ELPAC Report June 2002

The ELPAC Report June 2002

Making Progress Against EO 13166

Finally, some good news about progress against Executive Order 13166, the Clinton-era Presidential order making the American government officially multi-lingual. The federal Department of Justice published a new set of "guidelines" which backed off substantially from earlier assertions that federal civil rights laws require government-funded services to be provided in any language requested by an applicant.

And the national membership organization ProEnglish filed suit in federal court, seeking to declare E.O. 13166 illegal and unconstitutional.

In August 2000, on Air Force One flying to the Democratic National Convention, President Clinton signed E.O. 13166. The Executive Order said that provide federally-funded benefits and services in English was a violation of federal civil rights laws. At the same time, the Department of Justice issued orders to all federal agencies, requiring them to submit plans to respond to any requests for benefits and services in languages other than English by providing immediate translations at no cost to the applicant. Speaking to an applicant in English was illegal "national origin" discrimination. In other words, this EO 13166 made the federal government officially multilingual.

ELPAC and other English language organizations have fought E.O. 13166 since its issuance. We have prodded Congress to repeal or defund the order. We have filed official comments with government officials seeking public input on how to provide multilingual services. And we have sought to convince the Bush Administration to reject this disastrous Clinton-era unfunded mandate. Until recently, there was little sign of movement from either Congress or the Bush Administration. Last October, by a vote of 262 to 156, the House rejected the Istook Amendment to defund E.O. 13166. The Bush Administration opposed the Istook Amendment by claiming it needed more time to review the Executive Order.

Now, however, the Administration seems to be moving - if only a little bit. On April 12, the Department of Justice reissued its earlier "guidelines" under E.O. 13166. Unlike earlier publications, these "guidelines" did not assert any legal support for the order; in fact, the new publication was quite open about the Supreme Court rejecting its position (in last year's Alabama English-language drivers license exam case: Alexander vs. Sandoval). The new "guidelines" again called for more study by federal agencies prior to implementing the multilingual plans.

Unfortunately, the Department of Justice did not back off from the assertion that speaking English to an applicant for government services is illegal "national origin" discrimination. That's where the ProEnglish lawsuit comes in. ProEnglish principally works to support English in the courts (much as ELPAC principally works to support English in political campaigns); ProEnglish has supported most of the major recent legal cases upholding English. ProEnglish's lead counsel in these efforts is Barnaby Zall, Chairman of ELPAC, who is a leading legal expert on language and the law.

On March 12, ProEnglish, its Executive Director K.C. McAlpin, and four medical doctors from around the country sued President Bush, Attorney General John Ashcroft and Secretary of Health and Human Services Tommy Thompson. The suit alleges that E.O. 13166 is unconstitutional, as violating the First, Ninth and Tenth Amendments. The suit also says that President Clinton and the federal agencies do not have the constitutional authority to expand "national origin" discrimination to include speaking English.

The legal papers illustrate the damage E.O. 13166 can cause. In addition to the injury caused ProEnglish by declaring the federal government officially multilingual, the suit says that the doctors will be hurt financially by having to pay for translations. One of the plaintiffs, Dr. Clifford Colwell, says that his busy medical clinic already translates into Spanish, but will have to provide translations into dozens of other languages. Another plaintiff, Dr. Joseph Daugherty, a "country doctor" in Kentucky who speaks Spanish and German, has patients who speak Arabic and Japanese; he says he will lose up to $250 per patient visit if he has to pay translation costs. A third doctor, pathologist Dr. Donald Kundel, says there are no translation services which can provide the sophisticated translations of his material, as required by E.O. 13166. Because doctors' services are important to health and safety, there are no waivers or exemptions for doctors from providing the required translations in any language requested, and patients are not allowed to provide their own translators. The suit was filed in Alexandria, Virginia, outside Washington, D.C. Judge Leonie Brinkema, the judge assigned to the ProEnglish case, is also hearing one of the 9/11 terrorist cases. Nevertheless, the case is expected to proceed this summer.