English Only Update VII

              Supreme Court Hears
              Arizona Case

              By James Crawford

              December 5, 1996

Yesterday the U.S. Supreme Court heard oral arguments in Arizonans for Official English v. Arizona, its most significant language rights case in at least 20 years. But the justices showed no interest in the constitutional issues raised by Arizona's English Only measure, which has been overruled by lower courts as a violation of the First Amendment right to free speech. Instead, the hour-long session focused on procedural questions of standing, mootness, jurisdiction, and other arcana.

No ruling on the merits of English Only legislation appears to be forthcoming at least in this Supreme Court term.

By their questions and comments, the justices left little doubt that they plan to throw the case out of court. The key question is how far. Both legally and politically speaking, the implications could be substantial.

At minimum, the justices appear to have formed a consensus in favor of "vacating" a decision by the 9th Circuit Court of Appeals on procedural grounds. Such a ruling, in itself, would probably have no practical impact, since a federal district court has invalidated Article 28, the English Only amendment to Arizona's constitution. But several justices also seemed inclined to overturn that decision an action that would reinstate Article 28. A decision is expected sometime next spring.

Although the meaning of the English Only amendment the full sweep of its language restrictions remains a matter of debate, a Supreme Court reversal of both lower courts would jeopardize most if not all bilingual services now offered by the state of Arizona. It could also be seen as a political victory for the English Only forces at a time when similar legislation is likely to be pending in the 105th Congress.

To follow the Supreme Court's reasoning and the options it is now considering, a bit of background is necessary.

The amendment, also known as Proposition 106, was adopted by Arizona voters in 1988. It mandates what is arguably the most restrictive language policy ever adopted in the United States: "This State and all political subdivisions of this State shall act in English and no other language." With only a few exceptions, the measure applies to all branches of Arizona state and local government; all public documents, programs, and policies; and all state officials and employees in the performance of their duties.

Immediately after its passage, Article 28 was challenged by Maria-Kelly Yñiguez, a bilingual state employee, as a violation of her freedom of speech. To continue her practice of speaking and writing in Spanish, when necessary, to communicate with members of the public would put her job at risk, Yñiguez argued. Arizona's attorney general disagreed, issuing an opinion that the amendment "does not prohibit the use of a language other than English to facilitate the delivery of governmental services."

The district court sided with Yñiguez. In a 1990 decision, it found no merit in the attorney general's interpretation, which it termed "a remarkable job of plastic surgery on the face of the ordinance." The court further concluded that "Article 28 is so overbroad as to deter [third parties] from engaging in otherwise protected expression" and struck it down as unconstitutional.

The state of Arizona declined to appeal the district court decision. But in 1991, Arizonans for Official English (AOE) the group that had promoted the voter initiative was allowed to enter the case, although its standing to sue in federal court was disputed. Meanwhile, Yñiguez left her job with the state.

Nevertheless, the 9th Circuit moved ahead with the appeal. In 1995, it upheld and extended the reasoning of the district court. Writing for a 6-5 majority, Circuit Judge Stephen Reinhardt emphasized the chilling effect of Article 28, not only on the speech rights of state employees but, more importantly, on the "speech interests" of Arizona citizens i.e., their ability to communicate with government.

The 9th Circuit decision added that the "adverse impact of Article 28's overbreadth is especially egregious because it is not uniformly spread over the population, but falls almost entirely upon Hispanics and other national origin minorities. Since language is a close and meaningful proxy for national origin, restrictions on the use of languages may mask discrimination against specific national origin groups or, more generally, conceal nativist sentiment. ...

"[T]he diverse and multicultural character of our society is widely recognized as being among our greatest strengths. Recognizing this, we have not, except for rare repressive statutes ... tried to compel immigrants to give up their native language; instead, we have encouraged them to learn English. The Arizona restriction on language provides no encouragement, however, only compulsion; as such, it is unconstitutional."

Fast-forward to December 4, 1996. ...

Barnaby Zall, the attorney for AOE, had barely begun his argument in favor of Article 28 when he was interrupted by Justice Ginsburg. She wanted to know why the case was not considered moot back in 1989, when Arizona's attorney general issued his opinion. "Why didn't that end the controversy, when Yñiguez was in no danger of firing?" she asked. In other words, why wasn't the case dismissed by the district court at that point?

Justice Scalia picked up this line of argument, suggesting that, in light of the attorney general's assurances, Yñiguez was deluded to believe that her job and her freedom of speech were ever jeopardized. Thus there was no "chilling" of her First Amendment rights. "Wouldn't an unrealistic threat produce an unrealistic chill?" he quipped. This concern was echoed in various ways by Justices Souter, O'Connor, Kennedy, Breyer, and Rehnquist.

The fact that Yñiguez left her job in 1990, before the appelate phase of the case, led several justices to express impatience with the 9th Circuit decision to hear the appeal. Justice Scalia accused the appellate judges of looking for technicalities "to keep the case alive" and thereby issue a precedent-setting decision. According to National Public Radio, this term the Supreme Court has chosen to review a disproportionate number of cases from the 9th Circuit out of a desire to rein in "judicial activist" decisions that overrule state laws. Four of those cases involve opinions by Judge Reinhardt.

Justices Kennedy and O'Connor also expressed skepticism whether AOE an unincorporated political action committee should have standing to pursue the appeal. "You were simply the mechanism for putting [Proposition 106] on the ballot. No power was delegated to you," Kennedy told Zall. But Chief Justice Rehnquist wondered whether citizens should have some recourse when as in this case state officials fail to defend a voter initiative in federal appeals court. Robert Pohlman, the attorney for Yñiguez, responded that the voters could express their disapproval in the next election.

Justice O'Connor added that state courts are the proper forum for such citizen complaints. The Arizona Supreme Court will soon hear a separate case challenging Article 28, whose constitutionality has been upheld by lower state judges.

Late in the session, Justice Breyer, joined by Justices Ginsburg and Souter, suggested an openness to overruling the 9th Circuit while leaving the federal district court ruling intact. But in response to Zall who continued to argue for a Supreme Court ruling on the merits of Article 28 Ginsburg noted that this decision would be no more binding on other courts than "a law review article."

Justice Stevens, often described as the most liberal member of the court, said little during yesterday's oral arguments. Justice Thomas, one of the most conservative members, said nothing as per his custom.

Following the session, English Only proponents held a press conference on the steps of the court and expressed confidence about Congressional passage of a federal "Language of Government" law next year. In August, the House passed such a bill (H.R. 123) by a wide margin, but the 104th Congress adjourned without Senate action on the measure. Robert Park, director of Arizonans for Official English, said both House and Senate Republican leaders had promised to schedule a vote on the bill early in the next session.

President Clinton, who signed an Official English statute as governor of Arkansas, has threatened to veto such legislation at the federal level.

Comments? Email me at: jwcrawford@compuserve.com

Copyright © 1996 by James Crawford. Permission is hereby granted to reproduce this article for free, noncommercial distribution, provided that credit is given and this notice is included. Requests for permission to reproduce in any other form should be forwarded by email.