Amicus Curiae Brief — Alexander v. Sandoval

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Supreme Court of the United States Nev 13 ow

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,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF FOR U.S. ENGLISH AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Joseph E. Schmitz*

Gregory S. Walden

Matthew F. Stowe

PATTON BOGGS LLP

2550 M Street, NW

Washington, D.C. 20037

(202) 457-6086

*Counsel of Record

November 13, 2000

“Fee

QUESTION PRESENTED

Whether Congress intended to create a private right of

receives

vidual to

ivil Rights Act of 1964

review and enforcement

a private indi

shed by Congress.

under Section 602 of the C

and bypass the federal agency

federal grant funds, thereby al

agencies

geé

process establ

act

(i)

TABLE OF CONTENTS

Page

scene i

TABLE OF AUTHORITIES .......2cocccccsscsssssccsessssessssessevees iv

INTEREST OF AMICUS. ......:.:cccessecsssesseesssessvessessneessesseeseeen l

SUMMARY OF ARGUMENT.........:.cccsccsssesssesscessesssesseesneenes 2

EE ES 3

I. JUDICIAL CREATION OF A PRIVATE RIGHT OF

ACTION TO ENFORCE TITLE VI DISPARATE

IMPACT REGULATIONS IS UNNECESSARY

AND CONTRARY TO THE CONGRESSIONALLY

ESTABLISHED ENFORCEMENT SCHEME. .............. 3

A. The Elaborate Administrative Scheme In Title

VI Itself Obviates a Private Right of Action ...... 3

B. A Judicially Created Right of Action Would

Improperly Bypass the Conditional Authority

Congress Delegaied To the Executive ............... 6

C. Private Enforcement Of Disparate Impact

Regulations Would Deny Recipients DOT’s

Informal Resolution Process ................ccc0cc0000 8

D. Recognition of a Private Right of Action

Would Jeopardize Legitimate English

Language Requirements, With Which The

Code of Federal Regulations Is Replete ........... 11

II. LAU V. NICHOLS NEEDS CLARIFICATION ............. 20

A. Lau Is Premised on English Being the

Common Language of the United States............ 20

B. In Lau, Discussion of the Remedy was

Confined to the Terms of Federal Guidelines

Requiring Affirmative Efforts to Train Non-

English Speaking Students te Speak English .....22

C. Lau Should Only Be Applied as Controlling

Authority to Strike Down a State Law, If at

All, Where There Is a Clear Congressional

Statement of a Condition Sought to Be

Imposed on the Receipt of Federal Funds ....... 24

Ill. WHEN SPENDING CLAUSE LEGISLATION

FUNCTIONS AS A QUASI-CONTRACT

BETWEEN CONGRESS AND A STATE, ANY

AMBIGUITIES SHOULD BE CONSTRUED

CONTRA PROFERENTEM, IE. AGAINST

CONGRESS

A. Quasi-Contractual Ambiguities in Title VI

Ought to Be Construed Against Congress.......... 25

B. Ambiguities in Spending Clause Legislation

Should Not Be Construed to Impinge Upon

Powers Reserved to the States Respectively .....28

SPIED snhiniccmesienssensenetsinasteinsiaininantatelia ct a 30

OPO MEEOD cnssesssncrccsitasansanttcitiapataatartatasssttia te Al

FP TEETD TD vscsncsicciintenincpinsintistanaijiataamaseeseiae AS

TABLE OF AUTHORITIES

CASES Page

Alexander v. Choate, 469 U.S. 287 (1985) ........:cccccccceeeeees 4,10

Arrow Airways, Inc. v. Dade County, 749 F.2d 1489 ,

\l je |,

Cannon v. University of Chicago, 441 U.S. 677 (1979).....4, 10

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) ......... 26

FDA v. Brown & Williamson Tobacco Corp., 120 S. Ct. -

GE ccnncssrentcsneacsnantmnnmnmernmmatemnmmnmntenncnns

Frontera v. Sindell, 522 F.2d 1215 (6th1975) ................. 13,15

Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993) ....29

Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274

Eee 4, 23

Interface Group, Inc. v. Massachusetts Port Auth.,

pe fe 5, 10

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) ..........0+. 26

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

i . 933 (E.D.

Long v. First Union Corp. of America, 894 F. Supp

, Va. 1995), aff'd, 86 F.3d 1151 (4" Cir. 1996)........... 29

Loving v. United States, 517 U.S. 748 (1996) ..........::ccceeeee 28

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ....... 22, 30

Martin v. Hadix, 527 U.S. 343 (1999) ...........ccccccceeeeeeeeeeeeeeees 26

Mesa Air Group, Inc. v. DOT, 87 F.3d 498 ™

BILE. Cle. BGDGD cccececncccesscesessesesscsesnssessscesssssesssssesesens

Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91 ,

le | ee

Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999) ............... 14, 16

New York v. United States, 505 U.S. 144 (1992) oo... 29

Northwest Airlines, Inc. v. County of Kent, 955 F.2d 1054

(6th Cir. 1992), aff'd on other grounds, 510 U.S.

REE ERE aia ar tllue SAEED SR Piney Eee 5

Pennhurst State School & Hosp. v. Halderman, 451

Ss TIED ceciiaiietieedinbiaenbcesterineae ens 24, 25, 27, 28, 29

Printz v. United States, 521 U.S. 898 (1997) oo... .cccccccccceseeee 28

Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir. 1983) .......... 15

South Dakota v. Dole, 483 U.S. 203 (1987), .......ccccccccee. 28, 29

Toure v. United States, 24 F.3d 444 (2d Cir. 1994) ..00.00....... 15

Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S.

ERR oe RRS SS EN EEE PL RR ee ote Oe 3

United States v. Butler, 297 U.S. 1 (1936) ooccccccccccccecceeeee 28, 29

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

ee eRS A. SO Rae PTE 3, 25, 26

Vermont Agency of Natural Res. v. United States,

120 S. Ct. 1858 (2000) ou... eee 3, 25, 27, 29

CONSTITUTIONAL PROVISIONS

U.S. Const., Article I, Section 8, Clause 1 ............00000..000000. 28

ee eT 24

STATUTES

RT a CE REE 17

ER ee Se Ee 17

EE ne TT ne aE 18

Bilingual Education Act, 20 U.S.C. §7410 ef seg. ...cccccccceeee. 17

28 U.S.C. §1827(C) ..........sresserrceresccessersensenssnsensssssnssnsssssensnnss 19

28 U.S.C. $1973 aa ..........c.recscerssorsserersrscceessnsseersssssensnssenssones 17

28 U.S.C. SIDT3AO-1E ........0.0cecrccrccerserevssscereresessonsesessnsesossoess 17

28 U.S.C. §1973D ..........cceccrerosccescsrssrsenssnsensensensensensessseseossesess 17

29 U.S.C. BIGES .....ccccccerssserescsorsccssessecsesseersessscssosorssseossnsconecs 18

3S U.S.C. GIGICC) ...00..0cccrsecrerscecsccssrsesceesencssesecssessssssssssoosoosss 17

