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�MAJORITY MEMBERS:
RANO'( "001(£" CUNNINGHAM. CAUFORHIA.
MINORITY IotEMIJERS:
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DALE E. IOLOEE. MIOIIGAN.
R.u.:.wo _ ..."
GEORGE MIU£R. CAIJFORNIA
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WlWAM F. GOOOUNG. P£NNSVlV,.".1A
STEVE GUNOERSON. WISCONSIN
MICHAEL N. CASlI.E. OELAWAIIE
SAM JOHNSON. TEXAS
. JAMES C. GllEEHWOOD. P£NNSVlVANIA
fRANK D. RIGGS. CAUFORNIA
DAVE WELDON. FLORIDA '.
MAAKSOUOER._
DA\IIO McINTOSH. INDIANA
PAT WILLiAMS. MONTANA
IlOHAI.D M. PAYNE. NEW JERSEY
PATSY T. MINK. HAWAII
EIJOT L ENGEL NEW yORI(
ROIlEIfr C. "B08Il'Y" SCOTT. VlllGiNIA
CARlOS A. ROMERO·BARcnO. PUERTO RICO
COMMITTEE ON ECONOMIC AND
EDUCATIONAL OPPORTUNITIES
SUBCOMMITTEE ON EARLY CHILDHOOD,
YOUTH AND FAMILIES
U.S. HOUSE OF REPRESENTATIVES
2181 RAYBURN HOUSE OFFICE BUILDING
WASHINGTON, DC 20515--6100
WITNESS LIST
WEDNESDAY, OCTOBER 18. 1995
Subcommittee on Early Childhood. Youth and Families
Hearing on English as the Common Language
11:00 a.m .. 2175 Rayburn'House Office Building
Panel I:
Honorable Bill Emerson (R-MO)
Member of Congress
Honorable .Jose E. Serrano (D:-NY)
Member of Congress
Honorable Toby Roth (R-WI)
Member of Congress
Honorable Richard C. Shelby. (R-AL)
United States Senate
Honorable Peter T. King (R-NY)
Member of Congress
Panel II:
Hononible Sonny Bono (R-CA).
Member of Congress
Honorable, Robert A. Underwqod (D-GU)
Member of <:;ongress . ...
Honorable Xavier Becerra (D-CA) .
Member. of Congress
·Honorable John T. Doolittle (R-CA)
Member of Congress
Honorable Ed Pastor (D-AZ)
Member of Congress
Honorable Gene Green (D-TX)
.Member of. Congress
MAJORITY ~2021 22s--l527
MINOR!1Y ~2021 225-3725
�OPENINGSTA TEMENT
ON
"ENGLISH AS THE COMMON AMERICAN LANGUAGE"
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REP. RANDY tlDUKEII CUNNINGHAM (R-CA)
CHAIRMAN, HOUSE SUBCOMMITTEE
ON EARL Y CHILDHOOD, YOUTH, AND" FAMILIES
WED., OCT. 18, 1995~ 1l :00 A.M.
2175 RAYBURN BUILDING
Good morning. Welcome to the first hearing of the House Subconimittee on Early
Childhood, Youth and Families, on the s~bject of "English as the cornmon American language."
The question of establishing English as the common language of the United States has
gathered an increasing amount of public attention. Twenty-one states have enacted laws
declaring English as the official language of those states, and of their official business. Among
these is my state of California, where Article One, Section Six of our State Constitution
establishes "English as the COmInon language," and prohibits the Legislature from enacting "law
which diminishes or ignores the role of English as the common language of the State ......
But clearly the issue has grown beyond the law books into the public arena. [n an address
to the American Legion this past Labor Day, Senate Majority Leader Bob Dole brought the issue
front and.center to' the national stage. He expressed an .opinion held by many, when he said
"(w)ith all the divisive force,S tearing at ourcountry,we need the glue oflanguage to help hold us
together."
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[n today's hearing, we will receive testimony from several me~bers of Congress who
'have introduced legislation establishing English as America's common language. We will also
hear from opponents of the policy known as "English-only" or "Official English." Many of these
measures, though not all of them, fall under the jurisdiction of this Subcommittee. Thus, this
~ubcommittee is the ideal p~blic forum for debate onthis issue.
We can begin today where we agree. Anyone who hopes to achieve the American Dream
must ,first know, understand and use the American language, English, That includes Americans
born in America. and Americans and legal residents .born elsewhere,
From that principle, we can present questions that witnesses at today's hearing will help
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address:
For instance, wouldestablishnient of English as the comrno~, nationaLlanguag~ send a :
strorig message to new ~ivalsto' this country, that the;American Dream requires En'glish fluency ..
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Sl10uld Congress formally est~blish J?nglish as ,the Janguageof American,Government?
What are the legal and social implications ofsuckpolicies? '
And finally, are there other FederarpoliCies orprograins that sigpificantly,heJppe6ple
learn English? Or do certain policies or prdgrams,isolate,peo'pie from the predominant national
language, and keep them from a:chi~ving, the, American Dream? .'
I recognize !hat one such progra.JJl, that draws attelltion wheJ:l Official Engli~h policies are .
discussed is the Bilingual Educationprogram. There will be a time to qiscuss the particulars of'
Bilingual Education in this Subcommittee. It deserv~s its oWn hearing at sornefuture ,d~te.'. .
, Thus; I would ask that witrl~sses and ,Subcommitte'e Members please keep their remarks to the
o~e issue at hand today, the, establishment of ~u'glishasthe cominon.language. '
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. .' This hearing will be run on good Navy time, with the five mipute rule ineffe~t for ..
wimesses".statements and Members questions. This respects every ,Members' right to ask and
answer questions in a timely' 'manner. ' Those who have additiona:l stateru'~nts arid qu~sdons may
submit them for the Record.
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I will n<;>w recognize the Ranking Member of ih~, Subconllnittee, Mr. Kildee; for ;m
opening statement. ,Then I willintroduce, our first paneL
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Statement of Congressman Bill Emerson '
. Before the House Subcommittee on Early Childhood, Youth, and Families of the Comittee on
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.Economic and Educational Opportunities '.
, Hearings on "English as Officiill, Lariguage"
October 18, 1995
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�Mr~
Chainnan and distinguished members of the committee, I would like to. thank: you
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for the opportunity to appear before you today to discuss the importance of designating
English as our official language.
As most of you know, I have been the leader of this moveme,nt in. Congress for some
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seven years now. I believe very strongly that English should be designated as
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official
language of the federal government. Why? Let me i?ffer you my answer.i ..
English.is our language by custom and practiCe only. It serves as a common bond in
. this diverse nation of immigrants. However, over the last fL{teen to twenty years, this nation
has had to wrestle with the difficulties of trying to serve its ever growing non:-English
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speaking populatiori. In an effort to assist the limited-English proficient individual, the
Federal Government has sanctioned and promoted what amounts to unofficial multi
lingualis~. When we 'allow the INS to conduct citiZenship ceremonies in foreign; languages
and the IRS to 'print and distribut~ foreign hingUage tax fonns, then I believe we are
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establishing 'some genuinely dangerous precci:lents. It is ill-advised, in my view, to
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multi-lingual governing for various, isohite,d, non-English speaking enclaves. ~ucha:p()licy'
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sends the very destructive message· of linguistic and· social separatism, and would .effectivel y'
create a number of linguistic ghettoes across the country'.
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Some common sense panirileters on the use of mUltiple languages in government
would help to counterbalance such divisive messages. We c,annot afford, either socially . or
�monetarily, to allow the advancement
~f multi-lingualism within the F~deral Government:
Let ~e submit a few ex~mples Of the waysin which the government has practiced
wasteful and inisguided muitilirigl,lalism in recent year;." Just a few weeks ago, the General
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Accounting Office' releas~d, 'a repo.n ,o.n this very isslIe, 'in resIJo~s~ to a letter i sent in
conjunction with Senator Shelby-,and Representative Clinger. The GAO repon identified the
fo.llowing unsettling, evidence.' Go.vernment and taxpayer reso.urces have been expended to
produce,htindreds ,of documentS
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~y of languages, including Cambo.dian,' Romanian,
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Chines~. In Ukrainian:, federal offiCials published a p~per entitled "Investigation o.f the
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Ukrainian, Famiri~ 1932-1933." ' In Po.rtuge,se, the Centers for Disease Control promulgated
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an "Investigation 'About the,Repro.ductive,B'ehq.vlor of Young Peo.ple in, the Cityo.f San ,,'
~oes.o.n
Paulo. "The QAOsrudy
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to' highlight, of.'numhe'i,o.f other
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disturb~g figures
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trends.
, My legislation, H;R. 123; ~ o.ffers 'a balanced" reaso.nedt approacht~the ~ommo.n
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language, issue. Itreco.gnizes thai' a:~o.mmon lC:mgu~ge is.abo.utempo.wermem'and,iri~lusio.n .
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Appreciating the
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Po.~erfulrole, cif ~an~agein,human so.ciety (having the ability. to ,unit~, o.r
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divide), it affirms that the job; of go.venunentis.'to ,
fo.sterand advance the common,go.od:A
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COo.perative, prosperous co.untrywith an-o.fficial policy, o.f pro.moting o.~r commo.nlanguage,
English, is preferable tc? a n'atio.rt divid~d by linguistic factio.ns.
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SUPPo.rt the idea
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It is fo.r this reason that I
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of having English'de$ignated as our o.fficici11angllage.··
More thah:any Other fo.rm ofgo.vemment, demo.craciesrequire interaction between the
people arid the
governii1gbodie~.; co.nst~t
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interaction: that pro.vides a barometer for those
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go.verning to use in determining the impact .of their decisio.ns upon the governed. A shared
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. metho.d of co.mmunication --.a,co.m~on la~guage --is' essential fo.r this dynamic. Again, I·'
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reiterate that my legislation is based ,on the principles of inclusion and empowennent.
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I do not believe,that we really help individualsbiperiodically offering certain
services in some foreign langu'ages. Rather, I believe that the money used to administer such "
foreign language functioning is better used t~aching non-English speakers 'our common
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language. It is not enough to say --, here is a fish, feed yourself for a day -:- We need to be
providing non-English spea.ki.flg individuals the rod that willallowthem to catch their 'own
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fish for the rest of their lives. Please understand, ,that if we do· not address 'this issue
in a
rational, forward thinking n:tanner, then we will be guilty of having allowed a new type of
welfare to' have been institutionalized -- Linguistic ,welfare.
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C.onsider these figures which, dramatically ,show that English-speaking ability' is
critical to stable income and a good quality ofllfe. A shIdy in Texas last year demonstrated
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that annual income is directly proportional to the level of English fluency. Fluent speakers
included in the study
co~ected
salaries as high as $27,440 per year, while, their less fluent
peers were unable to keep up"eatn.i.D.gas little as $750,annually . The genefcll trends
indicated that individuals and iniinigrants with fewer English skills earned
les~,' were not as
healthy; and are less hopeful for the future than similar people with better English
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proficiency.. These facts are very telling.
, I do riot propose, as: $ome do, the total abolishInent of all foreign language assistance,
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believ~ that the
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langu~ge debate ~uffers as
a result of that type of
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philosophy. I want to set the record straight so that there is no misunderstanding. Within my
legislation, H.R 123, I have inCluded an e~emption clause which ensures that no essential "
services -- emergency, health,and justice -- would be restricted. It is not "English O.nly. "
The term "English Only" is most often used by the anti-common-Ianguage groups to promote
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, theJalsehood that lam opposed 'to·oth~r·lan·guage.s.Thilt:couldnot be farther from the truth.
1 recognize that' there'areindivid~alS currentlv HvinE: in: and corning to, the United
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States who do
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not'kn'o~: English -- and we have an obligation to extend certain essential
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services to therp .. However, it ·is ·inystrong belie(thar. we have an even 'greater obligation to.
ensure
t~at 'they'get the chan~e :to learn English s~ that they canpart~e 'of all th~ wonderful
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opportunities that eXist ~r this great ~ountry of ours .. "
Survey~ consi~tently' rev~al ~verwheimingsupport· for English as the.officiallanguage.
conducted on this issue . . . . .
re~ealed that- 86 percent of those'
In fact, the latest nationwide survey .
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individuals surveyed support English as the official lariguage. It also ·revealed that8l. percent
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of immigrants support English as the'offldallanguage.
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The idea of having
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an official language is·nqtatypical.
Nations around the w~r1d -
more than half or"theiJ.l, in Ifact ..- designate' officiat hmguages, Cbuntriesiike VenezUela,
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which specifies that Spanishis~tsofficial,).anguage. Does that mean thatVenezue'ta pt?hibits'
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, the u~e of. any ~the; language but Spanish? :Oft:~urse not.' It· means only that the",
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Government ,of VenezU'ela, functions in Spt;lnish
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arid it is -important to know Spanish in'
-Venezuela. _
-Efficient comniunicatlonamong the branches-of 'governrnentandarhong·ou~. people
enables' stability
and dIversity.
·My '~ct~rovides ~pl"ecise, uneq~ivocal form of'- - .
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If. ~econtinue to.wait, theproblerns.in.herent'.in !lot having
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continuet6~ro\\;. This will 'inevitably result in increas~d; p~lapzatio~of' .
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the two s'ides ot this debate',: aI1,dthe final ,outcom~ wiU be' such deep-rooted hate and
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resentment between the two that we' may never be able to reach a comprC>misedsolution.,.
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A£ain; I thank the Chairin~'n and the m~mbers, 'of . the. com~ittee for conductin!? this
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hearing..1 think thaLsuch a'forum is tremendously important, and something that is
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welcomed by folks across. the country. "At this' time I would be happy to answer any
"ques.tions that you might ,have, "
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�Richard Shelby
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.' ' United Suues Senacor • Alabama
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For More Information Contact
Laura Co=< (202) ,224~65Ili
STATEMENT OF
,U. S. SEN. RICHARD C. SHELBY
RE: ENGLISH AS THE COMMON LANGUAGE
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PREPARED FOR THE HOUSE COMMITTEE ON ECONOMIC
AND EDUCATIONA~ ~OPPORTUNITIEs - OCTOBER l8, 1995
Mr. Chairman. thank you for the opponunity to speak regarding English as the Official Language of
Government, English is the language of opponunity in America. It builds bridges and.can foster hope--
without it, a person is limited and unnecessarily disadvaniaged in America.
I believe, like Representative Emerson, thit all functions of the federal government should be
performed in English, Accordinjpo theUniied Nations Repon. "Study of the Problem of Discrimination
Against Indigenous Populations." an official language is "a language used in the business of government
(legislative, ex.ecutive. administrative and judicial) and in the performance of the various other functions of
the state." In comparison. a national language is defined in the st~dy as' "the language of a sodaland cultural
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entity wh~ch is in widespread use in a country."
I want to emphasize that I a'm advocating English as an "official", language· (he language of record
for official government functions, In no way do I believe we should limit an individual's use of his or her
native languagt: intht: homt:. church. community or even work if the employer pemlits.
While bilingual education hasbeenmel'!(i~ned here today, my legislation does not amt:no. t:lllninatt: or'
in anyway affect or address bilingual education programs.
Throughout history. ,language has been both a unifying force and a great 'divider, In tht:' United
States. English has' been (he de facto official language since the inception of this nation, Ever since the first
settlers chose English. it has been the commonly accepted and spoken language in America, Howt:ver.
lacking any legislativt: action, we are not cenain whether English will remain the official language. or
whether an officially·designated. common language will ex.ist at all. Currently. the United States IS tht: fifth
largest Spanlsh·spt:akmg nation: Additionally, approx.imately 323 separate languages are now spoken in this
coumry.
According to the General Accounting Office, the federal 'government is alrt:ady priming documents ill
.Spanish. Portuguest:, F~t:nch.Chinese: German. Italian. Russian, Ukrainian. Korean and others. If we
choose to perform fedt:ral' functions in' these languages. how'can we justify saying no 10 priming document's ill .
theOlher eXIsting languages. such as Chinook Jargon, Micmac or Syriac? W~ cannot. '
Anotht:r Jact, equally as importam. is the types of documems we are printing In foreign languages"
For ex.ample. the "Investigation. About the Reproductive Behavior of Young People in tht: City of Sao Paulo'
in Portuguese or the "Nutrnivt: and Dietetic Guild to Wild Animals in Captivity" in Spanish I do nOl bdit:\(!
tht:se publ icaiions art: in the natlon·.$ best interest. .
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Is' it in (he nallofiarinierest to adopi an official language of government') Appart:ntly 88 otht:r natioll~
think so, Eighty·eight of tht: 159 mt:mber nations in (he United Nations have constitutional language policy
provisions, .
A retem national poll found that 86 percent of the respondents' support English as the official
language. The issue transcends racial, ethnic, educaliortal and sexual lines .. Virtually any way you divided
the populatio~. support ranged from 80 to 91 ,percent. '\n-fact, 81 percent of first generati'on iminigrams
support English as the official language,
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The majority of people' genuinely believe a common language serves as a bridge unifying communities
by opening the lines of communication, [n this diverse land of ours', English allows us to teach. learn about
and appreciate one anolher. The fad that such a significant part of our nation's',population values a common.
established language for individuals 10 engage in conversation, commerce and political discussion substantiates
Ihe; desire and the need for an official language.
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Without a common language. the ability, to maintain a law abiding citizenry is impaired and the ability..
to offer true representation is hampered if individuals cannot communicate their opinions, Parlicipatory
: democracy in this country simply requires people learn the English language.
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The bOllom line is that English'is the lang4age of opportunity, English is (he language that allows
individuals to takt: advantage of tht: social and economic opportunilies America has to offer, Legislating
English as tht: o(ficial languagc oot:s 1\00hing more than to help individuals asslillilate illlo AIllCflcan SOCi!!1 Y
This assimilation' is essential if we are to assist any individual in tht: time of nt:cd ano aVOid .the
balkallization of tillS country in'to separa'te t:thnic and nalional idenllties. Thank you
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,I lOHanBuilding, Washington. D.C. 20510 • (202).224-5744
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CONGRESSMAN BILL RICHARDSON
TESTIM:ONY OPPOSING ENGLISH AS A COJ.\1l\tION LANGUAGE '
COJ.\t1MITTEE ON EDUCATION AND ECONOMIC OPPORTIJNITIES
Oct. 18, 1995
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Mr. Chairman, as a Representative of a district where more than half of the
population is either a Native American or Hispanic, I am quite aware not only of the
importance of multilingualism for the well-being and prosperity of our society, but
also for fulfilling the ideals of freedom and democracy. This is the reason why.I
strongly oppose English as a Common Language proposals, which negate the
realization of these ideals by making America an English-only nation.
English-only bills would require the federal government to conduct its official
business in English" including income tax forms, information materials and "
publications. Various bills also repeal the Bilingual Education Act, eliminate the
Office of Bilingual Education and Minority Languages Affairs in ,the Department of
Education and terminate provisions of the Voting Rights Act of 1965 regarding
, bilingual election requirements.'
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I want to make it dear that I understand that learning English in America is an
imperative. Yet, I also realize the invaluable benefits and advantages that the
mastering of a second language provide to the individual in modern society. At the'
beginning of this century, an individual with limited English skills and formal
, education could succeed because the economy, mainly industrial and agricultural,
relied on unskilled labor. In today's high-skilled, high-technology labor market, it is
extremely difficult, if not impossible to succeed without receiving a formal education.
Bilingual education is one of the programs that has helped hundreds of thousands to
. get an education and realize the American dream.
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According to a study conducted by the National Academy of Sciences (NAS),
one of the most prestigious research bodies in the world, limited-English proficient
(LEP) students in bilingual education programs posted higher test scores and were
able to problem' solve, analyze, and apply critical thiitking skills earlier than LEP
students in English-only settings because they could explore challenging matters long
before students in monolingual English classrooms. The study also revealed that
providing LEP studerits with substantial instruction in their native language did not.
interfere with or delayed their acquisition of English language skills" but helped them
to 'catch up' to their English-speaking peers in subjects like English reading and
math. The data concluded that by grade six, studentS provideq with English-only
instruc~ion actually fall further behind their En~lish-speaking peers.
In addition, multilingualism is extremely important for the well-being OfOUf '
economy, which relies greatly on trade and international business, Four of five jobs
in the United States are created through exports, and the majority of export jobs are
" service-related,which 'requires the mastering of a second Janguage. A survey', .'
, conducted this year found that 40 percent of big business executives in the United
States hire bilingual employees, Although English-only legislation ,introduced in the
House r~cognizes the need for language skills in international business and trade, it
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eliminates all education programs for" children who do not speak English.
Furthermore, it is cou~terproductive and dimgerous to forbi'd those individuals
who have a difficulty in learning English or are learning English from communicating
with their government. Legislation would mandate that health and safety warnings
w.ould be published only in English, which is a safety hazard to people in our country
who do not speak English. Doctors and nurses would be unable to cOrJlmunicate to
non-English speaking patients,. even in 'life threatening 'situations.
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Dictating what language people can speak and read is also a strong limitation
of individual .liberties . Language is a. powerful form of self-expression and to prohibit
people to express themselves run counter to the ideals of freedom, tolerance and
equality on which our nation is based. Beyond limiting personal freedom, English
only legislation. impairs education·; denies people the right to participate and vQte in
their democratic government and hampers our nations ability to be a leading world
trading power.
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�'. TESTDlONY OP R"EP. PE'l'ER' T. ICING.
ENGLISH
AS THE COMMON LANGUAGE
ECONOMIC AND EDUCATIONAL OPPORTUNITIES
CHILDHOOD~
SUBCOMMITTEE ON. EARLY
YOUTH AND PAMILIES
·OCTOBER 18, 1995
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MR. CHAIRMAN, I WOULD LIKE TO COMMEND yoq FOR HOLDING THIS
HISTORIC HEARING ON MAKING ENGLISH THE OF.FICIAL LANGUAGE OF THE
UNITED STATES.
I ALSO, ApPRECIATE THE OPPORTUNITY TO TESTIFY
TODAY ON.THIS IMPORTANT ISSUE.
FOR THE FIRST 190 YEARS OF OUR NATION'S HISTORY, MILLIONS OF
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IMMIGRANTS CAME TO OUR SHORES KNOWING THAT THEY WERE EXPECTED TO
LEARN ENGLISH SO THAT THEY AND THEIR CHILDREN COULD BREAK FREE
,FROM THE SHACKLES OF THE GHETTO AND CLAIM THEIR SHARE' OF THE
AMERICAN DREAM.
AND IT WORKED.
. COUNTLESS IMMIGRANT, CULTURES
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THE GREAT AMERICAN MOSAIC' OF
TRADITIONS AND BELIEFS· BOUND
TOGETijER BY THE 'GLUE OF A COMMON LANGUAGE BECAME THE ENVY OF THE
, WORLD.
UNFORTUNATELY
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THE PURVEYORS OF POLITICAL CORRECTNESS HAVE,
BEEN SUCCESSFUL IN INSTITUTING BIG GOVERNMENT PROGRAMS TO
ACTIVELY DISSUADE NEW IMMIGRANTS FROM;LEARNING ENGLISH.'
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CURRENT LAW ACTUALLY MANDATES .MULTILINGUAL PROGRAMS AND
SERVICES.
THE U.S. DEPARTMENT OF EDUCATION REQUIRES BILINGUAL
�CLASSES BE PROVIDED TO SCHOOL CHILDREN.
,LOOK AROUND ,ANY MAJOR
CITY AND YOU WILL SEE GOV,ERNMENT- SANCT,IONED SIGNS IN OTHER
LANGUAGES;
IN NEW YORK STATE DRI~E'R S LICENSE TESTS ARE GIVEN IN
I
.
.
.'
21 LANGUAGESi IN THE CITY ,OF LOS ANGELES THERE ARE 6 LANGUAGES ON
THE VOTING BALLOT; AND 'CLAsSES IN NEW YORK CITY PUBLIC SCHOOLS
ARE ,TAUGHT IN 115 LANGUAGES.
IT SHOULD COME AS NO· SURPRIS E THAT.
AMERICA HAS BECOME A VIRTUAL TOWER OF BABEL.
AFTER 27 YEARS AND BILLIONS OF TAXPAYER DOLLARS, ONE THING IS
.,
CLEAR·
BILINGUAL EDUcATION IS A COSTLY FAILURE.
THE NEW YORK
CITY BOARD OF EDUCATION,.fU)MITTED A$ MUCH INA REPOR-r:IT ,RELEASED
LAST YEAR.
THIS REPORT SHOWED THAT LIMITED, ENGLISH PROFICIENT
CHILDREN WHO WERE TAUGHT IN ENGLISH FARE FAR BETTER THAN THOSE
,
WHO RECEIVED INSTRUCTION IN THEIR NATIVE LANGUAGE.
IN FACT 90%
OF THE STUDENTS WHO ENTER BILINGUAL EDUCATION BETWEEN, SIXTH AND
,
.
.
NINTH,GRADE FAIL TO MOVE ON TOWARD REGULAR CLASSES WITHIN THE
. REQUIRED THREE YEAR PERIOD,.
NEARLY THREE DECADES OF LINGUISTIC WELFARE HAVE DISCOURAGED
NEW AMERICANS FROM.LEARNING ENGLISH AND BARRED THEIR ACCESS TO
THE AMERICAN, DREAM.
IT IS TIME TO END THESE ~ PROGRAMS AND·
HELP THE.SE NEW AMERICANS, 'ACHIEVE THEIR. RIGHTFUL PLACE IN SOCIETY.,
THAT IS WHY I HAVE ,INTRODUCED THE NATIONAL LANGUAGE ACT, HR 1005.
.
"./
.
MY LEGISLATION WILL DECLARE ENGLISH THE OFFICIAL. LANGUAGE OF
·THE UN
STATES; .. REQUIRE THAT ALL' GOVERNM:ENT PUBL.ICATION'S BE
'·PRINTED IN ENGLISH; TERMINATE THE OFFICE OF· BILINGUAL EDUCATION
-.
".
,
.
,..
l
�... --. ...
AND USE THE SAVINGS FOR DEFICIT REDUCTION; PROVIDE STUDENTS WITH
A TRANSITION PERIOD TO ENGLISH AS A SECOND LANGUAGE PROGRAMS;
REQUIRE BALLOTS TO BE PRINTED IN ENGLISH; AND REQUIRE CITIZENSHIP
CEREMONIES TO'BE IN ENGLISH.,
'HR 1005 IS COSPONSORED BY 36 OF
OUR COLLEAGUES;
SUPPORT FOR MAKING ENGLISH THE OFFICIAL ~GUAGE HAS NSVER
BEEN GREATER., POLL AFTER POLL
~HOW
THAT
OVE~WHELMING,MAJORITIES
"
OF AMERICANS ENTHUSIASTICALLY SUPPORT OFEICIAL ENGLISH.
BOTH, .
SPEAKER NEwr GINGRICH AND SENATE MAJORttY LEADER, BOB, DOLE' 'HAVE' ,
ALSO ENDORSED MAKING ENGLISH
!HE'OFFICI~
LANGUAGE.
CLEARLY THE
TIME TO ACT IS NOW.
THE ENGLISH LANGUAGE IS, AND HAS ALWAYS BEEN, THE COMMON BOND
THAT UNITES US. ", A NATION WITH MORE THAN ONE OFFICIAL LANGUAGE
CANNOT FUNCTION·EFF'ECTIVELY OR WITH ANY DEGREE OF EQUALITY.
BILINGUALISM CREATES TWO SOCIETIES THAT ARE BOTH -SEPA.R..;TE AND
VERY UNEQUAL.
I LOOK FORWARD TO WORKING WITH YOU, MR., CHAIRMAN
)
I
AND THE
'.'
OTHER MEMBERS OF THE SUBCOMMITTEE TO PROVIDE INCENTIVE AND
OPPORTUNITY TO 'IMMIGRANTS WHO SEEK TO BECOME PRODUCTIVE MEMBERS
OF SOCIETY.
l ..
THANK YOU, MR. CHAIRMAN.
�·v JQ,iiE
1fL~lH
E. SERRANO
JUDICIARY
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V'CE CH..,R
DEMOCR..TIC STEERI..G COM ...
TESTIMONY. OF THE HONORABLE JOSE E. SERRANO
BEFORE THE HOUSE ECONOMIC AND EDUCATIONAL OPPORTUNITIES COMMITTEE
SUBCOMMITTEE ON. EARLY CHILDHOOD, YOUTH, AND FAMILIES
OCTOBER 18, 1995
Mr. Chairman, members of the Subcommittee, I appreciate the
opportunity to testify before the Subcommittee this morning on this
very important issue.
I strongly - oppose any law which would
designate English as the official language of the nation.
I
believe that such legislation is divisive, mean-spirited, and
completely unnecessary. That is one reason why I have introduced
. H. Con. Res 83, the English PLUS Resolution, to express the sense of
the Congress that while English is the p~imary language of our
nation, we should respect and value other languages and cultures.
~
The title of this hearing is English as The Common Languag~
That is true, English is the common language of America. Most of
our population, 97% as of the last census, speaks English. What I
am at a loss to understand is why we require legislation to enforce
what is already true?
Mr. Chairman, 220 years ago, a group of
very wise men drafted the governing document of the United States, n
the Constitution. Those men did not see the wisdom of designating ~
English the official language of the nation, although many
languages were spoken here.
During the early 20th century, when
people from a~l over the world, including, I suspect, ancestors of
many current members of Congress, came to America speaking many
different languages, seeking a better life, our government did not
designate English the official language of our nation.
Why this
fervor to do so now?
Supporters of English-only believe that America has become a
nation of ghettos, with people immigrating with no intention of
speaking English. If that is true, why then are English-as-second
language classes oversubscribed from coast to coast? Supporters of
English-only believe' that our children are not learning English,
and that eliminating bilingual education is the best way to insure
that they do. That is just not true. Bilingual education is the
most effective mechanism for insuring that as immigrant children
learn English, they keep pace with their English-speaking peers in
other major subject areas.
Supporters of English-only believe that hilingual education
hinders the progress of immigrant children. In fact, the opposite
is true. Studies have shown that students in bilingual education
t
·..,.H
�classes posted superior te~t scores. becau~e those students were
allowed to continue ,to academically and cognitively develop as soon,
as they entered school through the use of their native language.
Bilingual education students were able to pioblem solve,.' analyze,
and apply critical thinking skills earlier because they could
explore challenging content matcer in their native language.
i.
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I was born in Puerto Rico. I am an American citizen.
I grew
'up speaking Spanish, but I learned to ·speak English. Mr. Chai~man,
I 'can tell you that there is no conspiracy on the, part of Spanish
speaking parents to prevent their children from learning English.
When Hispanic immigrants sit, around their dinner tables and the
subject of language comes up, it's never about a plot to undo the
English "language.
On the contrary!
The conversation is usually
about the fact that the children and, grandchildren no longer speak
Spani,sh; th-ey have left that language beh~nd and now speak only
English.
In addition to being mean-spirited and unnecessary, English-.
only is j,ust bad 'policy. In the past 3 years, Congress has passed
both GATT and NAFTA, ,moving. the United States closer to full
participation in the "global economy.
In this context, passage of
an English~only law makes no sense.
These laws send a terrible
message to our trading parcners -- "we as a nation do not value
diverse'language skills, and we are not interested enough in doing
business with you to recognize your language,"
...,_
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'A national language policy ,would severely diminish the ability
of the United States to participate in an ever':'growing global
marketplace. Given national and global trends towards service- and,
information-based economies, a foreign language background in
combination with English skill's is an extremely valuable asset. We
know' that this · is true; we require the teaching of a ,foreign'
l,anguage in most high schools. and Berlitz and others, exist to
teach adults a' se.cond language.
Why then, would we take an
existing bilingual population and discourage them from maintaining
cheir foreign language skills?
English-only or official English
policies send exactly that message to workers who strive to
maint'ain their native fluency in languages other than English' for
boch'economic and ". cultural reasons.
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EngliSh-only 'supporters say that up to' 90% of the American
believe that English should be our 'official language~ and·
Dherefore. it is: o~r responsibility to enact legisl~tion to
accomplish this goal.
I do not agree,
Throughout our nation' s
6istory. there have been policies which were'politically popular
but wrong ;' , slavery, not allowing ,women or African-Americans to
voce. segregation.' The list is quite long.
I,daresay that our
nacion would be vastly different had woe allowed some of these .laws
co stand merely, because chey were pol itically popular.
.
~eople
Engll.sh"is our offi·c::!.al. language.
It is the language of
business; of med~a. of m~sic. Ic ische language of
TheUnlted Staces of America is a nation of diverse
gove~nmenc,of
,o~r socle,:y.
�origins and cultures.
The ancest.or? of most Americans came here
from other lands. speaking other languages.
The ancestors of
t.omorrow's children arrive here'daily, speaking other: languages.
There is absolutely no need to de~ignate English as the official
language of, the government.
All, immigrants' to this' nation
understand, indeed everyone, 'knows, that learning' Engl ish is
absolutely critical to 'success.
.
The common thread .which uni,t.es immigrants is their desir.e t.o
be here and participate in American society ,'which they know means
speaking' English.
America has always prided itself on its
diversit.y; even bragged about it to the rest of the wo~ld; the
mel ting pot, the salad bowl.,
Our diversity has always been a
source 9f strengthiEnglish-only or official English laws imply
that we 'are~embarrassed by our diversity, even ashamed.,
Contrary to the ,rhetoric of its supporters, the creation of a
national language policy ,would not bind our citizens togethet -
implementing ~uch a policy would orily aggravate racial and ethnic
t.ensions" and, further isolat.e non-.nati ve speakers of Engl ish by
discouraging them from fully integrating themselves into our
so'ciety .
.,Mr. Chairman~, I speak two languages. Engl~sh is, not my first.
language. But. when I testify 'before Committees, when I fill out my'
income tax forms,' when I speak on the, House floor, I know tha~I
must speak English.
I do not believe that .most· immigrants thInk
otherwise.
Aside from the philosophical reasons why English-only/official
English policies are bad, there are many ot.her reasons, including
t.he Constitution and the public health and safety.
All of the'
bills before this Committee wo,uld abolish bilingual ballots, which
were designed to· assist, 'elderly immigrant-citizens, in their
part.icipation in the electoral' process. In ,addition to being mean-'
spirited and anti-democratic,this particular pro~ision would be ~
direct. attack on the Voting Rights Act. .
. Some of t.he bills before t.his Committee would pose significant
difficulties for the many, Members of Congress with non-English
speaking' constituents.', The failure of these bills to make any
distinctions .within the broad category of "communications" could be
problematic . For example, 'some of these bills could be interpreted
to prohibit Members of Congress and their staffs from dispensing'
information, either i,n writing or over the telephone, in any
language other, than English.
This prohibition would severely
hamper the many Members of Congress who represent people who speak
languages other than English.
It is also unconstitutional under
t.he First Amendment..
An . Arizona State' lay,: l~miting. government.aldiscourse' to'
English was recent.1Y st.ruck. down in Dist.rict Court..
Among t.he
argumem:.s us~d was, ;:he fac~ t.hat.the ,law .was '" an' overly broad
rest.r~ct.ion on the speech r~ghts of stat.e employees and the public
�they serv~d."
The court believed .that the law's language would
. "inevitably" inhibit the protected speech. of third· parties ... "
Additionally the cou~t found that the Arizona law "si~nificantly
interfered with ~ommunications ,by, or with government employees
related to theprovisiqn of government'services and information, a
form 6f public disco~r~e entitled to greater constitutional
protection.
In fact,
the court determined that government
efficiency would actually be promoted rather than, hindered by
permitting public employeessp~ech in languages other than
English."'
Engli'sh-only/official English laws' .at the Federal.level would
be unconstitutional urtd~rs{milar grounds.
Various bills before
this Committee would sev',erely restrict the ability of agencies' from
dispensing aj:ly,information about any federal program. to the public
concerning,. either their rights under this .government or their
obligations to i~.
'
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,
In addition; English-only/official English legislation could
have very expensive legal consequences. Under sOme of these bills,
indi vidualswho feel that their rights have been violated would
have standing to s~e in a private ri~ht of action jn federal court.
This could, result in' 'an explosion of litigation, potentially
against the federal' government. and its agents, and Members of
'Congress and/or theirs;taffs, who \.lse languages other thari Eriglish
in the conduc,t of' their offi<;:ial dut.ies. This seems contradicto"Xy ,
within the context oftor~ reform, and ,the desire of the Republic~n
majority to limit frivolous lawsuit.s.
Further, Mr:, Chairman;' if. this Congress enacts any form 'of
chis' misguidedand/,' .u.nnecessary legislation, I. fear that the
consequences at the' state' and, local leve.l would be. disasterous.
St.at.~~ aqd localitiei could use federal law to justify language
rescrictions on court·' translat.ors
police departments,
EMS
cectlnicia'ns, 911 operators, and others,· pot'eritiallythreatening 'the
publ'ic health and safety.
It could, also result in egregious
violations of due process under the Constitution:
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Mr. Chai'rman, i believe th~t we should' not as a Congress pass
any law which explicitly 'infringe!;> upon the ConstitutiOnal rights
of anyone who lives in our nation. We"~hould, in fact, continue to
affirm andapp):aud the diversity of our country. H:J.Res83, the
English PLUS Resolution, would reaffirm our national committment: t'o
diversity, and multilingual-ism,' while asserting what we know to be
t'rue, chat English is the primary. language of the United S.tates,
and all members o~ our society recogni,ze its importance to national
life.
My resolution is ~n 9Pportunity for, Congress to show the
nat ion that we can recognize. English as our official language
wi~hotit infringing ~ri~nyone'~ rights.
H.J.Res 83,is supported by
a broad coali.t·ibn'· of organizations,
including the National.
Education Association.~: the "American Federation of Teachers;. PTA,'
AFL-CIO, .•nd the organizations irt the Leadership Conference~n
.Civil Ri~hts.
c ·
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CONGRESSMAN TOBY ROTH
TESTIMONY - SUBCOMMITTEE
ON EARLY CHILDHOOD, YOUTH AND FAMILIES
October 18, 1995, ,",
Mr.. Chairman &' Members of the Subcommittee, ,
.
.
I want to thank you for the' opportunity to ,testify at this historic first
hearing on the importance of making English our official language. ,.
,
"
For most of our nation's history, the English language has been the key to
integrating new Americans, as well as the glue that has held our people' together.
That's all changing today. We're losing our 'common bond.
.
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For one in seven Americans, English is a foreign language. The National
Clearinghouse for Bilingual Education estimatf:!s ,that 40 million ~mericans will not
speak English in five years.
'.
, At a time in our nation's history when we, need a. comm'onlanguage' more
, than ever, our government policies work to erode English's place in almost every
aspect of our lives. Today, Americans can vpte, pay their taxes, ,take their
driver's license exams' and go to school entirel~ in languages other than English.
Did you know' that driver's license'te'st~, are available in foreign languages in
forty states across the country? Your home state of California alone, Mr;.'
Chairman, provides the exal11 in thirtY-f;>ne different languages. In the most recent
election in Los Angeles, ballots, were printed in six different language~. The
Internal Revenue Service printed tax forms in a foreign language ~or the first time
last year.
'
, Even the most symbolic act of citizenship:-~the naturalization ceremony~-is
not safe from tnis trend. Recently, the Immigration and, Naturalization Service
held a citizenship ceremony almost entirely in 'Spanish. '. ' ,
'
In many places in America, English is 0(> longer the first 'language in school. .
In the past, America gave the children of immigrants a precious gift--aneducCjltion
in the English language. As each wave of immigrants arrived on these shores,
our public school system taught their sons and daughters English, so they could
claim their piece of the American dream.
"
Today, our children are now taught, by law 'and with government funds, in
dozens of languages other than English--12 different languag~s in New York City
alone. Instead of a first-rate education inEngli~h, students in bilingual education
classes are taught in their native .'
tongue, . and English israr.elyspoken. :, .
.' .
.
Bilingual education has proven to baa dismal'failure at doing what ,
Congress originally asked it to do: teach children English quickly and effectiv;ely.',
More tragic, however, it relegates,countless 'children--unable to speak, understand
and use English effectively:--to a 'second-class future.
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..Let·rnetell you about two people;s exp'eriences which' will illustrate the
'impact of our' fa,iledbilingualequcation programs. I've never heard the problems
with bilingual education more succinctly or poigilantlyput'than in the words of,'
Ernesto Ortiz, a foreman on a south Texas ranch who' said: "My childr~nlearn
Spanish in 'school ~o.they canbecorne busboys aryd waiters. I teach ,thern, English
at h()me so they can become doctors ,and lawyers." Ernesto understands that
English is the language of o.pportunity in this country .. He' understands that
denying his children
good education in: English will doom 'them to a limited--as
opposed lolimitless~-flJture.
. "
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,
a
Bil~'a Abnimo'va also~nderstands this sim'ple truth. Bilga is a .35 year-:-old
Russian refugee who has er)tere,d a chur.ch lottery three times in an attempt to'
win one of 50 coveted sp,aces. ina free, intensive '·English class offered by her' ' ..
I.ocal parish. Herph:~asin Russian speak volumes about the plight of all too many
immigrants: "I need to'win," she said. "Without English; I cannot begin a new
life. "
The stories of Ehlesto' Ortiz and Bilga Abramovaput human faces onthe
tragic consequen~es of oUf government's misguided policies. But these policies
have even greater poterltialcosts--the cost of our fr~gmented. national unity. .
Programs like bilfrigual education divide' our country by' undermining the common
bond that holds our cO,untry together--English .. We'need to share a'common ,'.
language so our diverse people~an 'exchange ideas, share experiences, forge
common ideals: As a country of immigrants, we've always enjoyed--even '
,
depended on--th'e comrnon thread of language to weave the f~bric of our diverse
natiQn together . Without that, common language! Arnerica ' s unity and strength is
threatened. There is no surer recipe for dividing America along ethnic and' ,
linguistic lines tha'n to erode our .common .I~nguage.,
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let 'us not for~etthat these programs have Jinancial costs as 'well.. All
these linguistic services are· provided for at the taxpayer's expense .. Alameda.
County, Califor,nia officials ·toldmethat they spe,n~ almost' $1 00 a ballot to.
provide foreign: language voting materials in their most recent election .. The
American legislative Exchange Council estimated ,hat bilingual education' alone'
costs taxpayers $8' billion a yea~.
' .
'
As you consider thi~ issue today~ I ask you to weigh the social, financial
and national costs of these misguided policies. Ask yourselves if we can ask new
Americans and' Am'erica to continue paying this price.
.1 felt· strongly enough about this issue to introduce legislation to make'
English our of·ficial language. -The hill I have sponsored
end government's
, misguided multilingual polici~s 'and reaffirm· that English is our national language.
will
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,.let me disp,'el somemYt~s.. Having English as our official language simply' .
means that the p~imary language of instruction in school~ is English, and 'that' you·
vote and deal with the government in English. People will still be able, even .
.
~,encouraged, to speak and leiun foreign languages, as well as preserve their
" heritage. The only significant difference ,will be that 'government,actiyely
reinforces our" cpmmon language rather than ,erodes it.
"
�3
For almost every American, this is just common sense. Just recently, a
USA Today Weekend Magazine poll found that 97% of respondents wanted to
declare. English our official 'language. The people have spoken, and now the'
politicians are starting to listen. These hearings demonstrate that Congress.is
.st(lrting to show as much common sense as the. American people.
.
My friends, as we consider this issue today, let us not lose sight of the
fact that this is not some abstract public policy discussion. Your stand on this
issue has consequences. 'When the educational policies we pursue to help new
Americans learn English fail. the failures have names and faces attached to them.
When our policies serve to divide rather than unite us, the rips appear in the very
fabric of the American nation. .
.
In the past, our nation has been a shining example of a place where people
from every background.can live and work together in harmony. I want to keep
America o(Je nation; one people. We must preserve the common bond that has
kept this country of immigrantstogeth~r for more than two centuries by making
English our official language. Our future as a· united nation depends on, it..
�Statement of Congressman Robert A Underwood
Before the Subcommittee on Early Childhood,
Youth and Families'
October 18, 1995
LANGUAGE POllCY
Mr Chairman and Members of the Subcommittee
Icome before you today to express my strong feellngs regarding legislation which
would make English the official language. of the United States.. l feel that such legislation
is unnecessary for the workings of American government, ill-advised and counterproductive..
As officials of the federalgovenllrient, we must recognize that it is unnecessary since it
solves.. no problem in. the operation' and management of the federal government. It is ill
advised because it will contribute to a climate of nativism and communicates to speakers
of languages other than English that they are somehow less a part of this country than
others and that their ability to use another language is seen as potentially damaging to the
core of our so~ial unity. Lastly, it is counterproductive because it sends a negative and
regressive message about the nation's development of language 'resources at a time when
'. we need our people to learn ,more languages and when we need to cultivate existing
linguistic resources.
.
English:-only legislation and the declaration of English as the official language solves
no problems with either the learning of English or the operations of the federal government.
If there is ever legislation which seeks to solve problems which do not exist, these proposals
offer the best examples. The best way to understand this point is to acknowledge, as do all
speakers of other languages in this country, that English' is the language of conimon purpose
and communication in the federal government~ No one seriously, advocates that it· be
otherWise and no one offers other languages as potential official media for communication.
If historically, there was discussion about the official language of this country, this discussion
is over. English is the defactoofficiallanguage of this. country.
Moreover, currently there is no right to the use of another language in the federal
government. This makes our situation radically different from 'any other nation in the world
where. there are advocates of official status for multiple languages. Therefore, any and all
comparisons to what allegedly occurs in qther societies when official languages are discussed
. simply makes no sense.
.
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There are cases when languages ,other than English are used, but there is no ·right
extended to those languages per se. Whenever our national government uses a language
other than English, it is for the benefit of the entire society. By this, Imean that whenever
a non-English la'nguage is used by the federal government, no right to the use of that
particular language is sought or implied. In fact, the assumption that we
use English
except in ,some very narrow circumstances when some greater constitutional issue,
educational practice or public health amj safety concern is raised. For example, in order to
is
will
�.. ,
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',_ ,
,.::;i; ~ . ...
protect the rights, ,of ,individu~ils ,wh~'k~ow: lihl~or :no Englis'llin criminal c~es. courts a~e' "
expected to translate proceedings; In 'oreier to "enSllTe 'the ~ffective use"of the right to yot¢.
we have ballots in other languages: In'otde'r'tQ:protedpubHc health and'ensurethewidest
possible'dissemination ofinforrrtation,which p~qt.ects:~ll ofus; messagis in other' languages,
are' d~sseminated. In all of these ,instances, no specific right to any language other than
English is being exerte4: Or impli~d.,The centraris~ues in ~hese examples do, not pertain to'
language, but 'theydo p'ertair,Ltopu}jlichea:hh.. thetight to vote arid constitutional rights in
criminal, 'proceedings.' ' "
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This is the realitY'and, rnd~tilIlPorta:ritly,~qope'chall(mges it. Som~ rillghtthenargiIe
that since this, is .the case,/what' would be , the :objectibr:t ito' declaring English th!!official '
language of the federal g6vernlnent. 11le ,~asy ~~wer is tliatifthis were the case" there is
'no need to declare Eriglishthe official language; But man}t' people still feel a needio send, '
a message. ,The ,qlIe'stion then 'what is that message ,and' who ',is this message for. '
Obviously, this message is n6tbeingseI)t to, peopl~~~9: sl?,e'ak only English. l}lisrriessage '
is not being sent to mostof your constituents who can speak' only English: This, message is
being sent' to' speakers of nOIl~Engli~h' languages; i~'~largemeasure" ,people like those I
represent, people like me; peQple:whose' lif~ eXPeriences have' blessed them with' the ability
,', ' to speak more than' onelangu,age or 'pe'oplc who are inJheprocess'of learning ,English. '
'is
:mess~ge C~~qt '~h~fybu s60,uld;;leari;~'~ngii~h,"b~cause ~f thes~:"~e~Pk
'be
all
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This
"
already 40' qr soon will if they:dori't.Moreqver~,thef ate anxious: to learn, English~ The
',' messagecannpt bethat in order to sPI!,a.kto'thc:,gr~af national issues of this,: country, you,
'niust do so in ',English, because ; every qne 'recogriiz¢s~h~t the gteaiissues' are already
"appropriatdy discussed in, EngIlsh, and I :inigh~~dd,yiithoutcbercion.,The message ,canrlOt
: be ,that English is' the' common languag~Qfthe nat~on; because it,already is.
