The ELPAC Report July 2003

Court Ruling Lets EO 13166 Stand

On May 15, the U.S. Court of Appeals in Richmond, Virginia, rejected a constitutional challenge to Executive Order 13166, the presidential directive requiring all government agencies to provide services in any language on demand. The challenge was brought by ProEnglish, a national English advocacy organization and several physicians who said that the translation rule violated their constitutional rights and would hurt their ability to work with patients.

E.O. 13166 said that failing to translate government services and documents into languages other than English could be a violation of federal prohibitions against "national origin" discrimination. The ProEnglish plaintiffs noted that other federal courts had repeatedly rejected that idea in more than two dozen cases over thirty years, and that no federal court had ever accepted that interpretation of "national origin."

ProEnglish told the court that this interpretation of "national origin" discrimination discouraged state and local governments from adopting English as their official languages. The organization pointed to two counties in Nebraska which rejected Official English declarations when opponents said they would file federal discrimination charges against them if the English rules were adopted. One group of activists said that the counties could lose $140 million in federal funding if they were found to be discriminating by not providing multilingual services.

The physicians challenged the language rules because they preferred to use family members to translate for patients, since they usually knew the patients better than hired translators. But the new E.O. 13166 regulations would have forbidden the use of family translators, and forced doctors to pay for outside translators. 

But a federal court judge first said that the new regulations were not completely developed at the time the lawsuit was filed. This latest decision was an appeal of that ruling. The appeals court said that the challenge was not premature, but said that the lawsuit should be filed over again to satisfy constitutional "case and controversy" requirements.

ProEnglish is said to be considering re-filing the legal challenge.