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IN THE SUPREME COURT
OF THE UNITED STATES

JAMES ALEXANDER, IN HIS OFFICIAL CAPACITY AS DIRECTOR
OF THE ALABAMA DEPT. OF PUBLIC SAFETY
AND
ALABAMA DEPT. OF PUBLIC SAFETY,
Petitioners
v.
MARTHA SANDOVAL,
Respondent

BARNABY W. ZALL
Counsel of Record for Amici
7018 Tilden Lane
Rockville, MD 20852
(301) 231-6943

Whether Congress intended to create a private cause of action in federal court against a State agency that receives federal grant funds, thereby allowing a private individual to enforce disparate effect regulations promulgated by federal.ii agencies under Section 602 of the Civil Rights Act of 1964 and bypass the federal agency review and enforcement process established by Congress.

Note: Amici respectfully suggest that the Question presented above fairly includes the following questions:

Whether a person’s choice of language can be equated, under Title VI of the Civil Rights Act of 1964, to the person’s national origin.

Whether Title VI of the Civil Rights Act of 1964 requires a state agency, which receives federal funds for some of its programs, to provide all services in any language demanded by applicants.

Table of Authorities

Interest of Amici Curiae

Statement of Context

Summary of Argument

Argument

I. A Per Se Rule Equating Language With National Origin Has No Basis in Law or Fact, and Would Be Unworkable and Unwise

A. A Per Se Rule Equating Language and National Origin Has No Basis In Law or Fact 

B. A Per Se Rule Equating Language and National Origin Is Unworkable

C. A Per Se Rule Equating Language and National Origin Is Unwise

II. Federal Rules Which Affect Core Rights of the States to Choose English for Internal Operations Must Be Explicit

Conclusion

Abdullah v. Immigration and Naturalization Service, 184
F.3d 158 (2d Cir. 1999) 14, 20

Alden v. Maine, 527 U.S. 706 (1999) 24

Alfonso v. Board of Review, 89 N.J. 41, 444 A.2d 1075, cert. denied, 459 U.S. 806 (1982) 22

An v. General Am. Life Ins. Co., 872 F.2d 426 (9 th Cir. 1989)(table) 15

Arizonans for Official English v. Arizona, 520 U.S. 34 (1997) 3, 22

Carmona v. Sheffield, 475 F.2d 738 (9 th Cir. 1973) 16, 22

Commonwealth v. Olivio, 369 Mass. 62, 337 N.E.2d 901 (1975) 22

Coyle v. Wyoming, 221 U.S. 559 (1911) 25

EEOC v. Premier Operator Services, 113 F.Supp.2d 1066 (N.D. Texas, 2000) 15

EEOC v. Synchro-Start Products, 29 F.Supp.2d 911 (N.D.Illinois, 1999) 15, 16

Espinoza v. Farah Mfg Co., 414 U.S. 86 (1973) 12, 13, 16, 18

Family Service Agency San Francisco v. Nat’l Labor Relations Board, 163 F.3d 1369 (9 th Cir. 1999) 3

Florida Prepaid Postsecondary Education Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) 25

Frontera v. Sindell, 522 F.2d 1215 (6 th Cir. 1975) 16, 22

Garcia v. Gloor, 618 F.2d 264 (5 th Cir. 1980), cert. den., 449 U.S. 113 (1981) 13, 16, 18, 23.iii

Garcia v. Rush-Presbyterian St. Luke’s Medical Center, 660 F.2d 1217 (7 th Cir. 1981) 14, 16

Garcia v. Spun-Steak, 998 F.2d 1480 (9 th Cir. 1993), cert. denied, 512 U.S. 1228 (1994)6, 13, 16, 23

Gonzalez v. Salvation Army, 985 F.2d 578 (11 th Cir.)(table), cert. den., 508 U.S. 910 (1993) 16

Gotfryd v. Book Covers, Inc., 1999 WL 20925 (N.D. Illinois, Jan 7, 1999) 16

Gregory v. Ashcroft, 501 U.S. 452 (1991) 24

Guerrero v. Carleson, 9 Cal. 3d 808, 512 P.2d 833, 109 Cal. Rptr. 201 (1973), cert. denied, 414 U.S. 1137 (1974) 22

Gutierrez v. Municipal Court of the Southeast Judicial District, 838 F.2d 1031 (9 th Cir. 1988), dissent from reh’g enbanc, 861 F.2d 1187 (9 th Cir. 1988), vacated, 490 U.S. 1016 (1989) 3, 13

Hernandez v. New York, 500 U.S. 352 (1991) 2, 14, 19

Hernandez v. Texas, 347 U.S. 475 (1954) 18

Hirabayashi v. United States, 320 U.S. 81 (1943) 12

Holland v. Illinois, 493 U.S. 474 (1990) 21

Jurado v. Eleven-Fifty Corp, 813 F.2d 1406 (9 th Cir. 1987) 16

Kania v. Archdiocese of Philadelphia, 14 F.Supp. 2d 730 (E.D. Penn. 1998) 16

Lane County v. Oregon, 7 Wall. 71 (1869) 24

Lau v. Nichols, 414 U.S. 563 (1974) 25

Long v. First Union Corp., 894 F.Supp. 933 (E.D. Virginia, 1995, aff’d, 86 F.3d 1151 (4 th Cir. 1996) 14, 16.iv