.
.
.
,
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_."
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<.',
-'
,C"
,
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Well, what t~en is· the, messag'e~Tlle ill;.advl~ed' messageseems to be that we are'lt!SS ,
than those who ~an speak only~ElJglish;' that 'there is something foreign about ,our
maintenan,ce of (l tongUe, diffetent 'than most.' I ,know, manywillsiiy' a,nd s'orrie With agreat,;
'" deaFor sincerity t4~t nQ suchafirontis intended! But).rilight 'af the reality that ~here is no
:, problem Withth~ 'official use of English, any effdrt :to ~o~rce English~on1y,at this time must
be seen as giving 'life' to the social forces;of' ryse*ment:, Thisresentrrientcould stem from ' ,
the rise of"foreign'accents"inour dp,y-to-daylives,and the incre3:sirig use 6f languages otlIer ' ,',
than English on the radioandteleyis,iQn; H
manifest itself frOIn the seriously miSguided '
'.judgeinTexas, wPQ;told' a mother that her continued'use of Spanish to her child is aform ",
, of child abuse to ~he irulOCOU5, but revealing, 'refusal ofan,iCecre'~m,parlor to put "happy: .
" birthd,ay',' Gna cake in atiother.language.:J1iiskirtd~of resentment is not basedtonarieed to'
" improve <;:oinmuIllcation, it is b~eaon a:fea{of,being subsumed by a groWing "foreignness"
'n,o'ur nu'·dst.;."
' ,'"
",
",:," , ,
. ,.
"
l
can
J.
' •\
~::
'.
",;.
:
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"
-'.
Thi~.'maynot b~ theiritended: result, b~t r submit that it' will' be the real'result. And '
the fact that suclires~ntmei;lt .is b~ed:on attit~d,es which need adjusting ,rather thall with
'policies which need fixing oug~tto: reve'a:l uS,hovdll-advised ,this: type of legislation really
. .
, .
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to.
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. IS. '
,
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.;/
,~,
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, "
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.... :.
,-
, . "
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�. Lastly, the move to make this country English-only at the federa(Jevel will have a
deleterious effect on the cultivation of our linguistic resources. '1be desire to learn other
languages will soon be replaced by. the.necessitytolearnother languages. This is a given in
the world economy and in the conduct of business and foreign affairs. It is accepted as an
article of faith in education that knowing a second language is a mark of education, not a
sjgn of ignorance. We routinely reward students at the high scho'ol and u.niversi ty levels for
studying other" languages. But with little children who speak anQtner language, we decide
that bilin~al education harms rather than contributes to their full citizenship and
participation in the society; Why do we insist upon making it hard upon ourselves? Why do .
we wish to root out bilingual educati9n for little kids struggling to understand instruction
in the name of a greater social good while we preach the value of bilingualism? This makes
as much s.ense as building cars with only one gear. In a global economy and a globalized
world, we will be hampered as we shift into higher gears. We must learn to build cars with
.
.mqre gears, in more colors and with .rightas well as left hand··driv~. . . . .
The greatest recognition of language diversity in this country is not by. the federal
government or social activists in a few communities. It can be found in the Mel and AT&T
advertisements and the. Anheuser-Busch commercials. Maybe these corporations know
something about the future and economic realities which we ~an't seem to accept.
For those"of ~s with different mother tonIDIes, it is not at all incoIJlpatible to practice
the continuance of a mother tongue,- be a good American and recognize that the lingua
franca is English.
.
�STATEMENT OF CONG. ED PASTOR
BEFORE THE EARLY CHILDHOOD, YOUTH, AND FAMILIES SUBCOMMITTEE
OF THE ECONOMIC AND
EDUC~TIONAL
OPPORTUNITIES
COMMI~TEE
OCTOBER 18, 1995
MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE, I THANK YOU FOR THE
.,
OPPORTUNI,TY TO APPEAR BEFORE YOU TODAY TO SPEAK ABOUT A
IS OF PERSONAL SIGNIFICANCE
. THE CONGRESSIONAL HISPANIC
T~
ME.
C~UCUS
I COME BEFORE YOU AS CHAIRMAN OF
TO ADVOCATE POLICIES WHICH NOT
.
.
ONLY HELP GUARANTEE
ouR
~TTER, THAT
FIRST AMENDMENT 'RIGHTS, BUT WHICH ALSO HELP
ADVANC,E A CLIMATE OF TOLERANCE, INCLUSION, AND UNDERSTANDING.
WHILE I RECOGNIZE THAT'ENGLISH IS THE ACCEPTED 'AND COMMONLY SPOKEN
LANGUAGE IN THE U.S., OUR INTERE~T IN SEEING THAT EVERYONE IS ABLE
TO COMMUNICATE IN
~T
MUST NOT, INTRUDE ON OUR PRIVATE·LIVES.
WE MUST
REMAIN VIGILANT AGAINST EXCESSIVE GOVERNMENT INTERVENTION AND
CONTINUE TO PROTECT OUR MOST BASIC INDIVIDUAL FREEDOMS.
I APPEAR
BEFORE YOU TO ADMONISH YOU TO'SAFEGUARD OUR CONSTITUTIONALLY
GUARANTEED RIGHT EMBODIED IN THE FIRST AMENDMENT TO THE
CONSTITUTION.
I WOULD'BE REMISS, THOUGH, IF.IDID NOT MAKE A SPECIAL POINT TO
EMPHASI,ZE THAT THE HISPANIC COMMUNITY HAS TRADITIONALLY SUPPORTED
THE LEARNING OF ENGLISH.
EVERYTHING THAT I SAY HERE MUST BE VIEWED
WITHIN THIS CONTEXT, TO BE SURE THIS FACT IS NOT LOST WITHIN A
DE,BATE THAT OFTEN FOCUSES ON uNSUBSTANTIATED ,FEARS.
LANGUAGE
MINORITIES~VE
IN FACT,
NEVER QUESTIONED THE WISDOM OF BECOMING
PROFICIENT IN THE LANGUAGE OF THIS LAND.
IT. WAS RECENT ARRIVALS TO THIS COUNTRY WHO
RATHER, FOR GENERATIONS,
~NSISTEDTHAT
THEIR
�.,;
,
CHILDREN FOCUS ON .LEARNING ENGLISH EVEN TO THE EXCLUSION OF A NATIVE
TONGUE.
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 TRUTH OF THE MATTER IS THAT OVER 95 PERCENT OF
AMERICANS SPEAK ENGLISH, ACCORDING TO THE CENSUS.
AND, ONLY SIX
-,HUNDREDTH OF ONE _PERCENT (0. 06'i) OF FEDERAL DOCUMENTS ARE IN
LANGUAGES OTHER THAN ENGLISH, ACCORDING TO THE GENERAL ACCOUNTING
OFFICE (GAO) •. I CANNO'r HELP·BUT FEEL' THAT. WEARE NOT LOOKING AT A
.
.
.
REAL ISSUE HERE BUT PERHAPS ONE THAT HAS BEEN ARTIFICIALLY CREATED '
'TO DIVIDE OUR COUNTRY AND-PROMOTE A SHORT-TERM POLITICAL GAIN.
THIS SAID, LET US FOCUS ON THE REAL ISSUE AT HAND:
@
ENGLISH-ONLY
POLICIES ARE UNNECESSARY AND IMPEDE EFFORTS TO MAKE
GOVE~ENT
EFFICIENT AND RESPONSIVE.
POINT.
MORE
AN ARIZONA CASE CLEARLY ILLUSTRATES THIS
AS YOU MAY ,KNOW, THE 'ARIZONA STATE LAW LIMITING STATE
EMPLOYEES TO THE USE OF THE ENGLISH LANGUAGE WHILE CONDUCTING
OFFICIAL DUTIES WAS CHALLENGED AND FOUND UNCONSTITUTIONAL EARLY THIS
MONTH BY THE 9TH CIRCUIT COURT. OF APPEALS.
THE COURT RULED IN THE CASE THAT THE ARIZONA STATE LAW VIOLA'1'ED THE
FIRST AMENDMENT.
THE LAW WAS INVALIDATED AS A BROAD RESTRICTION ON
THE FREE SPEECH RIGHTS.'OF STATE EMPLOYEES AND THE PUBLIC. THEY
SERVED.
FOR EXAMPLE, STATE LEGISLATORS WOULD HAVE BEEN PROHIBITED
FROM SPEAKING TO CONSTITUENTS IN
~GUAGES
OTHER THAN ENGLISH,' STATE
EMPLOYEES WOULD HAVE BEEN RESTRICTED FROM OFFICIALLY' COMMENTING ON
�MATTERS OF PUBLIC CONCERN IN SUCH
~GUAGES,AND
STATE JUDGES WOULD
HAVE BEEN BARRED FROM PERFORMING MARRIAGE CEREMONIES IN A REQUESTED
NATIVE LANGUAGE .
. I WOULD ALSO LIKE TO NOTE MR. CHAIRMAN THAT THE COtiRT, FOUND THAT THE
STATE EMPLOYEE ACTUALLY CONTRIBUTED TO THE EFFICIENT AND EFFECTIVE
ADMINISTRATION OF STATE BUSINESS BY COMMUNICATING IN THE PREFERRED
LANGUAGE OF THE PUBLIC.
HAD THIS .EMPLOYEE FAILED·TO COMMUNICATE
EFFECTIVELY WITH THE SPANISH-SPEAKING ARIZONA RESIDENTS, THE
INTERESTS OF THE STATE WOULD NOT HAVE BEEN REPRESENTED,
CONF~SION
WOULD HAVE ENSUED, AND HER WORK WOULD NOT BEEN COMPLETED.
BECAUSE
SHE ALSO USED THE ENGLISH.LANGUAGE WITH ENGLISH-SPEAKING RESIDENTS,
HER USE OF SPANISH DID NOT VIODATE ANYONE ELSE'S RIGHTS NOR
INTERFERE WITH THE FUNCTIONING OF GOVERNMENT BUSINESS.
WE SHOULD NOT BLIND OURSELVES TO THE REALITIES AT .HAND.
WHILE WE
PROMOTE FULL PROFICIENCY IN ENGLISH, WE'MUSTALSO RECOGNIZE THAT
SMALL SECTORS OF OUR POPUr.ATION MAY FIND IT IMPOSSIBLE TO CONDUCT
BUSINESS IN ENGLISH.
ACCEPTING THE USE OF. ANOTHER LANGUAGE DOES NOT
\
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MEAN THAT'WESHOULD NOT DO
EVE~YTHING
PROMOTE LANGUAGE PROFICIENCY.
IN OUR POWER TO CONTINUE TO
IT MERELY ACKNOWLEDGES THOSE RARE
CIRCUMSTANCE THAT ARE THE EXCEPTION RATHER THAN THE RULE.
I THANK YOU AGAIN FOR THIS OPPORTUNITY TO'APPEAR'BEFORE YOU AND
WOULD WELCOME ANY QUESTIONS YOU MIGHT HAVE.
�Subcommittee, on Early, Childhood,
"
Youth,and Families
Engli~h'
Hearing on
as the Common' Language
,
.
'
Testimony ,by Congressman Gene Green, .Texas 29
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"
.Qctober 18, 1995· '
to,'
Mr . Chairman:
,
,
oppo~nity,
Thank you for, the
to appear before this
Subcomnlittee and speak 'on the English-Only initiatives
being proposed, by this Congress., If I may ,quote an
'article 'from the USA Today, this issue is a "phony, "
.,
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. solution in search' of an imaginary problem."
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Let me
b~
clear from'the start, l' st~onglyoppose
, any English-Only
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legisla~ioi1, because
"
it linlits our
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b~fore~n hist~ry .
nation as never
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,'English is now," arid has always been, the first
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language of the United States. If you try to" file a
document in Court or' for public, record it must pe
written in English or have an English translation. Our
, citizenship' ceremonies ,a.re required to 'be tak~n in.
English. English is the language used in Congr.ess and
in all official activities of the United States
government.
" It is clear tome,and to a n1ajority of Americans,
that English stands as the primary common language of
the United States. It,'s beentheprimary'language' for
over 200 year and we haven't had to pass any laws.
. According to the U. S . Census , ,English is spoken by 94
percent: of U.S. '. residents. . Immigrants 'w hocome ,to
this .country know that learning English is important;
there are long waiting lines for English., classes.
Everyone is aware of the importance of the English
�languag~
in our country.
OnlyO. 06 percent of federal documents are in
languages otber than English, according to the '
, Government Printi,tlg
.
Office~
'
The, GAO found of the
.
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over 400, 000 ' documents' produced by the federal
.
,
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government 'in the past five years, only, 265' were
printed in languages other than English.
.
America has remained. strong and united ,because
,
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we share a common set' of ideals and values, like'
freedom,democracy" equality, and opportunity. 'f
.
strongly support bilingual education becallse it provides
,a quick and smooth langu~ge transition for' children,,'
,coming into', this cquntry. What the proponents of
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English-Only ,fail to see is that by not allowing this
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transition, they. will create a TWO LANGUAGE'
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SOCIETY, much 'like. the one in Canada.,,' The negative
"
�consequence' of outlawing bilingual education'is to
i.
create a society with no mechanism to integrate new
citizens into reading and writing English.
, What the
.
English~Only
'
legislation serves to.
'
. accomplish is not to stress the' riecessity of learning
English" but rather to make the transition to American
life, .more difficult for non-English speakers. These.,
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variou~
.
bills' threaten to eliminate the opportunities that
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bilingual' education provides. Bilingual education is' a
. transitional tool that' allows students to learn English '
without sacrificing progress in other subject areas ,like .
." math and science. There is a, false image that a' child'
who starts bilingual classes in kindergarten will remain
.
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.,in bilingual' classes until. he or she graduates. frbni high
school. This is not true.
On' the contrary, ,bilingual education has allo,:"ed'. "
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,
citizens <
from various backgrounds to integrate into our
society., For <
example, in the last century, in my
<
<
hQmetowriof Houston', Texas, the first ever bilingual <
': school was German. As a result of this successful'
<
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bIlingual program, the 43<,351 ,constituents of German
decent, that I, represent, have integrated into our' <
<
English-speaking <
sQciety.
'These<English~Only
«
proposals <will severely
undermine'the successful ~ilingtial education program
in place today. There is a
conse~sus
in the research
community both on the soundness' of the theory and
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effectiveness of bilingual education. These studies
have <
found .that providing limited-English proficient .'
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students with substantial instruction in t4eir primary
language' does hot interfere with or delay their
acquisition of English language skills, but helps' them
�","catchup" t6 their .English-speaking peers in English
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','. .1anguag:e arts', ~nglish r~a~ing,. and math.' ,
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·Our· w<?rld. h(;l~, changed dramatically and public
, education.hascha,nged,with iL 'Educators today are'
.
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'preparing' students from diverse ethnic and racial'
, .
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backgrounds for,America'sjobs of the future .. Having
knowledge of two. or mqJ;e languages in not a
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detriment, but a valuable resource in competing world
market.
, I believe that all students should be, proficient, in
speaking, reading,and writing E l1glish .. However ,
"
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limited or:' non-English speaking students need to
receive 'meaningful instruction. in
while learning English so
th~t
~heir
native language
they do not fall behind
in their education. The English-Only proposals will '
.
'
, not address the needs .of these children.
�.
".,
...
I attended a majority Hispanic high .school in my
Congressional District during the 1960's. I saw first'
. hand stUdents leaving. school because we had no·'
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transitional education system forn.on- Efl~lish. spe~ke~s ..
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For the sake of the prosperityofourIlation,wel1).ust··
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not allow the Congress to create an educational System·
that discards students,· merely because of their. inability
to speak English on the first day of school.
The En~lish-Oruy bills are not· ~nly unnec~s~ary, .
but they undermine' th~ freedom. which defines
America. These .proposals do . not. further our efforts' to .
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fully integrate our newest Americans, and do great ...
harm by belittling the value and importance.of other
languages and questions· the patriotism of speakers' of
other languages.
"
�JHN T. DOOLITTLE
~H
1526 LONGWORTH HOUSE OFFICE BUILDING
WASHINGTON, DC 20515-0504
1202) 22S-2511
DISTRICT, CAlIFO.RNIA
COMMITTEES:
AGRtCULTURE
RESOURCES
. CHAIRMAN-WATER AND
POWER SUBCOMMITTEE
2130 PROFESSIONAL DRIVE, SUITE 190
ROSEVILLE. CA 95661
(9161766-5560
<!ongre55 of tbeittniteb~tate5
~ou!)e
18001232.~t336
9{ !\eprt!)entatib£!) .
Statement
of
.The HOliorable John T. Doolittle
before the
Subcommittee on Early Childhood, Youth and Families
Committee on Economic and Educational Opportunities
October18, 1995
Good morning, Mr. Chairman and Members of the Committee. I would like to th.ank you
for holding this important hearing today.
The idea that E1Jglish should be is often referred to as being controversial and divisive.
This need not bethe case. In fact, there seems to be very little controversy in the minds of the
vast majority of Americans. Most citizens of my state support official English. A San Francisco
Chronicle poll found that 90 percent of the Filipinos, 78 percent of the. Chinese and 69 percent of
the Hispanics' approved of having English as the official language of California. And at least one
poll has revealed that 98 percent of the American people support making English our official
language.'
.
But the issue is divisive -- and this fact has much to do with the arguments and rhetoric
being employed by bilingualand multilingual activists. For'example, advocates of English' as the
official language are labeled "anti-immigrant." Yet, our intent is not to punish immigrants ataI!.
Rather, we seek to' integrate and assimilate new citizens' so that they may prosper and thrive in
American society. Indeed, I truly believe that requiring immigrants to learn English as soon as
possi,?le is the most pro-immigrant policy ever devised.
Opponents of legislative efforts to make English our offi,ciallanguage also argue that they
are not needed, that English is already our country's common language. They cite Census figures
which reveal that 97 percent of the population above the age of four speaks English "well" or .
"very well." But when it cQmes·to topics such as bilingual ballots, these same people claim that
immigrants will be penalized by an English lan~age requirement. You can't have it both ways.
I am convinced that. bilingual education programs are not working well. Last month, The
New York Tinzes wrote an editorial that described the New' York City bilingual education program
PRINTED ON III\'CVa.EI) PAJOgI
�as a "prison." The Times noted that "[e]nrollment in programs for student who hav.e been labeled
"limited English proficient" -- and therefore eligible for federal funds -- has nearly doubled in eight
years... Abustling bilingual bureaucracy.isnow hard. at work, often drafting children into the
programs whetHer or not they need them."
'
.
.In the Los Angeles Unified School District, approximately 265,000 Spanish-speaking'
children are enrolled in bilingual education. The district's Bilingual Methodology Study Guide
advises teachers "not to encourage minority parents to switch to English in the home, but to
encourage them to strongly promote development of the primary language." It seems that
bilingual education programs are 0,0 longer providing a temporary transition untilimmigr~mts
become fluent in ~nglish. · Yet this temporary transition was the original goaJ when Congress
passed the Bilingual Education Act in 1968 ,Linda Chavez, former director of the U. S
Commission in Civil Rights wrote recently, "Studies confirm what common sense would tell you:
the less time you spend speaking a new language, the more slowly you'll learn it."
'
Mr, Chairman, there. are nearly 200 different languages spoken in America. It would be .
impossible to setup bilingual educatiori prognlIl'is for each one, but this step is the logical
consequence of the arguments put forward by the proponents of existing bilingual programs,
Already in'Brooklyn and Queens there are some twenty schools that offer Haitian Creole as a
language of instruction, a language that Haitians do not generally use, I
With 20 million iriunignmts now living in our country, Mr. Chairman, our country's
,
schools and institutions have struggled witb the important task of preserving our nation's heritage
as a melting pot. While some have argued that n~wly-arriving immigrants should hold steadfast to
their language 'and cultural identity, I think these advocates of multiculturalism and bilingualism .
are hurting the people they are trying to help.
'
The great seal of our nation reads liE pluribus unum" -- from many, one. No matter where
our parents or grandparents were born, we Americans are 'and must remain one people, We need
to reinforce the ties that bind uS,not divide us, and I do not believe there is any more important
tie than a common language.
That's Why I have introduc~d' a constitutional amendment declaring English the official
language of the United States. An amendment is needed, I believe, iofortify state and federal
English language laws against judicial attack. A special panel of federal judges within the 9th
Circuit Court of Appeals recently struck down an official English law. My amendment is will
pro~ect the ability to iinplement official English statutes.
I .
Richard Bernstein, Dictatorship of Virtue: Multiculturalism and the Bat/lefor America's
Future, Alfred A Knopf, Inc., 1994, p, 244.
�~QNYOFCQNGruMSMANSQNNYBQNO
Nationa] I;102uage Legislation Hearings, 'n!ednesday. October 18, 1995
I thank my friend and colltaooue, Chalrman Duke Cunningham, for holding these important
hearings and giving me the opportunity to testify. Unfonunately, the Judiciary Committee is
in the middle of a markup, so I will muemy comments brief. ,
".
nus
The importance of National Language legislation cannot be overstated.
is a land of
opportunity because of the ability of all our people .- who come here from around the world -
to communicate with one another. Tbisessential ability enables people to receive an
.education, a job, and enjoy all the rights and privileges of being an American. This is about
being united, b9th as a country and as a society. As the son of immigrants, however, let me
'be the first to emphasize the neCd for this legislation. A majority of the American people
sUPIX'rt this. There is even overyVhelming support among a majority of people whe come from
, f:;rst, second, and third generation families. If we want to provide full opportunities for all the
people of this. country, we must enact National Lansuase legislation. What people must
lUlderstand is that, this legislation is simply about opportunity for all people.
There are many compelling reasons for this. Asyou.know, a major economic transformation
is occurring in this country. Wehave shifted from an industrial base to an information age
Society~ By ensuring a common language for our country, we can maintain our place as the
world's leader in theinfonnation age .revolution. In tum, we can guarantee alloiour people a ...:
place in this revolution. Otherwise, we face the danger of beComing a divided nation in many
,
ways, not just economically., .
, '
!.f I may now give a constructive suggestion to the Members of the Committee. There are
currently seveial proposals for this legislation. As a mayor, I witnessed first hand the
caused by a failure to adopt national language legislation. In my view, in order to be
successful, any legislation must address all aspects of this problem, including, government
business and operations. voting ballots, bilingual education, and immigration and citiZenship
standards. These are the pressing problems that we face. These programs work against our
a~ility to come together as a country. A majority of the public agrees. Congress must gear up
to give the public its solutions. "
'
~roblems
The time has come for this legislation. An overwhelming majority of the people want it. We
must always heed the voice of the people. I am confident that you will consider these options
as the .Subcommittee begins its work on this subject.
Again, thank you Mr. Chairman. I yield the baJance of my time.
�Testimony of. Congressman Xavier Becerra (D-,CA)
Before the Subcommittee on
Early Childhood, Youth and Families
,
"".'
Committee on Economic and Educational
Opportunities,
Hearing on English as the
It
Common
If
Language
Wednesday, October 18, 1995
�Mr. Chairman, I appreciate having the opportunity to testify
this morning on the subject of Engli~h as our official-language.
As you may know, the acceptance of other languages has
always been an important issue for me. As a conferee on the
Elementary and Secondary Education Act, I was actively involved
in the redrafting of Title VII, the Bilingual Education Act;
Multilingualism is also an important issue in my district in
California; almost 80% of people in the district can speak a
language othe,r than English.
The English-Only movement, on the surface, appears to
accomplish the important goal of affirming the preeminence of
English in'our country. In a recent survey, 98% of those polled
believed that English should be made our offici~l language. In
,fact, if you asked me that same basic question, I too might have
answered "yes"., However, if ,you look deeper into the English
Only movement, the campaign has implications and consequences:
which would prove to be detrimental to many Americans. English-,
Only proposals are in fact unnecessary, potentially divisive, ;~d
even constitutionally questionable.
First and foremost,' the English-Only campaign is ,simply
unnecessary. ' Everyone already knows that English iS,the common
language of the United States. According to a U.S.' Census Bureau
report, 95% of all Americans already speak English.
Everyone, incfuding immigrants, knows the importance of
learning English., There,are examples allover our nation of
immigrants eagerly trying to learn the English language. At San
Francisco City'College, 20,000 adults learn English 'every
semester and the waiting list is much longer. In De Kalb County,
Georgia, 7,000 adults are studying English; in Brighton Beach,
New York, 2,000 wait for a chance to learn.
The English-Only campaign has created the false impression
that there is a large group of citizens who are shunning the
English language and whonlust be made aware of the importance,of
English in the United states. Instead, just the opposite is
true. There is, a large group of individuals who yearn tO,learn
English in order to become more integrated into American SOCiety,.
Another argument put forth by the English-Only campaign is
that by making English the official language, we will save the
government millions of dollars in translation,and printing costs.
Ho~ever, a recent study by-the General Accounting Office found
(J that less than 0.06 percent of government documents were
'reproduced in a foreign language. A listing of the subjects
provided by the GAO, revealed that most of the 265 documents dealt
with health' and safety issues and explanations of Social Security
programs.
Eighty-three percent of the foreign language documents were
in Spanish, the native'language of over 3.5, million American
cit'izens living in Puerto Rico alone.
only 1 of 400,000
�government documents in the last five years was reproduqed using
a low-incidence language, like Ukrainian.
Not only have English-only proponents exaggerated the number
of documents'that our government produces in foreign languages"
but the documents that are printed are,' those which cjenuinely help
individuals in our society, ,When our newest Americans come to
this country, their transition in~o our society is made easier by
ensuring that they understand the responsibilities and rights
they have assumed.
The English-only movement is divisive because it disconnects
, Americans from their government, threatens to eliminate the
successes that bilingual education provides, and undermines the
'diversity that makes America'sO' strong. The English-Only
movement wil'l shut out many individuals from both our government
and our democrati~process.,
By mandating English as our official language, any chance of
multilingual ballots would be eliminated. Multilingual ballots
-.:::
are critical in allowing those who are learning but not yet
fluent in English the chance to participate in our democracy to
make informed voting decisions.
It is counterproductive and undemocratic to prohibit 'people
from communicating with their government. It becomes foolish
when we self-impose this communications block on fellow Americans
who, are in the process of learning English or who 'have reached an
"
advanced stage in life where acquiring English would be
difficult.
Where does the English-only campaign take us? It would
prohibit the translation of a Department of Agriculture bulletin
on pesticide use, an Immigration and Naturalization' Service'
pamphlet for recent immigrants on wh,ere to find English classes,
a government insurance adjuster from using Polish to talk to
citizens about their claims for relief from a natural disaster,
Congressional staff from speaking to constituents in their native
languages, and federal law enforcement agents from using
languages other than English to gather information on a crime.
Some English-only proposals would actually prohibit the
official use of American Sign Language, preventing government
coinmunication with the hard-of-hearing. By mandating English
'only,. a disabled language-minority American, for whom learning
.
.
English would already be difficult, would be unable to receive
the assistance of a translator when communicating wit~ the
government.
English-only proposals also threaten to eliminate bilingual
education. Bilingual education is an important transitional tool
that allows students to learn English 'without sacrificing
progress in other subject areas such as math and science.
, Bilingual' programs increase overall' intellectua'l development
and improve p~oblem solving skills and critical thinking
"
�,capacities. Students who participate in bilingual programs also
have higher achievement.in other key. subjects: These benefits
,extend noton:ly to minority; stud~nts'iearning English but also to
English speaking students who are 'given the chance to
participate.
Bilingual programs are clearly in the national' interest."
, They promote the ~verall development of students learning
English, providing an orderly transition from their "native
language. We all end up benefitting by having Americans who are
able to 'spe~k two or more languages. The Europeans and Japanese
know this all too well.
House:'Speaker Newt Gingrich has claimed that, tllf we allow
the multicultural model ,of m~ltilingualAmerica,to6e dominant,
this society will disintegrate."
Let me'dfsagree'. In today's,
global economy, English-only speakers are: falling behind;
multilingualism is becoming more and more essential in our world
community.
':
Today" knowing more than one language makes individuals more
competitive both here in America a~dinternationally.' ,Thr~ughout
the world, English is the language of choice., But in this glOb~l
marketplace, the 'most important language is the language of your
customer.
Multilingualism strengthens the cultures, diversity, and
traditions that define our nation. America is a nation of
immigrants; we h~ve long seen ours~rl/es 'as the melting pot of the
world. We are united as'a nation by ,the beliefs of freedom and
democracy. It is English that binds and lets us communicate
these beliefs. It ,would be un-American to'insist that speakers
of other languages aban'don their own' u~ique cultures' and speak,
only English.
Finally,. the c'onstitutionality of the English-only movement
has been questioned. A federal appeals court recently struck
down an Arizona constitutional amendment.requiring state
employees to speak only English in the'workplac~, conc:luding that·
this violates the First Amendment. The court ruling determined
that under the First Amendment protection, a government official
or employee has the right to speak the language of his or her
choice, as long as th~ foreign :language spoken does not disrupt
business.' The court'stated that the ,law was "especially
egregious'because it ls'not spread unlform1y over the ..
entire
,
..
population but disproportionately effects the Hispanic communlty
and other national origin minorities;"
In conclusion, the English-only movement, although on the
surfa~e a campaign to reinforce the importance of the English
language in' our nation, in' fact does little to unite us as, "
Amer icans. The Englis,h-Only campaign' instead is unnecessary,
potentially divisive, and even constitutionally questionable. ,
We, as Americans, share common values and beliefs of freedom
.
'
,
,
,
,
"
,
�.......i,-.
and democracy.
It is these deeper and'more,fundamental
convictions -- manif~sted through Englis~ and perhaps other
-languages, -too ,-- that will co'ntin'ue to bring us together as"a
nation, not mandating English as the officiil language of the
,
United States.
,
Thank ,you, Mr.~hairnan,and members of,th~committee, for
the opportunity to address you today;
-,::
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�?/URSDAY, SePTEMBER 7,_ !.~~5· USA TODAY
.,
,,'"
. Tidari debate: omew. ENGLISH
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EP .... 08',9SIFRlllS:53
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,N~LR':'ORAL:'
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·
T
Sen~ 'Dole's
New, Cause
AKEN ONE. Sentence a~ a time. most of wha.t,·,· At various lunesoVer the pas.,~.
yem. so,
...
Sea. Robert Dole had· to say 'in Indianapolis , various interest sroupspave soUght apedallanguage
Mooday about tbeEagtish language is..uriob-c:onsiderations 'fmmthe. gove.mmerit. and some of .
. jectimable.. Why .is it thea, that the"": wliole .comes :. those demands haw: been out of line. But amces
aaoa'as bostile to aew iri:urdgniats.,nvrOip.dat.ive of sIoas' that have heeD made are ·as much in the
the geouine patriotic fee1iDgs d.his· ~ .. goverameot'!i intmest IS' the immignuUs'•.ScboOls
Ameriean ~ 'generally ,dired:edat ,tbat ' " can't provide' iDst:riICtion, in a, variety Of laaguages,
edge of the RepubJicaD PartY that be basreceiitly, aa.cl' but they WISt be able to'MmmUDlCate with c:biJdnn'
, almost desperately, beeDfJb.owerlD.g with bouQuetsl ' ,in order: ,'to .
.m. them ~ 'CA:MJrts cannot '
FeW would quatreI with the ,aeaatoti statemerit' conduct fair· tzials, if. of the partiescauaot speak ,
, that as a amDtry . . need the glUe of Jaaguage to, . English and are ~ interpreters. Health .'educ:a~ .
help hold us tosethet."It is also true, as he empba" . tioo and service& cannot be deliveied in immigrant
Sized, that it is'jn the persaaa1 mtereat of inunigraDts ."COIlUJl1Ulities if providers are forbiddeA ,to &.Peak or '
·to learn the Iquage quJdcJy. aDd· moat of ~ do. print DOtices in any language but EagIisb. Families of
So a t prOmpts tb1s appareat belief ~t the .iIewc:amers are in a traDsitioa.al stage, and the move
language is undeE' threat sad .-rs. bejrotected . to English. especially by d1i1dreD. is remarkably fast.
."
by a law declaJ:inI it to be *official"1, .
.,
But a period of·.oexibilitY during the transitiao is
Some examples .that have been given to justi(y 'needed and pOseS no threat to the common language.
legislation are aimply 1mXIg. The lRS, for example,.
What is disturbiDg about SeD. Dole's embrice of
prints aD ita forms in E'agtisb. A ~ experiment the Eoglisb.only cause is that it appears to be totally
. with Spanlsh forms wu quickly abaDdoaed. Similarly. ' moti:va.ted by nomination politics. He bas never been
Immigration Service policy requires that. uatmaliZa:- 'on board this partiCular bandwagon. He isn't even "
, tionceremoni.es be conduc:reclin English A, aingle .faml1iar with various billlrtbat have been int:roducm.
judge's decision to use SpaWsb on one occasioo wu ,People who speak Eag1iah. suffer no disc:rimin.iltion·in
an anomaly. In fac:t~ no 0D.e can become a cit1zen ifhe , this country, and be knows.that. h is simply divisive
or' &be cannot speak. read 'and write EngUsh :And to preteIId that the large majority is tbreatened by
yet. in spite of these facts, Sen., ~ Shelby. newami8rs Seeking to unpose their own languages
author of the leadUig Senate bill on this subject. or aeate pemlanent enclaves where English is not . .
found it necessary to introduCe JegWlation declaririg allowed to be spoken. The seoator haS addressed a
that ~o person sba1l be denied servk:es ••• pmvid- straw man in an effort to impress the us-against- "
ed by the government soleJybecalJse the person them crowd. He's capable of' more enlightened . .
c::ommunk:ates in &g1ish.", What on earth is the basis policymaking. and he fools neither side with his
of this perceived threat? .' '
.
sudden conversiOns and new e1;lthusiasms.
30
'.
me
INa.(' hi f1tj ft;y, .' for+
~
/i;) /q~, .
'e'
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or
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THBNBWYORKTI~~IT()~1,!-E'1!-,~~rJNliAY. SBPTBMBBRIO, 1995 ;en~. ~. ,
I
ampaign· English From Senator Dole '
1'"
sto~:"
Senator Bob Dole's'declaration that English' live laitguage education should
.Insisting on :",
should be made "the official language of the United fluency in English "is a welcoming act of incluSion,"
StateS" was couched in purest patriotism - to bind he said, "and insist we must." Most of the pending
i
... the nation together. But. asa contender for the official-English bills in Congress ·would require I '
" Presidency, he surely knows this issue is divisive. It that all government business be conducted iq Eng- 1
~ reeks of xenophobia and is particularly popular
lish, except where health and safety lare involved.
among the conservatives he seems too eager to Some ban bilingual education and multilingual
please.
.,
ballots.
.,
America is and must remain an English-speak. Nebraska started the official-English movelog country. ~e ability 01 all Americans to commu- ment in 1920 with an amendment aimed at German, \;
nicate without translation is woven into the fabric of . 'immigrants. More than 20 states ht4ve now adopted I):
our open society. Foreigners who come here know ,official English in some form, mostly during the last,
that leaming the language is in their own, self- 15 years and because of concern over the influx of
interest Economic opportUnity, employment and Hispanic and Asian immigrants: President Clinton
advancement depend on.it -- even following HE.R." signed the Arkansas official-English .law as Gover
~. on TV.'
'I
"
nor in '1987. But George Bush. campaigning for
But requiring it By law is a Sign that the society President in 1988, opposed the official-English cam
is not so open after an, that people who speak' ,paign then under way in' Florida. .
~
foreign languages are not welcome.
'America is a land'of immigrants. The overI '!Ii
Addressing the Aiperican Legion convention whelq;ting majority have proceeded tolel:J.\D English
·in ~dianapolis last week, Mr. pole did not indicate if they did not already know it. But it Offends the
,
~bW he would proceed, except-to say that "alterna- nation's freedoms to tell them they must.
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i
.', .. "\ ,1
(",
F
i
�·:Glue 'of langUage
..h()lQingstroIlg .•. .• :i
,u~ s8d it is to Watch tlie ~therwise mOderate Bob
, IlDoIe pander to the ugliest element of the Republi
with policy proposals baSeC\ on ,distortiOns
' ','
" " .' :
, " The spectacle Came a few days ~ a speech to
: .American Legion convention in Indianapolis. DOle criti- .
,ciIed the muclHierided National HistOry StandardS for'
- '1ix.using too much on what is wrong WIth the Country ,
" and DOt enough on what is right. He
'
accused the academics who formulated
die staDdaxds of attempting to ,"dispar~
age America."
'
'.
•'
" In this; Dole is ,correct. What aca
" demics tried to foiston,us last ~
" the:basic elements for teac:hirig ,
, " is no more than a list of Politically cor
. rect grievancestbat
mentiOns
: "the greit:ness of this nation s
, tidonMations.
:',' .
, '
, : . , ,But Dole also brought in to this" Hernandez
.axpmentwhatdoes not beIoDg:, ~e
.
,,'
• ,came' out for eliminating' bilingual education ,and for
.. making English the official language. "
' " ",'
. : ',', The s:adic:al Republicans Dole needs in the priDlaries ,
:,:, tbiDk bilingual educatiOn is a tiberid plot to undeimine
, :America'slinguistic unity. Dole wants them to believe
,
he shares these worries. ''We'must ~the practic:e of
"
" multilingual education ,as a
of instilling ethnic " ," '
, pride or as a therapy for low self-esteem or out of elitist, .,
'~= acul~ built-on the tradi~.of the ~est;" :r' '
, • Act:uall}\ the main eurpose of bilingual education
have never heard of •,mult:i.1iilgu.at education") is quite, ,
. 'simp\il:While ~ ~ 1eaI:nEngIish, they.'"
, learn other $ubjects in the1t' natiVe '1aDguages, so they ,
, do not f.ill bebind.,Onoethey learn English, they join
,'
.regII!.ar E!liIish-language classes.;'
"
, ,", ,; ,'" ' '
, ' Someoile willing to make the point can surelY find a
,School tIistrict where bilingual edUcation. CoexistS .with
;', history taught in Ways twisted by ~e ~ of ~7,:
c:altXlI'1'edness. But these are two diffeI:ent ISSUes. BiJin..
, "gual educatiOn is an apolitical teaching&tratel ,designed"
'
',tokeepSchOOlkids who do not speak ~fa1Iing •• , ,
J:diind. A.....,;".. whether it is e«ective is 1egitimate,but " .
•',it isthe~~political cynicism to cbase ~cooser
, vative votes by eQuating bilingualinStrUct:iQn with,the
, ' am
'P.n+v
, imd fiditious crises.
m
':.'< .'
an .'
..
;
barelr democ:ra.: '
means
"
u: '
-~J1:n=r:!~~~he ~'
" 'himse1f in IavQr of malting English the official language.: •
~eneec! the glue of language to help hold us ~- , '
'p et; he said. .
'
.' ',' "
,', BUt-English is in no danger of CQrIlini unglued. The '
,cbilc!ren of iIiunigrantsare 'to~ Eng1ishsoOn':
, er or latet; no matte!;' what.~ their parents are fully
'.aJgDizaIit tliat knowing Engl1sh is essential for sUccess.
" What 'purpose, the!!. does Official English serve? Just,
one: It gives people a superficially reasonable '..vayto
", vent their linger at immigrants, and;';'" itmust,be said
, -particularly at Hispanic immigrants.
'"
',
You'll find no better example of:'hoW far language "
" paranoia' Cali go, than the case of the Anlarillo; Texas;,
'judge'Who ordered a Mexican~American, woman to
'speak. ~~~ ,to her 5-year~d da~te! at home.'
State district Judge Samuel C, KiseI; rUling m a custOdy'
dispute. said that speaking Spanish to, the'little girl was
child abuse.,.
'
'.
',,',
.-
The judge is apparently unaware that5-year-olds '
learn new languages'as if by osmosis. Ina year o~ two,' '
thiS girl Wi1J speak English better thail Spanish. But his "
ignorance is less important than the fact th3t his rUling "
has ~.English-only mandates from the arena of ,
public policy to the intimacy of a'family's home. ,"
,:
. The far right, $0 concerned about government intru,
sion in private affairs, ought to think about that for a '
while.
'
'" I I
KiriC! Ff>~lu:;"'" ~,:.,.."....",,~
;,',
f
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�NO FELICIDAD IN 'CONNECTlCUT (80 words)
28 Apr 95 12:00am
©1995 Washington Post
From News Services
.SOUTHINGTON. CONN.
The manager of an ice creal"!l store was suspended without pay after refusing a customer's
request to write ·Happy Birthday" in Spanis!l on a ~ake.
Ana Dicklow had gone to the CarVel store Saturday to get an ice cream cake with a Spanish
~Happy Birthday" greeting for her 80-year-old father.
Dicklow s!'!id sne offere'd to spell it out for store'manager Fred Craig or write it herself on the
frosting:' but Craig said: ~Nope. .This is America. and I'U only write it in English."
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�THURSDAY
SEPl'EMBER 7, 1995
San 306t Blmur.g l"'tW6
.L',
ET'S GET gOing,with that
science..;.... whiie he is trying to '
. " wall. But why stop at the
learn a new language. That's tre
Rio Grande? Surround the
mendously harmful and feeds ... '
entire mainland with it. It'll be
right into the dropout rate."
the world's eighth wonder, put
I wish I could tell Senor Dole di
' rectly that in my America se hab
ting China's to shame..
After all, who needs foreigners' la Espanol and English. "
and a global marketplace? We
" As well Vietnamese. Manda
have flea markets and garage
rin. German and Italian.
sales.
.' , ' "
'
If he doesn't understand that
It's time, as DOle said'; "to re
,~Uingualism and bilingual educa
tum as a people to the original
lion strengthens our nation, I'd
concept of what it means to be an
ha,te to see the damage he'd do .
American." I've always beeri a lit
running our foreign and trade af
fairs.
tle confused about that, but I'm
Much lesS trying to lead a na
sure an Alaskan Eskimo or a Flor
ida Seminole will clear that up.
'
tion of immigrants.
Yessiree, elect Bob Dole presi
'dent and happy days will be here
again.
'"
' Write Angelo Ji'Iigueroa. at thiMm:ury
News, 150 Ridder Park Drive, San
Of course, I'm being facetious. '
Jose, Calif. 95190; ,ph.one (.408)
It's my way of laughing """"":'in
stead of screaridng - after Dole's 9ft0-5896; /= (",08) $88-8060. Send
Mercury Center e-mail to Pigu.erooA.
, Labor Day speech to the Ameri
can Legion. ,
,
,
. Boy, did it irk me. Along with '
many of the other Republican
clones running for president, Dole
seems intent on getting to La,
Casa Bla.ncaby creating a wedge
between Americans 8Iong ethnic
and raciai lines.
"It was a cultural pUrification
speech, said Jim Lyons, execu
tive director of the National As
sociation for BUinguBl Education.
"It's convenient for him to
.1
.have these ho~utton cultural is
sues.to prevent people from fo
cusing on the most pressing prob
lems facing the nation.~· ..
, Dole has it backward if he acto- .
ally believes that bUingual educa
tion is designed to keep kids from
learning English. Just the oppo
site is true.
"Our goal is to make sure chil
dren are learning in a language
they understand, until their Eng
lish comes up. to speed," said
Emerita Orta:.camilleri, director
of bilingual programs for the San
Jose Unified School District.
as
ANGELO FIGUEROA
Senor Dole,
you're all wet
on bilingualism
•
S
ENATE MAJORITY leader
Bob Dole is right, only he '
doesn't go far enough.
Let's not just end bUingual edu
cation, let's make it a criminal of
fense to speak any language in
the United States besides English.
The next person who says bue
1IOS dias should get tossed in the
slanuner and forced to listen to
RoSanne and Kathie Lee alter~
, .nateJy sing the national anthem,
, for 90 days.
.
That'll teach 'em to respect our
monolingual nativism. And while
were at it, lock up any smart al
eck who points out that mono
means monkey in Spanish.
It's time to get back to our
roots. Time to give "the embar
rassed to be American crowd," as
Dole calls them, a kick in the rear~
No more dim sum. Wipe Rosh Ha
shana off our calendars. Ban rap
music and karaoke nights.
I:-et's make forks and spoons
the official eating utensils. Any
one caught munching with chop
sticks will be shipped in a bikini
to Antarctica.
,
II
I
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'T TAKES three to seven '
years before a child who
.
speaks a foreign language is
proficient enough to learn in an
'English-only classroom. .
"Continuous learning is the
key," said Lyons. "You don't
want a kid to fall behind ....... to
stop learning math, history and
�!m.wastm.Aton:hoSt. I
' .~Jt , IJ".~., 'Jr',
"
,
: In Plain'·
--
I""
",
.
,
... .......
'
•
:.English;
·..····Chill·Out:.
. .. '..
.
~,
",,
....
.
.,
~.
:~."T'.~a!~Bas!~s.~e·:
i<··
VJ.etnani.~
... , .t., ,
just came from. _.. ::
..'
.
'.' Ub-oh. An inimigrarit. Probab~y. :
speak like us. Probably one:' :
.'more reason folks WaIiHo' make: .
. EngliSh our official language.
, ;' Alert Bob Dole. ".
.' ~. Call Pat Buchanan. .
, ,.:. Actually, as tbreat.S to liDgUiStic ..:
'UiPt:Y. go;;Bay Van Ho isn't m~ .'
·He's sO s1ight·that he'$ mOre like a '.
. 62:year::Old iumor of a perioD..'
'
, '. ,. Hovi much English does he speak?
."VeryJittIe," Cook says. .' .' .
"
, She turns~waId binL. '. . .:
.',., , ~peaK English to him." she says,
~gme.·
....... '.
..Baylpoks unComfortable in his
·can't
~f'
dWt~;:).
......'
•
.
''''My.name is Bay Van Ho," he says•
•: ~~ language lessons in
,
' ',
·~tnain. but fluent he isn't. Can you,
tielieVe it:? None of your ancestors or
:mme'eame to these shores with such
·lo·-·~·skills.
iDrp they?
',' :
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:-.' .,:"
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" Bay. knows sO little that he often ....
travelS to FaIls Cpurch to see Cook at
the Vietnamese Resettlement ." :'"
AssOCiation, one of theorganiiations
inhabiting a former Fairfax County" '
public school ,that'snow <ii ,.
, .
DUdtiqutural center. Cook. the" .
exeCutive director,' helpS him figure,
out-American y,;ays because she is ,',
'Vietnamese, too, having moved h~e '
for,'gOOd'in 1973. "
..., "
: Bay is a
veteran ofa losing army. .' '
the·South Vietnam:ese,one. Fottbat,-',
,hespenta decade in prison;aft¢r the:.'
·WI. of Saigon. followeq. by,a decade as;.
a laborer. The comniuniStsfinally- , '
. allowed him to emigrate to the:: :.' : .
Umted States;Wbich accepted him '
1lI;ldera program that belps those " '
who served the government ~ O!ll' "
former ally. He arrived on June 23 •. ' ,.,
with his seven cpil<ireniages 20 to
4Q
";~,,
~.
,:Since their arrival. Bay bas notiee9 '
"sciinething. It's aI! ~ thing, giy~ "".,~": '
, the buzz about dei::laring aD offiditl·: .' ..
langWige: "
.'
. '.
': : "'I only hear English.· he .says m
.Vietnamese, Cook translating.
':~.i Now.that he mentions jt, IonlY.
i,'
':
.'
