the entire population." 963 F. 2d, at
1199 (opinion of Tang,

															4 Respondent now concedes that "the IDEA has an appropriate
'secular purpose.' " Brief for Respondent 16.

															5 The Court of Appeals also rejected petitioners' Free Exercise
Clause claim. 963 F. 2d, at 1196-1197. Petitioners have not
challenged that part of the decision below. Pet. for Cert. 10, n.
9. 6 J.). We granted certiorari, 506 U. S. 813 (1992), and now
reverse.

															Respondent has raised in its brief in opposition to certiorari
and in isolated passages in its brief on the merits several issues
unrelated to the Establishment Clause question.6 Respondent first
argues that 34 CFR § 76.532(a)(1) (1992), a regulation promulgated
under the IDEA, precludes it from using federal funds to provide an
interpreter to James at Salpointe. Brief in Opposition 13.7 In the
alternative, respondent claims that even if there is no affirmative
bar to the relief, it is not required by statute or
regulation to furnish interpreters to students at sectarian
schools. Brief for Respondent 4, n. 4.8 And respondent adds that
providing such

															6 Respondent may well have waived these other defenses. For in
response to an interrogatory asking why it had refused to provide
the requested service, respondent referred only to the putative
Establishment Clause bar. App. 59-60.

															7 That regulation prohibits the use of federal funds to pay for
"[r]eligious worship, instruction, or proselytization." 34 CFR §
76.532(a)(1) (1992). The United States asserts that the regulation
merely implements the Secretary of Education's understanding of
(and thus is coextensive with) the requirements of the
Establishment Clause. Brief for United States as Amicus
Curiae 23; see also Brief for United States as Amicus
Curiae in Witters v. Dept. of Services for Blind, O. T. 1985, No. 84-1070, p. 21, n. 11 ("These regulations are based
on the Department's interpretation of constitutional
requirements"). This interpretation seems persuasive to us. The
only authority cited by the Secretary for issuance of the
regulation is his general rulemaking power. See 34 CFR § 76.532
(1992) (citing 20 U. S. C. §§ 1221e-3(a)(1), 2831(a), and 2974(b)).
Though the Fourth Circuit placed a different interpretation on §
76.532 in Goodall v. Stafford County School Board, 930 F.2d
363 , 369 (holding that the regulation prohibits the provision
of an interpreter to a student in a sectarian school), cert.
denied, 502 U. S. 864 (1991), that court did not have the benefit
of the United States' views.

															8 In our view, this belated contention is entitled to little, if
any, weight here given respondent's repeated concession that, but
for the perceived federal constitutional bar, it would have
willingly provided James with an interpreter at Salpointe as a
matter of local policy. See, e. g., Tr. of Oral Arg.
31 ("We don't deny that ... we would have voluntarily done 7 a service would offend Art. II, § 12, of the Arizona
Constitution. Tr. of Oral Arg. 28.

															It is a familiar principle of our jurisprudence that federal
courts will not pass on the constitutionality of an Act of Congress
if a construction of the Act is fairly possible by which the
constitutional question can be avoided. See, e. g., United States v. Locke, 471 U. S. 84 , 92 (1985),
and cases cited therein. In Locke, a case coming here by
appeal under 28 U. S. C. § 1252 (1982 ed.), we said that such an
appeal "brings before this Court not merely the constitutional
question decided below, but the entire case." 471 U. S., at 92.
"The entire case," we explained, "includes nonconstitutional
questions actually decided by the lower court as well as
nonconstitutional grounds presented to, but not passed on, by the
lower court." Ibid. Therefore, in that case, we turned
"first to the nonconstitutional questions pressed below." Ibid. Here, in contrast to Locke and other cases applying the
prudential rule of avoiding constitutional questions, only First
Amendment questions were pressed in the Court of Appeals. In the
opening paragraph of its opinion, the Court of Appeals noted that
petitioners' appeal raised only First Amendment issues: "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." 963 F. 2d, at 1191. Respondent did not urge any statutory grounds for affirmance
upon the Court of Appeals, and thus the Court of Appeals decided
only the federal constitutional claims raised by petitioners. In
the District Court, too, the parties chose to

															that. The only concern that came up at the time was the
Establishment Clause concern"). 8 litigate the case on the federal constitutional issues alone.
"Both parties' motions for summary judgment raised only federal
constitutional issues." Brief for Respondent 4, n. 4. Accordingly,
the District Court's order granting respondent summary judgment
addressed only the Establishment Clause question. App. to Pet. for
Cert. A-35.

