ProEnglish v. Bush

ProEnglish Sues President Bush
Summary:
      Physicians and advocates of a common language are suing federal officials to block Clinton-era rules which say that using English is national origin discrimination. The suit is brought under the First Amendment, claiming that the rules are not authorized by Congress and ignore twenty years of unbroken federal court decisions rejecting the government's claim. The suit notes that last April the U.S. Supreme Court reversed the only case which supported these governmental policies, but the policies remain in place today. The suit asks the court to declare that the new rules are illegal and to block their enforcement.

Parties:
     Plaintiffs: ProEnglish , headquartered in Arlington, Virginia, is a non-profit advocacy organization dedicated to the preservation and promotion of a common language - English - in American political and governmental life. K.C. McAlpin, Executive Director of ProEnglish, is also an individual plaintiff.
      Four physicians in different medical specialties from around the country are individual plaintiffs:
      o    Anthony Bull, M.D. , is an anesthesiologist from California. Under the challenged government policies, Dr. Bull would have to provide translators inside operating rooms, and pre- and post-op areas, at his own cost.
     o      Clifford W. Colwell, Jr., M.D., is the head of the Division of Orthopaedic Surgery and Shiley Professor of Musculoskeletal Diseases, and the Medical Director, Musculoskeletal Center at the Scripps Clinic in La Jolla, California. Dr. Colwell and his busy nationally-renowned clinic provide translators, at their own cost, in some languages, but not in all languages as would be required by the governmental policies challenged here.
      o      Joseph F. Daugherty, M.D. is a family primary care physician in Florence, Kentucky. Dr. Daugherty speaks German and Spanish, but has patients who speak other languages, including Arabic and Japanese. Dr. Daugherty is already concerned about treating Medicare patients because of the low reimbursement rate for such treatments; adding translation costs under the policies challenged herein would mean each visit would cost Dr. Daugherty more than he would be reimbursed.
     o      Donald Kundel, M.D. is a pathologist in Duluth, Minnesota. Because of the specialized nature of his practice, Dr. Kundel believes it would be impossible for him to comply with the policies challenged here, as he knows of no medically-sophisticated translation facility available to him at any reasonable cost.

Defendants:
     o      The Hon. George W. Bush is President of the United States, responsible for Executive Orders such as E.O. 13166.
     o      The Hon. John Ashcroft is Attorney General of the United States, responsible for Department of Justice policy promulgations such as the "Policy Guidance" issued under E.O. 13166; the Department of Justice also coordinates all federal actions under E.O. 13166.
     o      The Hon. Tommy G. Thompson is Secretary of Health and Human Services, responsible for the Department of Health and Human Services' "Policy Guidance" issued under E.O. 13166. All are sued in their official capacities.

The Challenged Policies:
      The lawsuit challenges Executive Order 13166 signed by President Clinton August 11, 2000. E.O. 13166 requires federal agencies and any other entity which receives federal funds to "ensure that the programs and activities they normally provide in English are accessible to [Limited English Proficient] persons and thus do not discriminate on the basis of national origin in violation of Title VI of the Civil Rights Act of 1964, as amended, and its implementing regulations." This claim that providing programs and activities in English is national origin discrimination is the heart of this lawsuit.
      E.O. 13166 is explicitly based on an appeals court decision which the U.S. Supreme Court reversed last April in Alexander v. Sandoval, __ U.S. __, 121 S.Ct. 1511 (2001). The Sandoval reversal follows two decades of unanimous federal court rejection of attempts to equate using English with national origin discrimination. (For some of these cases, see list attached.)
      Implementing guidelines were first issued by the Department of Justice on August 16, 2000. These guidelines require all federal agencies and fund recipients to provide immediate translation and interpretation services to any person who is not proficient in English. "A federal aid recipient's failure to assure that people who are not proficient in English can effectively participate in and benefit from programs and activities may constitute national origin discrimination prohibited by Title VI." Since then, DoJ has repeatedly re-issued and republished its "guidance," but has never changed its belief that using only English is illegal national origin discrimination. The Justice Department, despite having republished its rules three times since last April, has never acknowledged the Supreme Court's reversal of the Alexander v. Sandoval decision which removed the legal foundation from E.O. 13166 and its own legal reasoning.
      The Department of Health and Human Services issued its first set of implementing guidelines on August 30, 2000. Because medical services are so important, HHS requires immediate, no-cost translation of any and all medical discussion and information into any language upon request by any individual. Patients cannot use their own translators, and even a short delay is grounds for a national origin discrimination complaint. Complaints have already been filed in New York against hospitals whose comprehensive translation policies are not comprehensive enough for language activists.

