Amicus Curiae Brief — Arizonans for Official English v. Arizona

Supreme Court; U.S.

:

| FILE D

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QW JUL 23 1996

No. 95-974 CLERK

In The

Supreme Court of the United States

October Term, 1995

e

ARIZONANS FOR OFFICIAL ENGLISH

AND ROBERT D. PARK,

Petitioners,

V.

STATE OF ARIZONA; MARIA-KELLEY F. YNIGUEZ;

JAIME GUTIERREZ; AND ARIZONANS AGAINST

CONSTITUTIONAL TAMPERING,

Respondents.

*

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

o

BRIEF OF AMICI CURIAE

LINGUISTIC SOCIETY OF AMERICA

AND NATIONAL COUNCIL FOR LANGUAGES

AND INTERNATIONAL STUDIES

IN SUPPORT OF RESPONDENTS

¢

Peter M. TiersMa

Loyola Law School

- 919 S. Albany

Los Angeles, CA 90015

(213) 736-1162

RECEIVED

OO ee = «UL 2 /. I¥96

OFFICE OF THE CLERK

Sper v CONIRT. U.S.

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I. ARTICLE 28 WILL NOT PROMOTE

DEMOCRACY OR ENCOURAGE UNITY

AND POLITICAL STABILITY

A. Democracy Is Advanced by the Broad-

est Possible Participation in Govern-

mental Affairs; Article 28 Reduces Such

Participation by Citizens Who Speak

Little or No English

Linguistic Regulation Is Alien to Amer-

ican Democratic Values

International Experience Shows That

Repressive Language Policies Stir

Resentment Instead of Promoting Unity

' 13

ARTICLE 28 WILL NOT FOSTER A COM-

MON LANGUAGE 20

A. Immigrants Are Already Learning English

Rapidly; the Rate of Acquisition of English

Will Be Determined by Social and Eco-

nomic Factors, Not by Article 28

Immigrants Are Well Aware of the

Advantages of Acquiring English,

Regardless of Arizona’s Strict English-

il

TABLE OF CONTENTS - Continued

Page

C. Arizona Has a Far More Effective and

Less Intrusive Means of Reaching Its

Stated Goal: Teaching English to Its Res-

IDORES. 2. ecvccedeceishscesebensenean

Ill. ARTICLE 28 WILL NOT PROTECT PUBLIC

CONFIDENCE OR PREVENT DISILLU-

SIONMENT AND CONCERN .............

IV. ARTICLE 28 WILL NOT PROMOTE GOV-

ERNMENTAL EFFICIENCY AND EFFEC-

TYVEINGSS. oo cc ccccvcduccescuuesenueueepane

CONCLUGION 2. vcccccccccccsecestusnenseseeeaune

26

27

TABLE OF AUTHORITIES

Page

Cases

Asian American Business Group v. City of Pomona,

716 F. Supp. 1328 (C.D. Cal. 1989)................ 29

Buckley v. Valeo, 424 U.S. 1 (1976)...............204.. 8

Gutierrez v. Municipal Court, 861 F.2d 1187 (9th Cir.

1988), vacated as moot, 490 U.S. 1016 (1989)........ 14

Lau v. Nichols, 414 U.S. 563 (1974) .................. 26

Meyer v. Nebraska, 262 U.S. 390 (1923).......... 6, 9, 13

West Virginia State Board of Education v. Barnette,

I UW ian do dd od decéccececcccess 19

Wisconsin v. Yoder, 406 U.S. 205 (1972)............... 26

CONSTITUTIONAL PROVISIONS AND STATUTES

SE ME EEE ccevoccdcescccccccececes passim

Ariz. Rev. Stat. Ann. § 15-752 (1991)................ 26

Orner AUTHORITIES

Jon Amastae, Official English and the Learning of

English, in Perspectives on Official English: The

Campaign for English as the Official Language

the USA 199 (Karen L. Adams & Daniel T. Bri

abe du enn bo db4cdeuss cee ceccesce: 24, 25

Abdurakhman Avtorkhanov, The Communist Party

ED co coccdebesonecencesvccccccccccccce 15

Hugo Baetens Beardsmore & Roland Willemyns,

omment, 60 Int'l J. Soc. Language 117 (1986) ..16, 17

Ayo Ba , Language and the Nation: The Lan-

guage tion in Sub-Saharan Africa (1991)........ 14

iv

TABLE OF AUTHORITIES — Continued

Dennis Baron, The English-Only Question: An Offi-

cial Language for Americans? (1990) ................ 15

Dennis E. Baron, Grammar and Good Taste: Reform-

ing the American Language (1982).............+++5. 13

Ursula Bellugi & Edward Klima, The Signs of Lan-

guages (ISTE) . occ ccccccccccscccesccsccscesecssscees

Michael Bruchis, The USSR: Language and Realities

GED « ccccccccceccccescacessnedéeusacteeebesesbous 15

Bureau of the Census, ‘t of Commerce, 1990

Census of Population: racteristics of Ameri-

can Indians by Tribe and Language................

Bureau of the Census, ‘t of Commerce, 1990

Census of Population: Social and Economic

Characteristics, United States ..................... 20

Juan Cobarrubias, The Protection of Linguistic

Minorities in the Autonomous Communities

Spain, in Langue et Droit [Language and Law] 399

(P. Pupier & J. Woehrling a

The Collected Works of Abraham Lincoln (Roy P.

ED Gin Ge o Hb chedoadiocdrdsiabasbdencsubebbes

Nancy Faires Conklin & Margaret A. Lourie, A

Host of Tongues: Language Communities in the

SNS GS Cie wc v.ceccdesoncenecbecepensevsess

Current Trends in Linguistics (Thomas A. Sebeok

EN ee Oe em a ee ee

John-Thor Dahlburg, Bitter Ethnic Struggle Sinks

Roots Deeper in Sri Lanka, L.A. Times, July 10,

OOD GB BD occ cnscesecocedndustdechavsdbedecesans

v

TABLE OF AUTHORITIES - Continued

Thomas I. Emerson, The System of Freedom of

SE ED vabeccndcvudduesnceberecéevsdeces

Encyclopedia of Language and Linguistics (R.E.

ST is Cccheveckucddeddobésdnabtake be ceccce

Milton J. Esman, The Politics of Official Bilingualism

in Canada, in Language Policy and Nati Unity

45 (William R. Beer & James E. Jacob eds., 1985) ....

Joshua Fishman, Language Policy: Past, Present, and

Future, in earth we oe ge in y the uU A 516 (Charles A.

ley Brice Heath eds., 1981) .......