42 U.S.C. $300 UD) ......0.00.00.ccecceccerscorerceecssccersenssnssssesessssssees 18

42 U.S.C. G4OB(1)..00200000ccecseerescsscssecsenseessscssescessssessesssssssseosenes 18

42 U.S.C. GODEID)..00000ceccscrreccecesscsscssessccsocccsossecsenosscosesssssonseees 18

42 U.B.C.-GUSEIME) .200000cecccnssevssersessecssccsccssessesssessecsscssossossseoes 18

42 U.S.C. GIFSGELE) ....0000000rcerrcccecsccsecssersercsessecsessensrsesesssenes 18

42 U.B.C. GBBGOE ....00000eccrcccsceseccsccccesecccesssossensscssossecseenes passim

42 U.S.C. S200OG- 1 ..........ccrereccrsccereccsecererserensessssesssnsses passim

42 U.S.C. GOBOS ...cceccsecssccsseressoccsecsecseesessreccsesssnsseossenssosesosooss 19

42 U.S.C. 11707 .....cceccecsesccrecceccccrercesersenrserscsensersnssessesensosees 18

GD U.S.C. $47106 .....0.0cceceserevrccrecserecsersseeerenssorensssseesssessssosonees 5

4D U.S.C. § STIOT ......cccccccrcsrecreccsnssesserersensensesssenseeseossssseosesses 5

RULES AND REGULATIONS

7 CF.R. §272.4()) ...0.00:ccsccessesersseseoreessesersccserensersssssesesssseessoses 18

7 C.F.R. Part 1930, Subpart C, Exh. B.............::cccceeeeeeeeeeeeees 18

D CF.R. $317.200) ...0000csccecrecsereosecsesssrserensssssessosssesessosossnsonsones 16

9 C.F.R. $381.1 166A) ............cccrsscsscercesesserssssssssersscssssssssssones 16

14 C.F.R. $221.4 .....ccsccecsoreccescerseessersnssnrensenssenesssssssssssssosooses 14

14 C.F.R. $61.65 .........cscccersssessesssrrsocsrsrseessseossnseessosscssssesenses 15

= TS COST 15

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TE eee Tes 16

17 C.F.R. §230.403(C) ..ccccscccsscccssscssssessssecsssssssssonsssconscccsseese 17

8 ee ED 16

21 C.F.R. §201.15(C)(1) oocsccsccscsssseccsssecssesessssessssssssscssseesosece 16

21 C.F.R. §501.15(C)(1).ccccsccccsccssseccssessssesossesssssssssessesesscesseee 16

21 C.F.R. §607.40(b) ....ccccsccssccccsssescssssssesssssssssssssscssesossecesece 16

21 C.F.R. §701.2(D)(1) ...ssessecsesssessessnssnesnesenseneennennennennnen seven 16

21 C.F.R. §801. US(C)(L) ...cccceccceeeseeeeeeeeeseneeeeenens hovesssoussavenseseen 16

21 C.P.R. BIOIO.2LD) ..ccrecrcrscrrersecsscscereccsescessersecesosecsssssossssssees 16

27 C*C.B.R. GOBBLE) ..ccvcrecevcesscrsceserccsccsevsevsseccssvsesscssessssovssssssees 16

27 CBR. B47.SBD). .00verereecererrcvsesersersesevsessesscresessessesessnscoensenee 16

27 C.F.R. §5.33(C) ..cccecceeeeeees scentanenssensienseentasemnemiteniinnnbnsuiants 16

2B C.F.R. BS.2OGLE) ....0.crsvcerrevsesserversesessecserecssosesseseosecsessssseoes 18

2B C.F.R. $42. 10700). ....0:e0recevrevrcrsersersereseecevcssvesressssssssoresseoseres 5

2B C.F.R. $42.40S(E) ..0000screcrecrccrerevsessecccccececvesvessscsesensessesosees 19

FB CBR. GOOD. .cxreccccrccverecceresccsesevsesserecsesenssessesenssvsesses 5, 10

2B CE.R. B6B.N]) ..ccrvvevrevrccrecrcrscrerseoseccesserecsecsevonsssessssessoenes 17

2B C.B.R. GID) ..cccerccerereescescoscceesecrsvcessossosssssvessensenssssssoooees 18

2B C.F.R. GIGOE. NA) ...erverscerscrcrecressererserseccorercessorevssevessersesees 29

29 C.F.R. $2520. 102-2(C).......0.cerecreorersereererseresreerersserssessessees 18

29 C.F.R. §2520.104b-10(€).......ccccccsccsessesesereeeessenseeeeneennens 18

I I a oisccniciinentesintentinensinnciomianiiiiis 18

32 C.F.R. $46.G(O)M4) ......ccccsrccrssssssssscsersrseeressesenssonensssssensens 17

34 C.F.R. Part 100, App. B.........cccccssereeeeeeeeeeeteeensenenenens 17

40 C.F.R. $156. 10(a)(3)........cccccrrccrrorsesssesersersesessensesssssnsssses 16

40 C.F.R. §204.55-4(a)(4) ...ccccccscssesseseseeeeseeeeneesenennstaneneeneenees 16

40 C.F.R. §86.091-35 .......ccscsrssrsscsssrvssorresseserersseserenrnesssssesees 16

40 C.F.R. §86.092-35(a)........0..cscssssssssrssseresrenrersessnessorerssenees 16

40 C.F.R. §86.093-35 ......cccscssssosssssssssssrencerensenssessessssessensess 16

40 C.F.R. §86.094-35 ........cscsscscssssssssssesserensenesserseserssssseessnees 16

40 C.F.R. §86.095-35 .......cccssccesseessieeseeesseesseseenssseneens eessenees 16

eS | | eee 7 sntriasshanincensensennnesnasebenndenapsenssonsis 18

ID ITT: SIIIITDED diallicchtnitienantasaieinaiiniictiliaa te di SS 18

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FO CP RR, Fatt 80, BBC casenescorsescesesscessnsenesecsoncseseceonsesssesensase 9

IP Ta TEIOTY cursiberiaputnicesininectseiessniethecinasitiaiandmeaansatatinie anna 28

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Fe a is GTI cacihrrtctnrsienciscnsienecreinainanaamtanicetssitaciaam ait 5,6

ear ite OO OI, GI cesnicsnsecesnintnonesesnsnaséonmninsnansieessutssaces 7

ar as I virisisitiniccesoniinitintemapianiandanaaaiitin ii 6

49 C.F.R. §§21.13(C)(2), (CMB) .ceccccccceccssescsseseesesceseeverescereseecc. 6

Fea PCIE wicxinnncsinessenscesnenennitctniciniasinieanatenentiinisenss 6

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Se TIT iuhicseinitnintcstitatsmsiliiseiiaadentiennen teat Sia 14

