The Debate Over Language Rights
By Tena Jamison Lee
Even though 97 percent of this country's population speaks English, some lawmakers
find it necessary to implement legislation declaring English the U.S.'s "official language," even
going so far as to propose legislation that bars the use of any other language in certain
governmental functions.
Combine this with the fact that the national debate on the use of Ebonics, or black
English, made its way to Capitol Hill earlier this year, and it makes one wonder, if such a large
portion of our population speaks one language, why do we have such heated debates on the issue
of language rights?
On Dec. 18, the Oakland school board passed a resolution to treat Ebonics as a second
language. The board voted to recognize Ebonics as the "primary language" of many of its
students (black students form a slight majority in the district) and to teach students in this
language so they will better understand English. The Board described Ebonics as "genetically
based" suggesting that schools might seek federal funds earmarked for bilingual
education.
After receiving a backlash from the media, policy makers and just about everyone else
under the sun, the Board restated its position a month later. They dropped a reference to African
American speech being "genetically based" and eliminated a proposal that students be taught in
Ebonics. Instead, they called for teachers to learn "African American language systems" so they
can help "move students from the language patterns they bring to school to English proficiency."
For some Washington lawmakers, however, the changes in the Oakland school board's
position weren't enough. In a Senate subcommittee meeting on Jan. 23, only three of the 16
members of the subcommittee that oversees federal education spending attended the hearing, and
two stayed only briefly. Sen. Arlen Specter (R-Pa.), the subcommittee's chair, said he called the
hearing in part to consider whether the federal government should have a role in funding Ebonics
programs. Education Secretary Richard W. Riley has said that because federal law defines black
English as a dialect rather than a language, the Oakland program is not eligible for federal
bilingual aid.
At the time the board announced its policy, there were suggestions that the district would
apply for additional federal funds to teach Ebonics as a second language. With that no longer
being a possibility, members of the Oakland school district defended their Ebonics policy before
the Senate subcommittee trying to assure lawmakers it would not use any of its federal
funding for Ebonics instruction.
But the debate is far from over.There are several other kinds of federal aid available
including $7.7 billion given to schools nationwide every year to help educate poor children.
Since schools have more discretion over that money, it may be used for Ebonics education.
While the debate continues about effective ways of teaching and reaching certain
students, and how to fund these programs, some lawmakers are trying to assure that English is
the only language spoken in some governmental capacities.
Seven pieces of English-Only/Official English legislation were introduced during the
104th Congress. Two bills that received the greatest degree of focus were H.R. 123 ("Language
of Government Act of 1995" introduced by Rep. Emerson) and S. 356 ("Language of
Government Act of 1995" introduced by Senator Shelby). Both bills would declare English the
official language of the federal government, mandate that all official business of the federal
government be conducted in English, allow any person injured from a violation of this law to
sue, repeal any federal laws protecting language rights that are inconsistent with this, would not
preempt any state law.
During the second Session of the 104th Congress, the House took up an extended version
of H.R. 123, as well as H.R. 351, which would repeal language provisions of the Voting Rights
Act. Both bills passed a House vote, but failed to move in the Senate. The original Senate version
of the bill failed to move out of the Committee on Governmental Affairs. For both
versions, President Clinton threatened to veto any legislation that would limit bilingual education
or language assistance provisions of the Voting Rights Act.
This subject is not dead by any means. In fact, the U.S. Supreme Court is expected to
hear the legal controversy at a later date.
Meanwhile, the movement to make English the official language got a boost in March
when the High Court, in a unanimous decision delivered by Justice Ruth Bader Ginsburg, set
aside on procedural grounds a U.S. appeals court ruling that said an "English only" law in
Arizona violates free speech. The Court's ruling has the legal effect of reviving the Arizona
amendment, which had been struck down.
There are two separate cases coming out of Arizona on this issue. The first one,
Arizonans for Official English v. Arizona, No. 95-974, questioned whether Article 28 of the
Arizona Constitution declaring English the official state language violates the First
Amendment of the U.S. Constitution. The Justices did not consider the merits of the case, but
rather ruled that because the Spanish-speaking woman in whose name the case was originally
filed had left her job before the appeal court's 1995 ruling, the federal courts lacked jurisdiction
to consider her argument that Article 28 violated her right to free speech.
Article 28, which was adopted by a slim majority of Arizona's voters in a 1988 ballot
initiative, prohibits all state government employees and elected officials from speaking any other
language while performing government functions.
Declaring English the official language of the "ballot, the public schools and all
government functions and actions," the law applies to "the legislative, executive and judicial
branches of government...all political subdivisions, departments, agencies, organizations and
instrumentalities of [the] state including local governments and municipalities. It broadly
requires that every level and branch of government, including every entity and person, "act in
English and no other language." According to this Article, any "person who resides or does
business in [the] state" has the right to sue to enforce its provision."
Maria-KellyYniguez, an employee of the Arizona Department of Administration who
handled medical malpractice claims brought against the state, was the original plaintiff in the
case. Before Article 28 was passed, Yniguez spoke in Spanish with her clients while performing
her job. However, she stopped speaking Spanish at work when the Article was passed for fear of
being reprimanded, or worse, losing her job.
The district court held that Article 28 violated the First Amendment of the U.S.
Constitution and Arizona's Governor, an outspoken critic of the law, did not appeal. Arizonans
for Official English (AOE), the proponents of the initiative, decided to step in and the Ninth
Circuit allowed them to appeal. The en banc panel of the Ninth Circuit Court of Appeals
affirmed the district court's ruling, reasoning that Article 28 was overboard and far-reaching, in
that it would affect the speech rights of all state and local employees, officials, officers, and
non-English speaking Arizonans who had an interest in receiving all kinds of essential
information.
