(dissenting).
The appellees would like the court to hold that the government must pay them educational benefits despite their reluctance (for religious reasons) to fill out the proper form. The government, on the other hand, wishes to show that it can insist upon punctilious adherence to its formal requirements. This court, however, need not — indeed it should not — resolve the clash of ‘bureaucratic v. religious’ principles for one simple reason. The applicants in effect have filled out the critical parts of requisite forms; they have directly provided the government with all the information it requested; they have made the necessary certifications; their deviation from the formal requirements is insubstantial or de minimis. For this reason, irrespective of the validity of the claim of ‘religious right,’ the government should pay the students the educational benefits to which they are entitled.
The regulation in question says that a university may provide a student with Title IV federal financial aid only if the student “files a Statement of Registration Compliance with the institution.” The regulation adds:
In the Statement of Registration Compliance, the student must certify either that he or she is registered with Selective Service or that, for a specified reason, he or she is not required to be registered.
34 C.F.R. § 668.24(a) (1984). The Secretary of Education has provided a “model statement” form of a registration compliance statement, see id. § 668.25, but the regulation does not require the university to use this particular form. Indeed, in a supplementary communication to colleges and universities, the Department said
a verbatim repetition of the model statement in the regulations would not be required as long as all substantive requirements of the regulations are included in the institution’s statement.
The Department has also made clear that statements are to be filed with universities. And, the universities are to keep the statements; they are not to forward them to the Department.
Each student in this case has sent directly or indirectly to the university’s financial aid office four or five sheets of paper which, in an obvious, readily available way, contain all the necessary information and certifications. To understand how this occurred, one must focus upon two separate documents both of which a financial aid applicant arranges to have sent to the university. The first document is entitled “Financial Assistance Statement.” The Financial Assistance Statement contains a set of boxes apparently used to calculate the amount of an aid award. At the bottom of the page there is a “Statement of Educational Purpose/Registration Requirement” which reads as follows:
I certify that I will use the money I receive under the Title IV student financial aid programs only for expenses related to attendance at Boston University, and (check one):
_ I certify that I am not required to be registered with Selective Service because — (check one reason):
_ I am a female.
_ I am in the armed services on active duty. (Note: Members of the Reserves and National Guard are not considered on active duty.)
_ I have not reached my 18th birthday.
_ I was born before 1960.
_ I am a permanent resident of the Trust Territory of the Pacific Islands or the Northern Mariana Islands.
_ I certify that I am registered with Selective Service.
By my signature I also acknowledge that I have read and agree to the statements on both sides of this document.
*647Signature: _Date: _
NOTICE: You will not receive Title IV financial aid unless you complete this statement and, if required, give proof to your school of your registration compliance. If you purposely state falsely that you are registered or that you are not required to be registered, you may be subject to fine or imprisonment, or both.
The second document consists of several
pages entitled “Financial Aid Form.” Side I of this form asks the student to list, among other things, his or her name and “date of birth.” Side II asks for other information, including “Student’s sex (optional) _ Male _ Female.” The form contains a space for the student’s signature, next to the statement: Certification: All of the information on
this form is true and complete to the best of my knowledge. If asked by an authorized official, I agree to give proof of the information I have given on this form____
At the top of Side I, in a box outlined in dark print, there appears the following notice:
Warning
If you use this form to establish eligibility for federal student aid funds, you should know that any person who makes false statements or misrepresentations on this form is subject to a $10,000 fine or to imprisonment or both, under provisions of the United States Criminal Code.
Two of the student appellees in this ease refused to fill out the first form, though one of them sent it in signed, with the boxes unchecked. The third student, Michael Alexander, properly filled out a statement of registration compliance (which consisted of the relevant portion of the Statement). He has added that he did so “under duress.” Each of the three students filled out the Financial Aid Form and indicated on that form his or her sex and date of birth. Each signed the form’s certification. To be more specific, the two female applicants did not put a check next to the two lines in the Statement that say
_ I certify that I am not required to be registered with Selective Service because . . .