Kenji Hakuta, Mirror of Language: The Debate on

ds PPPPPPTTITITITIT TE TTT eee

Matthias Hartig, The Language Situation and Lan-

guage Policy in Belgium, in Language Policy and

National Unity 67 (William R. & James E.

i i. Mi <3 ical d etdaubdumernth ened hectans

Shirley Brice Heath, English a Our Language Heri-

tage, in Language in the USA 6 (Cha A. Fer-

guson & Shirley Brice Heath eds., 1981) ..........

Shirley Brice Heath, A National Language Acad-

emy?: Debate in the New Nation, 189 Linguistics 9

SEED cc ccococvagesccuddcbeveencbocnanpesevescaces

(1986)...... PREREO Tig ay oy et: Soe

Herbert C. Kelman, Language as an Aid and Barrier

to Involvement in the National System, in Can

Language Be Planned? Sociolinguistic and

Practice for Developing Nations 21 (Joan Rubin &

Bjérn H. Jernudd eds., 1971)............ 6600s eeees

16

vi

TABLE OF AUTHORITIES - Continued

Page

Heinz Kloss, The American Bilingual Tradition

GREED co occcessancépcceseneteseanpeetassl 9, 11, 12, 24

Heinz Kloss, German-American Language Mainte-

nance Efforts, in Language Loyalty in the United

States: Maintenance and Perpetuation of Non-

English Mother Tongues by American Ethnic and

Religious Groups 206 (Joshua A. Fishman et al.

GE, TEED woe ccacavesccnnchesigeciee cneeuetiees cits 11

Joseph Magnet, Language Rights: Canada’s New

Direction, 39 U. New Brunswick L. J. 1 (1990)..... 17

Joseph E. Magnet, Canadian Perspectives on Official

English, in Perspectives on ial English: The

Campaign for English as the Official Language

the USA 53 (Karen L. Adams & Daniel T. Bri

oS Pe Se ee 16

Kevin F. McCarthy & R. Burciaga Valdez, Current

and Future Effects of Mexican Immigration in Cali-

fornia: Executive Summary (1985)................... 21

Dowell Myers, The Changing Immigrants of South-

ern California (Research Report No.

LCRI-95-04R, Lusk Center Research Institute,

School of Urban and Regional Planning, Uni-

versity of Southern California, 1995).............. 22

The Papers of Benjamin Franklin (Leonard W.

Labaree & Whitfield J. Bell eds., 1961)......... 10, 11

Fernando Pefialosa, Introduction to the Sociology of

PD Sac. n nachudbndudatbestshcdetbbaasen 22

Juan F. Perea, and Distrust: An Essay

on American ‘"y~ Cultural Pluralism, and

Official English, 77 Minn. L. Rev. 269 (1992)....... 12

vii

TABLE OF AUTHORITIES - Continued

Page

Steven Pinker, The Language Instinct: How the Mind

PUD CANES GOOG Se ov iciccdcvcdsvaccovesewic 23

Laura Randall, America’s Ethnic Diversity Spawns

Language Conflicts, L.A. Times, Sept. 5, 1993, at

BD cceedddcvcncteboewhesvesscccecdssccoavdedocsus 25

Suzanne Romaine, Bilingualism (1989) ............... 28

William G. Ross, Forging New Freedoms: Nativism,

Education, and the Constitution, 1917-1927 (1994) .... 13

Royal Commission on Bilingualism and Bicul-

turalism. Report (1967-9). ..............2ceeeeeeees 16

Pierre van den Berghe, The Ethnic Phenomenon

SEE 6 cna dnt awh de Ribemhs 60 eke eh4d e090 50855 0040596 16

Calvin Veltman, The Future of the Spanish Language

in the United States (1988)..............6.00055 21, 22

Calvin Veltman, Language — in the United States

SPEED ac ndedssccbevttadvsghcctsvoassséducccesed 23, 27

R.E. Weiner, 70 Languages Equal and Free?, 6 Ariz.

J. Int'l & Comp. L. 73 (1989) .......... 66 cece eee 15

Uriel Weinreich, The Russification of Soviet Minority

Languages, 2 Probs. of Cormmunism, no. 2, at 46

SE vc act cccedcceccdsuctdecndusevevosccodecosess 15

The Works of John Adams (Charles Francis Adams

OR, TIED os cdeccvenss covcconcesaccune Wagsoscoaces 12

Barbara Yost, Immigrants on Waiting List for English

Classes: U.S. Newcomers on Track to Crack Lan-

guage Barrier, The Arizona Republic, Oct. 29,

Be, BE Go vc cdatncccnecdsdececscesen ssstveceess 24

1

INTEREST OF AMICI CURIAE

Amicus Linguistic Society of America (“LSA”) is a

scholarly organization, founded in 1924, whose member-

ship consists of thousands of academic and professional

linguists in the United States.' The object of the LSA, as

expressed in its constitution, is the advancement of the

scientific study of language. It is the premier organization

in this country devoted to that goal. This is the only time

that the LSA has filed an amicus brief before this Court.

Since the LSA’s inception, many of its members have

devoted their professional lives to recording, analyzing

and preserving the severely threatened native languages

of this continent. Arizona is especially rich in the number

and diversity of indigenous languages still spoken there,

including Apache, Havasupai, Hopi, Hualapai, Navajo,

O’odham (Papago) and Yaqui; Navajo has the largest

number of speakers of any indigenous language in the

United States.? Arizona’s law will not only have practical

implications in the dealings of native peoples with the

State, but sends a symbolic message undermining their

efforts to preserve their languages and cultures.

From an early emphasis on indigenous languages,

American linguistics has expanded its horizons by

describing hundreds of other languages around the

world, including sign languages of the deaf. These

1 Linguists who assisted with the preparation of, or

commented on, this brief include Emmon Bach, Geoffrey

Nunberg, Janine Scancarelli, and Elizabeth Traugott.

2 See generally Bureau of the Census, Dep’t of Commerce,

1990 Census of Population: Characteristics of American Indians

by Tribe and Language, section 2 of 2 (1990). The census reports

that Arizona has 76,954 speakers of Navajo. Id. at 862.

2

descriptive studies have further advanced our knowledge

of phonetics and phonology, syntax and semantics. Per-

haps more relevant to the case at bar, linguists and other

language experts have learned a great deal regarding

how children learn language, and how adults learn sec-

ond languages. In addition, linguists have studied the

many ways in which languages interact with each other,

including the dynamics of bilingual and multilingual

societies, the relationship of dialects to standard lan-

guage, and the choices that speakers make regarding

which dialect or language to speak in which situation.

Perhaps most directly on point, linguists have studied

how languages interact in the many speech communities

within the United States.

