1. An example of what I call expedient language policy
   1. using a LotE for the ends of the state
   2. ensuring highway safety
   3. enhancing economic opportunity
   4. contributing to general public welfare
2. Sandoval case now exemplifies and symbolizes something else. and many amici curiae have joined (ACLU, the National Review, English-Only, English-First, disability- rights organizations)
3. Supreme Court has now heard (on January 16, 2001) this case and found (on April 24, 2001) in favor of the state of Alabama and against the parties to the original suit.
4. This paper reviews details of the issues, viewing them from at least two different perspectives:
   1. one: the legal perspective and what the case seems to mean for rights of individuals whose primary language may not be English (and others as well).
   2. secondly, how is this understood and argued in public debates, particularly in journalistic and internet discussions. This second perspective leads us into the context of implicit, folk concepts of language policy and US language policy law:
      1. latter arguments center on metaphors of legal `slippery-slopes', of `creeping incrementalism', i.e. `if you give them an inch, they'll take a mile' and other disastrous results.
      2. Other issues also arise: opening of borders to international trucking (NAFTA agreement)
      3. issues of racial and ethnic profiling (esp. of drivers).
5. Background of the Case.
   1. Previous to 1991, Alabama had administered the drivers exam in 14 different languages, including Spanish, Korean, Farsi, Cambodian, German, Laotian, Greek, Arabic, French, Japanese, Polish, Thai and Vietnamese.
   2. 1991: Alabama amended (Amendment 509) its constitution to make English its official language, and drivers' licensing rules were then changed, the interpretation having been made that the officialization of English required this change.
   3. Sandoval was unable to take the written test in Spanish, and would have failed the English version, so she continued to drive without a license, which occasioned a number of arrests.
   4. The Southern Poverty Law Center took up the case as part of a federal class-action suit of the more than 24,000 LEP residents of Alabama, alleging that

      "the state violated federal law by requiring applicants for drivers' licenses to take the written examination in English. The particular federal law that supported this lawsuit is known as Title VI of the 1964 Civil Rights Act (42 U.S.C. § 2000(d)). Title VI prohibits discrimination grounded in race, color or national origin." (Welner 2001)

   5. Since Alabama receives and administers federal highway monies through its Department of Public Safety, it is forbidden to discriminate against persons on the basis of, among other things, national origin.
   6. The federal court ruled that the English-only policy had none of the legitimate justifications claimed by the state, but rather that

      "the regulation had impermissible disparate impact on the basis of national origin in violation of Title VI, and was not supported by substantial legitimate justification."

   7. The issue of impermissible disparate impact is most important judicial issue here, since though the state of Alabama argued that there was no intention to discriminate against persons on the basis of national origin, nevertheless the unintended discrimination constituted impermissible disparate impact.
   8. Though the Civil Rights Act of 1964 in its Title VI does not mention language rights, federal regulations

      "implementing Title VI, pursuant to § 602 of the statute, have been consistently given a broader interpretation [...]. Lawsuits grounded in these implementing regulations are unique in that they allow people like Ms. Sandoval to make their arguments in federal court by showing the discriminatory effect (“disparate impact”) of a law. (Welner 2001:3)

   9. The crucial issue is disparate impact or unintentional discrimination. Questions:
      • Is the law is required to protect individuals against this?
      • Do private individuals have a right to sue the state for discrimination under Title VI of the Civil Rights act, even if the state can offer a legitimate non-discriminatory reason for a regulation or law?
      • The Eleventh Amendment of the U.S. Constitution, which sets out conditions affecting separation of powers, is also crucial in determining whether individuals may sue in certain cases.
   10. The federal court hearing the class action suit ruled against Alabama, finding that the English-only policy did discriminate against non-English speaking applicants, and without substantial legitimate justifications.
   11. In November, 1999, the 11th Court of Appeals (197 F.3d 484) affirmed the federal court decision, holding

       "that [Sandovals] suit is not barred under the Eleventh Amendment, that Section 602 of Title VI creates an implied private cause of action to obtain injunctive and declaratory relief under federal regulations prohibiting disparate impact discrimination against statutorily protected groups, and that the district court did not err in deciding, on the merits, that the [State of Alabamas] English-only official policy constituted a disparate impact on the basis of national origin." (Hoops 2001:3)

