U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
May 14, 1996
The Honorable Ted Stevens
Dear Mr. Chairman:
This letter is in response to your request for the Administration's views on S. 356, "The Language of Government Act of 1995." This bill would halt Federal government activities conducted in languages other than English. It also would impose various restrictions on the use of other languages for official Federal government activities. For the reasons set out in the attached memorandum, the Administration strongly opposes S. 356.
We also have received a copy of your draft amendment which would address some, but not all, of the concerns raised in this letter. The amendment would exempt indigenous Native American languages in educational settings, activities conducted pursuant to Federal voting law, communications between Members of Congress and their constituencies, and acts protecting public health and safety. However, the amendment does not address provisions of S. 356 that would create a private right of action for anyone suffering a perceived injury due to the Government's communication in another language. The amendment does not clearly protect the rights of all United States residents. Most importantly, your amendment, while an improvement, is not able to correct the underlying problem of official language legislation: that it is unnecessary, divisive, and inefficient. Therefore, the Justice Department opposes the amendment.
The attached memorandum sets forth our concerns about S. 356 in detail and I would like to address a few of them here. English is universally acknowledged as the common language of the United States. But our language alone has not made us a nation. We are united as Americans by the principles enumerated in the Constitution and Bill of Rights: freedom of speech, representative democracy, respect for due process, and equality of protection under the law.
Language barriers are among the greatest obstacles to effective law enforcement in immigrant communities. S. 356 would increase these obstacles, particularly in matters involving the Drug Enforcement Administration and the Immigration and Naturalization Service, including the Border Patrol.
S. 356 would decrease administrative efficiency and exclude Americans who are not fully proficient in English from education, employment, voting and equal participation in our society. It effectively would repeal the minority language provisions of the Voting Rights Act and is inconsistent with the longstanding principle of government-to-government relations with Indian tribes. Furthermore, S. 356 would create an unnecessary private right of action, inviting frivolous litigation against the Government.
I should also note that the bill is subject to various constitutional attacks. For example, in contrast to your amendment, which exempts communications between Members of Congress and their constituents, S. 356, if it applies to the legislative franchise of Members of Congress, violates the Speech or Debate Clause, U.S. Const., Art. I, section 6. If S. 356 were enacted, Members of Congress and their staffs would be hampered in communicating effectively with constituents and members of the public who are not fully proficient in English in press releases, newsletters, responses to complaints or requests for information, or speeches delivered outside the Congress. The bill is subject to attack upon the ground that its stated purposes are pretexts for invidious ethnic or national-origin discrimination. Under the Equal Protection Clause, "an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one [group] than another." Washington v. Davis, 426 U.S. 229, 242 (1976). The bill also is subject to attack on the ground that it violates the due process rights of non-English speakers who are parties to civil and administrative proceedings involving the Government.
Thank you for requesting the Administration's views on S. 356, the Language of Government Act. The Office of Management and Budget has advised that there is no objection to submission of this report from the standpoint of the Administration's program.
Justice Department Views on S. 356,
1. Effect of the Bill
S. 356 would eliminate all governmental actions that are conducted in languages other than English, except those actions falling within enumerated exceptions. S. 356 declares English the official language of the Government. See S. 356, §3(a).(1) It also provides that "[t]he Government shall conduct its official business in English." Id. S. 356 defines "official business" generally as "those governmental actions, documents, or policies which are enforceable with the full weight and authority of the Government," but makes clear that certain governmental actions which otherwise qualify as "official business" are not subject to the general ban on the use of languages other than English. Id. Governmental actions which do not constitute "official business" for purposes of S. 356, and which therefore could be taken or conducted in languages other than English, include:
S. 356 would repeal all existing Federal laws that "directly" contravene its provisions banning Government communication in languages other than English, "such as [laws that require] the use of a language other than English for official business of the Government." Id. at §2(b).(2) In sum, S. 356 would eliminate all governmental actions conducted in a language other than English, except those actions expressly exempted from the bill's definition of "official business."
