I. A Per Se Rule Equating Language With National Origin Has No Basis in Law or Fact, and Would Be Unworkable and Unwise.
The decision below equates language and national origin.  Sandoval v. Hagan, 197 F.3d 484, 508-09 (11^th Cir. 1999); see, Pet. App. 22a-29a. Such a novel per se equation of language choice and national origin has no basis in law or fact, and would be unworkable and unwise.

A. A Per Se Rule Equating Language and National Origin Has No Basis In Law or Fact.
1. A Per Se Rule Equating Language and National Origin Has No Basis in Law.
The language, history and interpretations of the Fourteenth Amendment and other federal laws do not  support equating, per se, language and national origin.


Statutory Language:
"[T]he reach of Title VI's protection extends no further than the Fourteenth Amendment." United States v. Fordice, 505 U.S. 717, 732 n. 7 (1992)(citations omitted). The Fourteenth Amendment does not include the phrase "national origin." Nevertheless, discrimination on the basis of ancestry violates the Equal Protection Clause of the Fourteenth Amendment. St. Francis College v. Al-Khazraji, 481 U.S. 604, 614 n. 5 (1987).  "Distinctions between citizens solely because of their ancestry are by their very nature odious to free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U.S. 81, 100 (1943).

No federal statute defines "national origin." Title VI of the Civil Rights Act of 1964 added "national origin," without definition, to the list of protected classes. 42 U.S.C. § 2000d, Pub. L. 88-352, Title VI, § 601, July 2, 1964, 78 Stat. 252.

Legislative History:
Legislative history does not support a language-based definition of national origin. This Court has noted that the legislative history concerning the meaning of national origin, even under statutory law, is "quite meager." Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973). Nevertheless, "[t]he terms 'national origin' and 'ancestry' were considered synonymous." 414 U.S. at 89. During debate on the 1964 Civil Rights Act, Representative Roosevelt stated: "May I just make very clear that 'national origin' means national. It means the country from which you or your forebears came from. You may come from Poland, Czechoslovakia, England, France, or any other country." 110 CONG. REC. 2,549 (1964).

This Court supports that assessment: "[t]he term 'national origin' on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza, 414 U.S. at 88; see also, Pejic v. Hughes Helicopters, 840 F.2d 667, 672-73 (9^th Cir. 1988)(persons of Serbian national origin are members of a protected class under Title VII).

Administrative Interpretations:
As noted above, there are now three administrative interpretations which equate language and national origin. The oldest is the EEOC's presumption against requiring the use of English on the job. 29 C.F.R. § 1606.7. The newest are the interlocked Executive Order 13,166 (August 11, 2000) (reprinted in Supp. App. 10a - 13a), and the Justice Department's Policy Guidance on National Origin Discrimination Against Persons With Limited English Proficiency (reprinted in Supp. App. 14a - 28a).

This Court has never reviewed those administrative interpretations, and they do not bind this Court. Espinoza, 414 U.S. at 94-95.

Numerous other courts have reviewed the EEOC Guidelines and have rejected them and their underlying equation of language and national origin.   See, e.g., Garcia v. Spun-Steak, 998 F.2d 1480, 1489-90 (9^th Cir. 1993), cert. den. 512 U.S. 1228 (1994)(EEOC Guidelines equating language and national origin were ultra vires); Vasquez v. McAllen Bag & Supply Co., 660 F.2d 686 (5^th 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, 1222 (7^th 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 (4^th Cir. 1996).

Judicial Interpretations:
As the lower court recognized, 197 F.3d at 509 n. 26, this Court has never held that the language a person chooses to speak can be equated to the person's national origin. Though this issue was briefed and discussed in Hernandez v. New York, 500 U.S. 352 (1991), the Court did not make a holding on this question. "Petitioner argues that Spanish-language ability bears a close relation to ethnicity, and that, as a result, it violates the Equal Protection Clause. . . We need not address that argument here." 500 U.S. at 360.

The Circuits, on the other hand, have rejected such an equation. See, e.g., Soberal-Perez v. Heckler, 717 F.2d at 41:
A classification is implicitly made, but it is on the basis of language, i.e., English-speaking versus non-English-speaking individuals, and not on the basis of race, religion or national origin. Language, by itself, does not identify members of a suspect class.
See, also, Toure v. United States, 24 F.3d at 446 (affirming Soberal-Perez and rejecting request for multilingual forfeiture notices). "A policy involving an English requirement, without more, does not establish discrimination based on race or national origin." An v. General Am. Life Ins. Co., 872 F.2d 426 (9^th Cir. 1989)(table).

