The Leadership Conference on Civil and Human Rights

Volume 8 no. 4

ENGLISH-ONLY INITIATIVES BEFORE THE CONGRESS

The movement to make English the "official" language of the

United States has taken on major national dimensions. Twenty-one states already have enacted laws declaring English their official language. In the 104th Congress, numerous "English-Only" proposals have been introduced and last month the Supreme Court agreed to review the Ninth Circuit's decision, Yniguez v. Arizonans for Official English, challenging Arizona's official English law.

While English-Only proposals have been introduced in every Congress since the 97th Congress, never before has the Congress been so ardent in pushing the issue. Both supporters and opponents agree that English proficiency is very important for success and participation in American society. The debate centers on the most effective means to achieve that end. Supporters of English-Only initiatives say one language is needed to unify the country. They point to the situation in Quebec, where voters narrowly voted against seceding from Canada, as proof that language divisions often lead to other divisions. Opponents maintain that English already is the common language of our country, and that the most effective way to ensure that non-English speakers learn English is to provide adequate funds to increase the availabitity of English as a Second Language (ESL) classes. Thus far, seven official-English bills and resolutions have been introduced in the 104th Congress and both the House and Senate have held several hearings on the matter (testimony is available from LCEF). The bills are:

H.J. Res. 109, The English Language Amendment, Rep. John Doolittle (R-CA);

H.R. 123, The Language of Government Act of 1995, Rep. Bill Emerson (R-MO);

H.R. 345, The Language of Government Act of 1995, Rep. Owen Pickett (D-VA);

H.R. 739, Declaration of Official Language Act of 1995, Rep. Toby Roth (R-WI);

H.R. 1005, The National Language Act of 1995, Rep. Peter King (R-NY);

S. 175, The Language of Government Act of 1995, Sen. Richard Shelby (R-AK);

S. 356, The Language of Government Act of 1995, Sen. Richard Shelby (R-AK).

At issue at the first hearing before the House Economic and Educational Opportunities Subcommittee on Early Childhood, Youth and Families was the federal government's role in encouraging non-English speakers to learn the language. Rep. Peter King (R-NY), sponsor of the National Language Act of 1995 (H.R.1005), argued that by mandating multilingual programs and services, the federal government discourages non-English speaking citizens from learning English. He cited the example of bilingual education which he called a "costly failure."

In his testimony, Rep. King referred to a New York City Board of Education's report showing that limited English proficient children who were taught in English fare better than those who received instruction in their native language. A similar longitudinal study, conducted by David Ramirez of California State University and confirmed by the National Academy of Sciences, concluded that children in transitional and maintenance bilingual programs were doing better at learning English than students in English-only immersion programs. Another study, due out later this year by two George Mason University professors, also highlights the value of bilingual education programs.

Rep. Ed Pastor (D-AZ), Chairman of the Congressional Hispanic Caucus, maintained that non-English speakers were learning English at a faster rate than ever before. He stated:

"Hispanics and other new residents here recognize the economic imperative of learning the language spoken by the majority. This trend is accelerating, with the demand for English classes far exceeding the capacity of our schools and other language instruction centers."

The latest statistics do indicate that the supply of English as a Second Language classes has not kept up with the demand. In Los Angeles, for example, the demand is so great that some schools operate 24 hours a day and 50,000 students remain on waiting lists. New York City faces a similar shortage as individuals may wait up to 18 months for English as a Second Language classes.

The subcommittee held a second hearing in November and heard from several individuals who had immigrated to the United States and learned English as their second language. Also testifying were representatives of advocacy groups supporting and opposing the initiatives, English First and the American Civil Liberties Union (ACLU) respectively.

Charles Gogolak, an ex-Washington Redskin field goal kicker and a native Hungarian, testified that legislating English as the common language was needed as a symbolic measure to bind this country together. He noted: "Recently we have had in this nation a modern orgy of proliferation of rights demanded by every imaginable group interest. As a consequence, our social fabric and shared moral common ground are visibly tearing. A common shared language is one of the most important binding traits we have."

In his testimony, Edward Chen, Staff Counsel at the ACLU of Northern California, stated his belief that English-Only bills would interfere with government's efficienct delivery of services. He testified:

"What few services and publications are provided in multiple languages make government more efficient, not less efficient as English-only proponents contend. Barring the government from choosing in specific circumstances to communicate with its non-English speaking citizenry in languages compre- hensible to these communities will result in miscommun-ications and hinderthe implementation of governmental policies."

He added: "...by restricting the government's ability to communicate with and provide services to non-English speaking Americans, many of whom are children and elderly citizens," English-Only initiatives may violate the Equal Protectiond clause of the Constitution.

A staffer on the subcommittee, said no future hearings had been scheduled and no further action was anticipated before late May.

While two English-Only bills have been introduced in the Senate, only one, the Language of Government Act of 1995 (S.356), has been sent to the Senate Government Affairs Committee for consideration. While the bill makes an exemption for the teaching of foreign languages, S. 356 would repeal section 203 of the Voting Rights Act which provides voting assistance for limited-English speaking citizens. Additionally, S. 356 would deprive language minority litigants of their due process by denying them the right to have court interpreters available for judicial proceedings. Under the proposed legislation, a member of Congress or their staff would not be able to use a language other than English to communicate with their constituents. This limitation extends to all government workers, including IRS auditors, agricultural inspectors, census takers, and public health workers, all of whom would be prohibited from using a language other than English in the performance of their duties.