Magana v. Tarrant/Dallas Printing, Inc., 1998 WL 548686 (N.D. Texas, 1998) 16

Mejia v. New York Sheraton Hotel, 459 F.Supp. 375 (S.D.N.Y. 1978) 16

Meyer v. Nebraska, 262 U.S. 390 (1923) 25

Nazarova v. INS, 171 F.3d 478 (7 th Cir. 1999) 16, 20, 22

Nevada v. Hall, 440 U.S. 410 (1979) 24

Oregon v. Mitchell, 400 U.S. 112 (1970) 24

Patterson v. De La Ronde, 8 Wall. 292 (1869) 25

Pejic v. Hughes Helicopters, 840 F.2d 667 (9 th Cir. 1988) 13

Prado v. L. Luria & Son, Inc., 975 F.Supp. 1349 (S.D. Fla 1997) 16

Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) 24

St. Francis College v. Al-Khazraji, 481 U.S. 604 (1987) 12

Sandoval v. Hagan, 197 F.3d 484 (11 th Cir. 1999) passim

Seltzer v. Foley, 502 F.Supp. 600 (S.D.N.Y. 1980) 19

Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir. 1983), cert. den. 466 U.S. 929 (1984) 11, 14, 22

Sugarman v. Dougall, 413 U.S. 634 (1973) 18 

Toure v. United States, 24 F.3d 444 (2 nd Cir. 1994)11, 15, 21, 22.v

Tran v. Standard Motor Products, Inc., 10 F.Supp.2d 1199 (D.Kansas, 1998) 16

United States v. Fordice, 505 U.S. 717 (1992) 12

United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970) 14

United States v. Perez, 658 F.2d 654 (9 th Cir. 1981) 19

U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) 24

Vasquez v. McAllen Bag & Supply Co., 660 F.2d 686 (5 th Cir. 1981) 14, 16

Vialez v. New York City Housing Auth., 783 F.Supp. 109 (S.D.N.Y. 1991) 21

Yniguez v. Arizonans for Official English, 69 F.3d 920 (9 th Cir. 1995), vacated, sub nom., Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) 15

Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926) 14

42 U.S.C. § 2000d, Civil Rights Act of 1964, Title VI, Pub. L. 88-352, Title VI, § 602, July 2, 1964, 78 Stat. 252

S.D. Codified Laws Ann. §§ 1-27-20 to 1-27-26 (1995) 22

Executive Order No. 13,166, 65 Fed. Reg. 50121 (Aug. 16, 2000) passim

Civil Rights Division, United States Department of Justice, "Enforcement of the Civil Rights Act of 1964 – National.vii Origin Discrimination Against Persons with Limited English Proficiency; Policy Guidance," 65 Fed. Reg. 50123 (Aug. 16, 2000) 7, 8, 13

Alabama Secretary of State, Certification of Results of Election Held June 5, 1990, June 20, 1990 24

"A Bilingual Prison," The New York Times, Sept. 21, 1995, A22 23

A. Blaustein & D. Epstein, Resolving Language Conflicts: A Study of the World’s Constitutions, (1986) 17

S. Berk-Seligson, The Bilingual Courtroom (1990) 20

College Classes Spur Lifelong Math Memory, 138 Science News 375 (1990) 18

Diehl, "O’side district ripped over bilingual ed," North County Times, Oct. 3, 2000, front page, reprinted at http://www.onenation.org/0010/100300b.html 6

Diehl, "Prop. 227 author criticizes investigation of O’side district," North County Times, October 4, 2000, reprinted at http://www.onenation.org/0010/100400c.html 6

Draper & Hicks, Foreign Language Enrollment in Public Secondary Schools, Fall 1994, American College of Teachers of Foreign Languages, Table 2 18

Noonan, "I Believed That Bilingual Education Was Best . . . Until the Kids Proved Me Wrong," The Washington Post, Sept. 3, 2000, B1 4, 5

Pearce & Ryman, "English-only Receives Boost," The Arizona Republic, Aug. 22, 2000, 1 4

J.R. Pole, Foundations of American Independence, 1763-1815 (1972) 25

CRIM. JUST. NEWSL. 13, 2 (1985) 20.viii

Steinberg, "Increase in Test Scores Counters Dire Forecasts for Bilingual Ban," The New York Times, Aug. 20, 2000, A1 4, 5

"The Fine Art of Interpreting in a Miami Court," New York Times, May 8, 1984, A15, col. 1 20

U.S. Bureau of the Census, 1990 Table COHL 13: "Language Spoken At Home and Ability to Speak English for Persons 5 Years and Over." 20

U.S. Equal Employment Opportunity Commission, "Court Speaks: English Only Rule Unlawful," Press Release, Sept. 19, 2000, www.eeoc.gov/press/9-19-99.html 6

Zall/Jimenez, Official Use of English: Yes/No, 74 A.B.A. J.34 (1988) 18.2

There are several amici curiae participating in this brief.¹ Counsel for all parties have consented to the filing of this brief.

