EPSL-0203-103-LPRU

Until recently, educational language policy in the US has been the chief site of contention about language, as seen in recent initiatives, referenda, and state constitutional amendments. Provision for drivers' licensing testing in languages other than English (LotE), on the other hand, has often exemplified what I call expedient language policy, i.e. using a LotE for a higher end, that of ensuring highway safety and enhancing opportunities (freedom of travel, especially for economic benefits, i.e. work). In some states, however, notably an Alabama case Alexander v. Sandoval, , language policy of vehicle licensing has become symbolic of other issues, and the ACLU is now pitted against the National Review, the ACLU, the English-Only and English-First organizations, as well as disability- rights organizations, many of whom have provided amicus curae briefs, all of which seems at first glance out of proportion to the importance of the issue at hand. Between the time this paper was proposed and the present, the the Supreme Court has heard this case and found in favor of the state of Alabama and against the parties to the original suit. (The court heard Alexander v. Sandoval No. 99-1908 on January 16, 2001, and issued its opinion, for Alexander, on April 24, 2001.)

This paper reviews some of these issues, and attempts to view them from at least two different perspectives: one is the legal perspective and what the case seems to mean for rights of individuals whose primary language may not be English, and secondly, how is this understood and argued in public debates, particularly in journalistic and internet discussions. This second perspective leads us into the context of implicit, folk concepts of language policy and US language policy law, where we see arguments to the effect that expansion of language rights seem to involve notions of legal `slippery-slopes', or `creeping incrementalism', i.e. `if you give them an inch, they'll take a mile.' The recent opening of borders to international trucking, a consequence of the NAFTA agreement, coupled with court cases about racial and ethnic profiling, should make this issue a contentious one for some time to come.

Background of the Case. The case began in 1996, when Martha Sandoval, who was born in Mexico and had limited-English proficiency, went to take a drivers' license test in Alabama. Previous to 1991, Alabama had administered the driver’s exam in 14 different languages, including Spanish, Korean, Farsi, Cambodian, German, Laotian, Greek, Arabic, French, Japanese, Polish, Thai and Vietnamese. In 1990, Alabama had amended its constitution to make English its official language, and the drivers' licensing rules were then changed, the interpretation having been made that the officialization of\ of English (Amendment 509) required this change. Sandoval was unable to take the written test in Spanish, and would have failed the English version, so she continued to drive without a license, which occasioned a number of arrests. The Southern Poverty Law Center then took up the case as part of a federal class-action suit of the more than 24,000 LEP residents of Alabama, alleging that

"the state violated federal law by requiring applicants for drivers' licenses to take the written examination in English. The particular federal law that supported this lawsuit is known as Title VI of the 1964 Civil Rights Act (42 U.S.C. § 2000(d)). Title VI prohibits discrimination grounded in race, color or national origin. (Welner 2001)

"the regulation had impermissible disparate impact on the basis of national origin in violation of Title VI, and was not supported by substantial legitimate justification."

"implementing Title VI, pursuant to § 602 of the statute, have been consistently given a broader interpretation [...]. Lawsuits grounded in these implementing regulations are unique in that they allow people like Ms. Sandoval to make their arguments in federal court by showing the discriminatory effect (“disparate impact”) of a law. (Welner 2001:3)

The crucial issue, then is disparate impact or unintentional discrimination and whether the law is required to protect individuals against this, and whether private individuals have a right to sue the state for discrimination under Title VI of the Civil Rights act, even if the state can offer a legitimate non-discriminatory reason for a regulation or law. The Eleventh Amendment of the U.S. Constitution, which sets out conditions affecting separation of powers, is also crucial in determining whether individuals may sue in certain cases.

The federal court hearing the class action suit ruled against Alabama, finding that the English-only policy did discriminate against non-English speaking applicants, and without substantial legitimate justifications. In November, 1999, the 11th Court of Appeals (197 F.3d 484) affirmed the federal court decision, holding

"that [Sandoval’s] suit is not barred under the Eleventh Amendment, that Section 602 of Title VI creates an implied private cause of action to obtain injunctive and declaratory relief under federal regulations prohibiting disparate impact discrimination against statutorily protected groups, and that the district court did not err in deciding, on the merits, that the [State of Alabama’s] English-only official policy constituted a disparate impact on the basis of national origin." (Hoops 2001:3)

The implications of this act, both for non-English speaking persons, and for other classes of individuals, even citizens, who may have handicaps, who speak English but are illiterate or deaf, as well as disability issues in other types of disputes, are enormous. Part of the irony of this issue is that the State of Alabama already provides accommodations for the deaf, the disabled, and illiterates, but denies non-English speaking people the right to use a dictionary or an interpreter. Moreover, Alabama permitted non-English speaking drivers from other states and foreign countries to exchange a valid license from those jurisdictions for an Alabama license without taking the written examination. Thus, the argument that drivers in Alabama need to be able to read English (other than road signs, which in any case now increasingly use international icons) in order to function legally on Alabama roads.

