Amicus Curiae Brief — Alexander v. Sandoval

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No. 99-1908 YUL 14 2000'

re

In The -

Supreme Court of the United States

JAMES ALEXANDER, in his official capacity as the Director

of the Alabama Department of Public Safety, and the

ALABAMA DEPARTMENT OF PUBLIC SAFETY,

Petitioners,

Vv.

MARTHA SANDOVAL, individually and on behalf of all

others similarly situated,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BRIEF OF U.S. ENGLISH AS AMICUS CURIAE

IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI

Joseph E. Schmitz*

Gregory S. Walden

PATTON BOGGS LLP

2550 M Street, NW

Washington, D.C. 20037

(202) 457-6086

*Counsel of Record

July 31, 2000

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TABLE OF CONTENTS

Page

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Een sci dsinciienitensneiiidecieaiientamecinsnieneenionts Vv

INTEREST OF AMICUS CURIAE..................... putiniunniaitanti l

SUMMARY OF ARGUMENT. .....:ccssscccsscsssssosssessccvsssesssenees 2

REASONS FOR GRANTING CERTIORARI ..................05 4

I. THIS COURT SHOULD GRANT

CERTIORARI TO RECONCILE THE

APPLICATION OF DISPARATE IMPACT

REGULATIONS WITH THE MULTITUDE OF

LAWS REQUIRING USE OF OR FACILITY

WITH THE ENGLISH LANGUAGE .............0......2.. 4

II. LAU V. NICHOLS NEEDS CLARIFICATION....... 11

III. WHEN SPENDING CLAUSE LEGISLATION

FUNCTIONS AS A _ QUASI-CONTRACT

BETWEEN CONGRESS AND A STATE,

AMBIGUITIES SHOULD BE CONSTRUED

CONTRA PROP ERNE ccscvevcevcesssessesesesescoessesenes 13

A. Spending Clause Legislation Impinging

Upon Unconsenting States Raises

Federalism Issues Not Yet Resolved by

a icrntccesesniunineennetumnentnpussantesipennnes 14

B. Quasi-Contractual Ambiguities Ought to

Be Construed Against Congress................... 17

Pee ETT seciitasnsnnntasescnccincabsncantcintasinnsnintions cnennenmenbenutn 19

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TABLE OF AUTHORITIES

Page

CASES

A.L.A. Schechter Poultry Corp. v. United States, 295

ae GES CRO ecccniinsiiiecneasieiiiiaaiiimiamnaeneeae 15

Alexander v. Choate, 469 U.S. 287 (1985) .......cccccscceeseeeeeees 12

Food and Drug Administration v. Brown &

Williamson Tobacco Corp., 120 S. Ct. 1291 (2000)........ 15

Frontera v. Sindell, 522 F.2d 1215 (6™ Cir. 1975).........00+: 6,7

Garcia v. Spun Steak Co., 998 F.2d 1480, 1489 (9"

Cir. 1993), cert. denied, 512 U.S. 1228 (1994)................ 16

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

Forte, SGD UB. Fale Coe tavseccntievntinssnsneiictindaiiamasa 12

Lau v. Nichols, 414 U.S. 563 (1974) ........:cccccceeeeeeees 11, 12,13

Loving v. United States, 517 U.S. 748 (1996).............::00000 15

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)............ 10

Mesa Air Group, Inc. v. Department of

Transporation, 87 F.3d 498 (D.C. Cir. 1996) .................. 18

Nazarova v. INS, 171 F.3d 478 (7" Cir. 1999).......c0cesse0se-00e: 7

New York v. United States, 505 U.S. 144 (1992) .............00. 16

Pennhurst State School v. Halderman, 451 U.S. 1

(| mn REE 14, 17,19

Printz v. United States, 521 U.S. 898 (1997) .0.......eeeeeeeeees 14

Reeves v. Sanderson Plumbing Products, Inc., 120 S.

CR. DEPT GHIED cevcesersesssensnsienitismamaieaimnaeinae 18

Seif v. Chester Residents Concerned for Quality

Living, cert. granted, 118 S. Ct. 2296, vacated as

mapas, 18D BS. Ce. TE COD «insescescincstdimapeainaniasmaidaian 2,4

Soberol-Perez v. Heckler, 717 F.2d 36, 43 (7" Cir.

1983), cert. denied, 466 U.S. 929 (1984)...........ccccceeeeeeeeees 7

South Dakota v. Dole, 483 U.S. 203 (1987).........ccccccseeeeeees 15

Toure v. United States, 24 F.3d 444 (2d Cir. 1994) ...0........... 7

United States v. Butler, 297 U.S. 1 (1936) ....cccccceceeoeee. 15, 16

United States v. Fordice, 505 U.S. 717 (1992) ...............00005 12

United States v. Heth, 3 Cranch 399 (1806).................... 3,17

United States v. Western Pacific Railroad Co., 352

Ee 5

University of California Board of Regents v. Bakke,

a 12

Vermont Agency of Natural Resources v. United

LL a 3,14

STATUTES

Section 601 of Title VI of the Civil Rights Act of

aia rcrtcerernncemnnnnsnnes 6, 12

Section 602 of Title VI of the Civil Rights Act of

cen din cnenssncnsecensonncsccesncuens passim

Title VI of the Civil Rights Act.............ccccccceeeeeeeeeeees passim

OTHER AUTHORITIES

F. von Hayek, The Road to Serfdom 72 (1944) ...........0cc00004 10

S. von Pufendorf, VII De Jure Naturae et Gentuim:

Libri Octo Ch. VI, §11 (1688) (C.H. & W.A.