_ I am a female.
But each of them did check the box on the Financial Aid Form that said “Female,” and each signed a “certification” that this representation was true. The male applicant, Michael Alexander, in fact signed a statement of registration compliance and put a check next to the two lines that say
— I certify that I am not required to be registered with the ! Selective Service because . . .
_ I was born before 1960.
He says now that he did so “under duress.” He also filled in, without objection, a blank in the Financial Aid Form with his birth-date, and signed a “certification” that this representation was true.
The few pages of the Financial Aid Form provide the university with all the information, certifications, and signatures the regulation calls for. The information is simple and straightforward; its relevance to the *648statute is obvious. Anyone inspecting the few pages briefly would know at a glance that the applicant does not have to register for the draft. The information is readily available. Apparently, the student sends the forms (or copies of the forms are sent), directly or indirectly, to the University’s financial aid office, where they would seem likely to end up in the same file as the official “Statement.” As previously mentioned, the government says specifically that the university is not to send it the compliance forms; the university is to keep them itself.
I agree that the students have not checked the proper box on the proper form. As a general matter, the government has a strong administrative interest in insisting that applicants fill out forms properly. But, are there not stronger reasons for the government simply to overlook so trifling a deviation from the bureaucratic norm, at least where the applicants have a genuine religious or ideological scruple that prohibits their supplying the information on one form but not on another, equally useful one? To deny this, in a nation as diverse as ours, housing so many strongly held but differing points of view, is to exacerbate conflict where it could be muted. It is also to threaten an unnecessary weakening of judicial authority insofar as that authority rests on judicial reluctance to intervene in ideological disputes unless and until they focus upon differences over matters of substance. Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).
That the case before us is one of ‘trivial deviation’ I have no doubt. What bureaucratic or other governmental purpose is served here by the government’s refusal to tolerate the deviation at issue, by its insistence upon literal compliance with a ‘check-the-box’ rule (a rule apparently derived by interpretation of a set of ‘questions and answers’ interpreting a regulation interpreting the statute, see majority opinion, ante, pp. 633-634)?
1. Will the government’s insistence provide the government or the university with additional useful information?
No. The Financial Aid Form gives the government and the university the same information.
2. Will it help to clarify, or specify, the information?
No. The information — sex and age— could not be more clear; it is provided on the Financial Aid Form in a manner that allows no confusion.
3. Will it help a ‘verifying official’ by making clear the relevance of the information to the statutory need?
No. The relevance to the statute is obvious — i.e., it is obvious that women and older students do not have to register for the draft.
4. Will it make it easier for the government later to penalize or to prosecute those who lie?
No. The certification appears on both forms; the signature appears on both forms; the warnings of penalties and prosecution appear on both forms (and the warning on the Financial Aid Form is stronger).
5. Will it make it easier for the government to locate the information?
Not really. Neither the Financial Assistance Statement nor the Financial Aid Form is sent to the government. Both of them (or copies of them) apparently live out their full lives together in the files of Boston University’s financial aid office.
Under these circumstances, common sense suggests that the Department should have concluded that the students’ failui'e to check the right box presents no threat to the Republic, to the statute, to the regulation, or to orderly administration. The Department had adequate legal power to treat the deviation as de minimis, to find that the students had substantially complied with statute and regulation. See Alabama Power Co. v. Costle, 636 F.2d 323, 360 & n. 88 (D.C.Cir.1979) (stating that agencies have power to overlook de minimis deviations from regulations and listing cases); *649cf. American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 537-38, 90 S.Ct. 1288, 1291-92, 25 L.Ed.2d 547 (1970) (ICC may relax procedural rules requiring certain information to be set forth in statements in a given case when justice requires); NLRB v. Ideal Laundry and Dry Cleaning Co., 330 F.2d 712, 718 (10th Cir.1964); McKenna v. Seaton, 259 F.2d 780, 783-84 (D.C.Cir.), cert. denied, 358 U.S. 835, 79 S.Ct. 57, 3 L.Ed.2d 71 (1958).
