Order Code RL33356
English as the Official Language of the United
States: Legal Background and Analysis of
Legislation in the 110th Congress
Updated January 25, 2007
Jody Feder
Legislative Attorney
American Law Division

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English as the Official Language of the United States:
Legal Background and Analysis of Legislation in the
110th Congress
Summary
Congressional proposals to install English as the official language of the United
States reflect yet another aspect of the complicated ongoing national debate over
immigration policy. The modern “Official English” movement may be traced to the
mid-1980s, when various proposals to achieve linguistic uniformity by constitutional
amendment were considered. While these earlier federal efforts failed, some
legislation promoting official English laws at the state level was more successful. At
least 28 states have laws declaring English to be the official state language. These
state laws have usually been enacted by direct popular votes on referenda by
substantial margins.
In response, renewed congressional efforts to codify English as the “official” or
“national” language by statute largely replaced the constitutional amendment
approach of earlier years. This trend culminated in 1996 when the House passed H.R.
123, to declare English the official language of the United States government and
restricting other linguistic usage in the conduct of “official” governmental business.
The measure died in the Senate. Contemporary versions of the earlier measure,
however, have appeared in subsequent legislative sessions, and similar legislation has
been introduced in the 110th Congress. Both H.J.Res. 17 and H.J.Res. 19 would
amend the Constitution to establish English as the official language of the United
States, while H.Con.Res. 11 would resolve that the federal government should pursue
policies that not only encourage all residents to become fully proficient in English but
also encourage all residents to learn or maintain skills in languages other than
English.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Federal Legislation to Make English the Official Language of Government . . . . 2
Federal Policy on Foreign Language Assistance
. . . . . . . . . . . . . . . . . . . . . 7
Constitutional Law Implications of Official English . . . . . . . . . . . . . . . . . . . . . . . 8
Miscellaneous Federal Policies Providing for Non-English Translation
and Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
State Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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English as the Official Language of the
United States: Legal Background and
Analysis of Legislation in the 110th
Congress1
Introduction
The steady growth within U.S. borders of new immigrant populations, whose
primary language is other than English, has created a public policy divide on issues
of language diversity. On one side, opposition to expanded foreign language
assistance has led at least twenty-eight states to enact statutes or amend state
constitutions to declare English the official state language.2 Federal statutes and the
U.S. Constitution, however, have traditionally afforded some legal protection to
minority language rights. For example, the Voting Rights Act of 1965, as amended,
mandate use of bilingual voting materials in states and political subdivisions when
certain conditions are met.3 Other federal statutory safeguards include Title VI of the
1964 Civil Rights Act and the Equal Educational Opportunities Act.4 In addition,
state and federal policies mandate the use of languages other than English when
necessary for effective delivery of public and private services to non-English
speakers in judicial and law enforcement proceedings, health and managed care
services, conduct of state and local administrative agencies, business and professions,
elections, and other critical areas.5
Congressional proposals to install English as the official language of the United
States reflect yet another aspect of the complicated ongoing national debate over
federal immigration policy. The modern “Official English” movement in Congress
is traceable to the mid-1980's, when various proposals to achieve linguistic
uniformity by constitutional amendment were considered.6 When that approach
1 This report was originally written by Charles V. Dale, Legislative Attorney.
2 See U.S. English, Inc., States with Official English Laws, at [http://www.us-englis
h.org/inc/official/states.asp].
3 42 U.S.C. § 1973aa-1a.
4 Id. at §§ 2000d et seq; 20 U.S.C. § 1703(f).
5 See the “Miscellaneous Federal Policies Providing for Non-English Translation and
Services” and the “State Laws” sections below for additional information.
6 See The English Language Amendment: Hearings on S.J.Res. 167 Before the Subcomm.
on the Constitution of the Senate Comm. on the Judiciary, 98th Cong., 2nd sess. (1984);
Hearings on H.J.Res. 13, H.J.Res. 33, and H.J.Res. 60 before the Subcomm. on Civil and
(continued...)