Ee 10

S.I. Hayakawa, 127 Cong. Rec. $3998-99 (daily ed.

Ee 6, 16

RULES

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REGULATIONS

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1A CLF.R. §65.71 .cccccccccccccccssescssseseccsscsessuesessueeesusssessuecesssensen 8

28 C.F.R. §42.104(b)(2) ..cccccccccsceccssvecssseesessessssessssuesssseeesseeeen 5

28 C.F.R. §42.405(d)(1) coccccseccscccvessssecesssecssssuersssuessssseesseneeeen 9

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2B C.F.R. §68.7(€) ..c...cccceccccccescccvcssccsssesccneseccssscssseseccnsesennssees 9

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46 CFR. §12.05-3(8).......ccocesccccescccceseccovscccveccccssecccnscescnsseseen \

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QUESTION PRESENTED

Whether Congress intended to create a private night of

action in federal court against a State agency that receives

federal grant funds, thereby allowing a private individual to

enforce disparate effect regulations promulgated by federal

agencies under Section 602 of the Civil Rights Act of 1964

and bypass the federal agency review and enforcement

process established by Congress.

—— <—— Gang

No. 99-1908

In the Supreme Court of the United States

JAMES ALEXANDER, in his official capacity as the

Director of the Alabama Department of Public Safety, and

the ALABAMA DEPARTMENT OF PUBLIC SAFETY,

Petitioners,

v.

MARTHA SANDOVAL, individually and on behalf of all

others similarly situated,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

__ for the Eleventh Circuit

BRIEF OF U.S. ENGLISH AS AMICUS CURIAE

IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI

INTEREST OF AMICUS CURIAE'

U.S. English is a national, non-partisan, non-profit,

citizens’ action group dedicated to preserving the unifying

role of a common language in America. Current membership

is over 1.4 million nationwide.

U.S. English was established in 1983 by the

Honorable S.I. Hayakawa, noted educator, former United

States Senator from California, and himself an immigrant to

the United States. Senator Hayakawa’s overriding concern in

! Pursuant to Supreme Court Rule 37.6, amicus states that no counsel

for any party authored this brief in whole or in part, and that no entity

other than amicus made a monetary contribution to the preparation or

submission of this brief. The parties have consented to the filing of this

brief. Letters evidencing such consent have been filed with the Office of

the Clerk of this Court. See Sup. Ct. R. 37.3.

2

founding U.S. English was to ensure that English would

continue to serve as an integrating force among our nation's

many ethnic and linguistic groups, and that English would

remain a vehicle of opportunity for new Americans. In his

own words, "English is the key to full participation in the

opportunities of American life."

Today U.S. English consists of two independent

entities: U.S. English, Inc., a tax-exempt 501(c)(4)

organization, which advocates the interests of its supporters

before Federal and state legislatures and agencies; and U.S.

English Foundation, Inc., a _ tax-exempt 501(c)(3)

organization which disseminates information, sponsors

educational programs, represents interests of official English

advocates before state and Federal courts, and conducts

research on language issues.

U.S. English supporters recognize the importance of

preserving English as our common language for our national

unity, equal opportunity, and economic advancement.

SUMMARY OF ARGUMENT

Amicus U.S. English endorses the Alabama

Petitioners’ reasons for certiorari, i.e., that this case presents

an important Title VI question, certiorari for which the Court

granted but then did not resolve in Seif,’ and that recipients of

federal grants throughout the country “have an interest in

knowing the scope of the obligations they assume” by taking

federal grants, which “interest is frustrated when private

* Seif v. Chester Residents Concerned for Quality Living, cert.

granted, 118 S. Ct. 2296, vacated as moot, 119 S. Ct. 22 (1998). The

question presented (and accepted by the Court) in Seif was: “Did

Congress intend to create a private cause of action in federal court that

bypasses a federal agency’s review and enforcement process under

Section 602 of Title VI of the Civil Rights Act of 1964, simply by

alleging a discriminatory effect in the administration of programs and

activities of a federally-funded State or local agency?”

3

litigants direct disparate effect lawsuits at policies and

practices that are not intentionally discriminatory and are

unrelated to the purpose of the grant.” In addition, Amicus

respectfully submits that certiorari is warranted for three

compelling ancillary "easons:

1. The Court of Appeals’ holding that Alabama’s

official English drivers license testing policy is flatly at odds

with a myriad of federal statutes and regulations that

recognize, either directly or indirectly, the English language

as the official language of the United States;

2. The Court of Appeals’ holding that “Title VI flatly

prohibits . . . English language policies that cause disparate

impact on the basis of national origin” (citing Lau v. Nichols,

414 U.S. 563 (1974)) contorts this Court’s ruling in Lau, the

underlying premise of which was that ethnically Chinese

American citizens who do not understand English need to be

taught English first in order to participate fully in public

schools; and

3. The Court of Appeals’ holding that when

“Spending Clause legislation functions as a quasi-contract

between Congress and the States .. . , agency regulations are

accorded substantial deference in assessing whether they

outline a permissible construction of a congressional statute’s

purpose,” is contrary to the rule of construction applied in

United States v. Heth, 3 Cranch 399, 413 (1806) (Paterson,

J.) (“[T]he words of a statute, if dubious, ought, in cases of

the present kind, to be taken most strongly against the law-

makers.”); see Vermont Agency of Natural Resources v.

