Reply Brief — Alexander v. Sandoval

Supreme Court, U.S.

FILED

© AUG - 9 ano

i

In The : aes

Supreme Court of the United States

S

JAMES ALEXANDER, in his official capacity as the

Director of the Alabama Department of Public Safety,

and the ALABAMA DEPARTMENT OF PUBLIC SAFETY,

Petitioners,

MARTHA SANDOVAL, individually and on behalf

of all others similarly situated,

Respondent.

.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals =

For The Eleventh Circuit

S

REPLY BRIEF FOR PETITIONERS

¢

Brit Pryor

Attorney General of Alabama

JOHN J. Park, Jr.*

*Counsel of Record

Office of the Attorney General

- 11 South Union Street

Montgomery, AL 36130

(334) 242-7300

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF AUTHORITIES

Page

Cases

Alexander v. Choate, 469 U.S. 287 (1985)............. 4,5

Blessing v. Freestone, 520 U.S. 329 (1997)........... 9, 10

Bryant v. New Jersey Dept. of Transportation, 987

F. Supp. 343 (D.N.J. 1998), vacated in part, 998

Pe GOED evccweseckcccdecvcnensnes 9

Guardians Assn. v. Civil Service Comm'n. of New

Bey GED GE Te GRR ccc cccccccccccesccesccess 5

Lau v. Nichols, 414 U.S. 563 (1974) ................... 5

Middlesex County Sewerage Auth. v. National Sea

Clammers Assn., 453 U.S. 1 (1981)................ 6, 8

Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999) ......... 2

Personnel Administrator of Massachusetts v. Feeney,

ee Se I Cdk de skedenddesecuneseedsaunsede 8

Powell v. Ridge, 189 F.3d 387 (3d Cir.), cert. denied,

ee a Oe ED pak ccerbenesctcdvcdscenessses 6

Regents of University of California v. Bakke, 438 U.S.

AS nGhh 56s ksscendiNhek sen Gucenunesened es 6

Seif v. Chester Residents Concerned for Quality Liv-

ing, cert. granted, 524 U. S. 915 (1998), cert. dis-

missed as moot, 524 U.S. 974 (1998)............ 3, 4, 9

Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir. 1983),

SE, Gog Se Se Fe GD 6 ccs se cecicccesvcenes 2

Suter v. Artist M., 503 U.S. 347 (1992).............. 8, 9

Toure v. United States, 24 F.3d 444 (2d Cir. 1994)...... 2

United States v. Fordice, 505 U.S. 717 (1992)......... 5, 6

United States v. Heth, 7 U.S. (3 Cranch) 399 (1806) .... 10

TABLE OF AUTHORITIES —- Continued

Page

Vasquez v. McAllen Bag & Supply Co., 660 F.2d 686

(Sth Cle. 1961)... cccccnccsecscccccccsccssseseusuen 2

Washington v. Davis, 426 U.S. 229 (1976)........+-+++. 8

RULES AND REGULATIONS

Supreme Court Rule 10(c) .......--.6005 sees eee reese 4

28 C.F.R. § 42.405(d)(1) (1976). ......- 6 cece cece eens 10

34 C.F.R. § 100.3(b)(6)(i) (1991)........... Perret. 5 -

REPLY BRIEF FOR PETITIONERS

This case presents the question whether Congress

intended to create a private cause of action that would

allow private individuals to sue State agencies that

receive federal funds to enforce disparate impact regula-

tions promulgated by federal agencies pursuant to Sec-

tion 602 of the Civil Rights Act of 1964. As the question

states, those private lawsuits bypass the federal agency

review and enforcement procedures that Congress estab-

lished in the text of Section 602. See App. at 258a. In this

case, the Eleventh Circuit Court of Appeals held that

private individuals could sue the Alabama Department of

Public Safety and require it to modify its practice of

giving the written examinations for private driver's

licenses only in the English language so as to avoid

engaging in a practice alleged to have a disparate impact

based on national origin. As a result, the federal courts

have told the Department to make accommodations, even

though the grantor federal agencies never invoked the

- Statutorily-specified agency review and enforcement pro-

cedures.

