Would the proposed "English Only" law be unconstitutional?

Article by Salt Lake Attorney Mary J Woodhead

One of the most interesting things about the Utah legislature's latest attempt to make English the official language of the state is the Legislative Review Note at the end of the bill. The Note says "A limited legal review of this bill raises no obvious constitutional or statutory concerns." What country's constitution did the legislative analyst review?

The proposed Utah law is part of an ongoing trend nationwide to pass laws making English the required language of government. The laws range from simple declarations of English as the "official" language of a given state to laws like Utah H.B. 387 which provides "Unless otherwise required by the United States or Utah Constitutions, all official documents, transactions, proceedings, meetings, or publications issued, conducted or regulated by, on behalf of, or representing the state and its political subdivisions shall be in English."

Although the statute states on its face that its implementation will be consistent with the Utah and United States Constitutions, application of the law is likely to raise questions from freedom of speech to equal protection. For example, although the federal Voting Rights Act currently requires bilingual ballots, the Utah law is unclear on issues such as drivers' license examinations. Moreover, the question remains open as to whether the underlying premise of the law itself violates the United States Constitution.

The proposed Utah law attempts to avoid legal difficulties both by the language cited above and by a series of "exceptions" to the general rule. That bill states that "Languages other than English may be used: (a) when public health and safety needs require it; (b) in foreign language instruction in the public schools, including the teaching of English as a second language; (c) in judicial proceedings, when necessary to insure that justice is served; and to promote and encourage tourism." Obvious omissions from the list of exceptions include communication related to the public welfare and dissemination of legal announcements. The law as drafted could leave non-English speaking immigrants unable to communicate with regard to benefits to which they are otherwise entitled.

Given that the inevitable result of "English Only" laws is the diminution of tools available for communication, the question has to be asked "Why bother?" Outspoken proponents of English-only laws cite two main reasons for such laws. First, they claim such laws actually enhance the flow of information by encouraging everyone to communicate in the same language. The Utah law, for example, proposes that money apportioned for bilingual programs or materials be moved to programs for teaching English as a Second Language.

The second argument presented in favor of English-only laws is that they will save money. For example, the Salt Lake Tribune reported proponents of such laws claim that "English Only" laws protect the State against lawsuits by immigrants demanding services in their native tongue. The cost of bilingual and multilingual services is an unfair financial burden on the English speaking majority according to this view.

When viewed in this light, the tie between English-only legislation and other anti-immigrant laws seems obvious. In its briefing paper on English-only laws, the ACLU concludes such laws "perpetuate false stereotypes of immigrants and non-English speakers." The paper concludes that "Such laws do not simply disparage the immigrant's native languages but assault the rights of the people who speak the language."

Recently, a departing public employee challenged Arizona's English-only law. After the 9th Circuit Court of Appeals, en banc, found the law unconstitutional, the United States Supreme Court reversed on procedural grounds. As a result, the legal status of English-only laws remains open.

The Circuit Court decision, however, has bearing on laws such as the one working its way through the Utah legislature. The Court found that an integral part of freedom of expression is choosing the words to with which to communicate ideas and information. Based upon that analysis, the Court concluded that there is constitutional protection for speaking in foreign languages. The Court also found that such rights extend to public employees. This finding suggests that the underlying premise of the Utah law is suspect.

The position, taken by the ACLU, and other organizations, that English-only laws violate the United States Constitution is not without historical precedent. In 1923, the U. S. Supreme Court, in the case of Meyer v. Nebraska, struck down a Nebraska law that prohibited teaching school in any language other than English. In finding that the law violated the due process clause of the 14th Amendment, the Court concluded that the teacher's right to teach "and the right of parents to engage him so to instruct their children, we think, are within the liberty of the amendment."

At least 23 states have passed English-only laws and several federal statutes have been proposed in Congress. Contrary to the conclusion of the Utah Office of Legislative Counsel, any attempt by the government to limit the ability of its citizens to communicate is likely to face legal challenges, if not from the ACLU, than from individuals and organizations committed to free speech and the rights of immigrants.

mjwoodhead@worldnet.att.net (Mary J Woodhead)