The Claims:
      First Amendment: The suit is primarily brought under the First Amendment of the U.S. Constitution, because the plaintiffs' right to free speech includes the right to speak in English. Any restriction on the plaintiffs' free speech must be authorized by Congress, and Congress has never said that speaking English is illegal discrimination under the civil rights laws. The suit also include Ninth and Tenth Amendment claims related to the First Amendment claim.
     "Ultra Vires" or Unauthorized Exercise of Federal Power under Title VI of the Civil Rights Act: The government is attempting to use the anti-discrimination provisions of Title VI of the Civil Rights Act of 1964 to overcome the plaintiff's First Amendment rights. Title VI prohibits unlawful discrimination on specific grounds, including "national origin," in the provision of government services and benefits.
E.O. 13166 and the two "policy guidance" rules challenged here claim that failure to provide government benefits and services in languages other than English is illegal national origin discrimination. Last April, in Alexander v. Sandoval, __ U.S. __, 121 S.Ct. 1511 (2001), the U.S. Supreme Court reversed the only case which supported the government's claim. In contrast, over the last twenty-two years, dozens of federal courts have rejected the government's claim. (See below for partial list.)
      The challenged policies ignore or mis-state the universal rejection of this equation of English and national origin discrimination. For example, the Department of Health and Human Services cited Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1981), for the proposition that it showed a "link between language and national origin discrimination." 65 FED. REG. 52764. The HHS Policy did not quote the explicit rejection of such a link in Gloor (a Title VII case): "The EEO Act does not support an interpretation that equates the language an employee prefers to use with his national origin." 618 F.2d at 270.
      Because Congress has never equated language and national origin under the civil rights laws, and because the Supreme Court has said that any such claim of discrimination must be intentional (rather than just having a discriminatory "effect," as stated in the policies challenged here), the defendants have no constitutional authority to issue these policies.

Procedural Defects:
The way these policies were promulgated violates several regulatory fairness laws, including the Administrative Procedures Act (5 U.S.C. Chapter 11), Small Business Regulatory Enforcement Fairness Act (5 U.S.C. § 801 et seq.), Regulatory Flexibility Act (5 U.S.C. § 601 et seq.), and Paperwork Reduction Act (44 U.S.C. § 3501 et seq.). In brief, the defendants claim that these new policies are not new rules, but only clarifications of existing, long-standing policies. Thus, they promulgated this major shift in civil rights regulation without seeking appropriate public comment and without considering the effect on small business and paperwork burdens.

Relief Sought:
The lawsuit asks the federal District Court in Alexandria, Virginia, to declare the policies unauthorized and illegal, and to bar their enforcement. The suit also asks that the Court recognize the two decades of unanimous federal judicial recognition that it is not national origin discrimination to choose to speak English, and that language cannot be equated to national origin under the civil rights laws.

