Larry Zobrest Sandra Zobrest, Husband and Wife James Zobrest, a Minor, by Larry and Sandra Zobrest, His Parents v. Catalina Foothills School District

963 F.2d 1190 60 USLW 2725 , 75 Ed. Law Rep. 178 Larry ZOBREST; Sandra Zobrest, husband and wife; James Zobrest, a minor, by Larry and Sandra Zobrest, his parents, Plaintiffs-Appellants, v. CATALINA FOOTHILLS SCHOOL DISTRICT, Defendant-Appellee. No. 89-16035. Ninth Circuit. Argued and Submitted Dec. 12, 1990. Decided May 1, 1992. William Bentley Ball, Ball, Skelly, Murren & Cornell, Harrisburg, Pa., Thomas J. Berning, Ariz. Center for Law in the Public Interest, Tucson, Ariz., for plaintiffs-appellants. John C. Richardson, DeConcini, McDonald, Brammer, Yetwin & Lacy, Tucson, Ariz., for defendant-appellee. Appeal from the United States District Court for the District of Arizona. Before: TANG, FLETCHER, and REINHARDT, Circuit Judges. OPINION FLETCHER, Circuit Judge: 1 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. 2 We affirm. BACKGROUND 3 James Zobrest is a student at Salpointe Catholic High School. He is profoundly deaf, qualifying…

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.

We affirm.

BACKGROUND

James Zobrest is a student at Sal-pointe 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 , 102 S.Ct. 3034, 3037 , 73 L.Ed.2d 690 (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 *1192 meet the…

Dissenting:

“Justice,” Judge Learned Hand once observed, “is the tolerable accommodation of the conflicting interests of society.” Few cases more aptly demonstrate the truth of Judge Hand’s words than the appeal before us now. For the efforts of the Zobrest family to educate their deaf son in a manner compelled by their religious faith require us to engineer a delicate constitutional balance between the competing goals of freedom of religion, separation of church and state, and equal educational opportunities for the handicapped. The Zobrests have presented us with a ponderous constitutional conundrum, made worse by the opacity of First Amendment jurisprudence. Given the competing values at stake, I cannot fault the majority’s resolution of this case. I can state only that I disagree. I believe that the state’s provision of a sign language interpreter to James Zobrest for his studies in a Catholic high school would not transgress the First Amendment’s prohibition against the establishment of religion. I would therefore reverse the judgment of the district court.

DISCUSSION

I. The Establishment Clause

State action impacting religion will survive an Establishment Clause…