10/02/00 4:05 p.m.
Judicial Activism on Trial
Keep you fingers crossed.

By Jim Boulet, Executive Director of English First

n September 26th, the Supreme Court announced it would hear an appeal of the Alabama official English case, Alexander v. Sandoval. This is an important case for supporters of English only, but also for anyone concerned with judicial activism. 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.

Picture thousands of Bill Lann Lee clones merrily filing lawsuits against state and local governments for failing to provide forms in Urdu or any other of the over 300 languages spoken in America. Picture them cashing the checks for attorney's fees they will receive for agreeing to settle each case. Picture your tax bills skyrocketing. That is what is at stake in the Sandoval case.

How did we get here? Let's do a quick review.

In 1990, Alabama voters overwhelmingly approved a state official English law (525,615 "yes" votes to 68,154 "no" votes). While most state official English laws have tended to gather dust once enacted, to their credit Alabama's elected officials chose to enforce Amendment 509. The amendment designated English as the "official language of the State of Alabama" and required state officials to take "all steps necessary to ensure that the role of English as the common language of the state of Alabama is preserved and enhanced."

Prior to passage of Amendment 509, Alabama's Department of Public Safety administered thousands of driver's tests in "at least fourteen languages other than English." Once the new law was on the books, Alabama officially forbade the use of "interpreters, translation dictionaries and other interpretive aids" during the process of getting a driver's license.

Given that it is a considerable challenge to leaf through a translation dictionary to determine the meaning of "Do Not Enter" while driving at 60 miles per hour on a dark highway, there was a certain amount of common sense inherent to the new rules.

Enter Martha Sandoval, a Mexican immigrant, who filed a lawsuit. Her case was supported by two legal powerhouses: Edward M. Chen, of the American Civil Liberties Union Foundation of Northern California and a team of lawyers from Morris Dees' Southern Poverty Law Center.

A random draw allowed the case to be heard by Judge Ira DeMent, a Bush appointee to the federal bench, who had earlier made national headlines by declaring that student-initiated prayer in Alabama's public schools was unconstitutional. (Judge DeMent specifically banned "vocal prayer[,] Bible and religious devotional or scriptural readings.")

To read Judge DeMent's opinion is to hear the sound of an axe grinding. Just one example of his methods will suffice. Legislative silence on a subject does not always mean the same thing to Judge DeMent. Rather, legislative silence is but a handy tool to demonstrate whatever point the good judge wishes to assert at that particular moment.

Sometimes legislative silence means disapproval:

Congress has never declared English to be the official language of the United States, consequently [Alabama's] English-Only Policy is not a reflection of national policy, and, even if it were, does not justify the Policy.

At other times, legislative silence means approval:

Neither Title VI nor the regulations implemented . . . expressly authorize a private right of action. It is clear, however, that Title VI itself . . . authorizes "an implied private cause of action for victims of the prohibited discrimination."

Given his tendentious approach to fact-finding, the outcome of this case was not unexpected. Congress has never included language choice as part of the "national origin" discrimination banned by the 1964 Civil Rights Act. Once again, Judge DeMent treated this silence by Congress as an open invitation to legislate from the bench. He ruled that conducting driver's tests in English-only had a "disparate impact" on persons who could not speak English and therefore illegally discriminated on the basis of national origin.

Now, people who do not speak English will certainly be more inconvenienced by an English-only policy than persons who do speak the language, but this has nothing to do with any person's national origin. A person's national origin does not change, while a language can always be learned. And those who do not know English generally know a family member, neighbor, or friend who can translate for them in the meantime.

Judge DeMent's ruling has the practical effect of replacing these trusted family members with indifferent government bureaucrats. His ruling also effectively encourages immigrants to avoid the hard work of learning a new language but to depend on government officials to fulfill their every need. While it certainly is easier to rely on government translation, the long-term consequences of continuous reliance on the government's beneficence have been amply documented -- just ask any American Indian.

Judge DeMent's opinion also earns the judicial activism gold medal in the category of avoidance of obvious facts.

For example, translation is an inexact science. In an earlier piece for National Review Online, "The Perils of Translation," I cited a Spanish translation mistake which Vice President Al Gore made while attempting to bond with his Hispanic audience. The citation in my article was verified by two Spanish speakers. Yet, the day after the article appeared, I received an e-mail which argued that the translation was in error.

Let's do the math here: three people disagreed about the meaning of one single sentence in Spanish. Imagine the arguments over every line of official government documents, documents which are not known for their brevity.

Judge DeMent's ruling argued that translation problems did not matter:

In Spanish, for example, people from one country may use the word carro and people from a different country may prefer the work [sic] automovil. But everyone who speaks Spanish understands that both words mean "car." Moreover, to the limited extent that particular words vary from country to country, alternative words can be provided. For example, the Spanish exam previously administered by the Department provided some alternative Spanish words . . . (providing both pito and bocino as alternatives for the English word "horn"). In any event, any problems with dialect variations on the exams did not pose significant obstacles in the past (emphasis added).

