English in the Courts
ProEnglish sues administration over multilingual mandate, Executive Order 13166
ProEnglish, the Association of American Physicians and Surgeons, and three physicians in private practice, have filed suit against the Department of Health and Human Services to block the implementation of rules saying a failure to communicate with someone in their native language is national origin discrimination. The suit asserts the rules are invalid and unconstitutional, and were never authorized by Congress. Moreover the suit argues they ignore thirty years of court decisions that have consistently rejected the government effort to equate language with national origin. UPDATE: The presiding judge dismissed the suit on the basis of legal standing. But in reaching his decision he ignored legal precedents and the case is now on appeal to the 9th Circuit Court of Appeals.
UPDATE: The 9th Circuit Court of Appeals released its decision on March 25, 2009. It held that ProEnglish and our co-plaintiffs had standing and that the suit is ripe under Article III, but that the suit should be dismissed because it is unripe under the prudential criteria (The issue is not fit for judicial decision). We alleged three claims. First, we claim that the 2003 Policy Guidance should not have been issued without following the notice-and-comment procedure required by the Administrative Procedure Act. Second, we claim that the prohibition in Title VI against discrimination based on national origin does not include a prohibition against discrimination based on limited English proficiency. Third, we claim that Executive Order 13166 infringes on our First Amendment rights. The court held the first claim was unripe and therefore it did not consider the second and third claims. ProEnglish’s attorneys, believing the decision was incorrect, dropped the first claim and filed a petition for rehearing and a petition for a hearing en banc of the 9th Circuit. The petition for rehearing was denied. ProEnglish continues to look for an opportunity to challenge this illegitimate policy guidance and test its constitutionality. (Click here for more.)
Alabama official English case re-filed
In 2007, in a 5-4 decision the Alabama Supreme Court upheld a lower court ruling that state officials were not violating the official English provision of the state constitution by giving written driver’s license examinations in languages other than English. The court majority maintained that plaintiffs had failed to answer the state’s assertion that its policy actually conformed to the constitution. In 2008, the Southeastern Legal Foundation filed a new lawsuit in Montgomery County Circuit Court on behalf of five plaintiffs including a state senator challenging the state’s policy of offering multi-lingual driver’s license examinations as a violation of the Alabama Constitution. The lawsuit asks the court to issue an injunction against the State barring it from giving driver’s license exams in any language other than English. Currently, the Alabama gives driver’s license exams in 12 other languages, including Chinese, Russian, Farsi, and Greek.
ProEnglish is helping the Southeastern Legal Foundation with the cost of this lawsuit.
Landmark ProEnglish Victories
ProEnglish wins U.S. Supreme Court decision on English immersion (2009)
ProEnglish joined three other national organizations in filing an “amicus curiae” or friend of the court brief in the case of Horne v. Flores, No. 08-289, and 08-294. This was the first case in many years in which the Court was considering how children are to be taught English. The case arose from a 9th Circuit Court of Appeals decision ordering the Arizona Legislature to spend more money on teaching English language learners in school, notwithstanding the effectiveness of the teaching methods used. That left the door open to bilingual education, in which children are taught mostly in their native language, while disparaging far more effective English immersion teaching techniques. The ProEnglish brief pointed out that unless the Supreme Court overturned the 9th Circuit ruling, schools would have an economic incentive to delay the acquisition of English fluency skills by English language learners in order to obtain more court-ordered funding.
UPDATE: The U.S. Supreme Court’s decision June 25, 2009, found that bilingual education in which immigrant children are segregated by language and taught primarily in their native language was not the most effective way of teaching children. Studies of school systems across the country have shown bilingual education to be a failure. The 5-4 decision by Justice Samuel A. Alito Jr. regarding Arizona's Nogales Unified School District acknowledged the demonstrated effectiveness of structured English immersion (SEI) methods for teaching English language learners (ELL). It said: "Research on ELL instruction indicates there is documented academic support for the view that SEI is significantly more effective than bilingual education. Findings of the Arizona Department of Education in 2004 strongly support this conclusion." It also ruled that the lower court had failed to adequately consider whether the school district's implementation of SEI was a "changed circumstance" warranting relief. The Supreme Court ruled that the school district is taking "appropriate action" through English immersion techniques to teach English to students who are not English proficient.
