English as the Official Language of the United States:

 
English as the Official Language of the United States
th Congress

Congressional proposals to install English as the official language of the United

States reflect yet another aspect of the complicated ongoing national debate over

immigration policy. The modern “Official English” movement may be traced to the

mid-1980s, when various proposals to achieve linguistic uniformity by constitutional

amendment were considered. While these earlier federal efforts failed, some

legislation promoting official English laws at the state level was more successful. At

least 28 states have laws declaring English to be the official state language. These

state laws have usually been enacted by direct popular votes on referenda by

substantial margins.

In response, renewed congressional efforts to codify English as the “official” or

“national” language by statute largely replaced the constitutional amendment

approach of earlier years. This trend culminated in 1996 when the House passed H.R.

123, to declare English the official language of the United States government and

restricting other linguistic usage in the conduct of “official” governmental business.

The measure died in the Senate. Contemporary versions of the earlier measure,

however, have appeared in subsequent legislative sessions, and similar legislation has

been introduced in the 110

amend the Constitution to establish English as the official language of the United

States, while H.Con.Res. 11 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.

th Congress. Both H.J.Res. 17 and H.J.Res. 19 would

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Federal Legislation to Make English the Official Language of Government . . . . 2

Federal Policy on Foreign Language Assistance . . . . . . . . . . . . . . . . . . . . . 7

Constitutional Law Implications of Official English . . . . . . . . . . . . . . . . . . . . . . . 8

Miscellaneous Federal Policies Providing for Non-English Translation

and Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

State Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1

This report was originally written by Charles V. Dale, Legislative Attorney.

2

h.org/inc/official/states.asp].

See U.S. English, Inc., States with Official English Laws, at [http://www.us-englis

3

42 U.S.C. § 1973aa-1a.

4

Id. at §§ 2000d et seq; 20 U.S.C. § 1703(f).

5

Services” and the “State Laws” sections below for additional information.

See the “Miscellaneous Federal Policies Providing for Non-English Translation and

6

on the Constitution of the Senate Comm. on the Judiciary, 98

Hearings on H.J.Res. 13, H.J.Res. 33, and H.J.Res. 60 before the Subcomm. on Civil and

(continued...)

See The English Language Amendment: Hearings on S.J.Res. 167 Before the Subcomm.th Cong., 2nd sess. (1984);

English as the Official Language of the

United States: Legal Background and

Analysis of Legislation in the 110th

Congress

1

Introduction

The steady growth within U.S. borders of new immigrant populations, whose

primary language is other than English, has created a public policy divide on issues

of language diversity. On one side, opposition to expanded foreign language

assistance has led at least twenty-eight states to enact statutes or amend state

constitutions to declare English the official state language.

U.S. Constitution, however, have traditionally afforded some legal protection to

minority language rights. For example, the Voting Rights Act of 1965, as amended,

mandate use of bilingual voting materials in states and political subdivisions when

certain conditions are met.

1964 Civil Rights Act and the Equal Educational Opportunities Act.

state and federal policies mandate the use of languages other than English when

necessary for effective delivery of public and private services to non-English

speakers in judicial and law enforcement proceedings, health and managed care

services, conduct of state and local administrative agencies, business and professions,

elections, and other critical areas.

2 Federal statutes and the3 Other federal statutory safeguards include Title VI of the4 In addition,5

Congressional proposals to install English as the official language of the United

States reflect yet another aspect of the complicated ongoing national debate over

federal immigration policy. The modern “Official English” movement in Congress

is traceable to the mid-1980's, when various proposals to achieve linguistic

uniformity by constitutional amendment were considered.

CRS-2

6 When that approach

6

Constitutional Rights of the Comm. on the Judiciary, 100

(...continued)th Cong., 2nd sess. (1988).

7

government has an “affirmative obligation to preserve and enhance the role of English as

the official language of the United States,” and would have repealed the bilingual voting

requirements.