A few cases indicate that if the language policy is a pretext for intentional discrimination, a language-related rule might violate national origin rules. In addition, two recent lower court decisions have adopted the EEOC's interpretation equating language and national origin.  See, e.g., EEOC v. Synchro-Start Products, 29 F.Supp.2d 911, 915 n. 10 (N.D. Illinois, 1999)(on advice of law clerk, Judge Shadur was "staking out a legal position that has not been espoused by any appellate court."); EEOC v. Premier Operator Services, 113 F.Supp.2d 1066 (N.D. Texas, 2000)(Magistrate Judge  Stickney, rejecting appellate cases against EEOC Guidelines and relying on Synchro-Start Products and Judge Reinhardt's dissent from denial of rehearing en banc in Spun Steak, found disparate treatment of Hispanic employees in the promulgation of an English-workplace rule).

But almost all cases, including all Circuit decisions, have rejected the equation of language and national origin. See, e.g., Gloor, 618 F.2d at 270 ("The EEO Act does not support an interpretation that equates the language an employee prefers to use with his national origin."); Nazarova v. INS, 171 F.3d 478, 483 (7^th Cir. 1999)(permitting deportation notices in English); Carmona v. Sheffield, 475 F.2d 738 (9^th Cir. 1973)(permitting English benefit termination notices); Frontera v. Sindell, 522 F.2d 1215 (6^th Cir. 1975)(civil service exam for carpenters can be in English); Garcia v. Spun Steak, 998 F.2d 1480, 1489-90 (9^th Cir. 1993), cert. den., 512 U.S. 1228 (1994) (rejecting EEOC guidelines); Gonzalez v. Salvation Army, 985 F.2d 578 (11^th Cir.)(table), cert. den., 508 U.S. 910 (1993)(rejecting employment discrimination claim); Jurado v. Eleven-Fifty Corp, 813 F.2d 1406 (9^th Cir. 1987)(permitting radio station to choose language an announcer would use); Vasquez v. McAllen Bag & Supply Co., 660 F.2d 686 (5^th 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 (7^th 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 (4^th 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.").

There is, therefore, no basis in the terms, history or interpretation of "national origin" which supports a per se rule equating a person's language and that person's national origin.

2. A Per Se Rule Equating Language and National Origin Has No Basis in Fact.
Spanish is spoken in many countries, impairing a determination that the language itself determines, under Espinoza, "the country from which his or her ancestors came." 414 U.S. at 88. Thus Hispanics are usually within a protected class not by virtue of language spoken, but by ancestry. Hernandez v. Texas, 347 U.S. 475, 479-80 (1954)(persons of Mexican descent wrongfully excluded from jury duty).

A per se rule equating a person's language and national origin would be both over- and under-inclusive. Many Hispanics do not speak Spanish. Many non-Hispanics speak Spanish.

Nor is language an immutable characteristic, like "the country from which his or her ancestors came." Espinoza, 414 U.S. at 88. Although, for some people, learning a new language may be a difficult or unfinished task, Garcia v. Gloor, 618 F.2d at 270, in that aspect language may be much like alienage - not statutorily protected. Although alienage cannot be changed before qualification for naturalization, it can be changed eventually. Sugarman v. Dougall, 413 U.S. 634, 658 (1973)(Rehnquist, J., dissenting).

B. A Per Se Rule Equating Language and National Origin Is Unworkable
Providing services or assistance in many languages, as Executive Order 13,166 proposes for federal agencies, contractors or grantees could be costly and difficult. In the simplest example, increasing the number of languages increases the possibility of translation errors. Hernandez v. New York, 500 U.S. at 361, citing, United States v. Perez, 658 F.2d 654, 662 (9^th Cir. 1981); Seltzer v. Foley, 502 F.Supp. 600, 603-4 (S.D.N.Y. 1980)(interpreter in magistrate's courtroom changed the motive of the accused without her knowledge). A 1985 report found that of 1,400 applicants, only 30 passed the federal certification test for Spanish language courtroom interpreters. "Problems Cited in Greater Use of Court Interpreters," 16 CRIM. JUST. NEWSL. 13, 2 (1985).

More than 300 languages are spoken in the United States. U.S. Bureau of the Census, 1990 Table COHL 13: "Language Spoken At Home and Ability to Speak English for Persons 5 Years and Over." Many of those languages contain distinct dialects in which the same words mean different things. S. Berk-Seligson, The Bilingual Courtroom, 5 (1990) (citing Italian, Napolese and Sicilian as "different varieties of the same language."). Some of these dialectical differences could be legally significant, such as the Spanish word "guagua," which means "baby" in Nicaragua or Chile, but "bus" in the Dominican Republic. "The Fine Art of Interpreting in a Miami Court," New York Times, May 8, 1984, at A15, col. 1.

