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

Whether Congress intended to create a private cause of action in federal court against a State agency that receives federal grant funds, thereby allowing a private individual to enforce disparate effect regulations promulgated by federal agencies under Section 602 of the Civil Rights Act of 1964 and bypass the federal agency review and enforcement process established by Congress.

Note: Amici respectfully suggest that the Question presented above fairly includes the following questions:

Whether a person's choice of language can be equated, under Title VI of the Civil Rights Act of 1964, to the person's national origin.

Whether Title VI of the Civil Rights Act of 1964 requires a state agency, which receives federal funds for some of its programs, to provide all services in any language demanded by applicants.

TABLE OF CONTENTS

Table of Authorities ii [on this web page, this section follows Conclusion]
Interest of Amici Curiae 1
Statement of Context 2
Summary of Argument 9
Argument 11
I. A Per Se Rule Equating Language With National Origin Has No Basis in Law or Fact, and Would Be Unworkable and Unwise 11
A. A Per Se Rule Equating Language and National Origin Has No Basis In Law or Fact 11
B. A Per Se Rule Equating Language and National Origin Is Unworkable 18
C. A Per Se Rule Equating Language and National Origin Is Unwise 21
II. Federal Rules Which Affect Core Rights of the States to Choose English for Internal Operations Must Be Explicit 23
Conclusion 26

INTEREST OF AMICI CURIAE
There are several amici curiae participating in this brief. Counsel for all parties have consented to the filing of this brief.

Pro-English (formerly known as English Language Advocates) is a non-profit advocacy organization dedicated to the preservation and promotion of a common language - English - in American political and governmental life. Pro-English is an unincorporated project of U.S., Inc., of Petoskey, Michigan, a non-profit charitable and educational corporation. Pro-English and its President, Robert D. Park, have been the principal advocates for "official English" policies before the federal courts, including in Arizonans for Official English and Robert D. Park v. Arizona, Nos. 95-974 and 98-167.

English First Foundation ("EFF") is a national, non-profit charitable organization which studies the significance of the use of English in the United States and educates the public about the importance of preserving English as the common language of the United States. EFF conducts research, educational programs, seminars and conferences, and provides legal counseling and assistance. EFF was an amicus curiae in Nos. 98-404 and 98-564, U.S. Dept. of Commerce v. U.S. House of Representatives, and Clinton v. Glavin.

The Center for American Unity ("CAU") is a national non-profit charitable and educational organization dedicated to preserving our historical unity as Americans into the 21st Century. CAU's education program emphasizes that America's common language, English, is the basic bond uniting and strengthening the United States.

Cong. Tom Tancredo, a United States Representative from the Sixth District of Colorado, sits on the Subcommittee on Oversight and Investigations of the House Committee on Education and Labor, which has jurisdiction over the Equal Employment Opportunity Commission, discussed at length herein. Cong. Tancredo sent and received the letters reprinted in the Appendix to this brief.

Cong. Spencer Bachus, Bob Barr, John Doolittle, Bob Goodlatte, Ernest Istook, Joe Knollenberg, William Lipinski, Charlie Norwood, Ron Paul, Bob Riley, Dana Rohrabacher, Nick Smith, and Bob Stump are United States Representatives from Alabama, Georgia, California, Virginia, Oklahoma, Michigan, Illinois, Georgia, Texas, Alabama, California, Michigan, and Arizona, respectively.

At its heart, this case is about whether a person's choice of language can be equated to the person's national origin.

Amici are deeply concerned about the effect of equating language and national origin. Amici are involved in efforts to promote the use of English as the language of government, and amici believe that equating language and national origin will both stop governments from requiring the use of English and force governments to provide services in languages other than English. Such an equation of language and national origin could have a substantial impact on amici's activities.

This is the third time in the last ten years that this Court has reviewed cases involving government's choice of language for internal operations: Hernandez v. New York, 500 U.S. 352 (1991), No. 89-7645; Arizonans for Official English v. Arizona, 520 U.S. 34 (1997), No. 95-974; and this case. Though this Court vacated Gutierrez, Judge Reinhardt considers the vacated opinion to still "represent the thinking" of the Ninth Circuit. Garcia v. Spun Steak, 13 F.3d 296, 301 (9^th Cir. 1994)(Reinhardt, J., dissenting from denial of reh'g en banc). So do Respondents, Pet. App. 238a (District Court quoting plaintiffs), and the Equal Employment Opportunity Commission. Amici App. 19A, n. 5 ("the validity of the case's reasoning was not affected because it was vacated on the ground of mootness."). 

