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The guidance had first become effective on January 19, 2001 — that is, at the eleventh hour of the Clinton administration. The guidance is designed to help agencies comply with another notorious Clinton last-ditch action: his signing of Executive Order 13166. That executive order in principle requires every federal agency and every recipient of federal money to make sure that the inability to speak English isn't barring anyone's access to federally funded programs. In other words, the federal government is now forcing its agencies (and much of the private sector) to conduct their business in Spanish, Tagalog, Urdu, whatever. The guidance is principally a discussion of the four-part balancing test used to determine the scope of the accommodations that must be made for non-English-speakers. The guidance says agencies should look at the number or proportion of non-English-speakers "served or encountered by the recipient in carrying out its operations"; the "frequency with which [recipients] have or should have contact" with non-English language groups; the nature and importance of the program; and the resources available to the program. There is very little discussion, however, of whether the federal government has authority to require funding recipients to make programs available in languages other than English — or of whether it is a good idea to do so. Perhaps this should not be a surprise, because in this case authority and wisdom are both lacking. The legal and policy objections have sharpened during the past year. The legal problems are illuminated by a Supreme Court decision, Alexander v. Sandoval, which was handed down after the guidance was first published. And the events of September 11 make this a good time to reassess the wisdom of executive-branch fiats that inevitably encourage the balkanization of the nation into ethnic enclaves. The guidance (and the executive order behind it) rely on Title VI of the Civil Rights Act of 1964, which prohibits "discrimination under any program or activity receiving Federal financial assistance" against any person in the United States "on the ground of race, color, or national origin." The guidance acknowledges that "On its face, Title VI prohibits only intentional discrimination." Sandoval reaffirms the Supreme Court's earlier pronouncements that Title VI bans only disparate treatment, not actions that may have disproportionate effects on this or that racial or ethnic group. While it is, of course, possible that a particular Title VI recipient might choose to not make its programs available in a language other than English as a way of discriminating against a particular ethnic group, it seems fair to assume that the overwhelming majority of Title VI recipients use English not out of any illicit motive but simply for reasons of ease, convenience, and thrift. Thus, it is much fairer for the government to limit itself to going after any recipients it suspects of disparate treatment — especially since that is all that the underlying statute prohibits. There is no reason to assume that recipients who use only English are guilty until proved innocent by passing some made-up, four-part balancing test. But the guidance does just that — relying on a "disparate impact" approach, which considers actions that have a disproportionate effect on this or that racial or ethnic group to be presumptively illegal, even if they do not use racial or ethnic classifications. But the legal authority is lacking for this leap, and it makes no sense as a policy matter either. There is obviously a legal issue if a federal agency promulgates regulations purporting to implement Title VI, but that ban not only disparate treatment (which Title VI is aimed at) but also actions with only disproportionate effects (which the Supreme Court has said that Title VI allows). The Court has long recognized that the difference between disparate treatment and disparate impact is a difference of kind, not just degree. Guaranteeing nondiscrimination does not mean that each racial and ethnic group must be guaranteed identical outcomes. A guarantee like this is additionally problematic because a ban on disproportionate effects will in fact encourage race-consciousness and disparate treatment — the very behavior that Congress sought to ban in the first place. And even if, in some future case, the Supreme Court rules that federal agencies have authority to write disparate-impact regulations, that would not mean that they should do so, especially given the many bad consequences the disparate-impact approach has had for civil-rights law (for instance, quotas and the invalidation or abandonment of perfectly reasonable selection criteria). Thus, the administration ought to be reassessing the use of the disparate-impact approach in all areas not required by statute — and that includes Executive Order 13166. Indeed, the disparate-impact approach is especially untenable in the language area. It equates the use of English with national-origin discrimination, which is absurd. Ethnicity and the
ability to speak English are obviously distinct qualities. Some people
of a particular national origin will not be able to speak English well;
others will. Conversely, some people not of that particular national
origin will also not be able to speak English well. Thus, the courts
have overwhelmingly rejected claims that employers with a preference or
even a requirement for speaking English (practices that go much further
than the mere failure to make the positive accommodations that the guidance
would require) are discriminating on the basis of national origin. Executive Order 13166 ought to be revoked, and the policy guidance with it. Furthermore, all agency regulations promulgated under Title VI that rely on the disparate-impact approach should be revoked as well. Comments on the guidance can be sent to: Ms. Merrily Friedlander Her fax number is 202/307-0595. For additional information from the civil rights division, call 202/307-2222. — Mr. Clegg is general counsel at the Center for Equal Opportunity. |
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January 18, the U.S. Justice Department's civil-rights division republished
for additional public comment a "policy guidance" it had first
issued a year earlier. Ralph F. Boyd, Jr. — who now heads the division
— is to be praised for giving the public a second go at this guidance,
and the public should take him up on his offer. Comments are due on or
before February 19. 