Courts are justifiably reluctant to impose those  costs on governments which have not chosen to bear the burden. See, e.g., Abdullah v. INS, 184 F.3d at 166:
The applicants in this case alone would require the provision of interpreters in Urdu, Hindi and Bengali. Upholding the right plaintiffs claim would no doubt require provision of interpreters in thousands of cases and in a huge range of languages. The expense and difficulty of meeting that need would be great.
See, also, Nazarova v. INS, 171 F.3d at 483:
[T]he logical implication is that the INS must maintain a stock of forms translated into literally all the tongues of the human race, and then select the proper one for each potential deportee. No court to our knowledge has ever held that the Constitution requires the INS to undertake such a burden, and we will not be the first.
See further, Toure, 24 F.3d at 446 (providing forfeiture notices in preferred language would "impose a patently unreasonable burden"); Vialez v. New York City Hous. Auth., 783 F.Supp. 109, 120-24 (S.D.N.Y. 1991) ("insurmountable and unjustified burden on the Housing Authority").

C. A Per Se Rule Equating Language and National Origin Is Unwise
This Court noted in Holland v. Illinois, that "[t]he earnestness of this Court's commitment to racial justice is not to be measured by its willingness to expand constitutional provisions designed for other purposes beyond their proper bounds." 493 U.S. 474, 488 (1990). It would be difficult to cabin the lower court's equation of language choice and national origin. The most critical example is the Administration's adoption of the lower court's opinion in Executive Order 13,166 to expand the equating of language and national origin to every federal agency, contractor and grantee.

Although the primary question in this case is the existence of a private right of action, a misinterpreted phrase in an opinion from this Court could generate unintended controversies in other areas far beyond this case:

Language of Government Activities:
24 States have declared English their official languages. These declarations are the subject of substantial litigation. See, e.g. Arizonans for Official English, No. 95-974, 520 U.S. 34 (1997).

Other cases, like this one, involve challenges to governments' choices of English for internal operations. The lower court's analysis, for example, would have precluded the English-language civil service examination upheld in Frontera v. Sindell, 522 F.2d at 1218, and the English-language deportation, forfeiture, and benefit notices upheld in Nazarova v. INS, 171 F.2d at 483, Soberal-Perez v. Heckler, 717 F.2d at 41, Carmona v. Sheffield, 475 F.2d 738 (9^th Cir. 1973),  Toure v. United States, 24 F.3d at 446, Alfonso v. Board of Review, 89 N.J. 41, 444 A.2d 1075, cert. denied, 459 U.S. 806 (1982), Guerrero v. Carleson, 9 Cal. 3d 808, 512 P.2d 833, 109 Cal. Rptr. 201 (1973), cert. denied, 414 U.S. 1137 (1974), and Commonwealth v. Olivio, 369 Mass. 62, 337 N.E.2d 901 (1975).

Language of Education:
As noted above, the elimination of bilingual education reform is a rapidly-growing effort, driven by parents who want their children taught English. If this Court were to equate language and national origin, the federal agencies would roll back these bilingual education reforms, crushing the hopes and dreams of these parents and condemning their children to what the New York Times called "a bilingual prison." "A Bilingual Prison," The New York Times, September 21, 1995, A22.

Language of the Workplace:
As noted above and discussed in the Appendix to this brief, courts have overwhelmingly rejected the EEOC's presumption that English-on-the-job rules are national origin discrimination. See, e.g., Gloor, 618 F.2d at 270 ("The EEO Act does not support an interpretation that equates the language an employee prefers to use with his national origin."); Spun-Steak, 998 F.2d at 1489-90 (EEOC Guidelines are ultra vires). These decisions would be wiped away if this Court recognizes the relationship between language and national origin posed by the decision below.

Amici respectfully urge the Court to reverse the decision below on the question of whether a person's choice of language can be equated to the person's national origin.

II. Federal Rules Which Affect Core Rights of the States to Choose English for Internal Operations Must Be Explicit
The decision below will require the State to speak in a language which its political processes have decided will harm its interests. This Court has historically recognized States' rights to "regulate the content of what is or is not expressed when it is the speaker." Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 833  (1995). Though Rosenberger is a First Amendment case, it reflects this Court's concern for States' sovereignty.

A State defines itself as a sovereign "[t]hrough the structure of its government and the character of those who exercise government authority." Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). Several of these areas of State sovereignty lie beyond the general reach of federal laws, including the regulation of a State's internal operations. "A State is entitled to order the processes of its own governance." Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 2264 (1999)("Such plenary federal control of state government processes denigrates the separate sovereignty of the States.").

