TO PART IV
The Question of Minority
By James Crawford
What would be the legal impact of an English Language
Amendment to the U.S. Constitution? There is no simple answer. First, there
is confusion about the intent of the Official English campaign. Does it
seek primarily to make a symbolic statement about the role of English as
our common language or to protect the dominant status of English by outlawing
all (or all but a few) public uses of other tongues? Second, there is uncertainty
over potential conflicts between an English Language Amendment and the
Constitution's more libertarian provisions. Broad governmental restrictions
on speech and on services for linguistic minorities would likely be inconsistent
with the First and Fourteenth amendments. Finally, the language rights
in question are poorly defined in American law. It is hard to assess what
might be lost without knowing what there is to lose. Precedents in this
area are limited, as U.S. courts and legislators are only beginning to
address the legal issues raised by language diversity. It was not until
the 1970s that special help was mandated for language-minority students
in public schools, that bilingual voting rights were established (and English
literacy tests abolished), and that non-English- speaking defendants were
guaranteed the services of a translator during criminal trials.
In a legal tradition oriented toward the liberties and
duties of individuals, rights that flow from group membership seem anomalous
to many Americans, affirmative action being the most obvious example. There
is predictable resistance to granting minority language speakers an entitlement
to special services. Without hesitation, federal courts have banned intentional
discrimination against individuals on the basis of language when it is
clearly a form of national-origin discrimination (prohibited under the
Civil Rights Act of 1964.) Judges have been reluctant, however, to order
bilingual assistance to ensure equal access to government for broad classes
of non-English speakers. The question inevitably arises: With immigrant
groups speaking scores of different languages these days, how can we accommodate
them all, each in their own tongue? Attempting to do so, warned one federal
judge, "would virtually cause the processes of government to grind
to a halt." <1> Language
rights advocates have rejected this argument as a red herring. The issue,
they say, is whether to address the needs of a few language minorities
in areas where they are concentrated – hardly a staggering burden when
one considers the societal benefits of bringing newcomers into the mainstream.
Moreover, there is the question of equity for linguistic
minorities who became U.S. citizens not through immigration, but through
annexation of their homelands. One small recognition of such claims is
embodied in the Voting Rights Act of 1965, which outlawed English literacy
requirements for voters (mainly Puerto Ricans) who had been schooled in
languages other than English on U.S. soil. Nevertheless, federal courts
declined to extend this principle to the Social Security Administration
in Soberal-Pérez v. Heckler, a case involving U.S.-born,
Spanish-speaking citizens who were denied access to the agency's proceedings
in their native tongue.
Bill Piatt details the contradictory precedents on language
rights in the United States. For example, the 1970 Negrón
decision recognized the inhumanity of trying an accused criminal in an
incomprehensible tongue and mandated that an interpreter be provided for
non-English-speaking defendants. But, as yet, no such right has been established
for parties in civil and administrative cases – divorce, welfare, adoption,
and other proceedings with consequences often as severe as criminal trials.
Meyer v. Nebraska (1923), the earliest
Supreme Court decision regarding the rights of linguistic minorities, relied
on the Fourteenth Amendment's due-process clause in striking down a restriction
on foreign language teaching, enacted during a period of anti-German xenophobia.
The court determined the law to be an unreasonable interference with pupils'
right to acquire knowledge, teachers' right to practice their profession,
and parents' right to control the education of their children. Still, it
carved out no firm prohibition on language-based discrimination and left
intact a state mandate for English as the medium of instruction.
Regarding the "right" to bilingual education,
the situation is similarly ambiguous. In Lau v.
Nichols (1974), the Supreme Court outlawed the longstanding
neglect of non-English-speaking students. Equal public education was "a
mockery," wrote Justice William O. Douglas, if it meant English-only
instruction for children who could not understand the language. The court
ruled that such students were entitled to special assistance in learning
English, although it stopped short of ordering bilingual education as the
only remedy for past discrimination. In the 1970s, however, federal civil
rights authorities did not hesitate to take that step with the so-called
Lau Remedies (subsequently withdrawn by the Reagan administration).