142 Cong. Rec. 21206-07 (1996). H.R. 123, among other things, proposed that the federal

8

152 Cong. Rec. S4770 (daily ed. May 18, 2006).

9

Id.

failed, Congress renewed its efforts to codify English as the official language,

proceeding on a statutory track. This effort culminated in 1996 with House passage

of H.R. 123, declaring English the official language of the United States Government

and restricting other linguistic usage in the conduct of “official” governmental

business. The “Language in Government Act” passed the House in the 104

but died in the Senate.

however, have appeared in subsequent legislative sessions.

For example, during the 109

Amendment as part of its comprehensive immigration reform package, declaring

English to be our “national language” and calling for a governmental role in

“preserving and enhancing” the role of English.

Salazar also passed the Senate; it would have recognized English as the “common

and unifying language of the United States,” while protecting existing rights of non-

English speakers “to services and materials provided by the government” in

languages other than English.

which would have amended the U.S. Constitution to establish English as the official

language of the United States.

Likewise, similar legislation has been introduced during the 110

Both H.J.Res. 17 and H.J.Res. 19 would amend the Constitution to establish English

as the official language of the United States, while H.Con.Res. 11 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. In addition, should the 110

th Congress7 Substantially amended versions of this earlier measure,th Congress, the Senate adopted the Inhofe8 An alternative offered by Senator9 Also proposed in the 109th Congress was H.J.Res. 43th Congress.th

Congress decide to take up immigration reform legislation, other English-as-theofficial-

language measures may be introduced in conjunction with such legislation.

Federal Legislation to Make English the Official

Language of Government

Standing alone, a legislative declaration of English as the “official” or

“national” language of the United States would be a largely symbolic act of

negligible legal effect. Although an affirmation by the Congress of the central place

of English in our national life and culture, such a pronouncement would not, of its

own force, require or prohibit any particular action or policy by the government or

private persons. Nor would it, without more, imply the repeal or modification of

CRS-3

10

diversity in governmental communications concerned with teaching of foreign languages;

international relations, trade, or commerce; compilation of census information; public health

and safety matters; and the conduct of criminal proceedings. In addition, H.R. 997 would

have allowed use of other languages under the Individuals with Disabilities Act, for national

security purposes, and in the compilation of census information.

Exceptions written into both House bills, however, would have permitted linguistic

existing federal or state laws and regulations sanctioning the use of non-English for

various purposes. As in the past, however, any official English proposals introduced

during the 110

the degree to which they would propose adherence to English in various

governmental activities at the federal and state level. Several examples of legislation

introduced during the 109

During the 109

immigration reform effort both included elements from earlier legislative proposals.

Declaring English to be our “national language,” the former measure called on “the

Government of the United States . . .[to] preserve and enhance” the role of English,

and except as otherwise legally recognized, would have denied any private “right,

entitlement, or claim” to non-English governmental services or materials. The

Salazar amendment would have recognized English as the “common and unifying

language of the United States,” while protecting existing rights of non-English

speakers “to services and materials provided by the government” in languages other

than English.

Meanwhile, H.R. 4408 (the “National Language Act of 2005) and H.R. 997 (the

“English Language Unity Act of 2005”), also proposed in the 109th Congress,

differed considerably in scope as to governmental entities and types of activities that

would have been covered by the “official English” mandate. The immigration reform

approach to the subject, however, seemed to draw at least marginally from elements

of each. H.R. 4408 would have applied to all “official business” of the “Government

of the United States” — including any “publications, income tax forms, and

informational materials” — and would have denied any legal right, claim, or

“entitlement” to “communicate with” and “receive information from” the

Government in languages other than English. H.R. 4408, however, stated that it

“shall not preempt any law of any state,” suggesting that it would have largely been

confined to federal language policies. In contrast, H.R. 997, by its terms, would have

required that “official functions” — including “all laws, public proceedings,

regulations, publications, orders, actions, programs, and policies” — of the Federal

Government, the States, and the District of Columbia be conducted in English. It thus

seemed intended to bind State officers and agents much like their Federal

governmental counterparts.

implications the proposal might have had on non-federal governmental activities at

the state or local levels.

The Senate immigration reform proposals seemed to raise fewer questions of

jurisdictional sweep along these lines. The Inhofe Amendment appeared largely

limited in any direct manner to actions of the federal government rather than the

states and localities. Nor did it appear that the Salazar Amendment would carry direct

CRS-4

th Congress would give varying force to this declaration depending onth Congress illustrate this concept.th Congress, the Inhofe and Salazar amendments to the proposed10 Absent further elaboration, it is uncertain what, if any,

11

152 Cong. Rec. S4752 (daily ed. 5-18-2006).

12

Id.