S. 356 states that it would not directly discriminate against or restrict the rights under existing laws of any individual already in the United States. But it is difficult to see how this bill would "promote efficiency and fairness to all people" and not "discriminate against or restrict the rights of" individuals in the United States who speak a language other than English and have limited English proficiency (LEP).
The bill would have a direct, adverse impact on Federal efforts to ensure equal access to education, access to federally funded Government services, participation in the electoral process, and participation in the decennial census. It would segregate LEP communities from the political and social mainstreams by cutting off Government dialogue with persons having limited English proficiency, by prohibiting language assistance by Federal government employees, and by limiting the delivery of Government services to many taxpaying Americans not proficient in English who otherwise might not be aware of available services. Clearly, efforts to integrate these political communities would be better served through full governmental support of English language instruction rather than limiting access based upon language abilities.
2. There Exists No Problem Requiring the Designation of English as the Official Language
S. 356 proposes to declare English the official language of the United States for all Federal government business. This declaration is unnecessary. The overwhelming majority of the Federal Government's official business is conducted in English and over 99.9 percent of Federal government documents are in English.(3) According to a recent GAO study, only 0.06 percent of Federal government documents or forms are in a language other than English, and these are mere translations of English documents. These non-English documents, such as income tax forms, voting assistance information, some decennial census forms, and information relating to access to medical care and to Government services and information, were formulated to assist taxpaying citizens and residents who are LEP and are subject to the laws of this country.
As the President has stated, there has never been a dispute that English is the common and primary language of the United States. According to the 1990 Census, 97 percent of all residents speak English at least well. The 1990 Census also reports that although 13.8 percent of residents speak languages other than English at home, 79 percent of these residents above the age of four speak English "well" or "very well." These figures demonstrate that there is no resistance to English among language minorities. In fact, there is an overwhelming demand for adult English language classes in communities with large language minority populations. For example, in Los Angeles, the demand for these classes is so great that some schools operate 24 hours per day and 50,000 students are on the waiting lists citywide. In New York City, an individual can wait up to 18 months for adult English language classes.
In very few instances, languages other than English are used in official Government business. In these instances, the usage may promote vital interests, such as national security; law enforcement; border enforcement; civil rights; communicating with witnesses, aliens, prisoners or parolees; and educational outreach to inform people of their legal rights and responsibilities or to ensure access to Government services, such as police protection, public safety, health care and voting. In all of these areas, S. 356 would limit the effectiveness of Government operations by preventing adequate and appropriate communications between Government officials or employees and the public.
Language barriers are among the greatest obstacles to effective law enforcement in immigrant communities. The use of a language other than English is indispensable in some of these efforts. Investigations, reporting, and undercover operations may require the use of a language other than English, particularly in matters involving the Drug Enforcement Administration (DEA), and the Immigration and Naturalization Service (INS), including the Border Patrol.
Furthermore, S. 356 would prohibit the use of interpreters and the use of another language by Government lawyers and employees while interviewing complaints or witnesses or reviewing witness statements or foreign documents. Also, the prohibition of interpreters in judicial and administrative proceedings, especially in civil, immigration, and some criminal matters, would raise serious due process concerns, as discussed below. A requirement that Federal government employees use only English would dramatically hamper attorneys' abilities to perform their duties effectively.
3. S. 356 Would Generate Frivolous Litigation and Chill Legitimate Government Action
S. 356 would create a private cause of action for anyone who believed that he or she had been injured by the Federal government's communication in a language other than English. The bill would permit a complaining individual to sue the Government in Federal court for damages, equitable relief and attorney fees.
It is unclear what harm S. 356 is intended to prevent or what rights the cause of action would protect. Virtually all of the Federal government's official business is conducted in English. Therefore, actual injury to an individual due to a failure to conduct all activities in English is highly conjectural. This provision is clearly unnecessary.
Moreover, the language in S. 356 creating this cause of action is vague and would encourage lawsuits against the Government by "any person alleging injury arising from a violation" of these proposed laws. The potential for recovering attorney fees would invite frivolous litigation against the Government and further clog our Federal court system. More importantly, it would have a chilling effect upon Federal agencies and employees and deter them from performing vital tasks and delivering important informational services in languages other than English.