Pro-English (formerly known as English Language Advocates) is a non-profit advocacy organization dedicated to the preservation and promotion of a common language – English – in American political and governmental life. Pro-English is an unincorporated project of U.S., Inc., of Petoskey, Michigan, a non-profit charitable and educational corporation. Pro-English and its President, Robert D. Park, have been the principal advocates for "official English" policies before the federal courts, including in Arizonans for Official English and Robert D. Park v. Arizona, Nos. 95-974 and 98-167.

English First Foundation ("EFF") is a national, non-profit charitable organization which studies the significance of the use of English in the United States and educates the public about the importance of preserving English as the common language of the United States. EFF conducts research, educational programs, seminars and conferences, and provides legal counseling and assistance. EFF was an amicus curiae in Nos. 98-404 and 98-564, U.S. Dept. of Commerce v. U.S. House of Representatives, and Clinton v.Glavin.

The Center for American Unity ("CAU") is a national non-profit charitable and educational organization dedicated to preserving our historical unity as Americans into the 21st Century. CAU's education program emphasizes that America's common language, English, is the basic bond uniting and strengthening the United States.

1 Pursuant to Rule 37.6, amici certify that no other person or entity made a monetary contribution to the preparation and submission of this brief, and that no counsel to a party authored this brief in whole or in part..

Cong. Tom Tancredo, a United States Representative from the Sixth District of Colorado, sits on the Subcommittee on Oversight and Investigations of the House Committee on Education and Labor, which has jurisdiction over the Equal Employment Opportunity Commission, discussed at length herein. Cong. Tancredo sent and received the letters reprinted in the Appendix to this brief. 

Cong. Spencer Bachus, Bob Barr, John Doolittle, Bob Goodlatte, Ernest Istook, Joe Knollenberg, William Lipinski, Charlie Norwood, Ron Paul, Bob Riley, Dana Rohrabacher, Nick Smith, and Bob Stump are United States Representatives from Alabama, Georgia, California, Virginia, Oklahoma, Michigan, Illinois, Georgia, Texas, Alabama, California, Michigan, and Arizona, respectively.

At its heart, this case is about whether a person’schoice of language can be equated to the person’s national origin. Amici are deeply concerned about the effect of equating language and national origin. Amici are involved in efforts to promote the use of English as the language of government, and amici believe that equating language and national origin will both stop governments from requiring the use of English and force governments to provide services in languages other than English. Such an equation of language and national origin could have a substantial impact on amici’s activities.

This is the third time in the last ten years that this Court has reviewed cases involving government’s choice of language for internal operations: Hernandez v. New York, 500 U.S. 352 (1991), No. 89-7645; Arizonans for Official English v. Arizona, 520 U.S. 34 (1997), No. 95-974; and this case.²  Though this Court vacated Gutierrez, Judge Reinhardt considers

2 This Court earlier vacated a case which offered an unacceptable "solution" to tensions in the workplace caused by the use of languages.

the vacated opinion to still "represent the thinking" of the Ninth Circuit. Garcia v. Spun Steak, 13 F.3d 296, 301 (9 th Cir. 1994)(Reinhardt, J., dissenting from denial of reh’g en banc). So do Respondents, Pet. App. 238a (District Court quoting plaintiffs), and the Equal Employment Opportunity Commission. Amici App. 19A, n. 5 ("the validity of the case’s reasoning was not affected because it was vacated on the ground of mootness.").

This Court last looked at language-related issues in AOE v. Arizona, No. 95-974. At that time, the briefs of the parties and amici described current political battles on the federal level, including Congressional considerations of legislation to declare English the official language of the United States, to reform bilingual ballots and to eliminate bilingual education. In the intervening years, there has been relatively little Congressional activity on language-related questions, but enormous changes have occurred elsewhere, especially in the area of bilingual education.

In 1998, for example, California voters overwhelmingly adopted Proposition 227, an initiative driven by parents of limited-English proficiency ("LEP") children who wanted their kids to learn English. Steinberg, "Increase in Test Scores Counters Dire Forecasts for Bilingual Ban," The New York Times, August 20, 2000, P.A1. The initiative, known as "English for the Children," 

other than English. In Gutierrez v. Municipal Court of the Southeast Judicial District, 838 F.2d 1031, 1039 (9 th Cir. 1988), dissent from reh’g en banc, 861 F.2d 1187 (9 th Cir. 1988), vacated, 490 U.S. 1016 (1989), Judge Reinhardt said, in part, that problems associated with African-American supervisors not understanding Spanish-speaking workers could be remedied by hiring bilingual supervisors. 838 F.2d at 1043. Judge Kozinski and two other judges called the proposal to fire African-American supervisors a "let them eat cake" attitude which would exacerbate racial tensions in the workplace. 861 F.2d 1187, 1194 (9 th Cir. 1988)(Kozinski, J., dissenting from denial of reh’g en banc). Judge Kozinski’s prediction may be on target. See, e.g., Family Service Agency San Francisco v. Nat’l Labor Relations Board, 163 F.3d 1369 (9 th Cir. 1999)(discussing language tensions in a racially-diverse workplace)..

eliminated most existing bilingual education programs, which taught children in their native languages ("native language instruction"). The English for the Children initiative substituted an intensive program of English language instruction, teaching the children English by teaching them in English. Id. Two school years later, test scores indicate that teaching the children in English was a smashing success.³ Test scores in most school districts jumped dramatically. Id. 