Amicus National Council for Languages and Interna-

tional Studies (“NCLIS”) is an umbrella organization con-

sisting of many professional societies involved in the

teaching of language.* Members of the NCLIS have

3 Members include Advocates for Language Learning,

American Assembly of Collegiate Schools of Business,

American Association of Teachers of French, American

Association of Teachers of German, American Association of

Teachers of Slavic and East European Languages, American

Association of Teachers of Spanish and Portuguese, American

Council of Teachers of Russian, American Council on the

Teaching of Foreign Languages, The American Forum for Global

Education, Association of Teachers of Japanese, California

Foreign Language Teachers Association, Center for Applied

Linguistics, Center for Intensive Language and Culture, Central

States Conference on the Teaching of Foreign Languages,

Chinese Language Teachers Association; Colorado Congress of

Foreign Language Teachers, Connecticut Council of Language

Teachers, Florida Foreign Language Association, Foreign

Language Association of Georgia, Foreign Language

Association of Missouri, Foreign Language Association of

3

substantial knowledge about, and experience with, sec-

ond language acquisition. Its members are particularly

concerned by the symbolic implications of this case.

Americans generally have a very poor record in learning

other languages, despite the obvious advantages of doing

so in an increasingly global economy. Unfortunately,

“English-only” laws dampen enthusiasm for learning

North Carolina, Foreign Language Association of Virginia,

Georgetown University Roundtable on Languages and

Linguistics, Greater Washington Association of Foreign

Language Teachers, Indiana Foreign Language Teachers

Association, Illinois Council on the Teaching of Foreign

Languages, International Association of Learning Laboratories,

Kansas Foreign Language Association, Linguistic Society of

America, Massachusetts Foreign Language Association,

Michigan Foreign Language Association, Minnesota Council on

the Teaching of Foreign Languages, Modern Language

Association-Association of Departments of Foreign Languages,

Modern Language Journal-National Federation of Modern

Language, Teachers Associations, National Association for

Bilingual Education, National Association of District

Supervisors of Foreign Languages, National Association of Self-

Instructional Language Programs, National Committee for

Latif’ and Greek, National Council of State Supervisors of

Foreign Languages, National Network for Early Language

Learning, New York State Association of Foreign Language

Teachers, Northeast Conference on the Teaching of Foreign

Languages, Northern New England State Foreign Language

Associations, Ohio Foreign Language Association, Pacific

Northwest Council for Languages, Pennsylvania State Modern

Language Association, Satellite Education Resources

Consortium, South Atlantic Modern Language Association,

Southern Conference on Language Teaching, Southwest

Conference on Language Teaching, Teachers of English to

Speakers of Other Languages, Tennessee Foreign Language

Consortium, Texas Foreign Language Association, Washington

Association for Language Teaching, and Wisconsin Association

of Foreign Language Teachers.

4

other languages. Even worse, they may encourage Ameri-

cans who already speak other languages to become

monolingual speakers of English, thus depriving Ameri-

can businesses and organizations of a valuable linguistic

resource.

In this brief, amici will apply their expertise to the

question of whether Arizona’s strict official English law

is consistent with the United States Constitution. Speci-

fically, the brief will focus on the justifications that have

been given for the law.

Letters of consent to the filing of this brief, received

from all parties, have been filed with the Clerk of this

Court.

SUMMARY OF ARGUMENT

Article 28 of the Arizona Constitution lacks any rea-

sonable justification. It cannot be rationalized on the

ground that it promotes democracy or national unity.

Rather than enhancing citizen participation in govern-

ment, Article 28 reduces opportunities for Arizonans to

interact with the State. Furthermore, limiting access to

government violates American ideals of linguistic tolera-

tion, which can be traced to the founding of this nation,

and which have never endangered national unity. Exam-

ples of social conflict that are popularly ascribed to lin-

guistic differences, such as those in Canada, Belgium, or

Sri Lanka, in fact demonstrate that it is not the presence

of diverse languages within a nation, but rather the

repression of one language by speakers of another that

engenders hostility and possible disunity.

Moreover, Article 28 will not further the State’s

asserted interest in promoting a common language. Immi-

grants are learning English in much the same way and at

5

the same rate as they did in the past. What determines

how quickly immigrants learn English is the age at which

they arrive in this country, the length of time that they

have been here, the quality of the State’s educational

system, and other factors over which Article 28 exerts no

control.

Additionally, Article 28 will not protect public confi-

dence or prevent disillusionment. Of course, there is a

somewhat larger number of speakers of languages other

than English in the United States than in preceding

decades. Yet recent immigrants are learning English as

quickly as their predecessors. Any remaining public con-

cerns are in reality directed at the volume of recent immi-

gration, a matter of exclusively Federal concern, or are

simply xenophobic. Finally, the purported justification

that Article 28 will promote efficiency is - as the State

concedes - simply wrong.

None of the posited justifications for Article 28 can

outweigh the substantial burdens that it places on Arizo-

nans who seek to petition or interact with the State but

speak little or no English. In fact, depriving non-English-

speaking Arizonans of the opportunity to interact directly

with government employees, as Article 28 does, is not

rationally related to any of its purported goals.

ARGUMENT

Despite appearances, this case is not about whether a

state can make English its official language. Rather, the

issue is whether a state can legitimately prohibit state

actors from using any other language while performing

their duties. Ariz. Const. art. XXVIII (“Article 28”). Such a

prohibition is especially problematic when it restrains

bilingual state actors — such as Ms. Yniguez — who are

6

willing and able to speak another language, and who can

therefore communicate more efficiently and more clearly °

with certain state residents in that manner. People who

travel to other countries are often enormously frustrated

by not being able to speak the language. For state

employees like Yniguez, it is even more frustrating when

they are fully capable of speaking the language of some-

one who seeks assistance, and could provide the needed

assistance much more efficiently in another language, but

are forbidden to do so.

Not only does the prohibition muzzle state officials,

but it imposes substantial burdens on residents who do

not speak English, or who do not speak it very well.

While the number of non-English-speaking Americans is

relatively small, the prohibition at issue absolutely bars

them from engaging in direct communications with the

State.

As this Court so aptly observed in Meyer v. Nebraska:

“[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.” 262 U.S. 390, 401 (1923).

Article 28 of the Arizona Constitution favors those “born

with English on the tongue,” while imposing substantial

burdens on those who have not yet mastered the lan-

guage. Several justifications have been offered for impos-

ing such burdens. None can withstand analysis.

7

I. ARTICLE 28 WILL NOT PROMOTE DEMOCRACY

OR ENCOURAGE UNITY AND POLITICAL STA-

BILITY

The most commonly cited justification for laws like

Article 28 is that they will promote democracy and pro-

tect it from the dangers of linguistic and cultural separa-

tism. Brief for Petitioners at 36-38. In actuality, Article 28

will reduce participation in the democratic process. Fur-

thermore, arguments that Article 28 will foster unity and

stability rest on misconceptions regarding the linguistic

situation in other countries, and lack of knowledge about

our own nation’s rich multilingual tradition. While the

State has a vital interest in promoting unity and democ-

racy, Article 28 will do nothing to further those goals.