4. S. 356 Is Subject to Serious Constitutional Challenge
A. Although it is difficult to predict how the Supreme Court ultimately would resolve arguments that S. 356 violates constitutional protections,(4) a case raising constitutional challenges to a similar State statute is now pending before the Court.
Late last year, the United States Court of Appeals for the Ninth Circuit relied upon the First Amendment to invalidate an English Only provision. In an en banc decision, Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir. 1995), cert. granted, 64 U.S.L.W. 3635, 3639 (U.S. Mar. 25, 1996) (No. 95-974), a divided court declared that English-only requirements in the Arizona constitution were facially overbroad in violation of the free speech rights of State government employees. The pertinent provision of the Arizona constitution provides that English is the official language of the State of Arizona. It also requires that, with certain exceptions, the State and its political subdivisions, including all government officials and employees performing government business, communicate only in English. See id. at 928. The Ninth Circuit majority determined that the Arizona provision constituted a prohibited means of promoting the English language, stating that "[t]he speech rights of all of Arizona's state and local employees, officials, and officers are ... adversely affected in a potentially unconstitutional manner by the breadth of [the provision's] ban on non-English governmental speech." Id. at 932.
The Ninth Circuit majority also suggested that the First Amendment rights of Arizona residents to receive information are implicated by the ban, stating that:
[b]ecause [the Arizona constitutional provision] bars or significantly restricts communications by and with government officials and employees, it significantly interferes with the ability of the non-English-speaking populace of Arizona "`to receive information and ideas.'"
Id. at 941 (citation omitted.)
The difference of opinion among the Ninth Circuit judges in Yniguez centered mainly on the breadth of the government's authority to regulate the speech of its employees when they are performing official governmental duties. The dissent argued that the Government had broader discretion because the speech at issue resembled private concern speech more than public concern speech. Although the dissent's argument is not without force, the existence of the Ninth Circuit majority en banc decision supports our concern about the bill's vulnerability to First Amendment challenge.(5)
On March 24, 1996, the United States Supreme Court granted certiorari to review the decision of the Ninth Circuit in that case. The case will be argued by counsel and decided by the Court during the 1996 term, which begins in October.
Second, if the bill applies to the legislative franchise of Members of Congress, it violates the Speech or Debate Clause, U.S. Const., Art. I, section 6. Moreover, if S. 356 were enacted, Members of Congress and their staffs would be hampered in communicating effectively with constituents and members of the public who are not fully proficient in English, for example, in press releases, newsletters, responses to complaints or requests for information, or speeches delivered outside the Congress. A court well could conclude that an application of S. 356 that prevented a Federal legislator from communicating effectively with the persons he or she represented interfered with a core element of the process of representative government established by the Constitution. Similar concerns would be raised by any effort to apply S. 356 to communications by the President and other Executive branch officials in their dealings with constituents.
B. S. 356 also might be subject to challenge on various equal protection grounds. The Constitution prohibits discrimination on the basis of ethnicity or national origin. See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Several ethnic and national origin minority groups in this country include large numbers of persons who do not speak English proficiently. Where a statutory classification expressly utilizes a suspect criterion, or does so in effect by a transparent surrogate, the Supreme Court has subjected the classification to strict scrutiny without requiring a demonstration that the legislature's purpose was invidious. See Shaw v. Reno, ___ U.S. ___, 113 S. Ct. 2816, 2824 (1993).
In his opinion for the Court in Hernandez v. New York, 500 U.S. 352 (1991), Justice Kennedy discussed the link between race, ethnicity, and language. In that case, the Court rejected the petitioner's claim that a prosecutor had unlawfully discriminated, where the prosecutor exercised a peremptory challenge to include a juror on the ground that the juror might have difficulty accepting a translator's rendition of Spanish-language testimony. Justice Kennedy wrote, "It may well be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis." Id. at 371 (plurality opinion). Additionally, in its equal protection analysis, the Court has acknowledged that an individual's primary language skill often flows from his or her national origin. See Yu Cong Eng v. Trinidad, 271 U.S. 500, 513 (1926); see also Meyer v. Nebraska, 262 U.S. 390, 401 (1923) (recognizing the differential effect of English-only legislation).
