CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES

AT

OCTOBER TERM, 1992

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 accom-
pany 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 re-
spondent 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 sign-
language 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 Estab-
lishment Clause challenge just because sectarian institutions may also
2 ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.

Syllabus
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 Witter8 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 indi-
vidual 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 pre-
sented 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 dis-
senting 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., fied a dis-
senting 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 Gen-
eral Gerson, Deputy Solicitor General Roberts, Ronald J
Mann, Jeffrey C. Martin, and Susan Craig.
 Cite as: 509 U. S. 1 (1993)

Opinion of the Court

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 pro-
vision 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 Ameri-
can 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. Hen-
derson, 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 Affairs by Nathan Lewin and Dennis Rapps.
Briefs of amici curiae urging affirmance were ified 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 Rabin.
ove; 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 Educa-
tion and Religious Liberty et al. by David B. Isbell, T Jeremy Gunn, and
Elliot M. Mincberg.
4 ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.

Opinion of the Court

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 inter-
preter. For religious reasons, James' parents (also petition-
ers here) enrolled him for the ninth grade in Salpointe Cath-
olic 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 Constitu-
tion. App. 10-18. Pursuant to Ariz. Rev. Stat. Ann. § 15-
253(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 accord-
ingly 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 Sal-
pointe, 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'
' The parties have stipulated: "The two functions of secular education
and advancement of religious values or beliefs are inextricably inter-
twined throughout the operations of Salpointe." App. 92.
2 The parties agreed that exhaustion of administrative remedies would
be futile here. Id., at 94-95.
1During the pendency of this litigation, James completed his high school
studies and graduated from Salpointe on May 16, 1992. This case none-
theless presents a continuing controversy, since petitioners seek reim-
bursement for the cost they incurred in hiring their own interpreter, more
than $7,000 per year. Id., at 65.
 Cite as: 509 U. S. 1 (1993)

Opinion of the Court

request for a preliminary injunction, finding that the provi-

sion 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 Establish-
ment 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).1 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.
"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 ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.

Opinion of the Court

J.). We granted certiorari, 506 U. S. 813 (1992), and now

reverse.
Respondent has raised in its brief in opposition to certio-
rari and in isolated passages in its brief on the merits several
issues unrelated to the Establishment Clause question.
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, re-
spondent 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 Re-
spondent 4, n. 4.8 And respondent adds that providing such

1Respondent may well have waived these other defenses. For in re-
sponse to an interrogatory asking why it had refused to provide the re-
quested service, respondent referred only to the putative Establishment
Clause bar. App. 59-60.
1That 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 Sec-
retary 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, 0. 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 regula-
tion 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 Cir-
cuit placed a different interpretation on § 76.532 in Goodall v. Stafford
County School Board, 930 F. 2d 363, 369 (holding that the regulation pro-
hibits 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.
sIn 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
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Opinion of the Court

a service would offend Art. II, § 12, of the Arizona Constitu-

tion. 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 Con-
gress 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 de-
cided below, but the entire case." 471 U. S., at 92. "The
entire case," we explained, "includes nonconstitutional ques-
tions actually decided by the lower court as well as noncon-
stitutional 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 affirm-
ance upon the Court of Appeals, and thus the Court of Ap-
peals 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 ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.

Opinion of the Court

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 nonconsti-
tutional 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 con-
stitutional claim.
We have never said that "religious institutions are dis-
abled 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 re-
pair." Widmar v. Vincent, 454 U. S. 263, 274-275 (1981) (in-
ternal 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 atten-
uated financial benefit. Nowhere have we stated this princi-
ple 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
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Opinion of the Court

with government programs offering general educational

assistance.
In Mueller, we rejected an Establishment Clause chal-
lenge to a Minnesota law allowing taxpayers to deduct cer-
tain educational expenses in computing their state income
tax, even though the vast majority of those deductions (per-
haps over 90%) went to parents whose children attended sec-
tarian 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 chil-
dren'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 Commu-
nity 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 sectar-
ian schools "only as a result of numerous private choices of
individual parents of school-age children," thus distinguish-
ing Mueller from our other cases involving "the direct trans-
mission of assistance from the State to the schools them-
selves." 463 U. S., at 399.
Witters was premised on virtually identical reasoning. In
that case, we upheld against an Establishment Clause chal-
lenge the State of Washington's extension of vocational as-
sistance, 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 Washing-
ton'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 ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.