A. Democracy Is Advanced by the Broadest Possi-

ble Participation in Governmental Affairs; Arti-

cle 28 Reduces Such Participation by Citizens

Who Speak Little or No English

A democratic state derives its legitimacy from the

consent and participation of its citizens. In President

Lincoln’s famous words, democracy is government “of

the people, by the people, for the people.Ӣ It is axiomatic

that unjustified limitations on citizen participation are

fundamentally antidemocratic. On the other hand, a state

can promote democracy by encouraging as many of its

citizens as possible to vote, discuss issues of public

importance, and otherwise become involved in the affairs

4 Abraham Lincoln, Address Delivered at the Dedication of the

Cemetery at Gettysburg (Nov. 19, 1863), in 7 The Collected Works of

Abraham Lincoln 22, 23 (Roy P. Basler ed., 1953).

8

of government. “[T]o facilitate and enlarge public discus-

sion and participation in the electoral process [are] goals

vital to a self-governing people.” Buckley v. Valeo, 424 U.S.

1, 92-3 (1976).

Far from promoting democratic values, as its

defenders maintain, the purpose and effect of Article 28 is

to reduce citizen participation in government. Article 28

expressly provides that English is “the language of the

ballot, the public schools and all government functions

and actions.” Art. 28 § (1)(2). It extends its scope not only

to the legislative, executive, and judicial functions of the

State, but also to “all political subdivisions, departments,

agencies, organizations, and instrumentalities of this

State, including local governments and municipalities.”

Id. § 1(3)(a)(ii). It encompasses not only statutes and

ordinances, but also “programs and policies.” Id.

§ 1(3)(a)(iii). And should any doubt as to its scope

remain, it expressly applies to “all government officials

and employees during the performance of government

business.” Id. § 1(3)(a)(iv).

Consequently, the mayor and city officials of a small

rural town in Arizona where some residents still speak

Spanish or Navajo or Apache are prohibited from dis-

cussing matters of public concern in any language but

English. Unless there is a supervening federal mandate,

state or local officials may not provide voters with elec-

tion materials in other languages. Apparently, state legis-

lators may not even address constituents in their own

language, unless that language happens to be English.

Furthermore, Article 28 prohibits Arizona officials from

communicating with the deaf by means of American Sign

9

Language (which is not a variety of English®), unless

required by Federal law.

There is absolutely no question that Article 28 will

not increase participation in the democratic process. By

limiting communication between the government and its

citizens, Article 28 can only serve to reduce participation

in voting and other forms of self-governance.

B. Linguistic Regulation Is Alien to American

Democratic Values

The argument that Article 28 will enhance democratic

values flies in the face of long-established American dem-

ocratic ideals that government should not dictate what is

orthodox in matters linguistic. It has always been deemed

important for residents of this country to be able to speak

English, as this Court recognized in Meyer v. Nebraska, 262

U.S. 390, 401 (1923). Yet as the Court further observed,

this goal “cannot be coerced by methods which conflict

with the Constitution.” Id.

At the time of the Revolutionary War, there was a

great deal of linguistic diversity in the United States.

Large numbers of Germans lived in Pennsylvania, Mary-

land, Virginia and New York, as well as Dutch in New

York and Delaware.® In the midwestern territories east of

the Mississippi, most European inhabitants were French.”

5 See generally Ursula Bellugi & Edward Klima, The Signs of

Language (1979).

® Nancy Faires Conklin & Margaret A. Lourie, A Host of

Tongues: Language Communities in the United States 5 (1983);

Heinz Kloss, The American Bilingual Tradition 11-12 (1977).

? Kloss, supra, at 164.

10

There was also, of course, a wide variety of American

Indian languages.*

If the use of languages other than English were a

threat to democracy, it would have been even more so

when our nation was founded. At that time, there was no

public school system to ensure that all children are able

to speak English. The mobility of the population was

limited, leading to large enclaves of speakers of non-

English languages. The mainly agricultural economy

would have enabled many people to work in isolated

environments where English was seldom heard. And

mass media, such as radio and television, were yet to be

invented. Under these conditions, linguistic communities

could and did maintain their native languages to a far

greater extent than is possible today.

Yet none of the original thirteen states found it neces-

sary to declare English its official language. Remarkably,

this was true even in Pennsylvania, despite Benjamin

Franklin’s famous fears that Germans were not assimilat-

ing linguistically: “Few of their children in the Country

learn English; they import many books from Germany;

and of the six printing houses in the Province, two are

entirely German.”? Franklin suggested that the Germans

in Pennsylvania “will soon so out number us, that

... we... will not... be able to preserve our language,

and even our Government will become precarious.”?° In a

8 See generally 10 Current Trends in Linguistics (Thomas A.

Sebeok ed., 1973).

* Letter from Benjamin Franklin to Peter Collinson (May 9,

1753) in 4 The Papers of Benjamin Franklin 477, 484 (Leonard W.

Labaree & Whitfield J. Bell eds., 1961).

10 id. at 485.

11

few years, Franklin mused, it might become necessary to

use interpreters in the state Assembly, “to tell one half of

our Legislators what the other half say.”'! Pennsylvania

later enacted measures that would have horrified today’s

proponents of English-only laws. In the late eighteenth

and early nineteenth century, the state published statutes

and other official documents in German.!? Pennsylvania,

along with some other states, even allowed the establish-

ment of German-language public schools during this

period.’

As in the individual states, the founders of our nation

felt no need to make English the official language of the

Federal government. History has proved them correct.

For example, although there were approximately 9 mil-

lion German speakers on American soil in 1910, the Ger-

man language in America is now virtually extinct.

Notwithstanding the myth that German almost became

the official language of the United States,'5 neither Ger-

man nor any other language has ever threatened the

position of English.

" Id. at 484.

12 Heinz Kloss, The American Bilingual Tradition 143-44

(1977).

13 Id. at 149-150. Similarly, during the nineteenth century,

Ohio allowed the establishment of German-language public

schools. Id. at 158.

4 Heinz Kloss, German-American Language Maintenance

Efforts, in Language Loyalty in the United States. The Maintenance

and Perpetuation of Non-English Mother Tongues by American

Ethnic and Religious Groups 206, 248-9 (Joshua A. Fishman et al.

eds., 1966).

15 See Shirley Brice Heath, English in Our Language Heritage,

in Language in the USA 6, 9 (Charles A. Ferguson & Shirley Brice

Heath eds., 1981) (discussing the “Muhlenberg legend”).

12

Not only did the founders find it unnecessary to

declare English the official language of their fledgling

nation, but - as in the individual states - they were

willing to use languages other than English for official

purposes. For example, the Continental Congress had

many of its proclamations translated and printed in Ger-

man. It also authorized a German translation of the Arti-

cles of Confederation. '®

Most of our nation’s founders apparently believed

that any regulation of language - whether English or

another language - was antithetical to American demo-

cratic ideals. This is confirmed by the proposal of John

Adams to establish the “American Academy for refining,

improving, and ascertaining the English Language.”’! His

efforts came to naught.'* And when Noah Webster

approached Chief Justice John Marshall for a Supreme

Court endorsement of his dictionary, Justice Marshall

refused, remarking that in America it was individuals

rather than public bodies that dictate language use.'’