Additional inconvenient facts were similarly wished away. Judge DeMent's ruling stated that "[t]here was no evidence that non-English speakers were more likely to cheat" on driver's tests.

Actually there was considerable evidence that there was lots of cheating going on in Alabama DMV offices. The cheating was not merely limited to non-English speakers. Sign Language interpreters turned out to be giving deaf applicants answers to the examination.

Unless the DMV examiner happened to speak the language being translated, he had no way of catching most cheating. A question is asked in English, such as "what does a red light mean?" The interpreter turns to the applicant and says something in Chinese. The applicant replies in Chinese. The interpreter then tells the examiner "she says a red light means stop." The process can be repeated indefinitely until the test is passed.

Other methods of cheating proved easier to detect. There was testimony that in Mobile:

[I]t appears that the Vietnamese community has all six examinations that we administer translated. We have seen some applicants convert the answers into a dot-dash code and secrete the coded answers in dictionaries and elsewhere.

A Georgia witness also reported that "illegal Latin American immigrants have a Spanish-language version of the test before they come to our driver's license facilities."

Judge DeMent dismissed Georgia's experience as irrelevant to Alabama, while Martha Sandoval's legal team quickly played the race card, accusing the defense of demonstrating "stereotypical biases against non-English speakers."

Another hallmark of judicial activism is to require one side to prove the unprovable and then punish them for their failure. Judge DeMent's opinion wins a gold star here.

Nearly all civil-rights litigation revolves around the issue of "burden of proof." As a general rule, whoever must prove something will lose. Thus schools which chose to dispute federal bilingual education mandates were told to prove their alternative would be more effective--a test bilingual education itself could not meet. Schools which knuckled under and provided bilingual education were required to prove absolutely nothing.

Judge DeMent's opinion stated that "there was no evidence that non-English speakers posed a greater safety risk or had more accidents than other motorists."

Exactly what sort of evidence would satisfy Judge DeMent on this point is unknown. Raw numbers are not kept for good reason. When the police and emergency medical technicians arrive on the scene of a five-car pileup, they generally do not stop to administer an English language exam to the people involved.

Judge DeMent did choose to specifically reject the evidence which does exist on the traffic-safety issue. A federal law which applies to all applicants for a Commercial Driver's License requires that potential license holders must be able to "read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records."

Lastly, judicial activism is indifferent at best to the costs it imposes on the taxpayer. The most notorious example to date, Missouri v. Jenkins, resulted in a bill of $1.3 billion (an extra $36,111 for each of Kansas City's 36,000 students) as of 1995.

While the ultimate cost of Judge DeMent's ruling cannot be determined with certainty, it will most assuredly be a sum greater than zero. Yet Judge DeMent's statement that "translations of the English examination were obtained at no cost to the [taxpayer]" carried the implication that future translations would also be free of charge. Common sense as well as Economics 101 suggest otherwise.

Judge DeMent's opinion also argued that "[t]he fact that there may be a handful of people whose languages are too obscure to accommodate is not a reason to refuse to serve the thousands of persons whose languages are common in the state." He may have been attempting to limit the costs of his ruling to some unspoken standard of reasonableness.

Yet a particular language's obscurity, like a particular person's beauty, is in the eye of the beholder. And the government's record of reasonableness on language matters is not good.

Judge DeMent's ruling made considerable use of Lau v. Nichols, a 1974 Supreme Court decision. The federal government has used this ruling to require schools to adopt costly and failed bilingual education programs throughout the length and breadth of the United States. (The Supreme Court actually mandated no such thing, explicitly saying: "[t]eaching English to the students of Chinese ancestry who do not speak the language is one choice. Giving instruction to this group in Chinese is another. There may be others.")

During the Carter Administration, the federal government decided that Lau required the state of Alaska to develop a written form of the Eskimo tongue and then teach children to read it before those children would be allowed to learn English.

The bottom line is that the Sandoval case could go a long way to deciding what kind of country America will become in the next century.

If the Supreme Court upholds Judge DeMent's far-reaching ruling, government agencies (and by implication private businesses) will be required to do the impossible and do so under the constant threat of expensive lawsuits. Language-rights activists will gain the power to make or break a community's budget and your family budget in the bargain. After all, someone has to pay the bill for all the endless litigation Sandoval will provoke.

An additional consequence of a ruling in favor of Sandoval is that non-English speakers will be further encouraged to remain in their linguistic ghettos instead of taking their rightful place in mainstream America. Thus, if the Supreme Court allows Judge DeMent's bizarre ruling to survive, America will reap both bankruptcy and Balkanization.

The Supreme Court is expected to hear arguments on Sandoval this January, with a decision by June 2001. Keep you fingers crossed.