The issues raised by the Petition are of fundamental

importance. Federal agencies make a multitude of grants

each year. An implied private right of action would

expose all of the grantees to lawsuits coming from a wide

range of directions. Contrary to Respondent's contention,

the number of Title VI disparate-impact lawsuits against

federal grantees is increasing. The federal agencies are

also becoming more active. Amici Washington Legal

Foundation and Allied Educational Foundation cite draft

guidance published by the Environmental Protection

Agency and the United States Department of Education

as well as a July 14, 1994 Memorandum from Attorney

General Janet Reno to all “heads of departments and

agencies that provide federal financial assistance”

instructing them to “ensure that the disparate impact

provisions in your regulations are fully utilized.” Brief of

Washington Legal Foundation and Allied Educational

Foundation as Amici Curiae in Support of Petitioners at

16-17, Alexander v. Sandoval (No. 99-1908).' The Eleventh

Circuit’s ruling opens the door to a flood of litigation.

The Eleventh Circuit's ruling not only allows private

litigants to sue federal grantees, it gives them a new basis

tor doing so. The Eleventh Circuit affirmed a District

Court ruling that linked language to national origin

through a disparate impact analysis. As a result, the

federal courts have prohibited the Alabama Department

of Public Safety from testing driver's license applicants

only in English and have required it to provide written

examinations in foreign languages. What else must fed-

eral grantees translate to avoid having a disparate impact

based on national origin, and into what languages?

Grantees faced with language claims will also be

treated differently in the Eleventh Circuit. The Second,

Fifth, and Seventh Circuits have declined to equate lan-

guage to national origin. See Toure v. United States, 24 F.3d

444, 446 (2d Cir. 1994); Soberal-Perez v. Heckler, 717 F.2d 36,

41 (2d Cir. 1983), cert. den., 466 U.S. 929 (1984); Vasquez v.

McAllen Bag & Supply Co., 660 F.2d 686, 687 (5th Cir.

1981); Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999). Each

' The United States intervened in the Eleventh Circuit in

support of Respondent.

of those courts has refused to make a public agency

translate forms into foreign languages. Grantees in the

Eleventh Circuit can now be required to do so.

Four amicus briefs urging this Court to grant cer-

tiorari — filed by English Language Advocates and

English First Foundation, by Pacific Legal Foundation

and the Center for Equal Opportunity, by Washington

Legal Foundation and Allied Educational Foundation,

and by U.S. English - attest to the importance of the

question presented.

In this Reply Brief, Petitioners respond to the sugges-

tions that the courts have answered the question pre-

sented and that this case is not ready for this Court's

review. First, put simply, this Court has not answered the -

question presented, and, two years ago, it granted cer-

tiorari in Seif v. Chester Residents Concerned for Quality

Living, cert. granted, 524 U.S. 915 (1998), cert. dismissed as

moot, 524 U.S. 974 (1998), for that reason. Second, Peti-

tioners filed their appeal after a trial on the merits and

appealed from an injunction that had both prohibitive

and directive elements. There are no procedural barriers

to review. Finally, the application of the disparate impact

regulations in this case is fairly embraced in the question

presented because it shows the consequences of bypass-

ing the remedial scheme that Congress enacted in Section

602.

1. Respondent's suggestion that this Court should

not revisit 25 years of precedent, Br. in Opp. 11-26, is

misleading because this Court has no such body of prece-

dent. This Court granted certiorari only two years ago in

Seif v. Chester Residents Concerned for Quality Living, No.

97-1620, in order to resolve the same question that this

case presents. If the existence of an implied private right

of action to enforce agency regulations had been clearly

established in 1998, there would have been no reason to

grant certiorari. Moreover, in Chester Residents, this Court

granted certiorari in the face of most of the same argu-

ments that Respondent now makes in this case. See Brief

in Opposition to Petition for Writ of Certiorari at 9-12,

14-15, Seif v. Chester Residents Concerned for Quality Living

(No. 97-1620).