13

Id at S4753 (Remarks of Senator Inhofe).

14

authorized or provided by law’ is there. That means, simply put, if there is a law on the

books – a case decision, a regulation, an Executive order, you name the source of law – or

a constitutional provision that would allow the Federal Government to interact with its

people in an language other than English, it is not affected by this amendment, nor does it

prevent in the future the Government expanding those services in a language other than

English. It says, also, there is no entitlement to a service in a language other than English,

unless authorized by law. That is just a simple, commonsense concept.”).

Remarks of Senator Graham, Id. at S4764. (“That is why the term ‘unless otherwise

15

See discussion pp. 8-12 infra.

legal implications — beyond, perhaps, those that Congress might impose by means

of the“carrot and stick”of federal funding conditions — on the linguistic policies of

state or local governmental entities. Indeed, the major sticking point between Inhofe

Amendment supporters and its opponents centered on the measure’s potential effect

on existing laws mandating private claims for non-English services or materials

provided by the federal government.

amendment language that would have allowed governmental non-English policies

“authorized or provided by law,” wording criticized for “going further than what you

have indicated; that you are trying to diminish existing rights of the law.”

Inhofe expounded his understanding of the “unless otherwise authorized or provided

by law” exceptions to his “national language” mandate as follows:

11 Questions arose in particular with respect to12 Senator

My amendment makes clear that nobody has a right or entitlement to sue the

Federal workers or the Federal Government for services or materials in languages

in other than English. . . . [T]he Federal Government has no duty to provide

services or materials in languages other than English, but the Federal

Government is free to do so. In other words, they are not compelled to do it, but

they may do it, they have the authority to do that.

The question has been asked: How does the amendment affect the X program?

Will the Federal Government be free to offer X service or material in Y

language? The answer is, yes, the Federal Government is at liberty to offer, can

offer, X services or whatever the program is, in whatever language seems

appropriate, but the Federal Government only has the duty to offer X services

and Y language if a statute creates that right

.13

Likewise, another proponent denied that the Inhofe Amendment would have had any

“unintended consequence” of curtailing federal governmental interactions with

persons in languages other than English, whether based on current law or future law.

“There is nothing in this amendment, in my opinion, that does away with any laws

that already exist or might exist in the future for a language other than English.”

Senator Inhofe’s remarks indicated his intention to ratify the Supreme Court’s

14 But

Sandoval

origin- based private claim for entitlement to foreign language assistance under

CRS-5

ruling, and its predecessors,15 which have refused to recognize a national

16

Id at S4754, 4756 (Remarks of Senator Inhofe).

17

42 U.S.C. § 1973aa-1a.

federal civil rights laws, and the proponents’ rejection of E.O. 13166, which directs

foreign language services and materials in federally-conducted or assisted programs.

16

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.

th Congress appeared to track17

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

CRS-6

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.

CRS-7

status quo in regard toth Congress has not yet witnessed the introduction of legislationth Congress. However,

18

or national origin, be excluded from participation in, denied the benefits of, or be subjected

to discrimination under any program or activity receiving federal financial assistance.” Id.

§ 2000d.

Title VI provides that “[n]o person in the United States shall, on the ground of race, color,

19

at [http://www.usdoj.gov/crt/cor/13166.htm].

65 FR 50121. Additional information on the order and implementing guidance is available

20

414 U.S. 563 (1974).

Federal Policy on Foreign Language Assistance

The interplay of previously proposed legislation with current federal foreign

language policy is perhaps best illustrated by E.O. 13166 and departmental

regulations by the federal government issued thereunder. That order, issued by

President Clinton in 2000, directed each federal department and agency to

“implement a system” for insuring that persons with limited English proficiency

(LEP) are provided “meaningful access” to programs and activities conducted by the

federal government and by recipients of federal financial assistance covered by Title

VI of the 1964 Civil Rights Act.

