Language Rights and the Law in the United States: Finding our Voices / Edition 1

by Sandra Del Valle

Overview

This book is provides a comprehensive review of the legal status of minority languages in the U.S. It also provides the historical and political context for the legal manoeuvring that culminated in landmark civil rights victories. All of the major cases in the U.S. concerning language rights are discussed in detail and in an easily accessible manner to the non-legal audience. The topics range from the English-only movement to consumer law, employment discrimination to international law.

Product Details

ISBN-13:	9781853596582
Publisher:	Multilingual Matters Ltd.
Publication date:	04/17/2003
Series:	Bilingual Education & Bilingualism , #40
Edition description:	New Edition
Pages:	376
Product dimensions:	6.85(w) x 9.65(h) x 0.80(d)

About the Author

Sandra Del Valle is a civil rights lawyer born and raised in New York City of Puerto Ricon parents. She has worked on language rights issues in the U.S. for over ten years. She specializies in the educational rights of language minority children. She lives on Long Island with her husband and two daughters.

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CHAPTER 1

A History of Language Rights: Between Tolerance and Hostility

INTRODUCTION

Advocates of English as an official language of the US often argue that it is the sole use of the English language, or at least its sole official use, that has acted as a "glue" to hold our country together since its inception. They argue that immigrants of old did not receive special linguistically accommodating services and that they readily gave up their old customs and languages to happily "melt" into the new American mainstream. The historical record, however, does not support their contentions. Indeed, during what could be seen as the country's most vulnerable stages – it's actual formation – bilingualism and multilingualism were much more prevalent than today amongst the population as a whole, and the use of minority languages was tolerated and officially sanctioned by state and local governments. Rather than leading to any de-stabilization, the use of minority languages helped the government coalesce its disparate peoples around the concept of the US as an entity reflecting democratic principles, a republican form of government and constitutionalism. The sense was that, by reaching out to language-minority communities in their own languages, they would witness the tolerant nature of the government, come to defend it, and support its philosophy and institutions.

Advocates can take much heart from this history, and ought to be aware of its dimensions. However, it cannot be concluded from this historical episode that the US is a minority-language-loving nation. The US, neither on the national nor the state levels, has engaged in the promotion of minority language usage for its own sake. Instead, its policies on language have been practical, assimilation-oriented and tolerant only to the extent necessary. It is probably most accurate to say that the US tolerated and sustained instances of official multilingualism at certain historical periods because it made good, efficacious sense to do so.

This chapter is divided roughly into thirds. The first third begins with an overview of the nation's language policies at the time of its formation, the period when the nation grew from a group of colonies to its expansion across the west and its colonization of Puerto Rico, from roughly the early 1800s through 1917 when Puerto Rico's residents were granted US citizenship; it then discusses current language issues on the island. By providing this history I hope to ensure that language rights activists can effectively refute arguments that this nation has always been monolingual and that its strength is drawn from that linguistic homogeneity. Also, a review of the debates on minority language usage and its role in determining the fates of different territories still echoes today and reveals the very chauvinistic roots of modern language restrictionists.

The second part of the chapter discusses the growth and uses of the Fourteenth Amendment in language rights cases. This is then shown in "action" in the last third of the chapter, which covers language rights during the World War eras. This period is especially important for language rights advocates because during that time of national anxiety language minorities were viewed with extreme suspicion, and minority languages themselves were targeted for repression and even elimination. It was the World War I era that gave birth to the language rights case Meyer v. Nebraska, that would ultimately be decided by the US Supreme Court.

LANGUAGE RIGHTS DURING NATION-FORMATION

State efforts

Thomas Jefferson felt that the states themselves would best reflect the needs of their citizens and protect individual liberties against federal tyranny. Within the context of language rights, this precept was true at least in the nation's early years. The states necessarily had to be responsive to the demands of their citizens and when a powerful language-minority group, like the Germans in Ohio or Pennsylvania, took control of the executive or legislative machinery, their interests were championed. This led to a panoply of language tolerant policies including the public support of bilingual and minority language schools in some of these states.

This section will look a little more closely at these policies in those states where official bi- and multilingualism have had a sustained history.