This is not a new thought, as this Court noted over a century ago: "To [the States] nearly the whole charge of interior regulations is committed or left." Lane County v. Oregon, 7 Wall. 71, 76 (1869); Oregon v. Mitchell, 400 U.S. 112, 126 (1970)(Black, J., joined by the Chief Justice and three other Justices)("And the Equal Protection Clause of the Fourteenth Amendment was never intended to destroy the States' power to govern themselves, making the Nineteenth and Twenty-fourth Amendments superfluous.").

Under this Court's recent decisions, the Tenth Amendment protects the reservation of "original powers" of a State. U.S.
Term Limits v. Thornton, 514 U.S. 779, 801 (1995); Alden, 119 S.Ct. at 2259, quoting, Nevada v. Hall, 440 U.S. 410, 425 (1979).

A State's Tenth Amendment right to choose the language of its own internal operations is one of those historically-based core powers. Throughout American history, this Court has permitted States to use English. Patterson v. De La Ronde, 8 Wall. 292, 299-300 (1869)(Court reconciled French and English versions of Louisiana mortgage law); Meyer v. Nebraska, 262 U.S. 390, 402 (1923)("The power of the State to . . . make reasonable requirements for all schools, including a requirement that they shall give instructions in English, is not questioned."). And prior to the Constitutional Convention, the primacy of English was well-established. "[T]he English language dominated all public life. It was the only official language and as such was used in the courts, the assemblies, and the press." J.R. Pole, Foundations of American Independence, 1763-1815, 18 (1972).

Like the choice of location of its own State Capitol, a State's choice to use English in conducting its affairs is a "function essential to [the State's] separate and independent existence." Coyle v. Wyoming, 221 U.S. 559, 595 (1911). Choice of the English language for internal State operations is thus an "original power," a core State function over which federal abrogation power is limited. Any federal abrogation, therefore, must be explicit and remedial. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 638 (1999). There are few, if any, such abrogations, and those identified in the decision below are neither clear nor remedial.

The lower court seemed to rest its entire view of federal regulatory power over States' internal language choices on this Court's decision in Lau v. Nichols, 414 U.S. 563 (1974)(school district must provide some assistance to students who could not otherwise obtain an education). See, e.g., 197 F.3d at 495-97, 504-07. Yet Lau was a narrow decision - focused specifically on a particular problem in education -  and not the type of clear, remedial abrogation envisioned by this Court's recent decisions. If left intact, the decision below will encourage other courts to use Lau to overrule States' internal decisions in other non-educational contexts, shoving that narrow, education-based decision far beyond its original limits.

This Court should protect these core States' rights by reversing the decision below.

CONCLUSION
Amici therefore respectfully urge the Court to reverse the decision below.


    BARNABY W. ZALL
    Counsel of Record for Amici Curiae
    7018 Tilden Lane
    Rockville, MD 20852
    (301) 231-6943
November 9, 2000

Thomas G. Tancredo
6^th District, Colorado

Washington Office:
1123 Longworth Building
Washington, DC 20515
Main: (202) 225-7882
Fax: (202) 225-4623

District Office:
5601 S. Broadway, Suite 370
Littleton, CO 80120
Main: (720) 283-9712
Fax: (720) 283-9776

Committee on Education and the Workforce
Subcommittees:
Early Childhood, Youth and Families
Oversight and Investigations

Committee on Resources
Subcommittee:
Energy and Minerals

Committee on International Relations
Subcommittees:
International Operations and Human Rights
Africa

Congress of the United States
House of Representatives
Washington, DC 20515-0606

December 14, 1999

The Hon. Ida L. Castro
Chairwoman
Equal Employment Opportunity Commission
1801 L St., N.W.
Washington, DC 20507

Dear Ms. Castro:

Thank you for the Commission's October 20, 1999 response to my August 11 inquiry about the Commission's activities regarding English-on-the-job rules and the Commission's guidelines under 29 C.F.R. section 1606.7.

While I appreciate the information you provided, I wanted to share with you that I am troubled by the Commission's activities. Your letter, for example, says: "under the EEOC's Guidelines, speak-English-only rules are presumed to have an adverse impact based on national origin, and therefore violate Title VII of the Civil Rights Act of 1964, as amended." My concern is that federal courts have repeatedly held just the opposite, and I see no evidence that the Commission's view has any legal basis.

I have a strong commitment to the principle of non-discrimination. I also have a strong commitment to the concept of a federal agency's power being limited by the Constitution and Congress's statutory delegation of authority to the agency. As a member of the Oversight Subcommittee of the House Committee on Education and the Workforce, I must judge the Commission's interpretation of Title VII as applied to English-on-the-job rules under the law as described by the federal courts.