Department of Justice (DOJ) on the same day, and referenced in the order, set forth

“compliance standards that recipients must follow to ensure that the programs and

activities that they normally provide in English are accessible to LEP persons and

thus do not discriminate on the basis of national origin in violation of Title VI ... and

its implementing regulations.” Each federal grant-making agency was to tailor the

general standards of the DOJ guidance into an approach “ensuring meaningful access

by LEP persons that is practical and effective, fiscally responsible, responsive to the

particular circumstances of each agency, and can be readily implemented.”

18 A policy guidance document, released by the19

The DOJ guidance notes that Title VI and its regulations require recipients of

federal funds to take reasonable steps to insure “meaningful” access to information

and services they provide. What constitutes reasonable steps, the document advises,

will be contingent on a number of factors, such as the number and proportion of LEP

persons in the eligible service population, the frequency with which LEP individuals

come into contact with the program, the importance of the service provided by the

program, and the resources available to the recipient. In balancing factors for

determining what steps are reasonable, agencies are to particularly address the

appropriate mix of oral and written language assistance. Acknowledging that written

translations are a “highly effective way” of communicating with LEP persons, the

document states that oral communication may also be a necessary part of the

exchange of information. LEP persons include those born in other countries, some

children of immigrants born in the United States, and other non-English or limited

English proficient persons born in the United States, including some Native

Americans.

In its guidance, DOJ cited

interpreted Title VI as requiring that a federal financial aid recipient take steps to

insure that language barriers do not exclude LEP children from effective participation

in public educational benefits and services.

in the San Francisco public school system who received classroom instruction solely

CRS-8

Lau v. Nichols,20 in which the U.S. Supreme CourtLau involved a group of Chinese students

21

532 U.S. 275 (2001).

22

Department of Justice, for Heads of Departments and Agencies, General Counsels and Civil

R i g h t s D i r e c t o r s ( O c t . 2 6 , 2 0 0 1 ) , a v a i l a b l e a t

[http://www.usdoj.gov/crt/cor/lep/Oct26memorandum.pdf].

Memorandum from Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights Division,

23

717 F.2d 36 (2d Cir. 1983), cert. denied, 466 U.S. 929 (1984).

in English. The Court ruled that the failure to provide such students with

supplemental instruction in their primary language violated the Title VI ban on

national origin discrimination. The DOJ document extrapolates an extension of the

Lau

doctrine beyond education to other contexts. Note, however, that while the Lau

precedent remains intact, its value as precedent may be diminished somewhat by

subsequent judicial developments.

The Court’s ruling in

the DOJ guidance,

did not strike down the Title VI regulations that form the basis for Executive Order

13166.

requiring all aspects of its driver’s license examination process, including the written

portion, to be exclusively in English. In rejecting a Mexican immigrant’s claim that

the state policy violated Title VI because of its “disparate impact” on ethnic

minorities, a five Justice majority ruled that Congress did not intend a private right

of action to enforce Title VI except as a remedy for intentional discrimination.

Federal regulations prohibiting state practices that have a discriminatory impact,

regardless of intent, could not provide a basis for private lawsuits.

however, did not directly confront federal agency authority, previously acknowledged

by the Court, to enforce Title VI compliance administratively with rules condemning

practices discriminatory in their effect on protected minority groups. Thus, at least

for now, “disparate impact” rules — mandating language assistance for non-English

proficient clients of federally financed programs — may still be enforced by the

government, just not by private litigants. However, some previous congressional

proposals would arguably have negated any private Title VI remedy for linguisticallybased

ethnic discrimination. And any requirement regarding the government’s

“affirmative obligation” to promote English could portend similar perils for agency

rules condemning the disparate impact of English-only policies under Title VI.

Alexander v. Sandoval was decided after publication of21 although DOJ has taken the position that the Sandoval decision22 At issue in Sandoval was the State of Alabama’s “English-only policy”Sandoval,

Constitutional Law Implications of Official English

Judicial decisions involving the constitutional implications of government

language policies have arisen in a variety of legal contexts. One series of cases has

involved non-English speaking plaintiffs who have unsuccessfully sought to require

the government to provide them with services in their own language. In

Perez v. Heckler

Hispanic individuals of limited English proficiency who claimed that the equal

protection and due process clauses of the Constitution required the Secretary of

Health and Human Services to provide them with Social Security forms and

instructions in Spanish. The appeals court could find no basis for the constitutional

CRS-9

Soberal-,23 for example, the Second Circuit rejected an action on behalf of

24

Id. at 43-44.

