English Only Update IX
Supreme Court Punts in
By James Crawford
March 4, 1997
Yesterday the U.S. Supreme Court declined to decide the constitutionality
of Arizona's English Only amendment – in effect, dismissing the case after
eight years of litigation without ruling on its merits. Article
28 of Arizona's constitution – also known as Proposition 106, adopted
by voters in 1988 – requires all levels of state and local government to
"act in English and no other language." Two lower federal courts
have overruled the measure as a violation of the First Amendment right
to freedom of speech for state employees and elected officials. But yesterday
the Supreme Court threw out those decisions on procedural grounds.
The unanimous, 35-page opinion
by Justice Ruth Bader Ginsburg, sets new limits for federal court review
of state laws – an apparent victory for foes of "judicial activism."
Clearly, during oral arguments last December, the justices were more intent
on sending such a message than on reviewing the constitutional issues raised
for Official English v. Arizona (Case No. 95-974).
For now the practical impact will be negligible, according to Arizona's
attorney general, Grant Woods. A separate challenge to Aricle 28, Ruíz
v. Symington, is under consideration by the Arizona Supreme Court
and the measure has already been ruled unconstitutional by a lower state
judge. So, until that case is resolved, the English Only amendment will
not be enforced, Woods told the Arizona
Daily Star. Any decision by the Arizona Supreme Court could,
of course, be appealed to the U.S. Supreme Court – further delaying a final
disposition of the case.
In yesterday's decision Justice Ginsburg cited several flaws in the rulings
of the federal district court for Arizona and
U.S. Circuit Court of Appeals:
Theoretically, it might still be possible for other aggrieved
employees – who still work for the state of Arizona – to file another lawsuit
in federal court alleging injury under Article 28. But Peter Tiersma of
Loyola Law School says that, according to Ginsburg's opinion, federal judges
"would have to await an authoritative interpretation from the Arizona
The Ruíz v. Symington case, now before the Arizona
Supreme Court, includes as plaintiffs several state lawmakers currently
in office. These include senators Victor Soltero (D-Tucson) and Joe-Eddie
López (D-Phoenix) and Rep. Linda Aguirre (D-Phoenix). This lawsuit,
which had been on hold pending a ruling by the U.S. Supreme Court, is expected
to proceed expeditiously.
Meanwhile, back in Washington, the political impact of yesterday's decision
is difficult to gauge. Last year Congressional opponents of English Only
legislation argued against voting on such measures until the Supreme Court
had ruled in the Arizona case. The House went ahead and passed H.R.
123, the "English Language Empowerment Act of 1996," by a
259-169 vote. But the Senate failed to act before
adjournment and so the bill died.
A new version of H.R. 123 has been reintroduced
in the 105th Congress. But thus far it appears to lack influential backers.
The lead sponsor, Rep. Randy "Duke" Cunningham (R-Calif.), has
a new committee assignment and no longer chairs the subcommittee on Early
Childhood, Youth, and Families, which has jurisidiction of the bill. The
new chairman, Rep. Frank Riggs (R-Calif.), is said to have little interest
in English Only legislation. The same is true of Rep. William Goodling
(R-Pa.), chairman of the full Committee on Education
and the Workforce, which would have to approve the bill. At this writing
no action has been scheduled. As became clear last summer however, all
of this could change quickly under pressure from the House Republican leadership.
Sen. Richard Shelby (R-Ala.) reintroduced a Senate version of the bill,
S. 323, on February 13. But again a supportive committee
chairman, Sen. Ted Stevens (R-Alaska), has moved on to greener pastures
(Appropriations). His replacement at the helm of the Governmental
Affairs Committee, Sen. Fred Thompson (R-Tenn.) is not known as an
Engish Only proponent. More important, Thompson will have his hands full
this year running an investigation into campaign finance abuses in the
English Only proponents predictably hailed the Supreme
Court ruling as a "victory." U.S.
English went so far as to claim that its amicus brief had guided Justice
Ginsburg's thinking. The group's president, Mauro Mujica, said he was glad
the court agreed with him that "it is inappropriate to tamper with
the will of the people after they have exercised their vote within the
Will of the people or tyranny of the majority? The Supremes
have sidestepped that determination, leaving it up to their Arizona counterparts
to decide whether English Only legislation is consistent with the Bill
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Copyright © 1997 by James Crawford. Permission
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