															Given this posture of the case, we think the prudential rule of
avoiding constitutional questions has no application. The fact that
there may be buried in the record a nonconstitutional ground for
decision is not by itself enough to invoke this rule. See, e.
g., Board of Airport Comm'rs of Los Angeles v. Jews for
Jesus, Inc., 482
U. S. 569 , 572 (1987). "Where issues are neither raised before
nor considered by the Court of Appeals, this Court will not
ordinarily consider them." Adickes v. S. H. Kress & Co., 398
U. S. 144 , 147, n. 2 (1970). We therefore turn to the merits of
the constitutional claim.

															We have never said that "religious institutions are disabled by
the First Amendment from participating in publicly sponsored social
welfare programs." Bowen v. Kendrick, 487 U. S. 589 , 609
(1988). For if the Establishment Clause did bar religious groups
from receiving general government benefits, then "a church could
not be protected by the police and fire departments, or have its
public sidewalk kept in repair." Widmar v. Vincent, 454 U. S. 263 ,
274-275 (1981) (internal quotation marks omitted). Given that a
contrary rule would lead to such absurd results, we have
consistently held that government programs that neutrally provide
benefits to a broad class of citizens defined without reference to
religion are not readily subject to an Establishment Clause
challenge just because sectarian institutions may also receive an
attenuated financial benefit. Nowhere have we stated this principle
more clearly than in Mueller v. Allen, 463 U. S. 388 (1983), and Witters v. Washington Dept. of Services for Blind, 474 U. S. 481 (1986), two cases dealing specifically 9 with government programs offering general educational
assistance.

															In Mueller, we rejected an Establishment Clause challenge
to a Minnesota law allowing taxpayers to deduct certain educational
expenses in computing their state income tax, even though the vast
majority of those deductions (perhaps over 90%) went to parents
whose children attended sectarian schools. See 463 U. S., at 401; id., at 405 (Marshall, J., dissenting). Two factors, aside
from States' traditionally broad taxing authority, informed our
decision. See Witters, supra, at 491 (Powell, J.,
concurring) (discussing Mueller). We noted that the law
"permits all parents-whether their children attend public
school or private-to deduct their children's educational expenses."
463 U. S., at 398 (emphasis in original). See also Widmar,
supra, at 274 ("The provision of benefits to so broad a
spectrum of groups is an important index of secular effect"); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496
U. S. 226 , 248 (1990) (plurality opinion) (same). We also
pointed out that under Minnesota's scheme, public funds become
available to sectarian schools "only as a result of numerous
private choices of individual parents of school-age children," thus
distinguishing Mueller from our other cases involving "the
direct transmission of assistance from the State to the schools
themselves." 463 U. S., at 399. Witters was premised on virtually identical reasoning. In
that case, we upheld against an Establishment Clause challenge the
State of Washington's extension of vocational assistance, as part
of a general state program, to a blind person studying at a private
Christian college to become a pastor, missionary, or youth
director. Looking at the statute as a whole, we observed that
"[a]ny aid provided under Washington's program that ultimately
flows to religious institutions does so only as a result of the
genuinely independent and private choices of aid recipients." 474
U. S., at 487. The program, we said, "creates no financial
incentive for students 10 to undertake sectarian education." Id., at 488. We also
remarked that, much like the law in Mueller, "Washington's
program is 'made available generally without regard to the
sectarian-nonsectarian, or public-nonpublic nature of the
institution benefited.''' Witters, supra, at 487 (quoting Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 782-783, n. 38 (1973)). In light of
these factors, we held that Washington's program-even as applied to
a student who sought state assistance so that he could become a
pastor-would not advance religion in a manner inconsistent with the
Establishment Clause. Witters, supra, at 489.