;~.Eoglish, too. At'Camdest :YardS~, . ,,: ,j
.tbeYdo the lineUpS in English LaSt,.' ,
, ~ "NYPD Blue- wa,s in 'EngliSh,' .
1
Even Bob Dylan sings in <. ,. ' .
F. g1';'''; sort of. '
'.,
'"
believe.
m M.
'.
_,' .' ,.: .,; . :. ~ " Ii •._ .....
:::: ~ and I niust not gefaro~. '.' ..."...
'eoOOgh. English must be undefSle'ge: '
frOm all the iminigrant babliJii1g: It::i;' (. '.
, must be in need of protection:. .: " :.'
Otherwise, many leaders, such as," '
pn!$dential candi~tes Dole and ,., .
Bucbanan, wouldn't be demanding
that Congress enshrine English; ,.'
.~: Would they?-' . ".
. . ".' .....
. . .. Tun Boulet Jr., exeCutive dir~r
'OfEnglish First, a natiOl)3l group that '
. suPPorts ~ English the official. ' ;
,'language, suggests the movement' '
has been misUD~tood. ;',
.,
"'There is no legislation in "', . "
Congress pending or contempla~,"
'he says, "that would force anyone to
.leain English, make an~e speak
, . SeeTWOMEY,D6,CoL6,·;
.
.
~
',.:., "'j' .
"
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�-.
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TWO.llLD.~f&'&VIII.
'. EngiiSliathome. m3kemiyone"
sPeakEn2tishonlhestreetor
;
toogue'. ,'..:..... : ... :".:
.'
. . :....'::
'; '.;
- - -..... . .,.": .':..-:--:»--1-.--:-.:-:. .~·iilthen-~~
·
.
\,
H ......::
. Sure..~~~~ ~ .. ~ ~
~BUt:3nthefr~~·',.; ~
eIimioateCbinatoWn~.
Eng1isIi isn't ori1y aboutmoney. .'
. downtoWn D.C.·,. .
. . It's about unease.
'. .
. The gOal. Boulet says, is merely.' .. Too many AmericanS fearthilt . ; .
·to ensure that the govemment .'
the coUntry isn't theirs'~ .~ '.
speaks and promotes only English: . Bucha1i3n sPeaks Of an . : . t
. Right DOW, thegoverJ;UDeDt . . '
~on:" Pusbh1g for ~is .(
· ma,adates$8 billion worth of
a waY Otpasbing bac11t's a ~Y.... ' .
· bilingual education for
.
of regiStering a oomplaint tliat .' .~
EIi;.d;......--.-t.:ft
. .
'"
. . ' . . ' •.
• 'D()D-,
~gyoungsterS,
, toomany~bieSare .....;.:. i
~.
· be says. h ~ts ~and other .' uiun~~~ and too
documents D;l1Jll1ltqlle languages. .
1-E&eveo: Clerlcs are foreJgl1-bcim. ": i
map' . ;'.'>. :
ButstUdiesbavesbOwnthat
. ~:teIlsnewComers.· ~.' ;.;
;Ii1ingual educatioo doesn't wotk, .: that the unweloome mat is out. h: :,;
be sayi It~ other biIiugaal' .' Nice':
.,
"!' ..,
; ,
.' effortS--boweverwelkneaning
(In fairness to English F~' ::.'
wind uP being costly failures that
Boulet says that "'not everyone' ..
slow the pace at which immigrants supports our cause for the right '. .:'
f,
.
are assimilattil .
reason" and that the number of
peOple drivenby' fear of the
'. - : .
·Instead, Boulet Says, the
goverilment should stick·to
immigr.mts themselves is a'
English to achieve what is in the '. ~rity."). " .
.
interest of us an: the swift
We've bad immigrant arig~t .' '.
1Xi.astery bjrevery newcomer of
It Was as silly then
the one great thing that unifies
now: Earlier 'Waves'of
..
this huge nation. . '. . .
newcomers got with the
':". ,':. .
.' Who'd dispute that? Gotto
program and became Americins. .
: have a cOmmon language.: And
Tqdaysiilight be fromAS,ia. . . . ~.
Eoglishis it. '.
Latin America and Africa inStead.
Immigrants knOw that.
of Europe, but they'D wind uP ..
English-speaking Ameri.cins,
Bay knows that.
too, or if they don't, their
. "He's taking ESL classes right
· now upstairs," Cook says, .
'children surely will. Everyone
meaning English as a Second
ought to sit back and chilL
"I have decided to come here
Language: .
.
to live here," Bay Van Ho says, .
But so what if the government
helps an immigrant's transition. ; "and Heel I have to getadjusted
With alit,tle bilingual behavior?
.
to this sroetY, and I need
H bilingual education isn't
English to get ajob, t o ' " . .' .
. working, fine. Kill it or reform it· commUnicate, to adjUst. I can't· .
But if the ancestors of a lot of us
survive without it...
He's an American-in-progress.
could speak. they just mightsay
they woUld have adored having·
That's how it'sheen done over
bilingual government forms
the years. People <.!rTIve a them
when they applied for a benefit,
and end up an us. You know What
Cook says the Vietnamese call
and dual-language ballots that
made the wording of a
the United States?
· referendum clear, and health
Nation of United ,Races.
before..
as.
�TIME
October 9, 1995 p. 40-50.··
�'"
','
.: .....
,. '.:
,'
.;
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"
....
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':'.
The issue haS taken on national dimen
sions. Last month Senate. majority leader
Robert Dole injected it squarely into the
presidential campaign, declaring, "We must
stop the practice of multilingual education
as a means of instilling ethnic pride or as a
therapy for low self-esteem. "The red-meat
. rhetoric· pleased conservatives, and Dole
plans to introduce legislation this month de
claring English the nation's "official lan
guage. " But in an interview Friday, he said
he will not seek to end bilingual programs so
long as they "ensure that people learn En
glish in a timely. fashion." Some pending
bills, however, would virtually dismantle
the Federal Government's 27-year support
for bilingual schooling. Congressional bud
get proposals would slash current bilingual
.
education funding as much as 66%.
Leaping into the fray last week, Presi
denf Clinton told a thousand cheering sup
porters at a Congressional Hispanic Caucus
dinner. "The issue is whether or not we're
going to value the culture. the traditions of
everybody and also recognize that we have
a solemn .obligation to let these children
, live up to the fullest of their God-given ca
pabilities." But the issue does not divide
purely along partisan lines. ALthough
House Speaker Newt Gingrich and C.O.P.
presidential hopefuls Richard Lugar and
Patrick Buchanan back the English-only
movement, C.O.P. GovemorGeorge Bush
of Texas left popular bilingual programs
untouched in his recentschool reforms. In
Florida. another key primary state, politi
cally powerful Cuban Americans-most of
whom are Republicans-were dismayed by
Dole's stance. "Attacking bilingual educa
.€I a. _/ _ _
.:.d·
tion here is like attacking' Mom arid apple
pie," says Mercedes Toural, head of Dade WESTMINSTER. ~FORNIA: Flrst-grade
tried unsucces.sfuBy to opt out ofhis school's
Hispanic students with books In 5Panish
County's bilingual programs.
bilingual clasS. Children from· grades 5
Nationwide, of the 43.6 million children during story hen.r at the ,WIllmore ~
through 8 were mixed. in one classroom.
attending public' schoo~ some 2.6 million ter of her students-in Spanish. "The quiCk, "We had the same math book, bae,k to page
are non-English-speaking-an increase of er they adapt to speaking English. the bet one, for two years in a row," adds Peiia, a
ter off they are," she says.
..
'
76% in the past decade. As newwavesofim
plaintiff in the suit, The state will fight the
migrants pour in, conflict grows over howto
TwentY-one years 'ago, a U.S. Supreme suit 0:1 the grounds that manychildren need
assimilate them. In New Jersey, Massachu
Court decision established the constitution
more t.'lan.three years of bilingual classes,
setts. Michigan, New York, the District of al precedent for bilingual education when it , but it will now review cases more carefully.
Columbia and California.. bilingual pro
New York City sChools have experi
found that SanFrancisco had discriminated
grams have recently been challenged by against 1.800 Chinese children by failing to enced a 49% increaSe in non-English
parents, teachers and school boards..Three
help them overcome their'iinguistic handi.;. speaking immigrants in· six years. Besides
quarters of the young newcomers live in cap. Last mon~ the legal issues seemed to spaniSh. classes are nowtaughtin Chinese,
five states: California. New York, Florida, come full circle as it group of Brooklyn par
Haitian Creole, Russian, Korean, Arabic,
Texas and Dlinois. Nonetheless, 43% of U.S.. ents filed suit against the New York State Viet:namese, Polish. Bengali and French. A
school districts have at least some non commissioner of education, claiming that few schools offer a full program in the stu
dent's native language, but most give at
English-spealdng children. One in six U.s. tens of thousands of children are "languish
teachers has non-English .speakers in the ing" in poorly run bilingual programs. The best hour of native-language assistance,
classroom. In .Columbus Junction, Iowa, suit charges that American-bomchildren. aiong with an hour of instruction in English
where a third of the students are the off with Latino surnameS and low test scores as a SecOnd Language (ESL). At Daniel
spring of Hispanic pork packers, principal are consigned to Spanish-language classes Carter BeardJunior High in the borough of
Becky Furlong fears that federal budget even iftheir dominant language ~ English. 'Queens, teacher Michael Cao faces. a
cuts will wipe out her bilingual kinder
federal and state bilingual daunting task. His seventh-graders. most
Fearful of 1
. garten. Meanwhile, atthe elementarischool funds, schools
oedly pressure children to . of whom speak little or no. English" spend
in De Queen. Arkansas, principal Cindy remain in bilingual classes far longer than
most of the day in mainstream classes. And
Hale has no plans to teach the Latino chil
necessary. "I missed out on three years of
then, in just 45 minutes. Cao must speed
dren of local poultry workers-now a quar- . work," says. 13-year-old Ariel Pefia, who
them through the baffiing vocabulary they
an
42
• ~ i ",:~ '.'
, TIME. oerOBER 9.1995
�tHERISEOF ENCUSH ONLY: '
., ..
, have encountered, Energy, gasoline, elec- l~wed 2,000 Latino schoolchildren. "It is a I i)EARBORN, MICHIGAN: Two girts, native ,
tron. molecule. dilute. bubble,
myth that if you want children to learn En- Arabic speakers, atabilingua&secoftd..grade
atom-all new· words to be explAined in 'glish, you give them nothing but English," class at the Arts Becker Elementary School
Mandarin. And, for a slender youth in the says Ramirez. a.Jt:h E;nglish~immersionand shows up in the long term, when the aga
front row. in Caritonese. In three years. un- bilingual methodS will faiJ.,however, ifclass- demic going gets tough...
der state rules~ newcomers are to be fluent ~:are too crowded, taught by unqualified
The George Mason study also under
"enough to graduate into all-day main- tel,lChers, J.ackinginappropriate materiaJ.s.or scores the value of bilingual education's
stream classes. In practice, few are.;;.and . filled with the wrop.g combination of stu- most avant-garde experiments. The highest
schools are caught between researchers dents-conclitions that are all too common.
achievers were children at "two-way:'
who decry the Unrealistic expectations and
Later this Year two George Mason Uni- s.chools. where English-language children
parents who blame the bilingual programs' 'versity professors· Will release the largest and non-Engiish speakers are m.iXed togeth
for'not fu.l.filling th,~m.
'study ever conducted on biliqgual educa- er, with, half the CUITiculum taught in a for
tion, comparing th~ performance of42.000 eign ~guage and half taught in English.
Pt1BUC, OPINION
non-Eng1ish-sp~ng students:, over 13
Chicago five years ago, there were three
seems'polarized bet\veen years. Although states SUch as Massachu- such schools teaching in Spanish and En
sink-or,.sWi.ni nostalgies· settsand ~iIiois now push students out of gUsh; today there are 20. In the District of'
and politically correct cIi- , ,bilingual classes within three years, the ,Columbia. the Oyster Bilingual Elementary ,
versitarians, serious reo,' ',researchers fuund that children 'who IUtd ' School is a pioneer in two-way education. Its
search increasl,ngly points six years of bilingUal education in well- student body ,is 58%' Hispanic. 26% white,
towa.rd a consensus:' chil- .designed programs performed fiirbetter 12% black and 4% Asian. and after six years
dren learn Engush faster on standajdized English testS in ,11th, of SpaniSh-English CUITiculum... its sixth~
and are more likely to excel academi~yif 'gp.d,e.' Even With bilingual claSsroom graders scOre at a ninth-grade level in readthey are given several years of instruction in aides arid, ESL training, children who are ing and a 10th-grade level in math. At a two
their native language first. In a, 1991 study plunged into;m'English environment be- way Chinese-English program in Public
endorsed by a National Academy'ofScienees fore th~yare fluent ~are just left out of the School 1 in New York City's Chinatown;
research tea,m., David Ramirez, now:3o pro-' , discussion in their maiD.$eam classes." three eight-year-olds-aHispanic. a Chinese
fessor at California State, University, fo1- . , acCording to ProfessorV~aCollier. "It and an African American-lastweek recited
wave.
In
TIME. OcroBER 9; 1995
49
�a: poem they had writte~ together in Cantonese and Englis~. Patricia hNixothirdn. .Man
a
hattan resident who has sent er . -grader Anita there since kindergarten, boasts that·
the child. can read storefront signs 41 Chi
nese and converse in the language. "She haS
a great opportunity." says Nixon, beaming.
Not all communities are braced for the
. challenge of multilingualism. ,At Salina ElementarySchool in the shadow ofthe hulking
Ford. Rouge auto plant in Dearborn, Michi
gan. 909D of the students are native speakers
of Arabic. Academically. many of them lag
far behind other students in the district Ear·
. tier this year, spurred by the possibility of a,
five-year, $5 million fed~ral grant, schoolsuo
perintendent Jeremy Hughes proposed
forming a two-way Arabic-English program.
Not oniywas the proposal rejected by the 10
, cal board of education after heated public
criticism. but it opened the way for a whole
. sale attack on bilingual education, directed at
the city's Arab population. "This is America.
,Public money for public education should be
uSed for English only." says Stephen K0
vach. a medical-supplies consultant '
In California, home to 45%,of the ria~
tien's non-English-speaking students. the
magnitude of demographic change is
breathtaking. Thirty years ago, California's
schools were more than t.hree-quarters
non-Latino white. Today the proportion
has dropped to 44%. A quarter of the state's
5 million public-school students-more
than 1 million ch.ildren-"do not speak
English well enough to understand what is
going on in a classroom,.. according to the
1993 report of a state watchdog agency.
That agency charged that California's bilingual bureaucracy had "calcified into a
self-serving machine ,.;
ideolOgically
based program more concerned with the
intrinsic virtues of bilingualism and bicul
turalisni" than with teaching English.
While many California school districts
embrace bilingualism. others. such as
Stockton, Oakland and Westminster, have
defied the imposition of native-language
instruction, and the state has threatened to
cut offmillions ofdollars in school aid. The
debate heated up this summer as the state
board. of education, prompted ,by calls for
more local control, made it easier for dis
tricts .to opt out of bilingual programs.
Westminster, which had hired only nine
certified bilingual teachers-fiq' fewer
than the 90 required by the state to service
its 4,000 Vietnainese and Spanish speak
. ers-isnow applying for permission to
elim.i-.late native-language instruction en
tirely. Ifgranted. that will mean classes such
as Marina Williams', will soon disappear.
And in the squat, brick Willmore school, for
, better or worse, no one will be dancing la
qu.ebriuiita.. -WHIt repcringby A!m BlacJlirranI
an.
WastJinstorr, 'Cathy IJootIr/Mlami, Wendy CMeI
Dearbom and .IeniIw MIIUosINewYrri
,
"
'I .
I
Strangers in aStrange Land
By WENDY COLE WAUSAU
:
IfTEEN YEARS ACo, W:AUSAU, Wl~C~NSIN, WAS HOMOCENEOUS AND COMPLA
F
I
cent, among the whitest of Clties m the country. No longer: beginning in
I
the late 1970s.local chUrches began sponsoring displaced refugees from the'
. wars in, Southeast Asia., allowing thein to settle in Wausau. As a result, the '
town: (pop. 38,000) is now 15% Hmong, a people native to the mountains or.;:: ,
Indochina who speak a language that until,the 1950s bad no written form.
::;:~:. '
Nowhere has the transformation been as dramatic and tense as in Wausau's~;~:'~
school system, where today 30% of elementary students are Southeast Asian. .Ye~ ';:.:, '
I
there is. no fonnal bilingual program in Wausau because there are virtually no .,,'
i certified Hmong-speaking teachers. So the school system has relied on teaching:;"
English with assistance from bilingual aides. who step in to make the transition' '
to the new language easier. But as the vast majority of Hmong children became" >
con~ntrated in four of the district's 13 elementary schools, test scores showed {: .
the imnUgrant children were not keeping up with their U.s.-born peers.
.
,years ago, Lincoln Elementary School had a Hmong population of 70%.
. uation prompted the school board to adopt a ~troversial busing plan in Whil=~:
six schools would swap about half their children. 1be restructuring, amnn1'tM~:'~'
. ,by 87% of teachers. was to boost academic'achievement and bring toI!:E~~·~
community that was becoming moreiand more polarized by race.
., '
.
•
Instead. the con:unuriit:Y:i'.~:
~ rebelled. Five scblool-b(lta:rcE;:~
~ members who sutlrported.thei:':~~:
! plan were later recalled.. u'1.St;:-';;':',:'
i year the partneISbip ..ffi",~~,"1'~:
I
.was dropped; No one ll:U:,we~",.o';
fallout more· than owtted~~;
. board member
who had,' cbal1l1piioned:
I
, plan.~~~~nm'ne-]~
sages tellingme
,geta:bullet'in my U~~"WJ
that my child would
reach the: fhst grade... '
,
~, a: dentist. He
II
eightwhite families l>WI:uJ.C1
into his; office, n.u,nn,,,f"fI!O
A Hmong student by his Ioctcer.atthe Horace
him
"llJIDOI:U~,
Mllnn.Middle SdIooIIn W....., WIsconsin
'3.S,., a: , J
and toolt,tbeir'l:msi:ne5l.,e
'
where. Under threat oia lawsuit by the American Civil Liberties. Union.
board conceived a plan for racial balance in theschools bytedefiDing the
.aries of some neighborhoods: And while the busing continues,.. it is now
Hmong children who travel ~ other neighborhoods each day. ..
,
, .This year tbedistrict sought and received,$700,OOOmnew'federal
which pay for, among other things, a newcomer center thatprovides intEmsi;vI
balf-day courses in EngliSh as a Second Language. Shu BlongHer.
. aide at Horace Mann Middle School. says new arrivals Jm.1I.ftaJll,e:;lSier tilne ]!1Q.'W
than when he arrived in Wausau in 1979. "Istruggled
O.K. fmgetting used to the,1ife.style'oftbis,count:Iy.:":'he;~~YSr,W:~LU
grader Cbia Vang arrived,five:years ago andtis,4::un~t1y.nl=1:.1l1 Englim
still,finds,it tough to fitinatschOoc ~ltryto~==~i~G~~~I~~~
, it's:bard. because sometimes<f'mshy to~k.:,wt:,w....
" .:: No one disputesthat,Engiishwillbethe'coln:rrumr laDI~:e:~~~IV'm.~i
',izens. "Rightnowwe:are:l.ilCe;a.new:
. ,'cl:iange..'"',says Blong.Mmla;..ad'im.<ling!j:obi?lao~ntCl:ntJll~~~ d~~li:as
" : already started.. Though 409iii(;f]Binclllg:'lre;llBipIO)rOO;Jne.m:¥94)$OfHcioDg
I
I
,
>
'
,.
:.'.
"
... -
,
,
"
"
•
"'students:graduate fromlhe
.terparts;....1 don~tknow ~~n:~~:::~~~:::;~;~
. "tht!:H.m.cIng Mutual Association;,.. liuta-:ttmoIlg'cm
'.,
..
.: : ' .
...
,; ;:. .
,\'
'-:.
50
-','
Ir·;;;;;;;;;;;;;;;;;;:;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;-j
TIME. OCTOBER 9.1995
�Bilingual School Has Word for Dole: Wr~
Dual languageS po Not Promote 'Ethnic Sepamtism, ' Teachers in Miami Say
At julie Puentes'class here, the third~grac
ers were asked which language they prE
ferred.
.
MIAMI-At Coral Way Elementary, the
"ENGLISH!" they sCreamed.
school days unfold like a page ripped from
In the immigrant communities here. bilk
Norman Rockwell's sketchbook; Uniformed
gual education largely has been embraced a
'yoUngsters march in single file down the baJ1..
the best, fastest .and most painless way t
'Ways, attending "citi:zenshtp day," reading the
transform.students who lmow not a word (
tall tales of joimnyAppleseed and holding
English into proficient speakers of the Ia.I
mock elections.
.
guage•..
. Yet Coral Way, the first and perhaps best·
Many educators in Miami said it seemed a
known bilingual school in the nation. provides
though Dole believed there were publi
-the .kind of controversia.l education that Re ,welL
schools in America keeping children fror
Still. the issue simmers. "I'm not an educa
publican presidential hopeful Robert J .Dole
leaIning English, that radical Latino separal
tor but I do bave sound common sense and we ists were somehow forcing children to spea
(Kan.) recently attacked as promoting "ethnic
separatism." The pupils at Coral Way learn have been able to solve this problem OVer
Spanish.
,
English and Spanish in equal measure from
"I believe that Senator Dole is misir
~dergarten to fifth grade.
fonned. The goal of every bilingual prograr
, In a speech earlier this month· before the
~
is to teach English," said Rosa Castro Fim
American Legion in Inclianapolis, Dole, the
hJ
. ,
• a Dade Countv School BOard membe
Senate majority leader. said schools should
late rotessor 0 e ucauon a or
provide language classes for immigrant chil
ria internatio
ruversltv ere.
ere at
dren, "as long.as their purpose is the teacbiog /anD1JnUe?
lots of success stones an Dade County, is on
of English. ..• But we must stop the practice
• '"0 - 0
of them."
.
of multilingual education as 'a means of instill
.The average time s~nt in the billngu;
ing ethnic pride or as a therapy for low self
r
programs here is· 2.7 years. Kindergartnel
·esteem or out of elitist guilt over a culture
learn the' quickest., A recent immigrant wit
built on the traditions of the West."
~. ,
no lmowledge of English, who may not eve
But here in one of the most densely imJni..
- Migdania Vega. principal, . read or write in SpaiUsh. takes the if:mgest.
grant communities in America, most parents.
Coral Way. Elementary Sdtool
At classes at Coral Way recendy. studem
teachers and students say Dole is wrongwere busy reading Johnny Appleseed in Enl
wrong because most students here and in otb
the centmies ••• by the obvious route: sink !ish, but writing "apple stories" in English an
erimmigrant cities are, in fact. quickly taught· or swim." said Mike Thompson. past chair·
The children were
English even if they are encouraged to main- man of Florida Conservative Union and out~ Spanish. not only for readingusing Johnny Al
pleseed
but also to lear
lain their own native languages. .'
spoken critic of bilingual education.
.And wrong, they say, because bilingual eO
By "sink or swim.." Thompson is referring vocabulary and geography in both languages
One teacher said the' children wanted· t
ucation is producmg citizens best able to excel to the most common way immigrcmt students
in the modern, multilingual. post-NAFTA in the United States are taught English. lmow where Aspen; Colo., was because the
world.
'.
"
through immersion in the language with little had allseen the movie "Dumb and Dumber
.
: "What is Wrong with learning more than or no help in their native tongues. It is a which takes place there:
. "They're immersed in English and Amer
,one language?" asked Coral Way Principal method that Dade County's public schools.
. Migdania Vega in a manner that !RJggests she and hundreds more around the country, have can culture," third grade teacher Puente
said. "They can't get enough of it." .
believes Dole did not do his homework.. ·"What rejected.
•, In third and fifth grade classes' filled wit
,'is wrong with preparing students for the fu..
Instead. Dade teaches most of its English-
students who st3rted school with little Iatow
lUre? What is wrong with self-esteem?'"
deficient students (about 15 ~rcent of its to
. The issue of bilingual education remains an tal) in a "transitional" bilingual program. edge of English, a visiting reporter askID
emotional topic for many Americans. who feel meaning that as they are taught English, they questions received enthusiastic and proficier
the country not only is being overwhelmed are also instructed for an hour and 15 minutes responses in English or Sp3.nish.
No' one is really sure if bilingual program
With immigrants but also that somehow the a
eir native Ian
new arriva1s in this latest generation of imini
But at Coral ay and other special schools. work better than the sink-or-swim approacl
grants arefailing to become "real Americans." the program is completely bilingual. The Dade County's researchers say comparison
The United States is in danger, critics of biJin... mostly Hispanic. largely immigrant students among different sc;hools are a1mostimposs
gualisni argue•. of becoming a Balkanized split their days learning in.English and.Spm- ble. But school.officials believe a transition:
approach is the mOst cost effective, effi.cier
Tower of Babel.' And some school districts ish and their test scores and .English profi
have' been accused of trapping students in . ....·~l,.are~~~or~be~tter~~than~~..."",'~~ and humane.
'
In the late .19805, David Ramirez of Cal
their native languages for years. condenming
Da e County ucators vehemently
them to "linguistic prisons.~ , . .
'agi:ee with critics like Dole and ThOmplOD.:, : . forma State University in Long Beach con
. "Dole's campaign press spokesman. Nelson· , "Wbat these· politicians do not understand. pleted perbaps the largest study. comparin
Warfield. said the senator was concerned' is that learning another
does not the different methods used to transfonn nor
ahout students languishing in foreign: lan ' mean not learning Englisb>" said
. Miran
English speaking students into English prof
guage 'programs and not being pushed into da, COral Way's lead teacher. '"In fact. I be
cient ones.
English. kept there by "a liberal education es
lieve that learning a native language makes '
The study was hampered by all the prot
tab1ishment....··.. ·.
.;:.: ..",,~ . f learningEnglisheasier.".·
...
lems attendant in comparing test scores an
What Dole and Congress decide js.impor
. Coral Way students say that among them
IQs in rich and poor schools. But Educatio
tant to local school systems like Miami;s·Dade selves they like to speak English. even those ' Prof. Kenji Hakuta of Stanford Universit)
<:;Ounty. Last year, Congress approp,rlated. recent arriva1s who are still wobbly in the Jan.. who reviewed it with a panel of statistician
about $195 million to support bilingual pro
guage. But they want to keep their Spanish too• for the National Academy of Sciences, said hi
By William Booth
,I
~
.
'Q.,
~\I
-\
/ \,
.:r
Q..
~
•
Q.
J
8
..-;; ':"';'" ..>4 ....
".::;:
W~"'SIoiI'Writzr
,
'
grams. Next year. however, if the nUJlJberS
approved bythe'House are supported by the
Senate, federal expenditures will be reduced
to $53 million. .
.
Dade County, where more than IiaJf the cit
i:t.ens speak a language other than English at
home. bas been a lightning rod in the debate.
In the 19805. resi.dentsapproved an "English
only" requirement for local government. But
the measure was overturned two years ago,
when the county commission declared it
woald accept Spanish and Haitian Creole as
"What; WTiong w;th'
learning. more than. ,one.
What is .
wrong with prennring
studentsfior' thefutuli'D?"
...-...-... -.
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,.~,.,,:
,
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,
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,I • •
.
p,.
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B¥FORTHE:d~
. At Cora', Way, Adria,na, Monzon, 6. prepares to answer question)n first-grade Spanish class.
~upgenerally sUPpOrted the study's conclu
sions: That children in transitional and main
tenance bilingual programs were doing better
'at learning English than students in Englishonly inunersion programs.'
.
"The differences were small, but statistical, Iy reliable. And in education, all effects are
small.~ Makuta said. "It appeared' that, using
" I13.tive languages doesn't get in the way of
learning English.
. Dole suPpOrters in the conservative Cuban
community, which valueS bilingualism, were
surpriSed by the senator's speech. It put Mi~
ami's Cuban Aniericim representatives in
Congress in an awkward pOSition.
Rep. Ileana Ros-Lehtinen (R-Fla.) told the
It
•
.Miami Herald that she dropped her mOrnlng
cup of coffee and gulped when she read Dole's
remarks. "He gave the audience the idea that
there are actual courses out there that don't
want the students to learn English. That's not
' happening," she said.
,
An immigrant herself from Cuba; Ros-Leh
tinen was put into a sink-or-swim English only
school "I sunk, she told the Herald.
. Coral Way Principal Vega invited Dole to .
see her school.
,
'
'"This is a fact, we.'re not making it up: Stu
dents who feel better about themselves learn
better," she said. "And we're getting kids
. ready for the future, for the 21st century
world.... Bob Dole should come visit us;" ::!
It
�:.'
.
. . Raising language barriers
-:"·:The simmering ~sue of English as the official ' schools, the co1.1I'tS and other institutions must ad
limgtIage of the United States has been moved to just to the realities of the people they serve. Newly .
th'e=front burner by Sen. Bob Dole's sudden advo arrived immigrants, and even some who have lived
~~y :9.f. a federal law that would end bilingual edu in this COWltry for y~,' might fail to acquire flu
catiOiCWhile it is desirable that English remain ency in English but still have a contribution to
tl1e'aominant language - arid there is every indica make to American society, Flexibility on the lari
q~~ ,~at it will-enough special ~ircumstances guage question is a positive step, as Californians,
maxk;:,the American scene to make English~n1y who passed an official,language law, have discov
legislation a dangerous nuisance.
ered trying to enforce it.
.
~'1'he language question has become entangled
. Furthermore, it is difficult to believe that many ;
With iinmigration and the WleasinesS, even hostil children, exposed to television, radio, print materi
itY. s&ne Americans feel toward the newly arrived. als and street activities, can fail. to absorb English
.~ :'THe growth of coinrnuruties, many of' them regardless of the language' used at home.
Sii.~.h-speakingt where English appears to t:ake
New Americans are going to have to learn
a.~,V~~~~r role has fueled this concern. Bilingual edu English if they are. to compete, and it would be a'
cajioriis an attempt to smooth the language transi tragic mistake to encourage a. bilingual society
p~)liJor youngsters, Yet even when it is directed at such as Canada's. English is st¥la powerful lan
qy.icJdy mainstreaming students, bilingual educa . guage around the world. In the era of modern
tion has inspired opposition', In the current climate commUnications, Americans who think the English
of' nationalism, the English-only drive cO,uld fan the language needs the law to bolster its position be
flames of anti-immigrant resentment. ' ,.
tray a strangemck of confidence in its influence'
.'As a. practical"matter, government, public' and appeal.
: '.j
-;
'k '3v~,t7;v1'6Ioloe
'q/Io
/0 t;
�WFJ)NESDA~ SEPTEMBER 21-. 1995
PracticallyEnglish-Only
"'A'
Associated Press
cougressi.onal study requested by advo
.cates of English as the government's of
ficiallanguage found only a tiny fraction
of 'govemment commtmications in any other
tongue.:
. . ,
.0( about 400,000 titles, the Geneta1 Aa:ouot
big Office identified only 265 foreign-ianguage
doc:ameats. The documents were released by the
Government Printing Office and a Commerce ~
partment agency over five years.
The total covers evf!rything from full agency re
ports to fact sheets and maps. But it does not in
dude foreign-ianguage communications by the
State aDd Defense departments, which most Eng
Jisb.ooly prOponents ronsider legitimate. •
It also does not iDcl~ pubIicitions put out in
depeocIeotly of the official printer. The Govern
ment Printing Office estimates it handles balfof
the feder.a1 go¥enU1leIlt's printing and binding.
.The study "gives an idea of wpat the universe
was,- said its author, TimothyP. Bowling, the
GAO's associate director for federal management
andwork.forre issUes.
Of the titles reviewed, fewer than 0.06 percent
were in 'a foreign language. A recent Census study
found that 8.7 percent of U.S. residents are
forejgn-bom. Despite the nwnbeis, Sen. Richard
"'.; .
·C. Shelby (R-AlaJ. a spoosor of legislation m3.ndat
ing Eogtisb for most federal CDQtIlUIlications.Jast
week said the list of 265 '*is in itseff 0VetwheIm
. ing: and &bows the Deed for a language Jaw.
More than 300 languages are spoken' in the
United States. he told a news conference. "'It's un
fathomable for the federal govemmeot to'try to
accommodate each and every language,· he said..
. The study found 221 of the documents were in
Spanish. 17 were in multiple languages and 12
were in Frenc:b. Of the rest, one to three docu
ments were printed in each of 10 other languages..
The Social Security Administration was the
largest single soUrce of foreign-language commu-'
nications, producing 50 doamie.nts. The Food and ,
Drug Admjnistr.ltion produred 19 and the Educa
tion Department, 16.
.
Shelby cited six titles as examples of the inap
propriate use tax dollars. They included "Inves
tigation About the Reproductive Behavior of.
Young People m City of Sao Paulo," produced
the
in Portuguese by the Centers for Disease Control .
and Prevention: and, in Ulaainian."Investigation
of the Ulaainian Faniine 1932-1933," by the Com
mission on the Ukraine.
,
But a listing of the subjects provided by the
GAO showed the bulk of the· titles coricerned
health and safety issues and expbinations of Social
Security programs. Thefe were 13 docwnents of
: advice in Spanish on boW to do taxes, and dozens
on health matters.
. .
Senate Majority Leader Robert J. Dole (R
Kan.), a presidential candidate, has endorsed. the
,,idea of inaking English the official language. '
Although EngJish-onIy advocates criticize Wash
, ington's encouragement of foreign-language edu
cation for inunigrants, most legislative proposals
. focus on making the gov~t lDlilinguaL
or
".""
A19=
�1,;
(t[ongre55of tue ~itittb ~tatt5' '
of, 1\tprt5tntatibt5
masbington. ilQ!: 20515
j!}OU5t
,
"
March 10, 1995"
Mr. Bernard L. Ungar
Director, Fed~raI Fiuman Reso~rce
Management Issues
.
U.S. General Accounting Office
.441 GoSt., N.W. Room 3150
Washington D. C. 20548
Dear Mr. Ungar:
are
to
We
writing
request a Genefal Accounting Office (GAO) study to identify and
quantify, those federal gov~mment services provided in languages other than English. ' ,
SpecificaUy, we would ask the GAO' tQ assess the p~ise impact of foreign language:
operations and services on the budget. '
As supporters of the "Language of Government Act," a bill which would require that
official operations of the federal government be conducted in English, we are interested in
finding out, the exact' cost of all services' currently offered by government agencies in
langUages other'than EngIlsh (excluding those offered by the Department of State and
Defense.) Some of these might include any tax fonns ordoc;::uments printed in foreign
languages and services offered by the Immigration and Naturalization Service in languages
, other t~an English.. Your prompt assis~cewould be most a:ppreciated~
Thank you for your attention to this matter and we look forward to hearing from you
soon.
Sincerely,
RICHARD C. SHELBY
U.S. Senator
ILL EMERSON
Member of Congress'
,
..
~tl~
,
'
WILliAM F. CUN
,m
Member of Congress
Chairman, House Government Refonn and
.
,Oversight Committee
�GAO
United States
General Accounting Office
Washington, D.C. 20548
Office of Congressional Relations
95 NAR 2'3 ;J II: ':2
March 20, 1995
The Honorable Richard c., Shelby
United Stat~s ~enate
Dear Senator Shelby:
We have received your letter of March 10, 1995, jointly
signed by Representative Bill ,Emerson and Chairman
William F. Clinger, Jr., House Committee on Government
Reform and Oversight, requesting the General, Accounting
Office to conduct a study to identify and quantify
federal government ,services provided in languages othe'r
than English.
'
We have forwarded your letter to our General Government
Division.' ,Staff from that Division will contact your'
office to discuss this matter further.
Sincerely yours,
Ifl~i-' /}f;" ~,' ',', /',
'vJ~cl/J~
William A. Gerkens "
Legis1ati~e Advisor
�GAO
Unit.ed. States
General Accounti.n( OffiCe
Washlllcton. D.C. 20648
General Government Division
B-26~194
September
20~
1995
The Honorable Richard C. Shelby:
United ,States Sena:ta ' '
The Honorable WillJ..ci.m F - ,', ~iingc;i i Jr.
Chairman, Committee'on Gove:rnment
Reform and Oversi,ght,
"
House of Representatives
ThaHonorable B1ll~' Emarson ,
House ,of Representatives'::,
This letter responds to your r"'quast that we 'identify federal,
governme'nt
documen~s
(excluding documents of the, Depart:::4an:ts
of
Defense and 'State) • that are' pllbli:::hed1n langu'agas other than'
English. We found that no singla l comprehensive data source,
existed within the federal' gov~rnment that could identify and
'quantify the total number
o~
foreign languaqe publications .and
dOc:11.l!lents issued both int~11y'and'externally by, fed;;ral
government agencies and organizations. However, we were able
to identify,two computeri:t~d databases containing information
'on pub1ic1y:availablepubl'ications and documents issued by
federal a.qenci~sand, orqan.izations.' The databases we
identified were (1) "the Governm~nt Printing Office's (GPO)
monthly catalog o~ publi~ations, and (2) the Nationa1Techni~al
Information Sarvice's'(NTIS) bibliographic databa,se" , In total,
for the, 5,-year period, '1990 t~ough 19.94, the two databasas
contained, over 400,,000 records. p'e:rtaining to federa1 agenci.as'
reports,' studies, fact sheets/maps, handbooks, conferenca
proceedings ,etc. ,
."
'J'
'.
,
"
"
, Table i presents ,the'rasul't's of our' searching th~sa b.1o'
databases for the 5-year ,period.t ~990 through 1994. Wa
.,id~tlf!e4· .2~5 federal- foreign ,language ~doCUDients in the '
dat~ases.:' The table present~, by ,federal department or
4qency, ~he number and. 'percentage of ,foreign language doc1:.!D.ants
published and availab1a' ,for distribu~ion from th~se tuo data
sources. '. As indicated in, <table '~ti ,the federal agency that
issued the greatest number of f';:deral document.s printed in a
foreign lanquage was the, Social Security Ar:1m:inistxation. ttle
iden1;:.ified 50 documents I' >or 19 p~:=cent of the 265 f,oraign
l~1.guage docUments', ,as, issued by the Social security
Adm1nistrat1on~'
.,
,
,
".,
'
',.',
202 5.1 2 4 <5 16 ' '
;, . •
:
1,·
09-20
950~:39PM
P002
a2~
�B-266194
Table 1: Foreign Language Documents Issued
by Federal Agencies I Calendar Years,
1990 through 1994
Nwnber ot.
dqs:uments
Federal department/agency
B
Agriculture Department
5)
Bureau of the Census
Consumer Product Safety commissio'n
9·
8
customs service
'
Education Department,
, ' , 16
Equal Employment Opportunity Commission ' 8
4
Energy Department
4,
Environmental Protection Agency
19
Food and Drug Administration'
26
Health and BumanServices Department
4
Rousinq and Urban Development Departmant
Immigration and Naturalization Service
B
Inter-American Foundation
14
Internal Revenue S~rvice
6
Justice' Department
8'
Labor Department
,
14
National Institutes of Health
50
social seCurity Administration
,J.9.
Others
265
Total,
Percent of
total docwnertts:
"
3.0%
3.4
3.4"
3.0.
6.0
3.0
1.5', .
1:.5
7.2
9.8
'1.5
1 .. 5
3.0
5.3
2.,3
3.0
5,.3: .
lB.9
~7.4
. 100.0%
·A total of 30 federal departments and agencies are included· in this
category.
.
Source, GAO analysIs of the GPO and h."TIsdocum.ent dat8l:Jases •.
.
As ~ne might expect, the fO~QJ.qn language documents issued by tha .
'
various. federal departments and agencies covered subject mattar and·
topics related to their operating missions andfunctions~ For example,'
the Social Security Administratio~ foreign language documents addressed
. such topics as Medicare, the Supplemental Securltylncome program,
d1sability 1nsurance, workers compensation, and various taxation
topics. The foreign language documents of the National Inst! tutes of
. Health included such topics as cancer J . asthma, tooth carel,. and
radiation therapy.
Our database docum.ent search identified Spanish as the most widely- used"
foreign,language in documents issued by federal ,departments and':
.
agencies. Asindlcated ln table 2" of the 265forelgn language
documents we identified, 221, or 93 perc~nt, were written in Spanish.
The next most frequently used language uas French, in which 12.
documents, or 5 percent, were written.
.
GAO/GGD-95-243R, Federal Foreign
202
512,4516
Lan~age
Documents
d9-2d~95 03:39PM' POC3 ~24
�8-266194
Table 2: Breakout,of Federal DOCUIllents
by Type Of Foreign Language, Calendar
Years 1990 through 199,4
Number of
Fo~eiqn
documents
language
1
Cambodian
Chinese
French
Percent of
total documents
0 .. 4'
0.9
12
0 .. 4
1
3
0 .. 4
1.1
2
Italian
portuguese
Romanian
Russian
. Samaritan
Spanish
4.5
1
Geman
0.8
0.9
1
211
1
Tagalog
Ukrainian
Multiple languages 4
Total
1
J1
.
265
o.~
83 .. 4
0.4
0..4
6 .. 4
100%b
"Documents 1n this category include taxt that was printed in more than
one 1anguage--e.g. 'Spanish and, English.
t.r'otal does not add to 100 due to rounding.•
Source: GAO analysis of the GPO arid. NTIS· document databases ..
It should be noted that the above information was obtained from a
computeri.zecl information query of'thetllo databases'c.1.ted.. ~hG
documents identified In the search were not verified back to the
pubLished 'source document. Also, according to a GPO official, not all
federal foreign language publications and documents may be !ncludQd in
the GPO monthly ca.'talogue datal:l8se. }.pparently I federal departme~lts .
and agoncies have the discretion to print and distribute soma do~uments
that are not to be included in the GPO database. Thus, the 265 foreign
language documents we identified should not be conSidered to be a total
federal governmentw1de (excluding the Departments of Stata and D~fense)
figure for the cited 5-yaaJ: P Q r i o d . ·
3
GAO/GGD-95-243R
j
Federal Foreign Language Doct!Il!ents
2 0 :2
5 1 2 ,4 5 1 6
09-20-95 00:39PM
P004 :24
�Ut1/ J:.VI t1ii.J
.....
!
nl:.lJ J.."" .:'*J..
r~
.:u.:
").1.";
..... .I.U
.'
5-266194
We are sending copies·ofthle letter to the Chairman, senate Committee
on Governmental Affairs, and will make it available to others upon
request.
. .
We trust that this Informatlonsatlsfactorily responds to your request.
Please call me on (20~r 512-3511 if you have any further questions .
•
Imothy P. Bowlin
ASsociate Director
Federal Management and
workforce
Issu~=
(966681)
4
GAO/GGD'-~-243R,
Federal Foreign Language
202 512 4516
.
nOCUlll.~rtts
09-20-95·03:39PM
poos
~24
�~!:
H;)
.,
.
. Bjlirigual" " .
·Education: .
.
" .Separating:ract .
frolD.Fiction"
-.
,
"'
,',
'
"
"
'
''.
~
,.".,
'
:
-,'
,
September"lR.
~--'---~~--;-----.-,-.-,.
-
.
f.
"
,~,995
, _ _ _- - C - - _ - - - '
�.- __
-":II
......
Fiction: ."siudies'prove, that bil~niUal education doe;"t work. .1
Fact:Jher~ is a cons,ensus in .~he research corJunlmity.both, on the soundness ofthe theory and
", effectiveness ofbilirigu.al education.. the tulrithllltion o(theresearcn cOnsensus is reflected in two',
'stUdies, covering thousands ,of Sp~sh';'speakingiirnited~English proficient (LEP) student$,
valid'ated by the National Academy ofSciences'(NA5) in 1992. '
'
, In 1990, the Department ofEducation asked the NAS to review these studi~s and critique their
findings. The NAS is the rhost prestigious re~earch~odyin the ,world. Composed of researchers
, im4 s9cial~cienti$~s reCognlz~bYtheir,peers.as thebest intheirJields, the NAS is considered the
"all-:star team~ of the 'research co~unitY. When ,an NAS reView Committee can agree on the
'validit}rofresearch, it isbeiieverl that a research consens~s has been reached.
The NAS review affinned the finding that LEP ,stUdents in bilingUaleducatio~ programs~ade
greater academic gains in content areas, like,math, tlian the students who received all instruction
' ,
in English. 2
, ' , '
.
.
.
.
Fiction: 'Many 'bilingual' programs use the student's nativek/mguage almost exclUSively in the
first few years. Students aren't learning English. 113
. ,
,.' Fact: This often heard claim is wholly r.efuted by the studies validated py the NAS.. The studies
found that English was used the majontyoftime in bilingual education programs and by the
, fourth gr~de only 3 percent instruction w~itn the stliden,t's native language. Specifically, the
studies found that 'in 'transitional bilingUal ~~catiori 'clas~rooms~ English was'used 65.8% of the
time in Kindergarten~69.1% in Grade 1, 74.5% in Grade 2, 80.3% in Grade3, and 97;3% in
Grade 4. :i;ven ip'-devel~pmerrtal bilinguarprograms, where the goal is fluency in both languages,
,:English w~ used a nia.iontY oflt:~tirne in Gractes3-6, Every bilingUal education program has an
, 'Engtishasasecondlanguage '(ESL}coinponent. That is, every bilingual education program
, includes ~'ignificant coursework in teaching English'language skills/.
''
,
of
Fiction: 'Studies confirm what conimon sense WDliid tell you: the less time you spend speaking a
new language, the more slowly you'll learn it. liS
'
Fact: The studies validated by the :NAS directly'addressed and refuted thi~ claim."The'study
~ncludedthat providillg LEP st~dents with"substantial in~tr\lction in their primary language does
, not interfere. with ordelay their aCqui~ition of Engli&h language skills, but helps them to'catc" ·w'
to their English-speaklng peers English language arts, English reading, and math, :l:; cCDtrast,
, providing LEP ,stu dents with alnio~t exclusive instruction in English does not accelerate their
acquisition ofEnglish language arts, readinii' Of math; ie., they do not,app~ar to be 'catching up.'
The' data suggest that, by grade six, stud~nt~ provided with English-only instruction may actually
fall further behind their English-speaking peers, Data also document that learning a second
language will take six or 'more years [regardl~ss or'the instructional ,approach, English-only or
bilingual education].,,6
'
,.
in
�, Students in bilingualeduQltion classes postechuperiortest WOfeS,beql.UsebiJingual educati9n, "
,'Students were allowed tOcOntinue)o acaQerPic8nyandcognitively develop as soon, as they' " "
entered, school through the, use'()f their nativ:~ljUiguage~ 'Bilingual education stti~ents were able ,to
probl~m sqlve.analyze. and apply, critical t~g ~ki1lsearlier than LEPstu~ents in monolingual
English settings because they couldexplQre challengiilgcontent matter long befot:e students in
monolingu~ English classroom.s. : , '
'
'
,,
,
To use an example from Washington, DC~ 'Public Sc.hools,s~d~ntsat the Oyster Bilingual
, Elementary School..;.. where the stiJdent body is composed ofroughly equal numbers ofnativ~
'Engl~sh.;"aild native Spanish:-speakers..:. are 'taught halfotihe time in English and'half'ofthetune
inSpaJ,lish. ' Sixth grade s~dents~t the school po~teds~r~sequivalent tOJw~Ifthgrad~ students
in English language ~ris on theC~lifomia Test ofBasic$kills. 10 other'words, sixth grade ' .
, bilingual education stUdents were not only performing at ~he levelofhigh school seniors in
English, they were also fully literate in Sp~nish. 7 '
'
Fiction: "How difficult can it be to 'earn English i/Berlitz can teach someone t~speak English
in30days?rt8' ' ' , .. " " , '
','
," ''
"",.
