Appeal from the United States District Court for the District of Arizona. D.C. No. CV-88-0516-RMB. Richard M. Bilby, District Judge, Presiding.
Before: Thomas Tang, Betty B. Fletcher, and Stephen Reinhardt, Circuit Judges. Opinion by Judge Fletcher; Dissent by Judge Tang.
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.
James Zobrest is a student at Salpointe 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, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (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. §§ 15-761 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.*fn1
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, "the 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.*fn2
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.
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,, 110 L. Ed. 2d 664, 110 S. Ct. 3217, 110 S. Ct. 3217 (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.
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, 84 L. Ed. 1213 , 60 S. Ct. 900 (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, 77 L. Ed. 2d 721 , 103 S. Ct. 3062 (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, 29 L. Ed. 2d 745 , 91 S. Ct. 2105 (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. 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.
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.*fn3
C. Statutes' Primary Effect
In Grand Rapids School District v. Ball, 473 U.S. 373, 87 L. Ed. 2d 267 , 105 S. Ct. 3216 (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. 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. 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 public." Id., 473 U.S. at 392 (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 . . . ...