Courting disaster
Justices move to boost ‘English-only’ regulations may signal trouble for laws covering Gays, PWAs

by Lisa Keen

Many Gay activists were baffled eight years ago when Gay Latino activists insisted that a list of demands for the 1993 national Gay civil rights march on Washington include opposition to making English the official language of the United States. The platform — which included more than 50 "demands" — had grown too large and too far beyond the Gay civil rights movement, in the view of many in the community. While opposition to English-only laws was certainly a worthy cause, they argued, there just didn’t seem to be any compelling reason for the Gay civil rights movement, struggling to respond to the exploding AIDS epidemic, to spread its attention to issues that seemed more directly relevant to the struggles of other movements.

The U.S. Supreme Court this week demonstrated the wisdom of that decision by the Gay movement eight years ago to include that plank.

In a 5 to 4 decision, the court upheld an English-only law in Alabama and, in so doing, "bulldozed" the right of a citizen to sue a state for violating a federal non-discrimination law. The ruling thus weakens the strength of all federal non-discrimination laws — including the Americans with Disabilities Act that prohibits discrimination against people with AIDS.

Proponents of "English-only" laws have generally argued for them by saying they can help immigrants more quickly become acclimated to life in the United States, but opponents have seen them as attempts to make immigration more difficult. In the Alexander v. Sandoval case decided April 24, Martha Sandoval, a Mexican immigrant in Alabama, opposed that state’s English-only law, noting that it prevented citizens who cannot read English from obtaining a driver’s license — because the test for a driver’s license is available in English only. (Similarly, proponents of "Defense of Marriage" laws have contended they are aimed at strengthening the institution of marriage, while opponents have contended they are aimed at blocking same-sex couples from enjoying the benefits of legally recognized marriage.)

The Supreme Court ruled Tuesday that an individual, such as Sandoval, cannot sue a state for using English-only materials, even though such a policy has a negative consequence for applicants who do not read English. The Civil Rights Act of 1964 prohibits only "intentional discrimination," wrote Justice Antonin Scalia for the 5-4 majority; it does not prohibit acts that just happen to have a "disparate impact" on minorities.

Explaining how this ruling looms over the Americans with Disabilities Act of 1990, Lesbian activist attorney Chai Feldblum, who helped draft the ADA, said, "We thought if a state violated the rights of a person with AIDS by, for instance, not allowing them into a state-run drug treatment program, the person could sue state and get money damages." By ruling in Sandoval that citizens cannot file such lawsuits just because a state’s operation of a program has "disparate impact" on certain citizens, explained Feldblum, the high court is taking away options for people with AIDS to pursue redress, too.

"Does it mean no protection for people with AIDS after this case?" asked Feldblum. "No, because this case applies only to entities that get federal funds and the ADA still applies to all entities, whether they get federal funds or not. So as long as the ADA is valid legislation, the fact that this ‘room’ is crushed is not so problematic. But with the current Supreme Court, every room in the house is under attack and soon there will be no place to hide."

Feldblum was referring to a number of recent Supreme Court decisions that have chipped away at the teeth of non-discrimination laws. Most recently, in February in another case involving Alabama, the Supreme Court went after the ADA specifically. In that ruling, Alabama v. Garrett, the court said a state need articulate only a rational reason for discriminating based on disability and said that Congress cannot take action against states without identifying "a pattern of irrational state discrimination in employment against the disabled." The vote was again 5-4 with the same five justices in the majority then as this week: the seemingly unbreakable conservative triangle of Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, joined by the two "swing" members, Justices Sandra Day O’Connor and Anthony Kennedy. The dissenting four, per usual, included Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

The Sandoval lawsuit against Alabama argued that the state’s English-only policy violated the U.S. departments of Justice and Transportation’s regulations for adherence to the Civil Rights Act of 1964. Section 601 of Title VI of the Civil Rights Act of 1964 states that "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." Alabama receives federal funding from the departments of Justice and Transportation, among others, thus implicating the licensing of motor vehicle drivers.

A second section of the Civil Rights Act (Section 602) "authorize[s] and direct[s]" all federal departments and agencies that distribute federal funds to issue "rules, regulations, or orders of general applicability" in order to "effectuate" Section 601.

