In general, proposals before the Senate in the 109
the related House measures by obliging covered governmental entities “to preserve
and enhance the role of English” and to “encourag[e] greater opportunities to learn
the English language.” To this end, H.R. 997 sought to secure the “presumptive”
legal validity of English language workplace policies, public and private, and would
have established establish a basic English reading and comprehension rule for
naturalization. Similarly, the Inhofe Amendment’s main sponsor explicitly embraced
judicial rejection of any equation between governmental language policies and
national origin discrimination. The Amendment itself would have added to existing
literacy requirements for naturalization a “Goals for Citizen Test Redesign,” to be
administered by the Department of Homeland Security, which would have required
that all prospective new citizens to demonstrate an “understanding of American
common values and traditions” and “of the history of the United States, including the
key events, key persons, key ideas, and key documents that shaped the institutions
and democratic heritage of the United States.” The Salazar Amendment would not
have altered existing policies in this regard.
However, other formal legal aspects of the proposed House measures found no
direct parallel to the proposed Senate amendments. A “rule of construction” in H.R.
997 would have permitted “unofficial” non-English communications by Members of
Congress and other federal and state officers and agents — even “while performing
official functions” — provided that “the official functions” themselves “[we]re
performed in English.” The bill was silent, however, as to where the line between
official and unofficial would have been drawn, a question that would probably have
had to be answered administratively or by judicial rule. H.R. 4408 would have
repealed requirements in the Voting Rights Act that mandate use of bilingual voting
materials in states or political subdivisions when certain conditions are met.
However, neither bill would have expressly overridden any other federal statute
explicitly authorizing the use of language translations, interpreters, or other
supplemental services. Any conflicting state policies mandating non-English usage
in similar state or local proceedings could have been challenged under H.R. 997
unless saved by one of the specific exceptions in that bill, and both H.R. 997 and
H.R. 4408 specifically called for renewed enforcement of English proficiency
standards for citizenship and the “conduct [of] all naturalization ceremonies” in
English.
Furthermore, a provision found in H.R. 997, but not H.R. 4408, would have
allowed persons “injured by a violation of this chapter” to file a civil action in federal
court for “appropriate relief.” The ramifications of this private right of action are
difficult to predict. Traditional rules governing standing to sue in federal court
generally call for proof of “injury in fact” or actual harm suffered by the claimant as
the result of a legal violation. Under the bills, most “official” governmental activities
would be required to be conducted in English, and any legal “entitlement” to
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language translation or interpreters would be denied. However, it is arguable, neither
proposal specifically would have banned the government from also providing
services or materials, as needed, in other languages for non-English speaking
constituents. That is, they did not provide that the government conduct its official
business “exclusively” or “only” in English. For this reason, it might have been
difficult for plaintiffs to argue that they were actually injured by the provision of
supplemental services to foreign language speakers if the core official English
requirements of the bill were otherwise met. On the other hand, it could be argued
that any foreign language usage would have conflicted with Congress’ purpose and
the “affirmative obligation” imposed upon the Federal Government “to preserve and
enhance the role of English as the official language... “ In effect, private civil actions
that would have been permitted by the bill to enforce this “affirmative” governmental
obligation could have made the linguistic policy implications of virtually any
“official” action or inaction by the federal government susceptible to judicial inquiry.
Whether the official English mandate in the House proposals would have
pertained only to the form of speech or linguistic medium used by the government,
or its employees, to communicate with the public or was also intended to reach the
content or subject matter of governmental speech may be another issue. If narrowly
interpreted by the courts, as reaching only the formal aspect of federal governmental
documents, rather than their substance, H.R. 997 and H.R. 4408 could have had
marginal impact on federally mandated standards in regard to the education of
language minorities, bilingual election requirements, or private employer Englishonly
workplace rules. H.R. 997, in particular, specifically provided that it not be read
“to disparage any language or to discourage any person from learning or using a
language” nor in a manner “inconsistent with the Constitution of the United States.”
These disclaimers might have had the effect of preserving the
federally enforced bilingualism pursuant to the Constitution or federal civil rights
statutes. An argument could be made, however, that the governmental duty to
“preserve and enhance” the role of official English demands, at a minimum, that a
substantive commitment to English be reflected in the content of federal agency
rulemaking. Accordingly, the bills could have conceivably be read to apply both to
the form and substance of federal laws, regulations, or orders, so as to preclude
imposition upon state or local authorities, or private parties, of foreign language
assistance or bilingual requirements of various sorts. Of course, H.R 4408 would
have eliminated some uncertainty by its express repeal of language minority voting
requirements.
Thus far, the 110
comparable to the measures that emerged during the 109
several more limited proposals have been introduced, including H.J.Res. 17 and
H.J.Res. 19, both of which would amend the Constitution to establish English as the
official language of the United States, and H.Con.Res. 11, which would resolve that
the federal government should pursue policies that not only encourage all residents
to become fully proficient in English, but also encourage all residents to learn or
maintain skills in languages other than English.
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