Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, 6 (1993)

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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 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

6 Respondent may well have waived these other defenses. For in response to an interrogatory asking why it had refused to provide the requested service, respondent referred only to the putative Establishment Clause bar. App. 59-60.

7 That 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 Secretary 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, O. 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 regulation 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 Circuit placed a different interpretation on 76.532 in Goodall v. Stafford County School Board, 930 F. 2d 363, 369 (holding that the regulation prohibits 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.

8 In 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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