Where the agency’s interest in form is negligible, it might well be unreasonable or “arbitrary” for it to refuse to find that an applicant substantially complied with its rules or to make an exception. Could the Department, for example, recover funds from an applicant who had accidently forgotten to check the right box several years earlier? Cf. NLRB v. Marshall Maintenance Corp., 320 F.2d 641, 643-45 (3d Cir.1963) (overturning Board’s “inflexible adherence to the strict letter of the law,” in case of one-day delay in filing of exceptions) and authorities cited there; NLRB v. Central Mercedita, Inc., 273 F.2d 370, 372 (1st Cir.1959) (Board acted arbitrarily in defaulting party whose exceptions were two days late). See generally Alabama Power Co. v. Costle, 636 F.2d at 360 n. 87 (listing de minimis cases); Sawyer v. County of Sonoma, 719 F.2d 1001, 1008 (9th Cir.1983) (“The doctrine of substantial compliance is an equitable doctrine designed to avoid hardship in cases where the party does all that can reasonably be expected of him.”); Videotronics, Inc. v. Bend Electronics, 586 F.Supp. 478, 484 (D.Nev.1984) (“[I]n determining whether there has been substantial compliance with a statute, a court should determine whether the statute has been followed sufficiently so as to carry out the intent for which it was adopted.”)
In any event, given the lack of agency interest in insisting upon literal compliance with its interpretation of its rule and given the constitutionally protected interests that the applicants assert, the agency’s insistence here, in my view, is unreasonable. The agency’s interest is no weightier than a state’s in enforcing various procedural technicalities that the courts have found inadequate to withstand the assertion of a constitutional right. Compare Shuttlesworth v. City of Birmingham, 376 U.S. 339, 84 S.Ct. 795, 11 L.Ed.2d 766 (1964) (a minor procedural failing, such as using the wrong type of paper, cannot constitute an ‘adequate state ground’ blocking review of a federal constitutional issue); Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963) (same); P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, The Federal Courts and the Federal System 545 (2d ed. 1973). Under these circumstances, the agency should simply make an exception to what is basically an informal interpretation of its regulation. See Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (requiring that state make minimal adjustment to accommodate religious principle); Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (same); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (same); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (same). Cf. Asimakopoulos v. Immigration and Naturalization Service, 445 F.2d 1362 (9th Cir.1971) (requiring individualized exercise of agency discretion in light of statutory policy). The agency’s failure to make so minimal an accommodation as is required here is, in my view, “arbitrary.” 5 U.S.C. § 706(2)(A).
The other members of the panel are unwilling to view this appeal as presenting an issue of “substantial compliance” because the parties did not argue it on that basis. Majority opinion, ante, n. 22. The students’ brief in the district court, however, comes close to doing so. (“The only relevant inquiry is whether the defendants already have information concerning these plaintiffs that they could rely upon in lieu of requiring submittal of the Statement.” App. at 153; emphasis is in original.) And, we discussed the matter with counsel at oral argument. See majority opinion, ante, n. 4. See also Doe v. Anrig, 728 F.2d 30, 32 (1st Cir.1984) (“We are, of course, free *650to affirm a district court’s decision ‘on any ground supported by the record even if the issue was not pleaded, tried, or otherwise referred to in the proceedings below.’ ”). In any event, I would not allow the parties, through their choice of arguments, to force this court unnecessarily to decide a broader constitutional question than the facts require. If necessary, we should call for reargument or remand the case to the district court for further consideration of the point. Cf Massachusetts v. Westcott, 431 U.S. 322, 97 S.Ct. 1755, 52 L.Ed.2d 349 (1976) (per curiam). In the absence of any such further reconsideration, and particularly in light of the First Amendment considerations raised, I would find that the appellees have substantially complied with the agency’s rules and therefore require the government to grant them the financial assistance they seek.