From State House to Court House

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At the end of April state legislators in Missouri effectively defeated a constitutional amendment to make English the state’s official language. The proposed amendment, House Joint Resolution 7, stated, “English shall be the language of all official proceedings in this state.” After several hours of debate and three public hearings, state legislators decided to move on to other issues, essentially relegating the proposed amendment to the loss column for proponents of English-only. 

English-only has been a rallying cry for generations of nativists, but it has gained renewed energy in the last 25 years. In 1981 Senator Samuel Ichiye Hayakawa introduced an English-only bill in the U.S. Senate. Though that bill, like several later attempts in Congress, failed, since then 24 states have adopted English-only laws through statutes (including Missouri in 1998) or constitutional amendments. Two other states already  had  English-only  laws. 

The oldest existing laws reach back to the World War I era when Illinois adopted “American” as its official language and Nebraska, trying to eliminate German from its public schools, adopted English as its official language for all government affairs including school instruction. 

In the last year, English-only has been closely aligned with “citizens-only” housing laws intended to push immigrants out of communities. From Hazelton, Pennsylvania to Farmer’s Branch, Texas, local governments have jumped on the anti-immigrant bandwagon by punishing landlords and business owners for renting or doing business with undocumented residents. According to the American Civil Liberties Union, which has challenged many of these efforts, similar laws have been proposed in more than 80 cities throughout the country. 

Courts, meanwhile, remain stuck in a similar English-only quagmire. May 28 marked 16 years since the Supreme Court’s decision in Her- nandez v. New York allowed bilingual people to be removed from juries simply for being bilingual. In that case, Dionisio Hernandez, a puertorriqueño in Brooklyn, was charged with attempted murder and criminal possession of a weapon. One of the alleged targets, a monolingual Spanish speaker, was expected to testify at the trial. When jury selection got underway, the prosecutor eliminated two bilingual Latinos, claiming that he was not convinced that they could ignore the witness’s Spanish testimony and instead listen to the official English interpretation only. 

The central legal procedure of Hernandez is the peremptory challenge of prospective jurors during jury selection. Peremptory challenges are allowed during jury selection so that a party can remove any prospective juror from the pool of available jurors. No reason is needed. Indeed, in the Court’s 1986 opinion in Batson v. Kentucky it admitted that peremptory challenges are apt tools for discrimination. Though the Constitution does not provide for peremptory challenges, this procedure has long been recognized as a fundamental component of jury selection. 

The Supreme Court agreed with the prosecutor since, under the Court’s racial discrimination prece- dent, Hernandez needed to show that the prosecutor struck the bilingual Latinos precisely because they were Latino. Anything short of proof of the prosecutor’s discriminatory intent to strike them because of their race (not language, culture, or any other trait commonly associated with race) would not violate the Constitution. 

The unquestionable historic association between Spanish language ability and Latino identity was not enough to satisfy the Court’s narrow interpretation of racial discrimination. In a concurring opinion, Justice Sandra Day O’Connor wrote, “No matter how closely tied or significantly correlated to race the explanation for a peremptory strike may be, the strike does not implicate the Equal Protection Clause unless it is based on race.” 

Federal law currently requires that all jurors in federal courts be able to speak, read, write, and understand English. In the aftermath of Hernandez, to serve on a jury Latina/os must satisfy an additional requirement—forget Spanish. In other words, English-only. Sensing the irony of using bilingualism to prevent Latinos from serving on juries Justice Anthony Kennedy wrote, “It is a harsh paradox that one may become proficient enough in English to participate in trial...only to encounter disqualification because he [sic] knows a second language as well.” 

In an area like Brooklyn, where approximately 96 percent of Latinos spoke Spanish at the time of Dionisio Hernandez’s trial, the elimination of all bilingual jurors from the jury pool gave new (or old) meaning to the “jury of one’s peers” concept. 

In citing a 1923 case challenging the Nebraska English-only law that preceded that state’s 1923 constitutional amendment, Justice Kennedy closed the gap between nativist English-only legislation and the Court’s modern jury selection doctrine. Unlike the 1923 Supreme Court that decided that the prohibition of any language other than English in Nebraska’s public schools was arbitrary and unreasonable, and thus unconstitutional, the Court in 1991 decided that English-only was acceptable in jury selection. 

Though Justice Kennedy’s opinion does not go so far as to tell bilinguals that they should lie, it does allow a lawyer to strike a bilingual person who fails to convincingly claim to be able to ignore testimony in a language other than English. Because the Court minimized the importance of reams of linguistic data indicating that bilinguals cannot “turn off” one language, bilinguals must now claim to do the impossible: pretend to be able to ignore what they hear and understand, even if what the witness says is different than what the interpreter says. If they are to stay on a jury that might hear testimony in a language other than English, they must lie convincingly and without hesitation. The alternative is to be eliminated from a jury pool. 

The Court myopically interpreted race as divorced from language. At the same time, it allowed the prosecutor to strike bilinguals for failing to do what is impossible for any bilingual. Likewise, proponents of English-only and anti-immigrant laws misguidedly blame immigrants for the country’s problems. 

The Hernandez opinion didn’t encourage the current anti-immigrant zeal, but it does provide a stark example of arguments that fail the laughing test becoming public policy. It’s acceptable to bar bilingual people from juries because they are bilingual? The Court didn’t use that language, but that’s the effect. Or, taking an example from the anti-immigrant referendum in Farmers Branch, Texas: immigrants are a drain to the local economy? Only pernicious nativism, bolstered by a healthy dose of xenophobia, could make such an outlandish claim. Yet the claims are made—frequently and from every corner of society. Nativism, in all its delusions, is alive and well. 

César Cuauhtémoc García Hernández’s articles have appeared in law reviews at Boston College, Loyola University-New Orleans, and Seattle University. He has also written for Adbusters, Alternet, and various newspapers.