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failed, Congress renewed its efforts to codify English as the official language,
proceeding on a statutory track. This effort culminated in 1996 with House passage
of H.R. 123, declaring English the official language of the United States Government
and restricting other linguistic usage in the conduct of “official” governmental
business. The “Language in Government Act” passed the House in the 104th Congress
but died in the Senate.7 Substantially amended versions of this earlier measure,
however, have appeared in subsequent legislative sessions.
For example, during the 109th Congress, the Senate adopted the Inhofe
Amendment as part of its comprehensive immigration reform package, declaring
English to be our “national language” and calling for a governmental role in
“preserving and enhancing” the role of English.8 An alternative offered by Senator
Salazar also passed the Senate; it would have recognized English as the “common
and unifying language of the United States,” while protecting existing rights of non-
English speakers “to services and materials provided by the government” in
languages other than English.9 Also proposed in the 109th Congress was H.J.Res. 43
which would have amended the U.S. Constitution to establish English as the official
language of the United States.
Likewise, similar legislation has been introduced during the 110th Congress.
Both H.J.Res. 17 and H.J.Res. 19 would amend the Constitution to establish English
as the official language of the United States, while H.Con.Res. 11 would resolve that
the federal government should pursue policies that not only encourage all residents
to become fully proficient in English, but also encourage all residents to learn or
maintain skills in languages other than English. In addition, should the 110th
Congress decide to take up immigration reform legislation, other English-as-the-
official-language measures may be introduced in conjunction with such legislation.
Federal Legislation to Make English the Official
Language of Government
Standing alone, a legislative declaration of English as the “official” or
“national” language of the United States would be a largely symbolic act of
negligible legal effect. Although an affirmation by the Congress of the central place
of English in our national life and culture, such a pronouncement would not, of its
own force, require or prohibit any particular action or policy by the government or
private persons. Nor would it, without more, imply the repeal or modification of
6 (...continued)
Constitutional Rights of the Comm. on the Judiciary, 100th Cong., 2nd sess. (1988).
7 142 Cong. Rec. 21206-07 (1996). H.R. 123, among other things, proposed that the federal
government has an “affirmative obligation to preserve and enhance the role of English as
the official language of the United States,” and would have repealed the bilingual voting
requirements.
8 152 Cong. Rec. S4770 (daily ed. May 18, 2006).
9 Id.

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existing federal or state laws and regulations sanctioning the use of non-English for
various purposes. As in the past, however, any official English proposals introduced
during the 110th Congress would give varying force to this declaration depending on
the degree to which they would propose adherence to English in various
governmental activities at the federal and state level. Several examples of legislation
introduced during the 109th Congress illustrate this concept.
During the 109th Congress, the Inhofe and Salazar amendments to the proposed
immigration reform effort both included elements from earlier legislative proposals.
Declaring English to be our “national language,” the former measure called on “the
Government of the United States . . .[to] preserve and enhance” the role of English,
and except as otherwise legally recognized, would have denied any private “right,
entitlement, or claim” to non-English governmental services or materials. The
Salazar amendment would have recognized English as the “common and unifying
language of the United States,” while protecting existing rights of non-English
speakers “to services and materials provided by the government” in languages other
than English.
Meanwhile, H.R. 4408 (the “National Language Act of 2005) and H.R. 997 (the
“English Language Unity Act of 2005”), also proposed in the 109th Congress,
differed considerably in scope as to governmental entities and types of activities that
would have been covered by the “official English” mandate. The immigration reform
approach to the subject, however, seemed to draw at least marginally from elements
of each. H.R. 4408 would have applied to all “official business” of the “Government
of the United States” — including any “publications, income tax forms, and
informational materials” — and would have denied any legal right, claim, or
“entitlement” to “communicate with” and “receive information from” the
Government in languages other than English. H.R. 4408, however, stated that it
“shall not preempt any law of any state,” suggesting that it would have largely been
confined to federal language policies. In contrast, H.R. 997, by its terms, would have
required that “official functions” — including “all laws, public proceedings,
regulations, publications, orders, actions, programs, and policies” — of the Federal
Government, the States, and the District of Columbia be conducted in English. It thus
seemed intended to bind State officers and agents much like their Federal
governmental counterparts.10 Absent further elaboration, it is uncertain what, if any,
implications the proposal might have had on non-federal governmental activities at
the state or local levels.
The Senate immigration reform proposals seemed to raise fewer questions of
jurisdictional sweep along these lines. The Inhofe Amendment appeared largely
limited in any direct manner to actions of the federal government rather than the
states and localities. Nor did it appear that the Salazar Amendment would carry direct
10 Exceptions written into both House bills, however, would have permitted linguistic
diversity in governmental communications concerned with teaching of foreign languages;
international relations, trade, or commerce; compilation of census information; public health
and safety matters; and the conduct of criminal proceedings. In addition, H.R. 997 would
have allowed use of other languages under the Individuals with Disabilities Act, for national
security purposes, and in the compilation of census information.