25

administrative seizure in French); Garcia v. Spun Steak Co., 998 F.2d 1480 (9

cert. denied 512 U.S. 1228 (1994)(employer’s English-only workplace rules do not violate

Title VII of the 1964 Civil Rights Act); Vialez v. New York City Hous. Auth., 783 F.2d 109

(S.D. N.Y. 1991) (Housing Authority’s failure to provide documents in Spanish does not

violate Title VI or the Fair Housing Act since “it reflects, at most, a preference for English

over all other languages” rather than racial or ethnic discrimination); Guadalupe Org., Inc.

v. Tempe Elementary Sch. Dist. No. 3, 587 F.2d 1022, 1027 (9

bilingual education); Frontera v. Sindell, 522 F.2d 1215, 1219-20 (6

civil service exams do not violate Hispanic individuals’ equal protection rights since

“[l]anguage, by itself, does not identify members of a suspect class”); and Carmona v.

Sheffield, 475 F.2d 738 (9

See, e.g., Toure v. United States, 24 F.3d 444 (2d Cir. 1994)(no right to notice ofth Cir. 1993),th Cir. 1978)(no right toth Cir. 1975)(Englishonlyth Cir. 1973)(no right to employment notices in Spanish).

26

262 U.S. 390 (1923).

27

Id. at 401.

and related statutory claims since the Secretary’s action bore a rational relationship

to a legitimate governmental purpose:

We need only glance at the role of English in our national affairs to conclude that

the Secretary’s actions are not irrational. Congress conducts it affairs in English,

the executive and judicial branches of government do likewise. In addition, those

who wish to become naturalized citizens must learn to read English.... Given

these factors, it is not irrational for the Secretary to choose English as the one

language in which to conduct her official affairs.

24

The federal courts have similarly found no constitutional duty on the part of

government to provide certain other forms of official notice or services to individuals

in their native tongue.

involved, non-English speakers have no affirmative right to compel government to

provide information in a language that they can comprehend. They do not address the

converse issue of legislative power to restrict official speech in languages other than

English as a matter of state or national policy.

Another body of judicial authority has found that certain state law restrictions

on linguistic diversity may act as a “proxy” for national origin discrimination or

infringe upon First Amendment free speech rights. In

example, the Supreme Court found that a state law prohibiting modern foreign

language instruction in any school, public or private, before the ninth grade violated

Fourteenth Amendment due process because it infringed upon the liberty of parents

to make educational choices for their children. According to the

25 These cases, however, hold only that in the circumstancesMeyer v. Nebraska,26 forMeyer Court:

[t]he protection of the Constitution extends to all, to those who speak other

languages as well as to those born with English on the tongue. Perhaps it would

be advantageous if all had ready understanding of our ordinary speech, but this

cannot be coerced by methods which conflict with the Constitution — a desirable

end cannot be promoted by prohibited means.

27

Meyer

Hawaii statute that singled out “foreign language schools,” such as those in which

CRS-10

was applied by the Court in Farrington v. Tokushiga to invalidate a

28

273 U.S. 284 (1927).

29

273 U.S. at 293.

30

Id. at 393.

31

Id. at 390.

32

Id. at 398.

33

271 U.S. 500 (1926).

34

Id. at 514.

35

500 U.S. 352 (1991).

36

prospective jurors] that is ‘race-neutral’ on its face is nonetheless unacceptable if it is

merely a proxy for a discriminatory practice.”

Id. at 371. Similarly, Justice Stevens, in dissent, asserted that “an explanation [for strikingId. at 379.

37

520 U.S. 43 (1997).

Japanese was taught, for stringent government control.

regulating language instruction in

the students may be promoted.”

defense of the

sympathy with the principles and ideals of this country,”

development,”

foreign to the best interests of the country.”

the validity of such goals, the Court found them insufficient to warrant state

interference with foreign language usage in the schools.