S. 356 also is subject to attack upon the ground that its stated purposes are pretexts for invidious ethnic or national-origin discrimination. If enacted, the language restrictions contained in S. 356 presumptively would have a disproportionate, negative impact on individuals who were not born in the United States or other English-speaking countries, and indeed, on many native-born citizens whose "cradle tongue" is not English. Under the Equal Protection Clause, disproportionate racial, ethnic or national origin impact alone is insufficient to prove purposeful discrimination. Washington v. Davis, 426 U.S. 229, 239 (1976). However, "an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one [group] than another." Id. at 242.
Practically all of the persons whom the language restrictions would deny effective access to the governmental services would be members of ethnic or national origin minority groups. In some immigrant and national origin minority communities throughout the country, high percentages of community members would be negatively affected by the proposed ban on communications in languages other than English. A court could find that the disproportionate, negative impact on these communities, coupled with negative sentiment toward recent immigrants or non-English speakers, demonstrated invidious purpose.
C. The bill also would be subject to attack on the ground that it violates the due process rights of non-English speakers who are parties to civil and administrative proceedings involving the Government. A number of Federal courts have held that due process requires the use of a translator in a deportation proceeding where the alien involved does not understand English. See Ganarillas-Zambrana v. Bd. of Immigration Appeals, 44 F.3d 1251, 1257 (4th Cir. 1995); Drobny v. INS, 947 F.2d 241, 244 (7th Cir. 1991); Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir. 1980), cert. denied, 456 U.S. 994 (1982). The courts have recognized an alien's constitutional right to have proceedings communicated in a language the alien can understand, despite the fact that deportation proceedings are civil in character and therefore, less deserving of the full panoply of due process protections required in criminal proceedings. See Abel v. United States, 362 U.S. 217, 237 (1960).
The immigration setting is only one example of how a due process challenge could be posed in an administrative or civil, judicial proceeding. The prohibition of interpreters in any such proceedings has serious implications for the due process rights of private parties with limited English proficiency.(6)
5. S. 356 Would Impair Relations with Native Americans
The broad language of S. 356 is at odds with the longstanding principle of government-to-government relations between the Federal government and Indian tribes. From its earliest days, the United States has recognized that Indian tribes possess attributes of sovereignty. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, (1831). In addition, in early Indian treaties, the United States pledged to "protect" Indian tribes, thereby establishing one of the bases for the Federal responsibility in our government-to-government relations with Indian tribes. See Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942). These principles – the sovereign powers of Indian tribes to engage in self-government and the Federal trust responsibility to Indian tribes – continue to guide our national policy toward Indian tribes.
Pursuant to this national policy, Congress has enacted numerous statutes that affirm the authority of Indian tribes to engage in self-governance, see e.g., Indian Self-Determination Act, 25 U.S.C. §450; Indian Tribal Justice Support Act, 25 U.S.C. §3601, and which seek to preserve Indian culture, see e.g., Native American Graves Protection and Repatriation Act, 25 U.S.C. §3001. In the Native American Languages Act, 25 U.S.C. §§2901-2905, Congress combined the policies of self-governance and cultural preservation in a single piece of legislation. See also 25 U.S.C. §2502(d). Recognizing that Indian languages are an essential aspect of tribal culture, this Act authorizes tribes to "preserve, protect, and promote the rights and freedom of Native Americans to use, practice, and develop Native American languages." 25 U.S.C. §2903. To this end, the Act affirms the right of Indian tribes to conduct instruction in Native American languages in federally funded schools in Indian country and allows exceptions for teacher certifications for certain Federal programs where these certifications would hinder the employment of qualified teachers of Native American languages. Id.
If broadly construed, S. 356 could conflict with the specific mandates
found in the Native American Languages Act and related statutes. These
laws would be repealed if S. 356 were enacted. This would impede severely
Federal government relations with Native Americans.
6. S. 356 Could Be Read to Limit Bilingual Education, Causing LEP Students to Fall Behind in School
S. 356 would repeal all laws which conflict with its purpose of limiting all official Government business to the English language. The impact could be devastating to LEP children in this country.