															That same reasoning applies with equal force here. The service
at issue in this case is part of a general government program that
distributes benefits neutrally to any child qualifying as
"disabled" under the IDEA, without regard to the
"sectarian-nonsectarian, or public-nonpublic nature" of the school
the child attends. By according parents freedom to select a school
of their choice, the statute ensures that a government-paid
interpreter will be present in a sectarian school only as a result
of the private decision of individual parents. In other words,
because the IDEA creates no financial incentive for parents to
choose a sectarian school, an interpreter's presence there cannot
be attributed to state decisionmaking. Viewed against the backdrop
of Mueller and Witters, then, the Court of Appeals
erred in its decision. When the government offers a neutral service
on the premises of a sectarian school as part of a general program
that "is in no way skewed towards religion," Witters, supra, at 488, it follows under our prior decisions that provision of that
service does not offend the Establishment Clause. See Wolman v. Walter, 433
U. S. 229 , 244 (1977). Indeed, this is an even easier case than Mueller and Witters in the sense that, under the
IDEA, no funds traceable to the government ever find their way into
sectarian schools' coffers. The only indirect economic benefit a
sectarian school might receive by dint of the IDEA is the disabled
child's tuition-and that is, 11 of course, assuming that the school makes a profit on each
student; that, without an IDEA interpreter, the child would have
gone to school elsewhere; and that the school, then, would have
been unable to fill that child's spot.

															Respondent contends, however, that this case differs from Mueller and Witters, in that petitioners seek to have
a public employee physically present in a sectarian school to
assist in James' religious education. In light of this distinction,
respondent argues that this case more closely resembles Meek v. Pittenger, 421 U. S. 349 (1975), and School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985). In Meek, we struck down a statute that, inter alia, provided "massive aid" to private schools-more than 75% of which
were church related-through a direct loan of teaching material and
equipment. 421 U. S., at 364-365. The material and equipment
covered by the statute included maps, charts, and tape recorders. Id., at 355. According to respondent, if the government
could not place a tape recorder in a sectarian school in Meek, then it surely cannot place an interpreter in
Salpointe. The statute in Meek also authorized state-paid
personnel to furnish "auxiliary services" -which included remedial
and accelerated instruction and guidance counseling-on the premises
of religious schools. We determined that this part of the statute
offended the First Amendment as well. Id., at 372. Ball similarly involved two public programs that provided
services on private school premises; there, public employees taught
classes to students in private school classrooms.9 473 U. S., at
375. We found that those programs likewise violated the
Constitution, relying largely on Meek. 473 U. S., at
386-389. According to respondent, if the government could not
provide educational services on the premises of sectarian schools
in Meek and Ball, then it surely cannot provide James
with an interpreter on the premises of Salpointe.

															9Forty of the forty-one private schools involved in Ball were pervasively sectarian. 473 U. S., at 384-385. 12 Respondent's reliance on Meek and Ball is
misplaced for two reasons. First, the programs in Meek and Ball through direct grants of government aid-relieved
sectarian schools of costs they otherwise would have borne in
educating their students. See Witters, 474 U. S., at 487
("[T]he State may not grant aid to a religious school, whether cash
or in kind, where the effect of the aid is 'that of a direct
subsidy to the religious school' from the State") (quoting Ball,
supra, at 394). For example, the religious schools in Meek received teaching material and equipment from the
State, relieving them of an otherwise necessary cost of performing
their educational function. 421 U. S., at 365-366. "Substantial aid
to the educational function of such schools," we explained,
"necessarily results in aid to the sectarian school enterprise as a
whole," and therefore brings about "the direct and substantial
advancement of religious activity." Id., at 366. So, too,
was the case in Ball: The programs challenged there, which
provided teachers in addition to instructional equipment and
material, "in effect subsidize[d] the religious functions of the
parochial schools by taking over a substantial portion of their
responsibility for teaching secular subjects." 473 U. S., at 397.
"This kind of direct aid," we determined, "is indistinguishable
from the provision of a direct cash subsidy to the religious
school." Id., at 395. The extension of aid to petitioners,
however, does not amount to "an impermissible 'direct subsidy'" of
Salpointe, Witters, supra, at 487, for Salpointe is not
relieved of an expense that it otherwise would have assumed in
educating its students. And, as we noted above, any attenuated
financial benefit that parochial schools do ultimately receive from
the IDEA is attributable to "the private choices of individual
parents." Mueller, 463 U. S., at 400. Disabled children, not
sectarian schools, are the primary beneficiaries of the IDEA; to
the extent sectarian schools benefit at all from the IDEA, they are
only incidental beneficiaries. Thus, the function of the IDEA is
hardly" 'to provide desired financial 13 support for nonpublic, sectarian institutions.'" Witters,
supra, at 488 (quoting Nyquist, supra, at 783).