In second grade, for example, the average score in reading of a student classified as limited in English increased 9 percentage points over the last two years, to the 28^th percentile from the 19^th percentile in national rankings, according to the state. In mathematics, the increase in the average score for the same students was 14 points, to the 41^st percentile from the 27^th .

Id.

One of the principal backers of the prior method of "native language instruction" was Oceanside, Calif., Superintendent of Schools Ken Noonan, a founder of the California Association of Bilingual Education. Noonan, "I Believed That Bilingual Education Was Best . . Until the Kids Proved Me Wrong," The Washington Post, September 3, 2000, B1. Noonan fought Proposal 227, but when the voters passed it, he led Oceanside School District into strict compliance with the new law’s requirements. Id. The results: Oceanside’s test scores improved by 19 percentage points since implementation of the new law. Id.

"I thought it would hurt kids," Mr. Noonan said of the ballot initiative, which was called Proposition 227. "The exact 

3 See, also, Pearce & Ryman, "English-only Receives Boost," Arizona Republic, Aug. 22, 2000, front page..

reverse occurred, totally unexpected by me. The kids began to learn – not pick up but learn – formal English, oral and written, far more quickly than I ever thought they would."

Steinberg, supra.

And the increase can be attributed to the new English immersion form of education: Oceanside’s performance was all the more striking when measured against the nearby district of Vista, where half the limited English speakers . . . continued in bilingual classes. In nearly every grade, the increases in Oceanside were at least double those in Vista, which is similar in size and economic background to Oceanside.

Id.

The success of California’s elimination of bilingual education is spurring similar efforts in Arizona, Colorado, Massachusetts, New York and other states. Id. In Connecticut, a new law offers English instruction and parental choice opportunities similar to those in the California initiative. Pub. Act 99-121, "An Act Improving Bilingual Education".

At the same time, however, federal agencies are mounting an aggressive attack on English-language policies and programs. After hearing about the Oceanside School District’s success, the federal Department of Education challenged Oceanside’s implementation of the new English-language instructional techniques. Diehl, "O’side district ripped over bilingual ed," North County Times, Oct. 3, 2000, front page, reprinted at http://www.onenation.org/0010/100300b.html (reporting on joint investigation between federal and state departments of education); Diehl, "Prop. 227 author criticizes investigation.7

of O’side district," North County Times, October 4, 2000, reprinted at http://www.onenation.org/0010/100400c.html ("The district could not document that they follow their own policies and procedures").

Similarly, the Equal Employment Opportunity Commission is steadily increasing its attacks on employers who wish their employees to speak English on the job. The EEOC has promulgated a rule which presumes that an employer’s rule requiring English in the workplace is national origin discrimination. 29 C.F.R. § 1606.7. The EEOC reports that in 1996, it reviewed 77 national-origin discrimination challenges to workplace language rules. U.S. Equal Employment Opportunity Commission, "Court Speaks: English Only Rule Unlawful," Press Release, Sept. 19, 2000, www.eeoc.gov/press/9-19-99.html. That number jumped to 253 in 1999, and 355 by September of this year.

Id.

As shown in more detail below, virtually every federal court which has considered the issue has rejected the EEOC’s interpretation. For example, the Ninth Circuit recently rejected the EEOC policy as ultra vires. Garcia v.Spun Steak, 998 F.2d 1480, 1489-90 (9 th Cir. 1993), cert. denied, 512 U.S. 1228 (1994)(upholding English-language workplace rule to stop workers from hurling racial insults at co-workers).

Yet a recent exchange of letters with Amicus Cong. Tom Tancredo, attached as an Appendix ("Amici App."), indicates that the EEOC is continuing to enforce its policy, even in jurisdictions which have rejected its interpretation.

Two dozen charges were resolved between August 1998 and August 1999. Amici App. 22A - 24A. Some of the charges were filed in appellate circuits which had rejected the guidelines. Amici App. 23A. The EEOC explains:

"EEOC offices in a jurisdiction that has issued a decision contrary to the guidelines continue to conduct the administrative process pursuant to the guidelines. . . . Of.8 course the EEOC would not file a suit to enforce the guidelines if such suit has been precluded by governing circuit law." Amici App. 23A - 24A. .

Building on the decision below and on the EEOC’s new enforcement effort, the Administration issued Executive Order No. 13,166 (Aug. 11, 2000).4 Executive Order 13,166 makes the same equation of language and national origin that the lower court did in this case. Executive Order 13,166 requires federal agencies to "provide meaningful access . . . to ensure that the programs and activities they normally provide in English are accessible to LEP [Limited English Proficient] persons and thus do not discriminate on the basis of national origin." Supp. App. 11a, (emphasis added).