In stark contrast to the French, who allow a national

academy to banish foreign words from their language,

© Heinz Kloss, The American Bilingual Tradition 26-7 (1977);

Juan F. Perea, Demography and Distrust: An Essay on American

Languages, Cultural Pluralism, and Official English, 77 Minn. L.

Rev. 269, 284-7 (1992).

'7 Letter from John Adams to Samuel Huntington (Sept. 5,

1780), in 7 The Works of John Adams 249, 250 (Charles Francis

Adams ed., 1852).

8 See Shirley Brice Heath, A National Language Academy?:

Debate in the New Nation, 189 Linguistics 9 (1977); Juan F. Perea,

Demography and Distrust: An Essay on American Languages,

Cultural Pluralism, and Official English, 77 Minn. L. Rev. 269,

295-303 (1992).

'% Heath, supra, at 33.

13

Americans traditionally resist government dictates

regarding language. No governmental agencies specify

how we ought to spell words, for instance, even though

English orthography is renowned for its inconsistencies.

Thus, when President Theodore Roosevelt tried to have

the Government Printing Office promote the simplified

spelling of words like tho, thru, and thoro, he was rebuffed

by Congress and subsequently limited his innovations to

White House communications.”°

Of course, as the facts of Meyer v. Nebraska illustrate,

the American ideals of linguistic freedom have sometimes

given way during times of great stress, just as other

democratic freedoms sometimes do. There was a great

deal of linguistic restrictionism during the anti-German

hysteria surrounding World War I.?' The same has been

true at times of relatively high levels of immigration by

non-English speakers, as during the last decade or two.

Despite such lapses, however, regulation of language has

always been inconsistent with our democratic ideals.

C. International Experience Shows That Repres-

sive Language Policies Stir Resentment Instead

of Promoting Unity

Advocates of “English-only” laws often raise the

specter of Quebec, Belgium or Sri Lanka as illustrative of

the dangers that lurk in a multilingual country. One

might add the Basque struggle for autonomy in Spain,

20 Dennis E. Baron, Grammar and Good Taste: Reforming the

American Language 95 (1982). ‘

21 On the historical background of Meyer v. Nebraska, see

William G. Ross, Forging New Freedoms: Nativism, Education, and

the Constitution, 1917-1927 (1994).

14

and the ethnic strife now besetting the former Soviet

republics, as well as the former Yugoslavia.?? The

assumption is that multilingual countries are inherently

unstable or divided. Thus, a posited justification for Arti-

cle 28 is that it will enhance unity by promoting a mono-

lingual state.

In actuality, a common language is no guarantor of

unity. Some of the bloodiest conflicts in history have

taken place between groups that had no serious linguistic

differences. Both the American Revolution and the Civil

War pitched English speakers against other speakers of

English. Nazi soldiers needed no interpreters to send

German Jews to their deaths in the Holocaust. The recent

genocide in the former Yugoslavia has occurred between

groups — Serbs, Croats and Bosnian Muslims - who all

speak a common language: Serbo-Croat.% And the

slaughter of tens of thousands of people in Rwanda took

place between two tribes - Hutus and Tutsis — speaking

one language: Kinyarwanda. On a continent where many

nations have dozens of languages, Rwanda is one of the

few that is almost entirely monolingual.**

22 See, e.g., Gutierrez v. Municipal Court, 861 F.2d 1187,

1192-93 (9th Cir. 1988) (Kozinski, J., dissenting), vacated as moot,

490 U.S. 1016 (1989) (discussing the “confrontation” between

Anglophones and Francophones in Canada, as well as “the

long-standing division between the French-speaking Walloons

and the Flemish-speaking population of Belgium and .. . [t]he

separatist movements by the Corsicans of France, the Basques of

Spain, the Tamils of Sri Lanka, the Kurds of Turkey and Iraq,

and the Sikhs of India”).

23 C. Hawkesworth, Serbo-Croat, in 7 Encyclopedia of

Language and Linguistics 3857 (R.E. Asher ed., 1994).

24 Ayo Bamgbose, Language and the Nation: The Language

Question in Sub-Saharan Africa 16-17 (1991). Based on his study

15

Even if one accepts the premise that monolingualism

promotes unity, artificially creating linguistic homoge-

neity by discouraging or even banning use of other lan-

guages often results instead in resistance and physical

conflict.25 Linguistic repression tends to ferment national-

ism rather than appease it.

The Russian Empire attempted to use the Russian

language to unify the diverse peoples within its territory

as part of the policy: “One emperor, one religion, one

language.” Although the Bolsheviks had a more pro-

gressive language policy when they first established their

regime, they soon also began to promote the Russian

language among the many linguistic minorities in the

Soviet Union, with the ultimate aim of making Russian

the language of a new Soviet nationality.2” As current

events have amply demonstrated, those coercive policies

created at best a forced sense of unity. That compelled

unity has disintegrated as republics such as the Ukraine,

of African languages, Bamgbose notes that “[t]he association of

multilingualism with divisiveness is unjustified, since language

is only a convenient scapegoat on which the real causes of

divisiveness are usually hung.” Id. at 7.

25 See Dennis Baron, The English-Only Question: An Official

Language for Americans? 180 (1990) (“Generally speaking,

linguistic friction and violence occur around the globe not

where language rights are protected, but where they have been

suppressed.”).

26 Uriel Weinreich, The Russification of Soviet Minority

Languages, 2 Probs. of Communism, no. 2, at 46 (1953).

27 See Abdurakhman Avtorkhanov, The Communist Party

Apparatus 318-22 (1966); Michael Bruchis, The USSR: Language

and Realities 189-90 (1988); R.E. Weiner, 70 Languages Equal and

Free?, 6 Ariz. J. Int’l & Comp. L. 73 (1989).

16

Georgia and Lithuania left the union, and smaller nation-

alities such as the Chechens chafe at the Russian bit.

The situation in Canada can also be understood only

against the background of history. Although both French

and English have official status in Canada, the French

language, and by extension its speakers, was long consid-

ered inferior to English. A royal commission reported in

the 1960s that Francophones were below the Canadian

average in socioeconomic terms.?8 Furthermore, the fed-

eral capital, federal administration, and armed services

functioned almost entirely in English.2? The commission

concluded that French Canadians had achieved second-

class status throughout Canada, even in Quebec.%°

As several observers have noted, the true problem in

Quebec is not official bilingualism, but the sense of legal

and economic inferiority felt by Quebeckers.*! Or as

another commentator has remarked: “Separatist tenden-

cies grow in Quebec in direct proportion to the percep-

tion that French-speaking Quebeckers are getting a raw

deal from Anglophone Ottawa.”32 Only in the last few

28 3 Royal Commission on Bilingualism and Biculturalism.

