English Only Update VII
Supreme Court Hears
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
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
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.
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
"[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
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Copyright © 1996 by James Crawford. Permission
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