Executive Order 13,166 requires federal agency programs to be approved under and be subject to the Department of Justice’s new Policy Guidance on assistance to LEP persons. Supp. App. 12a. The Justice Department’s Policy Guidance similarly equates language and national origin, relying in part on the decision below. Supp. App. 19a, 21a. The Policy Guidance expands this equation to federal grantees. "Recipients who fail to provide services to LEP applicants and beneficiaries in their federally assisted programs and activities may be discriminating on the basis of national origin in violation of Title VI and its implementing regulations." Supp. App. 23a. In addition, because of the use of Title VI definitions of national origin in Title VII and IX cases, this equation of language and national origin will be

4 Executive Order 13,166 and the interlocked Department of Justice Policy Guidelines were submitted as a supplemental filing to the Petition and are reprinted in the appendix thereto. Appendix to Supplemental Filing ("Supp. App.")..

applied in private employment cases, and perhaps other areas as well.⁵ Under Executive Order 13,166 and the Justice Department Policy Guidance, it is not enough to be neutral about language. To avoid a charge of national origin discrimination, an agency, grantee or employer must affirmatively provide language assistance. Supp. App. 23a -27a. 

Though the extent of assistance is supposed to be determined by a variety of factors, at a minimum, the agency, grantee or employer must provide at least oral translation services if only one person requests it. Supp. App. 23a. The Policy Guidance requires, in most cases, at least the use of "one of the commercially available language lines to obtain immediate interpreter services." Supp. App. 24a. Though not stated, apparently the cost of such services, which can be as high as $4.50 per minute plus "set-up" fees,⁶ is to be borne by the agency, grantee or employer subject to a potential charge of national origin discrimination.

Thus, at the same time that States are actively using more effective means to bring persons who do not speak English into the educational and social mainstream, the Executive Branch is using the decision below to impair just those successful efforts. The Executive Branch, without any authorization by Congress or the courts, has equated language and national origin in a manner which will cause enormous amounts of litigation, and will stifle promising efforts to teach English to those who could benefit so much.

⁵ The lower court recognized the adoption of Title VII case law in itsTitle VI jurisprudence. Pet. App. 56a, n. 27.

⁶ At, for example, AT&T LanguageLine Services. www.languageline.com/products_personal.php3,

Nor is there any judicial decision which finds such an equation in the civil rights laws. Though there have been some suggestions that language rules may be proxies for otherwise hidden national origin discrimination, the vast majority of decisions have rejected the equation of language and national origin without more.

There are some administrative interpretations which equate language choice to national origin. These interpretations, however, do not bind this Court. In addition, courts have overwhelmingly rejected those interpretations.

In addition, equating language and national origin would be unworkable. This is not a case about English vs. Spanish, but about English vs. hundreds of languages. The courts have repeatedly recognized the tremendous burdens of translating hundreds of languages and refused to impose such burdens.

Finally, equating language and national origin would be unwise. Any recognition by the Court of such an equation would affect dozens of settled decisions, sparking an enormous number of new claims of discrimination in government, contracting, employment, housing and other areas.

I. A Per Se Rule Equating Language With National Origin Has No Basis in Law or Fact, and Would Be

The decision below equates language and national Sandoval v. Hagan, 197 F.3d 484, 508-09 (11 th Cir. see, Pet. App. 22a-29a.⁷ Such a novel per se equation

⁷ The Eleventh Circuit’s analysis on this question was suspect. Compare, unclear as to whether language intentional national origin discrimination claims impact analysis." (boldface added, italics in original), with Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983), cert. denied, 466 U.S. 929 (1984).

of language choice and national origin has no basis in law or

A. A Per Se Rule Equating Language and National Origin Has No Basis In Law or Fact.

1. A Per Se Rule Equating Language and The language, history and interpretations of the per se, language and national origin.

"[T]he reach of Title VI’s protection extends no further than the Fourteenth Amendment." United States v. Fordice, 505 U.S. 717, 732 n. 7 (1992)(citations omitted).

The Fourteenth Amendment does not include the phrase St. Francis College v. Al-Khazraji, Hirabayashi v. United States,

A classification is implicitly made, but it is on the basis i.e., English-speaking versus non-English-speaking

See also, Toure v. United States, 24 F.3d 444, 446 (2d Cir. Soberal-Perez").

§ 2000d, Pub. L. 88-352, Title VI, § 601, July 2, 1964, 78

Legislative History:

Legislative history does not support a language-based definition of national origin. This Court has noted that the legislative history concerning the meaning of national origin, even under statutory law, is "quite meager." Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973). Nevertheless, "[t]he terms ‘national origin’ and ‘ancestry’ were considered synonymous." 414 U.S. at 89. During debate on the 1964 Civil Rights Act, Representative Roosevelt stated: "May I just make very clear that ‘national origin’ means national. It means the country from which you or your forebears came from. You may come from Poland, Czechoslovakia, England, France, or any other country." 110 CONG. REC. 2,549 (1964).

