Church-state issue is focus of deaf student's case

February 22, 1993|By New York Times News Service

TUCSON, Ariz. -- When their deaf son, Jim, was in eighth grade, Sandra and Larry Zobrest decided to transfer him from a public school to a Roman Catholic high school. They asked the Catalina Foothills School District whether the state could continue to pay for a sign-language interpreter.

Now, five years later, with Jim in college, that question is before the Supreme Court, in a case that could set a new standard for deciding how much separation between church and state the Constitution requires.

Both the Arizona attorney general and the lower courts that have heard the case so far say it would be an unconstitutional entanglement of church and state to give Jim Zobrest a state-paid interpreter in a Catholic school, where religion is a pervasive part of the curriculum.

Under the 1970 Federal Education of the Handicapped Act, deaf children have a right to a free and appropriate education, either in their public school or, if they go to private school, through reimbursement to their parents for the special services they need. But the state said that sending a state-paid interpreter into a religious school would create a symbolic union of church and state, violating the First Amendment.

The Zobrests, backed by the Catholic Church, see it differently. They argue that an interpreter is a form of aid to their son, not to the church. Furthermore, they say, the state's decision to cut off the help it provided in public school in effect interfered with their right to exercise their religion, also guaranteed by the First Amendment.

"If Jim got a hearing aid from the state of Arizona, they wouldn't tell him he had to take it off in church," said Mrs. Zobrest, sitting on a couch and signing her words to Jim as she discussed the case. "An interpreter is just a living, breathing hearing aid."

The current standard for deciding what kind of aid to parochial schools is acceptable was set forth by the high court in a 1971 case, Lemon v. Kurtzman. That case established a three-part test, saying that a policy does not violate the Constitution if it has a secular purpose, does not as a primary effect advance religion and does not lead to "entanglement" of government and religion.

But five of the sitting justices have indicated discomfort with that test, which has resulted in nearly automatic invalidation of policies that provide only incidental benefits to religious institutions.

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