This Court last looked at language-related issues in AOE v. Arizona, No. 95-974. At that time, the briefs of the parties and amici described current political battles on the federal level, including Congressional considerations of legislation to declare English the official language of the United States, to reform bilingual ballots and to eliminate bilingual education. In the intervening years, there has been relatively little Congressional activity on language-related questions, but enormous changes have occurred elsewhere, especially in the area of bilingual education.

In 1998, for example, California voters overwhelmingly adopted Proposition 227, an initiative driven by parents of limited-English proficiency ("LEP") children who wanted their kids to learn English. Steinberg, "Increase in Test Scores Counters Dire Forecasts for Bilingual Ban," The New York Times, August 20, 2000, P. A1. The initiative, known as "English for the Children," eliminated most existing bilingual education programs, which taught children in their native languages ("native language instruction"). The English for the Children initiative substituted an intensive program of English language instruction, teaching the children English by teaching them in English. Id.

Two school years later, test scores indicate that teaching the children in English was a smashing success. Test scores in most school districts jumped dramatically. Id.

In second grade, for example, the average score in reading of a student classified as limited in English increased 9 percentage points over the last two years, to the 28^th percentile from the 19^th percentile in national rankings, according to the state. In mathematics, the increase in the average score for the same students was 14 points, to the 41^st percentile from the 27^th. Id.

One of the principal backers of the prior method of "native language instruction" was Oceanside, Calif., Superintendent of Schools Ken Noonan, a founder of the California Association of Bilingual Education. Noonan, "I Believed That Bilingual Education Was Best . . Until the Kids Proved Me Wrong," The Washington Post, September 3, 2000, B1. Noonan fought Proposal 227, but when the voters passed it, he led Oceanside School District into strict compliance with the new law's requirements. Id. The results: Oceanside's test scores improved by 19 percentage points since implementation of the new law. Id.

"I thought it would hurt kids," Mr. Noonan said of the ballot initiative, which was called Proposition 227. "The exact reverse occurred, totally unexpected by me. The kids began to learn - not pick up but learn - formal English, oral and written, far more quickly than I ever thought they would."

Steinberg, supra. 
And the increase can be attributed to the new English immersion form of education:

Oceanside's performance was all the more striking when measured against the nearby district of Vista, where half the limited English speakers . . . continued in bilingual classes. In nearly every grade, the increases in Oceanside were at least double those in Vista, which is similar in size and economic background to Oceanside. Id.

The success of California's elimination of bilingual education is spurring similar efforts in Arizona, Colorado, Massachusetts, New York and other states. Id. In Connecticut, a new law offers English instruction and parental choice opportunities similar to those in the California initiative. Pub. Act 99-121, "An Act Improving Bilingual Education," http://www.cga.state.ct.us/ps99/act/pa/1999pa-00211-r00sb-01083-pa.htm.

At the same time, however, federal agencies are mounting an aggressive attack on English-language policies and programs. After hearing about the Oceanside School District's success, the federal Department of Education challenged Oceanside's implementation of the new English-language instructional techniques. Diehl, "O'side district ripped over bilingual ed," North County Times, Oct. 3, 2000, front page, reprinted at   http://www.onenation.org/0010/100300b.html (reporting on joint investigation between federal and state departments of education); Diehl, "Prop. 227 author criticizes investigation of O'side district," North County Times, October 4, 2000, reprinted at  http://www.onenation.org/0010/100400c.html ("The district could not document that they follow their own policies and procedures").

Similarly, the Equal Employment Opportunity Commission is steadily increasing its attacks on employers who wish their employees to speak English on the job. The EEOC has promulgated a rule which presumes that an employer's rule requiring English in the workplace is national origin discrimination. 29 C.F.R. § 1606.7. The EEOC reports that in 1996, it reviewed 77 national-origin discrimination challenges to workplace language rules. U.S. Equal Employment Opportunity Commission, "Court Speaks: English Only Rule Unlawful," Press Release, Sept. 19, 2000, www.eeoc.gov/press/9-19-99.html. That number jumped to 253 in 1999, and 355 by September of this year. Id.

As shown in more detail below, virtually every federal court which has considered the issue has rejected the EEOC's interpretation. For example, the Ninth Circuit recently rejected the EEOC policy as ultra vires.  Garcia v. Spun Steak, 998 F.2d 1480, 1489-90 (9^th Cir. 1993), cert. denied, 512 U.S. 1228 (1994) (upholding English-language workplace rule to stop workers from hurling racial insults at co-workers).

