The English Language Amendment

The subcommittee met, pursuant to notice, at 9:31 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the subcommittee) presiding.

Present: Senator DeConcini.

Staff present: Stephen J. Markman, chief counsel and staff director; Randall R. Rader, general counsel; Carol Epps, chief clerk; and Deborah Dahl, clerk, Subcommittee on the Constitution; and Mike Wootten, counsel, Judiciary Committee.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION

Senator HATCH. We are happy to call this subcommittee to order. The framers of the Constitution in the 1787 Convention and the authors of the Bill of Rights in the First Congress did not include within our Nation's founding document any declarations with respect to an official language. In the absence of a specific delegation of Federal authority, the power to dictate policies regarding language was reserved to the States, or to the people under the 10th amendment.

Leaving the question of official language policies to the States was most likely not an oversight by the framers of the Constitution. Colonial America was a land characterized by diverse immigrant populations. Its people were well-acquainted with the potential hardships of a community with different languages.

For instance, Benjamin Franklin, in a 1755 publication, was bothered by the influx of German-speaking immigrants into his beloved Pennsylvania.

The framers were well acquainted with the difficulty of assimilating non-English-speaking peoples into the American melting pot. After these immigrant Americans had sacrificed together to win independence, however, the framers had a hardy respect for diversity.

Indeed, Franklin, deleted his anti-German sentiments from later publications of his observations. Franklin and the other framers commended many public policy questions, including matters relating to languages, to resolution by State and local authorities.

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The States have exercised their authority with respect to language. Five States have expressly designated English as the official tongue for all State government business. As recently as 1981, the Governor of Virginia signed a law making English the "official language" of the Commonwealth and specifying that "school boards have no obligation to teach the standard curriculum in a language other than English."

Eleven States require all public education, except foreign language instruction, to take place in English. Ten States, on the other hand, require bilingual public education in areas where substantial numbers of students have a mother tongue other than English. In conformity with the vision of the framers, States have adapted their policies with respect to language to their own particular needs.

The year 1968 marked the passage of the first Federal law enunciating a policy for language instruction. The Bilingual Education Act offered financial assistance for programs meeting the "special educational needs" of non-English-speaking students. In 1968, the act did not declare whether meeting "special needs" meant helping students make a quick transition to English proficiency, or teaching students entirely in their own mother tongue. In 1974, however, the act was amended to strengthen the latter bicultural tendency of the program.

In 1974, the Supreme Court made bilingual education a civil ' rights issue. In the case of Lau v. Nichols, the Court ruled that failure to provide education for Chinese students in their native tongue constituted a violation of the 1964 Civil Rights Act prohibition against discrimination based on national origin. Thus, any school district receiving Federal aid was obliged to "take affirmative steps to rectify the language deficiency in order to open its instructional program to these students."

Although the Supreme Court did not take a position on whether bilingual education was to be a means to achieve English proficiency or an end in itself, the Department of Health, Education and Welfare at that time instituted regulations favoring the broader interpretation of bilingual education. Rather than learn English, many non-English-speaking students continued their education in their native tongues. In August 1980, the Department of Education proposed to replace these earlier Lau remedies with even more detailed and stringent rules. Wherever 25 or more students in 2 consecutive grades had limited English proficiency, these regulations would have required all substantive academic courses to be offered in the students' native languages.

The nationwide cost of compliance with these procedures was estimated to be as high as $3 billion over 5 years. Incoming Education Secretary T.H. Bell withdrew these proposed rules as "harsh, inflexible, burdensome, unworkable, and incredibly costly."

In 1975, Congress ventured again into language policymaking when it amended the Voting Rights Act to require bilingual ballots where there is a considerable number of citizens who do not speak English. These ballots are currently required in at least 30 States. This brings us to today's hearing, the first in the history of our Republic on the subject of designating an official language by constitutional amendment. At the outset of this hearing, I would like

to make an observation about the gravity of considering amendments to the Constitution. The Constitution provides a framework within which each succeeding generation may resolve the social controversies unique to that era. It is not the vehicle to make the adjustments in legal policy necessitated by changing circumstances. Attempting to inculcate the mores and perspectives of any particular time and place in the Constitution will inhibit the document's usefulness for resolving problems to arise in times and places we cannot now foresee.

Regardless of the merit of current bilingualism policy, a constitutional response to these problems of recent origin may overlook the fundamental character of our Constitution and create more problems than it would resolve.

For instance, the amendment before the subcommittee today raises the following immediate questions in my mind:

Would this language reverse the Meyer case?

In the absence of any State action language, could this amendment empower Congress to outlaw private utilization of any particular language?

Would this amendment allow exceptions where public health or safety might be endangered by limiting public declarations to a single language?

Would this amendment allow public school teachers to use different languages for the purpose of teaching English to non-Englishspeaking students? If so, what legal tests would differentiate this form of bilingual education from bilingual education designed to preserve the native tongue?

What effect would this amendment have on the admission of additional States to the Union, particularly if those new States are not predominantly English speaking?

Other questions will undoubtedly arise as we examine this amendment. It is nonetheless important that we give adequate consideration to these issues. This subcommittee is dedicated to the examination of the full implications of this and other constitutional amendment proposals, and I welcome the opportunity to explore this amendment with today's witnesses.

At this point, I will place my prepared statement along with a statement of Senator Denton in the record. Also, the text of S.J. Res. 167.

[Material submitted for the record follows:]

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