Ohio and Pennsylvania

When Ohio became a state in 1802 it already was home to a substantial German community who were its first permanent settlers. Not surprisingly, then, the first legislative documents of the state issued in 1772 were printed in German. After 1833, however, the German immigration from Europe grew to "gigantic proportions," and many German language islands were established throughout the state with Cincinnati and Cleveland as favored areas. Although there was no specific mention of the German language in the state's constitution, legislation was repeatedly passed from 1817 through the 1830s that allowed the printing of the state laws in German. By the 1880s, German was so prevalent in the state that Ohio was considered a bilingual state by an outside visitor. This was possible, according to Kloss, because of a continuous and strong presence of German representation in the legislature. The strength of this representation is most noticeable in the attitude of at least one pro-German legislative club founded in 1912. Their mission, the cultivation of the German language and ethos was unabashedly presented:

To cultivate German ideals, such as the German language, German gymnastics, German songs, and German lectures as well as liberal convictions. ... Furthermore it is the objective of this club to work with all honest means toward perfecting the teaching of German in the public schools more and more until it has achieved equal status with English in the curriculum.

Even before bilingual education became the lightning rod for issues of ethnicity and multiculturalism in the twentieth century, publicly supported minority language and bilingual education had existed in the US since the eighteenth century. Most of the efforts to maintain separate minority-language schools supported with public funds were made by Germans in those geographical areas in which they were concentrated.

As with Ohio, from about 1710, Pennsylvania had been home to large numbers of the German community. By 1830, the ethnic Germans comprised one-third of the White population. In these areas, German was the standard language used. As in Ohio, public documents, including the proceedings of the Pennsylvania constitutional convention in 1776, were published in German. Germans achieved political power with the rise of the Jeffersonian party and from 1808 to 1855 every governor of the state was German.

As for the schools, by 1776 the Germans had established a sizeable network of German language schools; the bilingual Franklin College was founded in 1787, and the state superintendent of schools allowed for the public financing of German public schools to be on an equal footing with English language schools. The popularity of German language instruction did not end until the turn of the century.

In the meantime, in the 1837–1838 state constitutional convention, the issue of the language of instruction in public schools became a source of debate. The debate is important, says one law professor because it "demonstrates the lawmakers' sophisticated awareness, at an early time in this nation's history, of the implications of creating constitutional or statutory status for one or another language."

Delegate Barnitz of York County expressed his concern that giving an official imprimatur to the English language would undermine the vitality of minority languages:

That language carries with it something of authority, by means of its operation in the laws and the regulations of the laws; named unless some special provision is made for the education of the descendants of the German people in the German language, all those who may be in any respect concerned in the administration of the laws, will be apt to believe that they have discharged the whole duty required of them by the constitution, so soon as they have seen the school law carried into operation in the English language. To my mind, this is a serious difficulty.

Delegate Heister's position, however, ultimately was the successful one; he argued for leaving language choice to the individual and for those with political power to see to it that the legislature protects their interests. He said:

The German population can have instruction in the German language, if they desire it. They constitute about one-third of the wealth and population of this state, and the legislature, in which body they have themselves their due portion of representatives, will not undertake to exclude them from having instruction in their own language, if they desire to receive it through that medium.

In the end, the state's constitutional amendment made no mention of the language of instruction, and in 1837, the legislature did pass a law that permitted the founding of German language schools as co-equals with English language schools.

California

California has a rich linguistic history reflecting its origins as a Spanish colony, then a Mexican territory, with both Spanish and indigenous populations infusing it with their languages, histories and cultures.

California was under Spanish rule from about 1542 to 1822. From 1810 to 1821, however, the war in Mexico displaced Spanish rule from North America and in 1821 the californios, California's residents, were Mexican nationals. Mexicans had a hard time controlling the californios, however; between 1831 and 1836 California had eleven different government administrations and an additional three governors were simply ignored by the independent californios. Moreover, California was rich with cattle and became a beaver trapper's dream, both luring Yankees from the east and establishing wagon trails through Utah and to the US. In 1846 although the Yankee presence was still a minority, it was growing at a rapid rate, and the US government was becoming increasingly interested in acquiring the territory especially as it would give the nation access to the Pacific.

As California had no military might, it was, in some commentators' minds, a conquest waiting to happen. The conquest happened as a result of the Mexican–American war being fought over Texas. The US was able to take possession of California without firing a shot. The war with Mexico ended in 1848 with the signing of the Treaty of Guadalupe Hidalgo. California became a state in 1850.

The Treaty is an important document for it provided that Mexican citizens who remained within the newly ceded territory for a year after ratification would become US citizens; it also granted certain religious, political and civic rights to the californios. The Treaty attempted to protect the language and culture of the native population. By the time the state began drafting its first constitution in 1849, the Gold Rush had driven thousands of Anglos to the area turning the californios into minorities virtually overnight and making them into strangers in their own land. Yet respect, or at least empathy, for the conquered and a belief that the Treaty required linguistic tolerance, led to the codification of a bilingual state in the 1849 constitution. The constitution provided that "all laws, decrees, regulations and provisions emanating from any of the three supreme powers of this State, which from their nature require publication, shall be published in English and Spanish." From 1852 to 1863 through a series of legislative enactments, procedures for the translation of the laws into Spanish were adopted.