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legal implications — beyond, perhaps, those that Congress might impose by means
of the“carrot and stick”of federal funding conditions — on the linguistic policies of
state or local governmental entities. Indeed, the major sticking point between Inhofe
Amendment supporters and its opponents centered on the measure’s potential effect
on existing laws mandating private claims for non-English services or materials
provided by the federal government.11 Questions arose in particular with respect to
amendment language that would have allowed governmental non-English policies
“authorized or provided by law,” wording criticized for “going further than what you
have indicated; that you are trying to diminish existing rights of the law.”12 Senator
Inhofe expounded his understanding of the “unless otherwise authorized or provided
by law” exceptions to his “national language” mandate as follows:
My amendment makes clear that nobody has a right or entitlement to sue the
Federal workers or the Federal Government for services or materials in languages
in other than English. . . . [T]he Federal Government has no duty to provide
services or materials in languages other than English, but the Federal
Government is free to do so. In other words, they are not compelled to do it, but
they may do it, they have the authority to do that.
The question has been asked: How does the amendment affect the X program?
Will the Federal Government be free to offer X service or material in Y
language? The answer is, yes, the Federal Government is at liberty to offer, can
offer, X services or whatever the program is, in whatever language seems
appropriate, but the Federal Government only has the duty to offer X services
and Y language if a statute creates that right.13
Likewise, another proponent denied that the Inhofe Amendment would have had any
“unintended consequence” of curtailing federal governmental interactions with
persons in languages other than English, whether based on current law or future law.
“There is nothing in this amendment, in my opinion, that does away with any laws
that already exist or might exist in the future for a language other than English.”14 But
Senator Inhofe’s remarks indicated his intention to ratify the Supreme Court’s
Sandoval ruling, and its predecessors,15 which have refused to recognize a national
origin- based private claim for entitlement to foreign language assistance under
11 152 Cong. Rec. S4752 (daily ed. 5-18-2006).
12 Id.
13 Id at S4753 (Remarks of Senator Inhofe).
14 Remarks of Senator Graham, Id. at S4764. (“That is why the term ‘unless otherwise
authorized or provided by law’ is there. That means, simply put, if there is a law on the
books – a case decision, a regulation, an Executive order, you name the source of law – or
a constitutional provision that would allow the Federal Government to interact with its
people in an language other than English, it is not affected by this amendment, nor does it
prevent in the future the Government expanding those services in a language other than
English. It says, also, there is no entitlement to a service in a language other than English,
unless authorized by law. That is just a simple, commonsense concept.”).
15 See discussion pp. 8-12 infra.

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federal civil rights laws, and the proponents’ rejection of E.O. 13166, which directs
foreign language services and materials in federally-conducted or assisted programs.16
In general, proposals before the Senate in the 109th Congress appeared to track
the related House measures by obliging covered governmental entities “to preserve
and enhance the role of English” and to “encourag[e] greater opportunities to learn
the English language.” To this end, H.R. 997 sought to secure the “presumptive”
legal validity of English language workplace policies, public and private, and would
have established establish a basic English reading and comprehension rule for
naturalization. Similarly, the Inhofe Amendment’s main sponsor explicitly embraced
judicial rejection of any equation between governmental language policies and
national origin discrimination. The Amendment itself would have added to existing
literacy requirements for naturalization a “Goals for Citizen Test Redesign,” to be
administered by the Department of Homeland Security, which would have required
that all prospective new citizens to demonstrate an “understanding of American
common values and traditions” and “of the history of the United States, including the
key events, key persons, key ideas, and key documents that shaped the institutions
and democratic heritage of the United States.” The Salazar Amendment would not
have altered existing policies in this regard.
However, other formal legal aspects of the proposed House measures found no
direct parallel to the proposed Senate amendments. A “rule of construction” in H.R.
997 would have permitted “unofficial” non-English communications by Members of
Congress and other federal and state officers and agents — even “while performing
official functions” — provided that “the official functions” themselves “[we]re
performed in English.” The bill was silent, however, as to where the line between
official and unofficial would have been drawn, a question that would probably have
had to be answered administratively or by judicial rule. H.R. 4408 would have
repealed requirements in the Voting Rights Act that mandate use of bilingual voting
materials in states or political subdivisions when certain conditions are met.17
However, neither bill would have expressly overridden any other federal statute
explicitly authorizing the use of language translations, interpreters, or other
supplemental services. Any conflicting state policies mandating non-English usage
in similar state or local proceedings could have been challenged under H.R. 997
unless saved by one of the specific exceptions in that bill, and both H.R. 997 and
H.R. 4408 specifically called for renewed enforcement of English proficiency
standards for citizenship and the “conduct [of] all naturalization ceremonies” in
English.
Furthermore, a provision found in H.R. 997, but not H.R. 4408, would have
allowed persons “injured by a violation of this chapter” to file a civil action in federal
court for “appropriate relief.” The ramifications of this private right of action are
difficult to predict. Traditional rules governing standing to sue in federal court
generally call for proof of “injury in fact” or actual harm suffered by the claimant as
the result of a legal violation. Under the bills, most “official” governmental activities
would be required to be conducted in English, and any legal “entitlement” to
16 Id at S4754, 4756 (Remarks of Senator Inhofe).
17 42 U.S.C. § 1973aa-1a.

