Tuesday, May 22, 2018

Excerpted from Steven W. Bender, Consumer Protection for Latinos:  Overcoming Language Fraud and English-Only in the Marketplace,
45 American. University Law Review 1027-348, 1047-1054 (1996).
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.

The site is available without logging in. However, if you want to post a comment you must login. Your email address will only be use to provide updates on race, racism and the law.