In weighing the State's argument to promote unity through an official language law, the
Court responded, "Equally important, however, is the American tradition of tolerance, a tradition
that recognizes the critical difference between the use of English and repressing the use of other
languages. Arizona's rejection of that tradition has severe consequences not only for its public
officials and employees, but for thousands of Arizonans who would be precluded from receiving
essential information from their state and local governments..."
Another lawsuit, in which several other plaintiffs are challenging Article 28, is before the
Arizona Supreme Court and there's a possibility the U.S. Supreme Court will review that
eventual ruling. The English-only controversy was one of the more closely watched cases on the
Court's docket.
Other cases have clearly paved the way for language rights. In Meyer v. Nebraska, a
landmark 1923 Supreme Court decision, the Court declared unconstitutional laws which
restricted the use of non-English languages. In Meyer, the Supreme Court struck down a state
statute that prohibited the teaching of any subject in a language other than English to students
below ninth grade in public or private schools.
In this case, the Court looked to the due process clause of the Fourteenth Amendment in
recognizing that certain language limitations deny liberty, such as the rights of linguistic
minority pupils to acquire knowledge, their parents' right to control the education of their
children, and the teachers' right to practice their profession. Meyer has been a foundation for
Constitutional protections for all who speak languages other than English.
In another 1923 case, Bartels v. Iowa, an Iowa statute requiring that all teaching be
conducted only in English was declared unconstitutional. In Yu Cong Eng v. Trinidad, a 1926
case, a state statute which prohibited the keeping of accounting books in any language other than
English or Spanish was unconstitutional because it denied equal protection to Chinese
immigrants.
Additionally, Under Title VI of the Civil Rights Act, programs that receive federal
funding are prohibited from discrimination.
Roger Rice, Co-Executive Director of Multi-Cultural Education Training and Advocacy
(META), is not bothered so much with the bills he says that are purely ceremonial making
English the official language of the U.S.
He compares these with such harmless pieces of legislation as making the bald eagle the
official bird. These bills, he says don't have any political consequence even though the whole
concept is insulting and unnecessary. However, the legislation that bars certain services to
segments of the population could have a negative impact on lives, he said.
"It is pretty clear that some people in this country are upset at immigrants, both legal and
undocumented," he added. "This is all part of a backlash against immigration," said Rice, noting
that California's Proposition 187 is not unrelated to this type of legislation if one compares
the list of people who were behind it.
"To be fair about it, there are a second group of people not well informed who say if
people want to get ahead, they should speak English," said Rice who added that he has never had
a parent come to him and say they didn't want their children to learn English. On the contrary,
said Rice, parents of immigrant children often say not enough is being done to teach their kids
the language. "It is not a case where they don't want to learn our language," said Rice.
Ernest Bonyhadi, chair of the IR&R Section's First Amendment Rights committee, also
questions the motivation of those proposing English-only legislation. "I have trouble personally
with English declared the official language," he said. "Alot of people who want English-only
legislation are the same people who want laws against flag burning."
Bonyhadi was born abroad and knew that when he came to this country, he noted, that he
was expected to speak English. He sees language rights as an issue for those in legislature and
believes it is more of a political issue than a constitutional one. Although, he added, "I would
oppose a bill saying if you don't speak English, you can't vote."
Al Kauffman, regional counsel at MALDEF (Mexican-American Legal Defense and
Education Fund), knows first-hand the effects that an English-only bill would have. His
mother-in-law was born in the U.S. in Harlingen, Texas and was repatriated to Mexico around
the time of the Great Depression when she was still a child. She grew up, married and had
Kauffman's wife in Mexico. In 1955, she came back to this country and has worked as a farm
worker on a ranch raising eight children, five of whom are college graduates. Kauffman's
mother-in-law still doesn't speak English although she has been here for 40 years. She votes with
the aid of materials in Spanish. If she only had English-only materials available to her, she would
not be able to vote.
Her story is not unique, says Kauffman. There are a large number of people living in U.S.
cities on the Mexican border who do not speak English. "These people should be encouraged to
speak English, but for us not to be aware that other languages are spoken is closing our eyes,"
said Kauffman.
"These policies will have negative effects on people who work here," he said. "A lot of
people are trying to learn English and want to learn it. Denying them fundamental benefits and
voting rights doesn't help." Kauffman sees the far-reaching effects a bill of this nature may have.
"It violates the constitution not to give people equal access to education and institutions without
strong justification," he said.
Georgina Verdugo, Regional Counsel for MALDEF in Washington, D.C., says recent
legislation proposed in Congress rode on the coat tails of immigration reform. Although
English-only legislation has been introduced in every session for the last 20 years or so, noted
Verdugo, it has always been a fringe issue that has never gotten anywhere. She added that over
20 states have some official language legislation, most of which are simple resolutions. Arizona's
Yniquez case is an example of one of the harshest forms of official language legislation, mused
Verdugo adding, "We want everyone to speak English and to speak it well. Proponents try to
couch it as simple legislation, but it is really very dangerous."
In relation to another language rights issue in the forefront, Verdugo added that Ebonics
is still so new to her organization that MALDEF doesn't yet have a policy on it. Although an
interesting issue, Verdugo believes it may get confused with the language rights issue, but she
sees it more of a challenge for the educational system.
Whatever category the issues of "English-only" or "official English" legislation and
Ebonics as a second language fall under, each leaves no question that they are not dead topics.
Each will be debated for some time to come.
Tena Jamison Lee is a writer in Arkansas and a frequent contributor to Human Rights.
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