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Ending E.O. 13166,
the "Multilingual Mandate"
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STATEMENT OF K.C. McALPIN
EXECUTIVE DIRECTOR, PROENGLISH
FOR THE COMMERCIAL AND ADMINISTRATIVE LAW SUBCOMMITEE
OF THE HOUSE JUDICIARY COMMITTEE
Hearing on Thursday, March 22, 2001
This statement is to convey ProEnglish's concerns regarding Executive
Order 13166:
"Improving Access to Services for Persons with Limited English Proficiency,"
issued on August 11, 2000.
"Language is perhaps the strongest, perhaps most enduring link which
unites men"
--Alexis de Tocqueville
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Introduction
Description of Executive Order 13166
Concerns:
1. The authority for issuing the Executive Order is non-existent
2. The order has already resulted in vague,
arbitrary and inconsistent standards of compliance
3. E.O. 13166 will have an enormous fiscal
impact and constitutes a huge, unfunded mandate for states and local governments
4. E.O. 13166 will force a huge increase in the size of government
5. E.O. 13166 will result in a new wave of civil-rights
litigation
6. Title VI will spill over and redefine discrimination under
Title VII
7. E.O. 13166 is destructive of national unity
The legislative remedy
INTRODUCTION
Mr. Chairman, thank you for the opportunity to present this statement
of the views of ProEnglish on Executive Order 13166, "Improving Access
to Services for Persons with Limited English Proficiency." My name is
K.C. McAlpin, and I am the executive director of ProEnglish. ProEnglish
is a national member-supported public interest organization that seeks
to make English our official language and preserve its role as the common
unifying language of the United States. ProEnglish receives no federal
grants or financial assistance of any kind. Let me take this opportunity
to thank you for your leadership in the battle to preserve our nation's
unity in the English language, and for holding this hearing on the impact
of recently issued executive orders, including specifically Executive
Order 13166.
DESCRIPTION OF EXECUTIVE ORDER 13166
President Clinton issued Executive Order 13166 (E.O. 13166) on August
11, 2000. Its stated purpose is to improve access to government services
for persons with Limited English Proficiency (LEP) e.g. non-English speaking
persons, by requiring that all recipients of federal financial assistance
take reasonable steps to provide meaningful access to their services for
LEP persons. The authority claimed for issuing E.O. 13166 was Title VI
of the Civil Rights Act of 1964, which bars discrimination on the basis
of "national origin." Accompanying Department of Justice (DOJ) Policy
Guidelines state that "the failure to address language barriers" may be
attributable to "invidious discrimination on the basis of national origin
and race."
E.O. 13166 directed all federal agencies to develop and begin implementing
plans to carry out the order within 120 days and to file such plans with
the DOJ as depository. It further instructed all agencies providing federal
financial assistance to draft policy guidelines for all recipients of
such federal assistance and submit their guidelines to DOJ for review
and approval.
Mr. Chairman, the following summarizes our major concerns with E.O. 13166
1. THE AUTHORITY FOR ISSUING E.O. 13166 IS NON-EXISTENT
When Congress debated and passed the Civil Rights Act of 1964, the disparate
impact of English fluency was never discussed or included in the meaning
of "national origin" discrimination. And that was for a good reason. It
is self-evident that a person can choose to learn a new language, but
they can never change their national origin. And, except for narrow requirements
in education and a single exception now on appeal before the U.S. Supreme
Court, the courts have rejected repeated attempts to equate the failure
to provide services in languages other than English with national origin
discrimination.
Nevertheless, by claiming to be only interpreting the intent of the prohibitions
on national discrimination contained in Title VI of the Civil Rights Act,
the executive branch evades the requirement to have Congress authorize
a law that is certain to have enormous fiscal, operational, and juridical
implications.
2. THE ORDER HAS ALREADY RESULTED IN VAGUE, ARBITRARY, AND INCONSISTENT
STANDARDS OF COMPLIANCE
Several federal departments have issued regulations and guidelines to
implement E.O. 13166 that create standards of compliance that are vague,
arbitrary, and virtually impossible to meet. These in turn will create
levels of risk and confusion that will impair or handicap the ordinary
operations of innumerable government agencies and private contractors.
For example, DOJ guidelines state "Programs that serve a few or even one
LEP person are still subject to the Title VI obligation to take reasonable
steps to provide meaningful opportunities for access." Department of Treasury
regulations repeatedly assert that there is no "one size fits all" standard
for Title VI compliance, and state that recipients of federal aid expose
themselves to liability if, for example, they suggest or encourage LEP
persons "use friends, minor children, or family members as interpreters."
The scope of E.O. 13166 is almost universal. Treasury regulations state
that it applies to "All entities that receive federal financial assistance
from Treasury either directly or indirectly, through a grant, contract,
or subcontract" including the recipients of federal loans, donations of
federal property, or any other form of assistance.
Implementing regulations issued to date repeatedly are full of vague and
uncertain phrases such as "reasonable steps," "meaningful access," "to
the maximum extent practical," and "meaningful participation." There are
arbitrary and inconsistent standards. DOJ regulations state that, depending
on circumstances, signage must be in at least 3 languages but complaint
forms must be in at least 5 of the most commonly spoken languages and
consideration given to translating into the 15 most commonly spoken languages.