															Second, the task of a sign-language interpreter seems to us
quite different from that of a teacher or guidance counselor.
Notwithstanding the Court of Appeals' intimations to the contrary,
see 963 F. 2d, at 1195, the Establishment Clause lays down no
absolute bar to the placing of a public employee in a sectarian
schoo1.10 Such a fiat rule, smacking of antiquated notions of
"taint," would indeed exalt form over substance.ll Nothing in this
record suggests that a sign-language interpreter would do more than
accurately interpret whatever material is presented to the class as
a whole. In fact, ethical guidelines require interpreters to
"transmit everything that is said in exactly the same way it was
intended." App. 73. James' parents have chosen of their own free
will to place him in a pervasively sectarian environment. The
sign-language interpreter they have requested will neither add to
nor subtract from that environment, and hence the provision of such
assistance is not barred by the Establishment Clause.

															The IDEA creates a neutral government program dispensing aid not
to schools but to individual handicapped children. If a handicapped
child chooses to enroll in a sectarian school,

															10 For instance, in Wolman v. Walter, 433 U. S. 229 , 242
(1977), we made clear that "the provision of health services to all
schoolchildren-public and nonpublic-does not have the primary
effect of aiding religion," even when those services are provided
within sectarian schools. We accordingly rejected a First Amendment
challenge to the State's providing diagnostic speech and hearing
services on sectarian school premises. Id., at 244; see also Meek v. Pittenger, 421 U. S. 349 , 371, n. 21
(1975).

															11 Indeed, respondent readily admits, as it must, that there
would be no problem under the Establishment Clause if the IDEA
funds instead went directly to James' parents, who, in turn, hired
the interpreter themselves. Brief for Respondent 11 ("If such were
the case, then the sign language interpreter would be the student's
employee, not the School District's, and governmental involvement
in the enterprise would end with the disbursement of funds"). 14 we hold that the Establishment Clause does not prevent the
school district from furnishing him with a sign-language
interpreter there in order to facilitate his education. The
judgment of the Court of Appeals is therefore

															Reversed.

															JUSTICE BLACKMUN, with whom JUSTICE SOUTER joins, and with whom
JUSTICE STEVENS and JUSTICE O'CONNOR join as to Part I,
dissenting.

															Today, the Court unnecessarily addresses an important
constitutional issue, disregarding longstanding principles of
constitutional adjudication. In so doing, the Court holds that
placement in a parochial school classroom of a public employee
whose duty consists of relaying religious messages does not violate
the Establishment Clause of the First Amendment. I disagree both
with the Court's decision to reach this question and with its
disposition on the merits. I therefore dissent.