For example, S. 356 might be read to conflict with and therefore repeal the Bilingual Education Act, Title VII [of the Elementary and Secondary Education Act], which assists school districts in meeting their obligations under the Civil Rights Act of 1964, and with the Supreme Court ruling in Lau v. Nichols, 414 U.S. 563 (1974). Both established that school districts have a responsibility to provide equal educational opportunity to LEP students. Hence, Title VII provides direct Federal funds to implement programs targeted toward assisting linguistically diverse students These programs assist LEP students master English and achieve in all academic areas.
The Bilingual Education Act already stresses the need to promote a child's rapid learning of English. As President Clinton recently commented on bilingual education, "[t]he issue is whether children who come here [or whose "cradle tongue" is not English] while they are learning English, should also be able to learn other things. ... The issue is whether or not we're going to value the culture, the traditions of everybody and also recognize that we have a solemn obligation every day in every way to let these children live up to the fullest of their God-given capacities."(7) Bilingual education helps ensure that LEP children learn English while remaining current in other subjects. Otherwise, language minority children who are unable to keep up with their English-speaking classmates fall behind in coursework and are more likely than other children to drop out of school.
7. S. 356 Would Repeal Minority Language Provisions of the Voting Rights Act, Limiting Meaningful Electoral Participation by Language Minority Populations
In addition, S. 356 would effectively repeal the minority language provisions of the Voting Rights Act (VRA) because they are in conflict. Where S. 356 requires the use of only English, the VRA requires the use of a language other than English in enforcement efforts. The VRA has two provisions, Section 203 and Section 4(f), that protect United States citizens who are not fully proficient in English. These provisions require covered jurisdictions to provide the same information, materials, and assistance provided to English-speaking citizens to minority language citizens in a language they can better understand, to enable them to participate in the electoral process as effectively as English-speaking voters.
Section 203 was added to the VRA in 1975, after Congressional findings that large numbers of American citizens who spoke languages other than English had been effectively excluded from participation in our electoral process. The rational for Section 203 was identical to and "enhance[d] the policy of Section 201 of removing obstructions at the polls for illiterate citizens." S. Rep. No. 295, 94th Cong., 1st Sess. (1975) at 37. Congress recognized, as had the Federal courts, that "meaningful assistance to allow the voter to cast an effective ballot is implicit in the granting of the franchise." S. Rep. No. 295, 94th Cong., 1st Sess. (1975) at 32. Congress found that the denial of the right to vote among such citizens was "directly related to the unequal educational opportunities afforded them, resulting in high illiteracy and low voting participation." 42 U.S.C. §1973aa-1a(a). The judgment Congress rendered in 1975 on this regime showed that it understood that historically, minority language individuals have not had the same educational opportunities as the majority of citizens.
The VRA helps many Native Americans and some other language minority citizens, especially older individuals, who continue to speak their traditional languages and continue to be affected by the lack of meaningful educational opportunities during their school years. In addition, over 3.5 million Puerto Ricans have Spanish as their native tongue, and they may require some language assistance in casting an informed ballot. Also, many Hispanic citizens who attended school in the Southwest and in many other parts of this country as late as the 1950s were educated in segregated schools. Some of these citizens still need language assistance.
As Senator Orrin Hatch noted in sponsoring the 1992 extension of Section 203 of the Voting Rights Act, "[t]he right to vote is one of the most fundamental of human rights. Unless the Government assures access to the ballot box, citizenship is just an empty promise. Section 203 of the Voting Rights Act, containing bilingual election requirements, is an integral part of our Government's assurance that Americans do have such access. ..." S. Rep. No. 315, 102d Cong., 2d Sess., 1992 at 134.
In fact, Congress has recognized and understood the need for minority language voting assistance. It has extended Section 203 twice and the provision is now in effect until 2007. Each enactment and amendment of Section 203 enjoyed strong bipartisan support and the support of the Ford, Reagan and Bush Administrations. This Administration recently testified in favor of the minority language provisions.
Section 203 is carefully targeted toward those communities with high numbers of language minority, United States citizens of voting age, who, according to the Census, are not fully proficient in English. Thus, as English-language proficiency increases among the language minority population, minority language coverage should diminish.