",
,
Fact: There is a great difference between the conversational phrases ta~ght by Berlitz and the
, high~level academic:English needed to su~eed in school,'college, lind high-skillsjob market. Th,e
cOnversational phrase~ taught at Berlitz and other short.,ierm language'programs permit the
student toorde~ fqod, make hotel reservations, orlocate:a train station., They do not claim to '
equip students wit~ the ,ability to write a hig~ school paper, for example, on the symbol,sm' ofthe '
white whale in Herman Melville's Moby Dick; at the. same'ievelas a native English speaker., ,
In a soon-to-be-published study that mirrors thenildings ofstudies validatedby'the,NAS and
many. m~~y ,others on the length oftime for English acquisition, two researchers from. George'
'Mason University examined school reeordsofapproximately 24,000 language-minority student,
records per school year with six to ten.years ofdata on achievement in standardized tests"
performance assessment measures, grade point averages, and high school' courses in which,
enrolled. Students reached English fluency, as measured by the 50th perce~tile on ,an English
, stand~rdized test, inS to,lO yearsiftaughfinEngli~honly and in 4to.7 years iftaught in bilingual
, ' .
'
:
'
, education. 9
'Fiction: "lAnguage-minorityparents andco,mmunities oppose biling,ial education. "
.
"
Fact: Polls show thatlanguage'-minority ~ommunitj~s/';olidlysl1ppJrt bilingual education. For
example, more than 80% of the Latinos interview¢.j;f)~d~jiiiriguah~~ducati~n. according to a poll
by the Los Angeles Times. io , , ; >," :. "
'.
,
/
"
'
Surveys cited by bilingual educationqpponents 'always use loaded ,questions that border on •
silliness.Eor example, English First, a national lobbying organization lhathelpsto funnel
campaigncontribution$t~ English-'only'supPQrters,offers thi~ suryey question result i~ their
" ,
,
~
,;" 2'
�'j.
.-,
.
· pro~otional'fuaterial:"the gr~tmaj()tity' ofHispani~'patents ~more tluln t~ee-fourths of,' .' ...
Mexican~AmeriCan 'parentsan4 m.ore than four':'fifthsofCuban~American parentS .... are opposed '
.to,the teaching ofSparlish,afthe expellseofEfiglisll.": [~mphasisadded]' Itdsalmost surprising'
. that only 75 per~ritoflIispan!cs affimiatiyely iinswered such a loadedque~ion,that·way.• The·'
· question is n()twheiher Hispanic, Qrpther 18I1guage:-ri1inosity.C()mm,ilnitie~ want their .children to
. speak Sp8Jlish or another-native 1ari8l1age ~'butratheI'wOat is the best way to teach antEP
studeriiandAoesiqjro~QCe stugent$ who' sp~~bothEnglishm1dtheir native tongue.-'Asthis· ..
Q()cument snows, bllirlgilflleducliion teaches English ,and is ,the most eff~ctive way to teach .
.children academic content-areas. I.I ' , ,.
.'
....
. Fidion: ' "Kids are being placed inbilingualeduCl,ttion who cailalreadYSpe'ak English fluently
.' just because the/have',aHlspanic,or ethnic minority Slimame:,,12., ,
Fad: AneCdotes ofinappropriate Illispla~men~ of rion~LEP studertts ill. bilinguideducation are'
tragic.. They 'reflec(teiribleedlicaiion policy'that no.bilingual educator would. condone and are
against federal law:. There have been no hatjollal studies ;nor, e\t~uationsthat have even suggested'
· that inappropriate'misplacementofnon-LEP stUd~nts 'into bilingUal education is ariyihingbut an '
abhorrent aberration. 13. "
"
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What has be~n weB documel1ted is thatthete'ar~ ~illio~sofLEP students wnoarenot .provided
, at ~l with serVices that enable them tOllllderstand instfuction.' More than quarter (26.6 percent)
ofLEP sttide~ts currentIy receives ho tailored educatio,n'alservices'to~lIow them to understand
instructioh,in violation off~erallaw"4,,; , ,
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i' E~~n more troubling is the misplacement ofi£P student~ into' special educatio~daSs~s. 'A class'
'action suit on, behalf of over 1,()OOASianill'niigrantfarriilies accused the City ofPhil~delphia for
nusplacing their LEPchildreninto speciaJe~uc~tion'classes without parental.knowledge or, "
consent in the la,te 1980's. 'In the initial' case.thatied, to the class action~,:an' Asian refugee child
.was Jransf~rreCI ,t6 three :separate midgle schools but never received any assistance inleaniing,
, English, in violatioTl o(state ~nd :fede~af-hiv/ After years in which the child failed to make any
.academic progress, the s.chool test~d hiin~ found ,him to be menially disabled,and placed him in a
speciaIeducation clfl,ss, all witnoutthe knowledge or consentofhis,paren,ts.iS ,
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, Fad: High dropout rates'of limitea-E~glish 'proficient (LEP) students: cannot be blll~ed ~n" ,
bilingualeducation'because: over three-quarters" ofI;,EP .students are not. taught through bilingual
: 'education: .' Bilingual'educatiOn is. u$ed to instruct only about one in four LEP students., .English
as a Se'con<i-Language (EsL) instrUction, in which the student's na~ivelanguage is notused for'
academic instruqticm, is use<i to ~eachjl,lstless 'than 'haifofLEP,stuaents:., Qveraquarter ofLEP
students receiv,e neither servicestot~ach them. E:ng!ish ,nor ~ssistanc~' tailored, to helptnem.
,"understand what is being taught' to them.. Thisis:ofte;-:r:alled 'a~'sin~,.ot~swiinlla:pproach to
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teachingLEP students and is in viQlation offederaJ law. 'Ifa reading of this data suggests
· anythin~ it is that,lack ofbiJinguareduCatio~anovereii8nce()n ES1.., arid the prevalence ofsink- .
. or-sWim approaches to teaching LEPstudents rnay be'the reafculprits in high LEP dropout .
rates. 17
.
Fiction: "Bilingual education is impractical because;t costs $8 to $11 billion and there are 180
· languages spokim by America's students. nl8
.
· Fact: The'~8 to S11 billio~ estimates ofthe costs of bilingual education offered by opponents are
outrageous but simple to understand. The 'nuIhber reflects the 'cost ofeducating LEP sfudents
whether 'or not they,are taught using bitingUat ~ucationinstrUCtional techriiques.. There are .
approximately 2.lmil~.dn LEP studerits·hltheJ,1.S., a~rding to the U.S. Department of
· Education. Ifthis' number of stud~nts' is mult~plied by the average cost of educating a student in
the U.S., about $5,0'00, oneamves at the.oflenrepeated $8 to'Sll bilJionestimates. As one can
S8 'to $1 i billion'would, be 'spent 'on instructing LEP children even if every 'school in the U.S.
.chose to use neither bilingual education nor ESL. The true cost of bilingual education is the .
additional amount of funds that a ~chool expends to change 'a monolingual English program to a
bilingu8I educational program. This additic;mal cost is limited primarily to the purchase of .
additional instructional materials,· which is marginal. 19
see,
The large number of language groups would only be a problem for schools if each school had to
instruct students from many different language groups. While it IS true that most major school
districts have many language groups, most scho()is are linguistically homogeneous. For exampl~,
t~ere a..eover 75 ianguages represented in theTilcsonpublic schools, however, no single school.
has more .than four .languages represented .. In Deriver, there are 60 identified .language groups, yet
, no more than three languages are spoken ,in any given school.. In these situations, there is no
· questi,olifhat bilingual education can, and should,be provided. Nationally, only<>ne quarter Qf
LEP students attends SchoolS'in,whichtJlenuinbers and diversity ofLEP students would make it
impossible to' carry out a bilingual education program~ according to data fro~ the General
Accounting Office.
.
'Even when the numbers are not large.and certified teachers sparse, there are many ways to use the
students'native language and culture by drawing upon the resources ofthe language minority
corrimunities. In Fountain Valley, California, for example, Project GLAD students, who come
. rom 12 different language groups, receive one hour each 'day 'of content and literacy instruction
f
in the native language, taught by paraprofessionals from their cominunities. Bilingual education in
most U.S. schools is not only desi~able, butis also possible.
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More important,arguments'against the practicality ofbilingtial education forward the absurd,
proposition that because one LEP student cannot be served, no LEP students should' be served,
" The Supreme Calinin Lau V. Nichols, the 'landmark case that requires schooisfoensure that LEP
students can understand instruction, wrote that states can and should consider the. numbers and
diversity of their LEP stu,dents when considerin~ what services sc~ools can ,reasonably offer LEP
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Fiction: "Mygrandp(:trents ";'ere, immigrants and';'adi'i! ~ithout bilingual edutiat;onor any
o~herspecialhe1p." ,
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, ',Fact:While there: are surely ,extraordinary cases; ,exarnpl~ of tum~of~th~~century inUnigrants
, l~!lg English'andsuciceeding in the Amencanji?b'market are exceptions to the rule that are "
, 'u~ua1iyinappJicable'to todaY's high-skilis,high~i~hn()logylaboi market. Contrary to the widely
•a~pt~}nythth;li,earlier' ilTll'rilgrlm.t groups p1ariaged',without, special programs, ,rnos~ inm.ligrant
"chi]dr¢nwhoeTltereds.<;:hools,w~remore IikelytciSlnk thaiis~im in English-omy classrooms. in
: 190~, for examp'te, jus{ 13%:of thetweJve~Ye8I-olds,~ilrolJed in New York public schools~'and
", whose paient$ were'fOl;eign:bom, we~t;o~itcfhigh school~~rnparedwith ~2% 'of\vhitechildren
." whose parents weremitiveboql." Some ,~rrunlgrarats witn limited English skills ~nd fonnal '
educationcouJd suc(.':eedbecausethe:.~~Qnomy,with its~rtd~strialaf.lQ agricultural base, relie~ on ,,'
" uneducated'ahd,'Onskilledlabor., F()r,'~xample~' an immigrant factory worker could do, quit,e,well '
,
, for himself with conversational English skills, but the sarrie immigrantwith the same
coriversational English skills would hav~ ,much,greater difficulty securing:even ari~~~trylevei job
, today with IBM:21
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Fiction: :''Bilingual education is ~ 1960'screatiQn' ojthe jeder~lgovernment.'f'J.i ,
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There,is a tradition of bilingual e.t!ucati6n .in:Jhe U$. that datesff6ri1 early niIieteenth:-century
American schools. ,1ft the public schools ofmany states between 1839, and 'I ~80'-- including
,.,',
Ohio, Louisianlil, and NewMexico~.;. Gerinan,Frencn, and SParush :were used for instruction.
, Beiween1880and.I9.:l7~ Gennan~Engiish bilingual schools, inwhi9h both,Janguages were used
f~rinstru9tioii, operaled lil O~io~ Minnesota, and MarylMd. In several other states, ~nnan was, . '
incJuded'inthecurriculumasa subjectrathert~ariasa,m~'s of instruction: ;The same is true for
Norwegian, Italian,'Czech,Dufch;and.polish.,· ,: •,- -' , ' \ ' . / . ,"",",'" ,~'.
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In piiv~te schools, mostly parochial,Gennan7Englishbilingu~edu~tio~fl~urished throughout,
, '" the United States b,efo,re 1800, Also~ during'this period, many French schools were' established in,
the northeastern' United' States' (precursors ofthe modem~day' Lycee Fran~ais found in N ew York:
. City, for example) and Scandinavian .and .putch'schools
were formed in the Midwest?3 , '
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.- Fiction:' "Ethnic .leaders use' hilingual educatio,!: iis awayio keep' their co~sti17lencies. easily .
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":manipulatei!:anddisenjranchised "2~' '
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Fact:' Ofall; the claitns mideagainst bilingual ~ducalion;;tpis is, the $ingle most ridiculous, '·The '
nation'sh'ighes{)angmlge~minorityelected'offiCials--Membe~s.of Cpngres!i -~ are,democratic<!-lIy
,'e1~cted every)w6years to representtQeJarsesflangu~ge.,miqqrity communities nationwide and,
" ,~illions ofLatino vqtets: ' All ,Latino,all Native.Aineric3Jl,;and thehjverwhelming majority of '
,-, Asian Atrterican,Members of Congress support ~ilingu'ateducation a~ ,a,key to' educationa],and life,
, ' success.' In c()ntra:s~, those individuals who acctIs-e Latinoteaderst ()f disenfranchising the~r'" ' .,
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constituencies are ,\lsually not democratically elected officials and therefore in poor position to
represent the vie~sorlangu~e minorities~ross the countrY.
~lected officials c~tical oflanguage-plinority leaders invariably do, not rePresent significant
.iilnnpers 9flanguage-.ininoriiy votets (they haiffrom places like Wisconsin, Missouri, KanSas, or
Georgia)' ~d therefore, are in no pOsition to' assert th~' "tl}iefl sentiments' oflanguage-minority
'communities. Qnthe other hand" those' n~:m';'l8nguag~nUnority eiected officials who do represent
language~mirioritYCominunitjes' an:;'some ofbilihgu8Iedtication's strongest supporters. Indeed,
the Claim seems tosllggest that language~nunoritYvotersare Incapable ofelecting representative
'leaders.
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1. For example, "No evidence exists to back up the'claim t~at teaching children predominaritly in
their native tongue~ is better than otherinstnictional models using intensive English, such as
English as a, Second Language.'" From RoSalie Pedalino,Porter, "Bilingual Ed Flunks Out," The
'American Experil11ent: A Quarieriy Publicci/kmojthe Center for Equal OpportunitY, Spring
1995, p: 1. Porter is Chair .ofthe Research lQ Eriglh;h Acquisition and Development, Inc. (READ
Institute) and is editor ofthe READ PerspeCtiveS pl,lblication.' READ was founded with funds
and assistance from U.S. Engli.sh: a national lobbying grouping devoted to making English the
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.,official, federallangtiage.
, 2. Michael M. Myer and Stephen E. Feinberg, Editors, Assessing Evaluation Studies: The Case
, ofBilingrial Education,Panel to Review Evalu~tion.StiJdies ofBilirigual Education, Committee
:.' on National 'StatistiCs, and Commis~ion on B,ehavioral and Social Sciences and Education, ,
,
National Rese¥ch C()uncil, (National Academy ,Press: Washington, DC, 1992). 'The two
DepaI1ment ofEducatioJl $dies reView,ed by the NAg' are entitled:, The National LiJngitudinal
study oj the Evtiluati9~lof tfle Ef!ectivel1ess ofSerVicesfor Language Minority Limited-English
Proficjent StudentsandT/1eLongitudinal Study ofimmersion Strategy, Early-exit and IAte-exit
Transitional Bilingual Education Programs for lAnguage-Minority Siildents. See Appendix A
for the members ofthe Committee on National Statistics and the Panel to Review Evaluation
Studies ofBilingiJal Education ofthe Natioiutl Academy of Sciences.
3. Linda Chavez, "Bilingual Ed the Real Culprit, It USA Today, Sept.'6. 1995, p. 13A. Linda
Chavez is president ofthe Center for Equa\ Opportunity (CEO) and former executive director of
, U.S. English.
"
4. The Longitudinal Sttidy ofImmersioilStrategy, Earl~exit and lAte-exit Trar,i:~,!{ojlal
, Biiingual Education Programsfor lAnguage-Minority Students: p. 90:-91~\~f:,;~:,~j;;Q~::ft~~d;'by the
NAS review.
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5. Linda Chavez. "One Nation, ,qne Common Language," Readers Digest, August 1995, page ,90.
6. Executive Summary, The Longitudinal Study ofImmersion Sirategy, Eqriy-exit./.!l1dlAte-exit '
Transitional 13ilingualEducation Programsf01; Language~MinorityStudents, 'I, as validated
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�,by the NAS review.
7., ;Results rep()rted in D.~C, Public Elementary Scho~~Median Scor.esand Percentiles from May
, 199i Exlpllinations ofComprehensive Test ofBasic Skills. The sixth grade students from Oyster
Bilingual'Eiementary School ,scored atthe 12.2 Srade level, grade ~uivalent scores based on
national n o r m s . "
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9. Wayne P. Thomas and Vir$inia P.• Coiiier, fI~es~ch Sull'lllUllj ofStody in Progress: Language'
',MinoritY Student Achievement ,and Program Effectiveriess," George Mason University, 1995.,
Publications to come on'dus series of studies':' R,eport by Lynn Schnaiberg, EdUcation Week,
September ,or Oct9ber 1995; r~earcb m'On9gr3.ph by Thomas and·Collier for the Nat.ional·
Cleanngho",se on :Bilinguai,EduCati()~,'late'faIl1,995;'artic1<~s in Billnguai Research J9umaland
other eilucatio l1 journalsin '1996, For.other studies ,on thel~ngth of time to' acquire' academic'
mastery ofa second language see V.P. Coltier;"iAge and rate ofacquisition df seoolidlanguage
, for academic purposes, TfSOL Qua':t¢'rly,:21,'617~641; Collier, "How Long? A SyntheSIS of
researGh 011 academic aciileveme~fiilsecond language, II TEsOL Qilarterly, ~3, 509-531; Collier,
, "A synthesis of Studies, examirung Ipng-tetm ~anguage-minority student data on academic
achievement," Bilingual Res~arch je)l/mal, i 6' (I -2), I'87-2'12; Collier and'Thomas, How quickly
can immigrants ,becoin~proficient ill ,school English, Joumal ofEducatiollallssues ofLanguage " '
'Minority Students, 5;' James Cummins, The RQle ofPrimary Language Development in Promoting .
. . EducationalSu~cess for ~nguage Minoiiiy "$tud~nts, $choOling and Language minoritY
Students, ,Caiifomla Dep~rtment of EduCation~ 1981 ,and Interdependence offitst- and,second- ....
: language proficient in bllingualchiidr:eil,in Bialystok,ed" Language Prqcessing andBilingual
Children, CambridgeUniyersity Ptes$, .1991, :and Bilingual Education and English Immersion:"
.The Ramirez Report inthe~reti,cal jleispective, Bilingual Research j('umal. 16 (1-2); and F.
Gene$ee, Lear/ling through two 100lguages: Studies ofIml1Jer,sio;i aild Bilh:gual Ed.uca~ion" .
Cambridge, MA:NewburyHous.e. 198~.·
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10.. :Poll'reported in The Los Angeles Times, Dec.?, ~ 992.
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1L English First, "Statement ofEnglish First in Opposition to S.B. 88." Theprf!sident ofEnglish .
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First is LarryP'ratt, also president afGun Owners· of America,
12. Jorge Amselle, "When one language is better than two," Opinion Editorial in The Washington
Times, August 24. 1995; page A19. He writes: i'BilingiJal education today means three to five'
years in a program where as, m4ch 'as 90 percent of child's [Sic] day is spent in the native, language,
even ifit isn'this or her native language.' I have spoken to many parents and teachers aU over the
.
country who have similar hc)rror, stories. Of
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13. "Students shall not be admitted to or excluded from any f~derany assisted t:ducation program'
merely on the,basis of a su~ame ora]anguage~minority status." Section 7502(b)(4) ofthe
.
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14. Data ,from, the Ca1ifomia'Dep~ent ofEducation as reported by Reyna1do, Macias, "l\iore
LEP Stu,dents Receive No Speci8l Serv1ces,"Univ~rSity ofc.Jifomia Language Minority "
, Res~ch litstitute, Volullle 4, Number 2,p: L, D~ta, from California, which enrolls' 42,1 percent
of all LEP' students, giveS the best description 'of educa.tional services to LEP students.
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15. United States District Court,:Eastern Distri,ct ofPennsylvani,a, Class Action Complaint, Y.S., a
minor, by hisfather, tinS., afld Yin S. atui Lim C., individuallyandon behalfofa1I.others
similarly situated, Plaintiffs. v. School DistrictofPhila(ielphla, Defendant, No.CA 85-6924.
,
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16. For example, see ~orter, "Bilingual Ed Flu~s Out, II p. 5., She writes: "Spanish speaking LEP
students who have had the heaviest engagement in'bilingual programs still have the highest
dropout rates, in the country at, nearly 50 percent, cOmpared to about 10 percent for English
speakers."
17. Datafrom the California Dep~rt1TIent of Education as rep?rted by Reynaldo Macias, "More
, LEP Students Receive No Special Services," pniversity of California Language Minority
Research Institute, Volume 4, Number 2, p~ 1. Data from California, which enrolls 42.1 percent
of all LEP'students, gives the best description of educational services to LEP students.
,
18. Rep. Toby Roth and Jim Boulet in English First promotional materials.
.
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19. Figures from tneOfficeofBilingual Education and Minority Language Affairs ofthe U.S.
Department of Education for 1992' as reported by State Education Agencies.
20. Data cited by Senator Edward Kennedy during reauthorization of the Elementary and·
Secondary Education Act, 1992. Lau 11. Nichols (1974).
21. U.S. Department of Education. The Condition ofBilingual Education in the Nation: A
Report to the Congress and the President, 'Office of the Secretary, U.S. Department of Education,
'
Washington, DC: 1991, p. 2.
22. Rep. Peter Klng,pres~ release en~itled "Rep. King Introduces English Language BilI~" Spring
Summer 1995. King writes: "Beginning in 1968" however, the federal government began to
reverse this proven policy by mandating bilingual education in our schools which meant that
students would, be taught in their native language rather than in English. n Rep. King is author of
HR 1005, a bill that would make English the official, federal language of the United States arid
eliminate bilingual education.
23. See James Crawford, Hold Your Tongue: Bilingi/a/ism and the Politics of "English-C;;{\.'
Reading, MA: Addison- Wes1t:~y, 1992; Arnold, H. Leibovitz, The Bilingual Education Act.: A
Legislative Analysis" Washington, DC: InterAMerica Research Associates, Inc., 1980; Diego
C~stellanos with 'Pamela Leggio, The Rest ofBoth Worlds: Bilingual-Bicultural Education in the
U.S., Trenton, NJ: New Jersey State Department ofEducation, 1983; and Bill Piatt, Only.
English? Law & Language Policy in the United States, Albuquerque, NM: University of New
' ."
Mexico Press, 1990.
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24. Forexarnple,see Rep; Newt Gingrich. "English Litera¢yisthe~oin otthe Realr1\",Opinion
" Editorial in the LosAngeles Times, August 4, ',1995. He writes·Sadly," there are some ethnic
leaders :who'preferbitiogualism because it keeps their voters aitdsupporters. isolated from the rest
. of America. ghettoizedinto groupsmoreeasilyntsnipdlated for political purposesoft~n by self
appointed leaders."
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95 Cal. Daily Op. Serv. 7821
(Cite- as: 1995WL 583414 (9th Cir.(Ariz.)))
Stephen G. MontOya (GeOrge ViCe m on the
l?rief), Bryan Cave, Phoenix, Arizona, for the
.interienors·plaintiffs"appellees.
Maria-Kelley F. YNIGUEZ; Jaime P .
.Gutierrez,Plaintiffs-Appellees, .
and ARIZONANS AGAINST
. CONSTI'rUTIONAL TAMPERING,
Intervenors~Plalntiffs-
Appellees,
.
and STATE ofArizona; Rose Mofford;
Robert Corbin, et aI., Defendants~
Appellees,
v. '
ARIZONANS FOR OFFICIAL ENGLISH;
Robert D. Parks, bitervenors-Defendants'. . Appellants.
.
Maria-Kelley F. YNIGUEZ, Plaintiff
Appellant,
v.,
STATE of Arizona; Rose Mofford; Robert
. ..' Corbin, et 81., Defendants-AppeUees, .
and .ARizOrfANSFO~ OFFICIAL
ENGLISH; Robert D. Parks, Intervenors- .'
DefendantsAppellants. .
.
Maria-Kelley F. YNIGUEZ, Plaintiff."
Appellee,
v.
.
STATE of Arizona; Rose Mofford; Robert
Corbin, et ~'" Defendants-Appellari~. .
Nos. 93-15719, 93-15061, 92-17087
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted May 3, 1994 ,
Filed Decembel- 7, 1994
Amended January 17, 1995
Order Granting Rehearing En Bane Filed May
12,1995
Argued and Submitted July 20, 1995'
Filed October 5, 1995
Appeals from the United States District
Court for the District of Arizona Paul' G.
Roseriblatt, District Judge, Presi~
Robert J. Pohlman' (Catherine.' Bergin
Yalung on the brief), Ryley, CarlOck &
Applewhite, Phoenix, Arizona, for theplaintiff·
appellee-cross·appellant.
1
.
Grant Woods, Arizona Attorney General
<Re~aWhite Berch, Arizona Solicitor
. Gene~, on the brief), Phoenix, Arizona, for'
.the .defendimts·appellees.
Barnaby W. Zall, Williams & Jensen,
Washington, D.C. (james F~ HenderSon, Scult,
':LaZarus, French,· et. al., Phoenix, Arizona, on
the .brief), for 'the intervenors-defendants
.appellants.
Before: J. Clifford W8llace, Chief Judge,
ProcterHtig, Jr., Harry Pregerson, Stephen
. ReiDhardt, . 'Cynthia Holcomb Hall, Charles
..... Wiggins, .Melvin Brunetti, Alex Kozinski,
.Ferdinand F. Fernandez,'Andrew J. Kleinfeld,
.' , and Michael Daly Hawkins, Circuit Judges.
REINHARm', Circuit Judge:
-I These consolidated appeals require us to
~nSider an important area of constitutional
law,raiely reexamined since a series of 'cases
in the 19208. in which the Supreme Court
8truck .down laws restricting the use of DOn·
Eng~ langUage!;, See Meyer v. Nebraska,
262-o.S. 390 (1923); Bartels v. Iowa, 262 U.S.
·'404 (i923); '. Yu Cong Eng v. Trinidad, 271
U.S. ~OO (1926); FaiTington v. Tokushige, .273
U~S. 284 (i927). Here, onCe again, trui state
h8.s chosen to use its regulatory powers to try
to reqwre the exclusive use of the English
language.
.'
Specifically 'at issue in this case is the
consUtut;ionalityof Article xxvm, of the. .
AriZona Constitution.
Article" XXVtil·····
.' provicles, htter alia, that English is the officiaf
, language 'of ~ state of Arizona, and that the
, state and its politicalsubdivisions·including
all gnv~nUneni'" officials 'and employees
performing government business·mUst "act"
Arizorians for. Official
only in English.
English ";ld itsm1kesman Robert D. Parks'
, [FNl] apptlal the district court's declaratory
.judginentthat' Article xxvm is' facially'
overbroad in violation of the· First
Copr.'> West 1995 No cl~ to ririg. U.S.govt.·works
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(Cite as: 1995 WL 583414, *1 (9th Cir.(Ariz.»)
Amendment. Maria·Kelly . Yniguez, a former
Arizona state employee' who brought ~e
present action," appeals the district cOurt's'
denial of riorirlnal <4unages. .
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2
conclude that .oUr oplDlon' wa:s'correct.
Because the opinion was withdrawn when we
'went enbanc,we re.publish it no~, With only
a few Ch.al1ges that discuss the' applicability of
~terveriing Supreme Court cases or exPand on
"poiIltsth,8twarranifurtb:et explanation.: In
~oSt all' respects,however; -our en. bane
opinion ~ identical to .theopinion is.ruedby
.the three:judge paneL [FN3] .
This case raises. troubling questions'
regarding thecpnstitutlon81 status~ .of
language rights and, converSely, the state's
. power io restrict Such rights; . There are valid.
concerns on'both side~ .. In our diverse and
'. 1
plUralistic society, the importance of
establishing oon:unonbonds and a common
.Factual Background
language between'. citizens is clear: .' See
.*2 hi October 1987,ArlzOnans for 'Official
,Guadalupe .Org~tion,Inc.v. Tempe
English 'ir,itiated
petition drive to amend
. Elementary School Dist., 587 F.2d 1022; 1027 .
prohibit' . . the
Arlzona's' . caDstitution
. (9th Cir.197.8). Equally important, however, is
goverruiieiltis Use of languages other than
· ·the American tradltiol) of tolerance, a.
· tradition that recognizes a critical difference'
English, The drive culniinated in the 1988.
· paSsage by ballot' initiative' of ArtiCle xxvm
between encouraging the use of English and
.' of the Arizona Constitution, entitled "English
repressing the u,Se ·of. other languages.
.·as the' Official' Language."' Theme'asure
· Arizona's rejection 'of that tradition 1las severe" .
coilsequencesnot only for. its public officials.
:p~do/a margino.f one percentage point,
. drawing the affimuitive votes of 50.5% of
and employee~, but for Ule inany thouSands of
.... Ari.zOIlaIlS casting ballots· in the: election.
Aiizonans who would be' precluded from
recei Ving eSsential .' information from their
.' Under ArticleXXVIll, English is "the official
.'. language of' the 'State· of AriZona":' ."the
state 8.nd 19calgovE!rninents. if the drastic
lRnguageQf ... all government fuD.ctions and
prohibition contained in the provisiC?n were to
· actions/ .§§ 1(1) &' 1(2) (see appendix). The
· be implemented.. In deciding this case,
.' therefore, we are gU.ided by what the Supreme
prol'islondeclares that the "State arid'all lof.
·Court wrote in Meyer:
~ its] political subdiVisio~"~fined as including.
"all' .government . officials and employees .
The protection of the Constitution exiEmdsto
dUring "'theperlorinance of government
all, to those who. Speak other languages a:s
"business" ~ "shall Bet in English arid ilo other
well as those .bom With English on the
.
langtiage." §§ 'i(3XaXiv) & 3(lXa).
tongUe.
Perhaps it would . be highly
advantageous if ill had readyuildeii;tanding .
of our ordinary' speech, but this cannot be
. .. At. the time of. the' passage of the article,
. coerced by methods which conflict with the .
. YDigueZ,ll'Latina, was employed. 'by the
Constitution·a . 'desirable end cannot be'
'. '·Arizona Department of Administration, where
:. she handled. . medical malpractice :'claims
promoted by prohlbited means.
.
··&.;serled agaiiist the .State. ' She was bilingual·
262 U.S. at 401.
~ ~. ,- "
:. .r-.
. flUent and iii;erate in both Spanish and
'.' ....~r':!·."";:clude th].tArticleXXVIll constitutes
. English. [FN4l Prlor to the artiCle's passage,
., 'Yniguez com:nlunicated in Spanish' with
...~ p~hihtted me.;:;.ns .of promoting th.e English
.~ laniUageand affi:rnl the' district court's ruling
. monolingual spairlsh.speaking claimants, and
that it violates the First Ameridment. [FN2] .
·iD. combination of English. and Spanish with .
.
. ,'
bilingual claimants. .'
.
,
A three.judgepanel ofthiE;" Court issued an'
opinion reaching this same conclUsion last
State employees who fail to obey the
. >;o.':~ar.
yniguez .v.ArizOn,atlB for Official
Arizona . Constitution are subject to
;-.~r:english, 43 F.3d 1217i(9th Cir.1995). We then
employment sanctions.
For . this reason,
·decided. to recOl1..sider the question en bane. 53'.
immediately. upon passage' of Article' XXVIII,
.' .Ylliguez
spe81dng Spanish on' the job. .
F:3d i084 (9th Cir.995). Having done so, we
.
a
to
a
~
ceased
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She fearE!d that ~cause ,of Article XXVIII her,
use of Spanish made her vulnerable to
MofTord, .730 F.,' Sripp. 309 CD.Aq.z.1990):
district court resolved the
, discipline. ' ,
'
defendants' juriSdiCtional objeCtions.
The
"(9Urtrefterated .a previous ruling that the
"Eleventh Amendment protects the 'State of
In November 1988, Yniguez filed an action ,
"Arizona &om suit,and then rUled that
8ga,mst th,e, State, of Arizona•.. Governor ROse'
MofTord, . A:ri;ona Attorney' General Robert,
"GUtierrez's'claims were barred as to all of the
Corbin. and' Director of', the' ArizOna'
deferu:Iartts. ,~ at 311. Ii reasoned that
because state executive branch officials lack
Depart~ent:: of Administration Catherine
autho,rlty ':to prosecute,. members of the
Eden. in federal district court. [FN5] She
'Sought . an
injunction
against
state.,
le~lative Dra:i1ch:npne ofthe'defendants had
'" eilforcement
power, against , Gutierrez
enforcement, of Article XXVIII and a
deciaration that the' provision violated the '
sUfficient" ~ satisfy the doctrine of Ex parte
. Young,,'209 U.S. 12~ (1908). In addition. the
Fmrt and FoUrteenth' Amend:rilentfi of the'
Constitution.
well 'as federal civil rights
:court held :that .Ex parte Young ,barred
laws.
' .
, Yniguez'sCl8.im ·~gainst the AttOrney General,
" because hep.ad, no specific authority to enforce '
'Yniguez's complaint was subsequently
Article, XXVIII. Although the court fomid
"thati'>irector Eden bad authority to enforce
amended to includla Jaime Gutiemz,a
,Article. ,xxvm
against
Yniguez, .it
ifiSpanic state senator from Arizona, as a
nOnetheles~ held tha~. ,because ,Edenh8dnot
plaintiff. Gutierrez stated that. prior to the '
, passage of Article XXVm, he spoke Spani.$ , , threatened.to, do ,so, She too should be .
,< 'diSmisSed as a defendant. The court did find,
when communicatiDg with his Spani'sh"ho~ever, thai GOvernor MofTordboth had the .
, speaking const~tuentS and that he' continued to
,authority igenforce'Article XxVIII against
do so even after:the article's passage. He ' ,
, claimed,however, th8~ he feared that in doing ,
Yni~ aDd had sUfficiently threatened to do
so he was liable'to be Sued pursuant to Article
" 80 for YIrlgqez, to rilaintain
action agairtst
-
'her in accordance with Ex parte Young. [FN6]
XXVDrs enforcement provision.
First, the
as
,
an
'
The district>~f)Urt then reached the ,merits of
, ,The state deferui8nts all moved for
Yniguez's 'cl8.im.. 730 F. Stipp. at 313. It read
dis:m.issal; asSerting various jurisdictional 'bars
, Article' Xxvm as barring state officers and
to ' the' action. While these motions were
pending, .theple#tiffs ' conducted discovery,
, employees from Using any "language· other
~ compUed'the defendants' admissions 'to
than English iU, perl'orming", their official
, tD.telTOgatoriesinto a Statement of Stipulated , "
cJ.uties, except to 1he ex;teni that Certain.
F8cts. filed with the district court in February, ,';
lliiUted exCePtionS described in the. provision
applied. 'finding that Article XXVIU,thus
1989. AI80 filed with the court' was the'
AriZona Attorney General's opi,nion ~garding
construed, infringed on .constitutionally
the, interpretation of, Article XXVIII, which
pro~ speech. the district court ruled that '
the Provision. was ,. faci8lly,overbload iii:,
explained that. "to avoid poSsible conflicts ;,
with the federal ... consiitution[1," the ' '
violation' of ,theFilst, Amendmen1;£FN7r: ,<'
, While grailtingaeelaratory relief,. the court·,,·
Attorney General had concluded that the
denied' injunctive. relief~use
no
.t\rticle o~y covered the "ofiicialacts" of the
, 'enforcement
action
waS ," ".pending.
..t\rizona, government. Finally, the court heard
, testilnony" from 'YnigUez, Senator Gutierrez,
, Notwithstanding. the district court's holding
.that a provisionef the Arizona Constitution
and Jane Hill" a lingUistic anthropologist,
about the adverse iinpact 'ofArticle :xxvm on
was unconstitutional. under the UDited States
,. Constitution, Governor ,l4ofTord~an outspoken
their speech rights,' and the speech rights of
the Hispariic popUlation of ArizOna.
.
critic of. Arti,cle XXViJ.l;;cecide~·.·2I)tt.o appeal
'the jUdgment." Senator GUtierrez, being'
satisfied
'with' the 'constitutional
*3 The district courHssued its judgment and
opinion on Februm:v 6, 1990. Yniguez v.
deterinination. did nbt appeal the ruling that
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his cl8im was barred by Ex'Parle Young.
intervention, the state filed a suggestion of
mOotness b~cfon Yniguez's reSigilation from
the ArizOna: Dep8rtmentof Administration in
In response to the state'sdecisioil not to
.apPeal, ArizOruinS for Official English 'moved
AprU1990.tn our second opulionin this
Ynigu~zv. Arizona, 975 F.2d 646,647 (9th
to iniA!rvene Post·judgment Pursuant to. Fed. .
:E\. Civ. ·P. 24(8.), for' the purposeofpurSUmg an' , . · Cir.1992) ("Ymguez n " we rejected the
· :. state's mootness' suggestion, . reasoning that
appeal . of the district oourt's order.·
YnigUez ~ 'the righ~to appeal the.district
. Iminediately thereafter, the· Arizona AttorneY
• General sought to 'iD.~(me pursuant to '2~' . " court's failUre toawald her nominal damages.
,Id.On ~mber 15, 1992, after ArizonanB'f~r
U:S.C. §2403(b)fortliesame PurPose. The."
Official English filed its notice of appeal ill the
. Attorney Ge~ralalso asked that the diStrict
Court amend the judgrilent because ,it· did not
Qisti{ct court; ~YniguezfiIecl her notice cross·
'contain' Ii niling" on .the defendants' prior
appeal requeSting nonlinaI damages. [FN8]···.·
motion to certify to state court the question of
. " " Article XXVDl's proper interpretation. The
' . J The ". dist:r1ct· .
court sub~quently 'granted
.. 'Yniguez's motion for .anaward of attorney's
district court'denied all three motionS. See
Ynigu,ez .,' v.Moffol'd, 130F.R:D.·410
· 'fees. and the' state .defendants conditiorulny
Their appeal was
· . appcialed that ' ruling.
(D.Ariz.1990) (holding, intera1ia~ that denial
.consolidated With the original appeal on the
of certification was iinplicit in previous'
'. merits' filed by Arizonans for Official English .
judgment, and. .that . certification .was.
8nd : Yniguez's . cross·appeal for ,nOminal
inappropriate because .Article X4VIIIis IiQt
" damages. All three appeals are now before us,
susceptible of a narrOwing construction).
.. 'although we do riOt
the one reiating to
·4 On July 19, 199~, we reversed the distriCt .~tiorney~s fees. ~ note 2, supra. To round
court's deni,al of the intervention motion of " ',' ". out the procedural framework, we note that in
Ari.ionans for Official. English: Yniguflzv.
1994 we. 'granted the motion of' Arizonans
Arizona, 939 F.2d 727, 740 (9th Cir.199i),
· Aga.in,St Co~itutional Tampering and its
("Ynigu,ez I' ").Weruled that beCause the
chairniim'Thomas Espinosa [FN91 to intervene
aspl8intiffs·appellees in, ·the case. Arizonans
orgrui!zatidn was the principal sponsor of the .
ballot initiative codified 'as A:hicle ~ its .
Agaihst .Constitution8lTampering was the
rela#onship to the proVi.~ion waS analogous to . · .pri:ricipalppponent of the ballot initiative that
·.bec8:Dw.. . Article' XXVIII, had campaigried
the reiationshl.p. of Ii state legislature tQ. a .:
8.gairu;t it, .'and,. liItti' Arizonans for,Official
state statUte; Specifically, we foUnd that, as:' .
. the initiative's spOnSor,' the 'group . had . "a'
. EniliSh, ". had . submitted an' a.rgUment
regardingtbe ,initiative's "merits. which
Strong interest.in the:vitality'of'a'provision of
th~'State conStitUtion which tit had] proposed ..
appe~m the official .Arizona Publicity
.Pamplilet.. Cf.Yniguez.1, 939 F.2d at. 733 .
, nd for which [it had] vigorously campaigned."
a
Id.· at 733. . Consequently, . we held that
(notingthatspoIlSQrs of. a ballot initiative
Arizonans for Official English satisfie~ both'
have' strong interest in defending proviSion
the" reqUirementS· of. Rule' 24(a) , and· the;
they' ~paigIied for,so, that tb.eTe. is a'
.standiDe..req'ni. >:':'~'!lts :'of .A,;:~.~le'm, al . ·Id. t
and could
"Virl:ual per se rule" that they may interVene
...... appe .
In,,_"." .~ ·,k·!..lIposeS..\J.. , .
a
· .in litigation involving it).
However, ." in
thus'. '., ' ' ........; ... "..
740. In i;h~oaine O!)inion, ~e affirmed the'
:reach.ing oUr' ~ecision, which provides all the
district coUIt's deni~'o;,the Attorney
· relief that Arizonans' Agailist Constitutioxial
'.. ~amperi.ng .seekS;.we need not rely on that
he
General's JIlotionto intervene insofar
Sought to be reinstated as' a party .to the
· 'group's standing as a party.
Yniguez's
appeal, .. ' but permitted 'his' intervention
'staiuUn.g and that of the other parties and
p:un;uantto 28 U.S.C. § 2403(b) for the 1ilniteci
intervenors is .suffiCient . to . support the.
purpose of :.:iuing the constitutionality of'
determination that we make here. .
Article, '.' <II.. ,Id. . .
'
case.
of
reach
a
as
n. .
After' we issued our o£,.:;:do!?-'regarding
.';.
Ne~ 1995 No cja:iIrlto orlg. tT.S.govt. works
. ._,.
,.
.
The Proper Construction of Article XXVIII
, .
�:,
.
···F.3d····
.
, (Clteas: 1995 WL 083414, -. (9th Cir.(Ar1z.»)
A
The District Court's Construction
.
;.. ,
in a written oPinion, the provision' "does not
mean t;h.at langUages. other than English
, c~t.be ":w;ea .
when ~asonable to facilitate
· the day·to:cla,y operation of government." Op.
Atty. Gen. A2:.No. 189~009 (1989).
-0 Although eighteen states have adopted
. "official·English" laws, [FN10] Arizona's
Article XXVIII is "by far' the 'most
.The Supreme Court bas, in the past, looked.
I'E!stricti"ely .worded official·English law to
· to the
construction given a
date." Note, EngliSh 0111y Laws and Direct
'Legislation:1'he l;lattlein the States Over
'prOvision by ,llie state's Attorney General as a
. LangUage Minority Rights, 7 J.t. & Pol."325,'
· guide ,to ,ev8.1uatfng the provision's scope.
·337 (1991).[FNll) Besides declaring English
'Broadrick v. Oklahoma, 413 U.S. 601, 618
· (1$73).• ' For two reasons, however, we do not
."the offieiall8.nguage of the State of Arizona,"
, .. ··,ad.opt the. Attorney General's conBtru~ion of
Article xXvm states th8.t English is "the
language of :.... all government functions and
Article, XXVm in this ease.
First, the
, actions." § § i(1),' 1(2). The article . further
Attorney general's opiliion'is not binding on
~cifies that. the state and itS subdivisions· .
'the Arizonacourt&, Marston's Inc. v. Roman
. Catholic Church of Phoenix, 644 P.2d 244, 248
defined. .as encompassing. "all government':
(Ariz.1982),. and 'is therefore not binding on
officials
~
employees
during
the
peiformance of govetnmfmt business"·"shall
thlseourt.Comp~ Virginia v. American
aCt in English 8l¥i no other language.", §J
BoOkseijers Ass'n, 484 U.S. ,383, 395 (1988)
1(3XIlXiv),' 3(lXa).' . . Its broad coverage' is
(refusing ,to 'accept as authoritative. a non
. ' .binding attQnleY' general opiriion), with Frisby ,
pu.:nctuated by several exceptions permitting, '
., v.&:hultz, 487 U.S. 474,' 483'(1988) (accepting
(or eXa.ql.ple, the use of non·~nglish languages
as .required by' federal .law , § 3(2Xa), and in .
eit§'s binding
interpretation); Second,
order . to protect ,the " rights . of criminal,
· we'C$not adopt the Attorney, General's
.. defendants and victims of crime, § s(2Xe). '
.limiting construCtion' becaUse it· is completely
at od4s ~th Article, XXVIII's plain language. _
The district court, interpreting what it found
The Supreme Court has made clear that a
to be. the "sweeping langUage" of Article
J.imitiDg "construction" '\"iill not be accePted
XXVIII. deterinined tlult the . provision . '.
unless the ,provision to be .construed is "readily
prohibits: .
.
.,
American· Booksellers'
· 8U.!!OOptible'; ,to it.
the' use of any language other. than English
Ass'n,484 U.S. at 397. Here, Article XXVIIT's
by all offiCerS' and employees of all political
dear, terms'
Simply' not "readily
'. suseeptible"to 'thecODstraints that the.
,subdivisions in Arizona while performing
~ Attorney Generat attempts.to piace on them. .
their otlici8I duties, saVe to the extent that
they' may be' allowed to use .a foreign
language by' the limited exceptions"
-6 The AttorMY General's reading of Article '
contained in§ 3(2) of Article Xxvrn.
. '. xxvtrr foCuses on § 3(lX~), whiehprovides,
'with limited exeeptions, that the. "State and
Yniguez, 730 F. Supp. at 314.
alI pollticai,mbdivisio:gs of,this·State~~ act'
For reasons we explain below, we agree with '
.'
thedistriet court's Construction ofthe article. .
"act", from § 3(lXa) and engiaftsonto'it the
,word "offici8l," '. found in ,'the ' Article's
B.
The Attorney General's Construction
proclamation of English
'the official
"l~ge' of Arizona. ~ thus ,lU'gl:rQl that the,
The ArizOna Attorney General proffers a' :'
Article only applies to the "officla1aets"'ofthe
state, he also relies on' a limited, meaning of '_ '
righlylimited reading of Article XXVIIT'
,under whiCh it applies only to "official ..ets"of .
the noun "aCt/' defined as a, "decision 07,,"':'
determination of a' sovereiin,· ;1' legislative .'.'
, state
governmental
entities.',[FN12]
council, or a eourtof just;ice;", Op. Atty. ,Gen.
.According to this construction of the provision,
N:.. No. 189-009, at 21' (qUoting Webster's '
whlChthe Attorney General has memorialized
narrowing
narroW
,are
~lX~~J~'~!y.~h!:{tZf:~~e:dr!':
as
. . "f:.
.. "
(
,"
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International Dictionary 20 (3d. ' eeL"
uIlabridged, ,1976), (third sense of ~act"». In
'doing' so, however, he ignores, the' fact that
"act," whEm ti.sedas a verb as m Article
~,'does not illcludeamongIts meanings "
thiS limited one. [FN13] Moreover, even were
", suCh a' meaning Somehow' plausible if the two'
, PMaseS' were" examined' out, of context, it' is
contradicted ' by the remainder of the
provision.
: : applies: to other "government employees" '
, . ,performiilg otlte!, types of governmental duties
that; E1l"enot specifically excluded-employees
such as clerks at' ihe Department of Motor
, V~cle~"o~ 'receptionists at 'state' welfare
bffices,aDd other 'State', einployeeswho deliver
services to the public. Public teachers' duties
'do nOt: constitUte "offiCial acts" of the state
" :ariyni~re or 'any less than do the duties of,
these other categories of employees.
'
,
, Section 1(3XaXiv) broadly declares'that the' "
*7 Certainly', ,there is no justification in ,the
"act in English and in rio
text ,
ArlicleXXVIII for the Attorney
other ISnguage" applies to all goverriinent
,General's ingenious sUggestion that languages
officials ,and
employ~es "during
the,
otherthan:English may be used whenever
perfotinance of government, business. This
,such use woulcl reasOnably "facilitate the, day~
, prohibition'OIl the .use of foreign languages
,,'t()-day operation of government"·that; in other
when conducting, . government business
~orclS"the provision's, plain~ unequivocal
,supplements the ArtiCle's listing of "statutes,:
prohibition on tlieuse of other languages may
ordinances; rules, orders,,' programs ami'
be ignored'lf it is expedient to do so. To read
suCh a ',broad and general, 'exception, into
policies, " an enumeration of presumably' ,
:ofiicialaCts on which the Attorney General
Article XXVIII wouldnin directly contrarY to ,
relies heavily.· § i(3Xiii).' Thus, not only is the
its structure" scope, and purpose, and would '
Atton.leY Qe'neralis'rtarrow reading of Article
~ectivelymillify the :'bulk of its coverage.