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OTHER AUTHORITIES

62 Fed. Reg. 45200 (1997) ..cccssscssccsccscecsscssescsssssssssessennnees 16

GS Freed. Raa, SOUDS (ROOD) anscceccnnncseennaccecnnsccsessneneeservensee 12

Senator S.I1. Hayakawa on the Purpose and Effects of

Official English, 127 Cong. Rec. $3998-99

(daily ed. April 27, 1981) .........cccscsceseeseseeeereeneees 13, 20

F. von Hayek, The Road to Serfdom (1944) .......cccceceeeeees 22

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

(1688) (C.H. & W.A. Oldfather trans. 1934) ............. 22

“Thomas Jefferson’s Prayer for the Nation,”

reprinted in The Heritage Foundation Quarterly

Report (Spring ’99) at www.heritage.org/

membership/ hmn/ Spring99/ publications.html. ...... 20

N. Webster, American Dictionary of the English Language

OI acecccsccescncscncesannnneseesoncsncnssessssnsutonnsonnesscsosossenqeecs 21

IN THE

Supreme Court of the United States

No. 99-1908

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,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Eleventh Circuit

INTEREST OF AMICUS CURIAE'

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

citizens’ action group dedicated to preserving the unifying

and empowering roles of a common language in America.

Current membership exceeds 1.4 million nationwide.

U.S. English was established in 1983 by the Honorable

S.I. “Sam” Hayakawa, noted educator and linguist, former

United States Senator from California, and himself an

immigrant. Senator Hayakawa’s overriding concern was to

ensure that English would continue to serve as an integrating

! 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 of such consent have been filed with the Clerk of the Court.

force among our nation's many ethnic and linguistic groups,

and that it 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

The Court should reverse the holding below in Sandoval

v. Hagan, 197 F.3d 484 (11™ Cir. 1999), which otherwise

would create a private right of action that is both unnecessary

and contrary to the congressionally established administrative

enforcement scheme in Title VI. The 11" Circuit’s holding

that Alabama’s official English drivers license testing policy

violates federal law is at odds with a myriad of federal

Statutes and regulations that recognize, either directly or

indirectly, that English is the official language of the United

States. Moreover, the 11" Circuit’s holding that “Title V!

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 American

citizens who do not understand English need to be taught

English first in order to participate fully in public schools.

Finally, the holding below 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 rules of construction applied in

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

Vermont Agency of Natural Resources v. United States, 120

S. Ct. 1858 (2000), resolving ambiguities against Congress.

ARGUMENT

I. JUDICIAL CREATION OF A PRIVATE RIGHT OF

ACTION TO ENFORCE TITLE VI DISPARATE

IMPACT REGULATIONS IS UNNECESSARY AND

CONTRARY TO THE CONGRESSIONALLY

ESTABLISHED ENFORCEMENT SCHEME.

Whether a private right of action to enforce a statute will

be recognized is ultimately a matter of congressional intent.

Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11

(1979). Amicus offers four reasons why Congress would not

have intended to allow for a private right of action to enforce

Title VI disparate impact regulations: it is unnecessary,

contrary to the administrative enforcement scheme

established by Congress, contrary to the informal resolution

process established by agency regulation to promote the

congressional goal of voluntary compliance, and would

jeopardize a myriad of English language rules, with which

the Code of Federal Regulations is replete.

A. The Elaborate Administrative Scheme In Title

VI Itself Obviates a Private Right of Action.

Congress granted Federal agencies the plenary authority

both to implement and to enforce the nondiscrimination

provision of Title VI of the Civil Rights Act of 1964.

Section 602 of Title VI directs each Federal department and

agency which provides financial assistance for a program or

activity to “effectuate” the nondiscrimination provision in

Section 601 “with respect to such program or activity by

issuing rules, regulations, or orders of general applicability"

and "to enforce- any nondiscrimination requirement by

terminating or denying financial assistance to any recipient

found to have failed to comply with such requirement, or “by

any other means authorized by law.” As the Justice

Department recognizes, “[p]rimary responsibility for prompt

and vigorous enforcement of Title VI rests with the head of

each department and agency administering programs of

Federal financial assistance.”’ 28 C.F.R. §50.3(b).

While Congress did not authorize private persons to

enforce the nondiscrimination provisions of Title VI in the

courts, this Court has recognized an implied private right of

action under Section 601 for intentional discrimination. See

Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274, 293

(1998) (Stevens, J., joined by Souter, Ginsberg, and Breyer,

JJ., dissenting) (“Title VI . . . had been interpreted to include

a private right of action [for intentional discrimination],”

(citing Cannon v. University of Chicago, 441 U.S. 677, 694-

98 (1979)). Two of the five Justices in the Cannon majority

concurred, disavowing any expansion of private rights of

action under Title VI. 441 U.S. at 718 (Rehnquist, J, joined

by Stewart, J., concurring). Accordingly, neither was there a

majority in Cannon nor has there apparently been one since

for the proposition that Congress intended a private right of

action under Title VI for unintentional discrimination.

The decision of Congress not to provide a judicial

remedy for unintentional discrimination by no means leaves

? 42 U.S.C. §2000d-1.

> See Alexander v. Choate, 469 U.S. 287, 293-94 (1985) (“Title VI. .

. delegated to the agencies in the first instance the complex determination

of what sorts of disparate impacts upon minorities constituted sufficient

social problems, and were readily enough remediable, to warrant altering

the practices of the federal grantees that had produced those impacts.”’).

individuals without legal recourse. Federal agencies have

used their authority under Title VI to allow private persons to

file administrative complaints. The U.S. Department of

Transportation (“DOT”), for example, provides a complaint

and investigation procedure available to private persons:

"Any person who believes himself or any specific class of

persons to be subjected to discrimination prohibited by this

part may by himself or by a representative file with the

Secretary a written complaint.”*

This DOT process allows private persons to obtain relief

from discriminatory conduct. DOT may cut off financial

assistance to a recipient and may direct the recipient to take

affirmative steps to remedy the discrimination as a condition

of future financial assistance.’ Private persons may also file

a complaint with the Justice Department ("DOJ").° Neither

Martha Sandoval nor others in her class ever filed a

complaint with DOT or DOJ, even though these avenues

have always been available to them.

Because of the availability of an administrative

enforcement scheme under which a private person may

obtain relief, this Court need not create a private night of

action to enforce the Title VI disparate impact regulation.’

*49 C.F.R. §21.11(b).

5 49 C.F.R. §21.19(f). The only remedy not provided under DOT's

Title VI regulations is monetary compensation, but a monetary remedy is

also not provided in the statute. In any event, the absence of a money

damages remedy in an administrative enforcement scheme does not mean

that a private right of action must be inferred.

® 28 C.F.R. §42.107(b). | |

? The lower courts have held that there is no private right of action to

enforce the grant assurances Congress and the Secretary of

Transportation require as a condition of receiving an airport improvement

grant under the Airport and Airway Improvement Act, 49 U.S.C.