Silva v. Catholic Diocese of Wichita (2008)
“Speak English” rule upheld by Kansas federal judge
In a case that drew national attention, a federal judge upheld the right of St. Anne’s Catholic School in Wichita, Kansas and its local diocese to require students to speak English at school. U.S. District Judge J. Thomas Marten dismissed a lawsuit filed by a Hispanic student, Adam Silva, whose parents had challenged the school’s policy charging it was illegal national origin discrimination. The lawsuit sought to end the policy and requested an order barring similar policies at Catholic schools throughout the Diocese. The diocese argued that the rule was implemented to curb bullying behavior and harassment in a second language by some students and was not discriminatory.
ProEnglish assisted the school’s legal team and hired a local attorney to represent two St. Anne’s students who were deposed and required to answer questions from the plaintiff’s attorney.
Anderson v. Utah (2001)
ProEnglish wins legal battle as Utah court upholds Official English law
In 2000, a ballot initiative to declare English to be Utah's official language passed with 67% of the vote. Before the law could take effect, a state court granted an injunction and blocked its implementation in response to a lawsuit brought by the American Civil Liberties Union (ACLU) and Utah's Multicultural Legal Center. The lawsuit alleged the law violates the "free-speech" and "equal protection" clauses of the Constitution.
The defense of the voter-adopted law put on by Utah Attorney General Mark Shurtleff's office was so weak that Judge Ronald Nehring wondered, "Is there any possible scenario where this initiative could be violated?" The judge then allowed ProEnglish permission to file a brief defending the law, given the abysmal effort mounted by the attorney general's office. When the judge issued his ruling it rejected the ACLU's claims across the board and drew heavily on ProEnglish's legal arguments. Stung by the decision the ACLU filed an appeal with the Utah Supreme Court. But when the deadline came for filing its appellate brief, the ACLU abruptly changed course and refused to press its case, and tried to spin Judge Nehring's decision as a "victory."
Sandoval v. Alexander (2001)
U.S. Supreme Court vacates lower court decision; Alabama's English law survives
In 1990 Alabama voters adopted an official English amendment to their constitution via a statewide referendum, which passed by an astounding 9-1 margin, the biggest landslide for any referendum in Alabama's history. As a result of the amendment's passage, state officials changed their policy on drivers' license exams, and began giving them exclusively in English. Six years later Martha Sandoval, a resident alien from Mexico, with help from the Southern Poverty Law Center filed suit in federal court charging that the policy discriminated against her on the basis of her national origin, and was therefore illegal under Title VI of the civil rights law. A judge ruled in favor of Sandoval, making this the first decision to explicitly assert an equation between someone's language and their national origin. With legal assistance from ProEnglish, Alabama appealed the decision all the way to the Supreme Court.
When it reached the Supreme Court, ProEnglish filed an amicus curiae ("friend-of-the-court") brief, rejecting the claim that language is synonymous with national origin and pointing out that the Sandoval decision contradicted thirty years of court decisions. Fourteen members of Congress signed on to ProEnglish's brief. In 2001 the Supreme Court ruled for Alabama and vacated the lower court decisions, in effect erasing them from the legal record. But because the court decided the case over the issue of whether or not an individual had the right to sue a state under Title VI (private right of action), the Justice Department and multicultural advocates are claiming that the Sandoval decision is still valid, even though the Supreme Court said it was illegal for it to be filed in the first place. This case illustrates the basic lawlessness of government bureaucracies as well as Congress' failure to exercise its proper oversight responsibilities. Nevertheless, the Sandoval decision was a landmark victory for ProEnglish and other official English advocates who are trying to block the federal government's undemocratic policy forcing multilingualism on the American people.