, Article '~ plainly does, not set forth an
xxvm CoiltradiCtedby,the provision's
expansIve lailguage, his reading would render,
innocuous, pragmatic rule that tolerates the
a sizeable portion of'the Article superfluous,'
uSe ofl8.ngUages other tluin English whenever'
,beneficial to the .public. welfare. ,Its mandate '
"Violathig,thesettled rule that a [provisionf
mUst, if pOssible; ~ conStrued in such fashion
'. is preciselyth.e opposite. The use of languages
,that" every word h8s some' operative effect."
other: th8n English is ba:nn.ed except when
'expreSsly permitted. 'Indeed, ,the, nMroW'
United Statesv. Nordic Village, IDe., 112 S.
Ct. .lOll, 1015' (1992) (empha&s added);
'exCeptionS that set. forth, thelinlited
, , circumstances', under ,which non· English ,
Mackey v. Lanier Collection Agency & Serv.,
486 U.S., 825, 837, &'xi.i1 (1988). Here, ;,of
, languagesDlaY be spoken directly belie ,the,
Course,' it 'is' not ',simply certiWl words th8t
'coilveIuently flexible apprb8ch' that the
, ,Atto'mey General haS adopted for purposes .of
would, under the Attorney General's reading,
,beco~e redundant;'inStead,'entii-esubSectiQns .'"
'attempting
to
resurrect
a" facially
'of ,the proVlSlOns would' be rendered"
unconStitutional measure.
unnecessary and repetitive.
of.'
rule that ArizOna
C.
IndeEid, the distr:1.ct, ;~"'\lI't'S br t d~
Abstention and Certification
construction of Arti~~~::;:".::X'7~·A£.i" the only n':~y
to give effect to, ,&ny, ' of. the exceptio~1'~ , " "
The Attorney General' argues, alternatively, :'"
co,ntained m § 3(2)~, If, for example, public
''that
the Arizona state cOUrts have not' ,:
,teachers" in the ' regular Course of t:ht3ir
had' 'an opPo$nity ,to' interpret Article
'teaching duties would", ilDt', otherwiSe; be
XXVIII, we should abstain from deCiding this
covered by the provision, then there woUld be
~andcertify the, question.'of tlWproper
no'reasOil to irichide sPecific exCeptions, for,
interpretation of Article XXVIII to the ,"
some of theirduiies. . ~.::,§ 3(2)(a) & (C):
ArizorulSupreIIie Court., See,Ariz. Rev.; Stat.
Moreover, the proVis:~~\ ;~;, clear and specific'
" ,..: Apn.,§ i2.186~ (periIrittingfederal cOUrts to
excltision of some ,of the 'f'unctions of puhL: ;certifyqtiestions of state law to 'Arizona
teachers indicates that the measure on its i~c:1 " -" , , Supreme Court). , ' '
.
.
because
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'\,oil",:
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(Cite
'Page
as: 1995 WL 583414. -7 (9th Clr.(Ariz.)>>
.
'
7
had the oppo~tyto intetpretthe pertinent
'First, we nOte that a federal court should
abstairi 'oqIy in, exceptional cli-cumstances,
, sta~tory langwi.ge, and both levels of lower
, fed.er8.I" courts .lUld !n8de critically flawed
Lind, 30 F.3d at 1121 (citing Houston v.Hill,
482 U.S. 45'1, 467 (1987».' and should' be
assessmentS of theitatu:te's coverage 'because
especiallY reluCtant 'to abstain ,in First
they had· relied on'ihvalid ~vidence. Id. . at "
395~97.
'
Amendment cases, Ripplinger v. Collins, 868
F.2d 1043,'1056 (9th Cir.1989). Abstention
pendlnga narrOwing construction of a
" The Attorney General here, in contrast, haS
never coDCeded 'that the statute would' be
provision by the state courts is inappropriate
'where theprovision'is "juStifiably attacked'on
untionstitiitio~ •if Constru~ as Yniguez
~ it' properly ,should be., [FN14]
[itS] face as abridging free exPression." Id. at
1048 (citations ,and quotations ,omitted). 'In
!l4oreover, at least ,one Aruona state court has
fact, the Supreme ,CoUrt has made it clear thS.t '~'
had .the . oPPOrtunity' to construe Article
and has done nothing to narrow it.
wh,enevei federal Constitutional rights are at
stake "the relevant mquiry' is not whether
SeeRUiz,v, state, No..CV 92-19603 (Jan. 24,
1994) (disposing of' First Amend.inent
there is a bare,' though wilikely possibility
that the' 'state· courts might render
challenge in three paragraphs). Thus, unlike
, adjudication of: the .feder8I .question" " , in Virginia Booksellers, there are no u:rnque
unnecessary." .~awaii HouSing Authority v.' '
eireumSt8nces in thi~ caSe militating in. favor
. Midkiff, ,467 U.S. 229, 237 (emphaSis in,'
of celtmcation.See Lind, 30 F.3d 1122 n.7
original). ~ "Rather," the Court continued,.,"
(declining to· c¢ify question of ,state law
'we havef:requently emphasized' that'
interpr¢tatlon 'in the abse,nee of state
abstention is not to . be 'ordered unless. the
concession that law would·be unconstitutional
statute is of an uncertain nature, and ,is
on the ~lainti1rs construction). Accordingly,
obViously
susceptible
of" , a' limiting'
we' 'III,uSt proCeed to, determ.irie the
Construction.' , . Id. (quotingZwickler v.
constitutioDaliiy of Article xxvm.
':Roota, 389 U.S. 241, 251 & n.14.). It follows
D.
that a coUrt may not abstain' and' certify a
queStion of' statutory interpretation if the
Conclusion
statute at isSUe requires "a complete rewrite"
. We agree , with' the district court's
iIi order to pass constitutional scrutiny. Lind,
, 30 F.3d at 1121 (citing Houston, 482 U.S. at
construction of Article xxvm. The article's
plain Ia.nguage broadly, prohibits all
470·71).
government 'om~ials and ,employees 'from
-8 To be sure, the Supreme Court in
speaking l8:nguages', other than English in'.
American Booksellers did opt to, certify the
pd'orming their. official' duties, save to the
, qu.eStionof the proper interpretation of a ,
.extent thBt the ,:use of non-English languages
'is~~ purSuant to the provision's
, statute to the Virginia Supreme Court. 484·
U.S. at ,386.. However, Ameri~an Booksellers
narrowexceptionsseetion. We reject both the.
pre~nted the Court with a "unique, factual ' " " A.ttomeY·General's narrowing construetiol,l: of
" ·anc.f:tiiOOedural se~." Id. In that case, the
'.'. the ,8rticle:and his Bu~mestionofabstention
pl8i:nti3:s ,'hadfiled ". apre-enforcement
andeertificaiion. We conclude that were an
chall~il.ge to a state obscenity statute that the ,'"
court ever to give the broad language
Siate}Attorney General' conceded would .be
ofAiticle ~ a 'limiting construction
unConS~tutioI18l if cOnstrued as the plaintiffs
simiJar'tothatpl'Qffered by the Attorney"
'contencled it ShoUld' be., " Id. at 393 &. a8
. Ge~ral,it wo~d constitute a "remarq,ble job
(qt1otii~,state coUnsel
~ingthat if the
' of. plasti,c surgery upon 'the. face of the .
plain~ffs' interpretat~on .of the ·statute were
(proviSion]." Shuttles~orth v" City of
Correct, then the state "should.lose the case"). 'Birmingham, 394', U,S;.147. ,153 (1963).
, Moreover, there. were no non-governmental
" Where" as, here, a. state Provision' has been .
Arizonans" for Official
"challengeci on federalconstitutioilal grounds
. deferuL~.:xts suCh
Engli!\6,-;in theease,no state court had ever.
and a state's limiting construction of that
xxvm.
Arizona
as
as
'. C~pr. •
'West 1995 Noclabn to orig. U.S. govt. works'
�Page ,S,
···F.3d····, ,
(Cite as: 1995 WL'5S3414~ ·S,(9thCir.(Ariz.»)
provision would dir~ctly Clash ,with its plain
meaning, we' should neither abstain nor'
cerlify, the' question to 'the' ,state Courts,.'
'Rather, underauchcircum6tances, it is our
duty to adjudicate the constitutional question
without delay.
'
m.'
Article xxvrn,arid The First Amendment
A
Overbreadth
because, , it
has
some
con,ceivably'
unconstitutional applications.' . Members of
City Council of Los Angeles. v.. Taxpayers for
Vincen~, 4~6 U.S. 78~, 800 (1984). Rather, to', .
suPPort· a 'Widing of overbreadth, there must
be a subStantial number of instanCes·in which
. '. ~e . proVision. will "violate the First
'·Aniei'I.dJD.ent. New York State Club 'Ass'n v,
'Cityof~ew Yor~487 V.S. 1, 13 (1988).
. ,l
-,
Yniguez contends that Article xxvm',
.' ,i,mJ.avifullY preyeilted ·l1erfro.m . speaking
*9 After construing' Article, ,~, the"
,Sj,8nish ~~th~ SpaniSh'speaking claimants
that ,'cam~' to' her ..Departmep.t
of
district
court
ruled
that ' it ,was
, Administration ,office.
Yniguez, however,
~onslj!'tit~~n.Jil.lly __overb~~.·" LTnder t-he
. " c:.haIlenges far. more than Article XXVIiI's ban
overbread~" doc~, an individual whose
· on herow:n USe of Spanish ill'the performance
own sPeech'may constitUtionallY be prohibited
.' : of hel" pWn partiCl.l1ar job. She 'l11so' colltends
Under "a ,given 'provision 'is 'permitted to
· ·that.Jlie . SpeeCh rightS of' innumerable .
ch.8llenge its facial validity because of the
threat that the speech of third parties not" ' ,. e~ployees;, . ~9ffiCials; . and .officers in 'all
before the' cOurt will 'be 'chilled. Board' of
I.' departments, and .at aU levels of Arizona's
. ", ':'State
lOcal' govE!rnments'are chilled by
:A:irport Comin.;rsv. Jews for JesUs, 482 U.S.
569, 574, (1987);' Moreover; a 'party may
ArtiCle x.X:vIITs' expansive reach. At least as
Chtillengea, law' as facially overbroad
"" un:a:>Qrtanti she contends that the~terests of
.', ina.ny' tliou:Bands 'of non-English-speaking
would be l.inco:ri.lititutionai as applied to him"so
. ArizOnaD!i ,in ~iVing' vit8I. iilformation
, long as it would. 8Iso chill ,the speech of absent
., would. be dTastic811y 8nd wuawfully \linllted.
third parties. 'Lind, 30F.3d at 11~2-23'
,., , For those ,reasons. she Challenges Article'
(:finding statute unconstitutionally overbroad
, xxvnfaS overbroad on'its face and'invalid in
as' well as' unconstitutional as applied ,to,
its entirety>
plamtiff).
The faciai· invalidation tliat,·.
overbreadth permits is necessary to ~tect the '
Article:x.xvm's ban on the use'ofhinguages .
First Am~Ddment rights ¢ speakers who may
· fear to ch8nenge' the .plo~on on their own.
p1;he~ th8n ~nilish' by persons ill government
'~service cdUicihardly 'beinore inclusive. The
See Brockett, v.SpoktmeArc~s, 472 'U.S.'
· . pr:oVision p~y ~tes that it applies to "the
491,,503 (1985). However,in order to suPPott"
, legiSllltive. ~x~tiye. and judicial branches~
a facial' over~adth cluillerige, there must'
aIways be, a "realistic danger" that 'the .
·of both state 8.nd iOc81 government, 8.nd to .; all
,.' . goveriiin~~tofficia1s
employees during the
proviSion will Sigiiuicantly Compromise the
· perfOrm8nce 'of ,government business." §§.
sPeech rights mvolved. Board of Airport
· Comm'rs, 482 u.s. at 574.
~"', .
.' 1(3XaXi)(ll)&.(iy). This,~ad l&nguage means
;:;:bt' Article xxvm on its f~app~es to
,A proviSion will not, be fa~y ~,o-.1F ' ' ',,',
'9;:',8ch.'in, a: seemingly limitle~'variety of '
" gO"r:nlmental settings, from mi:Jiisterial
on overbreadth grou.n.dS unIes~ its 'overbreadth '
· s:.,:.~~men,is by civiliervant8 at the office to
is both re8I
substanti8I J\idged in. relation '
te~chers ,'speaJrlng in .'the 'clai;sroom, ,from
to its pl8.iniy legitimate sweep, 'and the
narrowing
town-hall discUssions between Constituents
proviSion is not' 6USCeptibl~ to
·~·their ~presentatives.to the translation of.
Construction that woUld cUre its ,constitutional
" , judicial proceed.iIigs in: the 'courtroOm. [FN151
'infirmity. See'Broadrlck v. Oklahoma, 413
r),s; 601, 613,615 (1973); United ~t,. 1";'8 V" . · Under the, 'article,1;he' Arizona state
~Ul:rversities . would be b8rred from issuing
'AuSt!n. 902 F .2d 743, 744 (9th Cir.. ,,' ," i, cert. <
· denied, 498 U.S. 874 (1990).' "Accordingly,' a
d',:':I"Oquui' in', Latin, and-. judi~s. peiform.lng
law' will' not be fac1811y invalidated simply ..... : ' w,: '1fulgs would'be prohibited from 'say~
ana
th8.t '
c
'
ana
ana
a
Copr: 0 West 1995 No clsjJJ, .top
" TJ~':. govt. "Norks .
'.
"
WESTLAW
1
�---F_3d~··-
Page
9
(Cite as: 1995 WL 583414, -9 (9th Cir.(Arlz.))) .
as
"Mazel Tov"
part of the official' marriage
ceremony. .Ae!!ord.lnsly, 'it is' self-evident that .
Article, xxvm'ssweeping English-onIy
maridate ~tsthe sP,eecb of governmental·
actorseerving in a wiae range of work-related
· contextS that' QifIer sigmficantly from that· in
which Yniguei perfOrIn~ her daily tasks. The
· s.Peech~rights,of ail Arizona's ~te and local'
· employees, officials, and officers are thus '
in
a
potentially'
adversely .. affected
:unconstitutional manner by . t he breadth of
Article xxvm's' ban on non-English
goVenlD.lEmtal Speech. Similarly, the interests.
of ~ non.English·speaking· Arizonans ,iIi
re.ceiVingan kinds of essential information
· severely burdened. . ,For these reasons, we"
cannot say that the . proVision's "only·
unconStitutional applictition. is the . one .
·directed at a party before.the court.. ~."· Lind,
Therefore, Yniguez's
30 F.3d at: '1122.
· ch8l.lenge to Article xx.vm, properly
implicates overbreadth 8.nalysis and,. if
Unconstitutional, "the entire [proVision] may ..
'be invalidated to jnvtect First Alnendnient.· .'
interests." Id.
..
. ,
.
· -10 Faciai. invalidation is alsO appropriate
here because the broad 'language employed ..
throughout Article XXVJII relates to a single
· subject and is'. based on a single . premise,
which, as we will discuss subsequently, is .
conStitution8.uy flawed. hi caSes such as this,
where the. provision. in question "in all .its .
· applications'. ... operates' on . a fundamentally .
miStaken preinise," Secretary of State of
Maryl8.nd v.Joseph H. Munson Co., 467 U.S.
· 947, 966 (19M), 'the Supreme Court "has not .
·limited itself to ~ the law by preventi.ni
iinproper appli,eations on a case.by-ease basis; Ii
,'Id;at S6E n:13.Rather,.the,Courtwillsimply.
. .' ::;strlbdt \!n j).~,~i·~'vi.sionon its face. "[wnieie
'. :'<t!:'~:~;~;;'i .lnthe. [pf;JVisionJ is that the meaDs .. '
cliosentO accoInpUsn.the 'state's objectives are
tQO imprecise;' 86: that in
its applications
· the [provision] creates.an\mneCessar:Y risk of
~ free' .speech,·the statute is properly··.····
· subject.to facial attack." Id. at 967-68.
of
are .' .
an
" ji;ioreover, the nature and structure of.
.'c,,{u.-ucle xxvm is such that if we determine'it .
· tobeunconstitutior.allY overbroad., then we .
invalidate;i.tr:!'i"entirearticle and not
must
.
';J,
..
'
W'-c,;.. 'COpl'.
C
simply so:a;neofits sections. Even a cursory
readi.ngof Artkle XXVIII demonstrates that
.the proviSion is an integ..ated.whole that seeks
·to .achieve a sPecific resUlt: to prohibit the use
ill .&uorar and written communications by
·PtmwnS Connected with the government of all
wo~ ~ phrases in any language ,other than
EngliSh. There is Do fair reading of the article
that would penrutsome of its language to be
divorced. from.this overri~ objective. .
.Equ8l.ly important, the article contains no
·.severabjlity provision that would suggest that
·any clause"or section was intended to survive
.if otherp8rts were held Unconstitutional, d.
Brix:ke~, 4'72 U:S. at 506 (citing a statute's
'. severability clause .as an important factor
· favoring.
partial
rather
than
facial
iliv8lldation), and the parties before the court
have never treated Article XXVIII as
, ~ other than a single entity that must
Stand or fall ~. a whole.' Indeed., appellees
lulve alwaYs presented Article XXVIII as.an
'. iD.tegrated provision. that is designed to
eliminate ,all non·English words from
· governmental Speech., 8lthough they have
"'Pressed for an ~cially narrow construction
of whateonstitutes such speech. ':!'hus, if the .
article's specific reStrictionS on the use of
other
than' English
are
languages
unconstitutionally overbroad, then the
language aDd· Structure of the amendment
mAkes facial invalidation of the entire. article
· the orily appropriate remedy.
As we noted at ,~ outset of this section,
however. Article . XXVIII will only . be
UnconStitutionally overbroad if it violates' the
First Amendment in a substantial number of
i,nstarlces.> New York State Club AsS'n, '487
· U.S. ·at 13. ,To determine whether Article
:.XX:vn:rs" 'reStrictions . unconstitutionally
impose' on the speech rights of asubBtantial .
. numbeiotpersons in government service in a
· inibstanti81 number of instances, we need only
consider the article's impact on Arizona's
. nwnerOus state and local public employees. In
. ' , sheer number, these employees represent the .
most. S\1bstaritial, target'of' Article' XXVDI's .
restriCtions on sPeech fu languages other than .
English:'lis they'constitute the most common
source
communications .between the
of
.
W~st 1995 No cl8i~~toOrig. U.S. govt. works
�'Page 10
,-·F.3d···· '
"
'
"
(Cite as: 1995WL 683414~·10 (9th Cir.(Arlzo»)"
government and the public ,that 'it serves. In "
activitY.~ ,OpeningBriefat 15~ i8 (e~phasis
, addition, a deternfuiation that ArucleXXVm
'added)(quotblgR.AV.v.City ofSt':Paul, 112
wlccm:stitutionally' infringes on' theFii'st'
, SoCt,' 253.$.2544 (1992». ",Accord.iilgly. it '
'A.nleruilnent riglitsof~se employees will,'
compares this c~to '. those iilvolving only
,"expressivecoIlduct",
"symbolic ' 8peech."
necessarily reSultjnthe CoIiCh:asio~thatthe
articl~ ,also ',' U:hlaWfuny' chills the 'speech of '
, 'E.g." T4;!X8S v.' Johns.o~ 491 'U.S. 3970989)
, many others whO
iilgoveriunent~ such as'
(burnii:tg' A.tD.erican ',flag for ',eXpressive
, judges arid: legislators.' The samerestrictio~" " ' ,l:easons); Tinker' y.DeS Mo~s Iruiependent
tIult are unconstltUtioriBlas to the routine: : ,Community Schoof bist., 393tlS~ 503(1969)
sPeech 'often engaged in by ciVil serv~ts will' "'(we8.ring
b&ri!:l'for expreSsiver:easonB);
, a fomori 00 uncoilStitutional asta the various" 'VnitedStates v.O'Brien, 391 ,U.S. 367 (1968)
, '"killds of,~echengagedinby a substan~al <'~draft,c8rdfot expresmvereasOns). In
, number ;of other' persons who work in:',':" !?rich" cases, the; 'government generally has '8
government and are therefore affected ,by the
wider '18titud~ iD. regulating the conduct
, ., ,alticle's tUtUsuauy broad reach. See Yniguez; '" 'mv.olyed, but only when the,regulationis:'not
730F.Supp. at 314; , df.Bond v. Floyd. 385 'directed at the communicative natUre' of that
U~S. U6; 132-33 (a stiitemay not impose"
' conduci.Johnson,,49t:U.s:- at 406. '
stricter First Amendmeni, standards ' on
legislators). [FNI6]
,",We find the'a,ruUysis enipioyed ~ the' above
caSes "to be i:riapplicable here, as we are
,
,
, *11 ,YDiguezis challenge to AJ:ticle XXVD::r
¢n~ly 'unpersuaded:bY: the' comp8rison
thuS presents uS with a clear~. If we,
ootweenspeaJ.dDgl8Ilg'\lq'es other than
, determiJie tluit Article 'XXVIII's impaCt 9n the,
~nglisk 1Uld' b~, tl~gs. [FNI7] "Of. course, '
sPeech right.s of public "employees ,is \ . , ~ "iri. > any' language' consist.!; ,of the "
,"elCpre,ssive Conduct~ of :Vibranng one's vocal
, \lIlConstitutional,' we 1ri1i, be' compelled 'to,
inv8lldate Article
on its face aridiD.lts
ChOl"dB,tti6viiigo:ne's .mouth and thereby
entirety.
Befoie tumin:g directly, to the,
"m8king SoUnds, of'pu~peri to paper, or
article'simpactoD. the'FirstA.m:endment',
,1l8.rid 'to keyboard., 'Yet the fact t.hat'such
'~"coilduct'! ,is,sliaped 'by it language·that is, a
rlghts'ofpublic employees, however; we mUst',
,first' address two preliminai:y ~ehts that" ' ,',' 'sophis#eated, , '1Uld' cOmplex' ,system:" of
, are raised' by the appellants and that could"," ',unde~ mea.nlng!l.is what makes it spe.ech. , '
, affec;tour analysis.', First~' Arizon8.nsfor
{FNI8] Language 'is by.d~finition Speech. and,
O1fi~ial English Contends that Articl~ XXVm
'theregUIa6.on '9f' ' 'any, "iangUage ," is the:
,interferes "orily .. with eXpressive Conduct:, 8nd '
'regulation of ~ech. '
"
,rtof:Pure ~' SeCond. the group contends '
that the sta.te may nOt be comPelled,to provide
':":A. bilingual person dOes, o(cour&e, make an
, information'to all members of the public in a,
expressive ~ice by, choosiDg to speak oDe
:J:a.ngwigethattheY can cOmprehend. For:the ~ ,', ,"lSnguagerather than another. [FN191: As
relUiOns ,that 'we exPlain below; the 'two'
.' Yniguez explained:' her chojce to 'speak
arguments do not ,affect the ,::ultimBte, ' , ' ,Spanish: ~th, ()~ biIingualpeople can
conclUsions that we reach.
'1"';t~j '''so~'arity~ or "coinfortablene&s."
'\.~N,?Ol N()n~theless, th.iS ,e~sSjve" 'effect; "
, does not reduce cliOice,6f language ,to the level '
B. ,
,,' of ,;cond.uct," ' ,as "Positedby ,. AriZonans' 'for
speech v.ExpressiveCondUct
'-"
, ','
, 'Official EnBlish;"'iD.stead; ,it' exemplifies the'
',: Arizonans 'for Official', Eng~argues" ':' variety ,of way's ,that one'sUseofla.niuaie
, vehe~ntly 'that ,FIrst Amendment scrutiny ,coriveysmeaniDg.'For example; even: Within a
'givep:'langUag~,~the.Choiceof 6peCmc words or
Should:be relUed, in this case becauSe the'"
, 'deGuion to speak a non~Eriglish language dOes'~' "", "tpneof voice' maycriti~y 8trect the DlesSage
,nOt, implicate pID~ sPeech right.s. Ra.ther, the
~ '''conveyed,: ' 'Suchv~8.b1es-Ia.ngUa.g~, wordS,
group suggests,. "ch()ice of language' ... ,is 'a
' wording, "', tot1..e ",C)~" voiCe~are ,not ,eXpressiv~
mode of conduct"·a"nonverbal expn!ssive"
~nduct,but ',~ire, Simply "amOng
the
or
serve
arm'
XXVIiI
or
• ,
.'
J~
"
"
_
•
',;r)rb
, Copr.c West 1995 No c18.imt9;orig: UA.,C':c
.: '.
,<
:- .
.:'; "
WESTLNN,
J
�...F.3d...·..·
.
. ,,-,,~
Page '11
(Cite as: 1995 WL 583414, -11 (9th Cir.(Ariz.)))
Lao-Tze, among others, can' hardly be
described as i!scurrllous. "
In this case,
therefore, the Court's admo~shment that "in
aBQCiety
diverse and populous as ours" the
state has "no right to cleanse ,public debate" of
"unpopular words, rings even tnier: Id. at24~ ,
for Official English '
25. " vihn~
C6mplairis 'of the "Babel" of many languages,
-12 The Supreme Court recognized the First
the Court, in Cohen responds that this "verbal
c8C()phony i:S •.. not a sign of weakness but of
Aolendment status of choice or" langu8.ge i,n
somewhat different cireumstaru:es when' it '
strength." Id at 25; see also Alfonso v. Board
of ReView, 444 A2d 1076, 1085 (N.J.)
ratifi~ a: Speaker's freedom to say "fVck the
,draft .. , rather' than . "I strOngly oppose ~e
oViIentz, C.J.dissenting) (arguing that notice
draft." Gobenv., California, 403 U.S. 15;(1971) ,
should be given in the language of the
(reversing,. conviction 'under' California
'claiinant imd stating that to do so would show
, "offensive conduetUlaw).· Like the proponents .
, . that "we are,strOng enough to give meaning to
our .' fundSmental rights when they are
of Article xxvnt, the state in Cohen had'
posse~d, by 'non-]!:nglish speaking. people in
described Gohen's' choic~ of, language as
. coriducteqwvalentto buining a draft card. Id.
our midst")~ een. denied, 459 U.S. 806 (1982).
at'18'(citing O;:Brien, supra); see also id. at 27 '
(Blaekm~ , J.,' dissenting) (arguing that
As we have noted, it is frequently the need:
Cohen's phrasing "was mainly conduct and '
, to convey mformationto members of the
little speech").
Court,' unequivoeaiIi,
,'public that dictates ~e decision to speak in a
, different tollgUe. If all' state and loea:I officials'
rejectedihe comparison, stating that Cohen's '
and employees are.prohibited from doing so,
conviction rested "sOlely upon speech." Idat
Arizonans' who' do nat speak Englisli will be
18.
Unable to receive much essential ,information
conce~iheiT daily ,needs and lives. To call
Warning that the First Anlendment does
, nat, however" give people the absolute right to ','
a prohibition" that precludes the conveying of
use' any form of ad~ss in 8.ny circumstances, '
infoim8.tion'to thousands ,of ArizOnans in a
the Court next 'addreSsed the question of
comprehend a mere
language they
whether C9hen's conviction could potentially' '
'regulation of "mode of expression" is to miss
be upheld 'Ss it regulation of the manner of
entirely the basic point .of First Amendment
protections. [FN21]
Cohen's ~eelL Id. at 19. S~i.fically, it
CraDled 'the ,First Amendment issue bY. asking
-13 In sum, we most emphaticallyrejeet the
"whether California can excise •.. one
partieularlyscurri10usepithet from the public
, suggestion that the decision to speak in a
ianguage other, than . English does not
discoUrse.", !d. at 23. Its answer to ,that,
, question was;' "No." Indeed, in justifying itS .
implicate pure speech concerns, but is instead
','i$hl to 'eXpressive coDduct. Speech ,in any.
'conclusion, "the,;,¢p~, ech~ Yni(J1.leZ's.,
'l8nguage 'is', still speec}4. and the decision' to '
spealt .in another ,language is a decision
for their ~nlotive ,aSt."leii'cog~~:J..ve foree"·to
, involving sPeech alone.
:-such 'm{ ex:te'nt, in fact, UuJ.t.:JrlS emotive,'
aspect "may often b! the ,moreimp6rtant'
C.
element o(the overall message sought to be
Affirmative Versus Negative Rights
"
conUnu.ru.cated." Id. at 26.···· .'
Arizonans for Official English next contends, •
incorreetIy,that YnigUez ~,ekS an.affirmative
" UruierArticle ~!'L:.~, of course, the state is '
right .to have' .; government' operations
'nat ,singling·,;:~ o~ w~rd for repression, but
" Onducted. .in foreign tongues. . Because the
c
rather entire" vOcabUlaries. ivl(l:reover, the.
orgaiuzation
misconceives
Yniguez's
languages 'of Cervantes,
Tolstoy, and
communicative elements of speech. Moreover,
the cho,ice to use 'a given.language may often
sunply' ,be' based on a pt8gmatic desire to
conveyinforma.Uon to someone so that they
may understand it. ~tis iIi. fact the basis
for ilie Choice involved in the constitutional
challenge we consider here.
as
Arizonans
The
can
"~~~~\~~lC~~~~&:ttJ.~H~~~a:~ti!
Pl:-owr·.
; :,:,
. C~:r:;.':';:,:):;;~t.,1995 No claimtoOrig. U.S;govt. works
...
",",
"
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Page 12
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(Cite as: 1995 WL 683414. -13 (9th Clr.(Ariz.»)
argument, it. relies ona series of cases in:"
whichnon.English~sPeaking plajntitfs have
wisuceessfully tried to' require the government
to prj>vide them. With .services in their 'own'
la.ngtiage. S¢e GuadalupeOrg. Inc., 587 F.2d
at 1024. (no right to,bilingual education);" .
Carmona' v. Sheffield, 475 F.2d738· (9th .
Cir.1973) (nO 'right to' unemployment notices'
in Spanish);Toure v.. UnitedStates.24 F.3d '
".
444; (2~. Cir:1994) (nO right to, notiCe .of
~d:tnfnistrativeseizut:e . in French); Soberal·
Perez v.·Heckler, 717F~2d 36(2d Cir.198a)(no
right to Social Securlty notices and services in . .
Sparush), cert. (ienied:, 466 U.S: 929 (1984);.,' •.
Frontera vt Sindell, 522F.2'd 1215' (6th
· Cir.1975)'(no right to ,civil service exam in'.'
Sparush).·· Thesecases,howeve~, hold only.; .
·that (at least uilder 'the circumstances there
involved) . non.~nglish' Speakers have no'
.affi.rmativerlght to Compel stategovemment .'
· to provideinfOrniation'ina limguage tllat they'" .
·ean comprehend. The caseS8re inapplicable
,here.
.
· . In the case before us, there is no claim oran .
was elected to Serve.
The eases relied on by the amendment's .
spOnsors' are .inapplicable not only because '
they; mVQlve cl8i.ms of affirmative ·rights but .
beca:~they neither: consider nor discuss the
'\First ;Am~DdriieItt. Rather, iit all thoSe eases
, the pl8.int.iffs sought ,to justify the alleged
: righ,t 'to.compelthestate to provide bilingual .
',lnfomiation. and,' service~ by reference to equal
.protection and ,due proeessprinciples. Because
in8nd8ting compli~· with the' plaintiffs'
requests .W01ll~ have placed an, ~tive
burden.on state and'local agencies· to supply a
bilingU8.I Speaker-creatmi affirmative costs
"' the courts rejected the claiID.S. ·$ee, 'e.g.,
FrOntera, 5?2 F..2d at 1219 (emphasizing that
· the cost'ofllilinguaI Ci~ Service examinationS
"wow,d ,llItinult.eIy be saddled upon the harried
taxPayerS of Cleveland"); Toure, 24 F.3d at
446 '(reqmrementof notice in langUage of
pla.l.irtitJ ' ... would . "impose' a .patently
unreasonable burden upon the government").
·-14, Accordingly, the argument of . the
am~,ndrilent's sPonsor is irrel.evant to the right
we" Consider iri thiS case. For while the state .
affirmative right to compel. the state ,to
· proVide 'm:uItilingual information, but instead
'on!ya elSim of a nega~ive. right: that the 'state
cannot, consistent with the First Amendment,
gag ·ti~~,· employees . cu.iTently providing"·
members or:the p1.lblic wlth informa,tion fi,nd:.
· thereby effectively preclude large numbers' of
PerSonS froni receiving 'information that they .
have .previously received. Cf; Union Free.
Scl:tool DiBt.'· ;No.~6, 457 U.S. at 866-67. .
[FN22]Sucll a el8im. fallS squarely within the
" oDflnes ·oftTa.ditioriaI ~ speech doctrine, "
e
and is' in no way clependfmt ona finding of 1m.
affirm8.tive duty on the part of the' state.' '
.'. ~y nOt
'be Under a:ny' obligation to provide
.. muitilingUai ,serVice~ aDd information, it is 8n
eri~ly 'cli.ffererit 'matter when'it delibera~ly
.' sets' out to Prohibit. the languages cuStomarily
•employed '.by , pUblic ,employees.
In this'
connection,~e 'note that here, Wllike in the
'~tive'rightcases.there isnoeontention
that~harrieq.'~yers" will be "saddled"'
with SciditioDa! costs, or that the state will be
slibi~ .~ a '"patently . unreasonable
. hW:den." Ail that th.e, state' must do to comply
·with the Constitution ill this case is to refrain
fro~ . tenDinatii1B; JiOrmal "and' . cost-free
" ·~,J;0';;ns
· services .. for .(t, .......,. ,. . tl'c4;'·. are . invidious,
• "
.
disc.rimiI. ato; " ~, Ol~i jt: ~ .very least, wholly
.insuffic'ient. ". ';.~(;':'"
. .:;".
The, clearest example, of the distinction
between afJi.rm.8tive. and negative rights may
'be seen.in the. Case' of a' state .legislator who
,'may
office 8nd be elected in part because
of his ability to Speak with his constituents in .
·their native languages. No one could order .'
such
'official .to $.ak Spanish or Navajo.
Neither, how~ver, can the state preclude him ..
"or ,his staff frot!::. trans@ttirlg 'information
regaidi,ng official &tate bw.u~ss to persons·
resident in hil3 dispict in whatever language
he deems to be in the.bestinterest of those he"
seek
·D.
PUblic Einployee S~ech
'an
.
L
.'
~ner81 Principles
• • ···f
:..l involved a st8.ie~de ban on all
uses of i~ages .other ,thn English within
the geographical jurlsdictioi;~ .of the ,state of .
. If thL,..
I"
'
':,.,,:
'
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. 'it·· ...
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(Cite as: 1995 WL 583414, -14 (9th Cir.(Arlz.») .
-15 Arizonans·. for· Official English
Arizona, the constitutional outcome would be
clear. . .A . state carlnotsimplyprohibitall.'
'f1Cknowledges .that public' employee speech is
persons witiiih its borders' froIn . speaking ill
, entitled. to First Amendment protection. The
, the tongUe ortheir~oice. Such a restriction .
'group then' Correctly' 'points out that the
qn private spe~h ohVi()usly could not stand.. .
Supreme Court haS held .in a series of cases
. Meyer v. Nebraska, 262 U.S. 390, '401(1923).
, ' that tJie govemmEmt traditionally has a' freer
liand ill regulating the 'speech of its employees
However,Arlicle XXVIII's restraint on speech:,
.'is' of morfi! liInited scope. Its ban is restricted
,'than it does in 'regulating the speech of private
to speecli 'by perSonsperforirtingservices for
citiZens. ' See Wat.mi v. Churchill, 114 S.Ct.
1818, 1886 (1994) (plurality opinion); Rankin
the government. Thus,' we must look '~yond
first prinCiples of FirSt A,mendment doctrine
v.M~n, 483 U..~:378, 384(1987);
Conni~k v. MYers, 461 U.S. 138, 147 (1983);
.and consider the question of what limitations
may corurtittitionally be placed
the speech
Pickerillg v . Board of ¥4uc. of TownShip High
;. ScllOol Disi.,391 U.S. 563,568 (1968). As the
of government servants. ,
'Oourt in'Waters explailled, "even many of the
For nearly half~a-century,· it has been .
most fundamental maxims of our First
ADienduientjiuisprudence cannot reasonably'
axiomatic in constitutional law. that .
be . appli.ed .' to . speech. by government
g~vernment .employees do riot. simply forfeit
. employees." 114 S.Ct.~t 1886. Notably, the
tJ:1eir F~ Amendment rights upon entering .. '
., 'Waters Court stated. that the Cohen rule
the public' workplace. In 1972, the Supreme
Court· 'elaborated on .this p:rlnciple'in
~atlng toleration of choice of language
. would' be inapplicable to· the government
upholding a constitutional challenge to a state,
" ci;)llege's refusal to renew the contract of a
workplaee8nd made it clear that, in fact, a
governmeniemploye~ lrilght appropriately bar,
~aeher who had critic~ its policies., See.
... its 'employees from using ruqe .oi-vUlgar
periyv. Smderinann. 408
593, 597. "For
at least. a 'qua.rter century, this 'Court haS '
language in the workPlace. Id.; see also
Martiil v. Parrish, 805 F.2d 583,584 (5th
madecle,~ that e~enthough a person has no ..
Cir.1986).
. .
'right' to avalua~le g6vernmimtalbeDefit and·
even though the. government may deny bdIn
the benefit for any' ntunberofreasons, there
Elaborating· , on' concepts. ' ~:viously
.are some reasons upon :Which the government .
expressed ~ Pickering aDd ,Connick, the
. may not rely. It may notde'ny a ,benefit to ,a
Waters Court e:xamiried the' reasons that less
person on . a basis, that . infringes . his
stringent. scrutrDy is. o~y justified in
reviewing r'E!strictions on public employee .
constitutionally prO~ti interests.especi,ally
his interest in' freedom of speech.... [M]ost'
speech. TheQo'Qrl found, in partiCUlar, that
, often, we have applied this principle to denials
"tlie'e~ power.the government has in this
, of public employment."Id.' Only four years
comes frOm the nature of the
, , . . gOVerlim.ent's nlissionas employer,·' id. at
ago, ~e Supreme Court in . Rutan 'v.·'
.'.1887, and it ultimately concluded that:
Republican Party of Illinois, HOS.Ct. 2~29t·.
~736 '. (1990), . reaffi.n:n~>~·:,;~it~Wr..iplea~i .' .
~Dle ~y to First~eDdznent ~yms of
reiterated theSesanie; 'v';b~<\~'iihi\: I'erry;u;;: ..
go"'ernment employment decisions· ... is this: .
upholding a First Ame&i.i£i:t:ajii!~rige ,;;o,a.,
.T.ae government's iD.terest in achieving its
goveriunent8I ' infringement. .' on . public
goals as effectively and efficiently as
pOssible is elevated. from a. relatively ,
einployee rights. Thus, the Supreme Court!,
"sUbOrdinate' interest .when it acts as
has made it abundantly 'clear that prohibitions.'
sovereign to a significant one when it acts as .'
on speech may not be justified .~ the simple:;'
einployer.The goveriunent ca.n.not restrict
.assertion . that the ,government is'· the",
employee;s employer.
'
the ,SpeeCh of the public at large just' in the
name. of f:!ffic~ellCY. '. :But where the,
:,2.
,"
",
govern:i;p.ent is' emploYJ.ng .someone for' the
Regulation of Traditional Types of PUblic ' ;
,veryplll-pOse of effed.ively achieving its
.
Employee Speech
'. ,"
,goals," such' restrictions may well be
on
u.s.
area
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'(Cite'8S;1995~WL 583414, -i5 (9th Cir.(A.u»)'
. .showing that the speech is; in fact, likely to be
'disruptiv~ befQre: i1;m8y'be punished," 114
S.ct: at 1887.'
,
appropriate.,
.
Id.at 1888 (emp~s added);: .8ee,also
Pickerlng~ 391 U.S. at 568; C,?nnick,461 :lJ:.S:~'
at 146-47; Rankin, 483 U.s. at~, ,;
i'
."
"
,.3.
'
. ThUS, the Court lis,s made it clear
'it is ,,",
;' Tb.eIntereSts"FavormgPr-otection of the
the govemm~nt's interest in, performing its
. "
. ,Prohibited: Speech'" ,.' .
, functions .efflcientlY,8:nd, . effectiv~ly' that"
", .
'..
uriderlies its right, to' exercise, greater control.,',' " : .• He~ thegpeech dOes n()t fit easily into&ny
ov~r the ~ech,of public,e~ployees:'Evet1
'.:' :ot~eCiitegon.esp're~oUslyestablishedin the
befQreWaters, the 9ourt's concern, for:ca:se law. It is clear that the speech at,issUe
efficiency, and effectiveness led ,it to conClUde':: '
'c~t 'be dismissed ,as' 'nierely'speech .'
that wllen'apublic emp,loy~espeaks "as an 'involving "~mployee.grievances" 'or "internal
employ~ uJ;)On: m~tters only i>f 'perSonal. ,workingeoruutiohs".speechthat is ordinarily
interest;" then;",absent ,the most unusUal ."drlittle:concetJ:1to~,general pubHc. ~or is
cirCumstances," the 'challenged" speeCh
' ,it ,pr~ciSely ~e ,Same as the ,speech ge~raIiy
restriction Will beupheid. 'Connick; 461 U.S; :
", dellQminatedin paSt cases as "!speech ,on
at 147; Rankin, , 483' U.S. at:385n.13..
matters:ot publicC()ncern,"'in part ;'because
COnCerne~, that "government offiooscould nOt
.. ,here: the erilployee ~'nOt simply comrilepting .
~p.on if every employment deCision ~~e". ' ' ,'on a pUbli~ ~su.e1lllt'inspeaking isactua1ly
aconstitUtion81 znatter," theCourl ruled t1lai
' , 'perfoi1ri.ing hiS official duties. [FN23]'"
"
'
" :mere"!employee griElvances~'" (Colmick,' 461' , ' , ' " .
This 'case: dOes not, how~ver,require 'us'to' "
.'U.S. at 146}involving 'speech, for e.,wnple,
attempt 'to· .resolve , . any broad, 'genEir8l '
,aQouti'internal 'working cOnditions, '8.ffecting' "
. . . only' ~ spea.k:er wid·co.:v.;orkers, "(O'CoIinor,;;'", ':qUestio~ ~gardingthe scope of government's
. " ,:y. Steeves,~94 F.2d '905; 914 '(lst 'Cir;I993»~ .:.. authority to regUlate speech that oCcurs as
, "should .: rarely be protected' by,the 'federal, : ." ',:
o( an employee's official duties. ' In many
courts," '. "
' "
.
' < , ' . ~s, ·the,·goVernmental
b,.terest in
,
"
" .:'
,regill8.ti6~ ,Will. be ',. at- its· height in' such. cases.
'. 'For e~ple,'thegovernment would have an
, -16', The Watel'Sl?lckering cilseS also
establish, . however, '. that ',public :,;,employee
iri.diSputab1~ right.to prohibit its.' employees
'.', i;pe'eeh ',deserves
great& protection w~n
"£ro,m: usiIig:profBnity' or'abwnve"language
the employee U;. speaking nOt simply' 'upon~'
while :cODdUCtmg offiCial' business.
See
,empl~y;ment matters of.'personalor internal
.' :Waters~,"i14S,Ct. 'at ~886' (noting that
'ui:terest but Uurtead "as,s'citizen upon matters , ' , . government',' might.'prol¥bit its employees'
'of publie,concern~. Connick, ,461 U.S.' at 147.' . · ...froni beiDg 'Juaeto cUsioiners' , ') (citation~
In eV8.1UanDg ~StrietionS on speech of "public
·'.oIni,tted).· Siri:Ulariy, the :govenmtent would'
co~.. ,the "governmental interest in'·, .• o~Y'h8vetheauthOrity to determine the
efficiency .artdeffectiyeneSS is. important but" ..' ',tasksthatlt asks its employees to perform and
,nat' necessarilydetenDfuative. In suCh cases," .,·tcrdictate theeontent of themei.sages that it
. theCon~nt or' the ·.sPeech 'requires that the,.. :. '. Wish~si~ .employ~a,f.oi:.j,~!;:;,~i~e~teJ:,the
govemment'~ cOncern with 'effi~ency, and, '"
pUblic;
9th~rt~.';nd~:\;e~. :re few First
effeCtiveness be balanced
'the public 'Am~ndm~ntp~ced~nts'in: ,We ares.' and ill at
" employee's: first . amendment interest in: "
)east one' case involVing a school teacher, :Ne
, sPeiilriiig' ,as emphasiZed ili'perTy and Rutim. ,.,' . > emp1o.yeda tra~ti~na1 baland.I:Ig,test. See,
See Waters, 114 S. Ct. 'at 1~7;' Gillette ~.
' e~g.; N~c1lolsonv.~ Board of Edtic., 682 F~2d
belniore, 886 F.2dli94, '119f.<9thCir.1989)..: ,
'~~, 865(~ Cir.1982) (applying Picke~
As.the Court said in:Waters~ "a gov.ernment:';'·,b9.lanclng,testtojob
speech).:For
,present pUrposes, it if "i:"\'i<.&Jh to notethatlhe
, employee, like anyci~n,. maY'havea. ~ri.g, ' , "
legitiDiiite in~iest in 'fipe8king Qut' ott plbllc .'
fact that the:' speech " 'mi as a part of!...'le
'matterl:.' In many such', sltlmtions, ,the' , ',perfonrum~ of the emplQyee's. job fuD.ctions,
government'may have to 'mAke a' substantial·
'affects the'
of our .aruuysis but does :'iOt, .
.
. '.
that
part
far
.!
1
,j
Onthe
against
I
pedo:rmance
nature
, Copr: ··West 1995'No.c:laimto,oriti~:-, U.S.; gOvt..work;s
.
.. :
.
, " .
"
......
~
:,~
~.'
.
4,"?-p
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�Page 15,
-·F.3d----'
(Cite as: 1995 WL 583414, -16 (9th Cir.(Ariz.»)_ '
'complain,tS. [Fl\l25] , ' They cannOt obtain
,informationregar4iDg a variety of state and
,local social sefVi~8, or adequately inform the
.serVice~Bivers "that " the
governmental
empioyees'involved are not perfoniling their
, d,uties'ptOperly 'or iha~ the government itself
is riot operating effeCtively or honestly. Those
'With a,limited comiiumdof English will face '
-17 In deciding, whether ,to afford
constitutionaJ ' protection'to prohibited
cOmm~~ate difficulties iD. obtaini.ni or
employee speech, 'we mUst consider both the
proViding such information. ' Cf., Garcia v.