§§47106, 47107, primarily because Congress created an administrative

enforcement scheme, under which interested persons may seek redress.

B. A Judicially Created Right of Action Would

Improperly Bypass the Conditional Authority

Congress Delegated To the Executive.

Allowing a private right of action to enforce the disparate

impact regulations promulgated by the U.S. Departments of

Transportation and Justice would circumvent the limited

authority Congress delegated to the Executive Branch.

Although Congress authorized federal agencies to enforce

violations of Title VI's ban on discrimination, Congress

circumscribed that authority in two respects. First, an agency

may find that a grant recipient discriminated on the basis of

national origin only after providing notice and an opportunity

for a hearing.’ Second, grants may not be terminated or

denied pursuant to such a finding until the agency notifies the

House and Senate oversight committees, provides Congress

with a full report of “the circumstances and grounds for such

action,” and waits thirty days to give Congress time to review

the report.’

These statutory procedures are intended to ensure that an

agency's finding of discrimination is well-founded and

thoroughly considered. They both afford recipients basic due

See, e.g., Northwest Airlines, Inc. v. County of Kent, 955 F.2d 1054 (6"

Cir. 1992), aff'd on other grounds, 510 U.S. 355 (1994); Interface Group,

Inc. v. Massachusetts Port Auth., 816 F.2d 9 (1" Cir. 1987); Montauk-

Caribbean Airways, Inc. v. Hope, 784 F.2d 91 (2d Cir. 1986); Arrow

Airways, Inc. v. Dade County, 749 F.2d 1489 (11" Cir. 1985).

* 42 U.S.C. §2000d-1. DOT regulations provide that any finding of

noncompliance must be made expressly on the record, and must be

approved by the Secretary. 49 C.F.R. §§21.13(c)(2), (c)(3), 21.17(e).

* 42 USC. §2000d-1; 49 C.F.R. §21.13(c). Moreover, “[njo action

to effect compliance with title VI of the Act by any other means

authorized by law shall be taken by this Department until” the Secretary

has determined that compliance cannot be secured voluntarily, the

recipient is given notice of its failure and the DOT's proposed action, and

ten additional days elapse during which further efforts are made at

achieving compliance.” 49 C.F.R. §21.13(d).

. 7

process and allow Congress the opportunity on a timely basis

to conduct oversight of DOT's fealty to the intentions of

Congress. Allowing private enforcement of Title VI

regulations denies Congress the contemporaneous oversight

role Congress demanded in Title VI and frustrates several

regulatory provisions intended to ensure a fair and sound

decision as well as to promote an informal resolution of the

matter:

Cooperation and assistance. The Secretary

shall to the fullest extent practicable seek the

cooperation of recipients in obtaining compliance

with this part and shall provide assistance and

guidance to recipients to help them comply

voluntarily with this part.

Investigations. The Secretary will make a

prompt investigation whenever a . . . complaint,

or any other information indicates a possible

failure to comply with this part. . . .

Resolution of matters. (1) If an investigation

_. . indicates a failure to comply with this part,

the Secretary will so inform the recipient and the

matter will be resolved by informal means

whenever possible. °

In this case, DOT provided no assistance or guidance

regarding Alabama's compliance with Title VI regulations in

the administration of its drivers’ tests. At no time after

Alabama began administering the tests only in English did

DOT provide any notice that Alabama was not in compliance

with Title VI or regulations promulgated thereunder. Indeed,

other than participating at the Court of Appeals through the

Department of Justice, DOT has been silent throughout this

proceeding. A fortiori, Alabama was not afforded any

10 49 C.F.R. §§ 21.9%(a), 21.11 (c), (d).

opportunity informally to work with DOT to resolve any

concerns the Department might have.

C. Private Enforcement of Disparate Impact

Regulations Would Deny Recipients DOT’s

Informal Resolution Process.

Before Alabama is called to task for alleged

noncompliance with Title VI in administering its driver

license tests, it is incumbent on DOT or DOJ in the first

instance to evaluate whether Alabama's practice violates Title

VI. That neither DOT nor DOJ has done so is not surprising,

given the attenuated relationship between DOT's financial

assistance to the Alabama Department of Transportation and

Alabama's practice of conducting its driver tests only in

English."' Moreover, this is also not surprising in light of the

fact that throughout the Executive Branch of the Federal

Government, Executive departments and agencies, most

notably DOT and DOJ, require the use of English language

in a wide variety of programs and activities.

Even if DOT or DOJ were to conclude that Alabama's

practice violated either department's Title VI regulations,

Section 601 of the statute itself requires the agency to notify

the recipient of the noncompliance and determine whether

compliance may be secured voluntarily, before taking any

action against the recipient.

'! Alabama has questioned whether there is a sufficient nexus

between the financial assistance provided the Alabama Department of

Transportation and the State's administration of driver tests. Alabama

has not received any federal financial assistance in support of the

administration of its driver tests. Cf 42 U.S.C. § 2000d-1 (“[SJuch

termination or refusal shall be limited to the particular political entity, or

part thereof, or other recipient as to whom such a finding has been made

and, shall be limited in its effect to the particular program, or part thereof,

in which such noncompliance has been so found{.]"’).

Neither DOT nor DOJ has provided Alabama with any

guidance whatsoever addressing the administration of any

program which conditions a license or permit in furtherance

of public health and safety on a person's English language

proficiency. Likewise, there is no rule, guidance, or advice

questioning the exclusive use of the English language in

administering a transportation safety project or program.

Appendix C of Part 21 contains a non-exhaustive list of

examples illustrating the application of the non-

discrimination provisions of Title VI to federally assisted

programs of several modal administrations within DOT,

including the Federal Highway Administration (“FHA”).

The examples pertain to selection of contractors; relocation

payments and relocation assistance; access to and use of

public accommodations and publicly available services

provided to the traveling public and business users (e.g.,

eating, sleeping, rest, recreation, and vehicle servicing),

employment practices on highway construction and other

projects; and location, design, or construction of a highway.

None of these FHA examples concerns State-administered

public safety programs.”

Allowing a private right of action that bypasses the

congressionally-mandated enforcement scheme deprives

grant recipients of the procedural protections contained in the

statute and recited above. Moreover, private enforcement of

Title VI disparate impact regulations is divorced from the

informal agency resolution process. Accordingly, agency

efforts at achieving voluntary compliance, which are required

under DOT and DOJ regulations, may well not be expended

in connection with a private lawsuit. Even if DOT decides to

get involved in the litigation, the requirements to seek the

approval of the Secretary and to notify Congress are

frustrated.

12 49 C.F.R. Part 21, App. C(a)(2).

Private enforcement of Title VI disparate impact

regulations would also allow private litigants to pursue

enforcement in situations where the federal agency with

“[p]rimary responsibility for prompt and vigorous

enforcement of Title VI" has elected not to do so. While

DOJ may believe that the enforcement of Title VI by “private

attorneys general” is a good idea, Congress deputized only

departments and agencies, not private persons, to enforce the

Civil Rights Act of 1964." Further, there is no apparent

control mechanism in Title VI or implementing regulations

to ensure that such private attorneys general are- not

advocating an interpretation or taking an enforcement action

contrary to the interests of the granting agency or of the

Federal Government generally.

