Official English Author Responds to Anonymous “Analysis”

The House author of Senate Bill 163, the “official English” law, has provided legislators with a seven-page legal brief explaining and defending the proposal.

State Rep. Randy Terrill, R-Moore, provided the brief in response to an anonymous “analysis” distributed Monday that questioned the legislation’s constitutionality.

“A recent ‘analysis’ argues that Senate Bill 163 is unconstitutional because it violates government employees’ ‘free speech rights’ to use languages other than English while performing their official duties. The ‘analysis’ uses constitutional arguments from a 1998 Arizona state case, but doesn’t say that those arguments were considered – and rejected – in 2006 by the U.S. Court of Appeals for the Tenth Circuit, which upheld an Oklahoma city’s rule that all city work be done in English.

The ‘analysis’ also ignores more than 30 years of unbroken federal cases upholding Official English laws and policies, including recent decisions approving language similar to SB 163. SB 163 was drafted to protect the free speech rights of all Oklahomans, including government employees.

“SB 163 is a reasonable, carefully-drafted set of choices about when to use English in Oklahoma government actions. It protects private use of language, and even permits informal use of languages other than English when there is no cost to the State. It is flexible, respects federal law, and permits change as the Legislature reviews future needs. But SB 163 says that in most cases, English will be the language of Oklahoma’s state government.”

A complete copy of the legal brief and the executive summary is as follows:

WHY SB 163 IS CONSTITUTIONAL
AND NEEDED

Prepared and Distributed by State Rep. Randy Terrill
and State Sen. Owen Laughlin – May 6, 2008

SUMMARY:
A recent “analysis” argues that Senate Bill 163 is unconstitutional because it violates government employees’ “free speech rights” to use languages other than English while performing their official duties. The “analysis” uses constitutional arguments from a 1998 Arizona state case, but doesn’t say that those arguments were considered – and rejected – in 2006 by the U.S. Court of Appeals for the Tenth Circuit, which upheld an Oklahoma city’s rule that all city work be done in English. The “analysis” also ignores more than 30 years of unbroken federal cases upholding Official English laws and policies, including recent decisions approving language similar to SB 163. SB 163 was drafted to protect the free speech rights of all Oklahomans, including government employees.

SB 163 is a reasonable, carefully-drafted set of choices about when to use English in Oklahoma government actions. It protects private use of language, and even permits informal use of languages other than English when there is no cost to the State. It is flexible, respects federal law, and permits change as the Legislature reviews future needs. But SB 163 says that in most cases, English will be the language of Oklahoma’s state government.

Introduction:

You may have seen a recent “analysis” complaining that Senate Bill 163 is “unconstitutional” because it violates constitutional free speech rights. The “analysis” says SB 163 goes “too far by requiring all official State business to be conducted in English” and argues that SB 163 will be struck down by federal courts as unconstitutional.

The “analysis” is wrong. For example, the “analysis” takes its constitutional arguments from a 1998 Arizona state case which said that a government worker had a First Amendment right to do her job in a language her supervisor could not understand. Ruiz v. Hull, 957 P.2d 984 (Ariz. 1998). Yet the “analysis” doesn’t mention that, in 2006, the U.S Court of Appeals for the Tenth Circuit (which has jurisdiction over Oklahoma) upheld an Oklahoma city’s law that all city work be done in English. Maldonado v. City of Altus, Oklahoma, 433 F.3d 1294 (10th Cir. 2006). The “analysis” doesn’t want you to know that the Tenth Circuit considered the same arguments, and rejected them totally and completely.

In its decision, the Tenth Circuit said: “Plaintiffs have not called to our attention, nor have we found, any cases from either the Supreme Court or this circuit establishing the right to speak a foreign language in the workplace. Further, published authority from other circuit courts suggests that English-only rules as applied to bilingual speakers are generally not discriminatory.” 433 F.3d at 1316.

SB 163 is constitutional, and contains express protections for free speech. SB 163 was carefully drafted to incorporate all constitutional protections, including rights of those who speak English. It balances those rights against rising demands for government services in languages other than English. SB 163 is constitutional, and contains express protections for free speech. Thirty states (not “over twenty” as the “analysis” puts it) and numerous local governments have adopted English their official languages; in 2006, for example, Arizonans voted 74%-26% in favor of a new constitutional provision declaring English the state’s official language. Those Official English declarations – and SB 163 – are constitutional.

Free Speech and Government Accountability:
SB 163 respects and balances free speech rights. The most glaring error in the “analysis” is that it confuses individuals’ speech with official speech by the government. That is why SB 163 is constitutional: it deals only with “government speech,” not private speech. It’s different from the old Arizona law the “analysis” wants to focus on.

