Language access rights

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This article is part of the community project
Project:Asian American Public Policy
by students at the University of Maryland.

Articles are under construction until late May, so please refrain from editing until then.

Millions of Americans are unable to read important legal documents or communicate with officials. This is not because they are illiterate. Instead, these people fall victim to a lack of language access. Without proper language access, many people who are fluent in another language, such as Spanish or Chinese, fail to gain access to hundreds of government programs and public works. This is because these individuals are not literate in the language of federal employees or written documents. Federal, State and Local governments have all attempted to address this problem by creating legislation that provides access for these individuals. Below, there are outlines of laws and other legislation, which retain to the issue of language access rights.

Contents

History of language access rights in the United States

Controversial "English Only" signs, like this one, have received national attention.

Language access has been a long contested issue in the United States. In 1780 President John Adams “proposed to establish an official Language Academy to set standards for English,” but Congress decided that such measures would be undemocratic. Adam’s purpose for a Language Academy was effectively to set standards for the English language in America and to foster the development of English as the official language of the United States.[1]

Historically however, the political agenda in the United States has not universally aimed to make English the only language of the United States. According to several sources, some states supported and translated “state laws, Constitutions, and legislative proceedings” into languages such as Welsh, Czech, Spanish, French, and German during the 19th century. In addition, it was not until 1906 that it became mandatory to pass an English proficiency test to become a U.S citizen.[2] In 1964, the Civil Rights Act passed under President Johnson stipulated that discrimination on the basis of “national origin” was illegal.[3]

Further laws and court cases extended English proficiency as an unacceptable form of discrimination. There have however been numerous attempts to make English the official language. In 1923, Congress was presented with a bill to make “American” the official language. In that year the Bill was defeated on a Federal Level but adopted by the State of Illinois.[4] In 1981, Senator S.I. Hayakawa, an immigrant from British Columbia, presented Congress with a Bill to make English the official language. The bill did not pass.[5] In more recent years Congress has had at least one Bill presented in nearly every session to make English the official language. Thus far, none of the measures have passed.[6] At State levels however, there has been a large movement to declare an official language. 30 states have adopted resolutions to make English the official State language.[7]

While much has been done at the state level to limit the expansion of language access laws, The Federal Government has traditionally sought to extend the role of government to enhance and broaden language access. As noted above, the Civil rights act of 1964 has been applied to language access to prevent discrimination on the basis of English proficiency. Measures such as Executive Order 13166, 45 C.F.R. §80.1 of The United States Department of Health and Human Services Regulations, and 42 C.F.R. §438.10 of the Medicaid Managed Care Requirements have all expanded upon the role of the Civil Rights Act of 1964 with regard to providing language services for non-English speakers at a Federal level.[8]

While the Federal Government has made tremendous strides towards providing language access with regard to government institutions, there has been noteworthy legislation passed on State and local levels. States such as New York, California, and Hawaii have passed numerous laws providing language access to their citizens. In addition, cities such as New York, San Francisco, Oakland, and Washington D.C. have enacted local legislation to provide similar rights. In Washington D.C. for example the D.C. City Council passed the D.C. Language Access Act to provide language access and translation services for all city government institutions in order to create greater access to those institutions.[9]

The response to increased language access has not been altogether positive however. The DC Language Act for example drew some criticism from some groups such as U.S English, in favor of "English only." These groups cited financial and implementation issues surrounding the Act. With specific regard to the DC Language Act, it was estimated that the cost to taxpayers would be over $7 million. In addition, the Act was criticized for practical impossibilities in that it would be difficult to accommodate for the "hundreds of languages spoken in the D.C. area."[10]

Conclusively, language and language access has been a long standing issue dating back to nearly the signing of the Constitution in the United States. Today the issue seems to be most easily categorized as a division between those in favor of the expansion of language access laws to include all people in the democratic process, and those in favor of an “English only” movement to limit the role of government in providing language access and translation, and make English the official language in the United States.

Current federal laws and regulations

The 14th Amendment to the United States Constitution

There are hundreds of different dialects spoken in the United States, yet only English is utilized for many Federal documents and programs.

Passed in 1868 as part of Reconstruction, the 14th Amendment to the Constitution is one of the most important and legally relevant pieces of legislation in the history of the United States. It effectively defined citizenship within our country, and it guaranteed every citizen equal protection under the law. Originally, it was geared towards protecting newly free African Americans. However, since its adoption, the 14th Amendment has proven to be relevant to a spectrum of issues including abortion and affirmative action.[11]

Section I of the 14th Amendment states "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This means that the government cannot create legislation that would dampen the rights of American citizens. In the landmark case Brown v. Board of Education (1954) [[12]], the Supreme Court upheld that facilities separated by race, religion, gender or any other signifier, is unconstitutional. Some scholars, such as Lawrence Siegel, have argued that the 14th Amendment extends to language access.[[13]]

Title VI of the Civil Rights Act of 1964

The Civil Rights Act of 1964 was a monumental piece of legislation that determined the illegality of segregation in the United States. The law not only guaranteed the end of segregation in this country but also the legal requirement that incited the widespread beginning of diversity and tolerance in the United States. The legislation was signed into law by President Lyndon Johnson, however President John F. Kennedy argued for the statute when he said, "Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial discrimination."[14] Title VI of this piece of legislation demanded that programs receiving federal funding cease any and all discriminatory practices based upon an individuals "race, color or national origin."[15]

Title VI of the 1964 Civil Rights Act says, "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Previous court cases, such as Alexander v. Sandoval (2001)[16] have interpreted the term "national origin" to include people with limited to no English language skills. Thus the High Court believes that Title VI of the 1964 Civil Rights Act can be applied to issues of language access.

Section 504 of the Rehabilitation Act

Section 504 of the Rehabilitation Act is an often overlooked piece of federal legislation that has meaningful implications in the quest for Language Access Rights. The Rehabilitation Act was passed in 1973 and signed into law by President Richard Nixon. It prohibits federally funded programs and organizations from discrimination based upon a person's disability. The term disability was previously defined under the Americans with Disabilities Act.[17][18]

In May of 2008, the United States Court of Appeals for the District of Columbia issued a decision in The American Council of the Blind v. Robert Paulson, Secretary of the Treasury.[19] The court agreed with the American Council of the Blind and said that the Treasury Department of the United States, discriminated against blind and visually impaired individuals by not issuing currency that is distinguishable by touch. The Court went on to say that section 504 of the Rehabilitation Act specifically addresses this issue. Most languages are spoken, however many (such as American Sign Language) are not. Under the law, there is no difference between these languages. Thus, the Court of Appeals for the District of Columbia believes that section 504 demands that Federal agencies provide accommodations for people with language access issues.

Executive Order 13166

In August of 2000, President George W. Bush signed Executive Order 13166. An Executive Order (E.O.), is a command given by the President to Federal agencies. It is meant to guide the operations of agencies such as the Department of Agriculture or the Treasury. E.O. 13166 was entitled "Improving Access to Services for Persons with Limited English Proficiency" and it was meant to assist persons with limited English proficiency (LEP) in gaining access to Federal programs.[20]

E.O. 13166 requires that Federal agencies assess each program they provide, and ensure that they are all accessible to people with limited English proficiency. This means that programs funded by Federal tax dollars will have alternative documents and interpreters provided for individuals who are not fluent in the English language. In this way, the government hopes to eliminate discrimination within government programs and provide all people, regardless of their native tongue, access to government programs.[21]

Recent and current local legislation

Some cities have already provided legislation to assist their multi-linguistic population

Some cities have implemented language access legislation that provides translations for their local governmental organizations to provide assistance to limited English proficient citizens.

City of San Francisco "Equal Access to Service Ordinance.

Passed in April of 2001, the legislation requires San Francisco to provide translations of all government documents, including minutes and notices at public events. In addition, the bill calls for the utilization of bilingual staff members in public contact positions to insure that information is provided to citizens with limited English proficiency. Such departments that are required to provide translations include Departments of Elections, Emergency Communication, and Juvenile Probation.[22]

The Equal Access Ordinance is a crucial step in providing language access for important government agencies, particularly those that require understanding of the law. San Francisco's population consists of 36% foreign born, 30% of whom are from Asia. Therefore, providing translations for essential documents such as voting ballots and police reports will allow all San Francisco citizens to easily navigate the sometimes confusing governmental system, particularly for those with limited English proficiency.[23]