Contrary to Respondent's suggestion, this Court has

not resolved the question. Only two circuit courts of

appeals (the Eleventh Circuit in this case and the Third in

Chester Residents)-have explained how they reached the

conclusion that there is an implied private right of action

under Section 602, and neither of them states that this

Court has answered the question. See App. at 42a (“[T]Jhe

Court has yet to squarely answer the question before

us. ... ”); Chester v. Residents, 132 F.3d at 932 (“[T]he

applicable Supreme Court precedent is not disposi-

tive. .. . ”). Accordingly, the only precedent is that

established by the courts of appeals. But, only two courts

of appeals have explained their conclusion, and this

Court vacated the Third Circuit’s ‘decision. See Chester

Residents, 524 U.S. 974 (1998). Moreover, the courts of

appeals were in accord when this Court granted certiorari

in Chester Residents demonstrating that a conflict in the

circuits is not a prerequisite for certiorari when the Peti-

tion presents an important question of federal law that

this Court has not resolved. See Sup. Ct. R. 10(c).

Alexander v. Choate, 469 U.S. 287 (1985), summarized

the then-existing Title VI jurisprudence. The Court did

not state that either Lau v. Nichols, 414 U.S. 563 (1974), or

Guardians Assn. v. Civil Service Comm'n. of New York, 463

U.S. 582 (1983), resolved the question. Rather, it said, “No

opinion commanded a majority in Guardians, and Mem-

bers of the Court offered widely varying interpretations

of Title VI.” Alexander, 469 U.S. at 293. The Court then

summarized a “two-pronged holding” in Guardians:

First, the Court held that Title VI itself directly

reached only instances of intentional discrimina-

tion. Second, the Court held that actions having—

an unjustifiable disparate impact on minorities

could be redressed through agency regulations

designed to implement the purposes of Title VI.

Id. (footnotes omitted). Again, in Alexander, the Court did

not state that private individuals could enforce agency

regulations.2 Not only did the Court not say that in

Alexander, it has not said it since.

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

this Court rejected an attempt by private petitioners to

assert a claim regarding affirmative action required by

Title VI regulations. The Court stated:

Private petitioners reiterate in this court their

assertion that the state system also violates Title

VI citing a regulation to that statute that

requires States to “overcome the effects of prior

discrimination.” 34 C.F.R. § 100.3(b)(6)(i) (1991).

Our cases make clear, and the parties do not

2 To the extent that the Court considered issues raised by a

private litigant in Alexander, any approval is tacit. Such tacit

approval also relates only to lawsuits brought under the

Rehabilitation Act, 29 U.S.C. § 794. The private litigant in

Alexander proceeded under the Rehabilitation Act, not Title VI.

disagree, that the reach of Title VI’s protection

extends no further than the Fourteenth Amend-

ment. [Citing Regents of University of California v.

Bakke, 438 U.S. 265 (1978), and Guardians]. We

thus treat these issues as they are implicated

under the Constitution.

ld. at 732 n.7. Respondent suggests that this footnote

“doesnot signal a retreat from the conclusion that private

parties may enforce agency regulations,” Br. in Opp. at

18, but the effect of the footneteis to preclude those

private parties from enforcing the cited regulation. If this

Court had previously recognized an implied private right

of action to enforce agency disparate impact regulations,

there would have been no need for the footnote.

Measured against the background of this Court's

opinions, the decisions of the courts of appeals are not

persuasive. Again, only two circuits have explained how

they reach the conclusion that there is an implied private

right of action under Section. 602. The rest simply assert

or assume that it exists. The Eleventh Circuit relied on its

own understanding of this Court’s opinions, see App. at

42a-48a, and the Third Circuit relied on its precedent

regarding the enforceability of regulations.* See Powell v.