Report. 61 (1969).

29 1 id. at 117-20 (1967); 3 id. at 294 (1969).

%© 3 id. at 61. See also Milton J. Esman, The Politics of Official

Bilingualism in Canada, in Language Policy and National Unity 45,

46 (William R. Beer & James E. Jacob eds., 1985).

*! Hugo Baetens Beardsmore & Roland Willemyns,

Comment, 60 Int'l J. Soc. Language 117, 121 (1986); Pierre van

den Berghe, The Ethnic Phenomenon 211 (1981).

%2 Joseph E. Magnet, Canadian Perspectives on Official

English, in Perspectives on Official English: The Campaign for

English as the Official Language of the USA 53, 55 (Karen L. Adams

& Daniel T. Brink eds., 1990).

17

decades have efforts been made to equalize the situa-

tion, but by now it may be too late to heal the rift.

The situation is similar in Belgium, where a minority

of the population natively speaks French (the Walloons)

and the majority speaks Dutch (the Flemings). Histori-

cally, linguistic discord in Belgium arose from efforts by

French speakers to dominate their Flemish countrymen.*4

Baetens Beardsmore and Willemyns observe:

In spite of the constitutional equality of French

and Dutch since the founding of the Belgian

state in 1830, the de facto supremacy of French

for over a century led to the statistical majority

of Dutch-speakers in the country being down-

graded to second-rate status within th~ national

entity. The tensions engendered by this anoma-

lous situation are revealed by the long and at

times violent struggle lasting almost 150 years,

of the Dutch-speaking part of the population to

achieve equal linguistic status with their French-

speaking compatriots, who were, moreover, the

statistical minority. In other words, it is not

bilingualism per se that has been at the origin of

such tensions, but lack of.equality for a statisti-

cal majority of the indigenous population.*5

3% See, e.g. Joseph Magnet, Language Rights: Canada’s New

Direction, 39 U. New Brunswick L. J. 1 (1990) (discussing Official

Languages Act of 1969).

%4 Matthias Hartig, The Language Situation and Language

Policy in Belgium, in Language Policy and National Unity 67, 70

(William R. Beer & James E. Jacob eds., 1985).

3% Hugo Baetens Beardsmore & Roland Willemyns,

Comment, 60 Int’l J. Soc. Language 117, 121 (1986) (citations

omitted).

18

In like fashion, the ethnic dispute in Sri Lanka is

attributable in large part to Tamil feelings that their eth-

nicity and language were discriminated against by the

majority Sinhalese. Ethnic relations on Sri Lanka wors-

ened substantially in 1956 when the island enacted a

“Sinhalese Only” law requiring all government officials

to be able to speak the Sinhalese language (without

requiring Sinhalese to learn the language of the Tamils).

Consequently, many Tamils lost their government jobs.*

Furthermore, like Article 28, the “Sinhalese only” law no

doubt made it much more difficult for Tamils to interact

with the Sinhalese-speaking government, something that

would increase rather than reduce tensions.

The Basque separatist movement began as a protest

against the repressive policies of Spanish dictator Fran-

cisco Franco, who attempted to banish the Basque and

Catalan languages in favor of Spanish. The Franco policy

has been characterized as “most drastic and oppressive

attempt at unity in Spain.”°”7 Now that Spain has become

a democracy in which Basques have substantial linguistic

freedom, Basque terrorism seems to ve become a thing

of the past.

To sum up, using the words of Herbert Kelman:

“language is a uniquely powerful instrument in unifying

a diverse population.”** Kelman warns, however, that

3%6 Thiru Kandiah, Comment, 60 Int'l J. Soc. Lang. 183 (1986);

John-Thor Dahlburg, Bitter Ethnic Struggle Sinks Roots Deeper in

Sri Lanka, L.A. Times, July 10, 1995 at A-1, A-6.

37 Juan Cobarrubias, The Protection of Linguistic Minorities in

the Autonomous Communities of Spain, in Langue et Droit

[Language and Law] 399, 409 (P. Pupier & J. Woehrling eds., 1989).

38 Herbert C. Kelman, Language as an Aid and Barrier to

Involvement in the National System, in Can Language Be Planned?

19

when linguistic unity does not occur naturally, attempts

to compel unity by promoting the language of a dominant

group may unintentionally foster divisiveness. He cau-

tions that “the deliberate use of language for purposes of

national unity may — at least in a multiethnic state —- have

more disruptive than unifying consequences.” Forcing a

common language on an unwilling population may come

at great cost: “the probable loss in the regime’s perceived

legitimacy and the probable increase in social unrest.”

The consequences of discouraging or suppressing the

use of a particular language are little different from the

consequences of suppressing the content of speech. As

stated by Thomas Emerson, “[s]uppression not only is

ineffective in promoting general agreement or stability,

but hinders the process by engendering hostility, resent-

ment, fear, and other divisive forces.”*! See also West

Virginia State Board of Education v. Barnette, 319 U.S. 624,

641 (1943).

In contrast to these repressive regimes, our country’s

relatively tolerant policy towards those who speak lan-

guages other than English has resulted in a type of lin-

guistic unity that the tsars and Soviet leaders could only

dream of. The 1990 census revealed that among the popu-

lation of the United States above the age of five, only

about three percent do not speak English well or very

Sociolinguistic Theory and Practice for Developing Nations 21, 21

(Joan Rubin & Bjérn H. Jernudd eds., 1971).

39 Id.

#0 Id. at 37.

*! Thomas I. Emerson, The System of Freedom of Expression 44

(1970).

20

well.42 The carrot is obviously working much better than

the stick.

Article 28 will not promote democracy, nor will it

unify the people of Arizona. At best, it might encourage

immigrants to Arizona to learn English somewhat more

quickly. Yet, as we shall see below, it will not significantly

advance even this more modest goal.

Il. ARTICLE 28 WILL NOT FOSTER A COMMON

LANGUAGE

A more sophisticated justification for Article 28 is

that it will promote the adoption in Arizona of a common

language, which just happens to be English. This argu-

ment avoids the pitfalls encountered above: the false

notion that limiting the ability of residents to communi-

cate with the government or to vote will promote democ-

racy. Rather, it rests on the premise that the State has an

interest in promoting a common language through which

it can interact with ‘ts citizens, and that Article 28 will

advance that interest. See Brief Amicus Curiae of U.S.,

Inc., in Support of Petition for Writ of Certiorari at 3.

Even if one assumes that the State has a legitimate inter-

est in fostering a common language, however, Article 28

does not rationally further that goal.