   12. The implications of this act, both for non-English speaking persons, and for other classes of individuals, even citizens, who may have handicaps, who speak English but are illiterate or deaf, as well as disability issues in other types of disputes, are significant.
   13. Also, State of Alabama already provides accommodations for the deaf, the disabled, and illiterates, but denies non-English speaking people the right to use a dictionary or an interpreter.
   14. Moreover, Alabama permits non-English speaking drivers from other states and foreign countries to exchange a valid license from those jurisdictions for an Alabama license without taking the written examination. Thus, the argument that drivers in Alabama need to be able to read English (other than road signs, which in any case now increasingly use international icons) in order to function legally on Alabama roads.

1. The Supreme Court concluded, 5 to 4, that

   "Congress only intended these regulations to be directly enforceable by the Office of Civil Rights—a political body with very limited resources—not by a private right of action." (Welner 2001:4)

2. The issue was one of federalism vs. states' rights:
   • whether the Civil Rights Act of 1964 established a private right of action to enforce the disparate effect of the regulations promulgated by federal agencies
   • whether they could bypass federal agency review and enforcement process[es] established by Congress.
   • whether individuals have a right to sue if federal agencies fail in their duty.
3. US Solicitor General noted that the concept that "an individual can sue a state over a civil rights violation was 'a shared understanding' that was 'utterly embedded' in 25 years of case law, and that the court had a completely unbroken practice of enforcing regulations equally whether they arise from statutes or from regulations." (Waxman 2001:3, in Westlaw 2001)
4. Supreme Court seems to have been strongly, and perhaps even bitterly, divided on the case, and Justice Stevens, speaking for the dissent, made this clear.

   "While the court "has never said in so many words" that there was a private right to enforce the discriminatory impact regulation, Justice Stevens said, that had been the nearly universal assumption for many years. Of the 12 federal appeals courts, 9 had addressed the issue and all 9 had found that such lawsuits could be brought. Justice Stevens called the decision "unfounded in our precedent and hostile to decades of settled expectations." (Greenhouse, 2001)

5. Some think this case will have implications for civil rights cases in other areas, such as sex discrimination in collegiate athletics, or in racial or other kinds of cases, is beyond the scope of this paper.
6. Some think Congress is free to sharpen its definition of discrimination, and might even revise the Civil Rights Act of 1964 to make explicit the private right to sue in cases where federal agencies seem to drag their feet.

1. Our English language is the defining characteristic of our great nation.
2. Our English language is the attribute that distinguishes us as Americans
3. Our English language provides the nation with a sense of unity and common direction.
4. Our language allows us to communicate and share ideas, but also continuously reminds us that we are Americans with a common desire to see our nation prosper.
5. English provides the fabric that unites this land of individuals as a country.
6. The English language is the bulwark of our national unity.
7. If the court were to rule for Sandoval, however, it would give legal force to the proposition that

   if a state does not provide services in any language a person demands, the state has unlawfully discriminated on the basis of national origin. [emphasis mine, hs]

8. Furthermore, according to Hakola,
   1. Bilingual Education has failed
   2. Teaching in English succeeds.
   3. Federal agencies (such as the EEOC) continue aggressive attacks on successful English-language policies (by attacking employers who require English on the job).

1. Other opinions: Jim Boulet Jr., executive director of English First: the decision is a "chilling reminder of the slender threads" from which the "shreds" of our national linguistic unity hang, since the court came with one vote of making "language choice a protected civil right" and transforming every trial lawyer's office into a "miniature federal law-enforcement agency."
2. Another opinion, from a chat-line labeled only "Upstream Vdare's Scott McDonnell", by a Robert L. Gleiser, on January 18, 2001:

   "Her [Sandoval's] victory threatens the entire edifice of law and custom pushing new immigrants to learn English." [boldface emphasis mine, hs]

1. The English language is the primary uniting force holding together our nation. (Without it, we are doomed to inundations, floods, lawsuits, and other catastrophes.
2. Allowing private parties to sue the federal government under the Civil Rights Act of 1964 would cause havoc (floods of lawsuits etc.) In fact, any expansion or liberalization of language rights would be chaotic.
3. Law and custom are causative in forcing immigrants to learn English; without law, immigrants will not learn English (and economic determinism is without value.)
4. Civil Rights have nothing to do with language, and language is not a "proxy" for discrimination on the basis of national origin.
5. English is a fabric, bulwark, a strength; a unifying force and weakening this edifice goes against "common-sense" ideas of the people and how they wish to govern themselves.
6. A decision in favor of Sandoval would be a "judicial fiat" that would result in tyranny (whereas a decision against Sandoval would be common- sensical, and in favor of democracy.)
7. Returning Alabama to its pre-1991 multilingual testing status will "increase the public safety risk to Alabama motorists" and cost more.