The Supreme Court's Decision

"Congress only intended these regulations to be directly enforceable by the Office of Civil Rights—a political body with very limited resources—not by a private right of action." (Welner 2001:4)

As one source put it (Westlaw 2001), the issue was one of federalism vs. states' rights, and whether the Civil Rights Act of 1964 established a private right of action to enforce the disparate effect of the regulations promulgated by federal agencies under para. 602 of the Act, and bypass federal agency review and enforcement process[es] established by Congress. That is, the federal agency review and enforcement of the Civil Rights Act, and the review of any purported violations of it, are to be undertaken by agencies of the federal government, and may not be sued by private individuals, even if they fail in the view of these individuals, to carry out proper review.

Arguments in favor of Sandoval were even made by the U.S. Solicitor General, noting that the concept that "an individual can sue a state over a civil rights violation was 'a shared understanding' that was 'utterly embedded' in 25 years of case law, and that the court had a completely unbroken practice of enforcing regulations equally whether they arise from statutes or from regulations." (Waxman 2001:3, in Westlaw 2001)

But the Court seems to have been strongly, and perhaps even bitterly, divided on the case, and Justice Stevens, speaking for the dissent, made this clear.

While the court "has never said in so many words" that there was a private right to enforce the discriminatory impact regulation, Justice Stevens said, that had been the nearly universal assumption for many years. Of the 12 federal appeals courts, 9 had addressed the issue and all 9 had found that such lawsuits could be brought.

Justice Stevens called the decision "unfounded in our precedent and hostile to decades of settled expectations." (Greenhouse, 2001)

Whether or not this case will, as many think, have implications for civil rights cases in other areas, such as sex discrimination in collegiate athletics, or in racial or other kinds of cases, is beyond the scope of this paper. Congress is, of course, free to sharpen its definition of discrimination, and might even revise the Civil Rights Act of 1964 to make explicit the private right to sue in cases where federal agencies seem to drag their feet.

Folk Ideas about Language and Language Policy

The other issue I wanted to examine here is the issue of popular-culture ideas about language and what this case has stimulated in terms of public discussion. A typical example is Hakola 2001, from the "Center for American Unity" based in Warronton, Virginia. Hakola's statement was issued before the Supreme Court ruled, so her statement is a kind of warning of the dire consequences that would befall the nation if the court were to find for Sandoval. Her metaphors include:

• Our English language is the defining characteristic of our great nation.

• Our English language is the attribute that distinguishes us as Americans

• Our English language provides the nation with a sense of unity and common direction.

• Our language allows us to communicate and share ideas, but also continuously reminds us that we are Americans with a common desire to see our nation prosper.

• English provides the fabric that unites this land of individuals as a country.

• The English language is the bulwark of our national unity.

If the court were to rule for Sandoval, however, it would give legal force to the proposition that

... if a state does not provide services in any language a person demands, the state has unlawfully discriminated on the basis of national origin. [emphasis mine, hs]

Furthermore, according to Hakola,

• Bilingual Education has failed

• Teaching in English succeeds.

• Federal agencies (such as the EEOC) continue aggressive attacks on successful English-language policies (by attacking employers who require English on the job).

Another predictable set of notions about this case were expressed by Jim Boulet Jr., executive director of English First, on the morning after the Supreme Court decision. Mr. Boulet described the decision as a "chilling reminder of the slender threads" which the "shreds" of our national linguistic unity hang, since the court came with one vote of making "language choice a protected civil right" and transforming every trial lawyer's office into a "miniature federal law-enforcement agency." That is, deciding for Sandoval would have meant a flood of lawsuits demanding services in a manner that does not discriminate against non-English speakers, which would have meant a "linguistic nightmare" for this country.

Or, for another opinion, this one garnered from a chat-line labeled only "Upstream Vdare's Scott McDonnell", by a Robert L. Gleiser, on January 18, 2001:

"Her [Sandoval's] victory threatens the entire edifice of law and custom pushing new immigrants to learn English." [boldface emphasis mine, hs]

What these metaphors seem to have in common is the following:

• The English language is the primary uniting force holding together our nation. Without it, we are doomed to inundations, floods, lawsuits, and other depredations.