This Court supports that assessment: "[t]he term ‘national origin’ on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza, 414 U.S. at 88; see also, Pejic v. Hughes Helicopters, 840 F.2d 667, 672-73 (9^th Cir. 1988)(persons of Serbian national origin are members of

Administrative Interpretations:

As noted above, there are now three administrative interpretations which equate language and national origin. The oldest⁸ is the EEOC’s presumption against requiring the

⁸ The EEOC presented its proposed interpretive guidelines to the Fifth th Circuit), but the Fifth Circuit Garcia v. Gloor, 618 F.2d 264, 270 (5 th Cir. cert. denied, 449 U.S. 1113 (1981)("The EEO Act does not support an interpretation that equates the language an employee prefers to use with his national origin."). Cong. Tancredo’s examination of the legal support for this interpretation and the EEOC’s detailed response.

use of English on the job. 29 C.F.R. § 1606.7. The newest are the interlocked Executive Order 13,166 (August 11, 2000) (reprinted in Supp. App. 10a - 13a), and the Justice Department’s Policy Guidance on National Origin Discrimination Against Persons With Limited English Proficiency (reprinted in Supp. App. 14a - 28a).

This Court has never reviewed those administrative interpretations, and they do not bind this Court. Espinoza, 414 U.S. at 94-95.

Numerous other courts have reviewed the EEOC Guidelines and have rejected them and their underlying equation of language and national origin. See, e.g., Garcia v. Spun-Steak, 998 F.2d 1480, 1489-90 (9 th Cir. 1993), cert. den. 512 U.S. 1228 (1994)(EEOC Guidelines equating ultra vires); Vasquez v. McAllen Bag & Supply Co., 660 F.2d 686 (5 th Cir. Garcia v. Rush-Presbyterian St. Luke’s Medical Center, 660 F.2d 1217, 1222 (7 th Cir. Long v. First Union Corp., 894 F.Supp. 933, affirmed, th Cir. 1996).

Judicial Interpretations:

As the lower court recognized, 197 F.3d at 509 n. 26, this Court has never held that the language a person chooses to speak can be equated to the person’s national origin.⁹ (which relies on Judge Reinhardt’s vacated opinion in Gutierrez v. Municipal Court of the Southeast Judicial Dist., discussed in fn 2 above)

⁹ Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926), sometimes cited to equate language and national origin, involved intentional discrimination.

Though this issue was briefed and discussed in Hernandez v. New York, 500 U.S. 352 (1991), the Court did not make a holding on this question. "Petitioner argues that Spanish-language ability bears a close relation to ethnicity, and that, as a result, it violates the Equal Protection Clause. . . We need not address that argument here." 500 U.S. at 360. 

The Circuits, on the other hand, have rejected such an equation.¹⁰  See, e.g., Soberal-Perez v. Heckler, 717 F.2d at 41:

A classification is implicitly made, but it is on the basis of language, i.e., English-speaking versus non-English-speaking individuals, and not on the basis of race, religion or national origin. Language, by itself, does not identify members of a suspect class.

See, also, Toure v. United States, 24 F.3d at 446 (affirming Soberal-Perez and rejecting request for multilingual An v. General Am. Life Ins. Co., 872 F.2d 426 (9^th Cir. 1989)(table).

A few cases indicate that if the language policy is a pretext for intentional discrimination, a language-related rule might violate national origin rules.¹¹ In addition, two recent 

on the basis of ancestry rather than language, because the law there was designed "to affect [Chinese merchants] as distinguished from the rest of the community." 271 U.S. at 528.

¹⁰ The circuit courts have found a Sixth Amendment right to an See, e.g., United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970). But see, Abdullah v. Immigration and Naturalization Service, 184 F.3d 158, 165-66 (2d Cir. 1999)(distinguishing between "government-initiated proceedings seeking to affect adversely a person’s status and hearings arising from the person’s affirmative application for a benefit").

¹¹ For example, Judge Reinhardt wrote, in an opinion vacated by this Court, that "since language is a close and meaningful proxy for national.

lower court decisions have adopted the EEOC’s interpretation equating language and national origin. See, e.g., EEOC v. Synchro-Start Products, 29 F.Supp.2d 911, EEOC v. Premier Operator Services, 113 F.Supp.2d 1066 (N.D. Texas, Synchro-Start and Judge Reinhardt’s dissent from denial of rehearing en banc in Spun Steak, found disparate treatment See, e.g., Gloor, 618 F.2d at 270 ("The EEO Act does not Nazarova v. INS, 171 F.3d 478, 483 (7^th Cir. 1999)(permitting Carmona v. Sheffield, 475 ^th Cir. 1973)(permitting English benefit termination notices); Frontera v. Sindell, 522 F.2d 1215 (6^th Cir. 1975)(civil service exam for carpenters can be in Garcia v. Spun Steak, 998 F.2d 1480, 1489-90 (9^th Cir. 1993), cert. den., 512 U.S. 1228 (1994) (rejecting EEOC Gonzalez v. Salvation Army, 985 F.2d 578 (11^th Cir.)(table), cert. den., 508 U.S. 910 (1993)(rejecting employment discrimination claim); Jurado v. Eleven-Fifty 813 F.2d 1406 (9^th Cir. 1987)(permitting radio station to choose language an announcer would use); Vasquez v. 

origin, restrictions in the use of languages may mask discrimination against specific national origin groups, or more generally, conceal nativist sentiment." Yniguez v. Arizonans for Official English, 69 F.3d 920, 947-48 (9 th Cir. 1995), vacated, sub nom., Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).