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language translation or interpreters would be denied. However, it is arguable, neither
proposal specifically would have banned the government from also providing
services or materials, as needed, in other languages for non-English speaking
constituents. That is, they did not provide that the government conduct its official
business “exclusively” or “only” in English. For this reason, it might have been
difficult for plaintiffs to argue that they were actually injured by the provision of
supplemental services to foreign language speakers if the core official English
requirements of the bill were otherwise met. On the other hand, it could be argued
that any foreign language usage would have conflicted with Congress’ purpose and
the “affirmative obligation” imposed upon the Federal Government “to preserve and
enhance the role of English as the official language... “ In effect, private civil actions
that would have been permitted by the bill to enforce this “affirmative” governmental
obligation could have made the linguistic policy implications of virtually any
“official” action or inaction by the federal government susceptible to judicial inquiry.
Whether the official English mandate in the House proposals would have
pertained only to the form of speech or linguistic medium used by the government,
or its employees, to communicate with the public or was also intended to reach the
content or subject matter of governmental speech may be another issue. If narrowly
interpreted by the courts, as reaching only the formal aspect of federal governmental
documents, rather than their substance, H.R. 997 and H.R. 4408 could have had
marginal impact on federally mandated standards in regard to the education of
language minorities, bilingual election requirements, or private employer English-
only workplace rules. H.R. 997, in particular, specifically provided that it not be read
“to disparage any language or to discourage any person from learning or using a
language” nor in a manner “inconsistent with the Constitution of the United States.”
These disclaimers might have had the effect of preserving the status quo in regard to
federally enforced bilingualism pursuant to the Constitution or federal civil rights
statutes. An argument could be made, however, that the governmental duty to
“preserve and enhance” the role of official English demands, at a minimum, that a
substantive commitment to English be reflected in the content of federal agency
rulemaking. Accordingly, the bills could have conceivably be read to apply both to
the form and substance of federal laws, regulations, or orders, so as to preclude
imposition upon state or local authorities, or private parties, of foreign language
assistance or bilingual requirements of various sorts. Of course, H.R 4408 would
have eliminated some uncertainty by its express repeal of language minority voting
requirements.
Thus far, the 110th Congress has not yet witnessed the introduction of legislation
comparable to the measures that emerged during the 109th Congress. However,
several more limited proposals have been introduced, including H.J.Res. 17 and
H.J.Res. 19, both of which would amend the Constitution to establish English as the
official language of the United States, and H.Con.Res. 11, which would resolve that
the federal government should pursue policies that not only encourage all residents
to become fully proficient in English, but also encourage all residents to learn or
maintain skills in languages other than English.

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Federal Policy on Foreign Language Assistance
The interplay of previously proposed legislation with current federal foreign
language policy is perhaps best illustrated by E.O. 13166 and departmental
regulations by the federal government issued thereunder. That order, issued by
President Clinton in 2000, directed each federal department and agency to
“implement a system” for insuring that persons with limited English proficiency
(LEP) are provided “meaningful access” to programs and activities conducted by the
federal government and by recipients of federal financial assistance covered by Title
VI of the 1964 Civil Rights Act.18 A policy guidance document, released by the
Department of Justice (DOJ) on the same day, and referenced in the order, set forth
“compliance standards that recipients must follow to ensure that the programs and
activities that they normally provide in English are accessible to LEP persons and
thus do not discriminate on the basis of national origin in violation of Title VI ... and
its implementing regulations.” Each federal grant-making agency was to tailor the
general standards of the DOJ guidance into an approach “ensuring meaningful access
by LEP persons that is practical and effective, fiscally responsible, responsive to the
particular circumstances of each agency, and can be readily implemented.”19
The DOJ guidance notes that Title VI and its regulations require recipients of
federal funds to take reasonable steps to insure “meaningful” access to information
and services they provide. What constitutes reasonable steps, the document advises,
will be contingent on a number of factors, such as the number and proportion of LEP
persons in the eligible service population, the frequency with which LEP individuals
come into contact with the program, the importance of the service provided by the
program, and the resources available to the recipient. In balancing factors for
determining what steps are reasonable, agencies are to particularly address the
appropriate mix of oral and written language assistance. Acknowledging that written
translations are a “highly effective way” of communicating with LEP persons, the
document states that oral communication may also be a necessary part of the
exchange of information. LEP persons include those born in other countries, some
children of immigrants born in the United States, and other non-English or limited
English proficient persons born in the United States, including some Native
Americans.
In its guidance, DOJ cited Lau v. Nichols,20 in which the U.S. Supreme Court
interpreted Title VI as requiring that a federal financial aid recipient take steps to
insure that language barriers do not exclude LEP children from effective participation
in public educational benefits and services. Lau involved a group of Chinese students
in the San Francisco public school system who received classroom instruction solely
18 Title VI provides that “[n]o person in the United States shall, on the ground of race, color,
or national origin, be excluded from participation in, denied the benefits of, or be subjected
to discrimination under any program or activity receiving federal financial assistance.” Id.
§ 2000d.
19 65 FR 50121. Additional information on the order and implementing guidance is available
at [http://www.usdoj.gov/crt/cor/13166.htm].
20 414 U.S. 563 (1974).

