In 1998, California overwhelmingly passed Proposition 227 (61-39%) to sharply reduce bilingual education in the schools. Parents and voters did not want to relegate entire classes of children to non-English-speaking courses and, subsequently, jobs. Children pick up new languages more easily than adults, and perpetuating a failure to understand English creates obstacles for children in bilingual programs.
In a few weeks, voters in Colorado and Massachusetts will also consider abolishing bilingual education. But is it constitutional? On October 7th, the federal Court of Appeals for the Ninth Circuit upheld California’s Proposition 227 (see discussion below).
The Constitution disfavors language balkanization for the reason that it encourages secession. As Winston Churchill observed, “This gift of a common tongue is a priceless inheritance.” Speech at Harvard University (Sept. 5, 1943).
History provides many examples of how language separation leads to conflict, division, demands for separate government, and even secession. As Abraham Lincoln put it in his famous speech to the Republican Illinois State Convention in 1858, “‘A house divided against itself cannot stand.’” Roy A. Basler, 2 Collected Works of Abraham Lincoln 461 (1953) (quoting Matthew 12:25). Although Lincoln was speaking about slavery, this eternal principle holds true for language. The promotion of language balkanization leads to political separatism.
A chilling illustration of this is unfolding in nearby Quebec, Canada. Language division has led to a movement for secession by the French-speaking Quebec residents from primarily English-speaking Canada. After losing by a substantial margin in 1980, the secession movement continued to grow and nearly succeeded in its second referendum in 1995 when, by a margin of only 50.6 to 49.4 percent, voters narrowly rejected the secession of Quebec from Canada. This secession issue, driven by language differences, has disrupted Canadian politics and caused violence and economic dislocation.
Representative Bob Goodlatte of Virginia observed, “Consider this: 40 million Americans will be non-English language proficient by the year 2000.” Cong. Rec. H9741 (Aug. 1, 1996).
California’s Proposition 227.
In the 1990s, California was a heavy promoter of “bilingual education,” whereby non-English speakers were taught in their own language. The result was that many of them never learned English, thereby relegating them to low-paying jobs and hindering them with respect to mainstream American activities. Activists, including immigrant groups, proposed Proposition 227 to eliminate this two-track system of education and require English-based education for nearly all children.
On June 2, 1998, California voters approved Proposition 227. It states that “the government and the public schools of California have a moral obligation and a constitutional duty to provide all of California’s children …with the skills necessary to become productive members of our society, and of these skills, literacy in the English language is among the most important.” It ends California’s public school bilingual education programs, which instructed limited English proficient (“LEP”) students in their native language.
Proposition 227 used “structured English immersion,” in which children are “taught English by being taught in English.” The immersion system was defined as “an English language acquisition process for young children in which nearly all classroom instruction is in English but with the curriculum and presentation designed for children who are learning the language.” LEP students of similar English proficiency be taught together and “children who are English learners shall be educated through sheltered English immersion during a temporary transition period not normally intended to exceed one year.”
Waivers are available from Proposition 227: (i) when the student already knows English; (ii) when the student is 10 years old or older and the school agrees that an alternative curriculum would better serve the student’s English education; or (iii) when the student has tried the immersion program for at least 30 days, the school agrees “that the child has special physical, emotional, psychological, or educational needs,” and an alternative curriculum would work better. Students need parental consent to receive a waiver.
Proposition 227 disenfranchised the legislature to an extent: “The provisions of this act may be amended by a statute that becomes effective upon approval by the electorate or by a statute to further the act’s purpose passed by a two-thirds vote of each house of the Legislature and signed by the Governor.”
A group filed suit the day after Proposition 227 passed, to declare it unconstitutional on various grounds. The central objection, and the basis for an appeal of the subsequent district court opinion in favor of the referendum, is that it somehow violates the Equal Protection Clause.
The Equal Protection Clause is part of Section One of the 14th Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
But the Ninth Circuit held that “[w]hile bilingual education has obvious racial implications, the record establishes neither that racial discrimination was the impetus of bilingual education, nor that racial animus motivated the passage of Proposition 227.” Valeria v. Davis, 2002 U.S. App. LEXIS 20956, *16 (9th Cir. October 7, 2002). The Court thereby held that the bill is fully constitutional, and upheld it.
Out of many, one: E Pluribus Unum. For over two hundred years, America has been a country of one, including one common language. Many constitutional rights are built on the premise that the public understands one common language. The right to a public trial requires that the public understand the language spoken at the trial. The right to petition the government assumes that the government and the public speak a common language. The right to see a warrant prior to allowing a search and seizure assumes that the recipient can understand the language of the agent presenting the warrant. The right to a reasoned judicial decision in court proceedings assumes that the decision is written in a language that the litigants understand.
The Constitution, including the Bill of Rights, was adopted on the assumption that there would be one language that is common to both the government and to the people. The Constitution implicitly disfavors language bifurcation that could frustrate constitutional rights to a public trial, petitioning of the government, warrants for searches and seizures, reasoned judicial opinions, and many other rights.
Constitutional terms such as “due process of law” and “common law” lack precise equivalents in other languages. Other constitutional law terms such as “freedom of speech,” “cruel and unusual punishments,” and “involuntary servitude” likewise lack identical counterparts in other languages. See Gregory Rabassa, No Two Snowflakes are Alike: Translation as Metaphor at 1, reprinted in John Biguenet and Rainer Schulte, The Craft of Translation 1 (1989) (“[W]e should certainly not expect that a word in one language will find its equal in another.”). Even a familiar phrase like “the American dream” encounters thorny problems of translation to other languages used in the Americas, where “America” does not mean the “United States.” Translating key terms of the Constitution would modify them without complying with the amendment process. Moreover, translating the 200-plus years of judicial interpretations into a different language would change their meaning. Imagine the Supreme Court being required to review lower court opinions written in a different language. That would introduce substantial translation complexities – and interference with the judicial process.
Creating an official language other than English would require translating the Constitution – and would effectively modify it without complying with its requirements for amendment. Neither Congress nor the individual States have this authority to modify the Constitution through translation. The Constitution can be modified only through the amendment or convention processes specified therein.