Maria-Kelly Yniguez, who brought the original Arizona challenge, was a state employee who decided whether to give government payments to patients injured in state hospitals; she could write checks of up to $10,000 without anyone else’s signature. She claimed to have a constitutional right to do her work in Spanish, even though her supervisors couldn’t understand Spanish. The U.S. Supreme Court threw out her case. Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). The Arizona Supreme Court later disagreed, saying that the Amendment unconstitutionally inhibits “the free discussion of governmental affairs.” Ruiz, 957 P.2d at 997.

SB 163, on the other hand, contains an express protection for the rights of individuals, including government officials and employees, to use any language they wish in private conversations. They can even provide unofficial translations or explanations in languages other than English (at no cost to the taxpayers). It is only when they are speaking on behalf of the State of Oklahoma that they must use English.

Even then, SB 163 contains numerous exceptions when the State can use languages other than English, including to protect the public health and safety, to teach languages other than English, to comply with federal law (which includes all constitutional guarantees), to respect and encourage the use of Native American languages, and so on. The Arizona law did not have those protections for private speech, and that is the principal reason the Arizona Supreme Court rejected it. SB 163 has those protections and does not violate free speech guarantees, even of government workers. SB 163 is a balance of rights.

Nevertheless, Oklahomans want their government to be accountable, and SB 163 requires all government employees to be accountable to the people. Maria-Kelly Yniguez wanted to give away government money without her supervisors knowing what she was doing; SB 163 will permit informal discussions in a language other than English, but the official action itself must be taken in English so that every Oklahoman can know what was done.

The constitutional principle behind SB 163 is simple: “When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted.” Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 833 (1995).

A government may take a position, for example, against drug use or discrimination, or in favor of family-friendly policies. A government may require its employees to explain the government’s position. “When the government appropriates public funds to promote a particular policy of its own, it is entitled to say what it wishes.” Rosenberger, 515 U.S. at 833. What public employees say on their own time as private citizens is different, but when they speak for the government, the State can tell them what to say. Otherwise people would be confused and policy would be undercut. What if a prosecutor, for example, announced during a drug dealer’s trial that he personally favored legalizing heroin use?

SB 163 balances rights in a variety of situations, but says that most of the time, official actions must be taken in English. That is a choice, and it is constitutional.

The Language In SB 163 Has Already Survived Court Challenge:
The “analysis” contends that: “To date, no such prohibitions such as the ones set out in Senate Bill 163 have been found to be constitutional.” That statement is easily proven wrong: the U.S. Court of Appeals for the Tenth Circuit found the exact opposite in 2006. Maldonado v. City of Altus, Oklahoma, 433 F.3d 1294 (10th Cir. 2006). That is the controlling law in Oklahoma.

In Maldonado, the Tenth Circuit considered the very same arguments made in the “analysis.” “Plaintiffs devote the final four pages of their opening brief to a claim that the City’s English-only policy violates their First Amendment rights.” 433 F.3d at 1309. The Tenth Circuit rejected the claim, in a long and specific discussion of each of the points also raised in the “analysis” of SB 163. 433 F.3d at 1309-1314.

It wasn’t a close call. The Tenth Circuit noted, for example, that “The First Amendment is not violated when a public employer disciplines an employee for speaking Spanish at work if the employer had no motive to quash expression on a matter of public concern.” 433 F.3d at 1313. “Indeed, given that Plaintiffs’ most vigorous argument is that speaking Spanish is the equivalent of wearing a ‘Proud to Be Hispanic’ tee shirt, it is ironic that the challenged work rule would not prohibit wearing such a shirt.” Id. (Nor, by the way, would SB 163.)

SB 163 was drawn from the most recent Official English statutes, including those which have already been upheld by the courts. Much of the language in SB 163, for example, was drawn from a recently challenged law in Hazleton, Pennsylvania. Although that court decision was widely publicized for striking down provisions dealing with employing illegal immigrant workers, what the “analysis” didn’t tell you is that an Official English law, very similar to SB 163, was challenged at the same time. Lozano v. City of Hazleton, 496 F.Supp.2d 477, 484 (M.D. Pa. 2007). Once the plaintiffs in Lozano reviewed the arguments in favor of the Official English law, they withdrew their challenge.