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in English. The Court ruled that the failure to provide such students with
supplemental instruction in their primary language violated the Title VI ban on
national origin discrimination. The DOJ document extrapolates an extension of the
Lau doctrine beyond education to other contexts. Note, however, that while the Lau
precedent remains intact, its value as precedent may be diminished somewhat by
subsequent judicial developments.
The Court’s ruling in Alexander v. Sandoval was decided after publication of
the DOJ guidance,21 although DOJ has taken the position that the Sandoval decision
did not strike down the Title VI regulations that form the basis for Executive Order
13166.22 At issue in Sandoval was the State of Alabama’s “English-only policy”
requiring all aspects of its driver’s license examination process, including the written
portion, to be exclusively in English. In rejecting a Mexican immigrant’s claim that
the state policy violated Title VI because of its “disparate impact” on ethnic
minorities, a five Justice majority ruled that Congress did not intend a private right
of action to enforce Title VI except as a remedy for intentional discrimination.
Federal regulations prohibiting state practices that have a discriminatory impact,
regardless of intent, could not provide a basis for private lawsuits. Sandoval,
however, did not directly confront federal agency authority, previously acknowledged
by the Court, to enforce Title VI compliance administratively with rules condemning
practices discriminatory in their effect on protected minority groups. Thus, at least
for now, “disparate impact” rules — mandating language assistance for non-English
proficient clients of federally financed programs — may still be enforced by the
government, just not by private litigants. However, some previous congressional
proposals would arguably have negated any private Title VI remedy for linguistically-
based ethnic discrimination. And any requirement regarding the government’s
“affirmative obligation” to promote English could portend similar perils for agency
rules condemning the disparate impact of English-only policies under Title VI.
Constitutional Law Implications of Official English
Judicial decisions involving the constitutional implications of government
language policies have arisen in a variety of legal contexts. One series of cases has
involved non-English speaking plaintiffs who have unsuccessfully sought to require
the government to provide them with services in their own language. In Soberal-
Perez v. Heckler,23 for example, the Second Circuit rejected an action on behalf of
Hispanic individuals of limited English proficiency who claimed that the equal
protection and due process clauses of the Constitution required the Secretary of
Health and Human Services to provide them with Social Security forms and
instructions in Spanish. The appeals court could find no basis for the constitutional
21 532 U.S. 275 (2001).
22 Memorandum from Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights Division,
Department of Justice, for Heads of Departments and Agencies, General Counsels and Civil
R i g h t s D i r e c t o r s ( O c t . 2 6 , 2 0 0 1 ) , a v a i l a b l e a t
[http://www.usdoj.gov/crt/cor/lep/Oct26memorandum.pdf].
23 717 F.2d 36 (2d Cir. 1983), cert. denied, 466 U.S. 929 (1984).

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and related statutory claims since the Secretary’s action bore a rational relationship
to a legitimate governmental purpose:
We need only glance at the role of English in our national affairs to conclude that
the Secretary’s actions are not irrational. Congress conducts it affairs in English,
the executive and judicial branches of government do likewise. In addition, those
who wish to become naturalized citizens must learn to read English.... Given
these factors, it is not irrational for the Secretary to choose English as the one
language in which to conduct her official affairs.24
The federal courts have similarly found no constitutional duty on the part of
government to provide certain other forms of official notice or services to individuals
in their native tongue.25 These cases, however, hold only that in the circumstances
involved, non-English speakers have no affirmative right to compel government to
provide information in a language that they can comprehend. They do not address the
converse issue of legislative power to restrict official speech in languages other than
English as a matter of state or national policy.
Another body of judicial authority has found that certain state law restrictions
on linguistic diversity may act as a “proxy” for national origin discrimination or
infringe upon First Amendment free speech rights. In Meyer v. Nebraska,26 for
example, the Supreme Court found that a state law prohibiting modern foreign
language instruction in any school, public or private, before the ninth grade violated
Fourteenth Amendment due process because it infringed upon the liberty of parents
to make educational choices for their children. According to the Meyer Court:
[t]he protection of the Constitution extends to all, to those who speak other
languages as well as to those born with English on the tongue. Perhaps it would
be advantageous if all had ready understanding of our ordinary speech, but this
cannot be coerced by methods which conflict with the Constitution — a desirable
end cannot be promoted by prohibited means.27
Meyer was applied by the Court in Farrington v. Tokushiga to invalidate a
Hawaii statute that singled out “foreign language schools,” such as those in which
24 Id. at 43-44.
25 See, e.g., Toure v. United States, 24 F.3d 444 (2d Cir. 1994)(no right to notice of
administrative seizure in French); Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993),
cert. denied 512 U.S. 1228 (1994)(employer’s English-only workplace rules do not violate
Title VII of the 1964 Civil Rights Act); Vialez v. New York City Hous. Auth., 783 F.2d 109
(S.D. N.Y. 1991) (Housing Authority’s failure to provide documents in Spanish does not
violate Title VI or the Fair Housing Act since “it reflects, at most, a preference for English
over all other languages” rather than racial or ethnic discrimination); Guadalupe Org., Inc.
v. Tempe Elementary Sch. Dist. No. 3, 587 F.2d 1022, 1027 (9th Cir. 1978)(no right to
bilingual education); Frontera v. Sindell, 522 F.2d 1215, 1219-20 (6th Cir. 1975)(English-
only civil service exams do not violate Hispanic individuals’ equal protection rights since
“[l]anguage, by itself, does not identify members of a suspect class”); and Carmona v.
Sheffield, 475 F.2d 738 (9th Cir. 1973)(no right to employment notices in Spanish).
26 262 U.S. 390 (1923).
27 Id. at 401.