Also, as Martha Jiménez notes, some lower courts have mandated bilingual
programs based on local conditions and an evolving set of legal standards.
These cases normally involved Hispanic and Asian children, but in Martin
Luther King Jr. Elementary School Children v. Ann Arbor School District,
a federal judge ordered special help for speakers of Black English.
Bilingual ballots, authorized by the 1975 amendments to
the Voting Rights Act, are among the most symbolically charged fields of
language rights. The idea of voting in anything other than the national
tongue offends the civic assumptions of many Americans. According to the
melting pot myth, immigrants have always conformed to our ways – not vice
versa. But history is a poor advocate for the English-only ballot. As documented
by Castro v. State of California and PROPA v. Kusper,
literacy tests were long used to disenfranchise linguistic minorities,
as well as Afro-Americans. The new bilingual voting rights are not an entitlement
bestowed on all non-English speakers. Rather, they represent an attempt
to compensate for historic patterns of discrimination, in education as
well as voting, that excluded Hispanics, Asian Americans, and American
Indians from the political process. John Trasviña traces the evolution
of bilingual ballots and previews the debates likely to occur when the
law comes up for reauthorization in 1992.
Today the growth sector for language litigation is private
business. Conflicts are proliferating over "speak English only"
rules in the workplace and ordinances restricting foreign-language advertising.
Since 1987 the U.S. Equal Employment Opportunity Commission had prohibited
arbitrary language policies on the job – that is, English-only rules that
have no demonstrated business necessity – as a form of national-origin
discrimination. This position was upheld by a federal appeals panel in
Gutiérrez v. Municipal Court, although other courts
have ruled differently. In Asian American Business Group v. City
of Pomona, an attempt to regulate the use of Asian characters on
business signs was ruled to violate the First Amendment. And yet, as Edward
Chen explains, the case law in these areas is neither extensive nor consistent,
and many constitutional questions remain to be resolved.
The constitutionality of Official English measures has
long been at issue. In Yñiguez v. Mofford,
a federal judge invalidated Arizona's Proposition 106, passed by voters
in 1988, which required the state to "act in English and in no other
language," as an infringement of free-speech rights under the First
Amendment. But opponents' major avenue of attack has yet to be followed
by a court: the Equal Protection Clause of the Fourteenth Amendment. A
commentary by the Harvard Law Review analyzes this line of argument
and suggests how it might be pursued successfully. Because language – like
race, gender, and national origin – has previously served as a basis to
exclude, harass, or exploit unpopular groups, courts should exercise added
vigilance over government actions that single out non-English speakers.
To the extent that Official English measures fail to further legitimate
public purposes, unduly trample the rights of non-English speakers, serve
as an instrument of racial and ethnic bigotry, or erect obstacles to minority
participation in the political process, they may be in conflict with constitutional
guarantees of equal protection.
Predicting the precise effects of Official English remains
problematic. But the American Civil Liberties Union outlines what is at
stake with its detailed inventory of minority language services now provided
by the state of California. Although Proposition 63, the Official English
initiative approved in 1986, has so far been interpreted as purely symbolic,
an English Language Amendment to the U.S. Constitution might be a different
story. As the A.C.L.U. survey illustrates, a surprising variety of programs
could be jeopardized, affecting not only minority groups, but California's
population as a whole.
1. Carmona v. Sheffield, 325 F.Supp.
1341 (N.D. Cal. 1971), aff'd, 475 F.2d 738 (9th Cir. 1973).
COPYRIGHT NOTICE: From LANGUAGE LOYALTIES:
A SOURCE BOOK ON THE OFFICIAL ENGLISH CONTROVERSY, by James Crawford, published
by the University of Chicago Press. Copyright © 1992 by the University
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