509 U.S. 1 (1993)

ZOBREST et al.
v.
CATALINA FOOTHILLS SCHOOL DISTRICT

No. 92-94.

United States Supreme Court.

Argued February 24, 1993. Decided June 18, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

*2 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. § 15761 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.

*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' *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)).<sup>[4]</sup> 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, *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 *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 *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.

*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 school.^[10] Such a flat rule, smacking of antiquated notions of "taint," would indeed exalt form over substance.^[11] 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, *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 statute *16 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 *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 *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 enco