“2 Bureau of the Census, Dep’t of Commerce, 1990 Census

of Population: Social and Economic Characteristics, United

States, table 13, at 13.

21

A. Immigrants Are Already Learning English Rap-

idly; the Rate of Acquisition of English Will Be

Determined by Social and Economic Factors,

Not by Article 28

To justify Article 28 as promoting a common lan-

guage, its proponents would have to demonstrate that it

will increase the rate at which English is acquired by

immigrants living in Arizona. In reality, immigrants are

learning English at a rapid pace. Article 28 wiil not accel-

erate the process of English acquisition, which is gov-

erned by factors unrelated to the State’s official language.

Research on language shift debunks the oft-repeated

fear of the English-only movement: that immigrants (pri-

marily Spanish speakers) are not adopting English

quickly enough and that, like the Francophones of

Quebec, they will soon be clamoring for a separate, or at

least a bilingual, state. In reality, a recent Rand Corpora-

tion study has shown that Latinos follow the classic

multi-generational shift to English. About half of immi-

grants born in Mexico who are permanent residents of the

United States speak good English, and less than a quarter

speak only Spanish. In the first generation of Mexican-

Americans born in the United States, over 90% are profi-

cient in English. By the second native generation, over

half speak only English.

A similar study by Calvin Veltman confirms that

there is “very rapid movement to English on the part of

Spanish language immigrants.”** He also found that

* Kevin F. McCarthy & R. Burciaga Valdez, Current and

Future Effects of Mexican Immigration in California: Executive

Summary 27-28 (1985).

“ Calvin Veltman, The Future of the Spanish Language in the

United States 44 (1988).

22

Hispanic immigrants shift from Spanish to English in two

or three generations.* In fact, Veltman concludes, there is

a substantial Spanish-speaking community in the United

States only because of continued immigration from Span-

ish-speaking countries, not because Latinos refuse to

learn English. A 1995 study at the University of South-

ern California, based on the 1990 census, confirms the

conclusions of the Rand and Veltman research.47

Perhaps the most important and obvious factor corre-

lated to ability of immigrants to speak English is, there-

fore, how long they have lived in the United States.*

Traditionally, the first generation maintains the mother

tongue and learns English to a limited extent; the second

generation is bilingual (generally with English domi-

nance), and the third is typically monolingual in

English.49 While individuals and ethnic groups differ

somewhat, recent immigrants to the United States,

including Spanish speakers, are adhering to this classic

model by switching to English in two or three genera-

tions.

Another important factor is the age of exposure to

English. Very young children are heavily influenced by

45 See id. at 3.

46 See id. at 109.

47 Dowell Myers, The Changing Immigrants of Southern

California 17-20 (Research Report No. LCRI- Lusk Center

Research Institute, S~'.ool of Urban ard Regional Planning,

University of Southern California, 1995).

48 See Calvin Veltman, The Futsre of the Spanish Language in

the United States 40 (1988).

49 Fernando Pefialosa. /mtroduction to the Sociology of

Language 175-6 (1981).

23

the linguistic situation in the home, where immigrant

parents typically speak their native languages. But once

children attend school, they begin to learn English. Expo-

sure to English increases as they move up the educational

ladder and enter the workforce. Conversely, shift from

one language to another is less likely after people reach

their thirties and forties.

The tendency for younger immigrants or children of

immigrants to acquire English more quickly than their

elders is related to findings by linguists that people gen-

erally learn a second language more readily when they

are young. One study, for example, found that those who

immigrate to the United States between the ages of three

and seven acquire English language skills equivalent to

native born children. Those who arrive between the ages

of eight and fifteen have greater difficulties, while those

arriving between the ages of seventeen and thirty-nine

have the greatest difficulties of all.™

Socio-economic factors are also important determi-

nants for the rate of English acquisition. There is a direct

correlation between ability to speak English and higher

% Calvin Veltman, Language Shift in the United States 20

(1983).

5 The research is summarized in Steven Pinker, The

Language Instinct: How the Mind Creates Language 290-91 (1994).

24

income levels.5? As shown in greater detail below, immi-

grants are well aware of the economic and other benefits

of learning English.

In light of these and other social and economic forces,

Arizona’s prohibition against official use of other lan-

guages will have virtually no effect. Scholars generally

agree that laws favoring English do not cause immigrants

in the United States to became Anglicized. As Heinz

Kloss phrased it, the nationalities were assimilated not by

governmental coercion, but rather “by the absorbing

power of the highly developed American society.”™

B. Immigrants Are Well Aware of the Advantages

of Acquiring English, Regardless of Arizona’s

Strict English-Only Law

Article 28 is not necessary to encourage immigrants

to adopt our common language; speakers of other lan-

guages in Arizona and elsewhere are already quite cogni-

zant of the need to learn English. For example, the

Phoenix Union High School District has classes devoted

to teaching English for Speakers of Other Languages.

Students must often fight for limited space, and some

class locations have a six-month waiting list.>* But they

52 Kenji Hakuta, Mirror of Language: The Debate on

Bilingualism 167 (1986). See also Jon Amastae, Official English and

the Learning of English, in Perspectives on Official English: The

Campaign for English as the Official Language of the USA 199, 203

(Karen L. Adams & Daniel T. Brink eds., 1990) (observing that

among Spanish speakers, English dominance tends to rise with

socio-economic status).

53 Heinz Kloss, The American Bilingual Tradition 283 (1977).

54 Barbara Yost, Immigrants on Waiting List for English

Classes; U.S. Newcomers on Track to Crack Language Barrier, The

Arizona Republic, Oct. 29, 1995, at G9.

ee I

25

are eager to learn English. Mikhail Urikh, originally from

the Ukraine, remarks: “I need (to) learn English because |

can’t read newspaper.”55 Anna Miksa, from Serbia, wants

to speak English better so that she can talk to Americans

and “know what's going on in the United States.” Simi-

lar thoughts were expressed by Van Lam, recently from

Vietnam: “I very want to learn English because it’s impor-

tant to me. I can speak to everybody. I can get a better

job.” A teacher summed up the attitudes of her stu-

dents: immigrants do not need to be forced to learn

English; they want to communicate. In fact, immigrants

are so eager to learn English that the demand for classes

often outstrips the supply.

The punitive approach of Article 28 is not necessary

to convince immigrants of the advantage of knowing

English. Children with limited English proficiency will

learn to speak it in school. Their parents will probably

acquire it somewhat more slowly and less fluently. And

their grandparents, if they entered this country at a late

35 Id.

56 Id.

7 Id.

58 Id.

° See, e.g., Jon Amastae, Official English and the Learning of

English, in Perspectives on Official English 199, 201 (Karen L.