Finally, the carefully conditioned delegation of

rulemaking and enforcement authority to Federal agencies,

the absence of any express grant of a private cause of action,

and the complex nature of disparate impact allegations

Suggest that Congress intended that Federal agencies would

develop expertise and exercise sound judgment to implement

Section 602, whether by rulemaking or adjudication."®

328 CER. § 50.3(b).

'* The proscription on discrimination in Title VI is in Section 601,

which this Court has held prohibits only intentional discrimination. See

Alexander v. Choate, 469 U.S. at 293 (summarizing opinions in Guardian

Ass'n v. Civil Service Comm'n, 463 U.S. 582 (1983)). Disparate impact

regulations are agency creatures promulgated under section 602. Even if

private enforcement of the statutory ban on intentional discrimination

continues to be recognized. See Cannon v. City of Chicago, 441 U.S. 677

(1979) (private right of action under Title IX) private enforcement of

disparate impact regulations, a far more complicated matter, is

unwarranted.

'S See Interface Group, 816 F.2d at 14-15 (Breyer, J.) (“[T)he statute

[now codified at 49 U.S.C. §40103(e), prohibiting an exclusive right at an

air navigation facility] as a whole provides an administrative and judicial

enforcement scheme that suggests at least some Congressional wish for

D. Judicial Recognition of a Private Right of

Action Would Jeopardize Legitimate English

Language Requirements, With Which the

Code of Federal Regulations Is Replete.

Recognizing a private right of action here would lead to

the anomalous result whereby a Federal grant recipient is

prohibited from requiring English language proficiency as an

element of a public safety program, while the Federal

granting agency regularly requires such Proficiency in

comparable programs. Moreover, the 11 Circuit's decision

allowing a challenge to Alabama's practice of conducting

regular driver tests in English calls into question a myriad of

English language requirements throughout the Code of

Federal Regulations.

If this Court agrees with the Court of Appeals that

language is a proxy for national origin — a proposition with

which amicus strongly disagrees — it follows that English

language requirements throughout the Executive Branch will

be found to have a disparate impact on those who cannot

read, write, speak or understand the English language.

Whatever codification of Lau Congress is thought to have

enacted in bilingual education legislation, Congress cannot

fairly be said to have intended to invalidate a host of English

language requirements imposed by Federal, State, and local

governments in furtherance of public health and safety.

For more than two decades after the decision in Lau DOJ

and other Federal agencies have not seen fit to repeal or relax

their own English language requirements. In a small number

of discrete areas, as described infra, Congress or an

_ Executive agency imposed affirmative obligations to provide

for certain bilingual services. But in matters that affect the

an element of administrative expertise at the enforcement stage, an

expertise that tends to be lost when private parties can enforce the statute

directly in court.”).

public safety English language requirements have essentially

remained untouched, because English language proficiency

clearly serves the public interest in health and safety.

Heretofore, the risk of invalidating State or local English

language requirements was minimal, because _ the

interpretation and enforcement of the disparate impact

regulations under Title VI was entrusted to DOJ and the

Executive agencies respectively, the very agencies whose

body of regulations feature many explicit English language

requirements and whose day-to-day dealings with private

persons are conducted in English. Moreover, any inclination

of an Executive agency to extend the reach of Title VI is

subject to mandatory congressional oversight. However, if

and when a private right to enforce disparate impact

regulations is recognized by this Court, every Federal district

court potentially assumes the authority to interpret and to

enforce Title VI regulations at the request of private parties.’

_ The proliferation of legal proceedings unleashed by this

Court's recognition of a private right of action would likely

result in judicial rulings similar to the Court of Appeals

opinion in this case flatly at odds with the substantive

regulations of both DOJ and DOT. How is it that Alabama's

English-language drivers’ test is illegal, whereas facility with

the English language is a DOT prerequisite to operate an

aircraft or commercial motor vehicle, or to serve as an able

seaman? How is it that Alabama's English-language drivers’

test is illegal, whereas access to U.S. agency rulemaking and

adjudicative processes, including those of the Justice

'e Recently, DOJ issued guidance which approvingly cites the court

of appeals decision in this case as a case “outside of the educational

context” applying the nondiscrimination provision of Title VI to English-

only rules and practices. 65 Fed. Reg. 50123, 50124 n.6 (Aug. 16, 2000).

However, «imicus is not aware of any prior DOJ or DOT order or

guidance applying the disparate impact regulations to English-only

requirements relating to the public health and safety.

Department — 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 and others in her class 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 discrimination.

While the Court of Appeals determined that Alabama had

failed to establish a public safety basis for its English-

language practice, amicus believes this determination is

contrary to reason and logic, regardless of what the lower

courts thought of Alabama's showing. Driving a motor

vehicle poses everyday risks to the safety of drivers, their

passengers, pedestrians, and the occupants of other vehicles.

The purpose of requiring would be drivers to pass a test is to

reduce the risk that ignorance of the rules or the road will

cause am accident. Among the rules of the road is a general

rule to observe and obey traffic signs. In Alabama and

throughout the United States, these signs are in English.

Thus, Alabama's test for obtaining a driver's license is plainly

administered in furtherance of the public safety.

A survey of the United States Code and Code of Federal

Regulations would reveal more than four hundred references

to the English language.’ While some of these references

re a

'’ These explicit references to the English language in essence reflect

the wniv@rsal piéctice 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 m English and our

require the Federal, State or local government, or 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, in order for a person to

participate in an agency rulemaking, seek a determination by

a federal agency, or 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 notices in the language of one or more non-English

speaking persons 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 failure of the Immigration and

Naturalization Service 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

legislatures conduct their business in English.” See Sen. Hayakawa

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

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

18 DOT's 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), and 49 C.F.R. §571.213

(child restraint systems); 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 (tariffs and other

documents filed with the Office of the Secretary).

the human race, and then select the proper one

for each potential deportee. No court to our

knowledge has ever 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 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

19 See 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); Soberal-Perez v. Heckler, 717 F.2d

36, 43 (2d Cir. 1983) (failure to provide notice to Social Security

claimants in Spanish did not violate due process); Frontera v. Sindell,

522 F.2d 1215 (failure to conduct Civil Service Commission exam in

language other than English did not violate Constitution).

2014 C.F.R. §61.103. Title 14 of the Code of Federal Regulations

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, §65.101; and parachute rigger,

§65.113.

21 46 C.F.R. §12.05-3(a).

similar requirements.” The Federal Highway Administration

("FHwA") 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,”

22 E.g., 46 C.F.R. §12.10-3(b) (lifeboatmen); 46 C.F.R. §12.15-3(c)

(engine department personnel). i

2) 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).