Spun S~ak. 998F.2d 1480, 1'488 (9th Cir;)
general interest of the public servant in'
(effector EngIish.oniY employment rule varies '
$laking freely, as described, in Perry and
in Some
Rutan" and, the imP9rtance, to the public of the ' ' , ,,' from workplace to workplace;
ei.rcUnunances' it effectively may ~eny
Speech involved. ~ Connick, 461 U.S. at 149
(considering the public's interest in theSpee¢}l,
, ~ployees with ,limiteci proficiency in English
iJl'deterniining whether to protect it);,,'"
thecapaeity to 'comDlluiieate on the.job, and
may 'therefore be, invalid as applied to them),
PickerlDg, 391 U.S. at 571·72 (same). The '
reh'g en banc'4enied, 13 F.3d 296 (1993), cert.'
employee speech baru:ied by Article XxvIII ,is
unquestionably of public' import. It pertains to
deilied, 114 S.Ct.2726 (1994). ,Moreover, as'
'~esuggested, earlier, the restrictions that
the ,proVision ot governm~ntal serviees' ~
, Article xXVIII' impoSes severely limit the,
iDf'orma#on. Unless that Speech is delivered"
iD. form t.h8.t' the 'intended recipients can '
,abilitY' 'of state' legislators to communicate
with the~. conStituents ,concerning official
comprehend, they are likely to be deprived of. '
, much 'Meded'data as well' as ,of' subs1antIal'
'For' example, the provision would
,Precl.udea ' legislative ' committee' from
, public' and private benefits. The' Speecli' at
conveDing on a: reserVation and questioning' a
issue Is speech that memberS of the public
'tribal ' leader ,in his, native 'language
desire, to hear. ' Indeed, it is most often the
"'concerning the problems ofhis COmmunity. A
recipient,'rat4er than the public employeei
" 'who initiates the dialogue in '8. lariguage other,
state senator of Navajo extraction would be
than English. - See Connick, ,461 U.S. at 149 '
Precluded ,&om inQ.uiring directly of his
'N av9jo~spe,aking, constituents
regarding
Gudgmg whether Speech is, of "public concern~
~ by assessing' whether it would 'convey
.,' problems they SOUght to Dring to his' attention. "
, infonnation 'of ,use, to the public); ,Piver v.
,So would his Staff. 'rhe legislative fact-finding
'function would, in short, be directly affeCted.
Perider County &1. of Educ., 835 F.2d 1076,
1079-8() (4th "Cir.1987) (quoting Berger v.'
-18 . BecauSe,' Article xxvm' bars or
Battaglia, 779 F.2d 992, 998·99 (4th Cir.1985) ,
, , (citations oJn.iited), ee,t.'demed, 487 U.S. 1206
sigDmeantly restricts, communications by aDd
(1988)' (stating that' speech 'is of ' 'public
with' government officials aDd employees,' it,
", sig:Oificantly interferes with the, ability of the
Concern" based on ,whether the publicwants to
Ilear
,,:,.;~:,'
nO!,',,:English-Speaking populace of Arizona "'to
.... ,'.' ,
, ',rfi~f;e,>inforynation and ideaS.' ,,'Virgil:1ia
, ,'The Practical e~~etsiofArti~i~';XXVliC~; 'fJ.~"',
S;;ii:.{Bd. of Pharmacy ,v; Virginia Citizens
'.facto baron cOm:Dlunieations by or with,
Co~r, Council,,425 U.S; 748, 757 (1976)
governmentemp~oyees ,are numerous and" ,
(qu6tmgKlefudienstv. Mandel, 408 U.S. 753,
'762-6~' (1972».' As, t4e ,cOurt explained in '
varie(,i.'Fore:iw:riple; monolingual Spanish
speaking 'residents of Arizona" cannOt,
Virgiliia ' CitizenS" ~free9.om' of speech
'necessarily protects the right to teceive.' ' ,
consistent with' the article, communicate
effe~i~~ly with' employees:ofa 'state or l('\o~al
'Id.; 'see also Board,' of Edue., Island Trees
'ho(;:~~~'~;'office abOut ,a:landlordis;, "''S'ful,
Union',Free~ool Dist. No. 26 V. Pico, 457
,U.S. 853, 866-68, (1982); 'Procunier v.
retention of' a rental depOSit, nor can they
'learn from clerks' of the state coUrt abOut how' , , Martinez, 416 U.S. 396,' 408-09 (1974); Red
and:.' ,where to, file small claims' court
'LionIJroadeasting Co. v., FCC, 395 U.S. 367,
,necessarily determiJle its outcome.
The
coP-text in which the Speech ~ mUst~
weighed along' with the other relevant factora
when we balance,' the coDflietinginterests.,
, , 'Here, the oomext aCtually militates 'in favor of "
protecting the Speech involved. ~N24)
a
matters.
it»:
'"
:, " ,', _,'
Copr:
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,390 (1969); Lamont ~. Postmaster ,General,:'
381 U.S~. 30i, 307~08 (1965) (BrenDan. ;'J:,
, cO~); 14eyer v. Nebraska,. 262 u.s. 390,
. (1923r, (inv8lidating .•. statute prohibiting
teaChing' of'foreign,:l~es in part 1;»eea~
, it iriteri'ered "With the'opportuirlties' ofpupils
to acquife k'iiowledge"). Although Virginia .
Under 'itS'" provisions, bilingual public.
, . empl9yees Will be' aware that in many
.instances ~ .orilY speech they may laWfully
. offer~, ~be:bf.no v&:lue.
The, ,article
effectively requires that these employees
remain mute before members of the non·
EIig~ ':speaklng .public wh,o seek their
"', assistance.. At, 'SuCh moments of awkward
CitiZens is, nptcPPotrolliDg herebeeauseit
,'~ilerice be~een governmerit employees and
Involved a restriction on the Speeeh' ofa
private, entity that willingly', 'provided
those they serve, it will be strikingly clear to
'informa~ontOthePUQlic, [FN26] the ~righ~ to
. .aU 'conceri:J,ed, t;hat " vital "speech , that
'. individu8Is deme bOth to
.vide
" receive")utlcUIated in Virginia Citizens and "
.' .
"
,PJ:O.. . imd to hear
"has been stifled by the state.
related, .cases 'is 'Clearly' relevant' in public,
.employee' speechC8$es. AnY doubt cOncerning
..
,I
,FNl., All funber refe'rencesto Arizonans for
" this point, '\Vas removed in the' N ~tion.8I ,
.' Official English also include by iJnplication Parks.
Treasury Employees Uziion case. There,' the
'Court eXpressly invoked Virginia, Citizens in,
striking. down a public employee speech
FN2. ,We aiso hold that Yniguez' is ,entitled, to
restriction. . ",
'
.;
nommaldamages. Given our affil1IWlce ,on the
,merits, .we' need not rule upon' the sta~ defendants',
The large-scale disincentive ..to government
. employees' expression also imposes ,a
claim that. in the event of a reversal. the plaintiff's·
,attOrney'sfees award should be vacated..,
, ,Sigliliic,mtburden on the public's right to
. " .. "" .
read ii.nd 'hear what 'the employees would:
FN3., Judge' Thomas Tang of Arizona was a
'otherwise have .;ntten and'said.See
'Virginia state Bd. of Ph8.rmacy v. Virgi.ilia
member of the three-judge panel, and the en banc
coun. :He die4 on July 18, 199~, two days before
bitizeni?Co~er CoUncil, Inc:, 425 U.R
" the en banc orai argument. ,He was replaced on the
748,,756.757, 96 S.Ct. 1817, 1822·1823.4~ ',,'
.en banc', ~un by Judge Kozinski. Because the
. L.E(i.2d 346 (1976). , We have no : way to
, decision ot'the en bane coun is' essentially identical
'in:easure.the true cost olthat bl'uuen, but we
~tO.thep~nel opinion. it is imponarit to note that'
cannot igMrethe rlskthat it mig,,-t deprive
"us of the work of a :,future Mehille .or
· Judge Tang, contributed greatly co' that earlier,.
op~n. . Many of the ideas and much of the
Hawthorne.
. .
languag~ was his.
Although he was unable CO
N ationa! Treasury Employees Union, 115, .
S.Ct.at i015 (footnote omitted).
Thus,
particiPate in' the deliberlltions of the en bane coun,
.. thiS decision reflects hjS. views and his wise .
National'TreasUry Employees Union makes it
, clear' that pubpc:employee speecIt ~
. understanding of the ConStitutiOn. ,
weighS heaVily the public's "right to receive
information '. aDd ideas". by affording, First
· FN4: ,k' ~~uld 'be noted that, the bulkof'the
.
.
.. 'underlying, facts in this case were stipulated CO by
'Amendmen~, protection to speech that the '
public has an interest in receiving. See',
Yniguei and the state defendants. Ar#onans fo~
Officia), English, however, mates cenain nCI;a1
ponnick, 46iU.S.at 149;' Pickermg,391 U:S.,
at 571-72; Piver, 835 F.2d at 1079-80~ , hi':
all~ga&nS. in its briefs on, appeal i.'1a! are
applyiDg ,theSe principles, we note· that the,
WlSupponed or even contradicted by the record.
Compare ~g Brief at. 24 (Yniguez' use of
. peechllt issu.e here. mundane though it may
S
Spanish·would interfere with the government's
be, is of far more direct significance to the·
,s~bstantial interest in the efficiency of i(s
p~blic than was the speechreferroo to in
workforce~) with Stipulilted 'Facts at: S (Yniguez'
N ationa! Treasury Employees Union.
,
'
;
Article XXvm obstructs th~, 'free 'flow 7;f
information and adversely affeetsthe rights of
many , 'private persons by requiriI;lg the
incOmprehensible to replace the intelligible.
of
· use Spanish ·contributes CO the efficient operation
. ,'of the .State.). Nonetheless, the organi7:':Ilk:'made
. "no effon CO supplement'the recor~ c';;, ";;;'!31 or CO
seek. remand. Rather, it explicitly states in its
brief that there are . Do material facts in dispute. At
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:
I,
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Page 17
as: 1995 WL 583414,' ·~18 (9thCir.(Ariz.»)
F.2dat 648. Althougbfor .some reason no mandate
issued the~fter. the district ~court received the case
bact. on November 5, 1992, and Arizonans for
.OfficiaJEnglish timely filed its notice of appeal
within thirty days of that date.
any rate, the. facts stipulated to by Yniguez and the
state .defendants are in the' main self~vident.·
.
,
.
Accordingly, our legal conclusions ate based on the
. record as stipulated to by the original panies. .
""
FN5. Yniguez' originil cOmplaint, filed November
10, 1988, named only the State of Arizona.as a
. defendant. She later filed an amended complaint
including the other defendants.
FN9~ NI further. references to Arizonans Against
Constitutional Tampering include by implication
.' Espinosa.
FN6. In p~rticular, the court relied on the fact that
"Mofford has officially stated that sbe intends to
comply with Article xxvm .and exPects state
service. employees, of which Yniguez is one,to
cOmply with Article xxvm.- Yniguez, 730 F.
Supp. a.-312.
FNIO. The federal government of the United States
"official
.has never recognized English as'
.language, • eithe~ under the Constitution or federal
law.
See generally Perea, Demography and
Distrust:
An ~ssay. on American Languages,
Cultural Pluralism and Official English, 77 Minn.
. L; Rev:269: 271-81 (1992) (noting that Continental
Congress issued official publications in Gennan and
French, as. well as English,. and that the Framers .
purPosely gave no special designation to English).
· ..As one academic commentator bas explained, -early
political leaders recognized the close connection
~een . language and religious/cultural freedoms,
and 'they preferred· to refrain from proposing
legislation. which might be co~trued asa restriction
onlhese freedoms." Heath, Language and Politics
. in the United States, in Linguistics and
Anthropology 267, 270,(1977). Recent efforts to
establish English as the" official , national language
have not succeeded.' See H.RJ. Res. 81, 10 1st
Cong." ist. .Sess. (1989); S:J. Res. 13, lOOth
Cong., 1st Sess. (1987); see also Comment, The
Proposed English Language Amendment: Shield or
Sword?, 3' Yale L. &. Pol'y Rev. 519 (1985);
· . Harris V. Rivera· Cruz, 710 F. Supp. 29,.31
.(D.P.R.1989) (stating that -[i)n the United States,
there is no official language, and if prudeDceand
wisdom' (and possibly the Constitution) ptevail,
there never shall be-). But cf. Sobeial-Perez v.
.fl:e~~;.r, 717,F~2~I36, 42 (2d Cir.1983) (asserting
· 'tfJat,!':t;ngJish " .'"'" . '. national language of die United
~ the
,
.
;States"), cert.~enied,· 466 U.S. 929 (1984);
DaLomba v. Director, 337 N.E. 2d 687, 689
(Ma.I97S) (st:tting that -English is the official
language'of thisoou,ouy ~);
the
FN7. Because the district cOurt found that Article
xxvm violated the First Amendment, it did not
, reach the other constitutional and statutory grounds
that Yniguez asse.rtedfor ~validating the provision.
FN8. Asking' this court to revisit issues already
decided in Yniguez D, the cross-appellee state
defendants assert that Yniguez's request for nommal.
damage~ is untimely because sucb damages were
not specifically requested at trial, and their denial
was not specifically appealed at· that time.
,However, as we held in Yniguez D, .Yniguez's
blanket request for "all other relief dJatthe Court
deems just and proper uDder the circu'mstanceS, ~ ,
encompasses a request for nominal damages. 975
F.2d at 6:47. In' addition; as to ber apPeal of the .
district court's denial ohucb damages, Yniguez bas
precisely followed the steps we desen"bed in that
opinion. See id. at 647& 0.2 (stating that 'Yniguez
"may ~ise',theissue of nominal damages ina future
, cross-ap.,eat"). Similarly, Yniguez sugge~ts that the
appeal 'of Arizonans for Official Englis,. is' untimely
, ~uSe its.. notice of appeal was. not filed within
thirty days of the date 'that our order permitting .'.
intervention was entered on" the district court's
docket. . . However; we retained jurisdiction' over the
case during. that period iii reviewing the suggestion
of mootness filed by the state.
We did not
rtiinquisb jurisdiction until after September 16,
, 1992, .wben . ' we filed our opinion rejecting the
In' that opinion, .we
mootness' sugg~stion.
specificallyexpl~i!:'.~~;that "[i]he district court may: . <,;..
aIlQw the panies .to perfect their .
now proceed
appeals and·' to conduct further .proceedings in
..conformity with our.dispositions." . Yniguez n,.975·
to
'·:.'~'i~'
<
FNI.1.BesideS A~izona, the states that have adopted
such provisions are: AJabama, Ala. Const. amend.
·509;
Arkansas, Art. Code Ann. § 14-117;
California, Cal.. Const. art. m § 6; Colorado,
, Colo. ·Const. Art'
§ 309; FJorida, Florida .
Const. art. rr.~, .~\ Georgia, Ga. Code Ann. § 50
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88:'1995
· 3.30;'Hawaii, Haw. Const. an. XV §4; Dlinois,
DI. Code § 460i20;Indiana, Ind; Code Ann. § 1-2~
10-1; Ktmtuclcy, Ky. Rev. ·Stat. Ann. §2.0.13;
Mississippi, Miss. Code Ann. §'3-3~31; Nebraska,
Neb. Corist. an~ 1 § 27; NonhCarolirla, N.C.
. Gen. Stat. § 145,12; .North Dakota, N.D: Cent. .'
Code § 54-02--13; South Carolina, S.C. Code Ann.
§ '1~1-696; Tennessee, Tenn. Code Ann. § .H-404;
and, Virginia,Va. Code 'Ann. § 22.1-212:1..
Compare Meyer; 262 U.S. at' 395 (stating'tfuu
"tWentY-one S'tates besides Nebraska have 'enacted
similar foreign langUage laws") (argument' of
defendant). . Two of' these states-California ,and
Hawaii-are in our cirtuit.. Tlie "official-English"
proviSions in these states, like those of other states
.besides Arizona, appear to be primarily symbolic.
See, e.g., PuenoRican Org. for P~litical Action V.
KusPef, 490 F.2d' 575, 577 Oth Cir.1973Hnotin~
that official-English law appears with laws naming
state bird and state song, and does not restrict use
of non-English langUages by state and city
· agendes). Anicle m, section 6 of the California
ConstitUtion merely establishes' ,English as ~e
official langu~ge of the' state of California; it .
imposes no prohib!tion on other languages and does
not affect their' use in the functioning of state
government.
,Hawaii's prOVISion is unlike
California'S in ,that it recognizes both English and' .
Hawaiian as official stille la'nguages, but it too
appears. to have little ,practical effect.' Gi,ven" the
extent to 'which . the ·Californiaand . Hawaii
provisions differ from Article xxvm, our opinion '..
in this case should not be construed 8S' expressing .'
any view regarding their constitutionalitY.
FN12.. At the oral argument before ·cbe' panel,
ArlzOnaiJS for Official English partially endorsed the ,
Attorney' General's ,reading of Article.xxvm.
While . purPorting to agree with the Attorney
..General that the'. provision's mandate that the state
· and its subdivisions "shall act;in ,English" covered
only official gove~~ntal, aC'is:;th!! 'organitation
nonetheless suggested ~aguelfdi~t its interpretation
of the provision was b~oader thaD that, of cbe
. , Attorney General, and that it .inight,· for exainple, .
construe the provision ,: as , . prohibiting state
employees from speaking an~ttier W;guage 'in the'
performance of their duties, when unnecessary to do
so. The organization's briefs .to the panel were
even less clear ,in indicating its position regarding.
Article xxvm's .. properscope. Th~ briefs were,
first orall" quite reticent on the question. However,
.the arguments assened irI support of the proviSion
were quite s~Ceping, and seemed most appropriate·
to an extremely broad prohibition on the use of non·
EngliSh tanguages by government ·officials and
emplciyees.Aiihoiigh ,we would,. even. absent'tbese
· briefs, be eritireiy '~nvinced by the 'paoffered
'limitirig cOnstruction. (see below); we . find "[t)hat
.' ~nstniction even less' plausible in light of the broad
purposes that [the appellants)insist[) underlie the
lProvision). "Lind V. Grimlner, 30 F.3d 1115,
i123 n.8 (9th Cir.I994) (citing Erznoznik v. City of'
, Jack~onville, 422 U,S. 205, 217 (1975».. Before
the en banc cOun, A,tizonans for, Official English's
and the Att0.meY General;s explanation~as,tothe
: initiative'S scope were confused and self·
contradictory. At best, they shed little light on how
the ,amendment could rationally be construed in a
limiting manner ~d at worst they helped make it
clear that it Could not be.
fN13. Similarly, Article xxvm also descnl>es
'English as cb.e language "of., . "all government
functions and actioiJS." § 1(2). Under no sense of
either "functions" or ~actions" ,are the two words
limited to~fficial acts.,Cf. Powers v.Ohio, 499
400 (1991) (finduig state action in :pr~secutor's
Peremptory .. challenges .of prosPective' jury
members). 'We note also,that the initiative's ballot
': materials and publicity pamphlets do not suppon the
'AttO~eyGeneral'spost.h;X;·construction Of Aniele
XxVrn.. Iilstead, they described the "meaning and
, 'purPose~ of the init~tive to th~ voters in far broader
terms. See Bussaruch V. Douglas, 733;P.2d 646,
647'(Ariz.App.1986) (examining .bailoi .materials'
, ~d"publicity pamphlets in construing' an initiative).
u.s.
.f1IlI4. Th~ Attorney' Gerieralhas only stated that a·
.'. : narrow, constructiOn "may . ~. be necessary ,to avoid
conflict" with ,the ·federal cOnstitUtion, and his
arialysis on'cbepoint was based on cbe Equal
· ProteCtion.' ClaUse, of cbe Founeenth knendment
, rather than. the First Amendment.
FN15.. The district' Court held that the Eleventh '
.Amendment barred State Senator. Gutierrez from
'. ,,~ suing state officials in federal, co~n to challenge
Article xxvm's application to legislators. The
· district colin ~nc1uded that these state offi~ia1s
.
,
.~;:~ked the power to enforce Aniele xxvm against
. him. and thu" w~j(J,oot be proper federal' defendants .
, under Ex Parte Young .• See Yniguez, 730 F. Stipp.
at. 31 i. This ruling is not before us on appeal and
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· we intimate no opinion as to its merits•. However, it·
is important to note that the court's ruling does not .
!'nean that Article xxvm's broad reach unposes no
chilling effect upon the speech of legiSlators. Even
if it were true that state officials have no' authority
.. to punish a legislatOr who violates Article xxvm,
itremams. the case that legislators are required to
comply with the state constiwtion and that harmful
consequences may flow from violation of its
provisions, including the possibility of-civil liability.
as a result of the initiative's enforcement provision.
Thus, whatever Gutierrez'S particular power to
bring this suit in federal court, the First'Amendment
interests of state legislators are properly considered
as pan of an inquiry' into Article xxvm's
overbreadth.
.
FN16. The Court's recent decision in United States
v. National Treasury Employees Union, 11~ S.Ct.
1003 (1995), is entirely consistent with' our
conclusion that if we find Article xxvm to be
unconstiwtional, we must invalidate it on its face.
In National Treasury Employees Union, the Court
considered it challenge to a pan of a sUWte that
restricted the ability of persons in all. three brancbes
·of the federal government to receive bonoraria for'
making speeches .!)r publishing .articles.· Although
the .Court upheld the constiwtional cballenge filed
on ~half of "raitk-and-file~ civil serVants in the
·eXeCuti,'1l branch, it offered three reasons for not'.
alsO invalida:ing the provision as to senior officials
in that branch, a group that was not .before the
Court. First:. the Court explained that the senior'
officials .received a 2~ percent salaiy increase that
was intended in part to offset the financial loss that
the honoraria ban migbt cause. Id.at 1018-19.
Second. i.t concluded that different justifications
might support applyiitg the ban to senior' officials
than to rant-and-file members.
Id. at 1019.
Firuilly.it concluded that relief could not be'
afforded in the manne~ ordered by the Court of
Appeals without "tampering with the text of the
staWte[.Y' Id. None of these factors is present
here. First, all public' officers and employees are'
treatedidentieally under Article' XXVIII. None.
received any compensating benefits. SecOnd, if the
'article is unconstiwtional as to civil servants, it is
necessarily unconstiwtional as to. officers and
. elected officials. Si;.eYniguez. 730F. Supp. at'·
3]4; . cf. Bond,3e~U:S; at '132~33~ . Finally,
unlike in National Treasury EmpJOyees' Union, here
the relief we afford' is '. simple ·ahct requires no,
tampering with. the text of the measure.
FN17. We have no doubt; however, that even uilder
it!ereJatively relaxed test for expressive conduce set
· out . in. U.S. v. O'Brien, 391 U.S. 367 (1968),
. ArtIcle Xxvm would be unconstitutional. Under
O'Brien~ -8 government regulation is suffICiently
· justified if it is within. the consttW.tional power of die
government; . if it .fui1hers 'an important or
substantial governmental interest;
if. the
govemrriental interest is unrelated to the suppression
· of free expression; . aDd if the in~identai restriction
on alleged First Aniendinent freedoms is no greater
than is essential to the,fui1herance of that interest.«
Id. at 377. Article xxvm fails at least the final
prong. See discussion,' infra at' §§ UlD(4) and
.
UlD(6).
·FN18. The paradoxicalanempt to classify choice of
language' as conduct is useful. perhaps, in
·underscoring the weakness of the strict conduccl
speech distinction. As the example of American
. sign-language illustrates. we describe various kinds
of physical Conduct-whether the making of specific
sounds or specific hand movements.;.as language
·. when they have reached a level of sophistication in
griurunatical strucwre. and vocabulary to aUow them
to convey complex ideas with a sufficient degree of
accuracy. See Johnson,491 u.s. at 404 (m
deciding wbether. particular conduct is protected by
the. First Amelldment,. asking ·whether '[a]n' intent
· to cOnveya. particularized message was present, and
[whether] the likelihood was' great that'the message
·woulCI. be understood by those who viewed it' , ')
(quoting Spence v.. Washington, 418 U.S. 405, 410
11 (1974».
FN19. 11 is important to recall, by contrast. that a
monolingual person does not have the luxury of
making the expressive choice'to commlinicate in
language or ;;td:1t/:,:. .If. thi:: .~rsonis to speak
· at all.:it is.in ~. '~1~ikU~kllgUage,Cwhicb may not be
English."'>" ,:[;,;.".'
one
FN20. Conversely, the del~ra,te choice to s~k to .
·Someone .in a· language that he or she does not
· understand may convey a strong message of
.
".
exclusion,
"
. .
,'"
'
FN21. :1:':\',,; . :'ouldonly add that· tb ignore the
substance, of speech and to· look solely to form
when analyziitgthe'inipace 0(:&. prohibition on .
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,
speech is to be wholly mechanical and artificial.
That approach to constitutional anaiysis ill serVes
'the purpose oftbe Bill of RJghtsand denigrates the
judicialftinction~, Wbfm' the' effeCt of ~g a
form of speech is to prevent receipt of the message
by . the futended audience;" it cannot seriouSly be
argued that the ban is ~ocuous because it applies
'only to the, mode; of ',speech.
Moreover,
notwithstanding Chief, Ju4ge Wallace's aSsertion.
see WallaCe, ooncurring in dissent at 12781; ~
Court has found mod~s of sPeech to ,.,e protected by
the F,irstAmendmeni.For example, the CourtlW
repeatedly protected a speaker's right to d~liver his,
message anonymously. MCliltlye v ~ ohiO'ElectionS
Com'n, n5 S.Ct. 1511 (1995);
Talley ,v.
Califomia, 362 U;S. 60 (1960). In those cases, the
Court did not hold that the speaker could not,'
~eliveran identical message without anonymity,
rather that ,the speaker ,might not do so. 'Here,
prohibiting delivery of all messages, in ,languag~s
other than English ensures that many Arizonans'will
not receive certain messages at all.
FN22. The distinction between affmnative and
negative rights, though its legitimacy has been much
disputed in academic circle~, co'ntinues to, find favor
with the Supreme Court. See, e.g., De$haney v.
Wirinebago County Dep't of Social Servs, 489 U.S.
189, '196~97 (1989) (rejeCting the view that the
Constitution imposes "affiimative obligations" on
the state). In so~e instanceS, the line, separating the
affirmaii~e from the negative is hilrd to draw:.even
though it may be critical to the oUlCOmeofa case.
Compare Vnion, Free School Dist. No. 26, 457
U;S. ,at, 855-56 (asking ~whether tile' First
Anlendment imposeS limitations '[uPon dIe school
~ard's power] to remove library books from high.
'sChool and junior high School libraries") (plurality'
opinion) (emphasis ,added),andid. ,at 878 (stating
that the right at issue does 'not" involve ·any
'affirinative obligation to p~ovidestudents with
iDfonnation or ideas") (Blackmu~, J" concurring)
(emphasiS added), with id. ,at 886 (complaining thai " ,
"the plurality suggests that there is a new FIfSt"
Ainendment,. ~e~titlement ' to' have access to
particular books in a school library") (Burger, C.J,!
dissimtmg) (emphasis added), In me present case,
however, there can be no doubt that A.riicle XXVIiI
represents a prohibition ~n non-English speech, not
simply a failu~ to, provide it..
,FN23: The 'dissent's stiltement that the speech in ,
.
,this ,case ,cannot be' easilypigeonhol~ .into' one of
"•. the traditio~ legal categories. is fully consistent
with ~ur analysis. However,unlike the dissent,we
, .Conclude, for the r~ons disc~sSed infra at ·12736
'~9, diattite 'sPeech pr~hibited by Article xxvm of
, the ~na Constitution more closely resembles
publicci>nce'm. than private concern speech. Chief
judge WaIJaee:s attempt '19 distinguish the .speech of
p~blic .employees who communicate ,information
relating to gove~ental functions 'in languages'
other than English flom off-the-job-speech in which
public 'employees CommuniCate their pe;sonal .
·opinions relating.. to ~ governmental matte~ oniy
serves to prove our pOint conclusively. If the latter,
.as Judge Wallace correctly says ,consti.tUtes speech
of public concern, .see ~allace, concurring in
dissent at 12782-83; so, a fortiori, must the former.
FN24,. The Court's statements concerning' the'
state's authority to make content-based diStinctions
,when it is the s~er are not ,to the ooi1t:riry. See
Rosenberger v. Rector. and Visitors of Univ," of
Va:, 1,15 S. Ct. 2510 (1995); Rust,v.Sullivan, 500
U.S. 173., 'Ill S. Ct. ,1759 (1991). In, both cases,
'theCOilrt g~ted the government broad, but not
.... unlunited. pO,?,erto ~gulate government-subsidized
speech ,of priv~tC 'parties. .Rosenberger involved
government, subsidization of speech . by private
p1rties pursuing their own goals, Rust government
" sut.~~~tion of speech by pri~ate pa~s carrying
o~t ,~ gt. vernmentprogram. Neithe~ 'Rosenberger
. .nor Rust, conCerned 'the authority of the state to
penaliie 'the speech of its public employees, let
8Jone. to adopt a, general prohibitory rule of'
sw,eepb1g applicability regarding suchspeecb. We
·do f\ot believe that isolated statements in these cases
were ineant,torewrite the Court's public employee
sPeech.doctrine., Nor do we believe that words
used in cases dealing with wholly different issues
,shou!d ,be wrenched from their context and applied
mec~ca1ly to· entirely different circumstances.
wiiile RoseDbe~ger is of, veryreceiu origin. Rust
has been with US for over four years. Rusrhas
·been cited ,mOre than SO times, by circuit courts, yet
· not ,once bas it bee.n applied in the context of a
, restricti~n on the s~h of public employees. Rust
· is' simply irrelevant here, ,In any event, we note
that both cases demonstrate there are limitations on
.the restriCtions tf"!,!lt the siate may impose. It is rare
that governriie'lltal ' POWI:I i.;, absolute, ,and , '
constitutional limitations are whollyinapplieable. '
While gove~ent may certainly regulate or control
COpr. 0 West 1995 No cla.mi,to orig.U.S. govt. works
-
WESTlAvV
I
.~ ~
".t'
�"
....
<J,
-·F.3d····
(Cite as: 1995:WL 58341., ·18 (9th CI,r.(Arlz.») ,
speech when it is the speiker, it' does not hav,e
unlimited power to regulate such speech; here, ,as
elsewhere, it must act within constitutional
constraints.
The government could not, for,
examl'le, force all public employees to wear pro-life
lapel pins or deliver a pro..tifemessage whenever in
the perfC?rmance of their work they communicate
with members of the public, any more'thanit could
require' delivery of, pro-choice' message under
similar circumstances.
To say. that in. most
circumstances the gov~rnment may regulate content
by compelling or prohibiting on-the-job delivery of
a particular message is a trUism. ,However,
pronouncing that trUism does not resolve the
question before us. It merely helps us reach the .
central issue of this case:' Is the panicular
regulation"here, one that drastically affects not only
public employees but also countlesS Arizonans who
. need desperately to communicate with their
govemment-constitutional1
a
. J
FN2S. We note that in Gutierre;z v. Municipal
Coun, 838 F.:2d1031 (9th Cir.1988), vacated as
moot. 490 U.S..1016 (1989)" while striking down
an English-only rule applicable to the private speech
of Los Angeles Municipal Courts employees on the
ground that it violated Title vn, we explained that ,
serious constitutional questions would arise if such a
rule were to forbid coi'.vinunication in Spanish with,
the non-English-speakingpablic. Id. at 1044,n.19.
FN26. In Virginia Citizens, the Coun strUck down
a statute' declaring it unprofessional conduct for a
licensed pharmacist to advertise the prices of
prescription drugs. holding that the statute violated
the First Amendment. SpecificalIy, it found that the
govemmenCs suppression of .the flow of
prescription drug price information violated.
consumers' right to receive the information. Id. at
770.
END OF DOCUMENT
., ..... '.
Copr. C West 1995 No claim to orig. U.S. gon. works
."
(,;,'J:
�,_ .
., '
:I
Page ,22
---F.3d·_·.
(Ci~
as: 1995 Wi. 600877 (9th Cir.(Arlz.»)
Malia-Kelley F. YNIGUEZ, Jaime P. .
. Gutierrez,Plaintiffs-Appellees,
and
~~onans Against Constitutional
'T~perlng, Intervenors-Plaintiffs· .
..'
. Appellees,
.
and
State of Arizona; Rose Moffor~; Robert
Corbln,et al~. Defendants-Appellees.
v.
ARIZONANS FOR OFFICIAL ENGLISH;
Robert D. 'Parks. Intervenors.Defendants
.
. Appellants.
.
Maria·Kelley F. Yniguez, Plaintiff.
Appellant.·
v.
State of Arizona; Rose Mofford; Robert .
Corbin, et' al....Defendants.Appellees.
and
Arizonan,s forOftlcial English; Robert.D.
. . Parks, Intervenors-Defendant&
Appellants.
.
Maria-Kelley F. YnigueZ, Plaintiff.
'. Appellee,'
v.
State of Arizona; Rose Mofford, Robert
Corbin, et81., Defendants-Appellants.
.
.
REINHAlIDT, Judge.
4. The Absence of Airy State Interest In
Efficiency and Effe~iveness
·1 In light ()f the interests of both public
employees and members of the public in the
prohibited ' speech, , a. decision as to' the
Article
XXVIII's
"Constitutionality " of
reStrictions bivolVes at a minimum a weighing
and balancing. PrQCess similar to that..,
. conducted' in the more traditional cases
:invoiving,public employee speech of "public
· co~". lFN27] . Here,the efficiency and
i!ffeCiiveness considerations that constitute the
fU:nd.ament81 governmental· interest 'in the
·uSu8!' "public concern" caSes·and that provide,
· the justiflca,tion ag8inst which the employee's
First Amendment interests must be weighed·
'are wholly' absent. Indeed, as the parties
acknQwledged 'in 'the. 'stipulation of
uncontested facts, Arizona's' intereSt in the
~ffiCiency .' and effectiveness of its workfo~
nins directly" counter ·to', Article XXVIII's
restriction on ,public employee speech. See
note 4, supra.··
.
. Specifically, 'the . faCts of ' this case
unequivocally esta1)lish that, Ymguez's use of
.' United States Court of Appeals, "
Spanish in the course of her official duties
~ contrlbuted to the ef6.cientandeffective
" Ninth Circuit.
administration of the State. See Statement of
.Stipulated; FactS at .5-6.! More generally, th~·
Argued and Submitted May 3, 1994.
.facts of tl$ .case, . as .well as elementary
reaSon, tell us that 'government offices are
Filed Dec. 7, 1994.
more efficient; and effective when state and
Amended Jan. 17,1995.
, 'loCal ,employees are perinitted to communicate
. Order Granting Rehearing En Bane Filed May.,
· ill .l&nguages' other' than English with
12,1995.
cO~eis of government services who are nOt
Argued and Submitted July 20, 1995.
· profiCient in that lailguage. Id. (stating that
. Filed Oct. 5, 1995.
. uSe of
English languages promotes f.: e
. Appeals from the uniied States District
"efficientadmiDistrationof the' Stat,(;"); J ~~A~.
v. Tucson Police Dept., 783 F. Supp. 458, 462
Court for the District of AriZona Paul G.
(D. Am. 1992j ,(emphasizing
.that' "the
Rosenblatt, District Judge, Presiding:
availability of Spanish-speaking personnel is
, neCessary' for. "effective performance of [the
Before WALLACE, Chief Judge, HUG,- Jr.;
PREGERSON,
REINHARDT,
HALL•.
Tucson Police Department's] missioll").·
.
.
WIGGINS,
BRumYITI., KOZINSKI.
1\ v':"; nall
1-:":'_.3
1:., ' wle
FERNANDEZ,
KLEINFELD,
and'-' ,
• :;"'',:''11
y, as we expN.lWU;ear~,. ......;
'pUrpoSe of Articlexxvm were to }.i.l'Omote
HAWKINS, Circuit Judges.
effi~ielicy, it wouldoot impos~ a total ban but .
would Provide that languages . other than
Nos. 92-1708.7; 93-15061. 93-15719."
non·
........
~
Copr. 0 West 1995 No claim to orig. U.S. govt.works
..
~
~,,,,:,,,,.~.~';.;.""
~~.·,I~
1DII:r.m;a&~'·
/,
_ _:::'3IL', "
mp;~:~r:~:,'",
'
�.
"
P~ge
~··F.3d~~··
23
. (Cite as: 1995 WL 600877. -I (9th Cir.(AriJ:.»)
English may ,be used in gove~ent business
only when they facilitate sUCh busmess 8nd,'
not, when iliE!y hiilder it. ' Article xxvm
:pl8.inIy does not. make this distinction. See;
supra, at 12711·13.
'
efficiency'and effectiveness" and becaUse the
WaterslPickerlng line of, cases limits
cOnsideration of tbegovernmentai interest to
these" concerns, ,were we to apply the
,.traditioDaJ. WaterslPickering bala.nci.ni test, '
'for, om~i8J. English would lose by
default.~' Th:ere would be' nothing on' the non·
On this point, we note that Arizonans for
"free'speech sid;e of the scale. Then have,
.Official, El)glish's assertion that ,government
, inefficiency' ,and '"chaos" will reSult froin'
however. been a' number of other cases in
which"the :Court (though souietimes giving
Article .XXVm's invalidation, is not only' .
directly contr&ry to the stipulated' facts but is
some weight to efficienpy ~ effectiveness
ConcernS), , has 'consiciered prinlariIy the
" predicated upon a ' wholly . erroneous· ,
assumption as to the naWreof Yniguez's"
government's ariJwnent that a broader Set of
Claim. The group contends that appellees seek
jUstificatiOns supPorts a particUlar restriction
.' em the', 'First' Amendment rights of public
the right to Spe8.k another language at will,
e·mployees.·'
'
,8nd :regardless ,of whether' the intended
recipient ;ofthe Speech'primaruy speaks that
.
language or is even able to eoniprehendit.
Most of the cases in which the goveriunent
has relied ' ,;on .justificationS other than
Howe:ver,: Such a "right" would be ofa far ,
. effidenCY ,aluieffectiveness have, hivolved
different, 'order tlUm the right at issue here.
As the facts, show, Yniguez spOke spa:nish with ' ' :: patro~e'pi-actices, although some ,have
involved restrictions on public employees'
Spanish-speaking ,cl~ants aDd English with:
Eng;tish·Speaking claifuants. She' -does ,not ,
,politic~ activities.' See, "e.g., Rutan v;
claim any right to "choose" to speak Spanish '
, Republican party of Dlinois. 110 S.Ct. 2729,
2'135~37, '& :q.4 (1990) (cit~, inter alia,
:with clai.i:n8.rits who woUld not understand her;'
nor\voUld this o~ any other court uphold suCh
interes1; in preventing ,excessive political
, n:agmentation 'and' strengthening" party
ri'ght." Accordingly, in the 'interests ,of
claritY, we 'emphasiie that bY rUling. that 'the
syStem): Elrodv. ,Burns, 427 U.S. 347, 364-69
state' cannotw:iniilsotiably - liniit· the use of
(1976) (citing, ijlter alia, 'interest, in 'preserving
non.English languages. we do nOt ,imply that,
thedemoer8tic, ' proCeSs);
Ci;il Service
the' ,state 'is therefore 'forced 'to allow"
Comm'n v. LetterCarrlers, 413 U.'S. 548,565·
inappropriate or buidensome language uses.
(1973) <Citing, inter alia; mterest in preventing
development' of 'a "powerful andconupt
In short.' ,we do not suggest that a public
employee h8s '''right" to Speak, in, another
,politiC{ll ~).,,' In those cases" ,the
language~ 'when to., do so wo~d hinder job
goverqm.ent h8s relied on,the broader concerns
perfomiance. . Cf. 'JUrado v.Eleven.FiftY
that ,"Ute, government might have, in the
- st:ructtii-e '8rui functioning of society
a
, CO~" 813 F.2di406 (9th Cir.1987) <Title VII
Iwi' violated by' 'radio' Station's firing of
whole:" Rutan, 110S.Ct. at 2735 n.4.· In other
announcer who retuses to follow programming
wonis: tlie concerns
which the government
, form.8.t arid insiSts on8peaking' in'Spanish).
".has ':relied do not relate' to ensuring' an
,i·'ivemerely cOnsider here tb.e lawfulness -of
efficient ""orkplace but instead involve ~ore
."speech in"lilnguages other than English that
, ' ' general' societlili:D.terests.. In such cases, -there
furthers the state's traditiOnal interest in
" '~is no substantial nexus between the alleged
'efficiency and effectiveness..
>'governmental ~terest and job performance.,
" 'Arizonans
,
,'
a
a
as
on
5;
The Propriety of Corisidering State
Justifications Other Than Efficiency and
'Effectiveness
~,2 Because the speech at issue here does not
:a:4v:ersely 'affect .the state's interest in
, Copr. 0 West 1995 No claim
'In a recent Supreine Court case in which the
government sought to justify. a limitation on
pUblic employ~First AmeDdment rights on
:the ,basi~ of broad govemmentalinterects
rathertlUul on traditional efficiencY and'
, eff~veness ~~ncems. the majority applied a'
strict ~tiriy test and rejected the challenged
to orig. U;S.govt. wotks
WESTlAW
�,
'
liIr., ..
"Page 24'
···F.3d····
,
"
(Cite as: 1995 WL 600877,*2 (9th Cir.(Arlz.»)
The' u:uUority
governmental practices.,
concluded that because the govemment'fj
, iItterests in' the,,' regulations "~ere nOt '
"emploYme~t.rela~d," there was no reason to'
, rell:t.X the BtrlCtserutmy ordinarily applied to '
reStnctionson ,speeCh. Rutan 110 S.Ct. at
, 2735 n.4. By contrast, the disseriters applied a '
more penDissive balancing' test, 'askiilg: , "can
the govemmental' advantages 'of . this
employment practice reasonably be deemed to '
,outweigh its"coercive' effects?" ' Compare'
, Rutan, 1l0S.Ct at 2735·36 & n.4 with idat'
2749·52 & n.3 (ScaJ..ia, J., disSf3nting). The,
disSenters adopted the premise that broader
gov~rnmental interests were due no less
deference than the governmental interest in'
efficiency , ,and
effectiveness.', [FN28]
the
dissenters' , approach
, Accordiitgly,
essentially mimicked the WatersIPickering
b8.Ia:ncing test; it simply' broadened the scope '"
, of that test to account for interests other than
efficiency and effectiveness.
event" we need not decide what ,level of
'scrutiny or what appro8ch, to baJ.a.nciDg is
applicable h~.' 'Whether we' apply strict
Scru~i:ny as 'suggested by Rutan, whether 'we
, "'use a form of balancing test similar to that
, advocated ,byUle', Rutan dissenters and
,modelled on 'the' appro8ch traditionally
, employed ,ill: the WaterslPickering line' of
c,a.ses,or whether we follow the cOurse Chosen
'by the Court in Natiorial Treasury Employees
Union; the result is the same: The restrictions
on 'free spooCliare not justified by, the alleged
state 'interests. " '
'
6.,
Evaluating the Alleged State Justifications
ArizoI18llS for Official English ,claimS, as it
'and others did when the initiative was on the
ballot~ 'that, 'Article ~xxvm 'promotes
significant state iriterests. The organization
enunlerates these interests as: protecting
:democracy by encouraging "unity and political
stability"; encoUragmg a common language;
' ana protecting pubijcconfidence. '
"
*3 In 'an even more recent case, the Court
invalidated a restriction on 'public employee '
'ipeechwithout discussing the 'question of the
applicabie test, although it employed ,a
We note at the outset,that the sweeping
United, States v.',
nature of' Article XXVlII's restriction' on
balancing approach.,
National Treasu.ly Employees, Union; 115
p~blic eri,.ploy~e ~ weighs significantly in
'our evaluation of t.P.:e,st8te'salleged interests.
, S.Ct. 1003, 1,0'15.1018 (1995).' In doi:rlgso, the
Court did not evenmention Rutan. Nor did it
In National Treasury Employees Union, the
, refer to or identify a specific level of scrutiD:Y
' Court 'explained, that when the, government
,to be applied. InStea_d, it deemed it sufficieiif ,seeks to defend a "wholeSale deteITent to a
broad ~tego:ry, of expression by a massive
, to'evaluate the 'p8.rticularburdens imposed by,
the statute in light oftheparlicular interests' ' '
number of potential' speakers," 115 S.Ct. at
, affected. ",Rather than fixing on superficially' - ,~ '1013, its burden is hearier thari when it '
preciSe lega!' labelS or formulae that are easily -' 'attempts'
d8reDd
isolated disciplinary
'm8nipulated 'by sophiSticated lawyers and' "action. ld. Thus~ we must eXamine the state's
jUdges, the' Court conducted' a thorough
asserted justifications with particular care.
.
, jUdiciouS eXamination ~f the practical impact '
There is no bw 'in the record to support the
of the legislation involved, both positive and
, proponents'assertion that any of ,the broad
negative, and' its," E!£rect~n ,constitutionally
protected interests. It then carefully weighed,
'$OCi~tal interests on which they rely are
, and balailcedthe various f8ctors and reached ,,'
, SerVeQ. by, the provisions of Article xxvm.
its conCluSion in a'reasoned and measured
"WeaISO note that the article itself cOntains no'
, , SUitemerti of findings that would Suggest that
manner. In doing so,it ably performed, the
it' woUld 'serve the', interests asserted by the
quintessellti8.I ,fu:hction of judicial decision· '
making: the exercise ofjudgment.
appellllnts. The abse~ of any evidence to
this~effect is 0:': ~1icular significance given'
, that", the' deference normally ,accorded,
The Court's approach in National Treasury
legislative findings doe8no~ apply with the
Employees:Union is ,consistent with the
same force when "Fir:st Amendment, rights'are
method of analysis we undertake.' In' any
see
'an
tb
am
"
"
Copr. 0 West 1995 No claim to orig. U.Rgovt. works
�,
--F.3d---(Cite
as: 1995 WL600877, *3 (9th Cir.(Ariz.»)
at' stake." 'Landmark Communications, :me:",; ,
,262 J.U~:'af ~93; see also id. a~ 398 (asserting
Vi.rgi.rua; '435 ,U.S. Sa9, 841' (1978). It is, ",' that pUrpoSe 91 lawwfts to prevent children
from' having "inc\i1cate[d] in' them ,the ideas '"
, eq\lallysignmct1,nt for a seCond reason-Article
is a'ballot,initiative, and thus was'"
'an4 sentiirleA~;foreign to the best interests of '
subj~~e(rto neither exterisive hearings ri9r"
, thiseO~"k 'id. at 390 (noting thaHaw was
. desi~ "to promote'civic 'clevelopment," and
, consjdei-ed legislaAve analysis before passage~ ,
pt J1nited, Sta~s pivilserVice Com:Dnssion ~.', . ,inhibi~ ,the JiCq¢Sition of "foreign ... ideals").
Na~onal Association of Letter Carriers, 413;'
,More 'reeentiy~ 'the
Court
explicitly
U.S: at 565·567 (noting the, extensive
'Chai8derlzedthe langUage restriction in·
legislative filldings that supPorted the l:Iatc.h~eyer as 'designed ',"to promote ClV1C
Act).
"cohesiveness lly encouraging the learniIig of
EngJ.i~'" EpperSOn v. Arkansas,393 U.S. 97,
*4 In plain fact, Arizonans for Official "
,~05 '(1968). ,,'DesPite these worthy goals, 'the
English offer us nothiiig more than "assertion,
',. Court, IuIed t,hatthe repressive means adopted
, :: and conjecture ,to sUPPorts its' claim'" tllat
,w further ,them were "arbitrary" and invalid.
Meyer; 262 U,s. at 403.
,Article XXVIII's restrictions, on sPeeCh woUld
serve, 'the alleged state, in~sts.Landmark,
Similarly, the provision at issue in
435 U.S. at 841;
,National Treasury
Employees Uni~)n, 115 S.Ct.' at 1017 (citing
Tok:t¥¥ge, ' had the Specific' purpose of
Ttlrner BroacIcastmgSystem, Inc.,v. FCC, 512 '
regUlating' language instruction ' 'in order
:,,' 114 S.Ct.' 2445,2450(1994».'
U.S.
'thai.~e Alnen.canism of the students may be
Accordingly, ,'the ,appe~~:' have" not
promoted."273 U.S. at 293. AS in Meyer, the
, de,inonstrated that the benefits'tobe obtainSd: '
'TokUShige Com:t recOgnized the validity of the
'outweigh 'the bUrdens imposed on First ' ' "
interests asserted ilidefense of the statute.