															I

															"If there is one doctrine more deeply rooted than any other in
the process of constitutional adjudication, it is that we ought not
to pass on questions of constitutionality ... unless such
adjudication is unavoidable." Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101 , 105
(1944). See Brockett v. Spokane Arcades, Inc., 472 U. S. 491 ,
501 (1985); Ashwander v. TVA, 297 U. S. 288 , 347 (1936)
(Brandeis, J., concurring); Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of
Emigration, 113 U.
S. 33 , 39 (1885). This is a "fundamental rule of judicial
restraint," Three Affiliated Tribes of Fort Berthold
Reservation v. Wold Engineering, P. c., 467 U. S. 138 , 157
(1984), which has received the sanction of time and experience. It
has been described as a "corollary" to the Article III case or
controversy requirement, see Rescue Army v. Municipal
Court of Los Angeles, 331 U. S. 549 , 570
(1947), and is grounded in basic 15 principles regarding the institution of judicial review and this
Court's proper role in our federal system, ibid. Respondent School District makes two arguments that could
provide grounds for affirmance, rendering consideration of the
constitutional question unnecessary. First, respondent maintains
that the Individuals with Disabilities Education Act (IDEA), 20 U.
S. C. § 1400 et seq., does not require it to furnish James
Zobrest with an interpreter at any private school so long as
special education services are made available at a public school.
The United States endorses this interpretation of the statute,
explaining that "the IDEA itself does not establish an individual
entitlement to services for students placed in private schools at
their parents' option." Brief for United States as Amicus Curiae
13. And several courts have reached the same conclusion. See, e. g., Goodall v. Stafford County School Bd., 930 F.2d
363 (CA4), cert. denied, 502 U. S. 864 (1991); McNair v. Cardimone, 676 F. Supp. 1361 (SD Ohio 1987), aff'd sub
nom. McNair v. Oak Hills Local School Dist., 872 F.2d
153 (CA6 1989); Work v. McKenzie, 661 F. Supp.
225 (DC 1987). Second, respondent contends that 34 CFR §
76.532(a)(1) (1992), a regulation promulgated under the IDEA, which
forbids the use of federal funds to pay for "[r]eligious worship,
instruction, or proselytization," prohibits provision of a
signlanguage interpreter at a sectarian school. The United States
asserts that this regulation does not preclude the relief
petitioners seek, Brief for United States as Amicus Curiae 23, but at least one federal court has concluded otherwise. See Goodall, supra. This Court could easily refrain from
deciding the constitutional claim by vacating and remanding the
case for consideration of the statutory and regulatory issues.
Indeed, the majority's decision does not eliminate the need to
resolve these remaining questions. For, regardless of the Court's
views on the Establishment Clause, petitioners will not obtain what
they seek if the federal stat- 16 ute does not require or the federal regulations prohibit
provision of a sign-language interpreter in a sectarian
school.1

															The majority does not deny the existence of these alternative
grounds, nor does it dispute the venerable principle that
constitutional questions should be avoided when there are
nonconstitutional grounds for a decision in the case. Instead, in
its zeal to address the constitutional question, the majority casts
aside this "time-honored canon of constitutional adjudication," Spector Motor Service, 323 U. S., at 105, with the cursory
observation that "the prudential rule of avoiding constitutional
questions has no application" in light of the "posture" of this
case, ante, at 8. Because the parties chose not to litigate
the federal statutory issues in the District Court and in the Court
of Appeals, the majority blithely proceeds to the merits of their
constitutional claim.

															But the majority's statements are a non sequitur. From the rule
against deciding issues not raised or considered below, it does not
follow that the Court should consider constitutional issues
needlessly. The obligation to avoid unnecessary adjudication of
constitutional questions does not depend upon the parties'
litigation strategy, but rather is a "self-imposed limitation on
the exercise of this Court's jurisdiction [that] has an importance
to the institution that transcends the significance of particular
controversies." City of Mesquite v. Aladdin's Castle,
Inc., 455 U. S.
283 , 294 (1982). It is a rule whose aim is to protect not
parties but the law and the adjudicatory process. Indeed, just a
few days ago, we expressed concern that "litigants, by agreeing on
the legal issue presented, [could] extract the opinion of a
court

															1 Respondent also argues that public provision of a
sign-language interpreter would violate the Arizona Constitution.
Article II, § 12, of the Arizona Constitution provides: "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." The Arizona attorney general
concluded that, under this provision, interpreter services could
not be furnished to James. See App. 9. 17 on hypothetical Acts of Congress or dubious constitutional
principles, an opinion that would be difficult to characterize as
anything but advisory." United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439 , 447
(1993). See United States v. CIO, 335 U. S. 106 , 126 (1948)
(Frankfurter, J., concurring).

