| Roots of the Official English and English-Only movements are
apparent in xenophobic hostility during the early 1900s
toward immigrants from southern and eastern Europe.
For example, Nebraska's 1920 constitutional amendment
declaring English the official state language grew out of
anti-German sentiment. By 1923, thirty-four states had
laws that declared English the language of school
instruction. Since then, most states have enacted laws
that require the use of English in specific situations, such
as in testing for occupational licenses.
During the 1980s, resurgent xenophobia, directed this
time toward Latino/a and Asian immigrants, revived interest
in and support for comprehensive English language
laws. Organizations, such as U.S. English, formed to
urge states and Congress to enact Official English and
English-Only laws that encompass all aspects of
government. Arizona, Arkansas, California, Colorado,
Florida, Georgia, Indiana, Kentucky, Mississippi, North
Carolina, North Dakota, South Carolina, Tennessee, and
Virginia adopted English language laws by legislation or
initiative during the 1980s. In 1990, Alabama joined
these states.
By the end of the 1980s, the language movement had begun
to lose momentum. In 1989, legislatures in New Mexico,
Oregon, and Washington adopted resolutions that embraced
multilingualism. Rhode Island's legislature did so in
1992. The success of California's Proposition 187,
however, has revived the English language campaign.
Although none of the many Official English or English-Only
bills introduced in Congress since 1981 progressed beyond a
committee hearing, the Language of Government Act of 1995
stands a real chance of passage. In 1995, Connecticut,
Georgia, Iowa, Maryland, Massachusetts, Montana, New
Hampshire, New York, Ohio, Pennsylvania, South Dakota,
Washington, West Virginia, and Wisconsin considered Official
English or English-Only bills. Montana, New Hampshire,
and South Dakota enacted language legislation in 1995, and
Wyoming joined them in 1996, becoming the first states to do
so since 1990. In the first two months of 1996,
English language laws were introduced in Kansas, Missouri,
New Jersey, Oklahoma, and Rhode Island, as well as in many
of the states that considered but failed to adopt these laws
in 1995.
The legality of these language laws and their
impact on consumer protection remain unresolved.
Resolution of these issues may depend on the precise wording
of the particular language law. At one extreme,
Arizona's "English-Only" constitutional provision
states that all political subdivisions in Arizona must
"act in English and in no other language" except
in certain narrow circumstances such as to protect health
and safety. Shortly after the provision's adoption by
initiative in 1988, Arizona's Attorney General construed
this provision narrowly to conclude that it does not
"interfere with the fair and effective delivery of
governmental services in languages other than English, or
otherwise affect governmental operations so as to
unreasonably disadvantage non-English speakers."
A subsequent Attorney General opinion concluded that
Arizona's new constitutional provision did not prohibit the
production of Spanish public service announcements by the
Commission on the Arizona Environment. In 1995,
however, the Ninth Circuit rejected this construction as
incompatible with the provision's plain language, which
prohibited state employees from using languages other than
English. The Ninth Circuit held that the law, as
written, is overbroad and violates the First Amendment of
the United States Constitution.
Of lesser effect are laws that simply declare
English the "official" state language. As
one commentator observed, these "Official English"
laws "appear on their face to have little more [legal]
significance than a state's choice of an official motto or
the official state bird." Courts will likely
adopt this narrow interpretation. For example, in concluding
that no Illinois law prohibited city election officials from
giving voter assistance information in Spanish, the Seventh
Circuit observed that the Illinois Official English statute
appears with those naming the state bird and the state song
and has "never been used to prevent publication of
official materials in other languages." So
construed, laws that merely declare English as the state's
"official" language should create no legal rights
in favor of the English-speaking majority.
Substantial legal questions surround the validity
of a third form of comprehensive language law that does more
than declare English the official language of government but
does not expressly restrict the speech of government
employees. Following an initiative in 1986, a
provision incorporated into California's constitution
established English as the official state language and
declared further that the legislature "shall make no
law which diminishes or ignores the role of English as the
common language of the State of California."