McAllen Bag & Supply Co., 660 F.2d 686 (5 th 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 (7 th Cir. 1981)(upholding hiring practices requiring English proficiency); Long v. First Union Corp., 894 F.Supp. 933, 941 (E.D. Virginia, affirmed, 86 F.3d 1151 (4 th 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) 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. Prado v. L. Luria & Son, Inc., 975 F.Supp. 1349 (S.D. Fla 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.").

There is, therefore, no basis in the terms, history or interpretation of "national origin" which supports a per se rule equating a person’s language and that person’s national origin

2. A Per Se Rule Equating Language and National Spanish is spoken in many countries,¹²  impairing a Espinoza, "the country from which his or her ancestors Hernandez v. Texas, 347 U.S. 475, 479-80 (1954)(persons of Mexican descent wrongfully excluded from jury duty).

A per se rule equating a person’s language and national origin would be both over- and under-inclusive. Many Hispanics do not speak Spanish.¹³  Many non-Hispanics speak Spanish.¹⁴

Nor is language an immutable characteristic, like "the Espinoza, Garcia v. Gloor, 618 F.2d at 270, in that aspect language may be much 

¹² At least 13 countries have Spanish as their official or national Resolving Language Conflicts: A Study of the World’s Constitutions, (1986).

¹³ The Rand Corporation reported in 1985 that by the second generation Official Use of English: Yes/No, 74 A.B.A. J.

¹⁴ The American Council of Teachers of Foreign Languages reported that 3,219,775 American high school students were taking Spanish language courses in 1994. Draper & Hicks, Foreign Language Enrollment in Public Secondary Schools, Fall 1994, Table 2. Contrary to popular belief, "people who got good grades in high school Spanish classes remembered much of the Spanish vocabulary up to 50 years after taking their last course." College Classes Spur Lifelong Math Memory, 138 Science News 375 (1990).

like alienage – not statutorily protected. Although alienage cannot be changed before qualification for naturalization, it can be changed eventually. Sugarman v. Dougall, 413 U.S.

B. A Per Se Rule Equating Language and National Origin Is Unworkable

Providing services or assistance in many languages, Hernandez v. New York, 500 U.S. at 361, citing, United States v. Perez, th Cir. 1981)¹⁵ ; Seltzer v. Foley, 502

¹⁵ This Court quoted testimony from United States v. Perez, 658 F.2d 654 (CA9 1981), to illustrate the sort of problems that may arise even with an official translation:  

"DOROTHY KIM (JUROR NO. 8): Your Honor, is it proper to ask the interpreter a question? I'm uncertain about the word La Vado [sic]. You say that is a bar. "THE COURT: The Court cannot permit jurors to ask questions directly. If you want to phrase your question to me -" 

DOROTHY KIM: I understood it to be a restroom. I could better believe they would meet in a restroom rather than a public bar if he is undercover.

"THE COURT: These are matters for you to consider. If you have any misunderstanding of what the witness testified to, tell the Court now what you didn't understand and we'll place the -"

DOROTHY KIM: I understand the word La Vado [sic] - I thought it meant restroom. She translates it as bar.

"MS. IANZITI: In the first place, the jurors are not to listen to the Spanish, but to the English. I am a certified court interpreter.

"DOROTHY KIM: You're an idiot." Id., at 662. Upon further questioning, "the witness indicated that none of the conversations in issue occurred in the restroom." Id., at 663. 

The juror later explained that she had said "`it's an idiom'" rather than "`you're an idiot,'" but she was nevertheless dismissed from the jury. Ibid. 

500 U.S. at 361, n. 3.

F.Supp. 600, 603-4 (S.D.N.Y. 1980)(interpreter in magistrate’s courtroom changed the motive of the accused without her knowledge). A 1985 report found that of 1,400 applicants, only 30 passed the federal certification test for Spanish language courtroom interpreters. "Problems Cited in Greater Use of Court Interpreters," 16 CRIM. JUST. NEWSL. The Bilingual Courtroom, New York Times, May 8, See, e.g., Abdullah v. INS, 184 F.3d at 166:

The applicants in this case alone would

See, also, Nazarova v. INS, 171 F.3d at 483:

[T]he logical implication is that the INS must

See further, Toure, 24 F.3d at 446 (providing forfeiture Vialez v. New York City Hous. Auth.,

C. A Per Se Rule Equating Language and National Origin Is Unwise

This Court noted in Holland v. Illinois, that "[t]he earnestness of this Court’s commitment to racial justice is not to be measured by its willingness to expand constitutional provisions designed for other purposes beyond their proper bounds." 493 U.S. 474, 488 (1990). It would be difficult to cabin the lower court’s equation of language choice and national origin. The most critical example is the Administration’s adoption of the lower court’s opinion in Executive Order 13,166 to expand the equating of language and national origin to every federal agency, contractor and grantee.

