2 School Cases Heard By High Court Raise Church-State Issues

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WASHINGTON--A public school district may provide a sign-language interpreter for a deaf student in a Catholic high school because such aid does not advance religion, the lawyer for an Arizona family told the U.S. Supreme Court last week.

William Bentley Ball, the lawyer representing a deaf student who was denied an interpreter when he enrolled in a Catholic high school in Tucson, told the Court he thought it could decide the case without abandoning its controversial 1971 church-state precedent, Lemon v. Kurtzman, which set a test for evaluating the constitutionality of government activities that affect religion.

"Nothing in Lemon bars, as we see it, the provision of this service to this boy,'' Mr. Ball said during oral arguments on Feb. 24 in Zobrest v. Catalina Foothills School District (Case No. 92-94).

Zobrest was one of two education cases the Justices heard last week. In a case from New York State, Lamb's Chapel v. Center Moriches Union Free School District (No. 91-2024), the High Court must decide whether a district may bar only religious groups from using school facilities after school hours. Although Lamb's Chapel also raises the issue of government establishment of religion, it also involves questions about the free-speech rights of religious groups and the Court's public-forum doctrine.

In the interpreter case, the lawyer for the Catalina Foothills School District, John C. Richardson, argued that the First Amendment's establishment clause prevents the district from providing a sign-language interpreter in a private school in which religious doctrine pervades the curriculum.

"The critical question is whether a public employee is [allowed] in the religious school classroom,'' Mr. Richardson said. "The First Amendment answer to this question is 'no.' ''

Zobrest Case

The case involves James Zobrest, a profoundly deaf young man who as a child attended a state school for the deaf before transferring to a regular public middle school.

Mr. Zobrest was eligible for special-education services under what is now the federal Individuals with Disabilities Education Act. While in middle school, Mr. Zobrest attended regular classes, using lip-reading and a sign-language interpreter to understand his teachers.

When he enrolled in Salpointe Catholic High School in Tucson in 1988, the school district turned down his parents' request for an interpreter. Officials of the district, which at the time had no high school, said they would have provided an interpreter if the boy had attended a public high school or a nonsectarian private school. But they argued that the establishment clause barred the provision of an interpreter at the Catholic school.

The Zobrests sued and lost in both federal district court and in the U.S. Court of Appeals for the Ninth Circuit. Mr. Zobrest graduated from Salpointe last May after his parents used their own money and donations to pay the $7,000 annual cost for the interpreter. The Zobrests are now seeking reimbursement.

Mr. Zobrest, now 18 and enrolled in a community college, attended the oral arguments last week with his mother. The Court provided him with an interpreter.

Concern Expressed

During the arguments, some of the Justices appeared troubled by the idea of a government-paid interpreter translating religious teachings for a deaf student along with mathematics and other secular courses.

"I'm a little concerned about the interpreter,'' Associate Justice Antonin Scalia told William C. Bryson, the acting U.S. Solicitor General, who offered arguments on behalf of the Zobrests. Noting that such an interpreter would be a public employee able to comprehend and translate the "partisan theology'' of the Roman Catholic Church, Justice Scalia said, "I'm a little troubled by that.''

Mr. Bryson replied that interpreters often must translate ideas they disagree with. Their profession, he said, demands that they do so mechanically and impartially.

"The interpreter is serving as this child's ears,'' Mr. Bryson said.

Mr. Bryson compared the interpreter's job to that of a public school bus driver who transports religious school students, a practice that has been upheld by the High Court, and to that of a publicly provided nurse aiding a severely paralyzed student in a religious school.

Associate Justice David H. Souter said he was concerned about the interpreter's function because, unlike the bus driver or the nurse, the interpreter is "inextricably bound up with the communication of the message'' being delivered in the religious school classroom.

O'Connor's Questions

Associate Justice Sandra Day O'Connor, meanwhile, wondered whether the I.D.E.A. compelled the district to provide the sign-language interpreter. The law does not require it, Mr. Bryson replied.

In its brief, the Justice Department noted that, although children in private schools, both religious and secular, are eligible for special-education services from the state, the law gives states and districts a degree of flexibility. In the view of the Justice and Education departments, however, the I.D.E.A. does not bar a district from providing the "facially neutral'' aid of an interpreter in a religious school.

