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 (9th 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 28th
percentile from the 19th
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 41st percentile from
the 27th. 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 (9th
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.
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 (11th
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 (9th
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 (9th
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 (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, 1222 (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).
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 (9th 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 (7th
Cir. 1999)(permitting deportation
notices in English); Carmona
v. Sheffield,
475 F.2d 738 (9th Cir.
1973)(permitting English benefit
termination notices);
Frontera v. Sindell,
522 F.2d 1215 (6th
Cir. 1975)(civil service exam
for carpenters can be in English);
Garcia
v. Spun Steak,
998 F.2d 1480, 1489-90 (9th
Cir. 1993), cert.
den.,
512 U.S. 1228 (1994) (rejecting
EEOC guidelines); 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.").
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 (9th
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 (9th 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