Although the FHwA announced a couple of years ago that it was

reviewing this requirement in light of the potential for disparate impact,

see 62 Fed. Reg. 45200 (1997), no decision has been forthcoming. The

fact that the FHwA has authorized administration of the commercial

driver's license test in foreign languages, id., does not detract from the

fact that the regulation imposes an English proficiency requirement.

4 See, eg. 9 C.F.R. §§317.2(b), 381.116(a) (meat and poul

products labeling). -

5 See, e.g., 15 U.S.C. §1261(p)(non-English language label on

hazardous substance is “misbranded”); 15 U.S.C. §1278(c)(cautionary

statement on toys and games); 16 CFR §300.7 (wood products); 16

C.F.R. §301.3 (fur products); 16 C.F.R. §303.4 (textile fiber products); 16

C.F.R. §307.5 (smokeless tobacco product warnings).

26 Title 40 of the Code of Federal Regulations includes forty separate

provisions requiring labels, reports and other information to be written in

English, including 40 C.F.R. §§86.091-35, 86.092-35(a), 86.093-35,

86.094-35, and 86.095-35 (certain cars and trucks); 40 C.F.R.

§156.10(aX3)(pesticides); 40 C.F.R. §204.55-4(a)(4) (portable air

compressors).

2? See, e.g., 21 C.F.R. §101.15(c)(1)( food); 21 C.F.R. §201.15(c)(1)

(drugs); 21 C.F.R. §501.15(c)(1)animal food); 21 C.F.R. §607.40(b)

(blood products); 21 C.F.R. -§701.2(b)(1 (cosmetics); 21 C.F.R.

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

require labels, reports, and manuals to be written in English.

The DOJ Rules of Practice governing 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 Court provide that all foreign

language documents must be accompanied by an English

translation.”

Amicus is aware of a handful of specific federal

requirements, some imposed by regulation and some by

statute, directing recipients of federal funds to take

affirmative steps to accommodate non-English speaking

persons. A survey of the limited number of bilingual

programs and activities required or provided by statute or

regulation confirms that not one involves matters of the

public health and safety. Rather, they are limited to voting

rights; access to education opportunities;* access to

§801.15(c)(1 medical devices); 21 C.F.R. §1010.2(b)electrical products

performance certification).

28 See, e.g, 27 C.F.R. §4.38(c)(wine); 27 C.F.R. §5.33(c)(distilled

spirits); 27 C.F.R. §47.52(f)(importation of arms and ammunition).

2928 C.F.R. §68.7(e). Also, all submissions to DOJ required by the

Foreign Agents Registration Act must be in the English language. 28

C.F.R. §5.206(a). Many agencies expressly require all written

submissions to be in the English language. See, e.g., 15 C.F.R. §766.6

(Bureau of Export Administration enforcement proceedings); 35 U.S.C.

§361(c)(international patent applications); 17 C.F.R. §230.403(c) (SEC

Regulation C registration statement)(one of 22 similar SEC requirements)

31 See 28 U.S.C. §§1973b, 1973aa, 1973aa-la (requiring bilingual

voting materials to limited-English proficient persons, but only in States

or political subdivisions where more than 5% or more than 10,000 of

employment training opportunities; access to health care

services; access to social security and disability programs”;

access to other social welfare programs;” and access to the

voting-age citizens are members of a single language minority and are

limited-English proficient). See also 32 C.F.R. §46.6(b)(4)(Defense

Department rule requiring immediate assistarce in “appropriate

language” to any person in need of assistance in reading or understanding

English).

2 See, e.g., Bilingual Education Act, 20 U.S.C. §7410 et seq.; 34

C.F.R. Part 100, App. B (vocational education remedial plans); 20 U.S.C.

§1703 (failure of educational agency to take appropriate action to

overcome language barriers that impede equal participation in elementary

and secondary schools may constitute a denial of equal educational

opportunity on account of national origin).

See, e.g, 29 U.S.C. §1643 (youth training program to overcome

serious barriers to employment faced by persons with limited-English

language proficiency).

4 See, e.g. 42 U.S.C. §1396s(c)(distribution of pediatric vaccines

with respect to any population of vaccine-eligible children a substantial

portion of whose parents have a limited ability to speak English); 42

U.S.C. §300u(b)(bilingual or interpretive services to improve the health

of racial and ethnic minority groups); 42 U.S.C. §11707 (health care for

native Hawaiians), 42 C.F.R. Parts 51 and 56 (grants for Public Health

Service community and migrant health programs and services to include

bilingual assistance), 42 C.F.R. §431.635(d)(3)(requiring effective

information to those who cannot read or understand the English language

regarding the coordination of Medicaid with the Special Supplemental

Food Program for Women, Infants, and Children).

S See, e.g., 42 U.S.C. §§403(1), 404(b), 423 (Federal Old Age,

Survivors and Disability Insurance benefits (Part 404); 42 U.S.C.

§1383(c) (Supplemental Security Income for the Aged, Blind, and

Disabled); 29 C.F.R. §§2520.102-2(c), 2520.104b-10(e) (notice in non-

English language common to plan participants who meet a minimum

percentage or number of non-English language literacy in same language,

offering language assistance in understanding ERISA plans and

disclosure requirements); 29 C.F.R. §4011.10(e)same for Pension

Benefit Guaranty Program plans and disclosure requirements).

% See, e.g, 42 U.S.C. §9805 (Urban and Rural Special Impact

Programs of assistance to persons disadvantaged in labor market because

of limited English language abilities); 7 C.F.R. §272.4(b)(bilingual

court system.” There is no similar specific requirement

imposed by DOT or DOJ on Alabama or any other State to

administer public safety programs in any language other than

English or to require the granting of permits to engage in

activities with potential risk to the public to those who do not

read, speak, or understand English. -

The generic English language provision relied upon by

the Court of Appeals, 28 C.F.R. §42.405(d), is not reflected

in DOT's Title VI regulations or guidance. That regulation,

entitled, “Public dissemination of title VI information,”

requires grant recipients to take “reasonable steps” to provide

foreign language assistance where a significant number or

proportion of non-English language persons likely to be

directly affected by a federally assisted program “need

service or information in a language other than English in

order effectively to be informed of or to participate in the

program.” Other than this case, amicus doubts that DOJ has

relied on this regulation to challenge a State's English

language proficiency requirement where the requirement

serves a legitimate public health and safety interest.”

services to persons of single-language minority for State administration

of Food Stamp program); 7 C.F.R. Part 1930, Subpart C, Exh. B (Rural

Housing Service lease agreements and occupancy rules written in non-

English language “common to a project area”).

” See 28 U.S.C. §1827(c)interpreters provided in court proceedings

when the Director of the Administrative Office of the U.S. Courts

determines a need for certified interpreters in a particular language).

% We also 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, given that what steps are

“reasonable” depends on “the scope of the program and the size and

concentration of such [non-English language] population,” yet this is the

clear implication of the 11" Circuit's ruling.