• Allowing private parties to sue the federal government under the Civil Rights Act of 1964 would cause havoc (floods of lawsuits etc.) In fact, any expansion or liberalization of language rights would be chaotic.

• Law and custom are causative in forcing immigrants to learn English; without law, immigrants will not learn English (and economic determinism is without value.)

• Civil Rights have nothing to do with language, and language is not a "proxy" for discrimination on the basis of national origin.

• English is a "fabric, bulwark, a strength; a unifying force" and weakening this edifice goes against "common-sense" ideas of the people and how they wish to govern themselves.

• A decision in favor of Sandoval would be a "judicial fiat" that would result in tyranny (whereas a decision against Sandoval would be common-sensical, and in favor of democracy.)

• Returning Alabama to its pre-1991 multilingual testing status will "increase the public safety risk to Alabama motorists" and cost more.

Conclusions

If nothing else, Alexander v. Sandoval has succeeded in inflaming both the right and the left, and clearly the ramifications of this case are not over. Both the 'victors' and the 'losers' see significant effects, and vow to fight even harder for their goals--the left determined to attempt to strength and revise the Civil Rights Act to allow private action, the right determined to seek constitutional amendments to officialize English.

What is significant in the metaphors used by both sides, however, is that the opponents of language rights see the expansion of rights as almost apocalyptic: more rights would cause chaos and bring disorder, disintegration, the end of the republic as we know it. Denial of rights, however, would save the republic, for now at least, though eternal vigilance must be maintained to assure that our 'fragile' and 'tenuous' democracy is not compromised in the future.

Proponents of language rights and their expansion, however, do not use such metaphors. They regret the Court's decision in Sandoval but do not predict chaos or bloodshed. Instead, they counsel patience, and recommend a sort of fine-tuning of the Civil Rights Act, to make the disparate impact problem more salient and more specific, so that remedies can be enacted. The proponents of language rights see such cases as crucial for redress of problems in other areas, i.e., to make it easier to prove discrimination, but their metaphors are not of the apocalyptic sort.

The organizer of this panel stated earlier that one of our goals here should be to see what it is that linguistic anthropologists can contribute to the elaboration and formation of language policy. One of the most obvious things we might do would be to try to 'unmask' the hidden belief systems, myths, ideas, etc. that underlie various points of view represented in the statements of parties who have, in the case of drivers' licensing policy, entered the fray in one way or another. Anthropologists are good at looking at folk belief systems, and in contrasting them with the 'facts' of various situations.

Another useful activity would be to try to establish how the legal system works in this (and other) countries, and attempt to see whether issues of legality have to do with changing things superficially, or whether, as many warn, will unleash powerful or tyrannical or uncontrollable forces, leading to immeasurable damage to our way of life.

In my own work in language policy I have always taken the rather conservative point of view that because language is not specifically mentioned as a right granted to the federal government by the states, and because the 11th Amendment does not mention language, that language is therefore, for better or worse, a "states right". I believe therefore that language rights will not change incrementally, i.e. small victories in cases like Alexander v. Sandoval will not lead to a gradual accretion of language rights that were not previously recognized. This has seemed to me to be the case since the landmark Meyer v. Nebraska case in 1923, since that case allowed certain rights for language that did not in fact extend the benefits expected by certain analysts, since the climate of public opinion was strongly against the exercise of those rights. That climate, one of strong monolingualism, is still rampant today, and no amount of legal wrangling will make the American public change this view, in my opinion.

This view is the one that prevails, apparently in Alabama, and can be found not far below the surface in many other places, not the least of which would be the many internet sites where these ideas are constantly being expounded. What we can do is to educate the public about the US legal system—what it does and how it works, and what can be expected from legal challenges to language-related issues, and what is unlikely to change.

Sources Cited

1. Boulet, Jim. "A Few Votes from Babel." Guest commentary on National Review Online, Oct. 31, 2001.

2. Greenhouse, Linda. "Supreme Court limits Scope of a Main Civil Rights Law." New York Times April 25, 2001 (on-line version.)

3. Hakola, Edith. "The Center for American Unity Statement on Sandoval v. Alexander." cfaustat4.html

4. Hoops, Stephanie. "Overview: Alexander, James et al. v. Sandoval, Martha." Medill School of Journalism, On the Docket. April 24, 2001.

5. Welner, Kevin G. "Alexander v. Sandoval: A Setback for Civil Rights. Educational Policy Analysis Archives Vol. 9, No. 24, June 2001.

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