Despite the generous language of the 1849 constitution, in 1855 English was declared to be the language of instruction in California's schools. The school language laws were meant to serve the later, White, immigrants and only mentioned the right to a "foreign language." Spanish as a foreign language would not even have the cache of French or German until 1913, when it was added to the five living languages that could be taught in the state's schools.

The linguistic rights freely given in the original constitution, however, became a source of great contention by the next constitutional convention in 1878. The arguments from both sides on whether to translate the laws into Spanish were heated, with one delegate arguing that the translation of documents into Spanish was no longer needed since the government was producing hundreds of documents in Spanish-only for "foreigners." Another delegate responded that the native born of California could not be called "foreigners." Yet another delegate argued that the translations were at least morally, if not legally, required under the Treaty of Guadalupe Hidalgo. Delegate Ayers said:

... if I am not mistaken, in the treaty of Guadalupe Hidalgo there was an assurance that the natives should continue to enjoy the rights and privileges they did under their former Government, and there was an implied contract that they should be governed as they were before. It was in this spirit that the laws were printed in Spanish ... [i]t would be wrong, it seems to me, for this convention to prevent these people from transacting their local business in their own language. It does no harm to Americans, and I think they should be permitted to do so. ...

The constitutional provision was passed anyway.

The last official edition of the California laws in Spanish was published in 1878; in 1894 the English-only provision was re-adopted as an amendment to the constitution, and an English language literacy requirement was imposed for eligibility to vote. Despite the official pronouncements to the contrary, minority languages, especially the Spanish language, have continued to be an essential and dynamic ingredient in the character of California.

The role of linguistic diversity in California continues to be an unfortunate source of controversy and contention. The most recent manifestation of California's continuing discomfort in this area is the struggle over bilingual education which came to a heated climax in 1996. This struggle and its implications for the nation are discussed in Chapter 5 on bilingual education.

New Mexico

In 1804 the first Anglos entered New Mexico and by 1821 New Mexico had become part of Mexico. During this time, New Mexico did not enjoy status as a full-fledged member state of Mexico but came close to achieving that status just before the US occupation. As a result of the Mexican-American War, as discussed above, US troops entered the area in 1846 and it became a territory of the US in 1851. In the Treaty of Guadalupe Hidalgo, New Mexico was to become a state "at the proper time." Unlike the gold-rich and Anglo-dominated California, New Mexico would not see that time come until 64 years later, in 1912.17 That the race and language of the people of New Mexico played a role in the federal government's hesitancy to grant it full statehood is well-documented.

In 1876, both the House and Senate committees on territories recommended statehood for New Mexico. However, the minority report of the House argued that the territory was not yet ready for statehood because the area was settled by "a people nine-tenths of whom speak a foreign tongue, most of whom are illiterate, and the balance with little American literature." The people of New Mexico were described contemptuously as being neither European or Indian: "few are pureblooded or Castilian, ... the rest being a mixture of Spanish or Mexican and Indian [living in a ] condition of ignorance, superstition, and sloth that is unequaled by their Aztec neighbors, the Pueblo Indians."

The domination of Spanish in the territory is obvious – there were few Anglos in New Mexico at the time. Indeed in 1874, 70% of the schools were conducted only in Spanish and 33% were bilingual; only 5% were conducted in English. The 1884 school law for the state stated:

[e]ach of the voting precincts of a county shall be and constitute a school district in which shall be established one or more schools in which shall be taught orthography, reading, writing, arithmetic, geography, grammar and the history of the United States in either English or Spanish or both, as the directors may determine.

(Continues…)

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Excerpted from "Language Rights and the Law in the United States"
by .
Copyright © 2003 Sandra Del Valle.
Excerpted by permission of Multilingual Matters.
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Table of Contents

Acknowledgments
Introduction
1 A History of Language Rights: Between Tolerance and Hostility
2 Nativism and Language Restrictions: Echoes of the Past at the End of the Twentieth Century
3 Fulfilling the Promise of Citizenship: English Literacy, Naturalization, and Voting Rights
4 Language Rights in the Workplace: Negotiating Boundaries Within Close Spaces
5 Language Rights in Litigation: Making the Case for Greater Protections in Criminal and Civil Proceedings
6 Bilingual Education: Learning and Politics in the Classroom
7 Native American Education: The US Implements an English-Only Policy
8 Due Process and Governmental Benefits: When English-Only is Enough
9 Commerce and Language Minorities: Remaking Old Laws for New Consumers
10 The Place of International Law in Promoting Linguistic Human Rights Within the United States
Appendix: Title VI of the Civil Rights Act of 1964