Ridge, 189 F.3d 387, 397-400 (3d “ir.), cert. denied, 120

S. Ct. 579 (1999).4 Neither court looked at the intent of

Congress, which is the fundamental question. See Mid-

dlesex County Sewerage Auth. v. National Sea Clammers

* The question whether the regulations are valid is fairly

embraced in the question whether private litigants may enforce

them.

+ Unlike this case, which comes to this Court after a full

trial, Powell v. Ridge came on a ruling on motion to dismiss.

Assn., 453 U.S. 1, 13 (1981). This Court should grant the

Petition and examine this fundamental question.

2. Respondent contends that this case is not ripe for

review because it is interlocutory and there is an unre-

solved § 1983 claim. Br. in Opp. 6-11. Respondent is

mistaken because Petitioners appealed from a judgment

and permanent injunction after a trial on the merits. That

permanent injunction prohibited Petitioners from con-

tinuing to test only in English and directed Petitioners to

take affirmative steps to accommodate “Alabama’s non-

English speaking residents who seek Alabama driver's

licenses.” App. at 253a. When the District Court stayed

the injunction, it “DIRECTED [the parties] to abide by the

terms of their agreement as set forth in their July 9, 1998,

Joint Motion.” That agreement calls for the Department of

Public Safety to test in seven foreign languages: Spanish,

German, Korean, Japanese, French, Mandarin Chinese,

and Vietnamese. Supp. App. at 5a. Respondent contends

that this is not enough: Petitioners must not only expand

the number of languages, they must also make “some

provision beyond use of mere translation diction-

aries . . . for non-English speaking applicants whose

languages are not available in the written exam.” Supp.

App. at 8a-9a. Petitioners will clearly be required to take

affirmative action to remedy the regulatory violation

found by the District Court. This case should not be

considered interlocutory when only some of the details of

the imposed relief remain undefined.

The presence of an unresolved § 1983 claim does not

preclude certiorari either. The District Court reserved

ruling on the § 1983 claim after a trial on the merits at the

conclusion of which it “granted the Defendants’ motion

for judgment as a matter of law on Plaintiffs’ intentional

discrimination claims.” App. at 64a n.4. As the Eleventh

Circuit notes, that claim is unresolved because Respon-

dent wanted it that way: “In this case, plaintiffs relied on

Section 602 directly rather than basing their cause of

action on Section 1983.” App. at 45a n.21. Respondent

should not now be heard to leverage her choice into a

procedural barrier. Moreover, Respondent's present con-

struction of her § 1983 claim does not match the claim

that she pled. As pled, her § 1983 claim, which was made

under the Fourteenth Amendment, requires a showing of

intentional discrimination, not disparate impact like the

regulatory claim that the District Court ruled on. See, ¢.g.,

Personnel Administrator of Massachusetts v. Feeney, 442 U.S.

256, 272 (1979); Washington v. Davis, 426 U.S. 229, 238-39

(1976). While § 1983 provides Respondent with a vehicle

for vindicating her Fourteenth Amendment rights, it is

doubtful that it provides the basis for a private right of

action to enforce Section 602 regulations. See Middlesex

Sea Clammers, 453 U.S. at 13-15. In any event, this case is

no different from any other in which a District Court

rules in one party’s favor on one ground without ruling

on each and every claim and defense. The ruling on that

ground can be reviewed on appeal, and the case

remanded if necessary.

Respondent’s suggestion that she can prevail as a

third-party beneficiary lacks merit. If Congress did not

intend to create a private right of action that would

permit Respondent to enforce the regulations directly, it

is very unlikely that it intended to allow her to proceed

indirectly. See Suter v. Artist M., 503 U.S. 347, 363 (1992).

Moreover, the grants that form the basis for liability do

not convey any direct benefit to Respondent. None of the

grants funded the testing of driver’s license applicants.