The Government Affairs Committee held hearings on the bill in December of 1995 and March of 1996 with members of Congress testifying at both hearings. Senator Ted Stevens (R-AK), Chairman of the Government Affairs Committee, opened the December hearing by stating his understanding that S. 356 "...does not affect existing laws which provide bilingual and native language instruction." Chairman Stevens went on to underscore his support for the preservation of Native tongues and indicated he would be supportive of efforts to amend S. 356 to "expressly state that it does not affect bilingual education or native American language instruction."

Testifying on behalf of his own bill, Senator Richard Shelby (R-AL) noted the importance of Americans learning English. He stated:

"English has been, is, and will continue to be the language of opportunity. English is the language that allows individuals to take advantage of the social and economic opportunities America has to offer. Legislating English as the official language of government does nothing more than to help individuals assimilate into American society and protect government from wasteful spending and dubious duplication of services. Most importantly, this legislation shows our commitment to unity, cohesion, and inclusion over separation."

At the March hearing, Senator Paul Simon (D-IL) agreed with Sen. Shelby that it is vital for American citizens to learn English, however, he disagreed that legislating English as the official language of government is the most effective means to encourage limited English speaking citizens to learn English. He stated:

"While seemingly well-intentioned, proclaiming English the official language would do nothing to help individuals acquire the language skills that are essential if they are to become productive and responsible citizens. Yes, learning the English language is important for our many immigrants, as it is for our entire nation. But the way to handle the problem is not to proclaim that English is our official language. Instead, the way to deal with the problem is to provide funding for classes so that those who do not speak English can learn it."

The Senate Government Affairs Committee is expected to mark-up the Language of Government Act of 1996 in early May.

Sen. Shelby (R-AK) announced his intentions to offer an English-Only amendment very similar to S. 356 (with exceptions for bilingual education and languages pertaining to indigenous cultures) to the Illegal Immigration Bill that was before the Senate in late April. The amendment was never offered due to parliamentary maneuvering on the part of the Republicans.

In a memorandum from the Office of the Assistant Attorney General for Legislative Affairs, the administration voiced its opposition to S. 356. The memo states in part:

"The overwhelming majority of Federal official business is conducted in English. According to a recent GAO study, only 0.06% of Federal documents are in a language other than English -- and these are translations of English documents. These non-English documents, such as income tax forms, voting assistance information, decennial census forms, and medical care information, assist taxpaying citizens and residents who have limited English proficiency (LEP) and are subject to the laws of this country. In those very few instances where the Government uses languages other than English, the usage promotes vital interests, such as national security; law enforcement; border enforcement; civil rights; communicating with witnesses, prisoners or parolees; protecting and promoting public health; and informing people of their legal rights and responsibilities.

As indicated above, Arizona's English-Only state statute was invalidated by the Ninth Circuit in Yniguez v. Arizonans for Official English. In this case, a government employee, sued the state over Article XXVIII of the state constitution, which states, English is "the language of the ballot, the public schools and all government functions and actions." It goes on to say that the state "shall act in English and no other language." As a state employee who dealt with members of the public who filed medical malpractice claims against the state, Ms. Yniguez used English when speaking to English-speaking people and Spanish with Spanish-speaking individuals. In filing suit Ms. Yniguez, alleged that the ban violated her free speech rights and a divided Ninth Circuit Federal Court of Appeals agreed.

Because the plaintiff was a government employee, and the article in question is restricted to speech by persons performing services for the government, the court had to consider what limitations may constitutionally be placed on the speech of government servants. In making its ruling, the court highlighted the precedent that government employees do not simply forfeit their First Amendment rights upon entering the public workplace (see Perry v. Sindermann, 408 U.S. 593, 597 (1972); Rutan v. Republican Party of Illinois, 110 S.Ct 2729, 2736 (1990)). The court also said that Article XXVIII is not a valid regulation of the speech of public employees, is unconstitutionally overbroad and unduly burdens the speech rights of the government employee as well as the speech interests of a portion of the populace they serve.

The petitioners in this case, Arizonans for Official English, contended that Yniguez sought an affirmative right to have government operations conducted in foreign languages, and therefore, cited a series of cases in which non-English speaking plaintiffs had unsuccessfully tried to require the government to provide them with services in their own language. (see Guadalupe Org. Inc., 587 F.2d at 1024; 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). The court contended, however, that in this case, "...there is no claim of an affirmative right to compel the state to provide multilingual information, but instead only a claim of a negative right: that the state cannot, consistent with the First Amendment, gag the employees currently providing members of the public with information and thereby effectively preclude large numbers of persons from receiving information that they have previously received."

This distinction is important because the plaintiffs argued that such an affirmative right placed an unreasonable burden on the state's interest in efficiency and effectiveness. In addition, Arizonians for Official English argued that the ban should be upheld if it is shown that the banning of the free speech rights of the government employee was due to broad governmental interests. The court ruled, however, that "the restrictions on free speech are not justified by the alleged state interests."

Equal protection concerns were also raised in the Ninth Circuit's decision because the adverse impact of the ban falls almost entirely upon Hispanics and other national origin minorities. Noting that language is a "close meaningful proxy for national origin," the Court ruled that, "restrictions on the use of languages may mask discrimination against specific national origin groups or, more generally, conceal nativist sentiment."

The Supreme Court granted certiorari on March 25 and is expected to hear oral arguments in the Fall.

Many prominent Republicans are on record opposing making English the offical language of the nation. Governor Chrstine Todd Whitman (R-NJ) stated, "I don't think we need any laws that say English is the only language of the United States." Senator Pete Domenci (R-NM) said: "So-called 'English-only initiatives are not what New Mexicans want, and I've joined them in this view."