Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993)

In Zobrest v. Catalina Foothills School District, the U.S. Supreme Court continued the shift in its Establishment Clause jurisprudence that began in the mid-1980s by upholding the constitutionality of a government-funded interpreter assisting a deaf child in a religious school.

For the previous forty years, one of the most complicated and frequently litigated Establishment Clause issues has been the constitutionality of government funding to religious schools. During the 1970s and the early 1980s, the U.S. Supreme Court struck down most forms of government financial assistance to religious schools. But during the late 1980s and early 1990s, the Court began to alter its jurisprudence in this area. The Zobrest case is one of a number of highly significant decisions in recent years in which the Court has permitted government aid to religious schools so long as the aid reaches the school by means of private choice and is ‘‘neutrally’’ available to religious and nonreligious schools alike.

The Zobrest case involved the Individuals with Disabilities Education Act (IDEA), a federal statute pursuant to which deaf children in certain circumstances are entitled to a state-provided interpreter who assists the child in school by translating the spoken word into sign language that the child is able to understand. James Zobrest, a deaf child, attended a Roman Catholic school in Arizona, but the state, charged with administering IDEA, refused to provide him with an interpreter on the grounds that do so would violate the Establishment Clause. Zobrest sued. The U.S. Court of Appeals for the Ninth Circuit agreed with the state, finding that the interpreter ‘‘would act as a conduit for the religious inculcation of James—thereby, promoting James’s religious development at government expense,’’ which violated the Establishment Clause.

In a five-to-four decision, the Supreme Court reversed. Chief Justice William Rehnquist’s opinion for the majority did not analyze the case as simply government aid to a religious school. Rather, the majority emphasized the fact that the government-funded interpreter wound up in a religious school as a result of private choice. Rehnquist wrote,

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.

Zobrest marked an important shift in the Court’s jurisprudence. Whereas in a pair of 1985 cases, Aguilar v. Felton (1985), and School District of Grand Rapids v. Ball (1985), the Court, in five-to-four decisions, had disallowed state-funded teachers of secular subjects from working in a religious school, the Court in Zobrest permitted the state-funded interpreter to do that which the Court had denied eight years earlier. In subsequent cases, the Court would build on the Zobrest precedent by allowing further government aid to religious schools, so long as that aid arrived by virtue of the decision of a private person. For example, when the Court sustained the constitutionality of the use of publicly funded school vouchers in religious schools in Zelman v. Simmons-Harris (2002), the Zobrest case served an important precedent.

DAVISON M. DOUGLAS

References and Further Reading

• Lindeman, Devora L., Comment: Zobrest v. Catalina Foothills School District: Private Choices and Public Funding Under the Establishment Clause, Rutgers Law Review 47 (1995): 839–904.
• Stiltner, Jeffrey W., Note: Rethinking the Wall of Separation: Zobrest v. Catalina Foothills School District. Is the End of Lemon?, Capital University Law Review 23 (1994): 823–861.

Cases and Statutes Cited

• Aguilar v. Felton, 473 U.S. 402 (1985)
• School District of Grand Rapids v. Ball, 473 U.S. 373 (1985)
• Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

See also Establishment Clause (I): History, Background, Framing; State Aid to Religious Schools