For more information: K.C. McAlpin (703) 816-8821

Courts Reject Government's Claim that Using English is Discrimination
Garcia v. Gloor, 618 F.2d 264, 270 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1981)("The EEO Act does not support an interpretation that equates the language an employee prefers to use with his national origin.")
An v. General Am. Life Ins. Co., 872 F.2d 426 (9th Cir. 1989)(table) ("A policy involving an English requirement, without more, does not establish discrimination based on race or national origin.")
Nazarova v. INS, 171 F.3d 478, 483 (7th Cir. 1999)(allowing English deportation notices)
Carmona v. Sheffield, 475 F.2d 738 (9th Cir. 1973)(allowing English benefit termination notices)
Frontera v. Sindell, 522 F.2d 1215 (6th Cir. 1975)(allowing English civil service exam for carpenters)
Garcia v. Spun Steak, 998 F.2d 1480, 1489-90 (9th Cir. 1993), cert. den., 512 U.S. 1228 (1994) (rejecting EEOC guidelines saying requiring English is national origin discrimination)
Gonzalez v. Salvation Army, 985 F.2d 578 (11th Cir.)(table), cert. den., 508 U.S. 910 (1993)(rejecting employment discrimination claim)
Jurado v. Eleven-Fifty Corp, 813 F.2d 1406 (9th Cir. 1987)(permitting radio station to choose language an announcer would use)
Vasquez v. McAllen Bag & Supply Co., 660 F.2d 686 (5th Cir. 1981) (upholding English-on-the-job rule for non-English-speaking truck drivers)
Garcia v. Rush-Presbyterian St. Luke's Medical Center, 660 F.2d 1217 (7th Cir. 1981)(upholding hiring practices requiring English proficiency)
Long v. First Union Corp., 894 F.Supp. 933, 941 (E.D. Virginia, 1995)("there is nothing in Title VII which protects or provides that an employee has a right to speak his or her native tongue while on the job"), affirmed, 86 F.3d 1151 (4th Cir. 1996)
Gotfryd v. Book Covers, Inc., 1999 WL 20925, *8 (N.D. Ill. 1999)(rejecting attempt to use EEOC guidelines to establish hostile workplace)
Magana v. Tarrant/Dallas Printing, Inc., 1998 WL 548686, *5 (N.D. Texas, 1998) ("English-only policies are not of themselves indicative of national origin discrimination in violation of Title VII")
Tran v. Standard Motor Products, Inc., 10 F.Supp.2d 1199, 1210 (D. Kansas, 1998)("the purported English-only policy does not constitute a hostile work environment")
Mejia v. New York Sheraton Hotel , 459 F.Supp. 375, 377 (S.D.N.Y. 1978)(chambermaid properly denied a promotion because of her "inability to articulate clearly or coherently and to make herself adequately understood in . . . English")
Prado v. L. Luria & Son, Inc. , 975 F.Supp. 1349 (S.D. Fla 1997)(rejecting challenge to English workplace policy)
Kania v. Archdiocese of Philadelphia , 14 F.Supp. 2d 730, 733 (E.D. Penn. 1998) (surveying cases: "all of these courts have agreed that - particularly as applied to multi-lingual employees - an English-only rule does not have a disparate impact on the basis of national origin, and does not violate Title VII.").