I have now reviewed this question thoroughly. Every final federal court decision on English-on-the-job rules has held that such rules do not violate Title VII or that the Commission's guidelines are ultra vires. To quote just one of the more than a dozen federal courts which have looked at this question: "An agency interpretation, like that in 29 C.F.R. s. 1606.7, at variance with the statute it interprets, must be outside the scope of the agency's interpretive authority, and must be wrong." Kania v. Archdiocese of Philadelphia, 14 F.Supp.2d 730, 735-736 (E.D. Penn. 1998) (emphases added).

This is a very strong denunciation of the Commission's view. A federal court, after substantial review of the evidence and the law, has judicially found that the Commission's Guidelines are "at variance with the statute it interprets," are "outside the scope of the agency's interpretive authority" (in other words, ultra vires -- beyond its power), and "wrong." Yet, unfortunately, the Kania court's position that the Commission's Guidelines are ultra vires, unfounded in Title VII and "wrong" is virtually unanimous among federal courts.

This is not a recent development which might have surprised the Commission. As you know, the Commission presented its draft Guidelines in briefings to the U.S. Court of Appeals for the Fifth Circuit in 1980; the Fifth Circuit rejected the Guidelines twice immediately thereafter. Garcia v. Gloor, 618 F.2d 264 (5^th Cir. 1980), cert. denied, 449 U.S. 1113 (1981)(English-on-the-job rule not illegal as applied to bilingual employee); Vasquez v. McAllen Bay & Supply Co., 660 F.2d 686 (5^th Cir. 1981)(same as applied to non-English-speaking employee).

Other cases finding either that English-on-the-job rules do not violate Title VII or that the Guidelines are ultra vires and unlawful include:

C Long v. First Union Corp., 86 F.3d 1151 (4^th Cir. 1996), affirming 894 F.Supp. 933 (E.D. Va, 1995). See 894 F.Supp. 940 (Guidelines are ultra vires because Congress enacted a specific and detailed framework for the burden of proof in disparate impact cases, and the Guidelines directly contradicted the plain terms of the statute it purports to interpret).

C Gonzalez v. Salvation Army, 985 F.2d 578 (11^th Cir.), cert. denied, 508 U.S. 910 (1993), affirming, No. 89-1679-Civ-T-17 (M.D. Fla. 1990)(citing Gloor for proposition that, where co-workers or customers can overhear, English-on-the-job rule does not violate Title VII; notes that legitimate business purposes included the ability of managers to know what was said in the workplace, and the ability of co-workers to know what was being said around them).

C Garcia v. Spun Steak Co., 998 F.2d 1480 (9^th Cir. 1993), cert. denied, 114 S.Ct. 2726 (1994)(in rejecting language-based claim by employees who hurled racial insults at co-workers in language co-workers could not understand, Guidelines struck down as illegal and ultra vires). An attempt to obtain rehearing by citing Title VII was rejected by the full Ninth Circuit. 13 F.3d 296 (9^th Cir. 1994).

C Jurado v. Eleven-Fifty Corp., 813 F.2d 1406 (9^th Cir. 1987)(on motion for summary judgment, rejecting Guidelines-based claim by radio announcer for disparate impact).

C Tran v. Standard Motor Products, Inc., 10 F.Supp. 2d 1199 (D.C. Kansas 1998)(in rejecting language-based claim by employee who sexually harassed co-workers in a language other than English, found that business necessity includes insuring that all workers can understand each other, preventing injuries, and preventing co-workers from feeling they are being talked about; English-on-the-job rule did not create hostile work environment).

C Roman v. Cornell University, 53 F.Supp. 2d 223, 237 (N.D. N.Y. 1999)(after surveying cases, finding: "All decisions of which this Court is aware have held that English-only rules are not discriminatory as applied to bilingual employees where there is a legitimate business justification for implementing such a rule" and "Several courts have held that an English-only policy designed to reduce intra-office tensions is a legitimate business reason.")

These decisions completely undermine the Commission's Guidelines. Surely the Commission should know of these decisions, yet they are not provided to employees or reflected in the Commission's policies.

Nor is there any countervailing controlling legal authority. There are only three decisions which might support the Commission's Guidelines - and none of those is significant or broadly applicable. The first was Gutierrez v. Municipal Court of the Southeast Judicial District, 838 F.2d 1031 (9^th Cir. 1988), vacated, 490 U.S. 1016 (1989). In Gutierrez, court employees racially insulted co-workers in a language they could not understand; the Ninth Circuit upheld a title VII claim based on the Guidelines, suggesting that the employer's remedy was to fire African-American employees and hire Spanish-speaking supervisors. Several Ninth Circuit judges decried this opinion as a "let them eat cake" approach which would exacerbate workplace tensions. 861 F.2d 1187, 1194 (9^th Cir. 1988). The Supreme Court of the United States not only vacated the Gutierrez opinion immediately without further briefing, but did so with an unusual reference to a passage indicating that the vacated opinion was to "spawn no legal consequences." 490 U.S. 1016 (1989).