Conversely, the direct, and presumably intended, bene-

ficiaries of grants to fund trooper overtime for speed

limit or DUI enforcement are the members of the driving

and road-using public, not applicants for driver's

licenses. Absent a directly-conveyed benefit, Respondent

lacks the interest necessary to give her either standing or

third-party beneficiary status. See Blessing v. Freestone, 520

U.S. 329, 340 (1997); Suter v. Artist M., 503 U.S. at 363.

3. Respondent is incorrect in her contention that

how the disparate impact regulations will be applied in

this case is irrelevant. Br. in Opp. 24-27. The uses to

which the implied private right of action can be put are

fairly embraced in the fundamenta! question of Congres-

sional intent. The statutory language of Section 602

imposes notice and timing limits on agency enforcement

actions. Private actions are subject to no such limitations.

Did the same Congress that imposed those limits on

agency actions intend that private litigants would be able

to require state agencies to give driver's license examina-

tions in foreign languages? Did that Congress intend that

private litigants could attack the siting of state highways

or wastewater treatment facilities? See Bryant v. New Jer-

sey Dept. of Transportation, 987 F. Supp. 343 (D.N.J. 1998),

vacated in part, 998 F. Supp. 438 (D.N.J. 1998); Chester

Residents, respectively. Those are, however, some of the

ways in which an implied private right of action is being

used.

The question presented also fairly includes the ques-

tion whether, as a matter of contract interpretation, the

grants can be read to require Petitioners to provide

10

remedies that include testing in foreign languages. Such

an obligation must be clearly spelled out in the contract,

see, e.g., Blessing, 520 U.S. at 341, and ambiguities are to

be construed against the drafter. See, e.g., United States v.

Heth, 7 U.S. (3 Cranch) 399 (1806). Neither a general

disparate impact regulation nor a Department of Justice

regulation that applies when “a significant number or

proportion of the population eligible to be served or

likely to be directly affected by a federally assisted pro-

gram ... needs service or information in a language

other than English,” see 28 C.F.R. § 42.405(d)(1) (1976)

(emphasis added), provides the necessary notice. Alter-

natively, if a grantor agency believes that it does, the

agency shouid enforce its interpretation in compliance

with the procedures that Congress specified.

For the reasons stated above and in the Petition, this

Court should grant the petition for writ of certiorari to

the Eleventh Circuit Court of Appeals.

Respectfully submitted,

Bitt Pryor

Attorney General of Alabama

JOHN J. Park, Jr.

Assistant Attorney General

Office of the Attorney General

11 South Union Street

Montgomery, AL 36130

(334) 242-7300

Counsel for Petitioners

Supp. App. la

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MARTHA SANDOVAL,

individually and on behalf of

all others similarly situated,

Plaintiff,

we Case No.

L.N. HAGAN, et al., CV-96-D-1875-N

Defendants.

JOINT MOTION FOR ENTRY OF STAY

Martha Sandoval, individually and as representative

of all others similarly situated, plaintiff in this action, and

L. N. Hagan, in his official capacity as Director of the

Alabama Department of Public Safety, and the Depart-

ment of Public Safety, defendants in this action, jointly

request this Court to enter a stay of its injunction pending

Hagan’s and the Department's appeal. The joint request

is made pursuant to the terms of the letter attached

hereto.

Supp. App. 2a

WHEREFORE, this Court should stay its injunction

pending appeal.

/s/ J. Richard Cohen

One of the Attorneys

for Martha Sandoval

OF COUNSEL:

J. Richard Cohen, Esq.

Rhonda Brownstein, Esq.

Southern Poverty Law

Center

400 Washington Avenue

Post Office Box 2087

. Montgomery, AL

36102-2087

(334) 264-0286

(334) 262-2419 (fax)

Shannon Holliday, Esq.

American Civil Liberties

Union of Alabama

207 Montgomery Street,

Suite 825

Montgomery, Alabama

36104

Respectfully submitted,

BILL PRYOR

ATTORNEY GENERAL

BY:

/s/ John J. Park, Jr.

One of the Attorneys

for L. N. Hagan and

the Alabama

Department of

Public Safety

OF COUNSEL:

John J. Park, Jr., Esq.

(PAR041)

Assistant Attorney General

Office of the Attorney

General

11 South Union Street

Montgomery, Alabama

36130

(334) 242-7401

(334) 242-4891 (fax)

Robert E. Morrow, Esq.

General Counsel

Alabama Department of

Public Safety

Legal Unit

Post Office Box 1511

Montgomery, Alabama

36102-1511

(334) 242-4392

Supp. App. 3a

Edward Chen, Esq.

Christopher Ho, Esq.

American Civil Liberties

Union

1663 Mission Street,

Suite 460

San Francisco, CA 94103

Supp. App. 4a

Orrice Or Trt Arrorney Genera

[SEAL]

BILL PRYOR

ATTORNEY GENERAL

STATE OF ALABAMA

July 9, 1998

ALABAMA State House

ll SoutH UNION SrrReet

MontGomery, ALABAMA 36130

Area (334) 242-7300

VIA TELECOPY

J. Richard Cohen, Esq.

Southern Poverty Law Center

400 Washington Avenue

Post Office Box 2087

Montgomery, AL 36102-2087

Re: Sandoval v. Hagan, et al.

Dear Richard:

Pursuant to our conversations, I write to set forth the

basis on which the parties have agreed to the District

Court’s entry of a stay. More specifically, you have agreed

to the entry of a stay in exchange for the Department's

implementation of a plan for testing in languages other

than English or otherwise accommodating applicants

who are not able to read or write English. As you under-

stand, the Department’s implementation of the program

would not be “voluntary.” The District Court has directed

the Department to implement a program, the Department

plans to appeal, and it is not ceasing the English-only

testing program voluntarily.

Supp. App. 5a

Nonetheless, on an interim basis, the Department is

willing to implement a program of testing in languages

other than English as set forth below:

1. The Department will procure translations of the

examination(s) in the following languages: Spanish, Ger-

man, Korean, Japanese, French, Mandarin Chinese, and

Vietnamese. The Spanish language examination will be

available at all examination stations within sixty (60) days

after the District Court’s entry of a stay, and the German,

Korean, Japanese, French, Mandarin Chinese, and Viet-

namese language examination will be available at the

district headquarters offices within 120 days after entry

of a stay. At present, there are seven (7) such district

headquarters offices, but the number may be reduced to

tive (5) due to budget limitations. Any reductions in the

number of district headquarters offices will affect not

only driver's license activities but also highway patrol

and ABI and will not be made with the intent to discrimi-

nate on an invidious basis because English speakers will

suffer too.

2. An applicani who wishes to take the examination

in German, Korean, Japanese, French, Mandarin Chinese,

or Vietnamese may call the district headquarters office

one week in advance to request that an appropriate for-

eign-language translation be taken to an examination sta-

tion. Such applicant will have to identify the examination

station, the date of the examination, and the language

involved. Absent such advance notice, the applicant can

take the foreign-language examination at the district

headquarters office.

Supp. App. 6a

3. Applicants who desire to be tested in any other

language will be offered the opportunity to use a transla-

tion dictionary subject to the stipulation that the Exam-

iner shall be entitled to inspect and approve the

dictionary before use.

4. The Department shall continue to administer the

road skills tests as it has done to date. To assist persons

who are not proficient in English, the Department will

continue to have its examiners take such steps as using

hand signals, using the flash cards developed to assist

hearing-impaired applicants, and explaining to the appli-

cant, through the applicant's interpreter as described in

paragraph 5, the nature of the test (e.g., what the appli-

cant may be asked to do and the types of commands the

examiner may use during the test).

5. Applicants who do not speak English will be

entitled to the assistance of an interpreter for administra-

tive purposes. The interpreter may assist in the applica-

tion process and may help give administrative

instructions to the applicant. The assistance of an inter-

preter will not be permitted on the written examination

or the road skills tests other than with respect to adminis-

trative instruction.

6. The Department and Hagan shall be entitled to

proceed with their appeal.

7. This interim procedure shall last until the stay is

lifted. It shall not be subject to the oversight of the

District Court, the Southern Poverty Law Center, or any-

one else.

8. The Department reserves the right to modify this

interim program, but shall have no obligation to do so. As

Supp. App. 7a

a courtesy, the Department will notify plaintiffs’ counsel

of any modifications to the interim program. If the plain-

tiffs believe that the modification undermines the interim

program, plaintiffs may petition the Court for relief.

9. The Department’s and Hagan’s implementation

of this interim program are expressly understood not to

be voluntary. Plaintiffs further acknowledge that the pos-

sibility that the Department will resume its practice of

testing only in English if the Department prevails on

appeal is reasonably to be expected.

10. If and when the stay is lifted, plaintiffs reserve

the right to claim that a program such as the Depart-

ment’s interim program does not comply with the Court's

Order. Hagan and the Department likewise reserve any

right they may have with respect to remedy.

Please let me know if this proposal is acceptable to

you. If so, you or Rhonda could sign below, and we could

then submit the fully signed letter to the court with a

Joint Motion for Entry of Stay.

Very truly yours,

/s/ John J. Park, Jr.

John J. Park, Jr.

Assistant Attorney General

ce: Robert E. Morrow, Esq.

Pir /pc

AGREED TO

BY:

/s/ J. Richard Cohen

One of the Attorneys for

Martha Sandoval

Supp. App. 8a

SPLC [LOGO]

SOUTHERN POVERTY LAW CENTER

Litigation & legal Affairs

Teaching Tolerance

Intelligence Project

Klanwatch

Militia Task Force

{Address Omitted In Printing]

May 2, 2000

Via Fax and Regular Mail

John J. Park, Esq.

Office of the Attorney General

11 South Union Street

Montgomery, AL 36104

Re: Sandoval v. Hagan

Dear Jack:

Judge DeMent’s order directs us to meet and confer

to resolve attorneys’ fee issues and “all other remaining

issues in this case” by May 10, and to file a joint pleading

on the matters by May 15. By referring to “all other

remaining issues,” we assume Judge DeMent means the

remedy to be issued in the case. If the State intends to file

a petition for certiorari review and you want a stay of

Judge DeMent’s order, we won't oppose your motion.

Just let us know as soon as possible.

In the meantime, we are drafting a proposal for fees

and intend to get it to you by May 5. Regarding the relief

to be issued, Judge DeMent’s original decision ordered

that “the Defendants shall, in conjunction with the Plain-

tiffs, fashion proposed policies and practices for the

Supp. App. 9a

accommodation of Alabama’s non-English speaking resi-

dents who seek Alabama driver's licenses.” The Judge's

order that the State make the initial proposal is, of course,

consistent with principles of federalism. We'd like to get

your proposal by May 5, if possible.

When drafting proposed policies and procedures,

we'd like you to consider a few points. First, although the

seven foreign languages in which the test is currently

available may have seemed adequate when you drafted

the interim testing program, the fact that the State previ-

ously utilized twice the number of foreign languages

probably demonstrates that an expanded number of lan-

guages is both practical and necessary. Second, we

believe that it’s important that some provision beyond

use of mere translation dictionaries be made for non-

English speaking applicants whose languages are not

available in the written exam. As the trial testimony

demonstrated, translation dictionaries are practically use-

less for translation of the written exam, and the State's

fear that interpreters will help applicants to cheat is

unfounded.

We'd like to meet to discuss these matters by May 8

or 9, after we’ve reviewed each other’s proposals. Please

get back to me or Richard as soon as possible.

Thanks.

Sincerely yours,

/s/ Rhonda

Rhonda Brownstein