Il. LAU V. NICHOLS NEEDS CLARIFICATION.

A. Lau Is Premised on English Being the Common

Language of the United States.

Aside from the obvious safety issues involved in having

licensed operators of moving vehicles capable of reading

road signs and understanding directions from police, fire, and

rescue Officers, the importance of understanding English has

always been fundamental to American life. The Court should

seize this opportunity to acknowledge what the late linguistic

expert Senator Hayakawa identified twenty years ago as a

fundamental ingredient in the great American melting pot

and “what is already a political and social reality: That

English is the official language of the United States.”

At least half of the United States now have official

English constitutional or statutory provisions; most if not all

federal and state agencies customarily communicate only in

English; and private employers impose English language

rules in their workplaces. Although a handful of court cases

would indicate otherwise, this linguistic phenomenon is the

antithesis of invidious discrimination on the basis of national

origin. As explained by Senator Hayakawa, the purpose of

official English 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.”

* Appendix A at Al. One of the first American Presidents to

recognize the need to unify this diverse Nation through our common

language was none other than the author of our Declaration of

Independence, who in his “Prayer for the Nation,” exhorted God to

“fashion into one united people the multitudes brought hither out of many

kindreds and tongues.” “Thomas Jefferson’s Prayer for the Nation,”

reprinted in The Heritage Foundation Quarterly Report (Spring °99) ar

www heritage.org/ membership/ hmn/ Spring99/ publications. html.

The only way for an immigrant to profit from everything

America has to offer is to learn our common language. The

sooner the assimilation, the faster immigrants can empower

themselves to function fully as members of American

society. It is thus only fitting that an immigrant serves as

Chairman and CEO of U.S. English.

Some opponents of official English claim that laws

requiring Americans to communicate with their government

in English are exclusionary. These claims tur Senator

Hayakawa’s empowerment purpose, which is still the

guiding light of U.S. English, on its head. As this Court

correctly pointed out in Lau, which involved Chinese-

speaking residents of San Francisco receiving “fewer benefits

than the English-speaking majority” from the public school

system, the solution is not to teach the minority in Chinese,

but to “take affirmative steps to rectify the language

deficiency,” i.e., teach the children our common language.

When opponents of official English, and any courts that

accept their arguments, suggest that official English laws are

exclusionary, they send an implicit message that immigrants

do not need to learn English in order to participate in the

opportunities of American life. This misguided view

perpetuates a language deficient underclass within the United

States of America. Trapped in linguistic ghettos, those who

cannot speak or read English will never be full participants in

the American “melting pot” experience.

In the preface to his 1828 American Dictionary of the

English Language, Noah Webster explained the necessity

“that the people of this country . . . have an American

Dictionary of the English Language[:] Language is the

expression of ideas; and if the people of one country cannot

preserve an identity of ideas, they cannot retain an identity of

language.” Webster predicted that “our language, within two

centuries, will be spoken by more people in this country, than

any other language on earth, except the Chinese.” /d.

In the last two centuries, English has become the global

means of communication. English has more recently become

the common language of the World Wide Web. English

remains the key to opportunity in America. It empowers

immigrants and makes us truly united as a people.

B. Lau’s Discussion of Remedy was Confined to

the Terms of Federal Guidelines Requiring

Affirmative Efforts to Train Non-English

Speaking Students to Speak English.

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

States would say about the federal “law” Alabama 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."

These federal “regulations and interpretive guidance” to

which the United States referred below are neither express

legal authority nor the “Rule of Law.”

*! Brief for the United States in Sandoval v. Hagan, 197 F.3d 484

(11" Cir. 1999), filed January 11, 1999, at 6.

#2 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

The lack of express legal authority for these “regulations

and interpretive guidance” 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 a remedy that

accommodates the non-English speaking persons but neither

compromises the public health or safety nor imposes

unreasonable burdens on the grant recipient. Here, the only

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 languages other than English.” If it

indeed is a violation of Title VI 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 avould they not be

entitled to take the test in their own native language?”

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. V1, §11 (1688) (C.H. & W.A. Oldfather trans.

1934) (“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).

* The district court initially ordered Alabama to make “reasonable

accommodations” to non-English speaking applicants, without specifying

what accommodations would suffice.

“ Cf 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 this case and my

concurrence is to be understood accordingly.”).

C. Lau Should Only Be Applied as Controlling

Authority to Strike Down a State Law, If at

All, Where There Is a Clear Congressional

Statement of a Condition Sought to Be

Imposed on the Receipt of Federal Funds.

“Congress attaches conditions to the award of federal

funds under its spending power, U.S. Const., Art. I, §8, cl.

I[.]” Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274,

287 (1998). When the Court decided Lau, it mentioned but

did not define any restrictions on the “spending power” of

Congress: “Whatever may be the limits of that power, . . .

they have not been reached here.” 414 U.S. at 569 (internal

citations omitted). Since deciding Law, as discussed below,

the Court has addressed “spending clause” restrictions, at

least implicitly in the context of construing statutory

ambiguities. Amicus respectfully urges the Court to clarify

its ruling in Law in light of its subsequent ruling that “if

Congress intends to impose a condition on the grant of

federal moneys, it must do so unambiguously.” Pennhurst

State School & Hosp. v. Halderman, 451 U.S. 1, 17

(1981)(citations omitted).

As there is no clear congressional statement that receipt

of DOT funding forbids Alabama from offering its drivers

license test only in English pursuant to its 1990 constitutional

amendment mandating that “The legislature and officials of

the state of Alabama shall take all steps necessary to insure

that the role of English as the common language of the state

of Alabama is preserved and enhanced. .. .” * Lau cannot be

controlling authority.

*5 Ala. Const. amend. 509.

IV.WHEN SPENDING CLAUSE LEGISLATION

FUNCTIONS AS A QUASI-CONTRACT BETWEEN

CONGRESS AND A STATE, ANY AMBIGUITIES

SHOULD BE CONSTRUED CONTRA

PROFERENTEM, L.E., AGAINST CONGRESS

The 11" 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,” 197 F.3d at 495, is contrary to the rule of quasi-

contractual statutory construction applied by this Court in

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

ambiguous words be construed contra proferentem, as well

as contrary to two related rules of construction applied by

this Court recentiy in a federalism statutory construction

context. Vermont Agency, 120 S. Ct. at 1870.

A. Quasi-Contractual Ambiguities in Title VI

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 either 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, 451 U.S. at 17

(citations omitted). |

In Heth, a customs duties collector challenged the

retroactive application of a statutory reduction of his

commission level. The Attorney General claimed that the

new rate should apply to all duties collected after the

effective date of the statute. The Customs collector claimed

entitlement to the previous statutory commission level on the

grounds that Congress’ statutory reduction of his commission

was ambiguous as to what “point in time” it should take

effect. Justice Johnson explained:

The words of the act, “arising on goods

imported,” although in themselves very indefinite

in point of time, will receive a_ precise

signification in this respect, by supplying the

words “heretofore,” to give them a past, or

“hereafter,” to give them a future signification.

