Genesee Valley Chapter — In a Rush To Build a Movement?

In a Rush To Build a Movement?

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on May 12, 2010. Arizona is in turmoil over its new law authorizing police to arrest persons suspected to be present in the state illegally. Supporters argue the state has an immigration problem because the federal government has shirked its duty to enforce our immigration laws. What about the rural town of Jackson, located outside of Glens Falls, population 1,700? Does it have an immigration problem? Not judging by the 2000 census, which noted that 97 percent of the Upstate community’s population is white and 1 percent is Hispanic. Nevertheless, the Jackson town board wanted to make a statement on immigration, and in March adopted a law declaring English to be “the official written and spoken language” of the town. All elected officials and their appointees are required to use English “in all official meetings and business,” the law states. It contains no exceptions. A non-English speaking parent cannot talk to her child’s teacher or principal in her native language even if the teacher or the principal is fluent in the language. A Jackson resident and a board member may not converse at a board meeting or outside a meeting about town business in any language but English. A zoning officer and the town attorney cannot investigate a possible health and safety violation in any language but English. The town court must conduct its proceedings in English. Efforts to create an official language are as old as the Republic, and tend to increase during periods of stress, such as war and social change. The U.S. Supreme Court has circumscribed some of the efforts, holding that a ban on the teaching of foreign languages violates the Due Process Clause. Meyer v. Nebraska, 262 U.S. 380 (1923). Recent efforts have taken one of three forms — a symbolic declaration of English as the official language, akin to the designation of a state flower; a law that restricts government communications and actions to English only and a hybrid of the first and second. Jackson’s law clearly is of the second form. Alaska, Oklahoma and Arizona also have adopted English-only laws of the second form. Courts invalidated all three laws on Free Speech grounds. See, e.g., Alaskans for a Common Language Inc. v. Kritz, 170 P.3d 183 (Alaska 2007). Alaska’s law was the most recent, and what the Alaska Supreme Court said about it is very informative. In its analysis, that court concluded the law impacted the speech rights of three groups — non-English speaking citizens wanting to participate in public life, elected officials and public employees. Receiving information and ideas is “a necessary predicate to the [citizen’s] meaningful exercise of his own rights of speech. Id. at 200, citing Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982). The principle does not compel government to provide multi-lingual information. On the other hand, government cannot gag employees who are capable of and willing to provide information in a non-English format. As for elected officials, “the manifest function of the First Amendment in a representative government requires that [they] be given the widest latitude to express their view on issues of policy.” Id. at 202, citing Bond v. Floyd, 385 U.S. 116, 135-36 (1966). That latitude extends to communications in any language with constituents and among fellow elected officials. Employees have a right to speak out on matters of public concern, if doing so does not interfere significantly with the government’s interest in providing services. Pickering v. Bd. of Educ. of Township High School District 205, Will County, Ill., 391 U.S. 563 (1968). Here the ban “creates an untenable risk” of employees not being able to speak freely about much-needed data, a matter of public concern. The court conceded the state had a compelling interest in promoting English as “the common unifying language” of Alaska. It held, however, that the means chosen — a total ban on all languages but English — was not tailored narrowly enough to further that interest. Alternative, less restrictive, means existed, such as creating and funding programs teaching English to non-English speakers. Alaskans for a Common Language Inc. v. Kritz, supra at 207-208. What is the town of Jackson’s compelling interest for a ban? It has not provided one, other than in the words of the law’s sponsor, “to start a grass-roots movement.” Sorry, Jackson: Movements cannot be built by methods that violate the First Amendment.