A Few Votes from Babel
Supreme Court holds the line on balkanization.

By Jim Boulet Jr., executive director, English First.
April 25, 2001 9:55 a.m.

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.