Rates of both voter registration and actual participation in elections by minority language individuals have increased since Section 203 was enacted. We are convinced that providing bilingual materials, instruction, and assistance makes a real difference at the polls for minority language citizens with limited English language abilities. The effect of enacting S. 356 and thereby rescinding Section 203 and the other minority language protections of the VRA would be to disenfranchise an American minority community that only recently has had the opportunity to engage meaningfully in participatory democracy. Those who still would vote, without the benefit of the same information English-speaking citizens receive but in a language they better understand, would be less informed and more dependent upon others to cast their votes.
8. S. 356 Would Make Government Programs Less Efficient
The language of S. 356 claims that the "use of a single common language in the conduct of the Federal government's official business will promote efficiency and fairness to all people." Again, it is unclear how this would occur. To the contrary, S. 356 would promote administrative inefficiency and the exclusion of LEP persons from access to the Government and its services. S. 356's mandate for "English only" in Government would emasculate Government agencies and other governmental bodies. It would prevent them from making particularized judgments about the need to utilize languages in addition to English in appropriate circumstances. It is in the best interest of the Government – as well as its customers – for the public to understand clearly Government services, processes and their rights.
The Government should not be barred from choosing in specific circumstances to communicate with its LEP citizenry in languages comprehensible to these persons. S. 356 would hinder the implementation of law enforcement and other governmental programs, such as tax collection; water and resource conservation; decennial census data collection; and promoting compliance with the law, e.g., by providing bilingual investigators and providing translations of compliance, public, or informational bulletins issued by Federal agencies.
9. S. 356 Is Inconsistent with Our Pluralistic Society
Finally, S. 356 would promote division and discrimination rather than foster unity in America. We fear that passage of S. 356 would exacerbate national origin discrimination and intolerance against ethnic minorities who look or sound "foreign" and may not be English proficient. It would erect barriers to full access to and participation in the democratic government established by the Constitution for all of the Nation's people.
In fact, the Justice Department's Community Relations Service has used the languages other than English strategically and successfully to help ease occasional community and racial conflicts through mediation, negotiation and conciliation, and community outreach. Prohibiting the use of languages other than English would undermine Government efforts to avoid conflict through peaceful mediation and improvement of community relations and may escalate racial and ethnic tensions in some areas in this country.
English is universally acknowledged as the common language of the United
States. The passage of S. 356 would decrease administrative efficiency
and exclude Americans who are not fully proficient in English from education,
employment, voting, and equal participation in our society. In these fiscally
difficult times, Government efficiency and economy would be better promoted
by allowing Government agencies to continue their limited use of other
languages to execute their duties effectively.
1. S. 356 defines "Government" as "all branches of the Government of the United States and all employees and officials of the Government of the United States while performing official business." Id. at §3(a).
2. S. 356 appears to eliminate only Federal
laws which mandate Government communication in languages other than English.
The bill provides that "[the] Act (and the amendments made by [the]
Act shall not preempt any law of any State." Id. at
4. Several Federal courts have held that the constitutional
guarantees of due process and equal protection do not impose an affirmative
duty upon the government to provide routine government services in languages
other than English. See, e.g., Guadalupe Org., Inc. v. Temple Elementary
School Dist., 587 F.2d 1022 (9th Cir. 1987); Carmona v. Sheffield,
475 F.2d 738 (9th Cir. 1973); Toure v. United States, 24
F.3d 444 (2d Cir. 1994); Soberal-Perez v. Heckler, 717 F.2d
36 (2d Cir. 1983), cert denied, 466 U.S. 929 (1984); Frontera
v. Sindell, 522 F.2d 1215 (6th Cir. 1975).
5. Although the majority and dissent were sharply divided
on the First Amendment issue, at least two dissenting judges left open
the possibility that the Arizona provision was unconstitutional on other
grounds. See id. at 963 (Kozinski, J., dissenting).
6. Our comments in this letter do not address the question
of how the language requirements of S. 356, if enacted, should be implemented
in light of the serious constitutional concerns that we have identified.