Scalia, writing for the majority in Sandoval, acknowledged as "beyond dispute" that Title VI of the Civil Rights Act of 1964 prohibits federal fund recipients from discriminating based on national origin and that individuals can sue a state for violating that law. He said the court also presumes the departments of Justice and Transportation have authority to implement their regulations. But, said Scalia, it does not follow that Congress, in adopting Title VI, intended for individuals to sue states for violating regulations that federal agencies promulgated for enforcement of the law.

Immediately, the decision raises the question: If Congress can pass laws to prohibit discrimination and federal agencies can implement regulations to carry out those laws, why can’t individuals sue states for violating those regulations?

The majority’s answer lies in what it sees as the difference between the law and regulations to enforce the law, as well as the difference between a "right" and a "remedy" to infringement upon that right, and "intentional discrimination" versus "disparate impact" — the former being inherently evil and the latter being an unfortunate consequence.

"The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy," wrote Scalia. "Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute."

In ruling that the law gave Sandoval no expressed right to sue the state of Alabama for violating regulations intended to carry out the non-discrimination mandate of the Civil Rights Act, the high court reversed the 11^th Circuit U.S. Court of Appeals decision in the case.

Writing for the dissent, Stevens called Scalia’s opinion "hostile to decades of settled expectations."

"The majority is undoubtedly correct that this court has never said in so many words that a private right of action exists to enforce the disparate-impact regulations promulgated under [the pertinent section of Title VI]," wrote Stevens. But, he said, that right exists and "the majority’s statutory analysis does violence to both the text and the structure of Title VI."

"Section 601 does not stand in isolation," wrote Stevens, "but rather as part of an integrated remedial scheme. Section 602 exists for the sole purpose of forwarding the anti-discrimination ideals laid out in Section 601."

Stevens questioned the majority’s motives, saying, "In order to impose its own preferences as to the availability of judicial remedies, the court today adopts a methodology that blinds itself to important evidence of congressional intent."

The congressional intent of the ADA, noted Feldblum, was to create "an incredibly welcoming house that would ensure people with AIDS would not be discriminated against."

"But what’s happened in various court opinions," she said, "various rooms in the house are being bulldozed. There are other rooms left, but this case is one more room being dismantled."

Ultimately, she said, the court appears ready to "attack the basic foundation."

"Will that have impact on people with AIDS?" asked Feldblum. "Yes. Will it mean no protections tomorrow? No. Am I worried? Absolutely. Does it matter that the next justices appointed to this court will be appointed by George W. Bush? You bet. And there’s no particular hope that this bulldozing will stop."

Interestingly, noted Feldblum, a federal law such as the proposed Employment Non-Discrimination Act that seeks to prohibit employment discrimination based on sexual orientation, would not be affected by the court’s most recent ruling.

"This wouldn’t affect it because we’ve already excluded any disparate impact claims from ENDA," noted Feldblum. "One of the major things we gave up [in drafting the ENDA legislation currently pending before Congress] was to say that, unlike every other civil rights law where the protected group can argue that a neutral law has disparate impact on them … only ENDA doesn’t." Feldblum said that the proponents of ENDA made this "significant concession" in 1994 "as a way to get rid of the bogeyman of quotas and statistics" which opponents of the legislation kept raising.

"So even if there was some rule — like, we’ll promote only people who are married, which, of course, would have disparate impact on Gay people," said Feldblum, "ENDA wouldn’t allow any disparate impact lawsuit to be brought." She added, however, that activists who agreed to that concession believed such policies could still be challenged, by showing that they were a pretext for discrimination against Gay people — in the same way opponents of "English-only" laws have attempted to show that those policies are just a pretext for discriminating against immigrants.

According to an ACLU white paper on the issue, at least 17 states have passed "English-only" laws, including Virginia. The ACLU opposes such laws, saying they restrict the ability of certain minority groups to vote, to take driver’s license exams, to use health, education, and social services, to take advantage of job training programs, to seek help through translation services for crime victims, and to benefit from AIDS-prevention education.