Arizonans for Official English v. Arizona (1997)
U.S. Supreme Court: official English laws are valid
In 1988, a state employee challenged Arizona's newly enacted Official English initiative, Proposition 106, claiming that she had a First Amendment right to speak any language on the job. A federal judge agreed and overturned it. When the State of Arizona refused to appeal ProEnglish Chairman Bob Park intervened to defend the constitutionality of the official English initiative. After a long series of appeals over the trial judge's ruling that the initiative violated the First Amendment, Park and Arizonans for Official English prevailed at the U.S. Supreme Court, upholding the right of states to have official English laws.
But after the Arizona law was upheld under the U.S. Constitution, a state court quickly ruled that the new law violated Arizona's constitution. The decision was appealed but later upheld by the Arizona Supreme Court. The U.S. Supreme Court then refused to review the state courts' decisions. This marks the only time that courts have ruled that an official English law violated a state's constitution, despite a number of similar court challenges.
The American Civil Liberties Union (ACLU) filed a complaint in federal court challenging two ordinances adopted by the city of Hazleton, PA in August 2006. One ordinance made English the city’s official language and the other dealt with deterring illegal immigrants. ProEnglish assisted the city by drafting its amended English ordinance, and subsequently wrote the city’s initial brief in response to the ACLU complaint. After reviewing the briefs, the ACLU dropped the official English ordinance from its complaint. This was a huge victory and indicates similar city ordinances are very likely to withstand legal attack.
Alabama official English case
In a narrow 5-4 decision, the Alabama Supreme Court sustained a lower court ruling that state officials were not violating Amendment 509 to the State Constitution, which made English the state’s official language, by giving driver’s license exams in twelve other languages including Farsi, Arabic, Russian, and Chinese. The suit was filed by five Alabama ProEnglish members represented by the Atlanta-based Southeastern Legal Foundation.
The decision turned on the State of Alabama’s contention that plaintiffs had failed to submit evidence that administering the test in multiple languages diminished the role of English as Alabama's common language.
Chief Justice Cobb, writing for the majority, argued that letting people with limited English proficiency take the written exam in their native language helped them get a license, and fostered their assimilation by increasing their access to education, employment and shopping (emphasis added). Justice Bolin, one of the dissenting judges, countered that the effect of the majority decision was “to revise Amendment 509 into a blank paper by [judicial] construction.”
Plaintiffs’ petition for a rehearing was denied 5-4. ProEnglish is currently pursuing a legislative remedy for this issue.
EEOC v. Kidmans (Arizona)
ProEnglish came to the aid of a small family-owned drive-in restaurant in Page, Arizona after it was charged with illegal discrimination in 2002 by the Equal Employment Opportunity Commission (EEOC) because the restaurant implemented an English-language workplace policy. The lawsuit alleged the policy, which was adopted to stop sexual and other forms of employee harassment on the job, discriminated against Navajo-speaking bilingual employees on the basis of their national origin. Subsequently Mountain States Legal Foundation was recruited to represent the owners, Richard & Shauna Kidman. ProEnglish continued to assist by providing financial assistance to cover travel and other out-of-pocket costs. Under intense pressure from the presiding judge the case was eventually settled with the Kidmans admitting no guilt. But the settlement blocked hopes of trying the case on its merits. ProEnglish then helped the Kidman’s incorporate their English-on-the-job policy into an overall employment policy which the EEOC declined to challenge.
Ohio free speech case
Mason City, Ohio tavern owner Tom Ullum ran afoul of the Ohio Civil Rights Commission (OCRC) in 2004 when he posted a sign in his bar window that read “For Service Speak English.” ProEnglish and the Southeastern Legal Foundation joined in defending Mr. Ullum against Commission charges that his sign was “discriminatory” and violated Ohio’s public accommodations law. Mr. Ullum, who habitually used his bar window to express his opinions on a wide range of political and social issues, contended that his sign was protected free speech and that he had never refused service to any customers regardless of their proficiency in English. The case eventually settled with Ullum agreeing to remove his sign and replace it one reading “Here We Speak English.”
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