															That the federal statutory and regulatory issues have not been
properly briefed or argued does not justify the Court's decision to
reach the constitutional claim. The very posture of this case
should have alerted the courts that the parties were seeking what
amounts to an advisory opinion. After the Arizona attorney general
concluded that provision of a sign-language interpreter would
violate the Federal and State Constitutions, the parties bypassed
the federal statutes and regulations and proceeded directly to
litigate the constitutional issue. Under such circumstances, the
weighty nonconstitutional questions that were left unresolved are
hardly to be described as "buried in the record." Ante, at
8. When federal- and state-law questions similarly remained open in Wheeler v. Barrera, 417 U. S. 402 (1974),
this Court refused to pass upon the scope or constitutionality of a
federal statute that might have required publicly employed teachers
to provide remedial instruction on the premises of sectarian
schools. Prudence counsels that the Court follow a similar practice
here by vacating and remanding this case for consideration of the
nonconstitutional questions, rather than proceeding directly to the
merits of the constitutional claim. See Youakim v. Miller, 425 U.
S. 231 (1976) (vacating and remanding for consideration of
statutory issues not presented to or considered by lower court); Escambia County v. McMillan, 466 U. S. 48 ,51-52 (1984)
(vacating and remanding for lower court to consider statutory issue
parties had not briefed and Court of Appeals had not passed upon); Edward J. DeBartolo Corp. v. NLRB, 463 U. S. 147 ,
157-158 (1983) (vacating and remanding for consideration of
statutory question). 18 II

															Despite my disagreement with the majority's decision to reach
the constitutional question, its arguments on the merits deserve a
response. Until now, the Court never has authorized a public
employee to participate directly in religious indoctrination. Yet
that is the consequence of today's decision.

															Let us be clear about exactly what is going on here. The parties
have stipulated to the following facts. James Zobrest requested the
State to supply him with a sign-language interpreter at Salpointe
High School, a private Roman Catholic school operated by the
Carmelite Order of the Catholic Church. App.90. Salpointe is a
"pervasively religious" institution where "[t]he two functions of
secular education and advancement of religious values or beliefs
are inextricably intertwined." Id., at 92. Salpointe's
overriding "objective" is to "instill a sense of Christian values." Id., at 90. Its "distinguishing purpose" is "the inculcation
in its students of the faith and morals of the Roman Catholic
Church." Religion is a required subject at Salpointe, and Catholic
students are "strongly encouraged" to attend daily Mass each
morning. Ibid. Salpointe's teachers must sign a Faculty
Employment Agreement which requires them to promote the
relationship among the religious, the academic, and the
extracurricular.2 They are encouraged to do so by "assist[ing]
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." Id., at
92. The agreement also sets forth detailed rules of

															2 The Faculty Employment Agreement provides: "'Religious
programs are of primary importance in Catholic educational
institutions. They are not separate from the academic and
extracurricular programs, but are instead interwoven with them and
each is believed to promote the other.''' App.90-91. 19 conduct teachers must follow in order to advance the school's
Christian mission.3

															At Salpointe, where the secular and the sectarian are
"inextricably intertwined," governmental assistance to the
educational function of the school necessarily entails governmental
participation in the school's inculcation of religion. A
state-employed sign-language interpreter would be required to
communicate the material covered in religion class, the nominally
secular subjects that are taught from a religious perspective, and
the daily Masses at which Salpointe encourages attendance for
Catholic students. In an environment so pervaded by discussions of
the divine, the interpreter's every gesture would be infused with
religious significance. Indeed, petitioners willingly concede this
point: "That the interpreter conveys religious messages is a given
in the case." Brief for Petitioners 22. By this concession,
petitioners would seem to surrender their constitutional claim.

															The majority attempts to elude the impact of the record by
offering three reasons why this sort of aid to petitioners survives
Establishment Clause scrutiny. First, the majority observes that
provision of a sign-language interpreter

															3 The Faculty Employment Agreement sets forth the following
detailed rules of conduct:

															"'1. Teacher shall at all times present a Christian image to the
students by promoting and living the school philosophy stated
herein, in the School's Faculty Handbook, the School Catalog and
other published statements of this School. In this role the teacher
shall support all aspects of the School from its religious programs
to its academic and social functions. It is through these areas
that a teacher administers to mind, body and spirit of the young
men and women who attend Salpointe Catholic High School.