If it be necessary that the court should make an

election between these words, in order to

complete the sense, its choice will be

immediately determined by recurring to two well

known rules of construction, [namely,] that it

ought to be consistent with the suggestions of

natural justice, and that the words should be

taken most strongly “contra proferentem.”

7 U.S. (3 Cranch) at 409; id. at 413 (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.”’); cf.

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 548 (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.”).°

At least five Justices have recently reaffirmed the

precedential value of Heth, for this Court's long-standing

(D.C. Cir. 1996) (buttressing the appellate court's federal government-

private marty contractual analysis with contra proferentem).

recognition of “the injustice of interpreting a statute to reduce

the level of compensation for work already performed,”

Martin v. Hadix, 527 U.S. 343, 368-69 (1999) (Ginsburg, J.,

and Stevens, J., concurring in part and dissenting in part),

and for “the meaning of the ‘clear statement’ retroactivity

rule from the earliest times.” Landgraf v. USI Film Prods.,

511 U.S. 244, 278-88 (1994) (Scalia, J., Kennedy, J., and

Thomas, J., concurring in the judgments).

In this case, the Title VI contractual language which

allegedly imposes a legal proscription against implementing

Alabama’s official English constitutional amendment, at least

with regard to drivers license testing, is reproduced in

Appendix B in its entirety.” In summary, the grant assurance

language mirrors the nondiscrimination language of Title VI,

and incorporates by reference DOT's “specific requirements.”

No reasonable State official would understand these grant

assurances as a consensual exposure by a State to “private

attorney general” lawsuits alleging disparate impact or any

other form of unintentional discrimination. Amicus

respectfully suggests that when this Court focuses on the

legislative intent behind Section 602 as applied to these

specific grant assurances in 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 Congress will not implicitly attempt to

impose massive financial obligations on the States.”

” See 49 CFR §21.7(a)(1) (“Every application for Federal financial

assistance to carry out a program to which this part applies, . . . shall, as a

condition to its approval and the extension of any Federal financial

assistance pursuant to the application, contain or be accompanied by, an

assurance that the program will be conducted or the facility operated in

compliance with all requirements imposed by or pursuant to this part.”’).

Pennhurst, 451 U.S. at 16-17. “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,

120 S. Ct. at 1870 (citations omitted).

B. Ambiguities in Spending Clause Legislation

Should Not Be Construed to Impinge Upon

Powers Reserved to the States Respectively.

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, 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 n.13 (citation omitted).

At least one such unresolved “constitutional difficulty” is

squarely presented in this case: “[{A]n administrative

agency's power to regulate in the public interest must always

be grounded in a valid grant of authority from Congress.”

FDA v. Brown & Williamson Tobacco Corp., 120 S. Ct.

1291, 1315 (2000); see Loving v. United States, 517 US.

748, 771 (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

id. 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 ought to have but what powers in fact have been

given by the people.” 297 U.S. at 63.

In dissent in South Dakota, Justice O’Connor, while

“subscrib[ing] 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, 297 U.S. at 66), 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 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's “English-only rule Guidelines,”

guidelines that the 9" Circuit rejected in Garcia vy. Spun

Steak Co., 998 F.2d 1480, 1489 (9"" Cir. 1993), and the 4"

Circuit has called into question.”

The Court applied its Butler federalism analysis to strike

down the Low-level Radioactive Waste Policy Amendments

of 1985 as crossing the “line distinguishing encouragement

#8 29 C.F.R. §1606.7(a).

* Long v. First Union Corp. of America, 894 F. Supp. 933 (E.D. Va.

1995) (“This Court . . . does not find the language of Title VII supportive

of the EEOC's conclusion.”), aff'd 86 F.3d 1151 (4th Cir. 1996).

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.” /d. at 178.

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 ought to

have but what powers in fact have been given by the people”

297 U.S. at 63 (quoted in 505 U.S. at 157); cf. Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 179-80 (1803) (“[T]he

framers of the constitution contemplated that instrument, as a

rule for the government of courts, as well as of the

legislature... . [CJourts, as well as other departments, are

bound by that instrument.”). 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 nondiscriminatory policies that encourage

facility in our common language, English, such as the State

constitutional provision and sound policies underlying

Alabama’s English language drivers license testing practice.

CONCLUSION ‘

Accordingly, this Court should reverse the 11"" Circuit.

Respectfully Submitted,

Joseph E. Schmitz*

Gregory S. Walden

Matthew F. Stowe

PATTON BOGGS LLP

2550 M Street, N.W.

Washington, DC 20037

(202) 457-6086

November 13, 2000 *Counsel of Record

APPENDICES

APPENDIX A

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 | 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 originally designed to

help non-English-speaking children learn English quickly so

they could join the mainstream of education and 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 | 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, | know this from personal

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

limited to the Japanese-speaking community, and no matter

how talented I was, | 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 nght insofar as their support

by local communities, but not by the taxpayer.

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.

So,‘at ¢he same time that | declare English to be the

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

discourage foreign language studies.

The ability to forge unity from diversity makes our

society strong. We need all 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.

APPENDIX B

“General Provisions for MCSAP Agreement”

Grant Agreement between the Federal Highway

Administration and Alabama Department of Public Safety

(Exhibit I to Alabama Summary Judgment Memorandum)

10. Civil Rights Act: The recipient shall comply with

Title VI of the Civil Rights Act of 1964 (P.L. 88-352), and

in accordance with Title VI of that Act, no person in the

United States shall on the ground of race, color, or national

origin, be excluded from participation in, be denied that

benefits of, or be otherwise subjected to discrimination

under any program or activity for which the recipient

received Federal financial assistance and shall immediately

take any measures necessary to effectuate this Agreement.

It shall comply with Title VI of the Civil Rights Act of

1964 (42 U.S.C. 2000d) prohibiting employment

discrimination where:

(a) The pnmary purpose of and instrument is to

provide employment, or

(b) Discriminatory employment practices will result

in unequal treatment of persons who are or should

be benefiting from the grant-aided activity.

11. Nondiscrimination: The applicant/recipient hereby

agrees that, as a condition to receiving any Federal

financial assistance from the Department of Transportation,

it will comply with Title VI of the Civil Rights Act of 1964

(78 Stat. 252, 42 U.S.C. 2000d), related nondiscrimination

statutes, and applicable regulatory requirements to the end

that no person in the United States shall, on the grounds of

race, color, national origin, sex, handicap or age, be

excluded from participation in, be denied the benefits of, or

otherwise be subjected to discrimination under any

program or activity for which the applicant/recipient

receives Federal financial assistance. The specific

requirements of the United States Department of

Transportation standard Civil Rights assurances with regard

to the States’ highway safety programs (required by 49

CFR 21.7 and on file with the U.S. DOT) are incorporated

in this grant agreement.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.