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Japanese was taught, for stringent government control.28 The state’s purpose for
regulating language instruction in Tokushiga was “in order that the Americanism of
the students may be promoted.”29 Similarly, the governmental interests asserted in
defense of the Meyer statute were “to create an enlightened American citizenship in
sympathy with the principles and ideals of this country,”30 “to promote civic
development,”31 and to prevent inculcation in children of “ideas and sentiments
foreign to the best interests of the country.”32 Despite a judicial acknowledgment of
the validity of such goals, the Court found them insufficient to warrant state
interference with foreign language usage in the schools.
Yu Cong Eng v. Trinidad considered the constitutionality of a Philippine law
forbidding Chinese merchants from keeping their business account books in Chinese,
the only language they knew.33 Finding that enforcement of the law “would seriously
embarrass all of [the Chinese merchants] and would drive out of business a great
number,”34 the Court held that the law denied the merchants due process and equal
protection under the Constitution. Although based on the substantive due process
doctrine of an earlier period, reverberations of Yu Cong Eng and Meyer may be found
in rulings of more recent vintage. In Hernandez v. New York,35 for example, the Court
determined that peremptory challenges directed at Latino jurors because of their
bilingualism and demeanor were not unconstitutional because the factors motivating
the prosecutor’s action in that case did not function as a proxy for race. Writing for
the plurality, however, Justice Kennedy stated that:
[w]e would face a quite different case if the prosecutor had justified his
peremptory challenges with the explanation that he did not want Spanish-
speaking jurors. It may well be, for certain ethnic groups and in some
communities, that proficiency in a particular language, like skin color, should be
treated as a surrogate for race under an equal protection analysis.36
The U.S. Supreme Court in Arizonans for Official English v. Arizona side-
stepped constitutional controversy when it vacated for procedural irregularities a
ruling by the Ninth Circuit voiding Arizona’s official English law.37 In 1988, Arizona
voters had approved by referendum a state constitutional amendment providing that
28 273 U.S. 284 (1927).
29 273 U.S. at 293.
30 Id. at 393.
31 Id. at 390.
32 Id. at 398.
33 271 U.S. 500 (1926).
34 Id. at 514.
35 500 U.S. 352 (1991).
36 Id. at 371. Similarly, Justice Stevens, in dissent, asserted that “an explanation [for striking
prospective jurors] that is ‘race-neutral’ on its face is nonetheless unacceptable if it is
merely a proxy for a discriminatory practice.” Id. at 379.
37 520 U.S. 43 (1997).