															"'3. The School believes that faithful adherence to its
philosophical principles by its teachers is essential to the
School's mission and purpose. Teachers will therefore be expected
to assist in the implementation of the philosophical policies of
the School, and to compel proper conduct on the part of the
students in the areas of general behavior, language, dress and
attitude toward the Christian ideaL'" Id., at 91. 20 occurs as "part of a general government program that distributes
benefits neutrally to any child qualifying as 'disabled' under the
IDEA, without regard to the 'sectariannonsectarian, or
public-nonpublic nature' of the school the child attends." Ante, at 10. Second, the majority finds significant the fact
that aid is provided to pupils and their parents, rather than
directly to sectarian schools. As a result, " '[a]ny aid ... that
ultimately flows to religious institutions does so only as a result
of the genuinely independent and private choices of aid
recipients.'" Ante, at 9, quoting Witters v. Washington Dept. of Services for Blind, 474 U. S. 481 , 487
(1986). And, finally, the majority opines that "the task of a
sign-language interpreter seems to us quite different from that of
a teacher or guidance counselor." Ante, at 13.

															But the majority's arguments are unavailing. As to the first
two, even a general welfare program may have specific applications
that are constitutionally forbidden under the Establishment Clause.
See Bowen v. Kendrick, 487 U. S. 589 (1988)
(holding that Adolescent Family Life Act on its face did not
violate the Establishment Clause, but remanding for examination of
the constitutionality of particular applications). For example, a
general program granting remedial assistance to disadvantaged
schoolchildren attending public and private, secular and sectarian
schools alike would clearly offend the Establishment Clause insofar
as it authorized the provision of teachers. See Aguilar v. Felton, 473 U.
S. 402 , 410 (1985); School Dist. of Grand Rapids v. Ball, 473 U.
S. 373 , 385 (1985); Meek v. Pittenger, 421 U. S. 349 , 371
(1975). Such a program would not be saved simply because it
supplied teachers to secular as well as sectarian schools. Nor
would the fact that teachers were furnished to pupils and their
parents, rather than directly to sectarian schools, immunize such a
program from Establishment Clause scrutiny. See Witters, 474
U. S., at 487 ("Aid may have [unconstitutional] effect even though
it takes the form of aid to students 21 or parents"); Wolman v. Walter, 433 U. S. 229 , 250 (1977)
(it would "exalt form over substance if this distinction [between
equipment loaned to the pupil or his parent and equipment loaned
directly to the school] were found to justify a ... different"
result); Ball, 473 U. S., at 395 (rejecting "fiction that a
... program could be saved by masking it as aid to individual
students"). The majority's decision must turn, then, upon the
distinction between a teacher and a signlanguage interpreter.

															"Although Establishment Clause jurisprudence is characterized by
few absolutes," at a minimum "the Clause does absolutely prohibit
government-financed or governmentsponsored indoctrination into the
beliefs of a particular religious faith." Id., at 385. See Bowen v. Kendrick, 487 U. S., at 623 (O'CONNOR, J.,
concurring) ("[Ainy use of public funds to promote religious
doctrines violates the Establishment Clause") (emphasis in
original); Meek, 421 U. S., at 371 (" 'The State must be
certain, given the Religion Clauses, that subsidized teachers do
not inculcate religion,'" quoting Lemon v. Kurtzman, 403 U. S. 602 ,
619 (1971)); Levitt v. Committee for Public Ed. & Religious Liberty, 413 U. S. 472 , 480 (1973)
("[T]he State is constitutionally compelled to assure that the
state-supported activity is not being used for religious
indoctrination"). In keeping with this restriction, our cases
consistently have rejected the provision by government of any
resource capable of advancing a school's religious mission.
Although the Court generally has permitted the provision of
"secular and nonideological services unrelated to the primary,
religion-oriented educational function of the sectarian school," Meek, 421 U. S., at 364, it has always proscribed the
provision of benefits that afford even the "opportunity for the
transmission of sectarian views," Wolman, 433 U. S., at
244.

															Thus, the Court has upheld the use of public school buses to
transport children to and from school, Everson v. Board
of Ed. of Ewing, 330 U. S. 1 (1947), while
striking down the 22 employment of publicly funded buses for field trips controlled
by parochial school teachers, Wolman, 433 U. S., at 254.
Similarly, the Court has permitted the provision of secular
textbooks whose content is immutable and can be ascertained in
advance, Board of Ed. of Central School Dist. No.1 v. Allen, 392 U.
S. 236 (1968), while prohibiting the provision of any
instructional materials or equipment that could be used to convey a
religious message, such as slide projectors, tape recorders, record
players, and the like, Wolman, 433 U. S., at 249. State-paid
speech and hearing therapists have been allowed to administer
diagnostic testing on the premises of parochial schools, id., at 241-242, whereas state-paid remedial teachers and
counselors have not been authorized to offer their services because
of the risk that they may inculcate religious beliefs, Meek, 421 U. S., at 371.