Action Urge Congress to defend English Model official English statute Donate Current Legislation State Profiles ProEnglish BLOG Sign up for Twitter Email sign up Issues Official English Bilingual Education English on the Job Citizenship and Immigration Bilingual Ballots Puerto Rican Statehood Ending E.O. 13166, the "Multilingual Mandate" Contact us: 1601 N. Kent St. Suite 1100 Arlington, VA 22209 ph: (703) 816-8821		ProEnglish Sues President Bush Summary: Physicians and advocates of a common language are suing federal officials to block Clinton-era rules which say that using English is national origin discrimination. The suit is brought under the First Amendment, claiming that the rules are not authorized by Congress and ignore twenty years of unbroken federal court decisions rejecting the government's claim. The suit notes that last April the U.S. Supreme Court reversed the only case which supported these governmental policies, but the policies remain in place today. The suit asks the court to declare that the new rules are illegal and to block their enforcement. Parties: Plaintiffs: ProEnglish , headquartered in Arlington, Virginia, is a non-profit advocacy organization dedicated to the preservation and promotion of a common language - English - in American political and governmental life. K.C. McAlpin, Executive Director of ProEnglish, is also an individual plaintiff. Four physicians in different medical specialties from around the country are individual plaintiffs: o Anthony Bull, M.D. , is an anesthesiologist from California. Under the challenged government policies, Dr. Bull would have to provide translators inside operating rooms, and pre- and post-op areas, at his own cost. o Clifford W. Colwell, Jr., M.D., is the head of the Division of Orthopaedic Surgery and Shiley Professor of Musculoskeletal Diseases, and the Medical Director, Musculoskeletal Center at the Scripps Clinic in La Jolla, California. Dr. Colwell and his busy nationally-renowned clinic provide translators, at their own cost, in some languages, but not in all languages as would be required by the governmental policies challenged here. o Joseph F. Daugherty, M.D. is a family primary care physician in Florence, Kentucky. Dr. Daugherty speaks German and Spanish, but has patients who speak other languages, including Arabic and Japanese. Dr. Daugherty is already concerned about treating Medicare patients because of the low reimbursement rate for such treatments; adding translation costs under the policies challenged herein would mean each visit would cost Dr. Daugherty more than he would be reimbursed. o Donald Kundel, M.D. is a pathologist in Duluth, Minnesota. Because of the specialized nature of his practice, Dr. Kundel believes it would be impossible for him to comply with the policies challenged here, as he knows of no medically-sophisticated translation facility available to him at any reasonable cost. Defendants: o The Hon. George W. Bush is President of the United States, responsible for Executive Orders such as E.O. 13166. o The Hon. John Ashcroft is Attorney General of the United States, responsible for Department of Justice policy promulgations such as the "Policy Guidance" issued under E.O. 13166; the Department of Justice also coordinates all federal actions under E.O. 13166. o The Hon. Tommy G. Thompson is Secretary of Health and Human Services, responsible for the Department of Health and Human Services' "Policy Guidance" issued under E.O. 13166. All are sued in their official capacities. The Challenged Policies: The lawsuit challenges Executive Order 13166 signed by President Clinton August 11, 2000. E.O. 13166 requires federal agencies and any other entity which receives federal funds to "ensure that the programs and activities they normally provide in English are accessible to [Limited English Proficient] persons and thus do not discriminate on the basis of national origin in violation of Title VI of the Civil Rights Act of 1964, as amended, and its implementing regulations." This claim that providing programs and activities in English is national origin discrimination is the heart of this lawsuit. E.O. 13166 is explicitly based on an appeals court decision which the U.S. Supreme Court reversed last April in Alexander v. Sandoval, __ U.S. __, 121 S.Ct. 1511 (2001). The Sandoval reversal follows two decades of unanimous federal court rejection of attempts to equate using English with national origin discrimination. (For some of these cases, see list attached.) Implementing guidelines were first issued by the Department of Justice on August 16, 2000. These guidelines require all federal agencies and fund recipients to provide immediate translation and interpretation services to any person who is not proficient in English. "A federal aid recipient's failure to assure that people who are not proficient in English can effectively participate in and benefit from programs and activities may constitute national origin discrimination prohibited by Title VI." Since then, DoJ has repeatedly re-issued and republished its "guidance," but has never changed its belief that using only English is illegal national origin discrimination. The Justice Department, despite having republished its rules three times since last April, has never acknowledged the Supreme Court's reversal of the Alexander v. Sandoval decision which removed the legal foundation from E.O. 13166 and its own legal reasoning. The Department of Health and Human Services issued its first set of implementing guidelines on August 30, 2000. Because medical services are so important, HHS requires immediate, no-cost translation of any and all medical discussion and information into any language upon request by any individual. Patients cannot use their own translators, and even a short delay is grounds for a national origin discrimination complaint. Complaints have already been filed in New York against hospitals whose comprehensive translation policies are not comprehensive enough for language activists. The Claims: First Amendment: The suit is primarily brought under the First Amendment of the U.S. Constitution, because the plaintiffs' right to free speech includes the right to speak in