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English is the official language of the State of Arizona and that the state and its
political subdivisions — including “all governmental officials and employees during
the performance of government business” — must “act” only in English. A former
insurance claims manager for the state who spoke both English and Spanish in her
daily service to the public argued that the law had a silencing and chilling effect on
constitutionally protected speech of bilingual, monolingual, and Spanish-speaking
public employees and their clients. Despite assertions by Arizona’s Attorney General
that communications “to facilitate delivery of governmental services” were not
“official acts” covered by the law, the Ninth Circuit held that the “plain wording” of
the law defied such limitation and was an overly broad restriction on free speech
rights of state employees and the public they served.38
The First Amendment analysis applied by the 6-5 en banc majority of the Ninth
Circuit required balancing the right of public employees to speak on matters of
“public import” against the government’s legitimate interest as an employer “in
achieving its goals as effectively and efficiently as possible.” Although the
government may generally regulate public employee speech concerned simply with
“matters of personal or internal interest,” the Arizona law “significantly interfere[d]”
with “communications by or with government employees” related to “the provision
of government services and information,” a form of public discourse entitled to
greater constitutional protection.39 Moreover, the efficiency and effectiveness
considerations constituting fundamental governmental interests in the usual “public
concern” case — and that provide the justification against which the employee’s First
Amendment interests must be weighed — were found totally lacking by the Ninth
Circuit. Indeed, the appeals court determined that government efficiency would
actually be promoted rather than hindered by permitting public employee speech in
languages other than English. Nor was the state’s asserted interest in forging “unity
and political stability” by “encouraging a common language” sufficient to warrant
restrictions on foreign language usage.
The Supreme Court vacated and remanded the case, in effect leaving the
Arizona law intact for the time being. Speaking for a unanimous Court, Justice
Ginsburg declared the case moot since the plaintiff had resigned from state
employment prior to appeal and had never sought to have the case certified a class
action. In addition, the Justices had “grave doubts” whether Arizonans for Official
English, original sponsors of the ballot initiative, had standing to appeal the case as
a party after the Arizona Governor declined to do so. Finally, the federal district and
38 Yniquez v. Arizonans for Official English, 69 F.3d 920 (1995).
39 In this regard, the court’s opinion observed: “The practical effects of Article XXVIII’s de
facto bar on communications by or with government employees are numerous and varied.
For example, monolingual Spanish-speaking residents of Arizona cannot, consistent with
the article, communicate effectively with employees of a state or local housing office about
a landlord’s wrongful retention of a rental deposit, nor can they learn from clerks of the state
court about how and where to file small claims court complaints. They cannot obtain
information regarding a variety of state and local social services, or adequately inform the
service-givers that the governmental employees involved are not performing their duties
properly or that the government itself is not operating effectively or honestly. Those with
a limited command of English will face commensurate difficulties in obtaining or providing
such information.” Id., at 941.

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appeals courts had erred by failing to certify unsettled state-law questions regarding
the scope of the English-only amendment to the Arizona Supreme Court for
“authoritative construction” before proceeding with the case. The Supreme Court
thus left a constitutional ruling on the Arizona Official English law for another day.
In 1998, the Arizona Supreme Court decided Ruiz v. Hull,40 holding that the
state’s English-only amendment violated the First Amendment and the Equal
Protection Clause. Like the Ninth Circuit, the Arizona Court found a core First
Amendment right in a citizen’s ability to receive essential information from
government officials and to petition the government for redress of grievances.
According to the opinion, the state law “effectively cuts off governmental
communication with thousands of limited-English-proficient and non-English-
speaking persons in Arizona, even when the officials and employees have the ability
and desire to communicate in a language understandable to them.” Applying strict
scrutiny analysis, Ruiz held the English-only amendment violated the First
Amendment because it was overbroad and could not satisfy the compelling state
interest test. The Arizona Court also found an Equal Protection violation based on
earlier precedents establishing a “fundamental individual right of choice of
language.” Pending a definitive federal court ruling, however, the constitutionality
of restrictive official English policies remains a somewhat unsettled matter.
Miscellaneous Federal Policies Providing for Non-
English Translation and Services
Besides voting rights, federal statutory requirements regarding foreign language
interpretation and use are included in various other federal programs and activities.
For example:
! American Indians: Congress enacted Chapter 31, Title 25 of the U.S.
Code to “preserve, protect, and promote the rights and freedom of
Native Americans to use, practice, and develop Native American
languages.” (25 U.S.C. § 2903(1)) The chapter is supported by
congressional findings relative to the “unique” and “special” status
of Native-American language and culture, and to the need for the
“United States, individual States, and territories to encourage the full
academic and human potential achievements of all students and
citizens and to realize these ends...” (Id. at § 2901) Specifically, in
regard to education, the declaration of policy “encourage[s] and
support[s]” the use of Native American languages “as a medium of
instruction” in Indian schools, and also “encourages” all other
“elementary, secondary, and higher education” institutions to “afford
full academic credit” and “include Native American languages in the
curriculum in the same manner as foreign languages.” (Id. at § 2903)
In aid of this policy, the statute further provides that “[t]he right of
Native Americans to express themselves through the use of Native
40 191 Ariz. 441, 957 P.2d 984, cert. denied, 525 U.S. 1093 (U.S. 1999).