Outreach materials on the other hand must be translated into the 10 most
commonly spoken languages and consideration given to translating such
material into the 30 most commonly spoken languages.
In a nation in which 97 percent of the population speaks English it is
obvious that non-English speaking persons will be under some handicap
with regard to communication. Yet Treasury regulations state, "Services
denied, delayed, or provided under adverse circumstances for an
LEP person may constitute discrimination on the basis of national origin
under Title VI."
Treasury regulations make covered entities responsible for the competence
of translators they may employ and warn that such responsibility extends
beyond things like formal certification to include assuring "sensitivity
to the LEP person's culture."
Taken as a whole, the regulations create a standard of compliance that
is burdensome, vague, arbitrary, and virtually impossible to meet.
3. E.O. 13166 WILL HAVE AN ENORMOUS FISCAL IMPACT AND CONSTITUTES A HUGE
UNFUNDED MANDATE FOR STATES AND LOCAL GOVERNMENTS
By requiring translations and oral interpreter services to be made available,
depending on circumstances, in the 300 plus languages that are reported
to be used in the United States according to the Census, E.O. 13166 will
add enormously to the cost of government operations. A measure of the
fiscal impact can be gauged by the fact that it costs the government of
Canada, a country roughly a tenth of the size of the U.S. in terms of
population, an estimated $1 billion annually to provide the translation
and interpreter services needed to conduct its business in just two official
languages.
Recipients of direct or indirect federal assistance means virtually every
state and local government agency in the country and will therefore impact
local schools, hospitals, health clinics, libraries, parks, police and
fire departments, as well as countless county and municipal agencies.
Already, the California Medical Association is protesting that the financial
burdens of compliance may force already financially strapped doctors and
community hospitals to stop seeing indigent, non-English speaking patients.
Similar objections have been raised by over 40 medical societies including
the Association of American Physicians & Surgeons.
Mr. Chairmen, stripped of its rhetoric, E.O. 13166 represents an effort
to transfer the entire hidden cost of not speaking English from LEP persons
to taxpayers. The fact that such an order would be issued without the
explicit approval of Congress or any other legislative authority is clear
evidence of the violence E.O. 13166 does to the Constitution and the separation
of powers doctrine on which our democracy depends.
4. E.O. 13166 WOULD FORCE A HUGE INCREASE IN THE SIZE OF GOVERNMENT
As mentioned, the scope of E.O. 13166 is not limited to written translations
of an unknown number of languages but specifically requires that oral
interpreter services be made available. Regulations specifically reference
the hiring of bilingual employees and staff interpreters. To provide access
to services equivalent to that obtained by individuals able to speak English
would require the hiring of tens if not hundreds of thousands of interpreters
and translators. This would greatly expand the number of employees at
all levels of government and create barriers to employment for persons
who were not multilingual.
5. E.O. 13166 WILL RESULT IN A NEW WAVE OF CIVIL RIGHTS
LITIGATION
Because it creates a Title VI entitlement to accurate and timely services
in the preferred language of a LEP person, E.O. 13166 is certain to unleash
a flood of costly civil rights litigation alleging damages to individuals
and classes of individuals. Moreover, conflict is sure to arise over the
issue of mistaken translations and faulty interpretations that will provide
fodder for endless litigation and court battles over the meaning and nuances
of non-English words. Courts will be called on to reconcile linguistic
disputes of Sisyphean dimensions.
6. TITLE VI WILL SPILL OVER AND REDEFINE ILLEGAL DISCRIMINATION UNDER
TITLE VII
Although E.O. 13166 is limited in application to illegal discrimination
by government agencies as defined and prohibited by Title VI, there can
be no doubt that the same definition of "national origin discrimination"
would carry over and be applied to Title VII, which defines and prohibits
discrimination by private entities. Thus the ultimate impact of E.O. 13166
will be to force the whole of society to become multilingual or face prosecution
for violating the civil rights of non-English speaking persons. The economic
impact on the private sector of such compulsory multilingualism is beyond
calculation.
7. E.O. 13166 IS DESTRUCTIVE OF NATIONAL UNITY
Twenty-six states have enacted laws declaring English their official language.
Often this has been the result of citizen's initiatives adopted by margins
ranging from 2-1 to 9-1. As stated by Winston Churchill "The gift of a
common language is a priceless inheritance." Until today America has been
almost uniquely successful in assimilating an incredibly diverse stream
of immigrants in large part because new arrivals have had to learn English.
The effort to force a reversal of roles and compel Americans to accommodate
the languages of an immigrant stream more diverse that at any time in
American history, is certain to shatter the foundation of our national
unity with the passage of time.
THE LEGISLATIVE REMEDY
Mr. Chairman, when the Subcommittee issues its report we respectfully
request that you review E.O. 13166 and highlight it as an example of how
the power to issue executive orders has been misused. We also urge you
and the other members of the Subcommittee to lend your support to H.R.
969, a bill introduced by Representative Bob Stump that would nullify
E.O. 13166, and which has already attracted 40 cosponsors.
Thank you for the opportunity to present our views.
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