English. Any restriction on the plaintiffs' free speech must be authorized by Congress, and Congress has never said that speaking English is illegal discrimination under the civil rights laws. The suit also include Ninth and Tenth Amendment claims related to the First Amendment claim. "Ultra Vires" or Unauthorized Exercise of Federal Power under Title VI of the Civil Rights Act: The government is attempting to use the anti-discrimination provisions of Title VI of the Civil Rights Act of 1964 to overcome the plaintiff's First Amendment rights. Title VI prohibits unlawful discrimination on specific grounds, including "national origin," in the provision of government services and benefits. E.O. 13166 and the two "policy guidance" rules challenged here claim that failure to provide government benefits and services in languages other than English is illegal national origin discrimination. Last April, in Alexander v. Sandoval, __ U.S. __, 121 S.Ct. 1511 (2001), the U.S. Supreme Court reversed the only case which supported the government's claim. In contrast, over the last twenty-two years, dozens of federal courts have rejected the government's claim. (See below for partial list.) The challenged policies ignore or mis-state the universal rejection of this equation of English and national origin discrimination. For example, the Department of Health and Human Services cited Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1981), for the proposition that it showed a "link between language and national origin discrimination." 65 FED. REG. 52764. The HHS Policy did not quote the explicit rejection of such a link in Gloor (a Title VII case): "The EEO Act does not support an interpretation that equates the language an employee prefers to use with his national origin." 618 F.2d at 270. Because Congress has never equated language and national origin under the civil rights laws, and because the Supreme Court has said that any such claim of discrimination must be intentional (rather than just having a discriminatory "effect," as stated in the policies challenged here), the defendants have no constitutional authority to issue these policies. Procedural Defects: The way these policies were promulgated violates several regulatory fairness laws, including the Administrative Procedures Act (5 U.S.C. Chapter 11), Small Business Regulatory Enforcement Fairness Act (5 U.S.C. § 801 et seq.), Regulatory Flexibility Act (5 U.S.C. § 601 et seq.), and Paperwork Reduction Act (44 U.S.C. § 3501 et seq.). In brief, the defendants claim that these new policies are not new rules, but only clarifications of existing, long-standing policies. Thus, they promulgated this major shift in civil rights regulation without seeking appropriate public comment and without considering the effect on small business and paperwork burdens. Relief Sought: The lawsuit asks the federal District Court in Alexandria, Virginia, to declare the policies unauthorized and illegal, and to bar their enforcement. The suit also asks that the Court recognize the two decades of unanimous federal judicial recognition that it is not national origin discrimination to choose to speak English, and that language cannot be equated to national origin under the civil rights laws. For more information: K.C. McAlpin (703) 816-8821 Courts Reject Government's Claim that Using English is Discrimination Garcia v. Gloor, 618 F.2d 264, 270 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1981)("The EEO Act does not support an interpretation that equates the language an employee prefers to use with his national origin.") An v. General Am. Life Ins. Co., 872 F.2d 426 (9th Cir. 1989)(table) ("A policy involving an English requirement, without more, does not establish discrimination based on race or national origin.") Nazarova v. INS, 171 F.3d 478, 483 (7th Cir. 1999)(allowing English deportation notices) Carmona v. Sheffield, 475 F.2d 738 (9th Cir. 1973)(allowing English benefit termination notices) Frontera v. Sindell, 522 F.2d 1215 (6th Cir. 1975)(allowing English civil service exam for carpenters) Garcia v. Spun Steak, 998 F.2d 1480, 1489-90 (9th Cir. 1993), cert. den., 512 U.S. 1228 (1994) (rejecting EEOC guidelines saying requiring English is national origin discrimination) Gonzalez v. Salvation Army, 985 F.2d 578 (11th Cir.)(table), cert. den., 508 U.S. 910 (1993)(rejecting employment discrimination claim) Jurado v. Eleven-Fifty Corp, 813 F.2d 1406 (9th Cir. 1987)(permitting radio station to choose language an announcer would use) Vasquez v. McAllen Bag & Supply Co., 660 F.2d 686 (5th Cir. 1981) (upholding English-on-the-job rule for non-English-speaking truck drivers) Garcia v. Rush-Presbyterian St. Luke's Medical Center, 660 F.2d 1217 (7th Cir. 1981)(upholding hiring practices requiring English proficiency) Long v. First Union Corp., 894 F.Supp. 933, 941 (E.D. Virginia, 1995)("there is nothing in Title VII which protects or provides that an employee has a right to speak his or her native tongue while on the job"), affirmed, 86 F.3d 1151 (4th Cir. 1996) Gotfryd v. Book Covers, Inc., 1999 WL 20925, 8 (N.D. Ill. 1999)(rejecting attempt to use EEOC guidelines to establish hostile workplace) Magana v. Tarrant/Dallas Printing, Inc., 1998 WL 548686, 5 (N.D. Texas, 1998) ("English-only policies are not of themselves indicative of national origin discrimination in violation of Title VII") Tran v. Standard Motor Products, Inc., 10 F.Supp.2d 1199, 1210 (D. Kansas, 1998)("the purported English-only policy does not constitute a hostile work environment") Mejia v. New York Sheraton Hotel , 459 F.Supp. 375, 377 (S.D.N.Y. 1978)(chambermaid properly denied a promotion because of her "inability to articulate clearly or coherently and to make herself adequately understood in . . . English") Prado v. L. Luria & Son, Inc. , 975 F.Supp. 1349 (S.D. Fla 1997)(rejecting challenge to English workplace policy) Kania v. Archdiocese of Philadelphia , 14 F.Supp. 2d 730, 733 (E.D. Penn. 1998) (surveying cases: "all of these courts have agreed that - particularly as applied to multi-lingual employees - an English-only rule does not have a disparate impact on the basis of national origin, and does not violate Title VII.").