, Ameridment rights, particUlarly given the, all·,
, 273V:S.at 29~. Nonetheless,' citing Meyer's,
encompassiDg scope' of ,the re$i,ction they
, invalidation" of the Nebraska law, it found
seek: to defend." See ?-l atioruil Treasury'
that thestatitte's promotion of'these interests
," "was insufficient to jUstify infringing on the
Employees Union, 115 S~Ct. at 1014
(explaining that the government's "bUrden is ','"
constitUtionaIiy "protected right, ,to educat~
, greater" in such C8.SE!s)~
'one's childi:en to, 'become proficient in one's
, IIlother tongue: [FN29]
We also reject the j~cations for even
more basic reasons. ' Our, CQnclusions are
*~ Meyer and Tokushige alsO demonstrate
influenced priJ:n8rily by' two Supreme' Court,
the::we8kness of the secoDd justification for
cases from the 1920s in",hich nearly Identical,
'Arti!:le 'xxvm proffered by' Arizonans ' for
"~~tions 'were
in sUpport of laws
Official ,English.: that of 'encouraging ,a
· restricting langu8ge rights. See Meyer v.",,'" '~rimlon language. ,In Meyer, the sta~te .
; Nebrask8., 262 U.S. 390' (1923); Farrington v.'
:ieflected the'beliefthat "the English ~e. '
Tokushlge, ' 273' U.-S. 284' (1927). 'Meyer' "
shoUld,~ 8lld become the mother tongue of all
involved Ii Nebraska statute that prohibited,
, children reared in thiS state." , 262 U.S. at
398. ' '1'he' statute in Tokushige would have
,~+'e wa~' of ncin~E~lish 18nguages to
,:, ':,d;"li~n nndp.rthe eightli 'grade level; .
siniuarly inh.ibited,the spread of the Japanese
Tok:u.s,rJge, similarly, mvolved a Hawaii
, 'language, ,presumably in favor of English.
,,statute that singled" out "foreign' language
273 U.S. at 298. AlthoUgh there is probably,
schooh?," such as thoSe .ill which Japanese was '
'"no more e'¢ective way'of encouraging th~
, taught, for stringentgovernlnentcontrol.
'uniform use of English than to ensure that
children grow up speaking it, [FN30] 'both
"
, staiUtes were, struck down on the ground that
Jndefending the statute at issue in Meyer,
,·"the ~ate of Nebraska' exPlained that "[tJhe
,the~ 'interests were insufficiimt to warrant
.~ --;:'l' object ,of the lemslation .~. [is] to create an
such restrictions on the USe of foreign
langt_18.ges., ,:,' ,
'
enligh,tened Amei;i.can citizenship in sympathy
with the princi?les and ideals of this country. " "
x:xvm
,
"
, ,Page 25
,<,
asserted.
CoPr. 0 West 1995 No claim toorig. U.S.govt. works
'
�t=;i
~.t:~:·~
-·F.3d··,·
'(Cite as: 1995 WL 600877" -5 (9th Cir.(Ariz.») ,~
Like the Court ,in Meyer and Tokushige, we
does not justify infringements ,up()n
constitutional rights. See, e.g., Buchanan v.
recognize, the importance of(l) promoting
democnicy ',and national Unity' and ',.(2) "
Worley, 245 U.S. 60, 81 (1917) (possibility of
r8ce ' conru~ . d6f38 'not justify housing
encouraging ';a common language as a meaDs
&egregati9n); palmore v. Sidoti, 466 U.S. 429,
of encouragmg Such unity. 'See GuadaluPe'
433-34 (i'984) (soeietyts 'racial, animus not
Org~tion,Inc.,supra.[FN311 The two. '
""lt~gi~te' 'factor to Consider in aw~
piimary just~cations relied on by the'article's
custody of Chnd).In short, the "concern" that
"proponents are indeed closely linked." W~'
8Omemembersof the Arizona public may feel
, 'cannot, a8tee"however, that Aiticle·xxvm is
over the 'USe, of non· English languages,
, in any waY a ,fair, effective, or apPI:Opriate
, ,means of promoting those interests, ot that
provid~s po basis for prohibiting their use DO
matter the degree of scrutiny we 'apply.
even u.n,der a more deferential analysis its
severely flawed effort to advance those goals,
-6 Here, the full costs of banning the
outweighs its substantial adverSe effect on
'first amendment lights. As we have learned
disseiniriation of critical information to non·
EngJ,ish spe8Jdng Arizonaiis cannot readily be
,tinleand agairi in our history, the state cannOt ,'"
' 'calculated: ,There 'would undoubtedly be
achieve unity by Prescribing orthodoxy. See,
' Sj3vere ad,verse consequences which even the
" West Virginia Bd.' of Educationv. Barnette,
3i9 U.S. 624 (1943); Meyer, 262, U.S. 390, 392,
." sPonsors of 4rticl~ xxym neither foresaw nor
(argument
of
plaintiff)" (fo~ ,',
iiitencied. The range Of potential ,injuries to, '
~ 'public is vast. ' 'Much of the information
"Americanization"
violates'
American
tradition of liberty
and toleration).
'abO~teBsential governmental services that,
N otwitb.stan.ding this lesson, Ute p~vision at
but for tJ:ie, initiative, would be communicated
in 'a ,manner', that ,nOn·English speaking
issUe here ' 'proD.lotes" English only by means
of proscribing other, languages and is, thus"
ArlzoDans Could 'comprehend may not be
wholly' Coercive.
Moreover, ,the goals of
~ptible 'to timely transm.iSsion by other
Pl'Q~cting dein~acy and ,enCouraging unity ,
m~8.ns. ,By comparison, the benefits that the
'and stabilitY are at most i:ridirectlyrelated to '
initiativ:e
to offer are minimal,
the repressive means selected, to achieve them. "'" esj;,eclalliin ,light of the state's concession
tluit " it&.' 'intereSts' in '"efficiency" and
Next, the measure inhibits rather than
advances the state's interest in the efficient ,"effectiveness" are not Served by the Article.
and 'effective performance of its duties.
,Thus, uDder, a balancing test, whether
identifie~,a8 a'Waters/Pickering type of test, a
Finally, ,the direct e.ffecl of the provision is not '
only to restrict the rights of all state and local
test modelled ~ thB.t,st8.nd.ard.as employed
bjthe ~nters in Rutan, or the National ,
government servants in Arizona, but also to
Treas1lry 'Employees Union 'approach, to .
severely impmr the free speech interests of a "
balancing, Article' x.xvm must be held
, portion of the populace they serve.
, '~nstitutional. '.' A fortiori, the article could
nOt survive a traditional strict acrutiriy 'test. '
Yle should add, that we are entirely unmoved
by 'the third ·justifi~tion·that' 'allowing
We reach our cO~usioris only after giVing full: '
government' employees to speak languages
conBideration to the governmental i.ri.teJ.est in ,~::,~;:
cont:ro1li.ng the content and· ~ Of the " '
, other than English when Serving the public
speech' of its emplOyees in the performance of
woUld undermine public, confidence and 'lead
to "dis.ill.Wiioninent and concern." To begin ,
their w()rk assignments. Here, however, that
with, it is clear that the non.English speaking
interest, . when balanced against the
, 'public" of Arizona would feel, even' greater
cOnsiderations we have exa.mit!ed. 'cannot
disillusionment ,and concern' if their
outweigh ,the free speech interests impaired by
"Article xxvm., .
communications' with public, employees and,
.effectively, their accesS to ni8ny government" '
, ServiCe's, were to be barred by Article XXVIII.
E:
Conclusion .
Moreover, numero\!S Cases support the notion'
that the interest in avoiding public hostility
purports
' .
.
'
.
,,'
"
'
,Copr. 0 West 1995 No claim to orig. -o:.S. govt. worki,
�Page 27
-·F.3d····
(Cite as: 1995 WL 600877,*6 (9th Ctr.(Ariz.»~ ,
,
"
, To con.clude. Mi~le '.X,XVm .is not ~ ',valld ,,'
regulation of the speech of public employees '
. cOnstitutes illegal' discrimination against
Mexican-American patrons); C8lifa, 'Declaring
, "EngliSh the '~cial LangwqJe:. Prejudice
and is unCOnstitutionally o:verbtoa:d.
By'
"prohibiting public: employees froin using non· '
/' SPoJie~ Here, 24 Harv. C;R.~C.L.L. Rev. 293,
, ~nglish l&ngUag~s'jn PeH'on:ninl their duties,'
'325; 328 ':a225, (1989);, Note, A'Trait·B8sed
theiliticJe Unduly burde~ their speech rights ',',
• ApprO~
National Origin ClaiDls Under
lIS wellas~e speech iii~stsof a pOltionof:~' ,': Tltle'Vn, ~4 Yale L:J. 1164, 1166 & n.6
: the populace,they serve. The articlesimiIarly,
"(1985). In light of these' considerations, the
burdeIlS the First Amendment rightS of state
'equal ,proteCtion ramifications .of " Article
and lOcal officials and officeri iii the execUtive; ,. ,"
XXVIll's ,restrictive', impact strongly sUppOrt
" legislative, 8rid judicial branches.
.',"
, , our hold.ihg~ as well. ['Fl'l33]
to:
,
,
.
,
.
We riotethat,the adverse impact of Article
*7 ~ ,President Franklin D. Roosevelt, once'
especially egregious
rem.8.rked, . "a.11 9four people all over the
'" becauSe' it is 'not' uniformly :spread over the'
'cbuntry. all,except the pure~blooded' Indians~
, population, : but falls ,almost ~mtirely, upon
: are im,mig..an~ or deScendants of ~grants,
'Hispanics and" other national, origin' '
'including those 'who 'came over on the
'Maytlow~;" N.Y. Times, Nov. 6, 1944, at 38.
minorities. Cf. SpWi Steak, 998 F.2d at 1486
(EngiiSh-only 'rule in the workplace may'
~ ~perhaps most immigrants arrived in
disproportionately' affect Hispanic employees);
" ,the UPi~dStates:speaking a language'other
see gerle:rallY NAAcp y. City,'of Richmorid, ,
, thari English., Nonetheless, this country has
'hi$)riCally· prided.itSel( on welcoming
, ,7~4 F.2(fl~46,1356(~ C¥'.1984) (holding,'~
, inimigrants With a,spirit of :tolerance arid
"case involving restriction oriNAACP'march,
against, racist police practices, that' courts'
, , freedom·aitd it is ~s spirit, embodied ,in 'the
'"must ex~ restrictions on speeCh" with
ConstitUtion:, which, when it flags on occasion,
, ' .. coUrts :mUst be vigilant to protect.
particular care when their 'effects fall'
unevenly on different ... groups in society");
In 'clOsing, ,we note ' that, tolerance of
.. ,Tribe, supra, 8t979. Since language is a close
and meaningful proxy for national 'origin,'" ,
',difference.whether "difference in language,
(FN32] 'restrictions on the ,uile of languages , " '/ rellgiQn. ot 'Culture' more generally-dOes, not '
may p1ask d.isCriinination ' against ' Specific, ' , ulti.tnately ex8~ a cost. To tl:le' contrary, the
natioi'4U origm groups ,or. more generally. '
, dive~ and multicultural char&.cterof our '
co~eal natiVist l3E!I).funent. see, e.g., Yu COng ,
,SOCi~ty is widely recognized' as' being among'
Eng v. Trinidad, 27t' 'u.S. 500, 528 (1926)' ,
our' greatest' sj;rengths. Recognizing this, we
"(statUte' plo:tlibiiing 'keeping of account books
,~ve 'not, ,~XCePi for rare repressive statutes
'such, as, ~pSe ~ 'down, in Meyer, Ba$ls, ' ,
i.il 'any 'IanguSge oth~ 'than English or
Spanish denies equal, protection ,of raw ~
'yu.COng Eng, and Farrington, tried to comPel
Chinesem~rcltants);Lau v. Nich9ls; 414 u.S;
immigranLdo give 'up, their native language;.
56~,566~69 (1974) (recOgnizing right Under
" instead, we' have ~ri.OOuraged them to learn'
Title VI ,o{'the Civil Rights Act of 1964,42
. 'EIiglish.TheA.nZona re~ction on Iangu8ge
U.S.C. '~ 200~ci,;' of,nd~ ,-English·speaking : '
, provides .no encOuragement, however. only
Chinese . . L"l' ',cnts,"to, ',receive, bilingu8I
, compulsion: as 'sUch,itis unconstitutional.
compensatory' educatioh,becauSe' "students
, who do not tmderstand English are effectively
IV.
'foreclosed from any ine~ education");
No~ ])amages
Asian Anlerlcan Busme'Ss Group' v. City of,
Pomona,: 716 ;. F.Supp.· 1328,' 1332
Finally, we must, consider the, question, of
, Yniguez's'right to n9min8.l damages; The
(C.D.Cal.1989) Oaw' ~stricting use of ,non·
, English alpL.:betjcal charactersdiscriininates
Si!lte of ArlZona eXpressly waived'its'right to
onba&:., ; .lriationaI origin); Hernandez v.
, asSert the' Eieventh A.tDendment as a defense
to theliWara'()fno~ damages. In Carey v.
F.rlenbusch# 386 F .. Supp.752, 755-~
',Piphus; 435 U.S; 247, 266-67 (1978), the
(D.~.1973) (tavern'sEn~lish-only' rule '
, xxvm's' overb~eadth is
'. Co,:l~. ·~West 1995 No claim to orig. U.S. govt. works
�Page.28
---F.3d····
(Cite as: 1995 WL 600877, -7 (9th Cir.(Arlz.»)
leading case on thi~ issUe, the Supreme Court
held that' plaintiffs in § 1983 action' were
entitled to 'nominal damages, for the
,deprivation of their due process rights. even'
without, proof of actualinJiJry. The Court
explained that:
'
,
.
, [c]ommon.law courts traditionally have,
vitid,icated deprivations of certain absolute
rights that are not shown to have caused
actual inJury through' the award of a
nominal sum of money. 'By Iilaking the
deprivati()n of such rights actionable for'
'nominal d.amages without proof of actual
injury, the law recognizes the importance to
organized .society , that" those rights be
scrupulously observed.
'
!d.; see also Lokey v. Richardson, 600 F.2d
1265, 1266 (9th Cir.1979), ~rt. denied· 449
U.S. 884 (1980).
'
a
Therlght of' free speech, li.k(;!' that of due
process of law, must be vigorously defeDded.. '
Indeed, the' proiection of First Amendme~t '
rights is centr8I to guaranteeing society's ., ,
Capacity for democratic self·governIJ:!.ent. See"
'Meiklejohn, Free, Speech and Its Relation to
Self·Govern:nleni (1948); New York Times v.,
'Sullivan, 376 U~S. 254, 269-70 (1964). Thus,
even without proof of actual ipjury, Yniguez is
entitled to nominal damages for, prevailing iIi
an action Under 42 U.S.C. § 1983 for the
deprivation of First Amendmexdrights. ' 'See
Nakao v. Rushen, 635 F. Supp. 1362, 1364 n.5
CN.D.Cal.1986). [FN34]
V.
Conclusion
OFFICIAL LANGUAGE
1. ,English as ' the Official Language;
Applicability. ' '
"
'
Section 1.(1) The English language ,is the
official language of the State of Arizona. '
(2) As the 'officiBllanguageof this State, the
EngliSh limguage is, the la.ngUage of the
·ballot, the public 'schools and all government
'
'functions and actions.
(3) (a) This Article applies to:
(0 the iegis!ative, executive and judicial
branches of government,
(ii) all political subdivisions, departments,
, J agencies,
organizations, , a n d
UiStnimentalitiesof this, State, including
local governments and muiucipalities,
,(iii) an statutes" ordinances, rules, orders,
'progratns and policies,
,
(iv) ,all, government officials and employees
·during the 'performance of 'government
bUsiness.
(b) As used in this Article, the phrase "This
s:t8te 8nd all' pOlitical subdivisions of this
S~te "'shau' bu:lude everY entity, person,
'action or item described in this Section, as
appropriate to the circumsta.tlces.
. ,2. Requiring TIlls St,ate to Preserve, Protect
'8Jld E:rihaDce English. '
Section 2. This State and all political
subdivisions, of thiS State shall take all
reasonable Eiteps to preserve, protect and
enhance the role of the Eng1.isJt language as
the 'official language of~ . .te of Arizona.
3. Prohibiting This State from Using or
Other Than
English; Exceptions.
·s,ection 3.(1) E~pt as" provided . in
R.equlring the Use of Language$
We affirm the district court's judgri:tent that
Article XXVIII of the Arizona Constitution is
facially 'overbroad and violates, the First
Ameridment, and tb.4tt the article is'
unconstitutional in its entirety. We reverse
and rem8.nd the district court judgment
~far as' it denies 'Yniguez an award of
noIninal damages.
-8 AFFDiMED IN PART, REVERSED IN
J>ART AND REMANDED.
APPENDIX
,ARTICLE
XXVIIi. ENGLISH AS THE
SubseCtion (2):
.,
.'. r{~;' :).
11
I,
'.
(8) This State 'and all pOlitical SubdivisiOns
of this State shall actin English8nd no
·other language.
"
(b) No entity to, which this Article applies
shall make or enforce a law, order, decree or
policy which requires the use of Ii language
" '
.
other than English. " ,
· (c) No governmental d~filn( ,mall ~ ,
, valid, effective or' enforceable' unless it is in
. the EngUsh language.' ,
.'
(2) This State ~ all political subdivisions
Copr. C West 1995 No claim to olig. U.S. govt. works' .
\VESTlAW
. ..'
.
�......
, '(jje,.
Page 29
··-F.3d·--
(Cite as: 1995 WL 600877, -8 (9th Cir.(ArlZ.»)
,
,
'
of this State may act in a language other
"than English under any of the followiilg
circumstances:
'
, (a) to. assist students who are not prOficient'
, i n' the ,Engli£ili 18.ngwige. to the eXtent
necesSaryiocomply With. federal law, by
givmg ed.ucational instrUction in a 18.nIDJ.age
other thanErigllsh ,to provide' as ,rapId as
possible a transition to English. '
'
(b) to cotnply with other federal laws.
(c) to teaCh listudent a foreign language as a
part of a required orvoluntai'y educational
curriculum;,
'
,(d) to protect ,public health or safety ~
,
(e) to ,protect ,the rights of crimirial
defendants or victims of crime.
4. Enforcement; Standi:ilg. .
, section 4. A PersOn who resides in or does
buSiness in this State shall have' standing' to
. bring sUit to emorce trus Article iri. a court of
recorQ of the ~te. The Legislature l1l8.Y"
enact reasonable limitations on the time and
ma.nMr of bringing 'Suit under'
Subsection. '
under the rubric of substantive due process does not
cOntrol our Consideration of it-and, in fact, the
"Court subsequently explicitly·recharacterizedMeyer
'as p'ro'teCUng First' AMendment freedoms. ' See
Griswold'v,' Connecticut, 381 U.S; 479. 482
(1965); see 'also Ep~rs.;~, 393 U.S. at 105;06
(first Am~ndmeDt case consideriOg Meyer, as
"relevant but. noang that it ··was decidtd ~fore the
Court exjuessly:applitd the specific, prOhibitions of
the First ArDendmeht to the States·); YaSsky,Eras
of the First Amendment, 91 Col. L. Rev. 1699,
1733 (1991) (describing Meyer as First Amendment
~s~); Tribe, AniericanCoDstitutional Law 1319~20
ad ed~ 1988) (no'ting'that Justice McReynolds
'~rote 'Meyer' '[u1sing the~ools of his time/' but
that iiba's been reinterpreted as embodying First
A,mendment principles).
FN30. The'dissent in Banels v~ Iowa, 262 U;S. 404
which applied eqUally ,to Meyer: 'strongly ,
emphasized this point. 262 U.S. at 412. The
majority, however. remained uhpersuaded that these,
concerns outweighed: 'the . fuOdamentilrights at
isSue.
(t'923),
this
.
.
.
~31.
FN27. The alternative is. of course, to apply the
strict scrutiny test: See Rutan. 110 S. Ct. 2735 &
, n.4. See also disCUssion !hfra at 12737-39.
FN28. The dissenters concluded that it is wholly
irrelevant whether the restrictions at issue are'
justified on the basis of the -employer- mteres~ of '
efficiency and effectiveness. or broader mterests. ":
See id. at 2751 n.3 In their, view. there is -no ,_
, reasOn' in policy, or principle" why the governnlent
should not be free to 'further even its ,broader
interests through appropria,te restrictions on
employee speech. Id.
FN29. 'Jbe fact, that th,e Sup•.:iY.c Court, ,>::iding
these cases in the 1920s.s!l'uckdc-wO the lang:'age
restrictions in ~eyer and 'fokushige as violative of '
due , process. does not, ' lesse,n their relevance.
Substantive due process was the, doctrine of choice,
for the protection ,of fundamental rights during the,
first part of this century;, although it bas now largely
been replace~ by other' constitutional doctrines:
See, e:g., Halter v., ,Neb:,;:~ka, 205 U.S. 34, 42
(1907) (similarly f.l1m", ':,ee speech claim in terms
of property rights). It tho~!dthereforf' be cle:u that
the Court,'s formal labeling of the ~ght as falling
Copr.
C
West
199~ "0
.
The dissent treats Guadalupe Organization, a ,
case' diat does not· even discuss the First
: Amendment' and which fOCused on the' right to be '
"instructed iii a foreign language 'about a foreign
culture, as the touchstOne .for decidmg. this First
, , Amendmeill challeng~. 'We agree with Guad3lupe
Organization to the extent' that it sets forth the
advantages. that accrue from enCouraging those
liVing in di~'nation to leamEitglish ~nd to share in'
our use ,of a common langUage. At the same time
we recogniU. ,that cultural diversity and tolerance of
differenCes, ~ aniong, our nation's greateSt
strengths, as, is ,our unwillingness to 'impose
uniformity or orthodoxy by fiat.' This ,court's
position' reguding linguistic' and cultural' diversity
,~dthe,constitutionally-permissible means' for '
promotion ofour growth as a unified nation are the
'ones expressed in this majOrity opinion, and the
concurrence ,of Judge' Brunetti whose separate
statements, on this point we fully endorse. We
diSapprove, however. the part of, Guadalupe
Organiza'tion on which the ,dissent relies' and which
ii quotes at pages 12779~81. By doing so. we do
Dot mtend to unsettle the holdirig of our eariier
decision; the question resolved ~ 'Guadalupe
Organization is not before us, and we do" not
consider the part of the opinion we disapprove
claim to orig. u..S: govt. works
,
�.
···F.3d····
(Cite as: 1995 WL 600877,-8 (9th Cir.(ArlL»)
Page 30
[
essential to, lhe, conclusion 'the
, Organization coun reached.
Guadalupe
FN32. ,Cf. Hernandez v. New York, 111 S.' Ct~
1859; un (1991) (noting lhatin, some Contexts
, proficiency in panicular languages might be
"treated ,as a surrogate ,for race"); but cf. Carmona '
v. Sheffield, 475 F.2d 738, 739 (9th Cir.i973);
Soberal-Perez v. Heckler, 717 F.ld 36,41 (2d
Cir.1983), cen. denied, 466 U.S. 929 (1984).
BRUNETTI, C'
·t Judge. concurring.
,~9 agree,4t ~icl~ ~.
I.
of the
Arizona COIiBti,'
'tu,on 18 faCIally mvalid and I
join in ,the Duijority opinion.
I Write ,
, separ~tely ,. to e1:phasize' that the article's.
, . unconstitutional
eet on Arizona's elected
, officialS wouid . ne be suffident reason to
, . Strike the provisio down.
I;
':".
..
'
FN33., We note, once again, a strong 'similarity
between lhis case and, Meyer.' Because lhe
invalidated ,Nebraska starute to' a large extent
lhe
substantial, German·American
targeted
c:;ommunity in lhat state (and was e1l8cted in the '
wake ,of World War I). Meyer has been viewed asa
precursor to modem equal protection doctrine.,
Tribe, supra. at 1320 rd3;Hernandez. 111 S.Ct. ,
at 1873. This reading of Meyer is strenglhened by
the fact lhat one of lhe laws struck down in Bartels
v. Ohio. 262 U.S. 404 (1923), its companion case,
specifically sirigled out the German language for
repression. See Bartels, 262 U.S. at 410 ,n.2
(statute allowed teaching of non-English ,languages
as elemeritary school subjects, "provided, that tJle
Genrian languageshaU not be taught"). Even'
, Justice Holmes, wbo olherwise dissented from the ,
majority opinion,'agreed that' that starute was
'unoonstirutional. Bartels, 262 U.S., at 413 (Holmes"
J., dissentmg). 'The speech of unpopular groups, of '
COl,lrse, often meets wilh hostility and repression,
lhough it is ,more commonly lhe niessagethat is
targeted than the language in whiCh it is
conuriunicated.' Given the link betw~n' unpopular
speech and unpopular groups,' it is, not surprising ,
that ,even some of our most, veoerable First
Amendment precedents have an, (albeit implicit)
,equal protection' component. ' See, e.g., Bameui:,
supra (Jehovah's, Witnesses); New York Times v. '
Sullivan, 376 :U.S. 254 (1964) (black civil rights
activists). '
,FNS4. Indeed, :an ,award of nom~l damageS in ,"
re.Sognition of society's interest 'in vindicating the'
\disputedright is singularly appropriate in First
, ; Amendment overbreadlh cases such as lhiS, for a
successful plaintiff, in ,an overbreadlh case bas'
convinced lhe coun to strike down a law' that
w,ould, if left standmg, chill lhe constinitionally
,protected' speech of large numbers of olher
" ,l.;::;;;",bers of society~ "
"
'
Copr.
C
As indicated· the m8jorlty' opuuon, the
govenunent' 'em, loyees affected by the
article's
'uncoF.itutional
limitations
outnumber the Ie~ected officials affected.
,~.o~ever, thee~nt of the damage caused'by
,Article ,XXVIII·_~ restrictions, on elected
officials" is 'nOt ' : r": : ,ed, by the fact that
",
their population is smaller than that of
government empl ees.
,'~offends
, Article.
the, First
Amendment
ly because it attempts to
regulate ordi.nary 'litical speech, but because
it attempt,; to ,,' "'pulate the political process
by riigulatmg the speech' of elected officials.
'Freedom of - " , is the foUndatio~ of our
deinocl1ltic'
ss,' and the .language
restrictions ,.t\rticle' xxvm, !Jtifle
informative inq " ,and advocacy by elected
" officials.
'By restricting the free
'communication ,0 ,ideas, between elected
pIe, they serve, Article
officials and the
xxvm threatens the very survival, of our
, democratic society.
no:E'
To begin with, ,Article xxvm interferes
with the ability of ' .dates Jor :re-election to
'CoDimu1ucate witlt '.voters. ,These' First
, ,Amendlnent'protef~ris~e4uaIIY applic8ble ,
to ~ candida., ~tsimplythose running for
. re-election. However, I address sPecifically
'Caiuiidates num.lng for re-election because
Arti~e' XXvIII onlt affects elected officials.
'be able to comm.~te
with voters in 0, er for voters to make an
informed decision bout' whether to c8st their
ballot for that
date. 'Indeed, the Supreme
Court has said:
'Legislatorshav, an obligation to take
West 1995 No ~ ti, orlg.
U.S: govt. woiks '
WESTLAW
�"<'
"G(,;)
Page 31.
~~·F.3d"- ..
(Cite as: ·1995 WL 600877, ·9 (9th Cir.(Arlz.») ..
speech.
positio~
on controvel1lial political' questions
so that their :constituentscan be fully'
iilfol'llledby them, .and be better able to
~ss 'the~ qUalifications for office; also So· '.
they "maybe repreSented in governmental '
debates by the person: they have elected to
'represent them.
.
Bond v. Floyd, 385 U.S. 116, 136-37 (1966).
COmlnunieatiQn ..between candidates'. and
"voters is at the core .of all political, action:. The .
First "
Amen4ment
prevents
.the
disenfranchisement
that 'results when
cimdidates for re-election are disabled from'
. communicating with any ~~ group. .
, Article xxVIII not only interferes' with a
voter's ability to assess candidates, but it also
futerferes. with offici~' ability to· ·represent
theircQnstituents once they areeleeted; .' "The
manifeSt functic;rn of the First Amendment in a .
representative goverm.nent· ·.reqUiresthat
legislators be given the widest .l.a titu9-e to
. express their vi~ws
issuesofpoliey."· .Id 8.t
135-36. Electedrepn!sentatives cannot fully
Serve their constituents if "they are precluded
.froni fully expressing' their' views. to, ~. and
'1~~ the views of; those constituents:' ·The .
First Amendment precludes .asueeessful·
,electoral nlajority from~stricting pblitical
communications with a i::er.t8in segment of the
electorate.
'
,
.
on
,
"
·10 ·In addition to interfen.ng with voting "
and political representatio;n,' Article. XXVIII
attempts to reco~ the pOlitical,
landscape ... Language is ::at the· foundation of •
thecu1tUr:a1 'aDd ethnic diversity in' oUr
democratic and political processes, and is
, • inextricably intertwined therein.
.Article'
XXVm attempts· to impose 'political
ci>nformitybyrequiring. ~t .tlte r,~'p.,
. <language be Used for all Politi::?'" ".1J';:
govern:inental dialogue.
.see Legislative
,Council Argunients FavOring'PrOposition 106,
8.t 26 (deSCribing the. ~ed to ,"reverse the
.trend" of "language' rivalries" by requiring
discoUrse in English only).
"
'
.It does not take ,much "judicialpredL-ilon or.
. asSwnptionl,]" Broadrick v. 08k.'~i.'; ua, 413,
U.S. 601,.612 (1973), to Conclude that Article
XXvm- imPerinissibly Chills elected officials' .'
. Unde,r prbiCiples'of tmnt.party
'standing: , in the First ~endmentarea ..'
YnigUez's .overb ,adtb. cl,aim permits " this '.
..
" . panel toe~,'de xxvm'simpact on
elected' officials.'· ." e :id. The harm to society ,
.' fro~· such 7ilncOl'tutiOnal interference with
. . the' demouatic' . . 8srequiresthat .the .
'~ b4istru.·cit. O.Wn as .taCiall.y overbroad. '.'
.. ~cl~
, Accordingly, 1.' ould hold, that ,Article.
xxV:rii:'s 'unco . ·tiltionalrestriction on
'. eleetedoftlcials',
is sufficient. to find
facial overbreadth:
II. ,
: That beil;!g sai • I agreq. with the other
memberS of the .ajoritYthat the article is
also,unconstitutio. and facially overbroad
,for the independent 'reason that it restricts the
, . sPe,ech ofgo.'ve
ent employees, such as
· Ynig\lez; .' 'While
feel there may be' some.
· tension .' between the public' interest in
. ". receiving Yniguez' ,public services in Spanish
,as d~Scri~dby
e, majority, and oUr prior
cases .which hold that there ,is no right to
receive, governme .' t services in a· language
other ~ Eng' . our holding t6qaydoes not
.conflict', With· those' :prior .cases. See, e.g.,
, Carl:rionav.Sheffi~ld. 475 F.2d 738, 739 (9th
Cir.l973)·(ho right Ito unemployment notice in
,spam
. . . Sober.a1ferez v,. Heckler"717 F.2d
. .. ·sh);
36, 4143(2dCirl~983) (no right to Social
.. Security notices
services in Spanish),cert.
.' deniea, 466' U~S. 9 (1984).
:~ . the majority
y .describes,we are
'only'coDsidenng .
interest of the public in
. 'x:eceiving ~. w . n government .employees
exercise tlleirrlgh to utter such speech, and .
· we do not create' inliependently enforceable, .
"i'ublicng)tfto, iveinforuiation in another ..'
.• ·l~.'e.. <>¥r coPm.Cderatio.n or . th'.e public's '.'
,
..
, interest·, iD. reeei'f.ng.·.yniguez' s speech .is .
dictated by theWaterslPiekel-ing test~ 'Under
. the. Waten¥Pi~ test, we mU:St balance "
'the mtereSts of thi[employee];'as acltizen, in '.'
eoxn:m,enangupon ,ma~rs of·public'·. concern . .
and. the .¥reSt of tlte.State, as 8#,employer,
. in prOmO~ the efficiency: of' the ,public
'" serVicesitperfo . throlighits employees.' ' ,
:United StaU,:!!! . v. . National : Treasury
EmployeesUnioll; 15 S.Ot. lQ~3, 1912(1995) ,
J
.Copr. 0 West 1995 No claim t('
WESTLAW
�---F.3d••••
(Cite as: 1995 \;\~1;600877,
Page, 32
·lO'(9th.~r.(Arlz.»)
(quoting Pickering v. Board of Ed. of Township
ljighSehool Dist., 391 U.S. 66a, 668 (1968))
·(alteration in original). The public's interest·
in receiving YnigUez's speech ,weighs in :ori .
. '.'
."
both sides of the test.
,-11 speech touches a matter'. of' public
concern if thecommupity that cOnstitutes the
. speaker's audience has an interest in receiving,
that speech. C(. Conriiekv. Myers, 461 U.S.
138, :148' (1983) (finding that certain speech
was tWt 'a matter of public concern because
"[speaker] did not seek to inform the public");
ida at 14~ (relying' on this country's
"demoJ).strated interest" regarding the subject'
matter of other ~ech to conclude that the'
Subject matter was. one of public concern). '
When determining whether an employee's
speech addresSes .a matter. of public concern,
we look to "the content, 'form, ,and 'context of a
· given statement, as" revealed by the record as .
a whole." Id. at 147-48. In this case, the
parties stipUlated tluit Yniguez communicates
,,~ Risk Man8gement DiVision's dispositions
· of. malpracti~ claims in Spanish to persons
only able to speak in Sp~, persons
who
· whose English is not well-developed, and
persons who are unable to understand the
· English language to: comprehend the legal
· imPort of the,' document ·they are signing.
Those .e1aim.ants clearly have an interest in
receiving info:nnation about their claims in
Spanish since they would not otherwise' be
able .touiJderstand the',' information.
Therefore, .Yniguez's Spanish .languag~
· commum~tionS touch matters of public
concern. .
to mono·l.ii'lgUal Spanish-speakers, or people
wPOse. "English l~e [skills] were not
sufficielltly well, veloped to understand all of
the EIlgIlsh l ' e . expressions and ideas
which ·lYniguezJ . desired to communicate.;'
, Use of sp8niSh under these clrcumstan.ces. as
. the p~es StiI'P d,.' "contributes to the
, ate.
efficient operatio ofthe·State.. "
of this case, the public
Under the. fi
interest in Yriifez,,; use of Spanish is' a
'necessary consideration under the Waters!
Piek~ te~.' Consideration of the public's
interest' in redeiving Yniguez's Spanish
lariguage commJ.nications is only, for the
':. purpOse of estab 'fsiring her right to speak, not
~>f establism.ng'
public's right to receive.
Yniguez's' Span,i ~speaking audien.ce has an
iliterestih liate
. to her Spanish-language
'sPee~ aDd tha interest helps. define her
. right to speak' Sp~ Nowhere is it
implied that he.r fludience has a right to. hear
her, or any other government employee, speak
.
in Spanish.
e
are
REINHARDT, Circuit Judge; concurring
specially.
Judge It,ozinski s separate dissent requires
. separate co~en; In the latest eh.apter of his '
. erusadeagainsf; ~ use of languages other
than. Englishm. pub~c, it is what Judg.e
Kozinski does no ~Y that is most revealing.
My' learried C()ll~' ,who is surely expert in
these.. ;tters.
'.
constit¢ional...~,• ignore.8 numerous nonsts of the Completely the.
English speakers There is nothing novel
about the fact
. ' t the interests of. the
.audience as w~1l-as Of. the· speaker are
... '.
. pro~ by the Ff.rst Amend.ment. YetJudge
. KoZWSki' .does no~ even. mention, . let alone
. ~s· Virginia '~te Bd. ·of Phaimacy v.
: Virginia Citi.Zens€ . ilsuriter·Council. 426 U.S.
4.,78, (197
..6), or nited States v. National
. Treasury Employ sUnion; 116 S. Ct. 1003
(1995),declsionS I tmake it clear that in
dealing with, F
Amendment questions we .
must .consider the needs of the audience. In
fact~ theconstitu ..
iriterests of.the 'p:ublic
are . at their heig. t when its members seek
info~.ation of
~ importance from the
government. In the end, then, it is the'
m a o
' . '
,'~'(·On,·.the
..'
':effieitHlCy ,side 'of the Waters!
...:::Pi~~~::1ii:1 ball!h.ce., .thepublic's interest in
'" "";.'''':''\'.i'.:rlrlr 'i'nigUtiz~B cOmmunications· is 'once
., ·}::is.>~i'IDl impOrtant f~ctor. If a recipient of
:' Yniguez's informjltion did not have an,interest
in receiving' the' 'In!ormation iD SPaniSh. it·
would not ~" efficient for. Yniguez to
communicate .lrith .that persOn in. Spanish.
.' For example, ifYniguez'saudienee was ,a'
m"no-1.ingu8I 'Eng~"spe8ker~undenial>ly it
',;,",'juld be ineffieient for her to talk to that ,
"'",perso11- in Spanish. But that is not the
situation .here. :. The, partief\, iri this ~
stipulated t.rul~.' ,:~,~;,;:::u,~z only speaks Spanish '
,
·,
3
ruu
,.
..
"
'.
t
.
'J~opr,'~Westl996 No claim to orig. U,S. govt.wo ks
.
,
�Page 33
-·F.3d···· ' .
(Cite as: 1995 WL 600877, -11 (9th Cir.(Ariz.») .
.interests of ilon.English speaking' persons,.
often poor .~ . uneducated, ~t are so
compelling here.
. The difference iletween the majority's view
, ..... . . . '
!.
.
- and ~udge.KoZinski's is simple. The' majority
SaYs that :Wider t)te First Amendment there
limi.~. ~wha~~e. governm~mt can· force'
" its·eWploy~.or ?~ci~ to sa! in ~ course·
. " ~f. ~o~ ,theitofficlal dutles while Judg~ .
t there are none. To me,
J{oiinski says
nt pOwer in any form is a'
unilmitedgove
foreigltilotion .
.
,
... are
-12 If Judge Kozinski had his way, bilingual
govel'Illri~nt, clerks would nOt be able to adViB.e
persons 'whocan r;peuonly Spanish..or
Chinese ~rN avfQo·how "to apply for . food
. stamps, or Ilid for their children,' or
.
:.
, unemployment or disability benefits. Public
, Judge Kozinski does Abraham Lincoln no
employees would be prohibited from helping ,
non.EngliSh spe'aking residen~file.complaints
honor by se~king , enlist his words in support
of'~:'mean~sp" ted, nativist measure-a
aiainstthoSe who i:n:istreat them or' who'
Violate their rights or, even from helping them
meaSUre that wo d create so much division
'" 'ahd ill will
·.that would 'so severely
secure driver's licenses or Permits to open
small businesses; Bilingual traffic officers
,penalize thoSe amp~ us who are unable to
-would not be able to give directions to nearby
colllDlunicate in Elnglish.' The end result of.
me,dical' clinics, or Schools.' Migrant farm
Judge KoZiru;ki'segal approach wouid be to
'ptimsh peoplewh, are,not as fortunate or as
wprkerB who .cannot ~8k EngUsh would find
· themselves .cui' off from almosi
government
well eduCated as . e-people who are' neither
'. able' to wrlte for: 'norread the Wall 'Street
assistance. bY an iinpenetrable Jangwlge
barrier.
Recent imJnigrants in general,
'Jourruu,~inde lVould have little cause to
do either;
including many who fled' persecution, would
" . find their lives in their adopted land unduly
· harsh aitd bewildering, Yet, not a word .of
, Nor does Judge o~ advance his cause
suggesting that hiS
concern for the less fortunate 'among us finds .' '. by disillgenuo
its way into judge· Kozinski's constitutional
&rgumentis a.' ted one, that the Arizona
analysis.
.
. '. -i~tiab,.·ve~ght be, uruawful for other reasons
just not on First . endment grounds, Judge
,J{ozhiski,has '. reviously . argued that
At the same time' that Judge Kozinski
c~ously ignores the interests of' peOple,he
lartguages other lth.an English should be
~tches eagerly: to place the powers 'of the ,•.
'banished from the public &:rena. He openly
government, in its role as speaker, beyond the·
favors conformity over diversitY and would
reach of. the ConstItution.: Indeed, it is the ,
"preSerV{e] native tOngues and dialects for
.. Private ~ family gtt,therlngs." Gutierrez v.
· .rights of the. governnienttbat 'Judge KoZinski
stresses' at every. opportimity~. . If Judge
MUll; Ct..orB.E. J dicia! Dist., 861 F.2d 1187;
Kozinskj.·~ his druthers, public employees
'l~93 (9th Cir.19 I ) (Kozinski, dissenting).
.' 'Would be stripped of all First. Amendment
. Judge Kozinski's
w of the rights of non·
rights'whilepenorming their governmental
English speaking ~rsons would make the
, 'functions. [FN1] There would be nOthing that '.
Statue of Liberty eep. The divided house
"'l,,,, .Judge Y,Una . fears is a 'world in which
Government·fromthe tiniest'municip81ity on
· up:.could not' compel its employees to say, no·
·~~allish: C1iiDese.~,lorNaVajo.~· heard in
'. matter how' raciSt or abhorrent, aitd nothing
p~blic; c world ~:which individu8l'liberf;y
that Government could nqt fire its employees
ra~r than govT'nt'manda,.tedorthodoxy
thrives.
'. '
".
for saying, no matter how innoCuous. His
.
.
.
.
would be an Orwellian world in which Big'
."
.
.
Brother could compel its minions to say War'is
" "13 .fudge KozinSki trots out a parade of
horribles that he' I. will come to haunt us
Peace and Peace is War, and public employees
'WoUld be helpless to object. It would not
if' we 'do, .not . aCCept.. his ,absolutist,
. matter whe~' government had a legitimate . ..... a\lthoritazi.8,n vie. . All ,his examples are
,abrurd. No oo~' this coUntry would protect .
· purpose or even :whether it had a pUipose.:at
· all.
.
a government emp oyeewho adopted one' of
an
11
E'
·Copr. C West 1995 No claim to orig. U.S. go~rt,. "lor'
",
�Page .34
···F.3d····.
(Cite as: 1995 WL600877, *13 (9tbCir.(ArIz.»)
· the outlandishstanees that Judge. KoZinski so
casuiStically suggests. Were we to withhold·,
rlghtsfrom individuals because clever judges·
·coUld col\iuie up hypothetica1examples· of
. frivolouS .law suits, there would soon be no .
rights left at all. Scare tactics are hardly a
novel teehnlque in. my talented colleague's
· arsenal of en bane~ssents. Recently, he
warned that the' majority opinion in another
en bane' case . was' a disaster of nearly
unprecedented proportions, in .fact .a
"tsunami." 'u.S: v. Gaudin,.28 F.3d 943,955
(9th Cir.1994) (Kozinski, dissenting).
In
Gaud.i.ri, he wrote: "It's not every day,' ~r
all, that· we .provoke a. conflict with every
o~er regional circuit, defy Supreme' Court
'authority, implicitly overrule several J.i:iles of
·law·thereby creating a spider
our oWn
web of secondary circuit conflict.... " Id. The
· majority held firm. The decision tha.t Judge
Kozlnski . so . vehemently denounced was
affirmed soon
by the United States .
Supreme Court ,by a' vote of 9·0. U:s. v.
Gaudin,'U5 S.Ct. 2310 (1995).
case
thereafter
protection prov' ions· that they fought for SO long
and' so, bitterly. See Judge Koz~ki's dissent. in
Samlers v. Park rDrilling Co .•, 91l,.F.2d 191.204
(9th Cir.I990), which)udge KozinskiadvQCated '
upholding pe . nent discharges of employees on
. the basis of.me suspicion, notwithstanding a just.
cause·for-discha ge clause."
FERNANDEZ, Circuit Judge,: With whom
Chief JudgeW ace· and. Judges Hall and
Kleinfeldjoin,' nting.,.
The State of . na, through its uutiative
·Process, added~
'cle xxvm to the State's
d6nstitUtion. 'Th t Article made English the
offiCial language'· f "the public schools and all
goverp.ment ru.nfons and actions. " ,Ariz.
Const. art.
§ .1(2). It also directed
ihatthe State and all;' of its· political
$Ubdivisions " " a c t ui English 8nd in no
.. ' other. language, except in a handful of
,instances. lei at § 3. The Article applies to
"an. governmen offiCials· and employees
'dllrini . the . pe o~. of goverirment
·businesS.,; Id. ,a § 1(3XaXiv).Maria.Kelley
F. Yniguez[FNll OesnOt1i.ke Article xxvm
·as a matter' of
.ey. I can understand and
. sympathize with i t. It 'is when she goes
beyond the re~1 of poliey and seeks to show
that the' Arti,cle ~olates the First Amendment .
'to the' United S· tes Constitution that she
"goes astray~'It is
that we part company.
It
The .true horror of this ease is what could .
happen if Judge Kozins~'s view prevailed.- .
Goverriment employees could be compellea to '.
pari'ot raciSt and sexist' slogans, to. hurl·.·· '.
hateful invective at ··non·English speaking
people .asking for' assistance". to . publicly
~eclare their loyalty to political parties, and to .
· bow toward the nati.onal or state capitol three
ect, proCeeds from the
*14 She, in,
times daY'and the First Amendment would
.. fundamentally
edassumption that while
offer Uteinno protection whatsoever. Under .
Judge ,Kozi.l:uiki's approach, non·English
penorming gOY . entbusiness' an official
[FN2] or .emplO ee has mUch the, same
·speakers would be relegated to seCond class .
statUs,' deprived ofinformatio~ they
freedom as a pri. te citizen. . That leads her
· 4,esperately need to meet the basic necessities;, : . into a thicket; of incOrrect assumptio~ and
of their dail,Y ,:'::.ives, ...
grievoUsly'"
assertions about the nature of her speech
h8ndieap-perl," i:~t.;;ihe;:r'effo.rtS·t.o.pursue ~'
·rights,·the,nature of language, [FN3] and the'
Ameries.:.1 dl~~llt}'·-"It·· woUld "be a sad day.
rights 'and duties f the State when it chooses
, uldeed for the:Contrtitution were we to 'betray' , "'to speak for itself. As a result, she has left the
'proper analyti
pathway and become
,'our nation'shlsto;Y and uphold a measure'
" hopelessly lost in forest of her own hOpeS.
'. that is 60 alien to Amerlca's mOst baSic
traditions.
'.. '
.
.
, I believe that a. laiively .brief explanation
FNI. I do~·nt mean to/suggest dlat ~y worthy' .
: of the relev8.ntristitutionalprl.nCiples will
collea.!:,ii;w('uld . discrimmate againSt public'
per path 8nd show that
adumbrate the
employe.;...; They .would· fart· 00 worse in his'.
. Article ~ oes' not violate Yniguez's
regune than private ~mploy~s~Judge Kozinski'
~,AmeDdme¢; ·ghts. [FN4] In 60 doing I
would strip the latter'~f tbe:;:;~\~'ofthe basiC jOb
willassum.e, wi out deciding,that Article
a
viti,
,
". :< '.: . ~
, "C~~,'~";"';:(bU~:1995' No claim to oIig. U.S. govt. w rkS
,
,
.
,>--""
•
1
',"
-
•
�···F:3d.••• ,
' . '. .
;. .
. . ...
Page 35
(Cite as: 1995 WL600877, ·14 (9th Cir.(Ariz.)))
.
.
'
.
'.'
. xxvm is just as
broad as itappem on its " '. restrictions on po 'tical .aetion,we have not
· face and that itwill;'indeed, preclude Yniguez
.eritb;ely abandoru*l' even that concept. It is .
. al.sO
that"·
'the theory that public
and ~ther empioyees ,and .officers of the state
from spea.k.iDg' in a language other than,';
em.,.,PlOY.'. me.nt.
..
~ be. .denied regardless
English when' performing 'state business:.· . maybeSlibjeCted ma...y conditions. .altogether .
:' ()f how ·UD.reasable, '. has . been miiforinly
unless one oftliespecial exceptions applies."
reje~.' "Key Shim v. Board of Regents, .