Although the primary question in this case is the existence of a private right of action, a misinterpreted phrase in an opinion from this Court could generate unintended controversies in other areas far beyond this case:

Language of Government Activities:

24 States have declared English their official languages.¹ These declarations are the subject of substantial

¹ Alabama: Ala. Const. Amend. 509 (1990); Alaska: Ak. Stats. § Arizona: Ariz. Const. Art. XXVIII (1988) (negated by Arizona Supreme Court – 1999); Arkansas: Ark. Stat. Ann. 1-4-117 California: Cal. Const. Art. III, § 6 (1986); Colorado: Colo. Const. Art. II, § 30 (1988); Florida: Fla. Const. Art. II, § 9 (1988);

litigation. See, e.g. Arizonans for Official English, No. 95- 974, 520 U.S. 34 (1997).

Other cases, like this one, involve challenges to governments’ choices of English for internal operations. The lower court’s analysis, for example, would have precluded the English-language civil service examination upheld in Frontera v. Sindell, 522 F.2d at 1218, and the English-language Nazarova v. INS, 171 F.2d at 483, Soberal-Perez v. Heckler, 717 F.2d at 41, Carmona v. Sheffield, 475 F.2d 738 th Cir. 1973), Toure v. United States, 24 F.3d at 446, Alfonso v. Board of Review, 89 N.J. 41, 444 A.2d 1075, cert. denied, 459 U.S. 806 (1982), Guerrero v. Carleson, 9 Cal. 3d cert. denied, Commonwealth v. Olivio, 369

Language of Education:

As noted above, the elimination of bilingual

Georgia: Ga. Code Ann. § 50-3-30 (1986); Hawaii: Hawaii Const. Art. ; Illinois: Ill. Rev. Stat. Indiana: Ind. Code Ann. § 1-2-10-1 (1984); Kentucky: Ky. Rev. Stat. § 2.013 (1984); Mississippi: Miss. Code Ann. Missouri: Mo. Stats. § 1-028 (1999); Montana: Mont. Code Ann. § 1-1-510 (1995); Nebraska: Neb. Const. Art. I, § 27 (1920); New Hampshire: 1995 N.H. Laws 157 (1995); North Carolina: N.C. North Dakota: N.D. Cent. Code, § 54-02-13 (1987); South Carolina: S.C. Code Ann. § 1-1-(696-698) (1987); South Dakota: S.D. Codified Laws Ann. §§ 1-27-20 to 1-27-26 (1995); Tennessee: Tenn. Code Ann. § 4-1-404 (1984); Virginia: Va. Code § Wyoming: Wyo. St. 8-6-101 (1996). An initiative measure declaring English the official language is on the November 7, 2000 Utah ballot.

agencies would roll back these bilingual education reforms, New York Times called "a bilingual prison." "A Bilingual Prison," The New York Times, September 21, 1995, A22.

Language of the Workplace:

As noted above and discussed in the Appendix to this brief, courts have overwhelmingly rejected the EEOC’s presumption that English-on-the-job rules are national origin discrimination. See, e.g., Gloor, 618 F.2d at 270 ("The EEO Spun-Steak, 998 F.2d at 1489-90 (EEOC ultra vires). These decisions would be wiped   Amici respectfully urge the Court to reverse the decision below on the question of whether a person’s choice of language can be equated to the person’s national origin.

II. Federal Rules Which Affect Core Rights of the States to Choose English for Internal Operations

The decision below will require the State to speak in a language which its political processes have decided will harm its interests.² This Court has historically recognized States’ rights to "regulate the content of what is or is not expressed when it is the speaker." Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 833 Rosenberger is a First Amendment case, it reflects this Court’s concern for States’ sovereignty.

² 89% of Alabama’s voters approved the State’s English Language Amendment in 1990. Secretary of State, Certification of Results of Election Held June 5, 1990, June 20, 1990, 1.

A State defines itself as a sovereign "[t]hrough the structure of its government and the character of those who exercise government authority." Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). Several of these areas of State sovereignty lie beyond the general reach of federal laws, including the regulation of a State’s internal operations. "A State is entitled to order the processes of its own governance." Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 2264 (1999)("Such plenary federal control of state government processes denigrates the separate sovereignty of the States.").

This is not a new thought, as this Court noted over a century ago: "To [the States] nearly the whole charge of interior regulations is committed or left." Lane County v. Oregon, 7 Wall. 71, 76 (1869); Oregon v. Mitchell, 400 U.S. 112, 126 (1970)(Black, J., joined by the Chief Justice and three other Justices)("And the Equal Protection Clause of the Fourteenth Amendment was never intended to destroy the States’ power to govern themselves, making the Nineteenth and Twenty-fourth Amendments superfluous.").

Under this Court’s recent decisions, the Tenth Amendment protects the reservation of "original powers" of a State. U.S. Term Limits v. Thornton, 514 U.S. 779, 801 Alden, 119 S.Ct. at 2259, quoting, Nevada v. Hall, 440 U.S. 410, 425 (1979).

A State’s Tenth Amendment right to choose the language of its own internal operations is one of those historically-based core powers. Throughout American history, this Court has permitted States to use English.

Patterson v. De La Ronde, 8 Wall. 292, 299-300 Meyer v. Nebraska, 262 U.S. 390, 402 (1923)("The power of the State to . . . make reasonable requirement