United States, 120 S. Ct. 1858 (2000).

4

REASONS FOR GRANTING CERTIORARI

I. THIS COURT SHOULD GRANT

CERTIORARI TO RECONCILE’ THE

APPLICATION OF DISPARATE IMPACT

REGULATIONS WITH THE MULTITUDE OF

LAWS REQUIRING USE OF OR FACILITY

WITH THE ENGLISH LANGUAGE

The issue of whether there is an implied private nght

of action to enforce Title VI disparate impact regulations is

important yet unsettled. It is important because of the

ramifications of allowing private litigants to enforce

ambiguous provisions of Title VI of the Civil Rights Act,

especially where, as here, Section 602 has been stretched

beyond the limits of federal agency implementation. That

this Court granted certiorari in Seif two years ago, but then

avoided the accepted issue (on account of mootness in that

case), indicates that the opinions of the various circuit courts,

whether expressed in holdings or dicta, are unsettled.

As Petitioners note, Section 602 of the Civil Rights

Act provides an elaborate process to ensure that an agency's

finding of a disparate effect claim is well-founded and

thoroughly considered. "Primary responsibility for prompt

and vigorous enforcement of Title VI rests with the head of

each department and agency administering programs of

Federal financial assistance." An agency may issue an order

finding a grant recipient's practice to have caused a disparate

impact on the basis of national origin only after providing an

opportunity for a hearing. The agency must also first attempt

to obtain voluntary compliance. Grant funds may not be

terminated or denied pursuant to such a finding until the

agency notifies Congress, provides Congress with a full

328 C.F.R. §50.3(b).

5

written report, and waits thirty days to give Congress time to

review the report.*

Although Congress authorized federal agencies to

enforce Title Vi of the Civil Rights Act by establishing

disparate impact regulations, Congress circumscribed that

authority by requiring agencies to follow a process and to

alert Congress to their findings before they are made

effective. Allowing a private right of action that bypasses

this elaborate congressional scheme deprives grant recipients

of the procedural protections contained in the statute and

recited above. It would also allow private litigants to pursue

enforcement in situations where the federal agency with

"[p]mmary responsibility for prompt and _ vigorous

enforcement of Title VI"* has elected not to pursue.

Allowing a private right of action to enforce the

disparate impact regulations promulgated by the U.S.

Departments of Transportation® and Justice’ violates the

doctrine of "primary jurisdiction,"* which in this case has

resulted in a series of judicial rulings below that are utterly at

odds with the substantive regulations of both Departments.

How is it that Alabama's English-language requirement to

obtain a driver's license is illegal, yet facility with the English

language is a U.S. Department of Transportation ("DOT")

prerequisite to operate an aircraft or commercial motor

vehicle, or to serve as an able seaman? How is it that

Alabama's requirement that driving tests be administered

only in English is illegal while access to U.S. Department of

* 42 U.S.C. §2000d-1.

5 28 C.F.R. §50.3(b).

° 49 C.F.R. §21.5(b)(2).

” 28 C.F.R. §42.104(b)(2).

* See United States v. Western Pacific Railroad Co., 352 U.S. 59, 63-

63 (1956) (“The doctrine of primary jurisdiction, like the rule requiring

exhaustion of administrative remedies, is concerned with promoting

proper relationships between the courts and administrative agencies

charged with particular regulatory duties.”’).

6

Justice ("DOJ") administrative adjudicatory processes — as

well as to the Supreme Court of the United States — is

available only to those who submit documents in English?

Neither Congress nor the agencies entrusted by

Congress to enforce Section 601 by rule, regulation, or order

have mandated this anomalous result. Alabama is subject to

this ruling only because the lower courts: (1) granted Martha

Sandoval a private right of action, and (2) assuming the

mantle of a federal regulatory agency under Section 602,

equated Alabama's English-language drivers test with

national origin diserimination.

A survey of the United States Code and Code of

Federal Regulations would reveal more than three hundred

references to the English language.” While some of these

references require the federal government, state or local

government, school, or private business to make reasonable

accommodations to those who cannot speak, read, or write

the English language, the vast majority of them require

applications, records, reports, labels, manuals, and other

documents to be submitted in the English language.'” Thus,

* These explicit references to the English language in essence reflect

the universal practice in the federal government that all agency

adjudications and rulemaking proceedings are conducted only in English.

As the Sixth Circuit stated in Frontera v. Sindell, 522 F.2d 1215, 1220

(1975), "It cannot be gainsaid that the common, national language of the

United States is English. Our laws are printed in English and our

legislatures conduct their business in English.” See S.1. Hayakawa

explaining the purposes and effects of Official English; 127 Cong. Rec.

$3998-99 (daily ed. April 27, 1981)(reproduced in the Appendix).

'° DOT and its modal administrations, such as the National Highway

Traffic Safety Administration (NHTSA) and the Maritime

Administration, require the English language to be used on labels, e.g., 49

C.F.R. §555.9 (temporary exemption labels), in petitions, e.g., 49 C.F.R.

§552.4 (petitions for rulemaking, defect, and noncompliance orders), in

applications, e.g., 46 C.F.R. §249.6(c) (application for approval of marine

hull insurance underwriters), and in tariffs, e.g., 14 C.F.R. §221.4 (tanffs

and other documents filed with the Office of the Secretary).