Yet a recent exchange of letters with Amicus Cong. Tom Tancredo, attached as an Appendix ("Amici App."), indicates that the EEOC is continuing to enforce its policy, even in jurisdictions which have rejected its interpretation.
Two dozen charges were resolved between August 1998 and August 1999. Amici App. 22A - 24A. Some of the charges were filed in appellate circuits which had rejected the guidelines. Amici App. 23A. The EEOC explains: "EEOC offices in a jurisdiction that has issued a decision contrary to the guidelines continue to conduct the administrative process pursuant to the guidelines. . . . Of course the EEOC would not file a suit to enforce the guidelines if such suit has been precluded by governing circuit law." Amici App. 23A - 24A. .

Building on the decision below and on the EEOC's new enforcement effort, the Administration issued Executive Order No. 13,166 (Aug. 11, 2000). Executive Order 13,166 makes the same equation of language and national origin that the lower court did in this case. Executive Order 13,166 requires federal agencies to "provide meaningful access . . . to ensure that the programs and activities they normally provide in English are accessible to LEP [Limited English Proficient] persons and thus do not discriminate on the basis of national origin." Supp. App. 11a, (emphasis added).

Executive Order 13,166 requires federal agency programs to be approved under and be subject to the Department of Justice's new Policy Guidance on assistance to LEP persons. Supp. App. 12a. The Justice Department's Policy Guidance similarly equates language and national origin, relying in part on the decision below. Supp. App. 19a, 21a. The Policy Guidance expands this equation to federal grantees. "Recipients who fail to provide services to LEP applicants and beneficiaries in their federally assisted programs and activities may be discriminating on the basis of national origin in violation of Title VI and its implementing regulations." Supp. App. 23a. In addition, because of the use of Title VI definitions of national origin in Title VII and IX cases, this equation of language and national origin will be applied in private employment cases, and perhaps other areas as well.

Under Executive Order 13,166 and the Justice Department Policy Guidance, it is not enough to be neutral about language. To avoid a charge of national origin discrimination, an agency, grantee or employer must affirmatively provide language assistance. Supp. App. 23a - 27a.

Though the extent of assistance is supposed to be determined by a variety of factors, at a minimum, the agency, grantee or employer must provide at least oral translation services if only one person requests it. Supp. App. 23a. The Policy Guidance requires, in most cases, at least the use of "one of the commercially available language lines to obtain immediate interpreter services." Supp. App. 24a. Though not stated, apparently the cost of such services, which can be as high as $4.50 per minute plus "set-up" fees, is to be borne by the agency, grantee or employer subject to a potential charge of national origin discrimination.

Thus, at the same time that States are actively using more effective means to bring persons who do not speak English into the educational and social mainstream, the Executive Branch is using the decision below to impair just those successful efforts. The Executive Branch, without any authorization by Congress or the courts, has equated language and national origin in a manner which will cause enormous amounts of litigation, and will stifle promising efforts to teach English to those who could benefit so much.

The crux of this dispute is the equation of a person's choice of language to the person's national origin. To have a private right of action, as asserted here, a claimant must come within one of the recognized Title VI classes; the class at issue in this case is "national origin." Here no particular language was singled out as a proxy for discrimination against a protected class, thus the question is whether a choice of using English (as opposed to choosing to use languages other than English) is national origin discrimination.

The answer must be no. Equating a person's language with the person's national origin has no basis in law or fact. There is no statutory language or legislative history in the civil rights laws which suggests such an equation.

Nor is there any judicial decision which finds such an equation in the civil rights laws. Though there have been some suggestions that language rules may be proxies for otherwise hidden national origin discrimination, the vast majority of decisions have rejected the equation of language and national origin without more.

There are some administrative interpretations which equate language choice to national origin. These interpretations, however, do not bind this Court. In addition, courts have overwhelmingly rejected those interpretations.

The equation of language to national origin also has no basis in fact, and would be both over- and under-inclusive. Spanish, for example, is the official language of at least 13 countries, impairing a determination of a speaker's ancestry. Many Hispanic-Americans do not speak Spanish, and many non-Hispanic-Americans do.

In addition, equating language and national origin would  be unworkable. This is not a case about English vs. Spanish, but about English vs. hundreds of languages. The courts have repeatedly recognized the tremendous burdens of translating hundreds of languages and refused to impose such burdens.

Finally, equating language and national origin would be unwise. Any recognition by the Court of such an equation would affect dozens of settled decisions, sparking an enormous number of new claims of discrimination in government, contracting, employment, housing and other areas.

Any such equation of language and national origin would affect "original power" core functions of States. Choice of language for internal functions has historically been left to the States. Federal intervention on language choice over a vast sweep of State programs will weaken the States' powers. The statutory or constitutional authority for any such intervention should be explicit. Absent a clear and explicit abrogation of those State powers, the States should be left to decide - through their own political processes - which language burdens to accept. There is no such clear and explicit abrogation of State power for the language choices in this case.

The decision below should be reversed.