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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.
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.
Worst of all, the guidance endorses the notion that America ought
to be a multilingual nation, and removes important incentives for
all Americans to learn English. In short, as dubious as Executive
Order 13166 and its policy guidance are as a matter of law, they
are much worse as a matter of policy.
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
Chief, Coordination and Review Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Her fax number
is 202/307-0595. For additional information from the civil rights
division, call 202/307-2222.
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