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Editor's
note: The
English First Foundation joined in an amicus brief in Alexander
v. Sandoval.
 he
Supreme Court's 5-4 ruling in the Alabama official English case
on Tuesday (Sandoval) is a chilling reminder of
the slender threads upon
which hang the last shreds of our nation's linguistic unity. A bitterly
divided court came within one vote of making language choice a protected
civil right and transforming every trial lawyer's office into a miniature
federal law-enforcement agency.
The casual reader of
the Court's 46-page opinion in the case of Alexander
v. Sandoval (99-1908) might wonder what all the excitement
is about. In an earlier piece for NRO, "Judicial
Activism on Trial", I explained:
Sandoval created
a right for individuals to sue any government body for a perceived
violation of a civil right. This ruling means for trial lawyers
what the discovery of oil in Alaska meant for oil companies: the
door is now open to a vast new field of potential profit.
During the oral arguments
for the case in January, (discussed at length in "Surrealism
at the Supreme Court", it appeared that the Court was closely
divided. (Check out the transcript
of the oral argument for yourself.)
But on April 24th, the
Court surprised everyone by flatly overruling the 1998 lower-court
ruling in Sandoval v. Hagan on the question of private
action. As Barnaby Zall, the author of the amicus brief joined by
English
First Foundation, 14 members of Congress, and two other English
groups, Pro-English
and the Center for American Unity, noted: "The majority reversed
the decisions below, meaning that the lower-court decisions are
not merely vacated, but wrong."
Justice Scalia's majority
opinion [For Roger Clegg's additional analysis, click
here], written with his usual flair, states that "private
rights of action to enforce federal law must be created by Congress.
. . . Statutory intent on this latter point is determinative. .
. . Without it, a cause of action does not exist and courts may
not create one, no matter how desirable that might be as a policy
matter or how compatible with the statute."
The majority opinion
specifically states: "We do not inquire here whether . . .
the courts below were correct to hold that the English-only policy
had the effect of discriminating on the basis of national origin."
Even so, the Supreme
Court's ruling is a major strategic defeat for the anti-English
lobby. This is because many of the most radical of Bill Lann Lee's
actions during the last days of the Clinton Administration cited
the now-rejected lower court ruling in Sandoval.
The Department of Justice's
Enforcement of Title VI of the Civil Rights Act of 1964--National
Origin Discrimination Against Persons With Limited English Proficiency;
Policy
Guidance, issued in the wake of President Clinton's Executive
Order 13166 specifically cites Sandoval: "see, e.g.,
Sandoval v. Hagan, . . . (giving drivers' license
tests only in English violates Title VI)."
That Policy Guidance
has spawned a host of imitators, most recently in the Treasury
Department, which declared
on March 7, 2001: "Most recently, in Sandoval v.
Hagan, . . . the Eleventh Circuit held that the State of
Alabama's policy of administering a driver's license examination
in English only was a facially neutral practice that had an adverse
effect on the basis of national origin, in violation of Title VI."
The departing Clinton
staff at the Department of Justice even issued a new Title
VI Legal Manual on January 11 of this year which devotes
page after page to, among other things, the importance of all recipients
of federal funds providing services in any person's language of
choice. This section relies heavily on the Sandoval case.
That little housewarming gift to Attorney General Ashcroft must
now be substantially revised (or consigned to the White House dustbin
along with the autographed Barbra Streisand photos).
In fact, the Bush administration
has been handed a perfect opportunity to withdraw EO 13166 and all
of its accompanying regulations. The now-defunct Sandoval
case was one of the only court decisions anywhere ever to declare
language a protected civil right.
There are undoubtedly
those in the Bush administration who hope to avoid this issue altogether.
And there are members of Congress who avoid the issue by arguing
that making English America's official
language is unnecessary.
Those folks would do
well to ponder how close this nation came to a Supreme Court ruling
that would have been a linguistic nightmare for the United States.
Justice Stevens's stinging dissent in this case attracted four votes.
Barnaby Zall reminded me that the Stevens four were not reticent,
agreeing that:
When this Court faced
an identical case 27 years ago, all the Justices believed that
private parties could bring lawsuits under Title VI and its
implementing regulations to enjoin the provision of governmental
services in
a manner that discriminated against non-English speakers.
Mr. Zall explains: "In
other words, if the dissent had garnered one more justice, we would
have had a clear mandate for lawsuits demanding services in a manner
that does not 'discriminate against non-English speakers.' This
would have created a booming legal industry."
The anti-English forces
will not quietly fold their tent after their defeat today. Justice
Stevens all but urged still more litigation on the language rights
issue: "the plaintiffs in this case (or other similarly situated
individuals) presumably retain the option of re-challenging Alabama's
English-only policy."
Bottom line: Winning
is always better than losing. But the Supreme Court's ruling in
Alexander v. Sandoval has not put an end to the language
debate. Congress would do well to step in and settle this issue
legislatively.
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