Adams & Daniel T. Brink eds., 1990) (commenting on the large

numbers of Spanish speakers who register for adult education

programs teaching English as a Second Language); Laura

Randall, America’s Ethnic Diversity Spawns Language Conflicts,

L.A. Times, Sept. 5, 1993, at A-4, A-5 that there are large

numbers of Latinos and other minorities who are clamoring to

learn English, but that waiting lists and teacher

plague English-language centers across the country).

26

age, may not learn much at all. That is simply the immi-

grant experience, related to differences in people's ability

and opportunity to acquire new languages. Article 28 will

do nothing to change it.

C. Arizona Has a Far More Effective and Less

Intrusive Means of Reaching Its Stated Goal:

Teaching English to Its Residents

The justifications for Article 28 fade even more in

light of the fact that Arizona already has a fully constitu-

tional, easily implemented, and currently funded means

of advancing widespread knowledge of a common lan-

guage: education. While other factors that encourage

English acquisition are virtually impossible for the State

to control, Arizona is well within its authority in requir-

ing that children attend school. Wisconsin v. Yoder, 406

U.S. 205, 213 (1972). Furthermore, Arizona can and does

require that children learn English while there. Ariz. Rev.

Stat. Ann. § 15-752 (1991).

As long as the public educational system teaches

English to all the State’s children, the State’s goal of

fostering a common language will in- ariably be met.© In

fact, this Court has held that public school systems must

effectively teach children to speak English, noting that

“[bJasic English skills are at the very core of what these

public schools teach.” Lau v. Nichols, 414 U.S. 563, 566

(1974). Studies have shown that immigrant children can

© Unfortunately, some of the same xenophobic forces that

have sponsored measures such as Article 28 have recently

advocated excluding immigrant children who are illegally in

this country from attending public schools. Such a policy would

create the very real possibility of a foreign enclave in the United

States where few people speak English.

27

quickly acquire English in school.*! Arizona thus has at

its ready disposal a means of reaching its stated goal that

is both far more effective than Article 28, and does not

require trampling on anyone's constitutional rights.

II. ARTICLE 28 WILL NOT PROTECT PUBLIC CON-

FIDENCE OR PREVENT DISILLUSIONMENT

AND CONCERN

Proponents of Article 28 argued before the Ninth

Circuit that the measure is necessary to protect public

confidence in the government and prevent “disillusion-

ment and concern.” The public’s lack of confidence and

concern would apparently arise because recent immi-

grants are not acquiring English quickly enough, or wish

to establish non-English-speaking enclaves within Ari-

zona, or to make Arizona an officially multilingual state.

These fears, as has been shown above, are simply not

supported by the evidence.

In actuality, much to the dismay of many linguists,

the assimilating power of the American educational sys-

tem, mass media, and economy, to mention just some

factors, is so strong that most immigrants, as well as

many American Indians, are not only acquiring English,

but are abandoning their native languages in the bargain.

This phenomenon is now so well documented that it has

been given a name: subtractive bilingualism, in which

acquisition of a second language replaces the first, rather

(1983). “eltmnan Language Shift in the United States 62-67

28

than adding a language to the speaker’s linguistic reper-

toire.®? Linguist Joshua Fishman, one of the world’s lead-

ing experts on bilingualism and language policy,

expressed it thus:

Without either constitutional or subsequent

legal declaration or requirement that English is

the official (let alone national) language, a com-

plex web of customs, institutions, and programs

has long fostered well-nigh exclusive reliance

upon English in public life. The result of two

centuries of the foregoing is that literally hun-

dreds of millions of Americans have been led,

cajoled, persuaded, embarrassed into, and

forced to forget, forego, and even deny . . . their

mother tongues.”°

If Arizona citizens have cause to be dismayed and

concerned, it should not be because a few older immi-

grants, or Havasupai who have spent their lives in their

homeland in the Grand Canyon, feel more comfortable

dealing with a sympathetic government official in a lan-

guage other than English. Rather, they should be con-

cerned that virtually all descendants of immigrants

eventually lose the ability to speak thei: ancestral lan-

guages, depriving America of a tremendous opportunity

to be more competitive internationally. And they should

+e dismayed that America’s indigenous languages are

disappearing at a rapid rate, cutting off an important link

to the original cultures of this continent. There is simply

no reasonable basis for fears or concerns that immigrants

62 See, e.g., Suzanne Romaine, Bilingualism 107-8 (1989).

6 Joshua Fishman, Language Policy: Past, Present, and

Future, in Language in the USA 516, 517 (Charles A. Ferguson &

Shirley Brice Heath eds., 1981).

29

are not learning English. To the contrary, linguistic assim-

ilation in the United States is working only too well.

This is not to say that people are not often fearful of,

or concerned about, or simply annoyed by, the use of

foreign languages. The relatively large levels of immigra-

tion during the past decade or two, accompanied by a

high growth rate among recent arrivals, has led to a

comparatively large population of immigrants and their

children, and thus a substantial population of speakers of

other languages. If the disillusionment or concern of sup-

porters of Article 28 arises from the greater number of

immigrants in our country recently, an official English

law is obviously not a rational response. Immigration is a

Federal question, and those concerned by it are free to

seek changes in Federal immigration policy.

The only real “concerns” that Article 28 can address

are xenophobic fears or dislike of other languages and

their speakers. Such sentiments seem to have motivated

several cities in the Los Angeles area to restrict business

signs containing non-Roman scripts. See Asian American

Business Group v. City of Pomona, 716 F. Supp. 1328 (C.D.

Cal. 1989) (invalidating ordinance that required local

business signs using “foreign alphabetical characters” to

devote at least one-half of the sign to “advertising copy in

English alphabetical characters”). Clearly, however, fear

or dislike of foreign languages and orthographic systems,

or foreign customs, no matter how much “disillusion-

ment” they cause, does not justify their repression.

IV. ARTICLE 28 WILL NOT PROMOTE GOVERN-

MENTAL EFFICIENCY AND EFFECTIVENESS

There is no serious argument to be made that Article

28 promotes the efficiency of the State government. As

30 .b

long as there are residents of Arizona who do not speak

English very well and need to interact with the govern-

ment, their communications will invariably be more effi-

cient if the relevant state official speaks the language of

the affected residents. The defendants below conceded

this very obvious point. Plaintiff's and Defendants’ State-

ment of Stipulated Facts 15-17, attached to Brief in Oppo-

sition [to Petition for Writ of Certiorari] of Respondent

Yniguez.

CONCLUSION

The justifications offered in support of Article 28

disappear upon closer analysis. At the same time, its

burdens are substantial, because Article 28 will sever all

direct communications between state officials and resi-

dents who speak limited or no English. The judgment of

the Court of Appeals for the Ninth Circuit should there-

fore be affirmed.

Respectfully submitted,

Peter M. TiersMa

Loyola Law School

919 S. Albany Street

Los Angeles, CA 90015

(213) 736-1162

July 23, 1996