28 The state’s purpose forTokushiga was “in order that the Americanism of29 Similarly, the governmental interests asserted inMeyer statute were “to create an enlightened American citizenship in30 “to promote civic31 and to prevent inculcation in children of “ideas and sentiments32 Despite a judicial acknowledgment of

Yu Cong Eng v. Trinidad

forbidding Chinese merchants from keeping their business account books in Chinese,

the only language they knew.

embarrass all of [the Chinese merchants] and would drive out of business a great

number,”

protection under the Constitution. Although based on the substantive due process

doctrine of an earlier period, reverberations of

in rulings of more recent vintage. In

determined that peremptory challenges directed at Latino jurors because of their

bilingualism and demeanor were not unconstitutional because the factors motivating

the prosecutor’s action in that case did not function as a proxy for race. Writing for

the plurality, however, Justice Kennedy stated that:

considered the constitutionality of a Philippine law33 Finding that enforcement of the law “would seriously34 the Court held that the law denied the merchants due process and equalYu Cong Eng and Meyer may be foundHernandez v. New York,35 for example, the Court

[w]e would face a quite different case if the prosecutor had justified his

peremptory challenges with the explanation that he did not want Spanishspeaking

jurors. It may well be, for certain ethnic groups and in some

communities, that proficiency in a particular language, like skin color, should be

treated as a surrogate for race under an equal protection analysis.

36

The U.S. Supreme Court in

constitutional controversy when it vacated for procedural irregularities a

ruling by the Ninth Circuit voiding Arizona’s official English law.

voters had approved by referendum a state constitutional amendment providing that

CRS-11

Arizonans for Official English v. Arizona sidestepped37 In 1988, Arizona

38

Yniquez v. Arizonans for Official English, 69 F.3d 920 (1995).

39

facto bar on communications by or with government employees are numerous and varied.

For example, monolingual Spanish-speaking residents of Arizona cannot, consistent with

the article, communicate effectively with employees of a state or local housing office about

a landlord’s wrongful retention of a rental deposit, nor can they learn from clerks of the state

court about how and where to file small claims court complaints. They cannot obtain

information regarding a variety of state and local social services, or adequately inform the

service-givers that the governmental employees involved are not performing their duties

properly or that the government itself is not operating effectively or honestly. Those with

a limited command of English will face commensurate difficulties in obtaining or providing

such information.”

In this regard, the court’s opinion observed: “The practical effects of Article XXVIII’s deId., at 941.

English is the official language of the State of Arizona and that the state and its

political subdivisions — including “all governmental officials and employees during

the performance of government business” — must “act” only in English. A former

insurance claims manager for the state who spoke both English and Spanish in her

daily service to the public argued that the law had a silencing and chilling effect on

constitutionally protected speech of bilingual, monolingual, and Spanish-speaking

public employees and their clients. Despite assertions by Arizona’s Attorney General

that communications “to facilitate delivery of governmental services” were not

“official acts” covered by the law, the Ninth Circuit held that the “plain wording” of

the law defied such limitation and was an overly broad restriction on free speech

rights of state employees and the public they served.

38

The First Amendment analysis applied by the 6-5

Circuit required balancing the right of public employees to speak on matters of

“public import” against the government’s legitimate interest as an employer “in

achieving its goals as effectively and efficiently as possible.” Although the

government may generally regulate public employee speech concerned simply with

“matters of personal or internal interest,” the Arizona law “significantly interfere[d]”

with “communications by or with government employees” related to “the provision

of government services and information,” a form of public discourse entitled to

greater constitutional protection.

considerations constituting fundamental governmental interests in the usual “public

concern” case — and that provide the justification against which the employee’s First

Amendment interests must be weighed — were found totally lacking by the Ninth

Circuit. Indeed, the appeals court determined that government efficiency would

actually be promoted rather than hindered by permitting public employee speech in

languages other than English. Nor was the state’s asserted interest in forging “unity

and political stability” by “encouraging a common language” sufficient to warrant

restrictions on foreign language usage.