There can .be', .nO doubt that a· publi~·.
385 b.S~589, 605~, 87~. Ct.,675, 685,17 L.
. Ed. 2d' 629 (19 r7>; .'. see also Wiemanv.
emploYf!e; . like YnigUez,' does nOt have a full '
,tJpdegraff~344 U. . 183, 191.92, 73 S. Ct. 215,
panoply iifreedomB·tOdo what She likes when
" . 218·19,,97 L. Ed. 216 (1952) (oath regarding
she. isperlorming her' job. . On the ,contrary,
join.ing:a'revoluti nary political party). But
the State can' place numerous reStrictions ..
upon: its employees. "'the very' nature. of the
nOneo( this: is' elpfl¥ to Yniguez. for the
employment relatioilship allows .that. . For '.'
eroSjon ofthe restrictions upon employees has
...,
. ,I,
.
example, even ,were it assumed that "the
takimplace' in the area of their activities
'. citizenry' at large has some ,sort of 'liberty'
. w¥1e. the~. are~performing government
.
It.
· iritereSt withiIl the' Fourteenth Amendmellt ill
~Ctions.. Mem
..'p in a political party or
, matters of personalappearanee," an employee
engaging in nongoernmental writing or other·
'.Private activities . 8 not the perfOrma.tlCe of a
may be reStricted unless t.he regUlation "is So
government functi n... .
irrational that it maybe branded 'arbitrary.' '
.
.
'KelleYv.JohltsOn,425 P.S. 238;244, 248. 96
!"15 'The ..di . ".on cuts closer, toth~ bone
,S.- dt. 1440, 1444, 1446, ,47 L. Ect 2d '708,. '.
(1976).
.Similarly. a. citizen's, Fourth·
wh~1l th£!Suprem 'Court's tre~tment of public
. verSus private speis considered. I will not
. Am.endriient privacy. rights may 'be limited at
hispl~eofwork.. See O'Con;nor v. Ortega,
· go. through the e~nsive history of that
480 U.S: 709, 724-25, 1078. Ct. 1492,1501, 94
juriSprudence bee
its details have little to
L. Ed.. 2d ·714' (1987). And even restrictions
d6 With this caSe, . The law, in that area keys
the ~Content ot the ~ch itself.· That is, .
that reach ~yond the job itself to activities ,
w~the spe~Cbo' a matter of pUbliceoncern'
9utsi.de,theworkJ)lacemay be pro~. See
it on a
r of private concern? See, '
.or
Unite<l ~tates Civil Serv. Comm'n v. National '
e~g., Waters v.Ch
' , . ' U.S.
,114 S..
, 'Ass'n'of ~tte:r Can:iers, 413. U.S. 548, 557~65,
'Ct. 1878, 1887. 28 L ... Ed. ' 2d 686(1994).
"93 S. Ct. 2880,2886·90,. 37 L~ Ed. 2d796
.:' (1973) (politicalcampaigIiing or officeholding); .
Here,iheissUe' volves the lalngUage used,
nOt the p\1blic'or p ;vate concern content ofthe
,d.. United, Statesv. Natio~Treasury "
.loyee might well Speak out
laDgWlge.·· An
.Employees Union; _ U.S. _'_',115 S.C~.· "
'1003, 1013·15, 130 L.Ed. 2d.964 (1995) (at, .'
,on a'~tter of pub' . c concern in aDJ language,
liot "senior executive .
· least persons, who
· .or. Drlght '. simply engage in private-concern
· 'grumbling or' puoninany language. The
. offieers, . meJnbersof Congress,' or judges.
'cannot be ,subjected to a blanket ban' on .
language does nO , in the sense used here,
honorariawhen:~ey address. "a public,"
· -change theconten.atall.
'
audience ... outside the workplace. and [the1
. Wh~j;"~,s 1. 'Ort.a .t,however, is the Supreme
content [is] largely' unrelated to their
.'
government employment").
Court~s, descriptio', of the strenit,h of the
govermiieni's' in. rests', and the 'scope of a
It is true that we have come ,some way since" .... goVerDmEmtemp oyee's' First Amendment.
m:volved is not one of
· Holmes, then a JUstice of the Supreme Court . ' '. rights. 'If the
ofM8.sSachusetts, wrote" that "[a' policeman]
public: concern, thr. court ,has left. the matter
may have' a conStitUtional right 'to talk··
. almo¢entireJy iD.lthe hands of the employing
,politics, but he has no.C()nstitutioDal right to
authority. _'\8 thECourt said in Connick v.
be a polieenUul." Mc;AUfiftev.Mayor of New, .
Myers, ' . • :~ tts: i ,i46·~7,:103 S. Ct. 1684~
·Bedf()rd, 29 N.E. 517 .. ,517 (Ml\ss.1892). still·'
1690,75 L. Eel. 2d 08(1983):,'·· ;' " ,
and all, as demonstrated by our.. continued,
.' '[IJfMyers' qUe ionn.8ire'.::anilot be. fairly
'true
1.
~.hi$'
,
use
.on.
,was
ma
em
··are
. .
"
:.' .,'
',
.. '.
"".
'. I
Copr..~ West 1995 No claii:Ji to orig. U.R,govt. works .
"
�.
,
"(~r. ..
-F.3d~--~.
Page '36
(Cite as: 1995 \VL 600877. -15 (9thCir.(Arlz.»)
characterized as. constituting : speech on.,a
.matter of public concern.' it is unnecessary .
for' us . to SCnitinize the' . reasons for her' .
. discharge. . ,when " employee expression"·'
, cannot be fairly' Considered as relating to
any matter of 'pOlitical, social, or oth~.'
concern. to
comInunity. government·'
officials' should 'enjOy' wide latitude in.'
ma.Da.gingtheir~ffiCes, without intrusive
overSight by the'judiciaryinthe name of the
First Aine~eJi~. Perhaps the government
employer's dismissal of the worker m8.y not
be fair, but 'ordinary dismissals from'
govenimeni' service which violate no fixed
tenure or' applicable. statute or r.egulation
are nOt ,subject· to judicial review even if the
reasonS for the dismissal are alleged to be .
mistaken or ~8s0nable.
the
(W]hen a public .employee speaks not asa· :
. ci~n upOn matters of public COi:u:ern, but '.
~ad ,as
emplbyee upon matters only of
p!rsonal uitereSt, absex,t the most· unuSual .
'cirCumstances,. a federal court is not the
appropriate fOM' in which to review· the'
wiSdom of'a ~nnel decision taken by a
public ~gency allegedly in reaction to the
employee'sbehavi6r.... Our'responsibility is
.to ensure that citizenS
not deprived of
furidamental rights by virtue, of working for
. the governmerit; ,this does not require a
.. grant ,of iIrimunity for ,employee 'grievances
not afforded' by the :First Amendnlertt to·
those wh(tdo not work for the State.'
" ,
The Court went onto say that not "all matters
~hicli tranSpire. within . a .government office
. are ofpublicconceni... " Id. at 149. 103S. Ct,
at 1691. See alSo Waters, ._.' U.S. at _ , 114 ..
S. Ct. at 1886-8.7 (1994).
.
.,
an
are
'"
....
.'
. t is worthy ornote Utat 6*~.t)f tfu, '$peectftS '
I
. of p~blic concern,· the emplo::;";,IiO?s not ha~Et '
all' of ,the freedom of ~Ch.. of·a private .
citizen. The gove.rnirient can'Still discipliIie
eInployeein the riame of efficiency and the ..
like if the government'sinterestsin promoting··
those other concer.nBoutweighthe. employee'~;;
iriterest in speaking out. See, e.g., id.,at _._ .: .
..•
.h4S. Ct. at 1887-88;' <'r·.,>iick, 461 U.S. at
149·54, 103 S. .Ct., at i~jl:93; Pickeriilg v.:
Board of.Edue.,391U.S:563~668-71. 88 S. C(,
1731, 1734·36,20 L.Ed. 2d 811 (1968). ,R:;~:;
.the
. from this public. 'concern balancing that
yltiguez seeks', to draw substantial support
· becaUSe,' the S~ haS conCeded that her
speaking in a l e other thaxi English
efficien~.~· But efficiency
would often 'be m
is nOt the pqint
. use this is not a public
·concem.Speaking ; 1. case. Nor. as I have
wd, do I think it exactly' a private concern .
case. In fact, none of the Supreme Court
d~9~ ~g .
public or Private concern
. speech imrqlved an employee who was hired to
· sPeak far the' gove ' ent 8.nd
performed
that ftuiction' in' manner contrary to' her
· instructions.
.
fa
who
.. , I
-16 JIowever, if
were forced to place. this
ole or the other~' I would
· Say that it' is'. m
like a case of ,private
· concern speech. . e sim:ple fact is that the
. ' '.~tate , ,thlough i~ •.':fnstitution, has determined
. ..
that its 'wo.rk w:illj be done in English, and
Yniguez, for her own'private reasons, does not
wish to. obey !hat termi.Dation. At any rate.
uillessone, is tho ughly conu;mttedto the
~Jiomic t!leory,o law., which I am not, oDe
. . mUst agree that ore than efficiencY. drives
· the 'policies of gov mment. Indeed, as most
dictators seem to lieve, freedom itself can be
· very very inefficie I.
.' '.'
."- .
case. in one pigeo
Yniguez neverth less argues that her use of
'oice to perform the State's
. business cannot be r.estricted. It can be said
'that el[lCh la:nguag haS a content of its own
a Diode of expressing
and t.h.8i
ideas. 'Yniguez ~sthat because words are
· the' skiris of ideas, ' ' 'content of what. is said ..
, changes ,as .oDe In. ves .frOm 9ne language to
ano1;her.' lthink 't it ~true, but true to a
limited"
t is sometimes difficult·
enoUgh to make 0 '. self understood in a Bingle
language,'and the . culty can be multiplied
· when ope attempts totransl~te that language
'. intO anOther,' 'How,ver, we ,should not put too
'much weight· on the difficulties,' for it is
,
..
I
.
es are not so protean
· pelluci~ .that
that we cannot '. gIrlze ideas in translation.
Yet, I, will assWne (along. with Yniguez) that,
'the cbment,.:does
to a measurable
extent w~n the ' . lte'srules, regulations, and
rilessages8re ~ed into. a different
language, even . . language is not .pure
a langUage of her
Ia:riguag;. are
extent.."
e
" . , .'
�.':'F.3d--~-,
",
'
(Cite as: 1995 \VL 6008'n. -16 (9th, Cir.(Arlz.»)
Page ',37
'
,
,operato~of anEI lish
content. ,
language radio station
topenirlt a hired broadcaster to broadcast .. :
"hi~tJi~ .~e~ ...") , (Reinhardt, 'J.,
" ~ntini ftom~ni.8l· ofi'ehe8ring enbanc);
Gutierrez v. M 'cipal CoUrt,' 838 F.2d 1031,
10~l~9thCir.),
~genb8nCdemed, 861 F.2d
1187 (1988).:vaeated as moot,490 U.S. 1016,
, l09S,' C.t.'17~6,'lrL.Ed. 2d 174(1,989); ,
If ,that is true. i~ is a 'powerful reason to
uphold Article XXVIiL It is well settled'that
" ~e ,State haS 'the' rlgb.ttO control the cOntent
',ofwh8t it is paying for; it can cOntrol what: is
said by thOl)e, who are acting on its behalf. As
, the S\1preme Court jnit it in Rosenberger v.
RectOr and Visltorsof Univ. of Va.. "U.S.'
, Thus, ,to thee~nt that language involves
, ' . ' . 1158; Ci.2610, 2518-19,132 L. Ed.,','
'
"
2d 700 (1996):
,cOntent, the Sta~ay Choose to dirEict what
[W]hen the State, is the speaker, it 'may
that cOJl~ntmUst be~ Moreover, it can hardly
make content-based choices.
When the
be doubted that 'e State can even choose to
, fc.i~r" a ~8rticu,l' ,'language to 8ome~xtent.
University determ.iries'the content of the
education it,' provides, i:t' is the University ,
'N; the' Supreme Court said 'in Meyer , v.
, spea.ki.ng, 'and' we have' permitted ilie
Nebrasb"262 US. 390, 402,43 ,S. Ct. 626,
government to regulate
'content of what
628, 67'L. ~1 2(1923) (emphasis addea):
'is or is not exPres8ed"~hen it'is the speaker:
"The"pQwer of. ill' ,state' to cotnP;1 attendance
,,at ,s6mesebOOi, an4 ,to make reasOnable
or'~hen it eliliSts private entities to convey
its own message. ' In the same' vein, in Rust
, regulations' for all S<iliools, including a
requirement tbat)they,-shall give instructions
v. $ullivml (600 U.S. 173, 111 S. Ct. 1759; ,
i14 L. Ed. 2d 233 (1991)] we upheld the" , , in,EilgUSh, is nO~ questioned. " 'certainly, if
, , goveminen~'sprohibition on", abortion
, the_Sta~ cali req~ ~aclling in a particular
, related advice applicable to recipients of
, lan,guage" it ca4 J.tself, choose to use a '
, , particular
e'to expJ;ess the content of
federlilfunds 'for family planning
counseling. . There, the government did not
what it has to'say.
create, a"" program' to encourage private
speech but instead used private speakers to '
To'
extent : t, a language involves a
, transDrltspedfk information.pertaining to
D.19de of<exPi'esS'
ideas which themselves
in, different languages',
, its oWn program: ,'We recognized that when 'cOuld be eXpre
Yniguez's arguni~t no better. It is most
fares
, the 'govemment appro:prl.ates public funds to
proinote a'partiC'lll.8t policy of its oWn it,is
difficult to see why the State' cannot
c6nmtutiorially
. its employees to use
entitled to Say what it wishes. 600 U.S. at
,194.
the"goveminent disbU.rses pUblic
. one' mode of expre .on-one language-just 'as' it
timdS· .iO private entities to convey. a,
eait iequiIe ~*mp1oy",. use a particular
government8.l ID.esSage. it may ta)te"
~ of perl4
• the rest of their duties.
Surely, for eXamp e, the 'State can direct that
'leiitilIlate ,and 'appropriate steps to ,ensure"
that its message is neither garbled nor
,,', its ditche~ be dug fmd ,that its contracts be lE~t
distorted by the grantee.
: 'in parti~' wIs,even if an employee
cOrrectly, thinks that another mode of
"17 Cf. Garcia v. Spun Steak Co., 998 F.2d
148'0, 14$7 (9th Cir.) (private employers may,',:' ,perfo~ woul. ~ DlOl"9 efficient. Any
'preclude speaking "c,fa language' other tJuin .,\'
good employer'
~~; to its employees'
English on the job-"anemployee: must often "
suggeStions abo~tow'ajob may best be done:
i'D~t employers are t requ.iredto follow those
sacrifice iiufiVidWiJ. self~xpression' dllri:ng: ,
, working hours"), reb,'g'en bane denied, 13 F.34'~' "
suggestions," Nor oes the ,Fh-stAmeruiment
,114 S... , "change that. , Cf. 8niith ,v. 'Arkansas State.
296 (1993), cert.denied, " US.,
Ct. '2726, 129L. Ed. 2d'849(1994);-::Junido v.HighwayEmployes,44i U.S; 463, 466, 99 S.
Eleven-Fifty Corp., 813 F.2d 1406, 1410-12,
,', Ct. 1826, 1828, 6 L. Ed. 2d 360 (1979) (per
(9th Cir.1987) (private radio broadcastPY'J!laY
,cUriam)."
,
iJlsist that itS e~ployeesbro8dcast in Enghsh);
When Jiu>de' '0, expression attracts F~
, Garcia, 13 F_3d at 302 ("No reasonable persOn
'would suggest t.h8t Title VIl~quires the ,:",' Ame~nt scrU iny. it, is because it
rei
J
the
the
When
a
Copr; C West 1996 No cJan:ntoOrig. U.S'-govt.wo Its '
.
.
.
,
'~
"
,
~.
. '. i
+
�---F. 3d....
(Cite
as:
,
1995 WL 600877, -17 (9th Cir.(Arlz.»)
Page 38
.
,
534·35, 45 S. Ct: 671, 573, 69 L. Ed. 1070
implicates ideas themselves.. There is nothing' .' .
(1925)~ .It does In an that any protection mUst
. s8.aysanct about the mode.. It. as a mode.
. be sought ~ a la~ other than the First
could be regulated if the regulation only be
.' ~ndnlent, or tl r sOmething other than the
rational. But where the mode becomes laden
. with . content, the mode : itself .m8.y be
mode itself.
scrut~~ so that any protected content will
The penultima line needed to sketch the
not be injured. As the Supreme Court smd in
R.A.V. v. City of St. Paul,' U.S.
• 112 S.
path out of •YiuguI z"s thicket can be drawn by
.
....
.
Ct.' 2538, 120t. Ed.. 2d 305 (1992), 'in .. '
;C9risidering th.e. f~ that iridividwU citizens
have' no constitutional dght to require that
refe~nceto sOund trucks and fightulg words:
state ~mces be I rformed in any particular
"[e]ach •.. is.a 'inode .of speech' ... ; both can be
language. When laintiffs asserted that they
used to convey an idea, but neither has, in arid
of itself, a daimupon the First Amendment."·
had it' eonstitutio
right to have the State
'supplY SPaDiSb.· aking employees and
• '112 S. Ct. at 2545. See also'Clark
Id. at
J:Ibtices in SpBni . we turned that claim aside.
'v~ CommuDitYfor Creatiye Non·Violence, 468
See CanD.ona v. heffield, 475 F.2d 738, 739
U.S. 288, 293·95, ,104 S. ,Ct. 3065, 3068·69, 82
". (9th Cir.1973). And when a demand for
L. Ed. 2d 221 (1984) (assuming·not deciding
that. overnight camping' is expressive conduct,
bilingUal educatio was made, we also turned
it ~ still be regulated);' . United States v.
tha(aside. Qua. upeOrg., Inc. v. Tempe
EleIilentary Sch., Dist. No.3. 687 F.2d 1022,
O'Brlen, 391 U.S. 367, 375, 88. S. Ct. 1673,
1026~27 (9thCir.l 78).' As we saw it. that was
1678, 20 L. Ed. 2d 672 (1968) ("We cannot:
a . qu~~ion ofa '. gh political order and was
acceptth~ view that an apparently limitless:
variety of conduct can be labeled 'speech'
<>ne for'the people themselves to. decide. Id. at
1027." The' peri' of Arizona decided the
whenever the persOn engaging ui the conduct
. question here, for oOO.orill.
· in4!JidB thereby to express an idea."). The
· point is underscored by Texas v. Johnson, 491
This case, the .presents, a confluence of
U.S. 397, 109 S.Ct. 2533, 105 L. Ed.: 2d 342
(1989).' There, even ~though .the mode of
lines of argument. Employees of the State are
subjeCt to nume us restrictions! upon their
showing Contempt was the highly e~ssive' "
freedoms, their
;ons,
their speech,
.' and content·laden act of burning the flag, only
· a bare majority of the CoUrt was wiJ.1lng to
which the gove
ent could not impOse upon ,
find conStitutional' protection for the
the gener81 public The State can, in general,
eori~l .the cOn: Iit and mode of its own
defendant's ~ctivities. Id at 420, l09'S. Ct: at
2548.
. ,
speech, and the' ge ral public does not have a
eonstitutional ri . t to have the State provide
Services' in any p .cular language. In the
-18 Thus,' Yniguez cannot seek First
Amendment proteCtion of the pure mode'
face of all of th8t, It is well nigh unintelligible
. .
>,'
.
I
.
eleJJlent of a Iangu.age., 'The mode must itself
to say' that blC:livi~ual officers and employees
· seek shelter under the wing that protects the .
of .the State can perform state business in a
'. lll~ulge or' the. own .choice, despite the
•exPre.ssive or' eontenteiement. However,
;E:}i-;,,'s direction that they shall use a
·.8l.ready indicated; the content elen:leT)t '8:V}t'~
help her here .. · . .
.,
' : ' . , .V~.'
, P81.:;~~ll8r 1
e.
.
a:na
as,.;
.
""::"
' "
"
means
"
OfC9ur8e, none. of tbls
that the State
· can preclude the-general public' from learnii.tg
,or sPe8ldng a particular language. The State
. Cannot dotfu:lt. See Farrington v. Tokushige,
273 U.S. 284, 299, 47S.Ct. 4:06,409, n,L.
:r~~,,~A6 (1927); Ilartels v. Iowa, ;26~"J c· .. 4~H,
· 4H,43S. Ct. 628, 630,:67 L. ,Ed. l(k " ~_923);
'Meyer; 262 U.S. at 400.03, 43 s. Ct)at627.28; .
d. Pierce v.. Society of Sisters, 268 U.S. 510.
9(;co\frse, I.'
gnize that a State's
reS1;rictions upon i employees must not be so
.', .iirational that the may .be branded arbitrary.
. Se~ :J'-!lley, .426 US. at 248, 96 S. Ct. at 1446.
'. clin this Article qf iI]e Arizona Constitution
be so branded if we' believe it to be ill
,conc~ived?
I ~ the '. answer lies in
. G~d'~,upe. Org1.ation, .587 F.2d at 1027
. . (cit"';:;n omitted):
. .
,-'
"
:
;"
Copro
0
We" 1995 No clai~)'
"
,,'
.
,> ',,~,: o.vt°lks'
S·~~~S
WESTlAW'
�,a
.'
,
Page 39
···F.3d··- ,
(Cite as: 1995 WL 600877, *18 (9th Cir.(Arlz.») ,
,
Lingtdstic and cultural diversity within the,
nation·state;' whatever: .may, be '. its
acJ,varitages from time tritinie. can restrict
,the scope ,of' the fundamental compact.
Dive~ty linp,tsunity. Effective action by
the nation·state rises' to its peak of strength
, only when it is in respOnse to' aspirations
"Unreservedly Srui.red, by each ConstitUent
CultUre and, lariguage :gro\lp., AS affection "
which 'a cl.iIture or, group bears tow8rd a
particular aSPiration abates, and as,' the
,'scopeof sharing diminishes,' the, Strength of, '
the nation-state's government wanes.
*19 S~tism retards, and sOmetimes even
reverses, the shrinkage of the compact
,,' caused by 'linguiStic and cultural diversity. ,
,But it would be, incautious' to strengthen
diversity'in language and Culture repeatedly
tritstingoDIy in' the ,syncretic processes to
,preserve the social compact.,
In the
...
~e ofeig~teenth cent+u:Y philosophy, "
'the
iri which our Constitution was,
written, the social compact depends on the
'force ofbenevolence which springs naturally
from the' hearts of all men'but which
attenuates as it crosses .ungwstic and'
cultural line's.Multiple linguistic and
'cultur81centers impede both the egress of
each center's own and the' ing'n!ss of all
, ' others.',' Benevolence, more~ver, sPends
" m~ch of its force within each cenk:~ and, to
, rei¢"0ri:e8ffeCtiori toward insiders, hostility
, toward outsiders develops.
'
The nindamental nature of these tendencies
makes 'clear tha.t' ~ir Scope varies from,
'" gener,aiion to generation and is fured by the
Political procesS in its highest sense. The
ConStitution" aSide from guaranteeing to
, . indiVidwiIs ' cert8in' basic, rlghts,prlvileges,
powers, arid, immunities, does, not speak'to ,
, S\lChllll1tters; it merely evidences a,compact
, whose scope ~ strength' ,Cannot 'be
mandated by' the courts but must be'
,determined by the people actiilg upon the
Urgings of their ,hearts. "The' d~on' of the
ap:Pellee~' to' 'provide 'a :predorirlnantly
monocultural ,and monolingUal, ~duC8iional '
system, was' a ',rational response to, a:
quintessentially ,"legitimate" state tnterest.
The,' same perforce would be said were the
, appellees' to adopt t;heappellants' demands
", and be challenged by an, English-speaking"
child ,and his p
, Pi!gnms.
.
"
,
'
~ythe
consequences, good or
" ,l>ad. of~' to
's and cultures coeXisting
within a' 'sing 'nation.state, ... [their'
vlllldityl'cannotdetinriined by, reference
totheConstituti n.
Whatever
,:'.
.,
.
Infine,$~ peoplofthe State or Arizona did
not "violate'the F' ',Amendment,,when they,
adopted Arti~le
. For good or ill, it was
a qUestion "for the ople to decide."' Id.
, Therefore~'I relctfully ,dissent.
,
FNl. She has
n joined by Arizonans Against
ConstiMi"onal Ta pering (AACT): but this opinion
will generally hereafter, refer only to her for
notational convenibnce. ~,
" ,' .
FN2, ' I 'see no 'substantial difference between
employeeS and s te officials when the officials are
"penorming me bu iness of the state. ' ,
century
, FN3. 1 use the ord "language" to refer to those
bodj~ of word 'and their ~pronunciation 'and .
methods; of 'com iningmem which are used and
un~erstood by
Considerable' community, . and '
established brio g uSage. See Webster's Third
,Ne", International Dictionary 1270 (1986); Most
prominentlyment"ned in this case are 'English and
,Spanish. '
,
FN4, 1 undenake is explication with,some disquiet
. becausea' ~risdi 'onal question brood~ over this
case,", .Y,niguez, ,~erself no, longer works for the
"
State. That
moots ber claim for injunctive
relief. ' The AUo~' ey General says that me State, bas
expressly waived its. Eleventh Amendment defense
~to nominai da~ es.' but Ynigue~ did, not ask: for
mose damages,
the district court. It seerns
, ~us~1 ~allow hrrrooow appealthe failr,,~ Ofth,,~:
dIStrIct coun
grant, those daDlage~.
See
, Fitzgerald v. Cen~ry Park.
642 F.2d 356.359
(9th ,Cir.1981) <1eclining 'to consider plaintiff's'
cenaifiY
.
, '
,
,
ill
tol
inc,.
,.reqUestfor. nom,' I',I damages raised for the ,first
tim,e on' appc::al). ,As to AACT, we have D9
'evidence before " to indicate that it meets the
requirem~nts of etradltional standing ·!.x:trine.
, See Hunt v. Wa ington State, A~; ": ,C:dvertising
cOnml;ri,432
333. 343, 97 S~Ct.2434,1A41,
53 L.Ed. 2d 3 3 (1977). ' Howev!!r, we ttave'
u.s
....
,"
ma
Copr.C,West 1995 No claim to orig. U.S. govt. wo ks
au=
"iB.:;I-~
I\~~ij!~m
...,,,,,,
._~
.~_-e
'
�o
. I'C:~GJ
'page 40
···F.3d····
(Cite as: 1995 WL 600877, *19 (9th Cir.(Ariz.»)
declared a special, rule that' public interest group'
sponsors and supporters of initiative measures have
standing as, of right. 'See United states v; City of
Oakland, 958 F.2d 300, ,301, (9th Cir.1992);,
Sagebrush Rebellion, Inc. V. Watt, 713- F.2d 525,
, 527·28 (9th Cir.1983), affd, 790 F.2d 76JJ, (9th
'Cir.1986);
Washington State Bldg. &. Consti'.
,Trades Council v. Spellman; 684 F.2d 627, 631)
(9th Cir.1982), cen. denied, 461 U.S.'913, 103 S."
, Ct. 1891, -17 L. Ed:2d 282 (1'983). The same rule
must apply to, public interest group opponents of .
initiative measures. 'Thus, I press on.
, WALLACE, Chief Judge, concuiring. '
, *20 I fully join Judge Fernandez's dissent. I,
add the following:
protection.,
on~cent,Supreme Court
decisions, 'the m8j rity considers the public's
'right to "~ive' . ' ormation and ideas" in
older' to ,de
. whether Yniguez's speech
iB'prOteCted." Yet..
nuijority can point tona
,"bit of info~tion abOut, medical ,malpractice
clailnB whiCh can nly be communicated in a
noD:~Eng1i$ I "
e~and whiCh Article
xxvmwQuldthe by restrict Yniguez from
",eommuDi:c:atmg ,.'the public from receiving.
The 'msJority is
plyuriable to show the
public's interest
the unique content and
meaning which Y .guez can only convey in
the SparuSh ISngu " e., Instead, it points to the
intereSts'membe
of the public, have in
, '~ceiVing Yniguez' message in a Wner and'
language "they c
easily understand. In
,effect, the 'msjo'ty asserts that many
Arizonans would refer Yniguez speak in a
"mod~ which' they can easily understand·no
'doubt-a true obtvation, but the public's
interest in a 'civil , rVant's particular mode of
, comm~cation .
not warrant 'First
Amendment Pro '
- Yniguez's claim., that the ArUcleregulates
speech, not merely the expressive mode of
The difficulties of
speech, ,is dubious.
Yniguez's claim. become apparent when one
, tries' to identify exactly what,' speech 'or
" message the, Article suppresses. If Yniguez is
able to identify to us in English the messages
that the Artiele suppresses, She would thereby ,
Also, the majori 's view that when Yniguez '
speakS, ~ a i .
e other than English, she
commwrlcate those messages which she claims",
oDIy Spanish 'can convey.' In' other words, bY
comments as a cit n on a matter of public
concern ignOres the cases' ,which define
stating in English the speech or message
"matter of publicricern." These cases look
which the" Article restricts, Y~z •
" to the content of ublic employees' speech to '
unde~s her Claim. that her message can
,'see, whether it ~Mnbutes to public debate.
onIy' ~ eXpressed ,in Spanish. , Saddled With '
, this problem, the nuijorlty,therefore, never
See' United. Sta~i; v. National Treasury
~EmployeesUnion, h58. Ct.1003, 1015 (1995)
,identifies the'conteht"of the speech which the
Article' suppresses a:iul writes vaguely about
(matter of public c!oncern were speeches and
, " ,,' arlicles for whi
government employees
the Article's restrictions.
,;
, " ';":recei~ed payment); Rankin'v. McPherson, 483
, Ris untenable for the nuijority to holdthSt
" U.S. 378, 386 (198 (matter of public
the Article 'restricts pure speeCh" yet fail to ", " ,"'w~'eJ:llploYee's
ghly, negative opinion of
id~mtify sllppressed messages. 'This diffiCulty
,', j)resjc:l,~nt's policie); 'Connick v. Myers, 461
strengthens the, undeniable conclusion that
',:,.u/(';)~8i,l48(.!.b8 ).(questions abOut pressure
the Article regulates the inOde of speech, not', '~'(:i .. ::,(,~/~;inm~nt,.1 wyerS to, p8rucipate on
pure speeCh. This cOnclUsion should ~nd the:
"j,oliticalcampai, , ,did' not conStitute speech
"matter, for mere regulation of government
':()n iriatterof'p ,tic, concern); Pickering v.
employees' mode of speech does not implicate
, BOard ofEdtlc.of'J. 'WnShlp High School Dist.,
t.~e FLY"St Amendmerit or require the varioUs'
,391 U.S. 563,;56(1968) (matter of public
balancing tests which the nuijority employs.'
"cOncern was lett;er t.oeditor discussing school,
.
budget). ,',
,
The in8jority's failure to identify clearly the
,'meaning conveyed by' ,using one language
*21 Contrary ',prec~nt, the nuijority
" " ' rather than another Confuses its evalUation of
n; of. the public would like
rUles thai if me
"the interests favoring First Amel1dInant
to ~ive ,PubV, ~~ployees' speech in a
.
Copr. C West 1995 N~ claim. to orig. U$ ..' .' . ~':,
concern
,
,
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(Cite as: 1995 WL 600877, ·21 (9th adAriz.)))
'Page ,41
',certain w,ay; that desi:reconstitUtes 'a, 'matter,
. of publicconcerii:' Such reasoninglg:rlOi'es the ,
difference 'between, a goyetilment' employee'
whocantrlbutes ,to .the marketplace ofi~8s .
and an employe~ wbOspeaks in a mode which ,
helpS members of the public underStimding
, what ll~says.Tbe most recent Supreme CoUrt '
, "case on, pOiiit found that speech is of public
concern\vhenU"addrel3se[s] a public audie~;"
, [isJ~a.de outside the workplace,arufiD.volve[sr,
, :conterit' largely imrelatedto ~ .. ' government, '
,'employment...·, Nationa},Tre8sul'y Employees, "
115 S. , ,Ct. ' at' 1013: ' "ThEipitrportedly
suppressed speech here d~s not ,fit 'this'
'description:. .,',
A house dividedag8ut.st itselfcaimot~st$i~
Abraham Li:Dcoln "
'
• . •
I'.
Gove~ent :has 'no mouth;'ithaS nil hands
or feet;' it 'speaks -8nd ',aCts througnpeople.
, GOvernmen,t employees mUst ,do what the ,
State can't ,do for itself -beCause it, Jacks: , D l 8 j p n t y , ' : Because the '
corpO~al,~:ld.stence; in a rem Sense; they ate"
.law,mque'stionreq· sYniguez'to speak, she,
"the state. This Case is about whether sta~ '"
acqw.re,sFirst:
'eD.dme¢rlghts, in-the',
, employeesm.ay arrest ,the gears ,of government ,.',:,'," conterit8nd ", ' o f that 'speech. , 'Majority' ,
,by refusingtos8.yo~:do~what-u,.e stStech69se&", "Op.~tl~7~*,., I:tYnig;rezsay~,'~ ,in
' w h a t ~niue, is ~~U8 no' longer a business
to have said or done. "
, ,
, judgnient,' ,by' 'her e'mployer, '" , it's, " a
Tlle n:i8jority says' yes: Or, tQ be precise, it '
"~risii:tUti~Iuu.que~o~ ,If YnigUez ,~,
,'.' 'says the employees may :foree their empioyer '
,sP-ecan haulllere~ployer into federalcouit
,intO federal cOurt andiD.ake it prove,'to: the ,< ,,;8rui fo~ ittoProv that the law's advantages
"exaCtmgst8nd8rd.oftheFi,fstAmendment,,~,' ,outweigh
to 'Bay 'whatslieplea&es,
that its interest in'eDroJ.clng itS laws~:', ~Nor.iSthi8 'plO fo' 'ratioria1iiy review, As;
,0utweighs,their,rightnOt"to~ statemenis ,,::ijle;.'intenn.inab e , '~rity,opinion
they 'find'objeCtionable. ' ,', 'This is , an' , " ':. ,demOnstrates" ,. ' is 'high-octane review
extraordinary ruliilg with exPlosive aI)d far- ''','''~ involVing all ',sOrts of substantive judgments
'reaching consequenCe~. Almost 'ev~' »'abPut ,pte ,~m')md efficacy of the Iaw in
, 'government dOes'involves a' commun.i,cation o f '
question. ~oritY Op. at 12744-54. ,
,
,,
"'
, " •.,1',
"
" " "
some sO~f and those ch8:rged \Vithcatrymg out ,"
;' 'government : fUnctio~';se)metilrie8" disagree', , ':'§uch 'Scrutiny isllighly intrUsive, as well as
'withwAat"they,~'ordered to:, say ,o:rdq:' ".,' :,Costlyand 'time:co~~, ;We :rn1ist:
Before today, howeyer, itwSs understood thatqurselves, " "
ret 'whether 'similar
"government employees'iiave nO Personal 8tfJ.ke,
' challenges COllld :,: be.. raised: by: 'other
in what they say fu the cOurse, of employri:J.«[ln,t " ' , ~o've~Elinplo ,*,swith 'qWilinsabOu~:the
, because that Speech is the government's, not'
)awsthey"re',~'enforce.The alBrming
'.'
truthJs tha~i,>~t 'spotliing,:' Unique 'about
theirs. '
'
"
,:,,, i ' , . ' : , '
,.'
" , ,Yru,gU~i's Bi~ti9, ,,' nothing unuSual, about
Tooay'sdecisiolli'e~ldsthis furidamental~:t cl~ The ' ' esort,of ~engEl coul<i be'
"
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Page 42'
"
raised by just .. about, every. disgruntled ':
government employee.
. ' . " ..
.
_
Consider the following example: A DeputY .
Attorney Ge~ develoPs doubts· :about
whether the death penalty is constitutional;
he files a'brief wiing. the state supreme court
to v,acate a death ·Sentence. .Can the Attorney'
General diseiplinehim? Not anymore. Like
YnigUez, the Deputy can claim the brief is his
~ (after all, it.. carries his' name) and he ' .
has first Alnendnient rights not to say ih.ings
that chafe his conscience and offend the'
Constitution. 'H~ 'Cail argue,' as does Ynigu~z,
that the law in. question serves no legitimate
purpose; . he can show, like Yriiguez, that
abandoning the law would make him more .
efficitmt.
denies minority' uPS' a.fair· opportunity. to
assimilate .
. -23 • ~ialwo kerdisagrees.with county's
poliCY of el1C() aging .single mothers to'
enter'the worktbrceand tells mother to stay
.
home With.'her b y . '
• Public school acb.er disagrees with school
. diStrict's, policy ofteacb.ing evolution and
teiiS. students. .tman sprang into being
the tearS 0 the Egyptian god Ra-Atum.
• I;>eputyshe .. ' thinks. Miranda. warning is
silly. .and 'tells suspects, "Lawyers are
sllmeballs. . 'Fe up, and the' judge'll go·
easy on you." .
Recruiter for. b}ic university disagrees
I •
with sUite's
tive action policy and
. tells'minority a plicantsnot to "expect any
favors.~
"
from
How can the state meet Such a ch81lenge?
. Most caseS may after much litigation, be
.resolved. .in favor of the govenu:ilent. But
How can it. ~ope to establish, to. the
'demanding Standard. erected by the majority;
.:therewould be
way to .keep them out of
that its interest in pursuing the death penalty
. ·court. . .And in
would the state be
entitled to
"~. chose poliCy X because we
.outweighs the Deputy's First AIriendment
right to :espo~ 8.contrari vi~w? Whether the
. had a hunch it .ght w~rk, but we haven't
death penalty deters violent crime or serves
any proof." No, ind,eed. When ,confronted
",other legitimate ends are questions 'about
with what will co~ to be known as a Yniguez
challenge, states, cities, counties, even the
which· reasonable minds differ; there ~",
many-ind\lding some of' my colleagues, see,. .
federal governme , will have to prove that
e.g., Steplie~.Reinhardt,"The Supreme Court, .
their laws are woith the candle;,' courts will
The DeaU{Penalty, and theHanis Case,"102routmely . make I judgments', traditionally
Y8Je L.J.205" 216'(1992)(" [TJhe courts m8.y: - ..reserVed for .'the egi,slature and the people
befwictionally iricapabl~ of hand.J.ing' death·
,themselves. By mparlsOn, Lochner v.. New
penalty cases 'iaii-ly' and judiciously.")-who·York, 198 U.S." (1905), 'will seem like a
p~an to judicial . straint~, "
. 'believe the death, penalty is a Cruel
anachronism. The state couldn't demur that"
the Deputy's SuperiOri had in8de -the, poliCY'
.. ThiS probl~
, :be solved by tinkering
judgment 8nd merely assignedhlm the task of
. with the fine po' '. of,the: rule announced
,iinp1c~mentmg it.. Yniguez's superiors had' ' . . today.. The fault'Ues'intbE! rwe's central
that
decided. to prOm~te' the use. of English and ' "premise-the , " " 'gerous'.',',ill>tlon
merely' assigned .her the job of implementiJ;lg
" governm~:ru ~m'~io~.~jt,a~e:,,~rional stake
.thatpoliCy. Like VDiguez, the prosecutor
.. in~t;u".:;; .::,:~;/:;:tLr.wLel.. ~heYb])eak for
would. be entitled to argue that the federal '., '~the government.:>,; '., 'fo~.oii:hisjdea will
coUrt should cb.arige his job deScription. ,
. tum. government· eplo~m" into s. p18tform .
.' .for endless attackS' on gov~nt' policY and
.
"goveriiance into' a tug of war, between those
So too would Z;lHonS of other government
who iilak.e the la . and those who enforce
employees, like the following:
.
... City adopts bilingual popcy to' give· non
. them.
Angloph~ne '.' residents . better ._ a~ss ;to
.goyemment services, but· employee. claims a
ks-the enormity 'of its."
F1ist Alneruhnent right to· spe8.k only.
nding this· ~sjust another
.like Pickc;·r.ng v.Board· .
Epglish. In his view, use of other.J.a:rlguages
say,
,
case
j
"
'Copr. .; West 1995 No cla.i:J:D to olig. U.S)govt. wO'ks
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as: 1995 WL 600877,-23 (9th Cir.(Arlz.»)
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454 ,U.S. 263 . (981), as standing for the
of Educ., 391. U.S. 563(1968), or Waters v.
· churchill, 114 8: Ct. 1878 (1994). But ·the.
propo~tionthat "when' th~ ,State is the
ilpe8.k:er, it may .. ',' . content~based choices."
·question ill ~ose ~s' was whether
. empioyees coUId be disciplined for what they ..
. 63 U.S.L.W. at 4 06. The Court went on to
said . as prl\rate 'citizens. . In 'SuCh
'~Xp~Ilin.tha:t it
'"permitted the goveimnent
circuJnstanOOs, the. CoUrt eXpI8ineCi; ,ii[tIhe '. . 'to· reSlJ:late'thentent of what is or . is not
problem .~~ is:toarrlve' at a balance between
·eXpresSed when iiB the speaker or .when it
the'iJlierests of the [empioyeej, as a citizen, in ..
'enlistsprivatee tities·. to convey its own
·message.~ Id. (em hasis add~d).
.
co_nfutgupOn matters of publicconcenl
· a:iUi:·the·interest of·the·State, as an employer,'
promotmgthe effiCienCY' of the public
Confronted with recent. Supreme Court cases
'. 'serviCes' it' Performs tfuough its. employees. "
that, cUt' the· he . from·'. its analySis, the
. Pickeruig, 381 U,S" 8t568 (emphasis added). .
.' ." ~oritY resi;orids .'~~ .. a footnote. Majority
· Yniguez's' case h8s nothing ,in cOmmon with. '. , .Op. at 12735 iL2 . And what a footnOte! As
Pickerulg,bec8use: the speech here belongs to .'
best one can tell, 'emajority reads RUst 8nd
:'Rosenberger'as .. pplying only where the
the gove'rnnient; there's nothing to balance. '. :.
govert)mentuSe
a private party. to
Under Pickering and .Waters, Yniguez Can
. 'disserOinate its In ssage, not where it speaks
try '.to .Change tP,e ,Jaw' 'thro'ilghthe political'"
. through itS ,oWne ploYees. This would be a
proCess; .. she." can .&peaJt out against Article .
. prettY good' " .'ent, were. it not for two
;; ~ onh~r own time,alldinany language'
t.hiJlgi;: . theSu 'me Court's langUage .and
she pleaSes; . she cali ·campaign for its repeal.
,.commqnse.nse: AS for langUage, one!~look
·no fafther than . passage from Rosenberger
This. is muCh dtirerentfrOm the, right the'
iJUijority .~ates for h~~-the right' to block .
·underscored abov. The Court there holds
government .poliCy' because she' hapPens 'to
·.that gove~ent: y eontrol the C9nteht of
disagree with it. .
. .
speech bOth whe . "it is the speaker" and
. where·"'ite~ ,p'vate eritities to cOnvey,"its
.
-24 Twice in recent years has·the Supreme
oWn·meSsage.~
SeDberger, 63 U.RL.W. at
· . Court relied' 'on ~epivotaldistinCtionthe ..
<, .4700.. "since 'gove' 'ent "is the'speaker" only'
, in8jority: iglwres: rnRwit v. Sullivan, 500
... . 'throiIt;.l\ its' emplo ees~ Rust and Rosenberger
U.S. i73 (l99l),feCierally~funded.·medical
'. clearly' ei:oCompass Yniguez's situation.' .In
.'cliSimssing' .. 'these , Cases as dealing with
cliniCli lv,ere' prohibited from counseling about
abOrtion; . the"climcs '8igued, that· ,this,
"enurely . differe t ' circUmstanCes," . the
prOhibition violated' the free speech rights of .
ipsJority overlooks hat the Court in fact said.
th~ir employees.Th~. Supreme . Court
. ~ut put
e &side and consider'the
'.shrugged.: . Those who .workin clinics that talte .
federal money mustconform.theii on-the-job, .... logic of thesitua o~" What'earthly reason
~ to federal law.' This doesn't offeridthe.:
,',.'would ~ere' be to . give' employees of
·Fiist Alitendment '~aUse "[tlhe employees :.goveinm:ent-~bsi
entities fewer' First ..
·,remain free ... to p~e abortion~related
Amendment' righ than: Public employees?
acnng
private'
Does the in8jority ~ the government could
. activities when' they
refuSe to fund
therwise qualified private '.
. individuals. " Id. at 198-99.
, group because its e ployees speak out against
the goveriunent? Or belong to the" wrong
The Court again addressect th~ 'issue inpolitlcal party? "
practice an unpopular
Rosenberger. V. University of Virginia, 63:'.'
U.S.L.W. 4702 (U.S. June 29,' 1995). The
religion? $~ly ~t Pickering, Waters and
q~estionin Rose~rger was whether the.state' ,
Branti v.FiJ:Jkel,·4 5 U.s. ~507. (1980), protect
·.CoUld deny fu.DdiDgtO a student publication'
:employees of . -·vate· entities vying. for
goveniinent' f~n' . no less than public
. based on its content. The Court said no,
~use', ;the Speech at'· issue" w~'t the'
employees.' The're, n ft..u:;~.and RoSenberger
.gove~erit's. In reaching this' conclusio~ 'it
'sawnOFifst" nd:mentproblem w:hen'
. distinguished RuSt and, Widmar v~ Vincent,
...goverriment contra s the speech 'of those who'
· .m .
are '"
as
an:
f>r
- , '
.
".
. Copr.~o West 1995 NO,claiDl to orig. U.S..govt.~o
ks'
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(Cite as: 1996 WL 600877, '-24 (9J.h Cir.(Arlz.»)
Page 44
carry its message is that :'thiS.· i$ pe:rfectly'
con$tent with Pickering~
'Rust and'
, Rosenberger Stand squarely for the propOsition
'that th~ govem.ment may Write the script
when itlis the speaker.
-26 This is not to say that Arizona's ,
English-only policy is constitutional. As the
mSjorityand the ,concurrence point out,
Article Ixxvm ,makes it harder' for manY
Arizonans to receive government services. A
suceessful ch8.Uenge might be raised by those
whose ability to deal with their government is
thereby impaired.
Nor is' the First
, Amendriient the only basis on which the policy
riught be attacked; Yniguez also Charges that
the English·only policy violates equal
, protection' and coDructswith Title VI of the
CiVil Rights' Act of 1964, ,4'2 U.s.C. § 200Od.
, No court has y~t considered these arguments,' ,
which go more'di.reciIy to the heart of this
dispute.! But to give Yniguez th~ right ,to
decide what she will say' when she is the
~te's agent opens the courthouse door to
coUntlesS other employees who disagree with
some eXpreSsive aspect of their jobs. . While I
understand my colleagues' eagerneSs to do
, away with, a law they see as misgwded and _.
divisive,: the Price tht::~ pay is too high. No'
rational society can afford l~,
'
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END OF;DOCUMENT
r,
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West 1995 No claim to orig.U.S. govt. wo ks '
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<~l~~~
�
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Stephen Warnath - Civil Rights Series
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Domestic Policy Council
Stephen Warnath
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1993-1997
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Stephen Warnath served as Senior Policy Analyst in the Domestic Policy Council. The Civil Rights Series includes material pertaining to the Civil Rights Working Group and topics such as affirmative action, English only, age discrimination, religious freedom, and voting rights. The records also include confirmation briefing materials for Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) nominees. The records include briefing papers, correspondence, schedules, testimony, reports, clippings, articles, legislative referral memoranda, and memos. The majority of the memos are internal between the Domestic Policy Council staff and the staff of the Equal Employment Opportunity Commission, and between the Domestic Policy Council staff and Congress.
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Domestic Policy Council
Steven Warnath
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Box 6
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