State Question 751 passed last fall with 75 percent of voters agreeing to amend the state constitution to make English Oklahoma’s official language. The amendment, currently being challenged in district court, formally recognized English as the common language in which official state business shall be conducted. Two identical bills introduced this session designed to implement the new amendment, HB 2083 and SB 905, go well beyond what voters approved in State Question 751 and enact sweeping and intrusive changes meant to preserve and enhance the role of official English:
For purposes of this section, “preserve and enhance the role of English as the official language” means an affirmative obligation of strict compliance with the letter and spirit of the Oklahoma Official English Implementation Act including, but not limited to, promoting the use of English by all persons in Oklahoma and avoiding the use of languages other than English for official actions. This obligation shall be presumed to be superseded if use of a language other than English is specifically required by federal or state law or is permitted by the Oklahoma Constitution, but only to the extent necessary for an individual circumstance, and not as a general policy.
The ‘Oklahoma Official English Language Implementation Act’ acknowledges Oklahoma’s history with “persons from diverse linguistic backgrounds” and carves out particular exceptions for Native languages. The obligation to use English-only can also be superseded if “specifically required” by federal or state law. The problem with this presumably well-intentioned exception is that federal law, in most instances, doesn’t explicitly require that anything be offered in another language. Instead, federal agencies have issued a loose set of guidelines to their respective state counterparts based on Department of Justice guidance, asking that each agency make a determination for itself whether or not using a language besides English is necessary.
Limited English proficiency (LEP) guidelines were developed by the Department of Justice to enforce two overarching federal requirements: (1) Title VI of the Civil Rights Act of 1964 which prohibits discrimination based on national origin and (2) Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency.” Certain provisions of the ‘Oklahoma Official English Language Implementation Act’ put state employees on a collision course with existing federal law:
If the state has the choice to take an action in English or in a language other than English, ..[t]aking the action in the other language, or in both English and the other language, without being specifically required to do so by federal or state law, shall be presumed not to preserve and enhance the role of English as the official language. (emphasis added)
State agencies have a general obligation under federal law to ensure meaningful access to critical services for persons with limited English proficiency, but they are not specifically required to take any actions in another language. However, unless they can prove that using another language is specifically required, HB 2083 and SB 905 create an “affirmative obligation of strict compliance” to use English-only at all times.
The English-only Act creates a textbook rock-and-a-hard-place situation for state employees. If they don’t take reasonable steps to ensure that individuals with limited English proficiency are not discriminated against in state services, they may be out of compliance with Title VI of the Civil Rights Act and subject to a federal investigation or compliance review. If they do take reasonable steps to ensure access, they risk violating the Act’s English-only standard.
Consider just one real world example of the effect of HB 2083 and SB 905 on public officials. Oklahoma administers a fund under the Crime Victims Compensation Program that collects fees from offenders to reimburse victims of violent crimes. The fund, among other things, covers the cost of medical care and a forensic evidence exam for victims of rape and sexual assault. What would be the official policy of Crime Victims Compensation regarding rape victims who are not proficient in English? There is no specific requirement in state law (Crime Victims’ Compensation Act of 1981) or in federal law that those administering the program use a language other than English. Under the new English-only Act, program staff might reasonably conclude that they are forbidden from communicating in a language that the victim could understand.
In addition, the English-only Act creates an entirely new layer of government-on-government regulation – agencies and state officials must prepare public declarations justifying their language-use choices and generate separate budget delineations for a wide range of categories relating to languages spoken during the normal course of business. A section of the bills excerpted above fails to limit its application to only “official” state actions, so that even wishing a honeymooning colleague bon voyage while at work seems to violate one’s “affirmative obligation of strict compliance” with the English-only Act. Finally, the bills could be interpreted as eliminating language education in the state of Oklahoma entirely:
Bilingual or bicultural education programs which maintain a student in a language other than English shall be presumed to diminish or ignore the role of English as the official language.
It’s unclear what is means exactly to “maintain a student in a language other than English,” but it is not uncommon in language learning to conduct class entirely in another language, especially in advanced classes. Surely most Oklahomans who voted to declare English the official language didn’t intend for the Legislature to outlaw high school French.
These bills would make it even more difficult for state employees encountering a person with limited proficiency in English to do their job. There is already a constitutional amendment requiring official state business be conducted in English and there is no compelling reason to pass new laws that make communicating in the course of the daily business of providing services more onerous. HB 2083 and SB 905 create more government, impose new restrictions on speech, potentially entangle state officials in a legal double bind, and muddy the waters by altering and expanding the reach of a fairly straightforward amendment.
Update (April 18, 2011): SB 905 passed the full Senate but was not heard by a House committee and is now dormant. HB 2083 was not taken up by the full House and is also dormant.
Update: For a final update on these bills, see Where Are They Now? Bills we kept our eye on