The Supreme Court vacated and remanded the case, in effect leaving the

Arizona law intact for the time being. Speaking for a unanimous Court, Justice

Ginsburg declared the case moot since the plaintiff had resigned from state

employment prior to appeal and had never sought to have the case certified a class

action. In addition, the Justices had “grave doubts” whether Arizonans for Official

English, original sponsors of the ballot initiative, had standing to appeal the case as

a party after the Arizona Governor declined to do so. Finally, the federal district and

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en banc majority of the Ninth39 Moreover, the efficiency and effectiveness

40

191 Ariz. 441, 957 P.2d 984, cert. denied, 525 U.S. 1093 (U.S. 1999).

appeals courts had erred by failing to certify unsettled state-law questions regarding

the scope of the English-only amendment to the Arizona Supreme Court for

“authoritative construction” before proceeding with the case. The Supreme Court

thus left a constitutional ruling on the Arizona Official English law for another day.

In 1998, the Arizona Supreme Court decided

state’s English-only amendment violated the First Amendment and the Equal

Protection Clause. Like the Ninth Circuit, the Arizona Court found a core First

Amendment right in a citizen’s ability to receive essential information from

government officials and to petition the government for redress of grievances.

According to the opinion, the state law “effectively cuts off governmental

communication with thousands of limited-English-proficient and non-Englishspeaking

persons in Arizona, even when the officials and employees have the ability

and desire to communicate in a language understandable to them.” Applying strict

scrutiny analysis,

Amendment because it was overbroad and could not satisfy the compelling state

interest test. The Arizona Court also found an Equal Protection violation based on

earlier precedents establishing a “fundamental individual right of choice of

language.” Pending a definitive federal court ruling, however, the constitutionality

of restrictive official English policies remains a somewhat unsettled matter.

Ruiz v. Hull,40 holding that theRuiz held the English-only amendment violated the First

Miscellaneous Federal Policies Providing for Non-

English Translation and Services

Besides voting rights, federal statutory requirements regarding foreign language

interpretation and use are included in various other federal programs and activities.

For example:

!

Code to “preserve, protect, and promote the rights and freedom of

Native Americans to use, practice, and develop Native American

languages.” (25 U.S.C. § 2903(1)) The chapter is supported by

congressional findings relative to the “unique” and “special” status

of Native-American language and culture, and to the need for the

“United States, individual States, and territories to encourage the full

academic and human potential achievements of all students and

citizens and to realize these ends...” (Id. at § 2901) Specifically, in

regard to education, the declaration of policy “encourage[s] and

support[s]” the use of Native American languages “as a medium of

instruction” in Indian schools, and also “encourages” all other

“elementary, secondary, and higher education” institutions to “afford

full academic credit” and “include Native American languages in the

curriculum in the same manner as foreign languages.” (Id. at § 2903)

In aid of this policy, the statute further provides that “[t]he right of

Native Americans to express themselves through the use of Native

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American languages shall not be restricted in any public proceeding,

including publicly supported education programs.” (Id. at § 2904)

Federal departments and agencies are to evaluate their policies and

procedures, and laws within their administrative jurisdiction, for

compliance with the stated policy, but no procedure for

governmental enforcement of the linguistic “right” created by the

law is provided.

American Indians: Congress enacted Chapter 31, Title 25 of the U.S.

!

mental examinations of alien immigrants seeking entry into the

United States (8 U.S.C. § 1222 (b)).

Immigration: Interpreters must be provided during physical and

!

the U.S. Courts is to establish a program for the use of foreign

language interpreters in federal civil and criminal proceedings

instituted by the United States (28 U.S.C. § 1827); courts may

appoint interpreter to be paid by the government in federal criminal

proceedings (Rule 28, Fed. R. Crim. Proc.); service of judicial

process by the United States and state courts on a foreign state, its

political subdivisions, agencies, or instrumentalities must be

accompanied by a translation “into the official language of the

foreign state” (28 U.S.C. § 1608); employment of interpreters in

court-martial, military commission, or court of inquiry proceedings

is required, if needed. (10 U.S.C. § 828).

Judicial proceedings: The Director of the Administrative Office of

!

language that is easily understandable to reader” under various

Social Security Act programs (42 U.S.C. §§ 405, 1383). Foreign

language interpreters or translations are required in connection with

federally funded migrant and community health centers (42 U.S.C.