Moreover, California residents and businesses have standing
to enforce these declarations. Unofficially,
California's Attorney General interpreted the state's
constitution narrowly to permit other languages to accompany
English in official publications. In a decision later
vacated as moot, the Ninth Circuit interpreted California's
law as "primarily a symbolic statement" that did
not require Spanish-speaking government employees to speak
English at work. The court recognized, however, that
should the legislature take action to implement the language
law as the initiative directs, then the Constitution
"may conceivably have some concrete application to
official government communications." Since the
adoption of the initiative in 1986, implementing legislation
has been introduced regularly in the California legislature,
but has not yet been enacted.
In summary, authorities to date support the
following tentative conclusions on the legal effect and
validity of English language laws. In considering laws
that merely declare English as the official language of
government, courts will construe those laws as having no
substantive legal effect on the provision of bilingual
services. In contrast, laws that prohibit public
employees, acting in their official capacity, from using a
language other than English to serve constituents unable to
speak English contravene the First Amendment. A
declaration that prohibits the government from requiring the
use of a language other than English, however, might survive
scrutiny if it does not conflict with federal law or the
constitutional rights guaranteed to criminal
defendants. The courts have not yet considered
directly the urgings of many commentators that these and the
Official English laws contravene the Equal Protection
guarantee.
Should English language laws survive
constitutional scrutiny, they could frustrate efforts to
extend consumer protection to language minorities.
English-Only provisions in state constitutions that prohibit
the state's legislature from requiring the use of languages
other than English would preclude laws that require
translation of consumer contracts and disclosures of
essential terms. Even if enacted as statutes, rather
than as amendments to a state constitution, English-Only
laws can wreak havoc on consumer protection for language
minorities. Courts might construe these laws as
repealing existing statutes that require bilingual consumer
disclosures and contracts. Moreover, these laws would
prevent an administrative agency, such as the state's
Attorney General Office, from exercising its rulemaking
authority to require translations in consumer
transactions.
These English-Only laws may also limit the
authority of courts to dispense consumer justice to language
minorities. For example, South Carolina's language
statute prohibits any "order" or
"decree" that "require[s]" the use of
any language other than English. Consider how a South
Carolina court should resolve a claim that a merchant
engaged in an unfair trade practice by failing to provide a
translated contract following oral negotiations in
Spanish. Another interesting question is whether a
court could conclude that a merchant has committed fraud by
failing to translate an unfair contract term for a
Spanish-Only Consumer. In either case, a decision that
favors the consumer arguably "requires" the use of
a language other than English, creating a result presumably
contrary to the English-Only law.
As shown, English-Only laws may impede the
development of legislative, administrative, and judicial
reforms to protect language minorities. Even the
"symbolic" Official English laws may hinder
reform. For example, one of the primary policy
arguments made in favor of Official English (and
English-Only) laws is that a multilingual government
encourages immigrants to forego acquisition of
English. When urging legislation to require translated
contracts and disclosures, consumer advocates will be met
with the same claim that such reform runs counter to
assimilation goals. Despite compelling arguments that
the accommodation of other languages does not discourage or
delay the acquisition of English, the adoption of Official
English laws reflects the rhetorical power and political
popularity of these assimilationist claims. The
Official English argument that multilingual government
frustrates assimilative goals may also impede judicial
activism. For example, defendants might rely on an
Official English law to urge that a court should not
obligate a business to translate unfair contract terms in
favor of language minorities.
Given these potential impacts on consumer
protection, consumer advocates should add their voices to
those opposing the English language movement. Even
when urged as a merely symbolic expression of patriotism,
English language laws are unsound because of their tangible
impact on the development of consumer protection for
language minorities. Once enacted, a
"symbolic" Official English law may remain
unchallenged on constitutional grounds due to its apparent
lack of impact, yet still cause pernicious injury to
language minorities. |