Opinion of the Court

to undertake sectarian education." Id., at 488. We also re-

marked 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 in-
stitution benefited."' Witters, supra, at 487 (quoting Com-
mittee 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 inconsist-
ent 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 qual-
ifying 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 fi-
nancial 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 prem-
ises 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,
 Cite as: 509 U. S. 1 (1993)

Opinion of the Court

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 equip-
ment covered by the statute included maps, charts, and tape
recorders. Id., at 355. According to respondent, if the gov-
ernment could not place a tape recorder in a sectarian school
in Meek, then it surely cannot place an interpreter in Sal-
pointe. The statute in Meek also authorized state-paid per-
sonnel to furnish "auxiliary services"-which included reme-
dial 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 pro-
grams 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.
9 Forty of the forty-one private schools involved in Ball were perva-
sively sectarian. 473 U. S., at 384-385.
12 ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.

Opinion of the Court

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 educat-
ing 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 per-
forming 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 activ-
ity." Id., at 366. So, too, was the case in Ball: The pro-
grams challenged there, which provided teachers in addition
to instructional equipment and material, "in effect subsi-
dize[d] the religious functions of the parochial schools by tak-
ing 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 edu-
cating 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 indi-
vidual parents." Mueller, 463 U. S., at 400. Disabled chil-
dren, 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
 Cite as: 509 U. S. 1 (1993)

Opinion of the Court

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 coun-
selor. 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." Nothing in this record suggests that a
sign-language interpreter would do more than accurately in-
terpret 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 re-
quested will neither add to nor subtract from that environ-
ment, and hence the provision of sich assistance is not
barred by the Establishment Clause.
The IDEA creates a neutral government program dispens-
ing 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 accord-
ingly rejected a First Amendment challenge to the State's providing diag-
nostic speech and hearing services on sectarian school premises. Id., at
244; see also Meek v. Pittenger,421 U. S. 349, 371, n. 21 (1975).
11Indeed, 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 disburse-
ment of funds").
14 ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.

BLACKMUN, J., dissenting

we hold that the Establishment Clause does not prevent the

school district from furnishing him with a sign-language in-
terpreter 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 & PhiladelphiaS. S. Co.
v. Commissioners of Emigration, 113 U. S. 33, 39 (1885).
This is a "fundamental rule of judicial restraint," Three Af-
filiated Tribes of Fort Berthold Reservation v. Wold Engi-
neering, 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 re-
quirement, see Rescue Army v. Municipal Court of Los
Angeles, 331 U. S. 549, 570 (1947), and is grounded in basic
 Cite as: 509 U. S. 1 (1993)

BLACKMUN, J., dissenting

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 consider-
ation of the constitutional question unnecessary. First, re-
spondent 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 en-
dorses 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 par-
ents' 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. Cardi-
mone, 676 F. Supp. 1361 (SD Ohio 1987), aff'd sub nom. Mc-
Nair v. Oak Hills Local School Dist., 872 F. 2d 153 (CA6
1989); Work v. McKenzie, 661 F. Supp. 225 (DC 1987). Sec-
ond, 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, instruc-
tion, or proselytization," prohibits provision of a sign-
language interpreter at a sectarian school. The United
States asserts that this regulation does not preclude the re-
lief petitioners seek, Brief for United States as Amicus Cu-
riae 23, but at least one federal court has concluded other-
wise. See Goodall, supra. This Court could easily refrain
from deciding the constitutional claim by vacating and re-
manding the case for consideration of the statutory and regu-
latory issues. Indeed, the majority's decision does not elimi-
nate 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 ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.

BLACKMUN, J., dissenting

ute does not require or the federal regulations prohibit pro-

vision of a sign-language interpreter in a sectarian school.'
The majority does not deny the existence of these alterna-
tive 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. In-
stead, in its zeal to address the constitutional question, the
majority casts aside this "time-honored canon of constitu-
tional 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 Dis-
trict 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 con-
stitutional issues needlessly. The obligation to avoid unnec-
essary adjudication of constitutional questions does not de-
pend upon the parties' litigation strategy, but rather is a
"self-imposed limitation on the exercise of this Court's juris-
diction [that] has an importance to the institution that tran-
scends 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

'Respondent also argues that public provision of a sign-language inter-

preter would violate the Arizona Constitution. Article II, § 12, of the Ari-
zona Constitution provides: "No public money or property shall be appro-
priated 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.
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BLACKMUN, J., dissenting

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 opin-
ion. 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 unre-
solved 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 em-
ployed teachers to provide remedial instruction on the prem-
ises 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 constitu-
tional 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 statu-
tory question).
18 ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.