Finally, it is worth noting that more than thirty years of federal cases uniformly uphold Official English rules. See, e.g., U.S. v. Ortiz, 422 U.S. 891, 897 (1975)(law enforcement officials may use occupants’ inability to speak English as indicator of illegal status sufficient to authorize search of vehicle); Rubio ex rel. Z.R. v. Turner Unified School District No. 202, 453 F.Supp.2d 1295, 1305 (D. Kan., 2006)(no case establishes right to speak foreign language at a public school and many cases hold that “English-only” rules in the workplace are non-discriminatory); Vialez v. New York City Housing Authority, 783 F.Supp. 109, 119-125 (S.D.N.Y. 1991) (sending housing termination notices only in English doesn’t violate Due Process, Fair Housing Act or Equal Protection); Pabon v. McIntosh, 546 F.Supp. 1328, 1340-41 (E.D.Pa. 1982)(giving prisoners educational classes only in English did not violate Equal Protection, where officials showed that cost precluded classes in multiple languages); Zappa v. Cruz, 30 F.Supp.2d 123, 127 (D.P.R., 1998) (rejecting a claim that Equal Protection forbade the declaration of English as one of Puerto Rico’s official languages); Smothers v. Benitez, 806 F.Supp. 299, 304-309 (D.P.R. 1992)(analyzing the issue and surveying cases involving official English laws); Garcia v. Spun-Steak, 998 F.2d 1480, 1489-90 (9th Cir. 1993), cert. den. 512 U.S. 1228 (1994)(EEOC Guidelines equating language and national origin were ultra vires); Vasquez v. McAllen Bag & Supply Co., 660 F.2d 686 (5th Cir. 1981)(upholding English-on-the-job rule for non-English-speaking truck drivers); Garcia v. Rush-Presbyterian St. Luke’s Medical Center, 660 F.2d 1217, 1222 (7th Cir. 1981)(upholding hiring practices requiring English proficiency); Long v. First Union Corp., 894 F.Supp. 933, 941 (E.D. Virginia, 1995 (“there is nothing in Title VII which protects or provides that an employee has a right to speak his or her native tongue while on the job.”), affirmed, 86 F.3d 1151 (4th Cir. 1996); Garcia v. Spun Steak, 998 F.2d 1480, 1489-90 (9th Cir. 1993), cert. den., 512 U.S. 1228 (1994) (rejecting EEOC guidelines); Gonzalez v. Salvation Army, 985 F.2d 578 (11th Cir.)(table), cert. den., 508 U.S. 910 (1993)(rejecting employment discrimination claim); Jurado v. Eleven-Fifty Corp, 813 F.2d 1406 (9th Cir. 1987)(permitting radio station to choose language an announcer would use); Vasquez v. McAllen Bag & Supply Co., 660 F.2d 686 (5th Cir. 1981) (upholding English-on-the-job rule for non-English-speaking truck drivers); Garcia v. Rush-Presbyterian St. Luke’s Medical Center, 660 F.2d 1217 (7th Cir. 1981)(upholding hiring practices requiring English proficiency); Long v. First Union Corp., 894 F.Supp. 933, 941 (E.D. Virginia, 1995)(“there is nothing in Title VII which protects or provides that an employee has a right to speak his or her native tongue while on the job”), affirmed, 86 F.3d 1151 (4th Cir. 1996); Gotfryd v. Book Covers, Inc., 1999 WL 20925, *8 (N.D. Ill. 1999)(rejecting attempt to use EEOC guidelines to establish hostile workplace); Magana v. Tarrant/Dallas Printing, Inc., 1998 WL 548686, *5 (N.D. Texas, 1998) (“English-only policies are not of themselves indicative of national origin discrimination in violation of Title VII”); Tran v. Standard Motor Products, Inc., 10 F.Supp.2d 1199, 1210 (D. Kansas, 1998)(“the purported English-only policy does not constitute a hostile work environment”); Mejia v. New York Sheraton Hotel, 459 F.Supp. 375, 377 (S.D.N.Y. 1978)(chambermaid properly denied a promotion because of her “inability to articulate clearly or coherently and to make herself adequately understood in . . . English”); Prado v. L. Luria & Son, Inc., 975 F.Supp. 1349 (S.D. Fla 1997)(rejecting challenge to English workplace policy); Kania v. Archdiocese of Philadelphia, 14 F.Supp. 2d 730, 733 (E.D. Penn. 1998) (surveying cases: “all of these courts have agreed that – particularly as applied to multi-lingual employees – an English-only rule does not have a disparate impact on the basis of national origin, and does not violate Title VII.”); Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983), cert. den. 466 U.S. 929 (1984); Toure v. United States, 24 F.3d 444, 446 (2nd Cir. 1994) (rejecting request for multilingual forfeiture notices); Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999) (same for deportation notices). And there are many other cases as well, all upholding Official English rules, and almost none striking down English-language rules.