Mr. Richardson, the school district's lawyer, argued that the interpreter is comparable to a tutor who provides individualized aid to a student with a learning disability. The Court has held previously that such aid cannot be provided to eligible students on the premises of religious schools.

"We have no problem with providing related services that don't involve becoming intricately related to providing the educational message,'' Mr. Richardson said.

Neither Mr. Ball nor the acting Solicitor General suggested that the High Court use the case to reconsider church-state precedents, as many religious groups urged it to do in friend-of-the-court briefs.

Last year, in a Rhode Island case involving prayers offered at public school graduation ceremonies, the Bush Administration invited the Court to revise the 1971 Lemon precedent, which established a much-debated three-part test for deciding the constitutionality of government action respecting religion. The test requires that such action have a secular purpose, have a primary effect that neither advances nor inhibits religion, and does not result in excessive entanglement between government and religion.

At least five Justices are on record as favoring some revision of this test, although they have advanced several different standards to replace it. The Justices gave no clear indication last week they were prepared to use this case to revise Lemon. At one point, however, Chief Justice William H. Rehnquist said that if establishment-clause cases turn on such "fine-spun distinctions'' as in the present case, then "maybe it's time we try to straighten some of that out.''

Second Case

During arguments in the Lamb's Chapel case, lawyers for a Long Island, N.Y., school district and an evangelical Christian church grappled with First Amendment questions of free speech and establishment of religion.

The case stems from the church's efforts to rent a school auditorium for a series of films open to the public on Christian perspectives on family issues.

The Center Moriches school district turned down the group's request, citing its policy that allowed rental of school facilities for "civic, social, and recreational purposes,'' but not for religious purposes. The district also cited a New York State law that has been construed by state courts and state education officials as barring religious uses of public school property.

Lamb's Chapel sued the school district in federal court, arguing that the district had created an open forum by renting its facilities to a wide range of civic, political, and social groups for a broad range of events, such as a candidates' forum, choral concerts that included religious music, a family counseling service, and dog-obedience classes.

The district argued that it had not created an open forum, but rather a "limited public forum'' in which it could legitimately forbid all religious uses. The district prevailed in federal district court and the U.S. Court of Appeals for the Second Circuit.

Since Lamb's Chapel was not seeking to use the auditorium during regular school hours, the federal Equal Access Act was not directly implicated in this case. That law, which the High Court upheld in 1990, requires public schools receiving federal funds to allow student religious groups to meet on school grounds on the same basis as other non-curriculum-related student clubs.

Jay Alan Sekulow, the lawyer for Lamb's Chapel, told the Justices last week that "this case is based purely on viewpoint-based discrimination.''

Under the High Court's complex public-forum doctrine, public entities such as cities and school districts may restrict access to public buildings or property, but once a facility has been opened to a wide variety of uses, the government must not discriminate in granting access based on a group's viewpoint.

"When you open the school district to civic, political, and social concerns, you cannot prohibit religious uses,'' Mr. Sekulow added.

Neutral Ban

John W. Hoefling, the lawyer for the Center Moriches school district, argued that the district had not engaged in viewpoint discrimination because it had a neutral ban on all speakers with a religious viewpoint.

Chief Justice Rehnquist replied, "That's like saying a ban on left-wingers is neutral because it applies to both communists and socialists.''

Some Justices wondered aloud whether the district's policy squares with the Court's 1981 ruling in Widmar v. Vincent, in which it struck down a state university's ban on the use of its facilities by student religious groups when it had allowed access by many other types of student groups. The Court held that a policy of "equal access'' for religious speech did not violate the establishment clause.

In response to questions from the Justices, Mr. Hoefling said that the district would rent its facilities to communists, socialists, atheists, and agnostics, but not to religious groups--or for that matter to a minister who wished to debate an atheist and an agnostic--because to do so would run afoul of the establishment clause.

Referring to Mr. Hoefling's answers, Mr. Sekulow observed, "This is the type of viewpoint discrimination that we're talking about. The communists are in. The atheists are in. The agnostics are in. Only the religious group is out.''

Rulings in both cases are expected by early July.

Vol. 12, Issue 23, Page 1, 30, 31

Published in Print: March 3, 1993, as 2 School Cases Heard By High Court Raise Church-State Issues
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