It is unlikely that the Commission would want to rely on a vacated opinion which suggests firing African-American supervisors in order to permit continued racial insults in a workplace. Fortunately, the Commission's training and policy materials make no reference to Gutierrez.

The other decision is a recent rejection of a motion to dismiss. EEOC v. Synchro-Start Products, 29 F.Supp.2d 911 (N.D. Illinois, 1999). In Synchro-Start, Judge Shadur notes that he was "staking out a legal position that has not been espoused by any appellate court." 29 F.Supp. 2d at 915 n. 10. In addition, Judge Shadur also noted that he was only "crediting" the Guidelines at the very early stage of deciding a motion to dismiss. 29 F.Supp.2d at 912-13. Similarly, another decision from the same District Court only two weeks before Synchro-Start, rejected an attempt to use the Guidelines to establish workplace hostility. Gotfryd v. Book Covers, Inc., __ F.Supp. 2d ___ 1999 WL 20925, *8 (N.D. Ill. 1999).

The Commission probably will not want to rely heavily on a District Court opinion so specifically limited and contradicted in its own district. Unfortunately, the press coverage included in your letter to me indicates that personnel in the Chicago office do not share this discretion. An EEOC attorney is quoted as claiming that "courts are divided on the legality of such English-only personnel policies." This quote, which was given at the start of the lawsuit against Synchro-Start, is simply incorrect. At the time this quote was given, there were no courts which had rejected such policies, as Judge Shadur later recognized in his footnote in Synchro-Start saying that he was the first (though in all fairness, by now the Northern District of Illinois is divided on the validity of the Guidelines, as shown by Synchro-Start and Gotfryd).

The same article quotes another EEOC attorney as saying that English-on-the-job "policies are generally a manifestation of prejudice toward ethnic minorities." There is no such finding in the judicial cases, and it is difficult to believe that the EEOC attorney is applying some general factual finding rather than personal prejudice. I find no evidence that the Commission made such a general factual finding.

The most troubling note in the package of information, however, was the Chicago EEOC office's press release of January 21, 1999, in which John P. Rowe, District Director in Chicago, says that "One of our enforcement priorities in this jurisdiction is to make the Commission's Guidelines on 'English only' rules a reality in the workplace. Judge Shadur's reference to the EEOC Guidelines and his decision permitting the case against Synchro-Start to keep moving ahead are very significant milestones and reinforce our commitment to the agency's enforcement priorities. We look forward to making further strides in this area."

It appears from this quote that the Chicago regional office has not reviewed or credited each of the more than a dozen federal judicial decisions rejecting the Commission's interpretation of Title VII as applied to English-on-the-job rules. It is difficult to determine what grounds the Chicago regional office has for believing that all those courts are wrong and the Commission interpretation is the only correct version.

There is a third (and most recent) decision, which is also contradicted in its own jurisdiction. As you know, the Commission sued Premier Operator Services of Desoto, Texas, alleging that its English-on-the-job rule violated Title VII. EEOC v. Premier Operator Services, __ F.Supp.2d ___, 1999 WL 1044180 (N.D.Texas, 1999). Magistrate Stickney refused to grant summary judgment in the case, finding that he must give "some consideration" to the Guidelines where there were genuine material factual disputes. Magistrate Stickney did not cite any decision involving English-on-the-job rules other than Gloor, which he said was not applicable to a situation where an employee "inadvertently" uses a language other than English. Yet an earlier decision by Judge Fitzwater in the same Northern District of Texas, citing Gloor and Spun-Steak, held flatly: "English-only policies are not of themselves indicative of national origin discrimination in violation of Title VII." Magana v. Tarrant/Dallas Printing, Inc., __ F.Supp.2d __, 1998 WL 548686, *5 (N.D.Texas 1998).

The summary of all these cases is that there is no judicial recognition of a legal basis for the Commission's Guidelines from any federal appellate court, and the lower courts largely reject the Guidelines. This lack of legal foundation for a federal enforcement policy troubles me.

I have reviewed the material you sent to me explaining the Commission's position in general and instructing its personnel about English-on-the-job rules. I find no mention of most of these cases. I find no significant legal analysis of the Commission's interpretation beyond a simple declaration of its conclusions. I find interpretations which contradict and ignore the straightforward and unanimous opinions of the federal courts which have reviewed English-on-the-job rules. In short, the materials I received from the Commission explaining its position and instructing its personnel were simply "wrong."Kania v. Archdiocese of Philadelphia, 14 F.Supp.2d at 735-736.