Having ignored the dozens of cases supporting SB 163, the “analysis” then contends that SB 163 would be unconstitutional under a 2002 Oklahoma Supreme Court decision striking down a proposed Official English initiative. In re Initiative Petition No. 366, 46 P.3d 123 (Okla. 2002). Yet the Oklahoma Supreme Court, in Initiative Petition No. 366, was a ruling only under the Oklahoma Constitution, and not under the U.S. Constitution. Since SB 163, if passed by the voters, amends the Oklahoma Constitution, it isn’t affected by Initiative Petition No. 366.

SB 163 Won’t Lead to Lawsuits:
The “analysis” then complains about the “citizen standing” provision in SB 163. “I can not understand why we would want to encourage lawsuits to be filed against the State.” But, again, the “analysis” ignores reality. Several states, including Alabama and California, have Official English laws with the same kind of “citizen standing” provision, yet almost no cases have been filed under them.

The purpose of a “citizen standing” provision is to permit the voters who amend their constitution by referendum to hold their elected officials accountable if the officials do not obey the law. Because “legal standing” rules limit the people’s ability to bring suit if government officials don’t do their jobs, “citizen standing” provisions must be added to allow enforcement. That is what SB 163 offers to Oklahomans: a way to hold government officials to their promises.

Why SB 163 is Needed:
In a perfect world, there would be no need for legal protection for English. Unfortunately, in recent years a new kind of “right” has been claimed: the right to force the government to speak in many languages.

The federal government, for example, now is pressuring state and local governments to provide interpreters in other languages. Executive Order 13166 (2000). “It is important to ensure that written materials routinely provided in English also are provided in regularly encountered languages other than English.” http://www.lep.gov/faqs/faq.html. This federal Executive Order has never been tested in court. It is based on an interpretation of federal antidiscrimination law that has been repeatedly and uniformly rejected by federal courts for over thirty years. Nevertheless, this Executive Order remains in effect today, and Oklahoma has to deal with it.

This “language rights” mentality has led to pages on pages of densely-packed federal unfunded mandates. See, e.g.: http://www.lep.gov. As a result, there have been increasing demands to provide Oklahoma’s government services in a variety of languages, such as driver’s license examinations in Farsi. “Iranian Immigrants want Farsi-language Oklahoma driver’s license testing,” Tulsa World, April 21, 2008, http://www.tulsaworld.com/news/article.aspx?articleID=20080401_1__
OKLAH23086. And the federal government is now seriously investigating that claim. Id. “If the state does not comply, it could be penalized by the withholding of federal transportation money.” Id.

But the Supreme Court has long held that certain aspects of a state’s government are sovereign, and not subject to federal whim. Throughout American history, the Supreme Court has permitted States to use English. Patterson v. De La Ronde, 8 Wall. 292, 299-300 (1869)(Court reconciled French and English versions of Louisiana mortgage law); Meyer v. Nebraska, 262 U.S. 390, 402 (1923)(“The power of the State to . . . make reasonable requirements for all schools, including a requirement that they shall give instructions in English, is not questioned.”).

Like the choice of location of its own State Capitol, a State’s choice to use English in conducting its affairs is a “function essential to [the State’s] separate and independent existence.” Coyle v. Wyoming, 221 U.S. 559, 595 (1911). Choice of the English language for internal State operations is thus an “original power,” core State function over which federal abrogation power is limited. Any federal abrogation, therefore, must be explicit and remedial. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 526 U.S. 1063 (1999).

That is what SB 163 is all about: protecting state sovereignty against increasing demands. SB 163 will give way to any explicit and remedial federal abrogation, but not general demands for language rights. This protection for Oklahoma was not needed in the past, but it is needed today.

Every day, across Oklahoma, government officials face demands to use languages other than English. For example, Art. 1, § 5 of the Oklahoma Constitution requires Oklahoma schools to be conducted in English. The public schools “shall always be conducted in English: Provided, that nothing herein shall preclude the teaching of other languages in said public schools.” And Oklahoma statutes unambiguously require: “Instruction given in the several branches of learning in the public schools shall be conducted in the English language except as is necessary for the teaching of foreign languages.” 70 Ok.St. § 11-102, Curriculum; Instruction Conducted in the English Language. But have you stepped into an Oklahoma school these days?

Dealing with demands for multi-lingual government services is part of governing. Providing services in languages other than English is not necessarily a bad thing. Sometimes it is a very good thing. But those decisions are choices, which should be made by the democratic process, not forced by demands by those who do not have to balance public needs and priorities.

SB 163 is a reasonable choice. It says that English will be used in most circumstances. It says that English need not be used in other circumstances. It clarifies the law and protects government officials against demands and lawsuits. It protects taxpayers against increasing demands for services without end. It balances rights against rights.

SB 163 is constitutional. It is reasonable. It was carefully crafted to be both reasonable and balanced. It is needed. It brings Oklahoma into line with many other states. It should be adopted.