															These distinctions perhaps are somewhat fine, but" 'lines must
be drawn.'" Ball, 473 U. S., at 398 (citation omitted). And
our cases make clear that government crosses the boundary when it
furnishes the medium for communication of a religious message. If
petitioners receive the relief they seek, it is beyond question
that a state-employed signlanguage interpreter would serve as the
conduit for James' religious education, thereby assisting Salpointe
in its mission of religious indoctrination. But the Establishment
Clause is violated when a sectarian school enlists "the machinery
of the State to enforce a religious orthodoxy." Lee v. Weisman, 505
U. S. 577 , 592 (1992). Witters, supra, and Mueller v. Allen, 463 U. S. 388 (1983), are not to the contrary. Those cases dealt with the payment
of cash or a tax deduction, where governmental involvement ended
with the disbursement of funds or lessening of tax. This case, on
the other hand, involves ongoing, daily, and intimate governmental
participation in the teaching and propagation of religious
doctrine. When government dispenses public funds to individuals who
employ them to finance private choices, it is difficult to argue
that government 23 is actually endorsing religion. But the graphic symbol of the
concert of church and state that results when a public employee or
instrumentality mouths a religious message is likely to
"enlis[t]-at least in the eyes of impressionable youngsters-the
powers of government to the support of the religious denomination
operating the school." Ball, 473 U. S., at 385. And the
union of church and state in pursuit of a common enterprise is
likely to place the imprimatur of governmental approval upon
the favored religion, conveying a message of exclusion to all those
who do not adhere to its tenets.

															Moreover, this distinction between the provision of funds and
the provision of a human being is not merely one of form. It goes
to the heart of the principles animating the Establishment Clause.
As amicus Council on Religious Freedom points out, the
provision of a state-paid sign-language interpreter may pose
serious problems for the church as well as for the state. Many
sectarian schools impose religiously based rules of conduct, as
Salpointe has in this case. A traditional Hindu school would be
likely to instruct its students and staff to dress modestly,
avoiding any display of their bodies. And an orthodox Jewish
yeshiva might well forbid all but kosher food upon its premises. To
require public employees to obey such rules would impermissibly
threaten individualliberty, but to fail to do so might endanger
religious autonomy. For such reasons, it long has been feared that
"a union of government and religion tends to destroy government and
to degrade religion." Engel v. Vitale, 370 U. S. 421 , 431
(1962). The Establishment Clause was designed to avert exactly this
sort of conflict.

															III

															The Establishment Clause "rests upon the premise that both
religion and government can best work to achieve their lofty aims
if each is left free from the other within its respective sphere." Illinois ex rel. McCollum v. Board of Ed. of 24 School Dist. No. 71, Champaign Cty., 333 U. S. 203 , 212
(1948). To this end, our cases have strived to "chart a course that
preserve[s] the autonomy and freedom of religious bodies while
avoiding any semblance of established religion." Walz v. Tax Comm'n of New York City, 397 U. S. 664 , 672
(1970). I would not stray, as the Court does today, from the course
set by nearly five decades of Establishment Clause jurisprudence.
Accordingly, I dissent.

															JUSTICE O'CONNOR, with whom JUSTICE STEVENS joins,
dissenting.

															I join Part I of JUSTICE BLACKMUN'S dissent. In my view, the
Court should vacate and remand this case for consideration of the
various threshold problems, statutory and regulatory, that may moot
the constitutional question urged upon us by the parties. "It is a
fundamental rule of judicial restraint ... that this Court will not
reach constitutional questions in advance of the necessity of
deciding them." Three Affiliated Tribes of Fort Berthold
Reservation v. Wold Engineering, P. c., 467 U. S. 138 , 157
(1984). That "fundamental rule" suffices to dispose of the case
before us, whatever the proper answer to the decidedly hypothetical
issue addressed by the Court. I therefore refrain from addressing
it myself. See Rust v. Sullivan, 500 U. S. 173 , 223-225
(1991) (O'CONNOR, J., dissenting).