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American languages shall not be restricted in any public proceeding,
including publicly supported education programs.” (Id. at § 2904)
Federal departments and agencies are to evaluate their policies and
procedures, and laws within their administrative jurisdiction, for
compliance with the stated policy, but no procedure for
governmental enforcement of the linguistic “right” created by the
law is provided.
! Immigration: Interpreters must be provided during physical and
mental examinations of alien immigrants seeking entry into the
United States (8 U.S.C. § 1222 (b)).
! Judicial proceedings: The Director of the Administrative Office of
the U.S. Courts is to establish a program for the use of foreign
language interpreters in federal civil and criminal proceedings
instituted by the United States (28 U.S.C. § 1827); courts may
appoint interpreter to be paid by the government in federal criminal
proceedings (Rule 28, Fed. R. Crim. Proc.); service of judicial
process by the United States and state courts on a foreign state, its
political subdivisions, agencies, or instrumentalities must be
accompanied by a translation “into the official language of the
foreign state” (28 U.S.C. § 1608); employment of interpreters in
court-martial, military commission, or court of inquiry proceedings
is required, if needed. (10 U.S.C. § 828).
! Social and health care services: Notices must be provided “in
language that is easily understandable to reader” under various
Social Security Act programs (42 U.S.C. §§ 405, 1383). Foreign
language interpreters or translations are required in connection with
federally funded migrant and community health centers (42 U.S.C.
§§ 254b(b)(1)(a)(iv) and 254b(j)) in a grant program for certain
health care services for the homeless (42 U.S.C. § 256); in alcohol
abuse and treatment programs, which serve a substantial number of
non-English speaking persons (42 U.S.C. § 4577(b); and in the grant
program for supportive services under the Older Americans Act (42
U.S.C. § 3030d(a)(3)).
! Agriculture: Department of Agriculture funds may be used for
translation of publications into foreign languages (7 U.S.C.
§ 2242b).
State Laws
As noted, 28 states have adopted Official English laws in various forms. Some
enactments make a simple declaration of English as the official state language,

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without more.41 Others arm state legislatures with power to enforce linguistic
uniformity, or otherwise to preserve and enhance the official role of the English
language. More specific measures expressly prohibit or restrict, in one fashion or
another, foreign language usage by state agencies or employees in the conduct of
official business. Specific exceptions to English-only requirements are frequently
included, however, particularly where necessary to comply with federal law.
Meanwhile, a plethora of other laws have also been enacted by various state
legislatures to facilitate communication with persons of limited English proficiency
in the provision of needed public and private services. For example, most states
require the use of interpreters in courtroom and other law enforcement settings, 42
while many states require similar services for LEP individuals appearing before
administrative agencies or seeking health care.43 Similar requirements regarding
interpretation and translation also appear in state laws pertaining to professional
licensing,44 business and employment,45 state and local elections,46 and military
justice.47
41 See, e.g., Colo. Const. Art. II, § 30, which states, in its entirety, “[t]he English language
is the official language of the State of Colorado.”
42 See, e.g., Code of Ala. §§ 12-21-130, 15-1-3 (Foreign language interpreters are provided
to non-English speaking defendants or witnesses in criminal or civil proceedings); ALM GL
ch. 221C, § 2 (Non-English speakers have the right to the assistance of a qualified
interpreter in legal proceedings).
43 See, e.g., Md. State Government Code Ann. § 10-212.1 (In contested cases, parties may
apply to an agency for an interpreter if they cannot understand English); Minn. Stat. §
15.441 (“Every state agency that is directly involved in furnishing information or rendering
services to the public and that serves a substantial number of non-English-speaking people
shall employ enough qualified bilingual persons in public contact positions, or enough
interpreters to assist those in these positions, to ensure provision of information and services
in the language spoken by a substantial number of non-English-speaking people.”); Conn.
Gen. Stat. § 19a-490i. (Each “acute care hospital” shall ensure that interpreters are available
for patients that speak a language other than English that is spoken by more than 5% of the
population and must review and translate standardized forms for non-English speaking
patients); Fla. Stat. § 381.026 (Patients who do not speak English have the right to be
provided with an interpreter when receiving medical services if the facility has a person
readily available who can interpret on behalf of the patient).
44 See, e.g., Md. Business Regulation Code Ann. § 2-110 (Applicants for professional or
business licenses are permitted to use interpreters, provided the Department of Licensing
determines that such use would not “compromise the integrity” of the testing process).
45 See, e.g., Iowa Code § 91E.2 (If 10% or more of an employer’s workforce does not speak
English and they speak the same language, then the employer must provide an interpreter);
NY CLS Exec Appx § 466.11 (The provision of an interpreter is specifically included in the
definition of “reasonable accommodation” in the workplace).
46 See, e.g., Fla.Stat.§ 101.2515 (A translated ballot in the language of any minority group
should be provided if the supervisor of an election requests such a translation 60 days prior
to an election); N. M. Stat. Ann. § 1-2-19 (An election translator shall be appointed to assist
language minority voters).
47 See, e.g., A.R.S. § 26-1028 (Interpreters may be provided for proceedings before “a court-
(continued...)

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47 (...continued)
martial, military commission or court of inquiry”); S.C. Code Ann. § 25-1-2640 (The
convening authority of a military court may detail or employ interpreters who shall interpret
for the court).

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