That makes the case load report you sent to me all the more disturbing. According to your letter, in recent years, the Commission has carried an annual case load of between 120 and 150 charges against employers accused of violating Title VII by having an English-on-the-job rule. In the year ending August 26, 1999, the Commission "resolved a total of 121 charges on this issue." 49 of these charges were "resolved" by finding "no violation." Another 35 of these charges were "resolved" by closing prior to the end of an investigation. 27 employers were found to have "violations,"apparently of Title VII, under the Commission's uniformly-rejected interpretation.

Because you did not provide me with sufficient data on these 27 "violations" of the Commission's interpretation, I cannot tell where these employers are located, or whether the "violations" would survive a court test (for example, was the "violation" of Title VII based on the Commission's unlawful "presumption" that an English-on-the-job rule shifts the burden of proof onto an employer to justify the rule). This information is essential for me to determine the extent to which the Commission is abiding by the rules established by each of the Circuit Courts of Appeal which have rejected the Commission's interpretation.

You also listed seven lawsuits which had been filed, resolved or were pending during the year ending August 30, 1999. Three of these seven cases are in federal Circuits which have unequivocally rejected the Commission's interpretation of Title VII as applied to English-on-the-job rules.

In light of the above, please provide me with the following at your earliest opportunity:

1) a full and complete explanation of any legal rationale supporting the Commission's interpretation of Title VII as applied to English-on-the-job rules, including a) any materials relied upon by the Commission in adopting, reviewing and continuing in force 29 C.F.R. section 1606.7, and b) any materials used, reviewed or considered in any of the lawsuits referred to in your letter to me which provide any such legal rationale. I am particularly interested in reviewing the legal analyses in the materials the Commission provided the courts in Synchro-Start and Premier Operator.

2) A description of the geographic location of the described 27 employers found to be in "violation" of Title VII as interpreted by the Commission, preferably by location within the circuits covered by each U.S. Court of Appeals. In addition, a description of whether the "violation" was considered to be of "adverse impact" or "treatment" under existing definitions. Also, a description of whether the "violation" was due to a presumption which was insufficiently rebutted by the employer, or whether the "violation" was proven by the investigation. You may remove all identifying information if required by statute, but the information I am requesting relates solely to actions taken by the Commission and its personnel, so redactions should be kept to a minimum.

3) A complete explanation of whether, and if so, how the Commission intends to revise its materials relating to English-on-the-job rules, including employee training and interpretation manuals, to reflect the current state of judicial decisions in this area.

While I will await the receipt of further information before making up my mind on further proceedings in this matter, I urge the Commission to review carefully its policies in this area. It is not in the national interest to extend federal power in this area any further than absolutely necessary. The Commission should recognize that when federal courts repeatedly say that it is acting illegally, serious reconsideration is warranted.

In addition, I urge the Commission to revisit this issue and its Guidelines at its earliest opportunity. If, in fact, regional office personnel are conducting their own policy pursuits, the Commission should exert control. If it is the Commission's own policy to "make the Commission's Guidelines on 'English only' rules a reality in the workplace," please let me know that as soon as possible.

Thank you for your attention to this matter.