BLACKMUN, J., dissenting

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 Zo-
brest requested the State to supply him with a sign-language
interpreter at Salpointe High School, a private Roman Cath-
olic school operated by the Carmelite Order of the Catholic
Church. App. 90. Salpointe is a "pervasively religious" in-
stitution where "[tihe 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." Reli-
gion is a required subject at Salpointe, and Catholic students
are "strongly encouraged" to attend daily Mass each morn-
ing. Ibid. Salpointe's teachers must sign a Faculty Em-
ployment Agreement which requires them to promote the
relationship among the religious, the academic, and the ex-
tracurricular. 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 in-
stead interwoven with them and each is believed to promote the other."'
App. 90-91.
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BLACKMUN, J., dissenting

conduct teachers must follow in order to advance the school's

8
Christian mission.
At Salpointe, where the secular and the sectarian are "in-
extricably intertwined," governmental assistance to the edu-
cational function of the school necessarily entails governmen-
tal 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 encour-
ages 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, peti-
tioners 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 major-
ity observes that provision of a sign-language interpreter
aThe 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 state-
ments 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 prin-
ciples 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 ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.

BLACKMUN, J., dissenting

occurs as "part of a general government program that

distributes benefits neutrally to any child qualifying as 'dis-
abled' under the IDEA, without regard to the 'sectarian-
nonsectarian, or public-nonpublic nature' of the school the
child attends." Ante, at 10. Second, the majority finds sig-
nificant the fact that aid is provided to pupils and their par-
ents, 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 differ-
ent 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 Es-
tablishment 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 applica-
tions). 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 sup-
plied 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, im-
munize such a program from Establishment Clause scrutiny.
See Witters, 474 U. S., at 487 ("Aid may have [unconstitu-
tional] effect even though it takes the form of aid to students
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BLACKMUN, J., dissenting

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 sign-
language interpreter.
"Although Establishment Clause jurisprudence is charac-
terized by few absolutes," at a minimum "the Clause does
absolutely prohibit government-financed or government-
sponsored indoctrination into the beliefs of a particular reli-
gious faith." Id., at 385. See Bowen v. Kendrick, 487 U. S.,
at 623 (O'CONNOR, J., concurring) ("[Any 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 sub-
sidized 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 indoc-
trination"). In keeping with this restriction, our cases con-
sistently 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 pri-
mary, 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 ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.

BLACKMUN, J., dissenting

employment of publicly funded buses for field trips controlled

by parochial school teachers, Wolman, 433 U. S., at 254. Simi-
larly, the Court has permitted the provision of secular text-
books 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 reme-
dial teachers and counselors have not been authorized to
offer their services because of the risk that they may incul-
cate 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 communica-
tion of a religious message. If petitioners receive the relief
they seek, it is beyond question that a state-employed sign-
language 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. Weis-
man, 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 dis-
penses public funds to individuals who employ them to fi-
nance private choices, it is difficult to argue that government
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BLACKMUN, J., dissenting

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 imprimaturof
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 Estab-
lishment Clause. As amicus Council on Religious Freedom
points out, the provision of a state-paid sign-language inter-
preter 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 tra-
ditional Hindu school would be likely to instruct its students
and staff to dress modestly, avoiding any display of their bod-
ies. And an orthodox Jewish yeshiva might well forbid all
but kosher food upon its premises. To require public em-
ployees to obey such rules would impermissibly threaten in-
dividual liberty, 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 govern-
ment 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 respec-
tive sphere." Illinois ex rel. McCollum v. Board of Ed. of
24 ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.

O'CONNOR, J., dissenting

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 reli-
gious bodies while avoiding any semblance of established re-
ligion." 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 consider-
ation of the various threshold problems, statutory and regu-
latory, that may moot the constitutional question urged upon
us by the parties. "It is a fundamental rule of judicial re-
straint.., that this Court will not reach constitutional ques-
tions in advance of the necessity of deciding them." Three
Affiliated Tribes of Fort Berthold Reservation v. Wold En-
gineering,P. C., 467 U. S. 138, 157 (1984). That "fundamen-
tal rule" suffices to dispose of the case before us, whatever
the proper answer to the decidedly hypothetical issue ad-
dressed 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).