7

in order for a person to participate in an agency rulemaking,

seek a determination by a federal agency, apply for a grant or

permit from a federal agency, that person typically must be

able to speak, read, and understand English.

Heretofore, these requirements have been upheld

against challenges that the failure to provide hearings,

instructions, or other notice in the language of the non-

English speaking person amounts to a denial of due process.

In Nazarova v. INS, 171 F.3d 478 (7" Cir. 1999), the Court

of Appeals held that the INS' failure to provide notice of the

consequences of Nazarova's failure to appear on time at her

deportation hearing in her native Russian did not violate due

process. To hold otherwise would present:

a broad and troublesome position: the logical

implication is that the INS must maintain a

stock of forms translated into literally all the

tongues of the human race, and then select the

proper one for each potential deportee. No

court to our knowledge has even held that the

Constitution requires the INS to undertake

such a burden, and we will not be the first.

171 F.3d at 483."

Moreover, where public safety is involved, three

DOT modal administrations require proficiency with the

_ English language to obtain a permit to operate a vehicle or

perform a safety-related function. Even private pilots, the

'' See also, Toure v. United States, 24 F.3d 444, 446 (2d Cir. 1994)

(failure to provide notice of seizure of currency in French rather than

English did not violate due process); Soberol-Perez v. Heckler, 717 F.2d

36, 43 (7" Cir. 1983), cert. denied, 466 U.S. 929 (1984) (failure to

provide notice to Social Security claimants in did not violated due

process); Frontera v. Sindell, 522 F.2d 1215 (6" Cir. 1975) (failure to

conduct Civil Service Commission exam in language other than English

did not violate Constitution).

8

aviation analog to private motor vehicle operators, are

required by the Federal Aviation Administration ("FAA") to

"read, speak, write, and understand the English language.”

Coast Guard regulations require "able seamen" to "speak and

understand the English language as would be required in

performing the general duties of an able seaman and during

an emergency aboard ship"'’; other maritime personnel are

subject to similar requirements.'* The Federal Highway

Administration requires drivers of commercial motor

vehicles to "read and speak the English language sufficiently

to converse with the general public, to understand highway

traffic signs and signals in the English language, to respond

to official inquiries, and to make entries on reports and

records.”'°

Other federal agencies with authority to safeguard the

public health and safety, such as the Food Safety and

Inspection Service of the Agriculture Department, the

Consumer Product Safety Commission, the Environmental

Protection Agency, the Food and Drug Administration, and

the Bureau of Alcohol, Tobacco, and Firearms, all require

labels and manuals to be wnitten in English.

14 C.F.R. §61.103. In Title 14 of the Code of Federal

Regulations, the FAA requires that an applicant for the following

certificates "read, speak, write, and understand the English language”:

instrument ratings, §61.65; private pilot based on foreign pilot license,

§61.75; student pilot, §61.83; recreational pilot, §61.96; private pilot,

§61.103; commercial pilot, §61.123; airline transport pilot, §61.153;

flight instructor, §61.183; ground instructor, §61.213; flight engineer,

§63.31; flight navigator, §63.51; air traffic control tower operator,

§65.33; aircraft dispatcher, §65.53; mechanic, §65.71; repairman, §65.10;

and parachute rigger, §65.113.

'? 46 C.F.R. §12.05-3(a).

'* EB g., 46 C.F.R. §12.10-3(b) (lifeboatmen); 46 C.F.R. §12.15-3(c)

(engine department personnel).

'® 49 C.F.R. §391.11(b). Similarly, persons who transport migrant

workers are subject to the same requirements. 49 C.F.R. §398.3(c).

9

The DOJ Rules of Practice governing administrative

hearings involving allegations of unlawful employment of

aliens, unfair immigration-related employment practices, and

document fraud require that "all documents presented by a

party in a proceeding must be in the English language or, if

in a foreign language, accompanied by a certified

translation."'°

Similarly, the rules of this Supreme Court of the

United States of America provide that all foreign language

documents must be accompanied by an English translation.”

Amicus is not aware of any specific federal

requirement, whether imposed by regulation or order under

authority of Section 602, that a recipient of federal funds

must take affirmative steps to accommodate non-English

speaking persons in any area other education and voting.

Certainly there is no such specific requirement imposed by

DOT or DOJ on Alabama or any other State to administer

public health or safety-based programs in English or to grant

safety-based permits to engage in activities with potential

risk to the public to those who do not read, speak, or

understand English."

In its brief to the Court of Appeals below, the most

the United States could say about the federal "law" Alabama

'°28 C.F.R. §68.7(e). Also, all submissions to the Justice

Department required by the Foreign Agents Registration Act must be in

the English language. 28 C.F.R. §5.206(a).

" Sup. Ct. R. 31("Translations”).

'® The DOJ regulation cited with approval by the Court of Appeals,

28 C.F.R. §42.405(d)(1), is inapposite. That regulation requires grant

recipients to provide foreign language assistance where a significant

number of persons likely to be affected by a federally assisted program

"needs service or information in a language other than English in order

effectively to be informed of or to participate in the program." We doubt

this regulation would be cited by DOJ for the proposition that Alabama

must administer its drivers test in each applicant's native or spoken

language, yet this is the clear implication of the Court of Appeals’ ruling.

10

is said to have violated was: "Policies that require fluency in

English in order to receive benefits can have a disparate

impact on the basis of national origin. The Supreme Court so

held in Lau v. Nichols, 414 U.S. 563 (1974), and the

agencies responsible for implementing Title VI have

consistently espoused that view in_ regulations and

interpretive guidance." Brief for the United States as

Intervenor and as Amicus Curiae, filed January 11, 1999, at

6. These federal “regulations and interpretive guidance” are

neither express legal authority nor the "Rule of Law.””

This lack of express legal authority is not surprising,

given that English-language requirements are prevalent

throughout the federal government. It is also not surprising,

given the difficulty, if not impossibility, with crafting an

appropriate remedy, one that accommodates the non-English

speaking persons but neither compromises the public health

or safety nor imposes unreasonable burdens on the grant

recipients. Here, the only specific remedy ordered by the

district court, in an order granting a stay pending appeal, was

to require Alabama to administer the driver's test in seven

19 In Marbury v. Madison, Chief Justice John Marshall stressed that

"(t]he government of the United States has been emphatically termed a

government of laws, and not of men." 5 U.S. (1 Cranch) 137, 163 (1803).

"Rule of Law . .. means that the government in all its actions is bound by

rules fixed and announced beforehand -- rules which make it possible to

foresee with fair certainty how the authority will use its coercive powers

in given circumstances and to plan one's individual affairs on the basis of

this knowledge." F. von Hayek, The Road to Serfdom 72 (1944); see S.

von Pufendorf, VII De Jure Naturae et Gentuim: Libri Octo Ch. VI, §11

(1688) (C.H. & W.A. Oldfather trans. 1934) ("[I]t is clear in what sense

its to be taken the statement of the ancient Greek writers on politics and

their followers, namely, that the government of a state should be

committed to laws rather than to men. For that can have no other fit

meaning than this: Care should be taken that those who rule should

govern the commonwealth according to the direction of established laws,

rather than by their own private and uncircumscribed pleasure." (Citation

omitted)).

11

languages other than English.” If it indeed is a violation of

Section 602 to administer a driver's test to a non-English

speaking person in English, there is no principled limit to this

ruling. If there is only one person who speaks a particular

language in the entire State of Alabama, or perhaps five or

ten, why would they not be entitled to administration of the

test in their own native language?”’

II. LAU V. NICHOLS NEEDS

CLARIFICATION

Amicus endorses Alabama's argument, for the reasons

stated in their Petition at 15-18, that this Court's decision in

Lau v. Nichols, 414 U.S. 563 (1974), does not support the

Court of Appeals’ holding that a private right of action is

available under Section 602. Amicus would add that Lau, if

it remains "good law," also does not support the Court of

Appeals’ holding that Alabama's English-language

requirements for drivers constitutes national origin

discrimination in violation of Section 602.

This case presents this Court with a clear opportunity

to clarify the continuing validity of Lau, both with respect to

whether a private right of action exists under Section 602 and

whether a disparate effect violates Title VI itself. The

lengths to which the Court of Appeals went in discussing Lau

© The district court initially ordered Alabama to make "reasonable

accommodations" to non-English speaking applicants, without specifying

what accommodations would suffice.

*" Of Lau v. Nichols, 414 U.S. at 572 (Blackmun, J., and Burger,

C.J., concurring in the result)("I merely wish to make plain that when, in

another case, we are concerned with a very few youngsters, or with just a

single child who speaks only German or Polish or Spanish or any

language other than English, I would not regard today's decision, or the

separate concurrence, as conclusive upon the issue whether the statute

and the guidelines require the funded school district to provide special

instruction. For me, numbers are at the heart of the case and my

concurrence is to be understood accordingly.").

12

in the wake of this Court's decisions in Alexander v. Choate,

469 U.S. 287 (1985), Guardians Assn. v. Civil Service

Comm'n of New York, 463 U.S. 582 (1983), University of

California Board of Regents v. Bakke, 438 U.S. 265 (1978)

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

demonstrate the need for this Court to straighten out this

unceitain body of law.

In Lau, the Supreme Court held that the failure of the

San Francisco public schools to either provide English

language instruction to Chinese-speaking students or teach

these students in Chinese violated regulations promulgated

by the Department of Health, Education and Welfare

("HEW") pursuant to its authority under Section 602 to

enforce the nondiscrimination provision in Section 601. The

underlying premise of Law was that ethnically Chinese

American citizens need to be taught English first in order to

participate fully in the federally funded San Francisco public

schools.

In several respects, Lau neither dictates nor suggests

the holding of the Court of Appeals. First, the Court in Lau

did not determine the remedy for this violation. Indeed, it

noted that "[n]"o specific remedy is urged upon us." 414

U.S. at 564. Here, the Court of Appeals did not hold illegal

Alabama's failure to provide English-language instruction to

enable non-English speaking persons to qualify for a driver's

license. Instead, it found illegal the failure of Alabama to

allow non-English speaking persons the privilege to drive

without learning even the basics of English. This finding is

inconsistent with the remedy implicitly recommended by

this Court in Lau: "the [school] district must take affirmative

steps to rectify the language deficiency ... ." 414 US. at

568 (quoting HEW clarifying guidelines) (internal quotes

omitted).

Second, three concurring Justices in Lau focused on

interpretive guidelines issued by the HEW Office of Civil

13

Rights, which "clearly indicate that affirmative efforts to give

special training for non-English speaking pupils are required

by Title VI as a condition for receipt of federal aid to public

schools." 414 U.S. at 570 (Stewart, J., with Burger, C.J. and

Blackmun, J., concurring in the result). Unlike the HEW

regulations and guidelines~at issue in Lau, DOT and DOJ

regulations do not require any affirmative steps to be taken

by grant recipients with respect to non-English speaking

drivers.

Third, the HEW regulations at issue in Lau pertained

to education, not the public health and safety. Where

education is concerned, federal requirements are geared to

ensuring that all students are given a meaningful education.

Where the public health and safety is implicated, federal

requirements ensure that labels, instructions, warnings, and

signals are in English so that they can be understood and

observed. For those performing safety functions, including

commercial operators of motor vehicles, federal requirements

provide that they must be able to speak, read, write, and

understand the English language. While the Eleventh Circuit

gave no weight to the safety rationale behind Alabama's

English-language requirements, it is obvious that the

English-language requirements of federal agencies, most

notably the grantor department in this case, DOT, are based

primarily if not entirely on safety.

Thus, far from following Lau, the Court of Appeals

transformed Lau into something this Court has never

countenanced, and should not embrace now.”

Ill. WHEN SPENDING : CLAUSE

LEGISLATION FUNCTIONS AS A QUASI-

CONTRACT BETWEEN CONGRESS AND A

* For these same reasons, the Court of Appeals erred in finding

that Law provided Alabama with notice that its English-language

requirements were suspect.

14

STATE, AMBIGUITIES SHOULD BE

CONSTRUED CONTRA PROFERENTEM

The Eleventh Circuit’s holding that when “Spending

Clause legislation functions as a quasi-contract between

Congress and the States . . . , agency regulations are accorded

substantial deference in assessing whether they outline a

permissible construction of a congressional statute’s

purpose,” is contrary to the rule that ambiguous words in a

contract be construed contra proferentem, as well as to two

related rules of construction applied by this Court recently in

a federalism statutory construction context. Vermont Agency

of Natural Resources v. United States, 120 S. Ct. at 1870.

A. Spending Clause Legislation Impinging

Upon Unconsenting States Raises

Federalism Issues Not Yet Resolved by This

Court

The Spending Clause remains a significant exception

to the rule that the federal government “may not compel the

States to enact or administer a federal regulatory program.”

Printz v. United States, 521 U.S. 898, 935 (1997). In

Pennhurst State School v. Halderman, 451 U.S. 1 (1981),

this Court recognized “the ‘constitutional difficulties’ with

imposing affirmative obligations on the States pursuant to the

spending power. That issue, however, is not now before us.”

451 U.S. at 17 n13. At least one such unresolved

“constitutional difficulty” is squarely presented in this case.

If the Eleventh Circuit’s holding below becomes the

law of this land, the executive and judicial branches of the

federal government will have effectively compelled the fifty

States to administer an expansive interpretation of Title VI

contractual obligations. As such, this case presents a

statutory delegation of legislative authority “not canalized

within banks that keep it from overflowing.” A.L.A.

15

Schechter Poultry Corp. v. United States, 295 U.S. 495, 551

(1935) (Cardozo, J., concurring), and a concomitant urgent

need for this Court to update its guidance for lower courts:

“{AJn administrative agency’s power to regulate in the public

interest must always be grounded in a valid grant of authority

from Congress.” Food and Drug Administration v. Brown &

Williamson Tobacco Corp., 120 S. Ct. 1291, 1315 (2000);

see Loving v. United States, 517 U.S. 748, 770 (1996) (“The

intelligible-principle rule seeks to enforce the understanding

that Congress may not delegate the power to make laws and

so may delegate no more than the authority to make policies

and rules that implement its statutes.” (citations omitted)).

As of this Court's decision in South Dakota v. Dole,

483 U.S. 203 (1987), United States v. Butler, 297 U.S. 1

(1936), was “the last case in which this Court struck down an

Act of Congress as beyond the authority granted by the

Spending Clause.” 483 U.S. at 216 (O’Connor, J.,

dissenting). In Butler, Congress through the Agricultural

Adjustment Act had attempted to regulate through the

spending power. See 483 U.S. at 216. The Court’s analysis

in Butler came down to a fundamental federalism analysis,

equally applicable in this case: “The question is not what

power the federal government has, but what powers in fact

have been given by the people." 297 U.S. at 63.

: In her dissent in South Dakota v. Dole, Justice

O’Connor, while “subscribling] to the _ established

proposition that the reach of the spending power ‘is not

limited by the direct grants of legislative power found in the

Constitution,”” 483 U.S. at 212-13 (quoting Butler), also

identified two essential attributes of a legitimate exercise of

the spending power: “the conditions imposed must be

unambiguous”; and “the statute is entirely unambiguous.”

483 U.S. at 213 (citations omitted). In this case, both the

conditions and the statute are at best ambiguous. Neither

Title VI nor the DOT’s implementing regulations (both

16

included in the appendix to Alabama’s Petition) even hint

that Alabama’s English-only drivers license testing policy

violates Title VI.

The only federal regulations arguably unambiguous

on this issue are EEOC guidelines that the U.S. Court of

Appeals for the Ninth Circuit flatly rejected in Garcia v.

Spun Steak Co., 998 F.2d 1480, 1489 (9" Cir. 1993), cert.

denied, 512 US. 1228 (1994) (rejecting the EEOC’s

“English-only rule Guidelines,” 29 C.F.R. §1606.7(a)

(1991),” as applied in a Title VII disparate impact case

against a private sector employer.

In 1992, this Court applied the Butler federalism

analysis to strike down the low-level Radioactive Waste

Policy Amendments of 1985 as having crossed “line

distinguishing encouragement from coercion.” New York v.

United States, 505 U.S. 144, 175 (1992). “No matter how

powerful the federal interest involved, the Constitution

simply does not give Congress the authority to require States

to regulate.” 505 U.S. at 177.

Although Butler and New York both involved

coercive acts of Congress, the Butler/New York analysis

applies equally to coercive acts of federal agencies and

courts: “The question is not what power the federal

government has, but what powers in fact have been given by

the people” 297 U.S. at 63 (quoted at 505 U.S. at 157).

Amicus respectfully suggests that the people have never

given the federal government the power to frustrate

Alabama’s efforts to empower all of its citizens through

23 “The EEOC enacted this scheme in part because of its conclusion

that English-only rules may ‘create an atmosphere of inferiority, isolation

and intimidation based on national origin which could result in a

discriminatory working environment.’ 29 CFR § 1606.7(a).” 998 F.2d at

1489. For an authoritative and comprehensive explanation of the

nondiscriminatory and empowering purposes of Official English laws,

see S.1. Hayakawa, 127 Cong. Rec. $3998-99 (daily ed. April 27, 1981)

(reproduced in the Appendix).

17

nondiscriminatory policies that encourage facility in our

common language, English, such as Alabama’s English-only

drivers license testing requirement.

B. Quasi-Contractual Ambiguities Ought to

Be Construed Against Congress

Federal “legislation enacted pursuant to the spending

power is much in the nature of a contract: in return for

federal funds, the States agree to comply with federally

imposed conditions. The legitimacy of Congress’ power to

legislate under the spending power thus rests on whether the

State voluntarily and knowingly accepts the terms of the

‘contract.’ There can, of course, be no knowing acceptance

if a State is unaware of the conditions or is unable to

ascertain what is expected of it. Accordingly, if congress

intends to impose a condition on the grant of federal moneys,

it must do so unambiguously.” Pennhurst State School vy.

Halderman, 451 U.S. 1, 17 (1981) (internal citations

omitted).

. For the same “considerations” reiterated recently by

this Court in Vermont Agency of Natural Resources, supra,

120 S. Ct. at 1870, it is critical that Spending Clause

contracts between the federal government and the States be

interpreted according to the plain terms of those contracts,

with any ambiguities being construed in favor of the States.

Under the approach taken by the Eleventh Circuit and other

courts of appeals, however, any ambiguities in Title VI

contracts can be construed after-the-fact by the federal

agencies, the contractual parties who proffered — ostensibly

by delegated legislative authority — the ambiguous language.

But see United States v. Heth, supra, 3 Cranch at 409

(Johnson, J.) (“If it be necessary that the court should make

an election between [alternative constructions of ambiguous

statutory] words, . . . the words should be taken most strongly

‘contra proferentem.’”); 3 Cranch at 413 (Paterson, J.)

18

(“(T]he words of a statute, if dubious, ought, in cases of the

present kind, to be taken most strongly against the law-

makers.”); Cipollone v. Liggett Group, Inc., 505 U.S. 504

(1992) (Scalia, J. & Thomas, J., concurring in the judgment

in part and dissenting in part) (“[A]ny ambiguity concerning

[a preemption clause’s] scope will be read in favor of

preserving state power.”).”*

Finally, if the “not canalized within banks” coercive

power of the national government is allowed to stand in this

case, involving a sovereign State as defendant, its effects will

spill over into the private sector vis-a-vis parallel disparate

impact provisions of Titles VI and VII of the Civil Rights

Act of 1964, and the Age Discrimination in Employment Act

(“ADEA"). Compare, e.g., Garcia v. Spun Steak Co., supra,

(rejecting the EEOC’s “English-only rule Guidelines, as

applied in a Title VII disparate impact case against a private

sector employer), with Reeves v. Sanderson Plumbing

Products, Inc., 120 S. Ct. 2097, 2105 (2000) (“This Court

has not squarely addressed whether the McDonnell Douglas

framework, developed to assess claims brought under §

703(a)(1) of Title VII of the Civil Rights Act of 1964, also

applies to ADEA actions. Because the parties do not dispute

the issue, we shall assume, arguendo, that the McDonnell

Douglas framework is fully applicable here.’’).

Amicus respectfully suggest that when this Court

focuses on the legislative intent behind Title VI as applied to

this case, the question presented by the Alabama Petitioners,

as urgent as it is for this Court to resolve, answers itself:

“The case for inferring intent is at its weakest where, as here,

the rights asserted impose affirmative obligations on the

States to fund certain services, since we may assume that

24 See generally Mesa Air Group, Inc. v. Department of

Transportation, 87 F.3d 498, 506 (D.C. Cir. 1996) (buttressing the

appellate court’s federal government-private party contractual analysis

with contra proferentem). :

19

Congress will not implicitly attempt to impose massive

financial obligations on the States.” Pennhurst, 451 U.S. at

16-17 (emphasis in original). “Our conclusion is buttressed

by two other considerations that we think it unnecessary to

discuss at any length: first, ‘the ordinary rule of statutory

construction’ that ‘if Congress intends to alter the usual

constitutional balance between States and the Federal

Government, it must make its intention to do so

unmistakably clear in the language of the statute,’ and ,

“ second, the doctrine that statutes should be construed to

avoid difficult constitutional questions.” Vermont Agency of

Natural Resources, supra, 120 §S. Ct. at 1870 (internal

citations omitted).

CONCLUSION

For the reasons stated in the Alabama Petition and in

this amicus brief, this Court should grant the wnit of certiorari

and, on review, reverse the decision of the United States

Court of Appeals for the Eleventh Circuit.

Respectfully Submitted,

JOSEPH E. SCHMITz*

GREGORY S. WALDEN

PATTON BOGGS LLP

2550 M Street, N.W.

i Washington, DC 20037

(202) 457-6086

*Counsel of Record

July 31, 2000

Al

APPENDIX

SENATOR S.I. HAYAKAWA ON THE PURPOSE AND

EFFECTS OF OFFICIAL ENGLISH

27 CONG. REC. $3998-99

(DAILY ED. APRIL 27, 1981)

[L]anguage is a powerful tool. A common language

can unify; separate languages can fracture and fragment a

society. The American "melting pot" has succeeded in

creating a vibrant new culture among peoples of many

different cultural backgrounds largely because of the

widespread use of a common language, English.

Learning English has been the primary task of every

immigrant group for two centuries. Participation in the

common language has rapidly made available to each new

group the political and economic benefits of American

society. Those who have mastered English have overcome

the major hurdle to full participation in our democracy.

Today I am introducing a constitutional amendment

declaring as the law of the land what is already a political and

social reality: That English is the official language of the

United States.

This amendment is needed to clarify the confusing

signals we have given in recent years to immigrant groups.

For example, the requirements for naturalization as a U.S.

citizen say you must be able to "read, write, and speak words

in ordinary usage in the English language." And though you

must be a citizen to vote, some recent legislation has required

bilingual ballots in some areas. This amendment would end

that contradictory, logically conflicting, situation.

Bilingual education programs were onginally

designed to help non-English-speaking children learn English

quickly so they could join the mainstream of education and

A2

of our society. The Carter administration attempted to

substantially broaden this mandate by proposing

requirements for schools to teach other academic subjects

entirely in students’ native language.

I am proposing this amendment because I believe that

we are being dishonest with the linguistic minority groups if

we tell them they can take full part in American life without

learning the English language. We may wish it were

otherwise, but it simply is not so. As the son of an immigrant

to an English-speaking country, I know this from personal

experience. If I spoke no English, my world would be

limited to the Japanese-speaking community, and no matter

how talented I was, I could never do business, seek

employment, or take part in public affairs outside that

community.

Let me explain what the amendment will do, upon its

passage by Congress and ratification by three-fourths of the

States:

It will establish English as the official language of

State, Federal, and local government business;

It will abolish requirements for bilingual election

materials;

It will allow transitional instruction in English for

non-English speaking students, but do away with

requirements for foreign language instruction in other

academic subjects;

It will end the false promise being made to new

immigrants that English is unnecessary for them.

On the other hand, and this is important, there are

things the amendment will not do:

It will not prevent the use of any other language

within communities, churches, or cultural schools.

That is, Yiddish schools, Hispanic schools, Japanese,

and Chinese schools are perfectly all right insofar as their

support by local communities, but not by the taxpayer.

A3

It will not prevent the use of second languages for the

purpose of public convenience and safety, for example on

signs in public places, but it will not allow governments to

require multilingual postings or publications.

I am thinking, Mr. President, of such signs as you see

in the street sometimes, "Danger, construction area." If this

sign is put up in a building lot in Chinatown, let us say, there

is certainly no objection whatsoever to putting signs to that

effect in Chinese or any other language that is appropriate for

the passerby. So, for purposes of public convenience and

safety, other languages may be used wherever necessary. |

think that what we have, in Washington, Los Angeles, and

San Francisco, street signs in Chinese or Japanese, are

perfectly acceptable, because they are also accompanied by

street signs in English. They are also acceptable because

they give a cosmopolitan flavor to those cities that have them

and we are proud of the fact that we are a cosmopolitan

culture.

My amendment, Mr. President, will not prevent

public schools from offering instruction in other languages,

nor will it prevent schools and colleges from requiring some

study of a foreign language.

Incidentally, Mr. President, we are crippled in

international relations because of our imperfect command not

only of the well known languages like Spanish, French,

German, or Italian, but we have very few speakers of

Chinese, Japanese, Russian, Hungarian, Arabic, Thai -- some

languages some people here ought to know so they can serve

our Nation intelligently in diplomatic service or in trade. If

we have a huge trade deficit vis-a-vis Japan, for example, it

is because they have some Japanese salesmen speaking

English in New York, Chicago, Los Angeles, and elsewhere,

but we have very, very few Japanese-speaking Americans

doing a selling job in Tokyo or Osaka.

A4

So, at the same time that I declare English to be the

official language of the United States, I am not trying to

discourage foreign language studies.

The ability to forge unity from diversity makes our

society strong. We need ali the elements, Germans,

Hispanics, Hellenes, Italians, Chinese, all the cultures that

make our Nation unique. Unless we have a common basis

for communicating and sharing ideas, we all lose. The

purpose of this proposal is to insure that American

democracy always strives to include in its mainstream

everyone who aspires to citizenship, to insure that no one

gets locked out by permanent language barriers.