    Sincerely,

    /s/
    Tom Tancredo
    Member of Congress

TABLE OF AUTHORITIES
Abdullah v. Immigration and Naturalization Service, 184 F.3d 158 (2d Cir. 1999) 14, 20
Alden v. Maine, 527 U.S. 706 (1999) 24
Alfonso v. Board of Review, 89 N.J. 41, 444 A.2d 1075, cert. denied, 459 U.S. 806 (1982) 22
An v. General Am. Life Ins. Co., 872 F.2d 426 (9^th Cir. 1989)(table) 15
Arizonans for Official English v. Arizona, 520 U.S. 34 (1997) 3, 22
Carmona v. Sheffield, 475 F.2d 738 (9^th Cir.1973) 16, 22
Commonwealth v. Olivio, 369 Mass. 62, 337 N.E.2d 901 (1975) 22
Coyle v. Wyoming, 221 U.S. 559 (1911) 25
EEOC v. Premier Operator Services, 113 F.Supp.2d 1066 (N.D. Texas, 2000) 15
EEOC v. Synchro-Start Products, 29 F.Supp.2d 911 (N.D.Illinois,  1999) 15, 16
Espinoza v. Farah Mfg Co., 414 U.S. 86 (1973) 12, 13, 16, 18
Family Service Agency San Francisco v. Nat'l Labor Relations Board, 163 F.3d 1369 (9^th Cir. 1999) 3
Florida Prepaid Postsecondary Education Expense Bd. v. College Savings Bank, 527 U.S. 627  (1999) 25
Frontera v. Sindell, 522 F.2d 1215 (6^th Cir. 1975) 16, 22
Garcia v. Gloor, 618 F.2d 264 (5^th Cir. 1980), cert. den., 449 U.S. 113 (1981) 13, 16, 18, 23
Garcia v. Rush-Presbyterian St. Luke's Medical Center, 660 F.2d 1217 (7^th Cir. 1981) 14, 16
Garcia v. Spun-Steak, 998 F.2d 1480 (9^th Cir. 1993), cert. denied, 512 U.S. 1228 (1994) 6, 13, 16, 23
Gonzalez v. Salvation Army, 985 F.2d 578 (11^th Cir.)(table), cert. den., 508 U.S. 910 (1993) 16
Gotfryd v. Book Covers, Inc., 1999 WL 20925 (N.D. Illinois, Jan 7, 1999)  16
Gregory v. Ashcroft, 501 U.S. 452 (1991) 24
Guerrero v. Carleson, 9 Cal. 3d 808, 512 P.2d 833, 109 Cal. Rptr. 201 (1973), cert. denied, 414 U.S. 1137 (1974) 22
Gutierrez v. Municipal Court of the Southeast Judicial District, 838 F.2d 1031 (9^th Cir. 1988), dissent from reh'g en banc, 861 F.2d 1187 (9^th Cir. 1988), vacated, 490 U.S. 1016 (1989) 3, 13
Hernandez v. New York, 500 U.S. 352 (1991) 2, 14, 19
Hernandez v. Texas, 347 U.S. 475 (1954) 18
Hirabayashi v. United States, 320 U.S. 81 (1943) 12
Holland v. Illinois, 493 U.S. 474 (1990) 21
Jurado v. Eleven-Fifty Corp, 813 F.2d 1406 (9^th Cir. 1987) 16
Kania v. Archdiocese of Philadelphia, 14 F.Supp. 2d 730 (E.D. Penn. 1998) 16
Lane County v. Oregon, 7 Wall. 71 (1869) 24
Lau v. Nichols, 414 U.S. 563 (1974) 25
Long v. First Union Corp., 894 F.Supp. 933 (E.D. Virginia, 1995, aff'd, 86 F.3d 1151 (4^th Cir. 1996) 14, 16
Magana v. Tarrant/Dallas Printing, Inc., 1998 WL 548686 (N.D. Texas, 1998) 16
Mejia v. New York Sheraton Hotel, 459 F.Supp. 375  (S.D.N.Y. 1978) 16
Meyer v. Nebraska, 262 U.S. 390 (1923) 25
Nazarova v. INS, 171 F.3d 478 (7^th Cir. 1999) 16, 20, 22
Nevada v. Hall, 440 U.S. 410 (1979) 24
Oregon v. Mitchell, 400 U.S. 112 (1970) 24
Patterson v. De La Ronde, 8 Wall. 292 (1869) 25
Pejic v. Hughes Helicopters, 840 F.2d 667 (9^th Cir. 1988) 13
Prado v. L. Luria & Son, Inc., 975 F.Supp. 1349
(S.D. Fla 1997) 16
Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) 24
St. Francis College v. Al-Khazraji, 481 U.S. 604 (1987)  12
Sandoval v. Hagan, 197 F.3d 484 (11^th Cir. 1999) passim
Seltzer v. Foley, 502 F.Supp. 600 (S.D.N.Y. 1980) 19
Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir. 1983), cert. den. 466 U.S. 929 (1984) 11, 14, 22
Sugarman v. Dougall, 413 U.S. 634 (1973) 18
Toure v. United States, 24 F.3d 444  (2^nd Cir. 1994) 11, 15, 21, 22
Tran v. Standard Motor Products, Inc., 10 F.Supp.2d 1199 (D.Kansas, 1998) 16
United States v. Fordice, 505 U.S. 717 (1992) 12
United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970) 14
United States v. Perez, 658 F.2d 654 (9^th Cir. 1981) 19
U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) 24
Vasquez v. McAllen Bag & Supply Co., 660 F.2d 686  (5^th Cir. 1981) 14, 16
Vialez v. New York City Housing Auth., 783 F.Supp. 109 (S.D.N.Y. 1991) 21
Yniguez v. Arizonans for Official English, 69 F.3d 920 (9^th Cir. 1995),
             vacated, sub nom., Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) 15
Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926) 14

Constitutional Provisions and Statutes: