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Alvarez v. State of Utah | Memo in Support of Plaintiffs' Motions for Temporary Restraining Order and Preliminary Injunctions

29 November 2000 Published in Litigation Materials

Alvarez v. State of Utah

MILO STEVEN MARSDEN (#4879)
ADAM B. PRICE (#7769)
GIAUQUE, CROCKETT, BENDINGER & PETERSON
170 South Main Street, Suite 400
Salt Lake City, Utah 84101
Telephone: (801) 533-8383

STEPHEN C. CLARK (# 4551)
AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC.
355 North 300 West, Suite 1
Salt Lake City, UT 84103
Telephone: (801) 521-9862

MARLENE GONZALEZ (#7386)
MULTI-CULTURAL LEGAL CENTER
309 East 100 South, # 3
Salt Lake City, UT 84111
Telephone: (801) 486-1183

Attorneys for Plaintiffs
(Additional Counsel listed on next page)

IN THE THIRD JUDICIAL DISTRICT COURT SALT LAKE COUNTY, STATE OF UTAH

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTIONS

Case No. 000909680
Judge Ronald E. Nehring

ROSS C. “ROCKY” ANDERSON, ROBERT “ARCHIE” ARCHULETA, PETE SUAZO, JESSE GARCIA, MARK MARYBOY, JAMES YAPIAS, UTAH HISPANIC CHAMBER OF COMMERCE, and MULTI-CULTURAL LEGAL CENTER, Plaintiffs,

v.

STATE OF UTAH, MICHAEL LEAVITT, Governor, and JAN C. GRAHAM, Attorney General, Defendants.

OF COUNSEL:

Edward M. Chen
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.
1663 Mission Street, Suite 460
San Francisco, CA 94103
Telephone: (415) 621-2493

Antonia Hernandez
Vibiana Andrade
Hector Villagra
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
634 S. Spring St., Eleventh Floor
Los Angeles, CA 90014
Telephone: (213) 629-2512

Kenneth Kimerling
ASIAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
99 Hudson Street
New York, NY 10013
Telephone: (212) 966-5932

Christopher Ho
EMPLOYMENT LAW CENTER OF THE LEGAL AID SOCIETY OF SAN FRANCISCO
1663 Mission Street, Suite 400
San Francisco, CA 94103
Telephone: (415) 864-8848

Robert L. Rusky
159 Beaver Street
San Francisco, CA 94114
Telephone: (415) 255-7385

TABLE OF CONTENTS

INTRODUCTION

FACTS
A. The English-Only Statute generally requires that government business be conducted in English, subject to limited exceptions
B. The English-Only Statute Will Harm Utah’s Substantial LEP Population
1. The LEP population in Utah, while proportionately small, is sizeable and growing, and LEP individuals are already working to learn English
2. State and local agencies provide important services in non-English languages that benefit the LEP population, the government and the public generally
3. The English-Only Statute will hurt the LEP population
C. State and Local government agencies and employees face a dilemma, and various individuals and organizations face fear and uncertainty, as a result of the English-Only Statute
D. The Plaintiffs and their Claims

ARGUMENT
I. THE STANDARD FOR PRELIMINARY INJUNCTION
II. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS OF THEIR CLAIMS THAT THE ENGLISH-ONLY STATUTE IS UNCONSTITUTIONAL
A. The English-Only Statute Is Indistinguishable From The Arizona Law Struck Down As Facially Unconstitutional; That Precedent Alone Provides Sufficient Grounds For Granting A Temporary Injunction
B. The English-Only Statute Violates Plaintiffs’ Rights Under Article I Sections 1 and 15 of the Utah Constitution
1. The English-Only Statute is directed at pure speech, and thus requires the most careful scrutiny
2. The English-Only Statute infringes upon the fundamental, inalienable rights to petition government and to express views and opinions
3. The English-Only Statute is also vague and overbroad
a. The English-Only statute is overbroad because it impermissibly suppresses a broad range of core First Amendment freedoms
b. The English-Only Statute is vague because it fails to provide fair warning of what is prohibited and chills free speech
C. The English-Only Statute Violates The Constitutional Requirements Of Equal Protection And Uniform Operation Of Laws
1. The English-Only Statute violates uniform operation of the laws
2. Under long-established equal protection jurisprudence, the English-Only Statute is subject to strict scrutiny because it infringes fundamental rights
a. The Right to Free Speech and to Petition for Redress of Grievances
b. The Right to Participate Equally in the Political Process
3. The English-Only Statute is subject to strict scrutiny because it discriminates on the basis of a suspect classification
a. The English-Only Statute’s purposeful singling out of language minorities is the functional equivalent of national origin discrimination
b. Language minorities comprise a suspect classification characterized by the traditional indicia of "suspectness"
D. The English-Only Statute Cannot Survive Strict Scrutiny Because It Is Not Narrowly Tailored To Achieve A Compelling State Interest
III. PLAINTIFFS SATISFY THE REMAINING REQUIREMENTS FOR INJUNCTIVE RELIEF
A. Plaintiffs will suffer irreparable injury that greatly outweighs any purported harm to the State should the status quo be maintained
B. A Preliminary Injunction Will Not Be Adverse To The Public Interest

CONCLUSION

TABLE OF AUTHORITIES

CASES

ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999)
AIDS Action Committee of Massachusetts, Inc., 42 F.3d 12
Allen v. Intermountain Health Care, Inc., 635 P.2d 30 (Utah 1981)
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997)
Asian American Business Group v. City of Pomona, 716 F. Supp. 1328 (C.D. Cal. 1989)
Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)
Board Of Comm’rs of the Utah State Bar v. Petersen, 937 P.2d 1263 (Utah 1997)
Board of Educ. v. Pico, 457 U.S. 853 (1982)
Beerheide v. Zavaras, 997 F. Supp. 1405 (D. Colo. 1998)
Berke v. Ohio Department of Public Welfare, 628 F.2d 980 (6th Cir. 1980)
Board of Airport Comm”rs v. Jews for Jesus, 482 U.S. 569 (1987)
Bond v. Floyd, 385 U.S. 116 (1966)
Broadrick v. Oklahoma, 413 U.S. 601 (1973)
Buckley v. Valeo, 424 U.S. 1 (1976)
California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972)
Campbell v. Campbell, 896 P.2d 635 (Utah 1995)
Carey v. Brown, 447 U.S. 455 (1980)
Carino v. University of Oklahoma, 750 F.2d 815 (10th Cir. 1984)
Castaneda v. Partida, 430 U.S. 482 (1977)
Castro v. California, 2 Cal.3d 22, 2 Cal.3d 223 (1970)
Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)
Clark v. Jeter, 486 U.S. 456 (1990)
Cohen v. California, 403 U.S. 15 (1971)
Community Communications Co., Inc. v. City of Boulder Colorado, 660 F.2d 1370 (10th Cir. 1981)
Condemarin v. University Hospital, 775 P.2d 348 (1989)
Connally v. General Construction, 269 U.S. 385 (1926)
East High School PRISM Club v. Seidel, 95 F. Supp 3d 1293 (D. Utah 2000)
Eastern R. Pres. Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961)
Elam Const., Inc. v. Regional Transp. Dist., 129 F.3d 1343 (10th Cir. 1997)
Elrod v. Burns, 427 U.S. 347 (1976)
Evans v. Romer, 854 P.2d 1270 (Colo. 1993)
First National Bank v. Bellotti, 435 U.S. 765 (1978)
Fragante v. City and County of Honolulu, 888 F.2d 591 (9th Cir. 1989)
Frontera v. Sindell, 522 F.2d 1215 (6th Cir. 1975)
Frontiero v. Richardson, 411 U.S. 677 (1973)
Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980)
Graham v. Richardson, 403 U.S. 365 (1971)
Grayned v. City of Rockford, 408 U.S. 104 (1972)
Greenwood v. City of North Salt Lake, 817 P.2d 816 (Utah 1991)
Gutierrez v. Municipal Court, 838 F.2d 1031 (9th Cir. 1988)
Harper v. Board of Elections, 383 U.S. 663 (1966)
Hernandez v. Erlenbusch, 368 F. Supp. 752 (D. Or. 1973)
Hernandez v. New York, 500 U.S. 352 (1991)
Hernandez v. Texas, 347 U.S. 475 (1954)
Hunsaker v. Kersh, 991 P.2d 67 (Utah 1999)
Hunter v. Erickson, 393 U.S. 385 (1969)
J.J.N.P. Co. v. Utah, 655 P.2d 1133 (Utah 1982)
KUTV v. Conder, 668 P.2d 513 (Utah 1983)
Kleindienst v. Mandel, 408 U.S. 753
Kritz v. State of Alaska, Case No. 3DI99-12 CI
Lamont v. Postmaster General, 381 U.S. 301 (1965)
Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978)
Lau v. Nichols, 414 U.S. 563 (1974)
Lee v. Gaufin, 867 P.2d 572 (Utah 1993)
Loving v. Virginia, 388 U.S. 1 (1967)
Malan v. Lewis, 693 P.2d 661 (Utah 1984)
Manzanares v. Safeway Stores, Inc., 593 F.2d 968 (10th Cir. 1978)
McDonald v. Smith, 472 U.S. 479 (1985)
Meyer v. Nebraska, 262 U.S. 390 (1923)
Mountain Fuel Supply Co. v. Salt Lake City, 752 P.2d 884 (Utah 1988)
NAACP v. Button, 371 U.S. 415 (1963)
Olagues v. Russoniello, 797 F.2d 1511 (9th Cir. 1986)
Otero Savings & Loan Ass’n v. Federal Reserve Bank, 665 F.2d 275 (10th Cir. 1981)
Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972)
Provo City Corp v. Wilden, 768 P.2d 455 (Utah 1989)
Provo City v. Whatcott, 1 P.3d 1113 (2000)
Purdie v. University of Utah, 584 P.2d 831 (Utah 1978)
Regents of University of California v. Bakke, 438 U.S. 265 (1978)
Reynolds v. Simms, 377 U.S. 533 (1964)
Romer v. Evans, 517 U.S. 620 (1996)
Rubin v. Santa Monica, 823 F. Supp. 709 (C.D. Cal. 1993)
Ruiz v. Hull, 957 P.2d 984 (Ariz. 1998)
San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973)
Saucedo v. Brothers Well Service, Inc., 464 F. Supp. 919 (S.D. Tex. 1979)
State v. Frampton, 737 P.2d 183 (Utah 1987)
State v. Lafferty, 749 P.2d 1239 (Utah 1988)
State v. Mohi, 901 P.2d 991 (1995)
Texas v. Johnson, 491 U.S. 397
Thomas v. Collins, 323 U.S. 516 (1945)
Tri-State Generation & Transmission Ass’n v. Shoshone River Power Inc., 805 F.2d 351 (10th Cir. 1986)
U.S. v. Cruikshank, 92 U.S. (2 Otto) 542 (1876)
United Mine Workers v. Illinois State Bar Association, 389 U.S. 217 (1967)
United Mine Workers v. Pennington, 381 U.S. 657 (1965)
United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970)
United States v. Carolene Products Co., 304 U.S. 144 (1938)
United States v. National Treasury Employees Union, 513 U.S. 454 (1995)
United States v. O’Brien, 391 U.S. 367
Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)
Virginia State Board of Pharmacy, 425 U.S. 748 (1976 )
Washington v. Seattle School District No. 1, 458 U.S. 457 (1982)
Water & Energy Sys. Tech. Inc. v. Keil, 974 P.2d 821 (Utah 1999)
West Virginai State Brd. of Ed. v. Bernett 319 U.S. 624 (1943 )
White v. Regester, 412 U.S. 755 (1973)
Winters v. New York, 333 U.S. 507
Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir. 1995)
Yu Cong Eng v. Trinidad, 71 U.S. 500 (1926)

STATUTES

42 U.S.C. §1973b(f)(1)
42 U.S.C. § 4200(d)
Ariz. Const. art. XXVIII
Mont. Code Ann. § 1-1-510
Utah Code Ann. § 63-13-1.5(1), (2)
Utah Code Ann. § 67-19-18(1)
Utah Code Ann § 10-3-1012
Utah Constitution, Art. I Sec. 1
Utah Constitution, Art I Sec. 2
Utah Constitution, Art I Sec. 7
Utah Constitution, Art I Sec. 11
Utah Constitution, Art I Sec. 24
Utah R. Civ. P. 65 A(e)

INTRODUCTION

On November 7, 2000, the voters of Utah approved Ballot Initiative A. Initiative A enacts a statute that will make English the “official language of the State of Utah” and the “sole language of government” (the "English-Only Statute"). The English-Only Statute is virtually identical to an Arizona law that both the Arizona Supreme Court and the federal Ninth Circuit Court of Appeals recently held unconstitutional on its face. The courts reached that conclusion because, unlike "official English" laws around the country that have merely symbolic effect, laws prohibiting governmental officials and employees from using any language other than English, except under certain limited circumstances, infringe upon core First Amendment rights and have a discriminatory impact on language minorities. (1)

Proponents of the English-Only Statute have suggested it is not like the unconstitutional Arizona law, but like the symbolic "official English" laws. On its face, however, the English-Only Statute has all the characteristics of the Arizona law and raises the same constitutional issues. Beyond making English the state’s “official language,” it mandates that English shall be "the sole language of the government," and that "all official documents, transactions, proceedings, meetings, or publications issued, conducted, or regulated by, on behalf of, or representing the state and its political subdivisions shall be in English." It prohibits public officials and employees from communicating in non-English languages, even when necessary or desirable, to convey information, deliver services, or exchange ideas. It permits the use of other languages only under certain limited circumstances.

If this Court concludes that the English-Only Statute has no actual effect – i.e., that it cannot be read or applied to require plaintiffs or anyone else to do anything different than they have done before, except perhaps to encourage efforts to increase English proficiency among Utah’s burgeoning immigrant population – it should so declare and ensure that the statute is not given any actual effect. The English-Only Statute would then be “symbolic” in the sense that it could have no practical application. At the very least, however, there is a serious question whether the English-Only Statute can be so read.

If, as plaintiffs reasonably fear, the English-Only Statute will require dramatic changes in the way the people and their government communicate, then it plainly infringes upon important, fundamental rights, and unless enjoined, will cause substantial human and constitutional harm. It will prevent immigrants and others with limited or no English proficiency from receiving vital government information and services. It will effectively bar language minorities from communicating with their elected officials and all branches of state and local government. It will deny a vulnerable sector of the population, including the young, the poor, the infirm, and the elderly, the right to participate equally in government and to petition for redress of grievances. It will selectively silence public officials and employees who desire to communicate with their constituencies and clients in a comprehensible language. And far from achieving its purported aim, it will have a devastating discriminatory impact that will multiply the difficulties Utah’s language minorities historically have faced and continue to face.

In short, either the English-Only Statute is merely symbolic or it is unconstitutional on its face, just like the Arizona law. Plaintiffs therefore request that this Court enter a preliminary injunction to preserve the status quo and prevent the immediate and irreparable harm they will suffer if the statute takes effect before full judicial consideration of the important issues raised.

FACTS

A. The English-Only Statute generally requires that government business be conducted in English, subject to limited exceptions.

The English-Only Statute (the complete text of which is attached as Exhibit A to the Complaint in this matter) provides, in part, that “English is declared to be the official language of Utah,” and that “[a]s the official language of this State, the English language is the sole language of the government,” subject to limited exceptions. Utah Code Ann. § 63-13-1.5(1), (2). It further provides that “all official documents, transactions, proceedings, meetings, or publications issued, conducted, or regulated by, on behalf of, or representing the state and its political subdivisions shall be in English.” Id. § 63-13-1.5(3). Moreover, all state funds appropriated or designated for translations must be returned to the General Fund. Id. § 63-13-1.5(6).

Subsection 4 of the English-Only Statute contains a list of limited exceptions to the “general rule.” Among other things, it provides that languages other than English may be used “when required” by law. Id. § 63-13-1.5(4). Subsection 7 of the English-Only Statute provides: “Nothing in this section affects the ability of government employees, private businesses, non-profit organizations, or private individuals to exercise their rights under the First Amendment of the United States Constitution and Utah Constitution, Article 1, Sections 1 and 15.” Id. § 63-13-1.5(7).

In response to a request by the Utah State Office of Education, defendant Graham’s office reviewed the language of the English-Only Statute and stated as follows:

“The [Statute] requires ‘all official documents, transactions, procedures, meetings or publications’ by the state or its subdivisions to be in English as the ‘sole’ language. Accordingly [sic] to the dictionary ‘exclusive’ and ‘only’ are synonyms for ‘sole,’ and the reader is left with the [Statute’s] express language and apparent intent that no other language may be used officially unless authorized by an express (or necessarily implied) exception. Moreover, the concept that as a general rule in Utah, official business with government must be conducted exclusively in English, is reinforced by the need for a fairly complex listing of exceptions which in this case seem to prove the rule.”

See Decl. of Stephen C. Clark in Supp. of Pls.’ Mot. (“Clark Decl.”), Exhibit 1 [Letter dated August 25, 2000 from Assistant Attorney General John S. McAllister to Superintendent Steven O. Laing of the Utah State Office of Education] at 1.

Thus, on its face and as interpreted by the Attorney General’s office, the English-Only Statute establishes the “general rule” that “official business with government must be conducted exclusively in English.” As was said of the Arizona law, it “could hardly be more inclusive,” since it “prohibit[s] the use in all oral and written communications by persons connected with the government of all words and phrases in any language other than English,” subject only to limited exceptions. See Yniguez, 69 F.3d at 933.

B. The English-Only Statute will harm Utah’s substantial LEP population.

1. The LEP population in Utah, while proportionately small, is sizeable and growing, and LEP individuals are already working to learn English.

As of the 1990 Census, 15,782 of Utahns age 5 or older had limited or no English proficiency (“LEP”) – in census terms, they spoke English “not well” or “not at all.” See Clark Decl., Exhibit 2 [1990 Census Data Printout]. Of those LEP residents, more than 70% spoke Spanish (7481) or Asian (3870) languages. Id.

If one applies the 1990 LEP percentage to the most recent estimates of Utah’s population available from the 2000 Census, one can reasonably estimate that there are currently nearly 55,000 Utahns age 5 or older who speak English “not well” or “not at all.” See Aff. of J. Dennis Willigan, ¶ 3. Thus, while the LEP population might represent a relatively small percentage of the general population, it nonetheless includes a significant and growing number of people who face daily the challenge of earning a living and supporting their families while gaining English proficiency.

LEP individuals are working to meet that challenge, and if given the chance they succeed. As of the 1990 Census, over 96% of Utahns spoke English, and even within Utah’s largest single language minority – Spanish-speakers – over 85% spoke English well or very well. See Clark Decl., Exhibit 2. But resources are strained. The demand for adult courses in English as a Second Language (“ESL”) far exceeds the supply. According to a report prepared by the Coalition of Minorities Advisory Committee for the State Board of Education, there are 6,685 projected ESL adult class needs, of which only 4,595 are being served. See Clark Decl., Exhibit 3 [CMAC Position on English-Only Proposed Referendum] at 13; id., Exhibit 4 [“18 Languages Echo at ‘Mini-U.N.’ School,” Salt Lake Tribune, October 22, 2000] at 1; id., Exhibit 5 [“Only English,” Salt Lake Tribune, October 24, 2000] at 2.

Finally, and perhaps most tellingly in terms of the potential discriminatory impact of the English-Only Statute, there is a close correlation between language and ethnic or national origin status in Utah. Based on the 1999 estimates, among Hispanics age 5 and over, more than 22,000 people, or more than 17% of the Hispanic population, do not speak English well. See Willigan Aff., ¶ 4. Among Asians and Pacific Islanders, the number is 15,737, or more than 32% of that population. Id. And among Native Americans, age 5 and over, living on reservations or trust lands, the percentage of persons who do not speak English well is 35.45% (over 1 out of every 3 such persons). Id. By contrast, only about 1% of the white non-hispanic population does not speak English well, and that is almost 89% of the population, according to the 1999 estimates. Id. These data demonstrate that the impact of the English-Only Statute overwhelmingly will fall on the Hispanic, Asian and Native American populations in Utah. Id.

2. State and local agencies provide important services in non-English languages that benefit the LEP population, the government, and the public generally.

To meet the needs of Utah’s LEP residents, the State and its political subdivisions have undertaken to provide an array of multi-lingual information and services. By Executive Order, Governor Leavitt has established various offices of Ethnic Affairs, whose purpose is to create and focus State and other resources to improve the quality of life of Utah’s ethnic minorities. Although not required to do so by law, these Offices regularly communicate with the people and communities they serve in languages other than English to fulfill their purpose effectively. See, e.g., http://www.dced.state.ut.us/Hispanic (website of State Office of Hispanic Affairs, which provides a substantial amount of information in Spanish); See also Aff. of James Yapias, ¶¶ 6-8.

In addition, several departments of state government provide such information and services, including the Department of Education (see http://www.usoe.k12.ut.us/equity); the Department of Health (see Clark Decl., Exhibit 6 [Memorandum from Utah Department of Health re: HB 387]); the Department of Human Services (see id., Exhibit 7 [Memorandum from Utah Department of Human Services dated November 18, 1997]); and the Utah Industrial Commission (see id., Exhibit 8 [non-English language materials provided by the Industrial Commission]). Plaintiff Multi-Cultural Legal Center (“MLC”) created a special project, working with officials of the Anti-Discrimination Division of the Utah Labor Commission, to facilitate unpaid wage claims on behalf of LEP workers, who otherwise would have no recourse against those who unconscionably profit from their labors. See Hayashi Aff. ¶ 3-5.

Utah’s counties and municipalities also provide information and services in languages other than English. Salt Lake City provides announcements and other community-oriented materials in Spanish, Tongan, Bosnian, and Russian, as well as in English. See Affidavits of Rocky Anderson, ¶ 11, and Archie Archuleta, ¶ 6. The City’s official website includes information in Spanish about whom to contact with questions regarding City services. See http://www.ci.slc.ut.us/council/d1newsletter/. The Central City Community Council, which provides a “link to City Government” for Central City residents, businesses, and property owners on issues including Landlord & Tenant Rights, Transportation and Housing, refers its members, in Spanish, to plaintiff Archuleta, Salt Lake City’s Assistant Administrator for Minority Affairs, for minority and refugee assistance. See http://www.ccnc-slc.org. Midvale and Ogden City print documents in multiple languages to reach residents who otherwise would feel shut off from local government. Those materials include newsletters, capital improvement proposals, and water conservation documents. See Aff. of Jesse Garcia, ¶ 3; Clark Decl., Exhibit 9 [“In Some Cities, ‘English Only’ Would Snarl Communication,” Salt Lake Tribune, October 23, 2000].

The needs of Utah’s language minorities, and government’s efforts to meet those needs, are particularly challenging among the large Native American population in isolated San Juan County. Decades of litigation have been necessary to begin providing Indian children with basic access to equal educational opportunities. See Aff. of Eric P. Swenson, ¶¶ 4-6. Equal access to the political process and to jury service has also been the subject of litigation. Id., ¶¶ 7-8. Whether required by law to do so or not, most government agencies in San Juan County must to some extent use Navajo, other Native languages, or Spanish to effectively conduct their business and provide services to persons whose primary language is not English. Id., ¶ 3.

3. The English-Only Statute will hurt the LEP population.

Plaintiffs’ use of languages other than English in providing or receiving government services and communicating with their constituents or representatives is essential for purposes of effective communication among members of the public who are not proficient in English. Whether or not “required” by law – a determination plaintiffs cannot feasibly make on the spot under the wide variety of circumstances they encounter in the course of their various functions each day – plaintiffs’ communication in languages other than English furthers their official objectives, aids the dissemination of information and exchange of ideas, and contributes to the efficiency of their organizations. See generally Plaintiffs’ Affidavits.

Because defendant Graham reads the English-Only Statute generally to bar state and local officials from communicating with LEP residents in a language comprehensible to their constituents, it not only obstructs communications and petitioning activities directed to elected officials, communications fundamental to our democratic system of government; it also reaches everyday activities, potentially affecting the homeowner who takes issue with her utility bill, the resident who challenges a parking ticket, the citizen who wishes to address his city council, and residents wishing to oppose the establishment of a waste facility in their neighborhood. See, e.g., Alvarez Aff., ¶¶ 5-8.

The English-Only Statute also prevents language minorities from receiving vital information and important services. It threatens to impede their access to such information as water and energy conservation, consumer protection, and labor rights; it threatens to terminate a wide range of services such as driver’s license exams, family services, child support enforcement, subsistence benefits, and the handling of discrimination and unpaid wage claims; and it threatens to stall a number of initiatives intended to provide important information. See Pete Suazo Aff., ¶¶ 11-14; Anderson Aff., ¶¶ 5-12; Archuleta Aff., ¶¶ 4-7; Yapias Aff., ¶¶ 7-9; Hayashi Aff., ¶ 6; Alvarez Aff., ¶ 8; Swenson Aff., ¶ 3.

In addition to imposing harsh concrete deprivations, the English-Only statute will have damaging long-term effects. English-Only laws are an example of “unplanned language planning” -- a “top-down” government effort to alter the language makeup of a community. See Aff. of William Eggington, ¶¶ 5-6. Such efforts do not work except in highly coercive situations. Id., ¶ 6. To the contrary, they can lead to the creation of “language enclaves” in which non-English speakers tend to be more socially, psychologically, politically, and economically isolated. Id., ¶¶ 7-8. This can actually slow, rather than facilitate, the acquisition of English proficiency. Id., ¶ 8.

English-Only laws thus tend to contribute to the very conditions they purport to try to prevent. Such laws tend to cause division and linguistic balkanization, not linguistic integration; they tend to destabilize family structures, as older family members less adept at acquiring a new language must rely on younger family members more amenable to language acquisition; they tend to encase language minorities in “second-class citizen” status in terms of their political and economic engagement and success; and create an “us vs. them” mentality between English speakers – even those from prior waves of immigration – and non-English speakers. Id., ¶ 9.

C. State and Local government agencies and employees face a dilemma, and various individuals and organizations face fear and uncertainty as a result of the English-Only Statute.

Based on the passage of the English-Only Statute, governmental agencies and employees face a substantial dilemma. On the one hand, public officials and employees seek to serve their constituents and clients in the most efficient and effective way possible. On the other hand, they must uphold the law. Indeed, state employees are subject to dismissal or demotion if they engage in “disloyalty to the orders of a superior, misfeasance, malfeasance or nonfeasance in office,” Utah Code Ann. § 67-19-18(1), and municipal employees can likewise be suspended or discharged for “misconduct,” “failure to perform [their] duties,” or “failure to observe properly the rules of the department,” Id. § 10-3-1012.

If the English-Only Statute goes into effect, governmental agencies and officials obviously must still abide by all applicable federal and state laws and constitutions, including Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 42000d et seq. (if they receive federal funds). But unless required to do so by law, they will be unable to continue to serve their non-English-speaking constituents and clients in the wide variety of circumstances that arise every day, because of the Statute’s broad proscriptions. See, e.g., Anderson Aff., ¶¶ 10-12; Archuleta Aff., ¶¶ 5-7. They also face tremendous uncertainty because of the Statute’s vague exceptions. See, e.g., Suazo Aff., ¶¶ 7, 14; Maryboy Aff., ¶ 7; Garcia Aff., ¶ 5. On the receiving end, numerous organizations and individuals face the risk that they will be unable to access government services and otherwise participate and contribute as equal members of their communities. See, e.g., Aff. of John Renteria, ¶ 5; Alvarez Aff., ¶ 8. It is not surprising, therefore, that the passage of the English-Only Statute has reportedly created tremendous uncertainty and confusion as the various individuals and organizations affected try to sort out exactly what it means. See Clark Decl., Exhibit 10 [“English-Only Certified; Effects Remain To Be Seen,” Salt Lake Tribune, November 28, 2000].

D. The Plaintiffs and their claims

The plaintiffs in this case reflect a wide array of those who depend on languages other than English to facilitate the needs of Utah’s growing number of language minorities. They represent those who provide public services, including elected officials (Salt Lake City Mayor Rocky Anderson; Utah State Senator Pete Suazo; San Juan County Commissioner Mark Maryboy; and Ogden City Council Member Jesse Garcia); appointed officials (James Yapias, Chair of the Governor’s Hispanic Advisory Council); and governmental employees (Archie Archuleta, Salt Lake City Administrator of Ethnic Affairs). They also represent those who receive government information and services (the Utah Hispanic Chamber of Commerce and Alicia Alvarez), and those who assist others in receiving multi-lingual information and services (the Multi-Cultural Legal Center). In their various capacities, they have one thing in common: they all depend on languages other than English to ensure effective communication between government and the people to meet the needs of Utah’s language minorities.

As set forth in detail in the Complaint, all plaintiffs stand to be directly affected in their various endeavors if the English-Only Statute takes effect. Those who provide services in languages other than English stand to be severely chilled, if not largely, gagged in their ability to communicate effectively with their constituents or clients – a direct and substantial infringement of their First Amendment rights. See Compl., ¶¶ 23-25. Those who rely on services in languages other than English stand to be shut out from effectively petitioning their government and otherwise exercising their free speech rights to share their views and opinions, and also bear the brunt of the discriminatory impact that flows from the English-Only Statute. See Compl., ¶¶ 26-29. All plaintiffs seek judicial clarification of their rights and responsibilities under the English-Only Statute (see Compl., ¶¶ 20-22), and/or appropriate injunctive relief to prevent the irreparable harm they will suffer if the English-Only Statute takes effect.

ARGUMENT

I. THE STANDARD FOR PRELIMINARY INJUNCTION.

Rule 65A(e) of the Utah Rules of Civil Procedure sets forth the standards for a preliminary injunction under Utah law:

(1) The applicant will suffer irreparable harm unless the injunction issues;
(2) The threatened injury to the applicant outweighs whatever damage the proposed injunction may cause the party enjoined;
(3) The injunction, if issued, would not be adverse to the public interest; and
(4) There is a substantial likelihood that the applicant will prevail on the merits of the underlying claim, or the case presents serious issues on the merits which should be the subject of further litigation.

Utah R. Civ. P. 65A(e); see also Hunsaker v. Kersh, 991 P.2d 67, 69 (Utah 1999); Water & Energy Sys. Tech. Inc. v. Keil, 974 P.2d 821, 822 (Utah 1999).

These standards are similar to those applied in federal court. (2) Federal courts have consistently held that, when the law controlling the case’s outcome favors the movant, the likelihood of success on the merits “requires the most detailed analysis” and, especially in the free expression context, typically find the other factors easily met if the likelihood appears strong. See Elam Constr., Inc. v. Regional Transp. Dist., 129 F.3d 1343, 1347 (10th Cir. 1997), cert. denied, 523 U.S. 1047 (1998) (holding that Supreme Court First Amendment law on campaign contributions favored movant and summarily concluding that the remaining factors constituting the balance of hardships tipped in its favor). Because the law, recently applied to the English-Only Statute’s Arizona and Alaska predecessors, strongly supports plaintiffs’ argument on the merits, we turn first to that discussion.

II. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS OF THEIR CLAIMS THAT THE ENGLISH-ONLY STATUTE IS UNCONSTITUTIONAL.

A. The English-Only Statute is indistinguishable from the Arizona Law struck down as facially unconstitutional; that precedent alone provides sufficient grounds for granting a temporary injunction.

In Ruiz v. Hull, 957 P.2d 984 (Ariz. 1998), the Arizona Supreme Court considered the constitutionality of a law that, like the English-Only Statute, declared English to be the official language of the State of Arizona and required that government officials and employees performing government business “act” only in English. Id. at 987. The court ruled:

“We hold that the [Arizona law] violates the First Amendment to the United States Constitution because it adversely impacts the constitutional rights of non-English-speaking persons with regard to their obtaining access to their government and limits the political speech of elected officials and public employees. We also hold that the [Arizona law] violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because it unduly burdens core First Amendment rights of a specific class without materially advancing a legitimate state interest.”

Id.

The court first distinguished the Arizona law from “official English” laws, describing it as “unique” and as “the most restrictive” official English law that had yet been enacted. Id. at 994-95, citing M. Arrington, English Only Laws and Direct Legislation: The Battle in the States Over Language Minority Rights, 7 L.J. & Pol. 325, 327 (1991); D. Baron, The English-Only Question 21 (1990); and J. Crawford, Hold Your Tongue 176 (1992). The court noted that, unlike “official English” laws enacted in other states, the Arizona law was not “brief and nonrestrictive.” Id. at 995. It further noted that, unlike some other states’ laws, the Arizona law did not permit governmental officials or employees to provide information in languages other than English in the course of their employment. Id., citing Wyo. Stat. Ann. § 8-6-101 and Mont. Code Ann. § 1-1-510. The court observed: “If [the Arizona law] were merely symbolic or contained some of the express exceptions of the official English provisions discussed above, it might well have passed constitutional muster.” Id. at 995-96. (3)

The court then proceeded to analyze the Arizona law under established First Amendment principles. After noting the extraordinary scope of the law – it “prohibits a town hall discussion between citizens and elected individuals in a language other than English and also precludes a discussion in a language other than English between public employees and citizens seeking unemployment or workers’ compensation benefits, or access to fair housing or public assistance, or to redress violations of those rights” – the court stated: “‘Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.’” Id. at 453, quoting Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838 (1978).

The court found that, notwithstanding the “limited exceptions” to the English-only requirement in the Arizona law, (4) it “unconstitutionally inhibits ‘the free discussion of governmental affairs’” by depriving “limited- and non-English-speaking persons of access to information about the government when multilingual access may be available and may be necessary to ensure fair and effective delivery of governmental services to non-English-speaking persons.” Ruiz, 957 P.2d at 997; see also Yniguez, 69 F.3d at 936 (“Arizonans who do not speak English will be unable to receive much essential information about their daily needs and lives”). Denying such persons access to such information violates the constitutional “right to participate in and have access to government, a right which is one of the ‘fundamental principle[s] of representative government in this country.’” Ruiz, 957 P.2d at 997 (citation omitted).

The Ruiz court also held that the Arizona law violated the First Amendment rights of elected officials and public employees. As the court explained:

“[The Arizona law] goes too far because it effectively cuts off governmental communication between with thousands of limited-English-proficient and non-English-speaking persons in Arizona, even when the officials and employees have the ability and desire to communicate in a language understandable to them. Meaningful communication in those cases is barred. Under such circumstances, prohibiting an elected or appointed governmental official or an employee from communicating with the public violates the employee’s and the official’s rights.”

Id. at 997-98.

The court emphasized that the Arizona law interfered with the ability of even elected officials, who enjoy the “‘widest latitude to express their views on issues of policy,’” to communicate effectively with their constituents. Id. at 998, quoting Bond v. Floyd, 385 U.S. 116, 136 (1966); see also Yniguez, 69 F.3d at 951 (Brunetti, J., concurring) (law “interferes with officials’ ability to represent their constituents once they are elected. ‘The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy’”) (citation omitted).

Utah’s English-Only Statute is as broad and restrictive as the Arizona law. It explicitly and categorically prohibits the state and all its subdivisions from communicating in any language other than English, “even when communicating with persons who have limited or no English skills.” See Ruiz, 957 P.2d at 996; Yniguez, 69 F.3d at 928. (5) Like the Arizona law, Utah’s English-Only Statute “could hardly be more inclusive,” since it “prohibit[s] the use in all oral and written communications by persons connected with the government of all words and phrases in any language other than English.” Yniguez, 69 F.3d at 933. The English-Only Statute thus has the same reach as its Arizona predecessor, and it raises the same constitutional problems.

The proponents of the English-Only Statute seem to believe that its exceptions will somehow operate to rescue it from the fate of its Arizona counterpart. For the most part, however, both laws provide for the same exceptions. Compare Utah Code Ann. § 63-13-1.5(4), (5) with Ariz. Const. art. XXVIII, § 3(2)(a) - (e)). The Arizona court found those exceptions insufficient to save the Arizona law. See Ruiz, 957 P.2d at 997.

The English-Only Statute permits the government to use a language other than English when “required by” the Utah Constitution or federal constitution, laws, or regulations. While this may preserve, e.g. the right of a criminal defendant to an interpreter, which has held to be protected under the federal constitution (United States ex rel. Negron v. New York, 434 F.2d 386, 390-91 (2d Cir. 1970), it does not apply to the vast majority of situations outside the criminal defendant context where there is no precedent establishing an independent constitutional right to an interpreter. Thus, this exception does not significantly narrow the expansive reach of the statute’s bar. Nor does it change the basic constitutional analysis. The Arizona Supreme Court made specific reference to the fact that the communications it found unconstitutionally interfered with by the Arizona initiative were not communications that were compelled or required by law to be translated. See Ruiz, 957 P.2d at 1002. It was the ban on voluntary communication and not required communication that violated the Constitution.

The English-Only Statute does contain one unique and curious exception: “Nothing in this section affects the ability of government employees, private businesses, non-profit organizations, or private individuals to exercise their rights under the First Amendment of the United States Constitution and Utah Constitution, Article 1, Sections 1 and 15.” See Utah Code Ann. § 63-13-1.5(7). That provision cannot save the English-Only Statute for four reasons.

First, on its face it does not apply to people like plaintiffs Suazo, Garcia, Maryboy, and Yapias, who are not “governmental employees” but elected or appointed officials, guaranteed the widest latitude to express their views on policy. Second, the provision only adds to the Statute’s vagueness (discussed more fully in Section II.B.3.b, infra). Indeed, it is like Professor Tribe’s classic example of a vague statute: “It shall be a crime to say anything in public unless the speech is protected by the first and fourteenth amendments.” See L. Tribe, American Constitutional Law §§ 12-29, at 1031 (2d ed. 1988) (concluding that such a statute is “patently vague”). Third, because a state statute cannot in any case supersede the federal or state constitutions, the provision does nothing more than make explicit an existing implicit limit on the state’s power to legislate in this area, and is therefore mere surplusage.

Fourth, even if it were possible to grant the provision some ameliorative effect on the Statute’s First Amendment implications, it does not address the Statute’s Equal Protection implications. As discussed in more detail below (see Section II.C, infra), the Utah constitutional guarantee that the laws have “uniform application” requires at a minimum a close fit between the asserted state objective and the means employed. As the Arizona court stated: “The [Arizona law’s] goal to promote English as a common language does not require a general prohibition on non-English usage. English can be promoted without prohibiting the use of other languages by state and local governments.” Ruiz, 957 P.2d at 1001.

Plaintiffs wish to emphasize, as did the Arizona court, the limited nature of their position and of the injunction they seek. To grant plaintiffs the requested relief, this Court need not “undertake to define the constitutional parameters of officially promoting English, as distinguished from banning non-English speech.” Id. at 1002. Plaintiffs do not ask this Court to “denigrate efforts to encourage English as a common language.” Id. And by this action plaintiffs do not insist that “any governmental entity in [Utah] has a constitutional obligation to provide services in languages other than English, except, of course, to the extent required by federal law.” Id. All plaintiffs ask is that this Court apply well-established constitutional principles to ensure that any voluntary effort by public officials or entities to facilitate English proficiency not be barred in a manner that “run[s] afoul of constitutional requirements and individual liberties.” Id.

Plaintiffs believe that Ruiz alone provides a sufficient basis for the limited relief plaintiffs seek in preserving the status quo by means of a temporary injunction. (6) Nevertheless, in order to fully advise the Court on the serious and substantial issues the English-Only Statute raises under the Utah Constitution, plaintiffs now proceed with a discussion of those issues.

B. The English-Only Statute violates plaintiffs’ rights under Article I Sections 1 and 15 of the Utah Constitution.

The Utah Constitution guarantees all Utahns certain fundamental rights, including “the inherent and inalienable right to . . . petition for redress of grievances” and “to communicate freely their thoughts and opinions.” Utah Constitution, Art. I Sec. 1. It further guarantees that “[n]o law shall be passed to abridge or restrain the freedom of speech. . . .” Id., Art. I Sec. 15. These guarantees are at least as protective as those in the First Amendment to the United States Constitution. See KUTV v. Conder, 668 P.2d 513, 521 (Utah 1983); Provo City Corp v. Willden, 768 P.2d 455, 456 n.2 (Utah 1989). Thus, federal First Amendment principles establish a floor for this Court’s assessment of the English-Only Statute. See State v. Lafferty, 749 P.2d 1239, 1248 (Utah 1988).

In purpose and effect, the English-Only Statute bars government officials and employees from communicating with thousands of LEP Utahns in terms they can understand. That sweeping impact, evident on the face of the English-Only Statute, renders the English-Only Statute unconstitutional.

1. The English-Only Statute is directed at pure speech, and thus requires the most careful scrutiny.

The English-Only Statute is directed at pure speech. The purpose of speech is to make oneself understood; imparting a comprehensible message is the essence of communication. Communication involves a free exchange, with people both giving and receiving information. See Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) ("The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.") (Brennan, J., concurring). Clearly “‘the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press and political freedom.’” Ruiz, 957 P.2d at 997, quoting Board of Educ. v. Pico, 457 U.S. 853, 867 (1982). (7) “By requiring that government officials communicate only in a language which is incomprehensible to non-English speaking persons, the [English-Only Statute] effectively bars communication itself.” See Ruiz, 957 P.2d at 998.

As the Ninth Circuit stated in rejecting the suggestion that the Arizona law did not implicate pure speech concerns:

“To call a prohibition that precludes the conveying of information to thousands of Arizonans in a language they can comprehend a mere regulation of “mode of expression” is to miss entirely the basic point of First Amendment protections. . . . Speech in any language is still speech, and the decision to speak in another language is a decision involving speech alone.”

Yniguez, 69 F.3d at 936. See also Cohen v. California, 403 U.S. 15, 18 (1971) (reversing conviction under California “offensive conduct” law and stating that conviction rested “solely upon speech”).

Because it is expressly directed at pure speech, in the form of meaningful communication with non-English speakers, the English-Only Statute “poses a more immediate threat to First Amendment values than legislation which regulates conduct and only incidentally impinges upon speech.” See Ruiz, 957 P.2d at 999, citing United States v. O”Brien, 391 U.S. 367, 375, 382 (1968); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). “Laws ‘directed at speech’ and communication are subject to exacting scrutiny and must be ‘justified by the substantial showing of need that the First Amendment requires.’” Ruiz, 957 P.2d at 999, citing Texas v. Johnson, 491 U.S. 397, 406 (1989); First National Bank v. Bellotti, 435 U.S. 765, 786 (1978); Buckley v. Valeo, 424 U.S. 1, 16-17 (1976). This exacting scrutiny is even more searching because the English-Only Statute’s ban on pure speech is also ex ante. Rather than providing the basis for a post hoc punishment of a public employee’s speech, it is a "wholesale deterrent to a broad category of expression by a massive number of potential speakers" and thus "chills potential speech before it happens." See NTEU, 513 U.S. at 467-68.

2. The English-Only Statute infringes upon the fundamental, inalienable rights to petition government and to express views and opinions.

The right to petition for redress of grievances is expressly recognized as an “inalienable” right under Article I, Section 1 of the Utah Constitution. This right lies at the very core of our democracy. McDonald v. Smith, 472 U.S. 479, 482-83, 485 (1985); United Mine Workers v. Illinois State Bar Ass’n., 389 U.S. 217, 222 (1967) (right to petition is "among the most precious of the liberties safeguarded by the Bill of Rights"); U.S. v. Cruikshank, 92 U.S. (2 Otto) 542, 552 (1876) (the right of the people to assemble and to petition their government for a redress of grievances is inherent in the concept of a republican form of government). (8) The right broadly protects "[g]reat secular causes[ ] with small ones" – causes that are "not confined to any field of human interest," Thomas v. Collins, 323 U.S. 516, 531 (1945) – and bars state interference with access to the legislature, the executive branch and its various agencies, and the judicial branch. (9)

The English-Only Statute stands this right on its head. Far from protecting and facilitating communication between the people and the government, the Statute erects a permanent linguistic barrier between non-English speakers and every branch and agency of their government on an almost limitless variety of subjects. It interferes not only with direct attempts to communicate with elected officials, but also with everyday activities and communications most citizens take for granted, burdening the non-English speaking resident who seeks to take issue with her municipal utility charges, to address his city council or school board, to contest an eviction from public housing, or to challenge the suspension of her child from school. In this way, the English-Only Statute offends fundamental constitutional values essential to the functioning of our democracy. See Bellotti, 435 U.S. at 776-777; Thomas, 323 U.S. at 529-32.

Furthermore, by categorically prohibiting public employees and officials from communicating in any non-English language (or even using non-English words), the English-Only Statute effectively bars language minorities from receiving important, often vital, governmental information. Under the Statute, government employees are no longer able to communicate in Spanish, Navajo, or Vietnamese about a proposed redevelopment project, a water conservation program, consumer fraud, job training opportunities, wage and hour laws, changes in hunting and fishing regulations, the contemplated closure of a local school, or countless other subjects. The Statute thus impairs the public’s right "to receive information and ideas." See Virginia State Bd. of Pharmacy, 425 U.S. at 757, quoting Kleindienst v. Mandel, 408 U.S. 753, 762-63 (1972).

Finally, just like the Arizona law, the English-Only Statute “effectively cuts off governmental communication with thousands of limited-English-proficient and non-English-speaking persons in [Utah], even when the officials and employees have the ability and desire to communicate in a language understandable to them.” See Ruiz, 957 P.2d at 942, 947; Yniguez, 69 F.3d at 933. That does not further the free and informed exchange of views and opinions guaranteed as an inalienable right under the Utah Constitution.

While the English-Only Statute purports to permit communications in languages other than English to the extent required by law, it bans even voluntary and willing communication in any non-English language by any public official or employee, including those at the state or local level, regardless of the importance of the communication to the government or the public. Indeed, as an example of the Statute’s breadth, one of the plaintiffs here is a state legislator, who enjoys the “‘widest latitude to express [his] views of policy.’” See Ruiz, 957 P.2d at 998 (citation omitted); Yniguez, 69 F.3d at 950-51 (Brunetti, J., concurring). The English-Only Statute would prevent him and other elected and appointed officials from speaking their constituents’ primary language, even when necessary to communicate effectively. This “contravenes core principles and values undergirding the First Amendment” and Article 1 Sections 1 and 15 of the Utah Constitution. See Ruiz, 957 P.2d at 998.

3. The English-Only Statute is also vague and overbroad.

The English-Only Statute is unavoidably overbroad; it constitutes a large-scale infringement of the First Amendment rights of public employees and officials and of non-English speaking residents of Utah. To the extent, if any, that its overbreadth is diminished through its exception for rights protected under the First Amendment, the English-Only Statute is impermissibly vague because it fails to give fair notice of what is prohibited and chills the exercise of constitutionally protected activity.

a. The English-Only statute is overbroad because it impermissibly suppresses a broad range of core First Amendment freedoms.

A law is unconstitutionally overbroad if it “reaches a substantial amount of constitutionally protected conduct.” Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982). A statute so broad that it “prohibit(s) constitutionally protected activity” may violate due process (State v. Frampton, 737 P.2d 183, 192 (Utah 1987)) as well as the First Amendment. Provo City Corp. v. Willden, 768 P.2d 455, 458 (Utah 1989). The degree of overbreadth must be real and substantial in comparison to the law’s legitimate reach. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973); Board of Airport Comm’rs, v. Jews for Jesus, 482 U.S. 569, 574 (1987) (there must be “a realistic danger” that the law will “significantly compromise recognized First Amendment protections”); Provo City v. Whatcott, 1 P.3d 1113, 1115 (2000). The requisite degree of substantiality diminishes where, as here, pure speech is regulated. Broadrick, 413 U.S. at 612-13.

Applying these standards, the English-Only Statute is impermissibly overbroad. Even assuming that the state may properly require its employees and officials to use only English in certain limited contexts, the English-Only Statute not only reaches, but unavoidably suppresses, a much broader range of core First Amendment speech. See id. at 613; Board of Airport Comm’rs, 482 U.S. at 574. As discussed above, the English-Only Statute significantly compromises the free speech rights of all state and local employees, even though there are many instances where their speech is a matter of public concern and the interest in permitting that speech plainly outweighs the state’s interest in prohibiting it. See Yniguez, 69 F.3d at 938-42. Elected officials would likewise have their free speech rights severely restricted, even though communication between elected officials and their constituents lies at the core of the democratic process. See id. at 950-51 (Brunetti, J., concurring). Finally, the English-Only Statute significantly restricts the First Amendment rights of LEP residents to receive all kinds of vital government information, to communicate with the government about a vast array of legitimate mattes, and to petition for redress of grievances.

b. The English-Only Statute is vague because it fails to provide fair warning of what is prohibited and chills free speech.

A law is unconstitutionally vague if “a person of normal intelligence must guess at its meaning and differ as to its application.” Connally v. General Constr., 269 U.S. 385, 391 (1926); Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (“[W]e insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.”); Bd. of Comm’rs of the Utah State Bar v. Petersen, 937 P.2d 1263, 1267 (Utah 1997) (law is unconstitutionally vague if it is not “sufficiently explicit to inform the ordinary reader what conduct is prohibited”).

The degree of vagueness that the Constitution tolerates depends on the nature of the law. As the Supreme Court has emphasized, “where a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were closely marked.” Grayned, 408 U.S. at 109 (citations and internal quotation marks omitted). Accordingly, where a law threatens to chill free speech rights, “a more stringent vagueness test” applies. Village of Hoffman Estates, 455 U.S. at 499 (“[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.”); NAACP v. Button, 371 U.S. 415, 432-33, 438 (1963) (stating that “[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms” and “standards of permissible statutory vagueness are strict in the area of free expression”); Greenwood v. City of North Salt Lake, 817 P.2d 816, 820 (Utah 1991).

Because the English-Only Statute explicitly and broadly interferes with fundamental First Amendment freedoms in a wide array of applications, it must satisfy a strict standard of precision to avoid chilling the exercise of those freedoms by the public officials and employees and LEP residents. See Village of Hoffman Estates, 455 U.S. at 499; Button, 371 U.S. at 438. Judged by these standards, the English-Only Statute is impermissibly vague.

There is widespread disagreement and confusion over what the English-Only Statute does. As noted above, the Attorney General has suggested that the Statute will terminate all non-English services and communications not exempt by Section 4 of the law. See Clark Decl., Exhibit 1. On the other hand, a proponent who helped draft the English-Only Statute has reportedly said it is merely a policy statement that leaves implementation up to the state legislature, and that even she “can’t answer” how it might be applied. See Clark Decl., Exhibit 11 [“What would ‘English-Only’ mean?”, Deseret News, October 18, 2000] at 2. Another backer reportedly said “it will be up to state employees and Utah politicians to interpret the law.” See Clark Decl., Exhibit 12 [“English Only: Proponents Say It Will Unite Americans; Opponents See Sinister Motives,” Salt Lake Tribune, October 22, 2000] at 4. It is no wonder that government officials profess they do not know what services it will affect. Id, Exhibit 10.

These conflicting views and uncertainties illustrate the English-Only Statute’s fundamental vagueness, which its ill-defined exemptions only underscore. The exemption for language other than English when “required by law enforcement or public health and safety needs” contains no standards or specific guidance as to the circumstances to which the exemption applies. What are “public health” needs? Does this exemption apply to the delivery of individual medical care at a public hospital such as treatment of an LEP patient for diabetes or cancer? Does it apply to drug abuse counseling administered to an individual patient? Or does it apply only to such public programs such as a flu vaccination or anti-smoking campaigns? Does the exception for “law enforcement” needs apply only to translators for criminal defendants or does it apply to civil defendants? What about crime victims or witnesses? Does it apply to driver’s license exams? By what standards are the answers to these questions to be derived? More importantly, how is a person of ordinary intelligence supposed to know the answer?

Other exemptions create even more vagueness. The exemption for non-English languages “required” by the state or federal constitution not only fails to cure the statute of its overbreadth, it also fails to provide the necessary degree of precision because it leaves people to guess at what is prohibited and what is permitted. See Grayned, 408 U.S. at 108; Connally, 269 U.S. at 391; Rubin v. Santa Monica, 823 F. Supp. 709, 713 (C.D. Cal. 1993) (“[T]he ordinance’s First Amendment exception fails to provide notice to either individuals or administrators of what conduct is permissible and what conduct is prohibited”). It assumes that persons of ordinary intelligence will be not only familiar with a vast and complicated area of constitutional law, but also capable of applying it to specific situations that even legal scholars can find debatable. That renders the Statute impermissibly vague. See Winters v. New York, 333 U.S. 507, 518 (1948) (“[C]ourts must do their best to determine whether or not the vagueness is of such a character that ‘men of common intelligence must necessarily guess at its meaning.’”) (citation omitted).

Finally, the Statute’s statement that it does not affect “the ability of government employees, private businesses, non-profit organizations, or private individuals to exercise their rights under” the First Amendment and Article 1 of the Utah Constitution, is also impermissibly vague. See Rubin, 823 F. Supp. at 713 (ordinance requiring permits for assemblies in city parks unconstitutionally vague even though it contained exception for groups gathered to convey messages protected by the First Amendment). Indeed, all that statement does is attempt to shift to plaintiffs the burden of articulating the circumstances under which speech is and is not permitted, with the unavoidable consequence of forcing them to steer wide of the mark of what is prohibited and chilling the exercise of fundamental freedoms. See Grayned, 408 U.S. at 109; See also NTEU, 573 U.S. at 467-68 (“Wholesale deterrent to broad category of expression by massive number of potential speakers . . . chills potential speech before it happens.”) The English-Only Statute is therefore unconstitutionally vague.

C. The English-Only Statute violates the constitutional requirements of equal protection and uniform operation of laws.

The English-Only Statute purposefully and systematically discriminates against Utah’s LEP residents, virtually all of whom are ethnic and national origin minorities. The English-Only Statute thus violates the Utah Constitution’s guarantees of equal protection, uniform operation of laws, and due process, provided by Article I, Sections 2, 7, and 24 respectively.

The Utah Constitution’s guarantee of equality is embodied in two provisions. Article I, Section 2 provides: “All political power is inherent in the people; and all free governments are founded on their authority for their equal protection and benefit.” Article I, Section 24 provides: “All laws of a general nature shall have uniform operation.” Although Utah courts have relied on both provisions in analyzing claims of discrimination, (10) Article I, Section 24 in particular is viewed as functionally equivalent to the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. See Malan, 693 P.2d at 669 n.13 (although Art. I, § 2 is “relevant to the construction of Article I, § 24, it is more a statement of a purpose of government than a legal standard”).

Significantly, Article I, Section 24 “is at least as exacting and, in some circumstances, more rigorous than the standard applied under the federal constitution.” Mountain Fuel Supply Co. v. Salt Lake City Corp., 752 P.2d 884, 889 (Utah 1988). Accordingly, the federal equal protection cases set a standard for evaluating the challenge under Article I, Section 24 in this case.

1. The English-Only Statute violates uniform operation of the laws.

As the Utah Supreme Court noted in Malan, Article I Section 24 embodies two important principles. First, “persons similarly situated should be treated similarly”; and second, “persons in different circumstances should not be treated as if their circumstances were the same.” 693 P.2d at 669. The English-Only Statute violates both principles.

The English-Only Statute explicitly singles out for unfavorable treatment those Utahns who are not proficient in English. It does not prohibit the government from taking steps to facilitate communication with those who are visually or hearing impaired. Nothing in the law prevents public employees from using Braille or sign language as necessary to effectively communicate. Nor does the law prevent public agencies from making special efforts to accommodate those English-speakers who are illiterate. Nothing in the law requires a special accounting for and return of any state funds appropriated for the provision of such services. Only Utah’s language minorities are subject to a specific ban on governmental communications and state funding. Clearly, under the English-Only Statute, language minorities are not treated similarly to others who may need assistance in communicating with government.

At the same time, the English-Only Statute treats language minorities “as if their circumstances were the same” as English-speaking residents. By mandating the blanket withdrawal of foreign language assistance to non-English speakers and requiring that nearly all communications and services be in English, the English-Only Statute ignores the obvious difference in needs presented by English and non-English speakers. As the U.S. Supreme Court observed in Lau v. Nichols, 414 U.S. 563, 566 (1974), in addressing the failure of the San Francisco School District to address the special needs of LEP students, “there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education.” Likewise, there is no equality of treatment merely by providing government information and services solely in English. Utah citizens unable to understand and communicate in English are effectively foreclosed from access to government.

2. Under long-established equal protection jurisprudence, the English-Only Statute is subject to strict scrutiny because it infringes fundamental rights.

Not only are the English-Only Statute’s classifications discriminatory, but they also affect fundamental rights. Such classifications are subject to strict judicial scrutiny. Clark v. Jeter, 486 U.S. 456, 461 (1998); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 2 (1973); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 670 (1966). While the Utah appellate courts have not had occasion to apply fundamental interest analysis, they recognize its applicability. See J.J.N.P. Co. v. State, 655 P.2d 1133, 1137-38 (Utah 1982); Campbell v. Campbell, 896 P.2d 635, 642 (Utah 1995).

Under equal protection jurisprudence, strict scrutiny has been applied to classifications that infringe upon such fundamental rights as the right to participate in the political process (Harper, 383 U.S. at 670; Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982)), freedom of speech (Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96-97 (1972); Carey v. Brown, 447 U.S. 455, 461-62 (1980)), and the right to engage in political expression (Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 666 (1990)). Importantly, the application of strict scrutiny does not require the outright denial or substantive violation of the fundamental right affected by the classification; that some may be able to pay a poll tax (Harper) or that the restriction on speech is constitutional under an independent First Amendment analysis (Austin) does not obviate strict scrutiny of the discriminatory classification under equal protection principles. All that is required to trigger strict scrutiny is that the classification “infringe substantially” a fundamental right. Campbell, 896 P.2d at 642. (11)

a. The right to free speech and to petition for redress of grievances

As demonstrated above, the English-Only Statute infringes upon the right of non- and limited-English proficient residents of Utah to receive information from and communicate with governmental agencies and officials. Like the law struck down in Ruiz, the English-Only Statute “deprives limited- and non-English speaking persons of access to information about the government when multilingual access may be available and may be necessary to ensure fair and effective delivery of governmental services to non-English-speaking persons.” Ruiz, 957 P.2d at 997. The English-Only Statute’s sweeping interference with the right to receive such important governmental information infringes upon the right to free speech. Id.; NTEU, 513 U.S. at 470; Virginia State Bd. of Pharmacy, 425 U.S. at 757.

Moreover, by codifying a permanent linguistic barrier between non-English speakers and their government on any issue in which they might be interested, the English-Only Statute substantially burdens their right to petition for redress of grievances, an “inalienable” right explicitly protected under Article I, Section 1. See Noerr, 365 U.S. at 137 ("the whole concept of representation depends on the ability of the people to make their wishes known to their representatives"). The English-Only Statute not only obstructs basic petitioning activities directed at elected officials and legislative bodies by those not proficient in English, it reaches everyday activities and communications most citizens take for granted. In this way, the Statute precludes those who do not speak English from the everyday business of our democracy and thus infringes deeply upon the right to petition. “By permanently implementing a linguistic barrier between persons and the government they have a right to petition, the [English-Only Statute] substantially burdens First Amendment rights.” Ruiz, 957 P.2d at 1001.

b. The right to participate equally in the political process

The English-Only Statute also infringes upon the fundamental right of language minorities to participate equally in the political process. By prohibiting all state agencies and local governmental bodies from using non-English languages, the Statute not only denies non-English speaking residents access to services and information, it also denies them equal access to basic political institutions and processes.

The English-Only Statute effectively prevents language minorities from seeking beneficial legislation or policies – e.g., for multilingual services – through normal political processes before city councils, county boards, local school boards, or state agencies. It effectively precludes LEP residents and their advocates from lobbying, for instance, the Salt Lake City Council for legislation or policies providing foreign language assistance by city departments, because such legislation or policies would be legally barred. To obtain local benefits, these groups would first have to persuade the State Legislature and Governor to amend the English-Only Statute. While groups such as the physically challenged, the elderly, and others may seek beneficial legislation from any level of government, language minorities are denied access to the local political process and must seek legislation from a far more remote level of government – the State Legislature and Governor.

The English-Only Statute thus "places special burdens on [language] minorities within the governmental process." Hunter v. Erickson, 393 U.S. 385, 391 (1969) (citation omitted, emphasis added). As the court held in Hunter, which dealt with similarly disadvantaged minority groups precluded from obtaining fair housing laws at the local level: “The State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another or comparable size. Id. at 393 (emphasis added). The English-Only Statute “distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation” by “lodging decision-making authority at a new and remote level of government." Washington v. Seattle School District No. 1, 458 U.S. 457, 467, 483-84 (1982) (invalidating an initiative that effectively prevented local school districts from carrying out voluntary racial desegregation programs, requiring that voluntary desegregation could only be obtained through state legislation).

Denying language minorities their right to participate equally in the normal political process violates the fundamental constitutional right of all citizens to participate in and have access to the processes of government, a right that is perhaps "the fundamental principle of representative government in this country." Reynolds v. Simms, 377 U.S. 533, 560, 556-68 (1964); see also Evans v. Romer, 854 P.2d 1270, 1276 (Colo. 1993), cert. denied, 114 S.Ct. 416 (1993) ("the Equal Protection Clause guarantees the fundamental right to participate equally in the political process and . . . any attempt to infringe on an independently identifiable group’s ability to exercise that right is subject to strict judicial scrutiny"). (12)

By banning legislation and policies providing for any multilingual governmental services, and virtually precluding access of language minorities to government generally, the English-Only Statute effectively excludes language minorities from political life. Because both the fundamental right to participate equally in the political process and the right of free speech and to petition for redress of grievances are infringed, the English-Only Statute is subject to strict judicial scrutiny.

3. The English-Only Statute is subject to strict scrutiny because it discriminates on the basis of a suspect classification.

Laws involving "suspect" classifications, e.g., those founded on race, national origin, or alienage, are also subject to strict scrutiny, and will survive only if they are narrowly tailored to serve a compelling state interest. Loving v. Virginia, 388 U.S. 1, 11 (1967) (race); Hernandez v. Texas, 347 U.S. 475, 480 n.12 (1954) (national origin); Graham v. Richardson, 403 U.S. 365, 372 (1971) (alienage).

Suspect classification analysis should apply to the English-Only Statute for two reasons. First, the close nexus between language and national origin, the statute’s purposeful singling out non-English-speakers for disparate treatment, and the proponents’ use of false and defamatory stereotypes designed to appeal to anti-immigrant and racist sentiments, counsel treating the Statute’s discrimination against language minorities as functionally equivalent to discrimination on the basis of national origin. Second, the social and political characteristics the courts have traditionally recognized to be indicia of "suspectness" establish that language minorities, as a group, are precisely the type of discrete, insular and vulnerable minority that the “suspect classification” analysis was designed to identify and protect.

a. The English-Only Statute’s purposeful singling out of language minorities is the functional equivalent of national origin discrimination.

There is a close nexus generally between primary language and national origin. The vast majority of non-English in the United States speakers are national origin minorities. See Estrada, The Extent of Spanish/English Bilingualism in the United States, 15 Aztlan Int”l J. Chicano Studies Res. 379, 381, 383 (1984) (97% of those who usually speak Spanish are of Hispanic origin; approximately 77% of American Hispanics speak Spanish); Statistical Record of Asian Americans 128 (Gall & Gall, eds., (1993) (high correlation between language and national origin among Asian Pacific Islanders).

Moreover, language is the prime symbol of ethnicity, a central aspect of the ethnic identity of national origin minorities. Fishman, Language and Ethnicity, in Language, Ethnicity & Intergroup Relations 23, 25-26 (Giles, ed., 1977). To many Americans, speech is a cultural indicator second in importance only to physical appearance. Conklin & Louie, A Host of Tongues; Language Communities in the United States 279 (1983). Language is often a proxy for race and ethnicity. See Gutierrez v. Municipal Court, 838 F.2d 1031, 1039 (9th Cir. 1988), vacated as moot, 490 U.S. 1016 (1989). See also Califa, Declaring English the Official Language: Prejudice Spoken Here, 24 Harv. C. R. - C. L. Rev. 293 (1989).

The Supreme Court regarded the link between ethnicity and language as self-evident in Hernandez v. Texas, 347 U.S. at 480 n.12 (Spanish surnames "provide ready identification of the members of this [Mexican-American] class") and Castaneda v. Partida, 430 U.S. 482, 486 n.5 (1977) (Mexican-American ethnicity synonymous with "[p]ersons of Spanish language"). See also Yu Cong Eng v. Trinidad, 271 U.S. 500, 528 (1926) (Philippine ordinance requiring accounting records to be kept only in English, Spanish or local dialects denied equal protection to Chinese merchants because it prohibited them from keeping records in their native language); Lau v. Nichols, 414 U.S. 563, 568-69 (1974) (failure of San Francisco public schools to provide educational services to non-English-speaking students constitutes national origin discrimination violating Title VI of the Civil Rights Act of 1964).

Other courts, both federal and state, (13) as well as academic opinion, (14) also acknowledge the close association between an individual’s primary language and national origin. While not all forms of language discrimination may be equated with race or national origin discrimination, the Supreme Court, in addressing an equal protection challenge to the exclusion of Spanish-speaking Hispanics from a criminal jury, observed: “It may well be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis.” Hernandez v. New York, 500 U.S. 352, 412-13 (1991) (emphasis added). For a number of reasons, this is one of those circumstances where language discrimination should be treated as functionally equivalent to national origin discrimination.

First, there is a close correlation between language and ethnic or national origin status in Utah. As of the 1990 Census, nearly half of all Utah LEP residents were Hispanic, and Asians and Hispanics together constituted 72% of the LEP population. See Clark Decl., Exhibit 2. Based on the 1999 estimates, among Hispanics age 5 and over, more than 22,000 people, or more than 17% of the Hispanic population, do not speak English well; among Asians and Pacific Islanders, the number is 15,737, or more than 32% of that population; and among Native Americans, the number is 5,318, or nearly 20% of that population. See Willigan Aff., ¶ 4. By contrast, only about 1% of the White Non-Hispanic population does not speak English well, and that group comprises almost 89% of the population. Id. As a result, the impact of the English-Only Statute overwhelmingly will fall on the Hispanic, Asian and Native American populations in Utah. Id.

Second, the English-Only Statute purposefully imposes broad and systemic discrimination against language minorities, withdrawing important services, access to vital information, and means of communicating with government. It also distorts and denies them equal participation in the political process. And to ensure that governmental agencies do not continue to provide non-English services or communications, the English-Only Statute provides that “all state funds appropriated or designated for the printing or translation of materials or the provision or services or information in a language other than English shall be returned to the General Fund.” Utah Code Ann. § 63-13-1.5(6). Unlike some situations where the failure to accommodate non-English speakers is ad hoc and caused by either practical considerations or mere oversight, the wide-ranging and systemic discriminatory impact the English-Only Statute inflicts upon LEP speakers is deliberate and purposeful. Its avowed purpose is to create harsh and punitive incentives in order to "encourage" language minorities to learn English. Since the English-Only Statute was enacted "because of," and not merely "in spite of," its discriminatory impact upon Utah’s language minorities, Feeney, 442 U.S. at 279, and “imposes a special disability upon those persons alone,” Romer v. Evans, 517 U.S. 620, 631 (1996), it is inherently more invidious than cases in which there is a mere failure to provide some particular notice or service in Spanish. (15)

Third, the proponents’ arguments in support of the English-Only Statute exploit public antagonisms against immigrants by means of false and demeaning stereotypes. The official argument for English-Only Statute contrasts current immigrants with earlier immigrants, implying that current immigrants (who are predominantly Latino) are not adopting English or assimilating into “our culture,” but are demanding instead a wide array of services in their language in order to maintain their own national identity, all to the detriment of the public good. See Clark Decl., Exhibit 13 [Arguments For and Against Initiative A], p. 1. Indeed, the proponents claim that these immigrants threaten to make the state a “Tower of Babel of nationalities divided by language.” Id. These false and defamatory stereotypes are code words that appeal to base anti-immigrant and racial sentiments.

Under these circumstances, the English-Only Statute’s purposeful discrimination against language minorities should be treated as national origin discrimination, a traditional suspect classification. See Califa, supra, at 334 ("A law that targets Spanish monolinguals implicitly targets Hispanics").

b. Language minorities comprise a suspect classification characterized by the traditional indicia of "suspectness."

In San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), the U.S. Supreme Court identified the criteria characterizing a "suspect" classification for equal protection purposes. Such a class must be “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Id. at 28; see also United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) ("prejudice against discrete and insular minorities" may require more searching judicial inquiry). The Court has also looked to whether the subject class has been stigmatized by governmental action, Regents of Univ. of California v. Bakke, 438 U.S. 265, 294 n.34 (1978) (Powell, J.), or whether its members possess characteristics that are readily identifiable or relatively immutable, Frontiero v. Richardson, 411 U.S. 677, 686 (1973). (16)

In extending suspect status to classifications founded upon race, national origin, and alienage, the Court has recognized that "community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact." Hernandez v. Texas, 347 U.S. at 478 (defining Mexican-Americans as a suspect class). Language minorities who are adversely affected by the English-Only Statute fully satisfy the established criteria for "suspect" class status.

Social and political disabilities. Linguistic minorities have historically been subjected to disabling burdens in crucial aspects of their political and social life, including voting, education, legal proceedings, and business regulation. Thus, in enacting the Voting Rights Act, Congress expressly found:

“[V]oting discrimination against citizens of language minorities is pervasive and national in scope. Such minority citizens are from environments in which the dominant language is other than English. In addition, they have been denied equal educational opportunities by State and local governments, resulting in severe disabilities and continuing illiteracy in the English language. The Congress further finds that, where State and local official conduct elections only in English, language minority citizens are excluded from participating in the electoral process. In many areas of the country, this exclusion is aggravated by acts of physical, economic, and political intimidation.”

42 U.S.C. §1973b(f)(1).

Statistical data also bear out the close correlation between lack of English language proficiency and lower socioeconomic status. For example, 1980 Census data indicate that, compared to English speakers, limited English speakers were more than two to three times as likely to have incomes below the poverty line, to have had far fewer years of formal education, and to be unemployed. 1980 Census of Population: Detailed Population Characteristics, United States Summary, at 623-26 - 623-27.

Historical unequal treatment and political powerlessness. As the U.S. Supreme Court has recognized, Spanish-speakers have "suffered from, and continue to suffer from, the results and effects of invidious discrimination in the fields of education, employment, economics, health, politics and others," and “the typical Mexican-American suffers a cultural and language barrier that makes his participation in community processes very difficult . . .” White v. Regester, 412 U.S. 755, 768 (1973). (17) See also Califa, supra¸ at 335 n 262 ("[a] factual inquiry into the experiences of Spanish-speakers in the United States will reveal the history of purposeful unequal treatment against them, as well as the social disabilities and political powerlessness they endure").

Speakers of other languages have also been the victims of selective and purposeful governmental bias, notably with respect to immigration and suffrage policies, with the added purpose and effect of excluding them from political office and other occupations. See Leibowitz, English Literacy: Legal Sanction for Discrimination, 45 Notre Dame L. Rev. 7, 25-40 (1969) (emphasis added). (18) Indeed, the very nature of exclusionary language policies obviously deprives those adversely affected by them of access to the political system. See “Official English,” supra, at 1354 (political powerlessness of non-English speakers heightened by the simple fact that a disproportionate number of them are not citizens and cannot vote). (19)

These problems are particularly acute in relation to Utah’s Native American population. Indians in San Juan County historically have faced and continue to face significant obstacles to full and equal participation in the political process, including equal access to the ballot box and the political process. See Swenson Affidavit, ¶ 6. It was not until 1987 that plaintiff Maryboy became the first Native American ever elected to a County Commission seat in Utah. See Maryboy Aff., ¶ 2.

Stigma. Especially in the educational context, language minority groups have been effectively stigmatized by governmental refusal to recognize the legitimacy of their primary tongue. For example, official rejection of bilingual education has engendered attitudes of inferiority among, and endangered the academic performance of, non-proficient and even partially proficient English speakers (for instance, those who speak accented English). (20) Lau, 414 U.S. at 568 (Chinese-speaking children deprived of meaningful opportunity to participate in [English-Only] educational program); Grubb, Breaking the Language Barrier: The Right to Bilingual Education, 9 Harv. C.R.-C.L. Rev. 52, 55-56 (1974); U.S. Commission on Civil Rights, A Better Chance to Learn: Bilingual Bicultural Education 146-47 (1975) (Spanish speakers stigmatized due to public school systems’ official rejection of Spanish). Cf. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence of the Last Reconstruction, 100 Yale L.J. 1329, 1343-67 (1991) ("Speech . . . positions people socially. In many societies, certain dialects and accents are associated with wealth and power. Others are low-status, with negative connotations") (citations omitted).

Again, these problems are unfortunately prominent in Utah. It took decades of litigation, which continues to this day, to establish the basic right to an education for Native American children in the San Juan County School District. See Swenson Aff., ¶¶ 4-5. The results of that litigation include a consent decree requiring, among other things, bilingual educational services. Id. ¶ 5. Language itself has been at times the focal point of this litigation. Id. While litigation has produces some success in addressing the problems attributable to language discrimination, problems remain. Id.; see also Clark Decl., Exhibit 14 [“Boost Sought for Indian Education,” Salt Lake Tribune, October 27, 2000].

Immutability. Finally, not only does a lack of fluency in English readily identify members of linguistic minorities, but this lack of native fluency is difficult and most often impossible to overcome: these people may never be able to become as fluent as their English-speaking counterparts, particularly if they have no access to bilingual instruction. (21) See Garcia v. Gloor, 618 F.2d 264, 270 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1981) ("To a person who speaks only one tongue or to a person who has difficulty using another language than the one spoken in his home, language might well be an immutable characteristic like skin color, sex or place of birth").

In sum, all of the traditional indicia of "suspect" class status the Court recognized in San Antonio establish that linguistic minorities should be viewed as a suspect classification for equal protection purposes.

D. The English-Only Statute cannot survive strict scrutiny because it is not narrowly tailored to achieve a compelling state interest.

The proponents of the English-Only Statute assert two major justifications for restricting foreign language services and communications. First, they claim that the restriction “continues an American tradition of uniting under a common language.” See Clark Decl., Exhibit 13, p. 1. Second, they contend that the measure will “benefit the many immigrants to our state” by encouraging them to learn English. Id. These asserted justifications are based upon false premises and, in any event, the English-Only Statute does not effectively further these interests.

The proponents claim that it has been “self-evident” since the founding of our nation that English would be the “language of the land,” and that the “First Great Wave of Immigrants” (in contrast to today’s immigrants) became part of the United State by adopting a new language and a new national identity. Id. They claim that because of “politically correct ‘multiculturalists,’” immigrants today are encouraged instead to maintain their own national identity, are discouraged from assimilating, and that “Americans should be expected to learn the language of immigrant” rather than vice versa. Id.

Such inflammatory claims are false and unfair. First, it was not at all “self evident” that English would be the “language of the land” to the exclusion of other major languages like German and Yiddish. To the contrary, the United States from the outset has accommodated many languages. The Articles of Confederation were printed in German for the benefit of German-speaking patriots, as were the official minutes of many town meetings in the Midwest after the nation was founded. Leibowitz, The Official Character of Language in the U.S.: Literacy Requirements for Immigration, Citizenship and Entrance Into American Life, 15 Aztlan Int”l J. Chicano Stud. Res. at 29.

Second, today’s immigrants are, in fact, learning English as fast, if not faster, than prior generations of immigrants. Studies show, for instance, that half of all recent Mexican immigrants in California already speak English. Among first-generation native-born Mexican-Americans, 95% are proficient in English; for second-generation Mexican-Americans the transformation is even more dramatic – at least 50% have lost proficiency in their native tongue and thus speak only English. Kevin F. McCarthy and R. Burciaga Valdez, Current and Future Effects of Mexican Immigration in California (The Rand Corp. 1985). Comprehensive studies demonstrate that the rate of linguistic assimilation of immigrants is just as rapid as it has been in previous generations. See Siobhan Nicolan and Rafael Valdivieso, The Veltman Report: What it Says, What it Means, intro. to Calvin Veltman, The Future of Spanish Language in the United States i-x (New York, Wash. D.C.: Hispanic Policy Dev. Project, 1988). A more recent study examining English acquisition of immigrants found that whereas only slightly more than 30% of 5 to 14 year old Latino immigrants spoke English very well in 1980, 70% spoke English very well ten years later in 1990. For Asian immigrants in the same group, the percentage went from a little over 40% to over 80% during that ten-year period. D. Myers, The Changing Immigrants of Southern California, Exh. 4.2, Lusk Center Research Institute, U.S.C. (1995).

The ultimate proof that immigrants are learning English is the fact that 97% of Americans and over 96% of Utahns already speak English. (22) Even within Utah’s largest single language minority, Spanish-speakers, over 85% speak English well or very well. See Clark Decl., Exhibit 2. The claim that language policies implemented at the behest of “politically correct ‘multiculturalists’” have retarded immigrants’ acquisition of English is therefore baseless.

The English-Only Statute is not needed to teach immigrants the importance of learning English. Immigrants more than any other Americans fully appreciate the importance of learning English. Each day they must negotiate the daily hardships of surviving in a society that is largely monolingual English, whether it is looking for a job, trying to get information about their children’s school, communicating with health providers, law enforcement officers or a bus driver, or even buying groceries or clothing. The portrait of immigrants obtaining so many services in their language that they can function well without English is baseless. One of the State’s large departments, Human Services, estimated in 1997 that it spends less than $7,000 annually in costs related to providing bilingual materials and translation services. See Clark Decl., Exhibit 7, pp. 2-3. And far from an overabundance of voluntary multilingual communication and services from government, Utah’s history has been one of numerous lawsuits arising from the failure of non-English speakers to be accorded even basic rights. See generally Swenson Aff., ¶¶ 2-8.

The fact is, immigrants desperately want to learn English, and are limited not by the lack of desire but by the lack of opportunity. A study conducted in the Miami area found that 98% of Latino parents surveyed, as compared to 94% of Anglo parents, felt it was essential for their children to read and write English perfectly. See The 1985 South Florida Latin Market (Strategy Research Corp. 1985). Throughout the United States, the demand for English as a Second Language training far outstrips supply, resulting in long lines and waiting lists for those classes that are available. See William B. Bliss, Providing Adult Basic Education Services to Adults with Limited English Proficiency, Report by Project on Adult Literacy of Southport Institute for Policy Analysis (1988). The situation is no different in Utah, where there are waiting lists for adult English classes. See Clark Decl., Exhibits 3 and 4.

Immigrants do not need a patronizing proclamation or punitive sanction – what they need are more resources and opportunities to learn English. The most direct and effective way for Utah to ensure that its residents learn English is through constructive measures such as increased funding for English as a Second Language classes and similar educational opportunities for non-English speakers. Yet, the English-Only Statute does nothing meaningful to increase real resources and opportunities for English learning. That fact underscores the ineffectiveness of the English-Only Statute as a means to achieve its purported goals.

Even if the English-Only Statute were an effective means by which to encourage the learning of English, which it is not, it is substantially overbroad. It effectively penalizes all Utah residents not proficient in English – barring them from access to government services, information, and communication – regardless of their circumstances, abilities or needs. It indiscriminately sweeps within its reach elderly residents who no longer have the same capacity to learn a new language, (23) recent immigrants who have not had an opportunity to learn English, and migrant workers who because of limited time and resources cannot enroll in adult English classes. For these individuals and many others, "language might well be an immutable characteristic like skin color, sex or place of birth." Garcia v. Gloor, 618 F.2d 264, 270 (5th Cir. 1980), cert. den. 449 U.S. 1113 (1981). The burdens the English-Only Statute imposes on these groups bear no substantial or reasonable relationship to its asserted goals.

Finally, the proponents’ argument that there is a need to “unite under a common language” is based on another false premise – that social unity is threatened by the existence of multiple languages. While no one questions the need for common bases for communication or the primacy of English as the lingua franca of our Nation, the mere existence of other languages (especially when less than 4% of the population is LEP) does not threaten the unity of our state or country.

In the early 1800’s, the percentage of Americans who spoke German was greater than the percentage who speak Spanish today. Drego Castellanos, A Polyglot Nation, in Language Loyalties 13, 17 (J. Crawford, ed. 1992). At the same time, bilingual education in German and Yiddish was common throughout Eastern cities and the Midwest. See Barch, Federal English, in Language Loyalties 40. The enclaves of French in Maine and Louisiana, Scandinavian languages in the northern states, Spanish in California and the southwest, and hundreds of Native American languages that continue to be spoken today throughout our nation have never seriously threatened the social fabric of our Nation – they have enriched it. (24)

What proponents fail to understand is that the social glue that holds our nation together is not the existence of a single language; rather it is our common commitment to freedom, equality, and democracy – bedrock principles that are threatened, rather than sustained, by intolerant and punitive measures such as the English-Only Statute. Indeed, rather than fostering unity, the suppression of non-"official" languages is actually counter-produc­tive to national unity. Throughout the world, tensions between groups over language have generally been the manifes­tation, not the cause, of underlying social problems; attempts to suppress one language invariably exacerbate the problem. (25)

The State’s attempt to forge societal unity through coercion is not only counterproductive, it is irreconcilable with basic constitutional principles. As the U.S. Supreme Court observed over a half-century ago:

“National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compul­sion as here employed is a permissible means for its achievement. [¶] . . . As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. . . . [¶] . . . [T]he First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.”

Barnette, 319 U.S. at 640-41. And as the Court even earlier stated in Meyer, 262 U.S. at 401:

“The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution – a desirable end cannot be promoted by prohibited means.”

That language is as pertinent today as it was almost 80 years ago.

III. PLAINTIFFS SATISFY THE REMAINING REQUIREMENTS FOR INJUNCTIVE RELIEF

A. Plaintiffs will suffer irreparable injury that greatly outweighs any purported harm to the State should the status quo be maintained.

As demonstrated above, the English-Only Statute violates plaintiffs’ fundamental rights to free speech, to petition the government for redress of grievances, and to equal protection protected under the Utah Constitution. These violations of plaintiffs’ constitutional rights constitute per se irreparable injury.

The United States Supreme Court has held that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976). The federal Tenth Circuit has followed that established rule. See Elam Const., Inc. v. Regional Transp. Dist., 129 F.3d 1343, 1347 (10th Cir. 1997); see also Community Communications Company, Inc. v. City of Boulder, Colorado, 660 F.2d 1370, 1376 (10th Cir. 1981) (citing Elrod favorably); 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948 (1973) ("When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary."); East High School PRISM Club v. Seidel, 95 F. Supp. 3d 1239, 1251 (D. Utah 2000).

In contrast to the sudden termination of services on which LEP resident must rely and the infringement upon the constitutional rights of public officials and employees and language minority population, no significant harm will befall the State should the English-Only Statute be enjoined and the status quo preserved pending this litigation. Indeed, given the proponents’ public representations that the English-Only Statute is primarily symbolic (see Clark Decl., Exhibits 11 and 12), it is difficult to discern the government’s interest in blocking plaintiffs’ speech and to measure the harm that the government might claim to suffer if an injunction issues. At most, the government will be permitted to maintain the status quo, at minimal cost.

B. A Preliminary Injunction will not be adverse to the public interest.

Allowing plaintiff officials and employees to exercise their free speech rights and plaintiff LEP residents to exercise their right to communicate and petition for redress of grievances is not adverse to the public interest; in fact, it advances the public interest. There is a broad public interest in honoring one of the most important rights that society hopes that all of its members, of whatever background or persuasion, learn to treasure: free speech. See ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999) (preliminary injunction against enforcement of state law criminalizing dissemination by computer of material that is harmful to a minor, due in part to public interest in protecting free expression); Shrink Missouri Government PAC v. Adams, 151 F.3d 763, 765 (8th Cir. 1998) (injunction against state campaign contribution limits, based on public interest in free speech); J.L. Spoons, Inc. v. City of Brunswick, 49 F. Supp. 2d 1032, 1047 (N.D. Ohio 1999) (“The public interest in protecting the freedom of expression in the face of a prior restraint is especially strong considering that such prior restraints ‘are the most serious and least tolerable infringements of First Amendment rights.’”) (citation omitted); East High School PRISM Club v. Seidel, 95 F. Supp. 3d at 1251 (public interest supported preliminary injunction ordering school official not to interfere with meetings of student club).

Because the English-Only Statute seriously threatens plaintiffs’ constitutional rights, the harm of denying injunctive relief threatens the public interest. See AIDS Action Committee of Massachusetts, Inc., 42 F.3d at 12 ("First Amendment litigation of this kind has consequences that go far beyond the individual parties"); Beerheide v. Zavaras, 997 F. Supp. 1405 (D. Colo. 1998) ("enforcement of the First Amendment . . . promotes every citizen’s fundamental right").

CONCLUSION

For all the foregoing reasons, the court should issue a preliminary injunction enjoining defendants from enforcing the English-Only Statute in a manner that results in the termination or diminution of services provided to or communications with LEP residents.

RESPECTFULLY SUBMITTED this 30th day of November, 2000.

GIAUQUE, CROCKETT, BENDINGER & PETERSON
Milo Steven Marsden
Adam B. Price

ACLU OF UTAH FOUNDATION, INC.
Stephen C. Clark

MULTI-CULTURAL LEGAL CENTER
Marlene Gonzalez

By: Milo Steven Marsden

Attorneys for Plaintiffs

FOOTNOTES

1. See Ruiz v. Hull, 957 P.2d 984 (Ariz. 1998), cert. denied sub nom. Arizonans for Official English v. Arizona, 525 U.S. 1093 (1999); Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir. 1995) (en banc), vacated on grounds of mootness sub nom. Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).

2. The Utah Supreme Court noted that, according to the official notes accompanying Rule 65A, these standards are derived from the federal court cases of Tri-State Generation & Transmission Ass’n v. Shoshone River Power Inc., 805 F.2d 351, 355 (10th Cir. 1986), and Otero Savings & Loan Ass’n v. Federal Reserve Bank, 665 F.2d 275, 278 (10th Cir. 1981).

3. This is dictum, as the court did not reach this issue. Plaintiffs do not concede that the Utah English-Only Statute would pass constitutional muster even if it had no practical effect and were therefore merely “symbolic.”

4. The Arizona law’s English-only mandate did not apply to the use of non-English languages in schools to educate students with limited English proficiency or to teach students a non-English language; where required by federal law; to protect public health or safety; or to protect the rights of criminal defendants or victims of crime. Ruiz, 957 P.2d at 1004.

5. Compare Utah Code Ann. 63-13-1.5(2), (3) (making English “the sole language of government,” and requiring “all official documents, transactions, proceedings, meetings, or publications issued, conducted, or regulated by, on behalf of, or representing the state and its political subdivisions to be in English”) with Ariz. Const. art. XXVIII, §§ 1(2), 1(3)(a)(iv), 3(1)(a) (making English “the language of . . . all government functions and actions,” and requiring that the state and its subdivisions – defined as “all government officials and employees during the performance of government business” – “act in English”).

6. Plaintiffs also apprise the Court that, following Ruiz and applying the same constitutional analysis, an Alaska trial court just a few months ago concluded that an Alaska ballot measure virtually identical to Arizona’s amendment and Utah’s English-Only Statute should be enjoined pending the outcome of litigation on the merits. See Kritz v. State of Alaska, Case No. 3DI99-12 CI, Findings of Fact and Conclusions of Law Supporting Preliminary Injunction, attached. Plaintiffs respectfully request that the Court take judicial notice of this recent decision under Rule 201(d) of the Utah Rules of Evidence.

7. See also Yniguez, 69 F.3d at 941 (“As the Court explained in [Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 757 (1976)], ‘freedom of speech necessarily protects the right to receive.’”); United States v. National Treasury Employees Union, 513 U.S. 454, 470 (1995) (“NTEU”) (“large-scale disincentive to Government employees’ expression also imposes significant burden on the public’s right to read and hear”).

8. See also Eastern R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 137 (1961) ("the whole concept of representation depends on the ability of the people to make their wishes known to their representatives"); Richmond Newspapers v. Virginia, 448 U.S. 555, 575 (1980) (First Amendment freedoms, including the right to petition for redress of grievances, "share a common core purpose of assuring freedom of communication on matters relating to the functioning of government").

9. See Noerr, 365 U.S. at 137-38 (legislature); United Mine Workers v. Pennington, 381 U.S. 657 (1965) (executive); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972) (administrative agencies); United Mine Workers v. Illinois State Bar Ass’n., 389 U.S. at 221 (courts).

10. See, e.g., Allen v. Intermountain Health Care, Inc., 635 P.2d 30 (Utah 1981) (Art. I, Sec. 2); Purdie v. University of Utah, 584 P.2d 831 (Utah 1978) (Art. I, §2); State v. Mohi, 901 P.2d 991 (Utah 1995); Lee v. Gaufin, 867 P.2d 572 (Utah 1993); (Art. I, § 24); Malan v. Lewis, 693 P.2d 661 (Utah 1984) (Art. I, Sec. 24).

11. Even where no fundamental right is involved, the Utah courts have applied closer scrutiny to challenged legislation than would be applied under federal Equal Protection analysis. For instance, in the context of economic regulations, the Utah Supreme Court has “developed a standard for reviewing legislative classifications under article I, section 24, which is at least as exacting and, in some circumstances, more rigorous than the standard applied under the federal constitution.” Mountain Fuel Supply Co., 752 P.2d at 889. The courts examine not only the language but also the effect of the challenged law to ensure uniformity. See State v. Mohi, 901 P.2d at 997. The courts require that classifications be based on differences that have a reasonable tendency to further the objectives of the statute; where the relationship between the classification and statutory objectives is “unreasonable or fanciful,” it will be struck down. Id. Significantly, the courts will not accept “any conceivable reason for the legislation,” but closely examine the legislative record and empirical evidence to test the reasonableness of the classification. Id. at 998-99 (there must be a ‘reasonable relationship’ between the purpose of the Act and the means adopted by the legislature to enact that purpose”). Under this standard, the Utah Supreme Court invalidated Utah’s guest statute barring certain claims for injury by motor vehicle guests (Malan) and the direct-file provision of the Juvenile Courts Act (Mohi). The Court has applied an even higher standard of scrutiny where the discrimination involves important rights such as those protected by the open courts provision of Article I, Section 11. See Lee v. Gaufin, 867 P.2d 572, 583 (1993) (classification must be “(1) reasonable, (2) have more than a speculative tendency to further the legislative objective and, in fact, actually and substantially furthers a valid legislative purpose, and (3) is reasonable necessary to further a legitimate legislative goal”). Finally, the Court has applied heightened scrutiny under the due process clause of Article I, Section 7, engaging in a balancing test in evaluating a law which impinges upon important rights: the court determines whether the “disability [sought to be] impose[d] is too great to be justified by the benefits accomplished or [if] the legislation is simply an arbitrary and impermissible shifting of collective burdens to individual citizens.” See Condemarin v. University Hospital, 775 P.2d 348, 358 (1989) (striking down provisions of State Governmental Immunity Act limiting claims against governmental entity). While the precise formulation in these cases may vary, each has applied heightened scrutiny inasmuch as the court refuses to speculate on justifications on behalf of the legislature, but examines the operation and effect of the statute to determine whether there is in fact a reasonable relationship between the means and ends of the statute.

12. In Romer, the Colorado Supreme Court struck down a Colorado constitutional initiative that barred "the State of Colorado, through any of its branches or departments, [and] any of its agencies, political subdivisions, municipalities or school districts" from enacting, adopting, or enforcing any civil rights legislation or policy protecting gays, lesbians, and bisexuals from discrimination. Like language minorities here, those groups were thus effectively barred from seeking beneficial policies or laws through the local political processes. The Colorado Supreme Court held that “the Equal Protection Clause of the United States Constitution protects the fundamental right to participate equally in the political process, and . . . any legislation or state constitutional amendment which infringes on this right by `fencing out” an independently identifiable class of persons [gays, lesbians, and bisexuals] must be subject to strict judicial scrutiny.” Id. at 1282.

13. See, e.g., Fragante v. City and County of Honolulu, 888 F.2d 591, 595 (9th Cir. 1989), citing EEOC’s Title VII guidelines, 29 C.F.R. § 1606.1 et seq., defining national origin discrimination to include discrimination "because an individual has the . . . linguistic characteristics of a national origin group"); Gutierrez v. Municipal Court, 838 F.2d 1031, 1039 (9th Cir. 1988), vacated as moot, 490 U.S. 1016 (1989) ("[t]he cultural identity of certain minority groups is tied to the use of their primary tongue," and "rules which have a negative effect on bilinguals . . . or non-English speakers, may be mere pretexts for intentional national origin discrimination"); United States v. Alcantar, 897 F.2d 436, 440 (9th Cir. 1990) ("we have previously recognized how closely tied Spanish language is to Hispanic identity"); Asian American Business Group v. City of Pomona, 716 F. Supp. 1328, 1330 (C.D. Cal. 1989) ("a person’s primary language is an important part of and flows from his/her national origin"); Carino v. Univ. of Oklahoma, 750 F.2d 815, 819 (10th Cir. 1984) (discrimination because of accent equivalent to national origin discrimination); Olagues v. Russoniello, 797 F.2d 1511, 1521 (9th Cir. 1986), vacated as moot, 484 U.S. 806 (1987) (same); Berke v. Ohio Dept. of Public Welfare, 628 F.2d 980, 981 (6th Cir. 1980) ("persons of different nationalities are often distinguished by a foreign language"); Manzanares v. Safeway Stores, Inc., 593 F.2d 968 (10th Cir. 1978) ("This circuit has recognized Spanish speaking or Spanish-surnamed Americans as a minority for purposes of Sections 1981, 1983 and 1985(3)"); Hernandez v. Erlenbusch, 368 F. Supp. 752, 755 (D. Or. 1973) (tavern’s rule against speaking foreign languages tantamount to racial discrimination against Mexican-Americans); Saucedo v. Brothers Well Service, Inc., 464 F. Supp. 919, 922 (S.D. Tex. 1979) (workplace speak-English-Only rule violates Title VII).

14. See, e.g., The Extent of Spanish/English Bilingualism in the United States, supra, 15 Aztlan Int”l J. Chicano Stud. Res. at 381 ("there is an obvious statistical correlation between a language and its corresponding national origin group"); Statistical Record of Asian Americans, supra (high correlation between language and national origin among Asian Pacific Islanders); Fishman, Language and Ethnicity, supra, at 25-26 (language is prime symbol system of ethnicity and prime ethnic value in and of itself); Conklin & Lourie,, supra (for many Americans, speech is a cultural indicator second in importance only to physical appearance); Grimes, Language Attitudes: Identity, Distinctiveness, Survival in the Vaupes, 6 J. Multilingual & Multicultural Dev. 389, 390 (1985).

15. Cf. Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983), cert. denied, 466 U.S. 929 (1984) (English-Only Social Security notices do not violate Spanish-speaking claimants’ equal protection rights); Frontera v. Sindell, 522 F.2d 1215, 1219-20 (6th Cir. 1975) (English-Only civil service examinations did not violate Hispanics’ equal protection rights). One commentator has observed: “Official-English supporters have openly set out to withdraw bilingual services, with the avowed purpose of affecting non-English speakers.... [A] court that accepts language minorities as a quasi-suspect class will ... apply heightened scrutiny to the ... intentional attempt to affect non-English speakers.... [B]y contrast, where there is no design to disadvantage those who do not understand the language, the state action fails to meet the threshold intent requirement.” Note, "Official English”: Federal Limits on Efforts to Curtail Bilingual Services in the States, 100 Harv. L. Rev. 1345, 1357-58 (1987).

16. Immutability, however, is not essential to a finding of suspectness. See, e.g., Graham v. Richardson, 403 U.S. at 372 ("[c]lassifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny"); Olagues, 797 F.2d at 1520 ("immutability is not the determining factor").

17. Voting discrimination against language minorities has injured Hispanics in particular as well as other language minorities such as Asians and Native Americans. See, e.g., S. Rep. No. 295, 94th Cong., 1st Sess. 28-31, reprinted in 1975 U.S. Code Cong & Admin. News 774, 794-97 (congressional finding that "language minority citizens [continue to be] excluded from the electoral process through the use of English-Only elections," and that [p]ersons of Spanish heritage was the group most severely affected by discriminatory [voting] practices, while the documentation concerning Asian Americans, American Indians and Alaskan Natives was substantial"); Castro v. California, 2 Cal.3d 22, 2 Cal. 3d 223, 230 (1970) (California’s English literacy requirement for voting was originally established to keep to safeguard the “purity of the ballot box” from Chinese voters).

18. See, also, Leibowitz, The Official Character of Language in the United States, 15 Aztlan Int”l J. Chicano Stud. Res. 25, 36-43 (1984) (purpose of literacy requirements for immigration proposed in 1910s was to exclude "undesirable classes" of South Italians, Greeks, Poles, and Syrians, in favor of Northern Europeans; English literacy suffrage laws of late 1800s and early 1900s motivated in part by anti-Irish, black and Asian sentiments); U.S. Commission on Civil Rights, Mexican Americans and the Administration of Justice in the Southwest 66-74 (1970) (describing discrimination against Spanish-speakers in contacts with police and courts); U.S. Commission on Civil Rights, Mexican American Educational Study, Report III: The Excluded Student 13-20 (1972) (discrimination against Spanish speakers in education); Lau, 414 U.S. at 568 ("the Chinese-speaking minority receive fewer benefits than the English-speaking majority from respondents’ school system which denies them a meaningful opportunity to participate in the [English-Only] educational program -- all earmarks of the discrimination banned by [federal Title VI] regulations").

19. Other commentators have noted that "because much of this discrimination occurred in the area of voting, these linguistic minorities may constitute precisely the type of discrete and insular minority that has traditionally been denied access to elective political processes for remedying their problems." Note, "Quasi-Suspect Classes," 90 Yale L. J. 912, 919-920 (1981).

20. See also, Ryan & Carranza, Evaluative Reactions of Adolescents Toward Speakers of Standard English and Mexican American Accented English, 31 J. Personality & Soc. Psych. 855, 859-60 (1975) (negative stereotyping of speakers of accented English); Ryan, Carranza & Moffie, Reactions Toward Varying Degrees of Accentedness in the Speech of Spanish-English Bilinguals, 20 Language and Speech 267, 271 (1977) (correlation between negative stereotyping and degree of accentedness); Dobray, Constitutional and Statutory Rights to Remedial Language Instruction: Variable Degrees of Uncertainty, 15 St. Mary’s L. J. 253, 267 (1984); see also S. Rep. No. 726, 90th Cong., 1st Sess. 49, reprinted in 1967 U.S. Code Cong. & Admin. News 2730, 2780. Given prejudice against those who speak accented English, it is not surprising that negative attitudes toward those unable to speak English at all are more severe.

21. See, e.g., S. Ervin-Tripp, Language Acquisition and Communicative Choice 95, 107 (1973) (young children more adaptable language learners); T. Carter, Mexican Americans in Schools: A History of Educational Neglect 161 (1970) (adult Spanish speakers find correct English pronunciation more difficult than young children do).

22. According to the 1990 census, 13.5% of Americans over the age of five speak a language other than English at home. Of that 13.5%, 7.8% speak English "very well," and another 3.2% speak English "well." Only 2.9% reported they spoke English either "not well" or "not at all." 1980 Census of Population, Vol. 1, Dept. D, Part 1 (P C 80-1-D1-A); US Bureau of Census, "Languages Spoken at Home and Ability to Speak English for United States, Region, and States - 1990." (1990 CPH-L-133).

23. See S. Pinker, The Language Instinct: How the Mind Creates Language 290-91 (1994) (younger immigrants tend to learn English more quickly than their elders).

24. A good example is New Mexico, with its historically large Spanish-speaking population and its proud history of tolerance and acceptance of Spanish heritage. New Mexico, which was officially bilingual, printed all government documents in English and Spanish. Far from ethnic balkanization, Hispanics in New Mexico enjoy one of the highest rates of political participation (and hence integration into the political mainstream) in the nation. Voter turnout among Hispanics was 60% in New Mexico, compared to less than 50% in California, Texas and Arizona in November 1992. See Bureau of the Census, Unpublished Data, "Reported Voting and Registration, by Race, Hispanic Origin, and Age for States: November 1992."

25. See Maldoff, Comment: a Canadian Perspective, 60 Int”l J. of the Sociology of Language 105, 106 (1986) (conflict between French and English speakers in Canada is the "result of the withdrawal of, or the failure to recognize, language rights rather than the result of linguistic tolerance and generosity"); Beardmore and Willemyns, Comment, 60 Int”l J. of the Sociology of Language 117, 120-121 (1986) (tensions in bilingual nations such as Belgium due not to bilingualism, but rather to historical factors and lack of equality afforded to subordinate language group). In our nation, attempts at language suppression have come in times of racial and ethnic intolerance. See, e.g., Leibowicz, The Proposed English Language Amendment: Shield or Sword?, 3 Yale L. & Pol. Rev. 519, 533-39 (1985) (social divisiveness has arisen and been exacerbated during the periods of intolerance and xenophobia which have led to attempts to restrict the rights of language minorities); Karst, Paths to Belonging: The Constitution and Cultural Identity, 64 N.C.L. Rev. 303, 311-325 (1986) (describing Americanization and Know Nothing movements and enactment of restrictionist legislation, such as literacy laws, aimed at "new" immigrants during the 19th and early 20th centuries). Cf. Meyer v. Nebraska, 262 U.S. 390 (1923) (state law restricting the teaching of German in schools came at a time of intense anti-German sentiment during World War I). See also Reyhner, Policies Toward American Indian Languages: A Historical Sketch, in Language Loyalties.41-47 (Native Americans were also subject to repressive federal English-Only policies in the late 1800’s and early 1900’s, when Native American children were separated from their families and forced to attend English language boarding schools where they were punished for speaking their native language).