§§ 254b(b)(1)(a)(iv) and 254b(j)) in a grant program for certain

health care services for the homeless (42 U.S.C. § 256); in alcohol

abuse and treatment programs, which serve a substantial number of

non-English speaking persons (42 U.S.C. § 4577(b); and in the grant

program for supportive services under the Older Americans Act (42

U.S.C. § 3030d(a)(3)).

Social and health care services: Notices must be provided “in

!

translation of publications into foreign languages (7 U.S.C.

§ 2242b).

Agriculture: Department of Agriculture funds may be used for

State Laws

As noted, 28 states have adopted Official English laws in various forms. Some

enactments make a simple declaration of English as the official state language,

CRS-14

41

is the official language of the State of Colorado.”

See, e.g., Colo. Const. Art. II, § 30, which states, in its entirety, “[t]he English language

42

to non-English speaking defendants or witnesses in criminal or civil proceedings); ALM GL

ch. 221C, § 2 (Non-English speakers have the right to the assistance of a qualified

interpreter in legal proceedings).

See, e.g., Code of Ala. §§ 12-21-130, 15-1-3 (Foreign language interpreters are provided

43

apply to an agency for an interpreter if they cannot understand English); Minn. Stat. §

15.441 (“Every state agency that is directly involved in furnishing information or rendering

services to the public and that serves a substantial number of non-English-speaking people

shall employ enough qualified bilingual persons in public contact positions, or enough

interpreters to assist those in these positions, to ensure provision of information and services

in the language spoken by a substantial number of non-English-speaking people.”); Conn.

Gen. Stat. § 19a-490i. (Each “acute care hospital” shall ensure that interpreters are available

for patients that speak a language other than English that is spoken by more than 5% of the

population and must review and translate standardized forms for non-English speaking

patients); Fla. Stat. § 381.026 (Patients who do not speak English have the right to be

provided with an interpreter when receiving medical services if the facility has a person

readily available who can interpret on behalf of the patient).

See, e.g., Md. State Government Code Ann. § 10-212.1 (In contested cases, parties may

44

business licenses are permitted to use interpreters, provided the Department of Licensing

determines that such use would not “compromise the integrity” of the testing process).

See, e.g., Md. Business Regulation Code Ann. § 2-110 (Applicants for professional or

45

English and they speak the same language, then the employer must provide an interpreter);

NY CLS Exec Appx § 466.11 (The provision of an interpreter is specifically included in the

definition of “reasonable accommodation” in the workplace).

See, e.g., Iowa Code § 91E.2 (If 10% or more of an employer’s workforce does not speak

46

should be provided if the supervisor of an election requests such a translation 60 days prior

to an election); N. M. Stat. Ann. § 1-2-19 (An election translator shall be appointed to assist

language minority voters).

See, e.g., Fla.Stat.§ 101.2515 (A translated ballot in the language of any minority group

47

(continued...)

See, e.g., A.R.S. § 26-1028 (Interpreters may be provided for proceedings before “a court-

without more.

uniformity, or otherwise to preserve and enhance the official role of the English

language. More specific measures expressly prohibit or restrict, in one fashion or

another, foreign language usage by state agencies or employees in the conduct of

official business. Specific exceptions to English-only requirements are frequently

included, however, particularly where necessary to comply with federal law.

Meanwhile, a plethora of other laws have also been enacted by various state

legislatures to facilitate communication with persons of limited English proficiency

in the provision of needed public and private services. For example, most states

require the use of interpreters in courtroom and other law enforcement settings,

41 Others arm state legislatures with power to enforce linguistic42

while many states require similar services for LEP individuals appearing before

administrative agencies or seeking health care.

interpretation and translation also appear in state laws pertaining to professional

licensing,

justice.

43 Similar requirements regarding44 business and employment,45 state and local elections,46 and military47

CRS-15

47

47

martial, military commission or court of inquiry”); S.C. Code Ann. § 25-1-2640 (The

convening authority of a military court may detail or employ interpreters who shall interpret

for the court).(...continued)

English as the Official Language of the United States:

Legal Background and Analysis of Legislation in the

110

Summary