City of Oakland, "Equal Access Ordinance"

The Equal Access Ordinance of Oakland of May 2001 was the first city in the United States to pass a Equal Access to Service Ordinance. The legislation calls for similar requirements that is found in the San Francisco. City departments translate forms and notices of rights and provide citizens of limited English proficiency assistance when needed. Departments include Financial Service Agency, Fire Service Agency and Office of Retirement. Citizens are also encouraged to call in complaints when they felt governmental agencies did not provide language access.[24][25]

According to the 2000 census, 26.6 percent of Oakland's population were foreign born, two-fifths of whom had entered since 1990[[26]]. Oakland has developed comprehensive legislation that assists their multicultural population. As was true of the San Francisco legislation, the City of Oakland has worked towards providing access to the most important governmental agencies that require language access in order to navigate and fully understand.

D.C. Language Access Act

The District of Columbia's Language Access Act, signed by Mayor Anthony Williams in April 2004, requires government programs, departments, and services to provide written translations of their documents to any non-English speaking community that makes up three percent, or 500 individuals (whichever is smaller) of the population served by the department[27]. In addition, the legislation requires governmental programs to implement a language access plan that is monitored by several government and non-profit committees, including the Office of Human Rights. The organizations require government departments to provide an annual report progress of Language Access Act enforcement[Http://ohr.dc.gov/ohr/frames.asp?doc=/ohr/lib/ohr/pdf/brochures/D.C. Language Access Act of 2004.pdf].

The legislation moves beyond only requiring government agencies to provide translations to actually using committees and non-profit organizations to monitor the progress of the act and ensure that all limited English proficient speakers are being served. Since 1990, D.C.'s immigration population has doubled, and by 2006 the district was home to over one million immigrants[[28]]. The local D.C. government as positively reacted to this large influx by providing language access to non-English speaking immigrants in an effort to assist them in navigating the sometimes confusing government laws and departments.

New York City "Local Law 73"

In 2003, the City of New York, under the jurisdiction of Title VI of the 1964 Civil Rights Act, passed the 'Equal Access to Human Services Act.' The legislation called for the translation of documents as well as the use of bilingual personnel in government agencies such as human resource administrations, which include food stamp offices and medical assistance program offices. Government agencies are also required to screen and hire  bilingual interpreters to further assist citizens with limited or non English proficiency. More specifically, the legislation defines 'covered languages,' as Russian, Arabic, Chinese, Haitian Creole, Korean and Spanish.[29]

New York city is well known for its diverse population, particularly its large influx of immigrants from all over the world. In 2006, 30 percent of New York City population consisted of immigrants, many of whom were from non-English speaking countries such as the Dominican Republic, China, Mexico, Haiti and Russia. The legislation acknowledges the influx of these specific immigrant groups by providing translations in their native languages. Though New York City is home to many more nationalities and languages, the act recognizes its limitations and provides service to its highest immigrant populations.[30]

English Only Movement

The English Only Movement, also known as the Official English Movement, is a political movement that calls for the use of the English language in all governmental documents and operations, through establishing English as the only official language of the United States. This political ideology has been prevalent throughout American history, garnering most attention in the early 20th century with President Theodore Roosevelt, who believed that the establishment of English as an official language would better assimilate newly arrived immigrants. As he stated in 1914, "We have room for but one language in this country, and that is the English language, for we intend to see that the crucible turns our people out as Americans, of American nationality, and not as dwellers in a polyglot boarding-house"[31] Although President Theodore Roosevelt was one of the most notable proponents for the English Only Movement, this ideology is one that has been shared by many in a long-standing debate throughout American history.

History of the English-Only Movement

The English-Only movement can be traced back to the 19th century in its earliest form, as the United States began to grow by acquiring new territories and populations - the influx of these new non-English speaking populations were the first catalysts that called for legislation regarding language rights. While at first, many of these new territories and populations were unrestricted in using their original languages when dealing with state affairs, the movement to make English the official language of the United States became a large and pressing issue over time. For example, California rewrote its state constitution, which originally recognized a wide range of rights for Spanish-speakers, in 1879 to eliminate Spanish language rights, while Pennsylvania made English proficiency a condition of employment in its coal fields in 1897 [32].  One of the largest pushes for the English-Only movement came during and after World War I, as several states banned the use of German on the streets, in religious services, on the telephone, and in the schools during the war. In the year following the war, fifteen states passed laws that mandated English to be the language of instruction, with some states even prohibiting foreign languages to be taught in the elementary grades. Even though many of these laws were later ruled unconstitutional, their effect was still widely felt, as bilingual education virtually disappeared until the 1960s [33].