Conclusions

• If nothing else, Alexander v. Sandoval has succeeded in inflaming both the right and the left, and clearly the ramifications of this case are not over. Both the 'victors' and the 'losers' see significant effects, and vow to fight even harder for their goals--the left determined to attempt to strength and revise the Civil Rights Act to allow private action, the right determined to seek constitutional amendments to officialize English.

• What is significant in the metaphors used by both sides, however, is that the opponents of language rights see the expansion of rights as almost apocalyptic: more rights would cause chaos and bring disorder, disintegration, the end of the republic as we know it. Denial of rights, however, would save the republic, for now at least, though eternal vigilance must be maintained to assure that our 'fragile' and 'tenuous' democracy is not compromised in the future.

• Proponents of language rights and their expansion, however, do not use such metaphors. They regret the Court's decision in Sandoval but do not predict chaos or bloodshed. Instead, they counsel patience, and recommend a sort of fine-tuning of the Civil Rights Act, to make the disparate impact problem more salient and more specific, so that remedies can be enacted. The proponents of language rights see such cases as crucial for redress of problems in other areas, i.e., to make it easier to prove discrimination, but their metaphors are not of the apocalyptic sort.

• The organizer of this panel stated earlier that one of our goals here should be to see what it is that linguistic anthropologists can contribute to the elaboration and formation of language policy.
  1. One of the most obvious things we might do would be to try to 'unmask' the hidden belief systems, myths, ideas, etc. that underlie various points of view represented in the statements of parties who have, in the case of drivers' licensing policy, entered the fray in one way or another. Anthropologists are good at looking at folk belief systems, and in contrasting them with the `facts' of various situations.
  2. It would be useful to educate the public about such things as linguistic domains and how a language used in one domain does not necessarily threaten to take over other domains. The notion of expedient language policy (used by many governments world-wide) needs to be explained as a way to reassure a public that feels vulnerable.
  3. In my own work in language policy I have always taken the rather conservative point of view that because language is not specifically mentioned as a right granted to the federal government by the states, and because the 11th Amendment does not mention language, that language is therefore, for better or worse, a "states right". I believe therefore that language rights will not change incrementally, i.e. small victories in cases like Alexander v. Sandoval will not lead to a gradual accretion of language rights that were not previously recognized. This has seemed to me to be the case since the landmark Meyer v. Nebraska case in 1923, since that case allowed certain rights for language that did not in fact extend the benefits expected by certain analysts, since the climate of public opinion was strongly against the exercise of those rights. That climate, one of strong monolingualism, is still rampant today, and no amount of legal wrangling will make the American public change this view, in my opinion. This view is the one that prevails, apparently in Alabama, and can be found not far below the surface in many other places, not the least of which would be the many internet sites where these ideas are constantly being expounded.
  4. What we can do is to bring the subject of language policy formation into public discussion, instead of leaving it to the courts, to the initiative process, or to internet chat rooms.

1. Boulet, Jim. "A Few Votes from Babel." Guest commentary on National Review Online, Oct. 31, 2001.
2. Greenhouse, Linda. "Supreme Court limits Scope of a Main Civil Rights Law." New York Times April 25, 2001 (on-line version.)
3. Hakola, Edith. "The Center for American Unity Statement on Sandoval v. Alexander." cfaustat4.html
4. Hoops, Stephanie. "Overview: Alexander, James et al. v. Sandoval, Martha." Medill School of Journalism, On the Docket. April 24, 2001.
5. Welner, Kevin G. "Alexander v. Sandoval: A Setback for Civil Rights. Educational Policy Analysis Archives Vol. 9, No. 24, June 2001.