"OFFICIAL ENGLISH" LAWS

Many Americans assume that English is already the official language of the United States. In fact, though, the Framers explicitly refrained from giving English any preferred constitutional status. In their view, the natural advantages of English would make it preeminent, while efforts to make it official would crystallize resistance among non-English-speakers and delay English acquisition. Despite the Framers' view, state and local officials have periodically decided to give English some kind of official endorsement. During the WORLD WAR I era, for example, some states tried to limit the use of languages other than English in private as well as public schools. Relying on the DUE PROCESS clause, the U.S. Supreme Court struck down these statutes as an unwarranted interference with both the right of parents to bring up children as they see fit and the right of foreign-language instructors to pursue their livelihood.

Since the 1980s, the status of English as an official language has garnered new attention. With rising levels of immigration, the proportion of non-English-speakers in the United States has grown steadily. In response, by 1996, a total of eighteen states had laws making English their official language, most of them passed in the last fifteen years. These laws vary widely. Some state legislatures have adopted purely symbolic measures, declaring English to be the state language in the same way that the robin might be declared the state bird or the bluebell the state flower. Other provisions have real teeth, allowing private citizens to sue for enforcement of English's official status. Stringent laws like these are often state constitutional amendments, many of which are enacted by popular INITIATIVE.

Despite a proliferation of state and local provisions, official English advocates have yet to enjoy much success in declaring English the official language at the federal level. As a result, federal protections for linguistic minorities have limited the impact of state and local measures. For example, federal law now requires schools to provide some special assistance to children with limited English skills, and federal statutes also mandate that some political jurisdictions offer bilingual ballots and election materials upon request. Under the Sixth Amendment and FOURTEENTH AMENDMENT, non-English-speaking defendants in criminal cases are entitled to interpreters at their trials so that they can confront witnesses and consult with counsel.

In the area of social services, however, relatively few federal protections apply. To the extent that official English provisions threaten bilingual assistance provided by these agencies, constitutional challenges have resulted. In Arizona, voters used the popular initiative to amend the state constitution to make English the official language. The amendment provided that "the State and all political subdivisions of [the] State shall act in English and in no other language." A bilingual government worker, who assisted Spanish-speaking clients with medical malpractice claims against the state, sued to block enforcement of the provision. She contended that the policy violated her FIRST AMENDMENT right to FREEDOM OF SPEECH. Because she feared that she would be fired for speaking Spanish on the job, the official English provision had a CHILLING EFFECT on her ability to communicate. The Ninth Circuit Court of Appeals agreed, but the U.S. Supreme Court vacated the judgment on the ground of MOOTNESS in ARIZONANS FOR OFFICIAL ENGLISH V. ARIZONA (1997). Because the employee had already left her position, there was no live controversy for the federal courts to consider.

Subsequently, however, the Arizona courts passed on the constitutionality of the amendment. The state litigation involved claims by four elected officials, five state employees, and one public school teacher, all of whom were bilingual and who asserted that the official English provision denied them freedom of speech and EQUAL PROTECTION OF THE LAWS while they performed government business. The Arizona superior court rejected the First Amendment free speech claim because the official English requirement was content-neutral; that is, it did not attempt to regulate what public officials and employees talked about but only the manner in which they communicated. The superior court found no equal protection violation under the Fourteenth Amendment, either, because there was no proof that Arizona voters acted with discriminatory intent or animus when they approved the official English requirement. The Arizona court of appeals, relying on judicial comity, adopted the views of the Ninth Circuit Court of Appeals, even though that court's opinion had been vacated by the U.S. Supreme Court.

On appeal, the Arizona Supreme Court ultimately concluded that the official English measure "violates the First Amendment by depriving elected officials and public employees of the ability to communicate with their constituents and with the public." In the court's view, the provision went "too far" by "effectively cut[ting] off governmental communication with thousands of limited-English-proficient and non-English-speaking persons in Arizona, even when the officials and employees have the ability and desire to communicate in a language understandable to them." In addition, the Arizona court found that the official English requirement infringed on the fundamental RIGHT TO PETITION the government for redress of grievances and correspondingly, to participate on an equal basis in the political process. As a result, the plaintiffs did not need to prove discriminatory intent; instead, discrimination was presumed, and the state's action therefore was subject to STRICT SCRUTINY under equal protection law. Assuming arguendo that the state had a compelling need to promote a uniform language, the Arizona court held that the official English requirement swept too broadly in prohibiting all non-English usage. Because such severe intrusions were not necessary to achieve Arizona's objective, the provision denied plaintiffs equal protection. The U.S. Supreme Court has yet to address the merits of the Arizona Supreme Court's conclusions.

Tensions surrounding the use of languages other than English are likely to persist. Formal measures to declare English the official language are not likely to solve the problem, so long as newcomers bring linguistic diversity with them. Recent immigrants will struggle to learn English to improve their social and economic opportunities, while English-speakers chafe at the sounds of foreign languages during the transition. The linguistic clashes associated with today's demographic changes are as unlikely to be legislated away as were the conflicts among colonial languages during the Framers' times. The role of English as the language of opportunity, rather than as the official language, will be decisive in resolving these differences.