Modern English-Only Movement

The English-Only movement is still prevalent in modern America, as there are numerous organizations dedicated to the cause of establishing English as the official language of the United States. The most prominent of these organizations include; U.S English[34], English First[35], and ProEnglish[36].

U.S. English reports itself to be the “nations oldest, largest citizens’ action group dedicated to preserving the unifying role of the English language in the United States.” The group was founded in 1983 as a "non-partisan educational foundation," which has been dedicated to the “English only movement.” On its website, U.S. English indicates that popular views in favor of language access laws ignore important social implications for a single spoken language. The group maintains that the translation of government documents into languages other than English fosters racial and ethnic divisions on the basis that there is no encouragement for non-English speakers to learn a common language (English), thus making it more difficult for large portions of society to communicate. The group firmly supports English as a Second Language (ESL) classes for non-English speakers, but has stated that this type of "assistance should be short-term and transitional."[37]

EnglishFirst, reports itself to be a "national, non-profit grassroots lobbying organization” dedicated to these three goals; making English America’s official language, giving every child the chance to learn English, and eliminating costly and ineffective multilingual policies. The group was founded in 1986, and claims to have over 150,000 "concerned Americans" - who believe that "this nation of immigrants must be able to talk to each other", that "the English language unites America”, and that "they are tired of seeing the government use their tax money to divide Americans on the basis of language of ancestry". The organization proudly declares itself as the only pro-English group to testify against bilingual ballots in 1992, as well as the only pro-English group to lead the fight against bilingual education in 1994. Furthermore, English First states that their symbol is the "Statue of Liberty torch capturing the spirit of immigrants who learned English and became full members of American society [38]".

ProEnglish, reports itself to be a “national, non-profit organization working to educate the public about the need to protect English as our common language and to make it the official language of the United States. The group was founded in 1994, in which their first “project” was defending an official English initiative passed by voters in Arizona, when the State of Arizona refused to appeal the decision after overturning it in federal court. ProEnglish “specializes” in providing pro-bono legal assistance to public and private agencies “facing litigation or regulatory actions over language”[39].

Current English-only legislation

States in which English has been declared the official language or legislation is under consideration.

Currently, the United States federal government does not specify an official language, although numerous states have declared English as their official state language. According to U.S. English, English is an official language in these 30 states [40]:

Alabama (1990) Louisiana (1807)
Alaska (1998) Massachusetts (1975)
Arizona (2006) Mississippi (1987)
Arkansas (1987) Missouri (2008)
California (1986) Montana (1995)
Colorado (1988) Nebraska (1920)
Florida (1988) New Hampshire (1995)
Georgia (1996) North Carolina (1987)
Hawaii (1978) North Dakota (1987)
Idaho (2007) South Carolina (1987)
Illinois (1969) South Dakota (1987)
Indiana (1984) Tennessee (1984)
Iowa (2002) Utah (2000)
Kansas (2007) Virginia (1996)
Kentucky (1984) Wyoming (1996)

Most recently, in January 2009, voters in Nashville, Tennessee rejected a proposal under a special election that would have made them the "largest U.S. city to make English the official language of local government."[41]

Articles and resources

See also

http://www.economist.com/world/europe/displaystory.cfm?story_id=13103967

References

    http://www.oyez.org/

    http://www.usdoj.gov/crt/

    http://www.eeoc.gov/policy/ada.html

    http://www.section508.gov/index.cfm?FuseAction=Content&ID=15

    External resources

    Language Access Organizations and Websites

    The National Language Access Advocates Network (N-LAAN)

    D.C. Language Access Coalition 

    Limited English Proficiency Federal Interagency Website 

    Office of Latino Affairs 

    Asian Law Caucus 

    External articles

    Toolbox