Language Loyalties

INTRODUCTION TO PART IV

The Question of Minority
Language Rights

By James Crawford

What would be the legal impact of an English Language Amendment to the U.S. Constitution? There is no simple answer. First, there is confusion about the intent of the Official English campaign. Does it seek primarily to make a symbolic statement about the role of English as our common language or to protect the dominant status of English by outlawing all (or all but a few) public uses of other tongues? Second, there is uncertainty over potential conflicts between an English Language Amendment and the Constitution's more libertarian provisions. Broad governmental restrictions on speech and on services for linguistic minorities would likely be inconsistent with the First and Fourteenth amendments. Finally, the language rights in question are poorly defined in American law. It is hard to assess what might be lost without knowing what there is to lose. Precedents in this area are limited, as U.S. courts and legislators are only beginning to address the legal issues raised by language diversity. It was not until the 1970s that special help was mandated for language-minority students in public schools, that bilingual voting rights were established (and English literacy tests abolished), and that non-English- speaking defendants were guaranteed the services of a translator during criminal trials.

In a legal tradition oriented toward the liberties and duties of individuals, rights that flow from group membership seem anomalous to many Americans, affirmative action being the most obvious example. There is predictable resistance to granting minority language speakers an entitlement to special services. Without hesitation, federal courts have banned intentional discrimination against individuals on the basis of language when it is clearly a form of national-origin discrimination (prohibited under the Civil Rights Act of 1964.) Judges have been reluctant, however, to order bilingual assistance to ensure equal access to government for broad classes of non-English speakers. The question inevitably arises: With immigrant groups speaking scores of different languages these days, how can we accommodate them all, each in their own tongue? Attempting to do so, warned one federal judge, "would virtually cause the processes of government to grind to a halt." <1> Language rights advocates have rejected this argument as a red herring. The issue, they say, is whether to address the needs of a few language minorities in areas where they are concentrated – hardly a staggering burden when one considers the societal benefits of bringing newcomers into the mainstream.

Moreover, there is the question of equity for linguistic minorities who became U.S. citizens not through immigration, but through annexation of their homelands. One small recognition of such claims is embodied in the Voting Rights Act of 1965, which outlawed English literacy requirements for voters (mainly Puerto Ricans) who had been schooled in languages other than English on U.S. soil. Nevertheless, federal courts declined to extend this principle to the Social Security Administration in Soberal-Pérez v. Heckler, a case involving U.S.-born, Spanish-speaking citizens who were denied access to the agency's proceedings in their native tongue.

Bill Piatt details the contradictory precedents on language rights in the United States. For example, the 1970 Negrón decision recognized the inhumanity of trying an accused criminal in an incomprehensible tongue and mandated that an interpreter be provided for non-English-speaking defendants. But, as yet, no such right has been established for parties in civil and administrative cases – divorce, welfare, adoption, and other proceedings with consequences often as severe as criminal trials. Meyer v. Nebraska (1923), the earliest Supreme Court decision regarding the rights of linguistic minorities, relied on the Fourteenth Amendment's due-process clause in striking down a restriction on foreign language teaching, enacted during a period of anti-German xenophobia. The court determined the law to be an unreasonable interference with pupils' right to acquire knowledge, teachers' right to practice their profession, and parents' right to control the education of their children. Still, it carved out no firm prohibition on language-based discrimination and left intact a state mandate for English as the medium of instruction.

Regarding the "right" to bilingual education, the situation is similarly ambiguous. In Lau v. Nichols (1974), the Supreme Court outlawed the longstanding neglect of non-English-speaking students. Equal public education was "a mockery," wrote Justice William O. Douglas, if it meant English-only instruction for children who could not understand the language. The court ruled that such students were entitled to special assistance in learning English, although it stopped short of ordering bilingual education as the only remedy for past discrimination. In the 1970s, however, federal civil rights authorities did not hesitate to take that step with the so-called Lau Remedies (subsequently withdrawn by the Reagan administration). Also, as Martha Jiménez notes, some lower courts have mandated bilingual programs based on local conditions and an evolving set of legal standards. These cases normally involved Hispanic and Asian children, but in Martin Luther King Jr. Elementary School Children v. Ann Arbor School District, a federal judge ordered special help for speakers of Black English.

Bilingual ballots, authorized by the 1975 amendments to the Voting Rights Act, are among the most symbolically charged fields of language rights. The idea of voting in anything other than the national tongue offends the civic assumptions of many Americans. According to the melting pot myth, immigrants have always conformed to our ways – not vice versa. But history is a poor advocate for the English-only ballot. As documented by Castro v. State of California and PROPA v. Kusper, literacy tests were long used to disenfranchise linguistic minorities, as well as Afro-Americans. The new bilingual voting rights are not an entitlement bestowed on all non-English speakers. Rather, they represent an attempt to compensate for historic patterns of discrimination, in education as well as voting, that excluded Hispanics, Asian Americans, and American Indians from the political process. John Trasviña traces the evolution of bilingual ballots and previews the debates likely to occur when the law comes up for reauthorization in 1992.

Today the growth sector for language litigation is private business. Conflicts are proliferating over "speak English only" rules in the workplace and ordinances restricting foreign-language advertising. Since 1987 the U.S. Equal Employment Opportunity Commission had prohibited arbitrary language policies on the job – that is, English-only rules that have no demonstrated business necessity – as a form of national-origin discrimination. This position was upheld by a federal appeals panel in Gutiérrez v. Municipal Court, although other courts have ruled differently. In Asian American Business Group v. City of Pomona, an attempt to regulate the use of Asian characters on business signs was ruled to violate the First Amendment. And yet, as Edward Chen explains, the case law in these areas is neither extensive nor consistent, and many constitutional questions remain to be resolved.

The constitutionality of Official English measures has long been at issue. In Yñiguez v. Mofford, a federal judge invalidated Arizona's Proposition 106, passed by voters in 1988, which required the state to "act in English and in no other language," as an infringement of free-speech rights under the First Amendment. But opponents' major avenue of attack has yet to be followed by a court: the Equal Protection Clause of the Fourteenth Amendment. A commentary by the Harvard Law Review analyzes this line of argument and suggests how it might be pursued successfully. Because language – like race, gender, and national origin – has previously served as a basis to exclude, harass, or exploit unpopular groups, courts should exercise added vigilance over government actions that single out non-English speakers. To the extent that Official English measures fail to further legitimate public purposes, unduly trample the rights of non-English speakers, serve as an instrument of racial and ethnic bigotry, or erect obstacles to minority participation in the political process, they may be in conflict with constitutional guarantees of equal protection.

Predicting the precise effects of Official English remains problematic. But the American Civil Liberties Union outlines what is at stake with its detailed inventory of minority language services now provided by the state of California. Although Proposition 63, the Official English initiative approved in 1986, has so far been interpreted as purely symbolic, an English Language Amendment to the U.S. Constitution might be a different story. As the A.C.L.U. survey illustrates, a surprising variety of programs could be jeopardized, affecting not only minority groups, but California's population as a whole.

1. Carmona v. Sheffield, 325 F.Supp. 1341 (N.D. Cal. 1971), aff'd, 475 F.2d 738 (9th Cir. 1973).