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Scott J. Bent

Excerpted from: Scott J. Bent, If You Want to Speak Spanish, Go Back to Mexico?: A First Amendment Analysis of English-only Rules in Public Schools, 73 Ohio State Law Journal 343 (2012) (316 footnotes omitted)


The Turner Unified School District (Turner) is located in Wyandotte County, Kansas, on the west end of Kansas City. Turner's total enrollment for the 2010 2011 school year was 4094. Of those students, 430 were black, 1382 were Hispanic, 36 were American Indian or Alaska native, 114 were Asian, and 133 were multi-ethnic. Turner's mission is to ensure that [e]very Turner student will be challenged academically and prepared socially to be a leader within a global society, and Turner is committed to [u]nderstand[ing] [and] appreciat[ing] diversity.

The Kansas River winds through the Turner school district and divides it into northern and southern territories. The southern territory is home to the Endeavor Alternative School. Endeavor aids the school district in its mission by work[ing] with students in an alternative setting to recover high school credit and . . . assist[ing] students in reaching their academic goals.

During the 2005 2006 school year, teachers and administrators at the Endeavor Alternative School repeatedly prohibited students of Hispanic origin from speaking Spanish on school premises. On November 28, 2005, a Mexican-American student at Endeavor was told not to speak Spanish during the lunch hour. During the next school period, a teacher again told the student not to speak Spanish in the hallway and sent him to the principal's office. The principal suspended the student for violating the prohibition on speaking Spanish and allegedly told him: If you want to speak Spanish, go back to Mexico.

The student's father, Lorenzo E. Rubio, subsequently filed suit against Turner, the superintendent, the board of education, the individual members of the board, the principal, and several teachers. He asserted claims under Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. The court dismissed all of the claims against all defendants except for Rubio's Title VI claim against Turner.

This case is one manifestation of a much broader set of issues currently playing itself out on the national stage. The United States is a thoroughly multi-ethnic nation, and it is becoming more so every day. The Census Bureau reported that in 2002 Asian and Pacific Islanders, African-Americans, and Hispanics made up the following percentages of the nation's civilian non-institutionalized population: 4.4% Asian and Pacific Islander, 13% African-American, 13.3% Hispanic. The Bureau also reported that 11.5% of the civilian non-institutionalized population was born in foreign countries, and 52.2% came from Latin America. The Department of Homeland Security estimates that 12.5 million foreign-born, legal permanent residents lived in the United States as of January 1, 2009. This population includes persons granted lawful permanent residence, [such as] green card recipients, but not those who had become U.S. citizens. The unauthorized immigrant population is estimated to have declined to 10.8 million in January 2009 from 11.6 million in January 2008. Sixty-two percent of this population was from Mexico.

Experts believe that the U.S. cultural and racial diversity will continue to increase for decades to come. The Census Bureau projects that total net international migration will increase to approximately 1.6 million in 2025 from about 1.3 million in 2010. By 2050, that figure is expected to rise to approximately 2 million.

While the United States has long celebrated its identity as a cultural melting pot, this mixing of cultures and steady stream of international migration has not been without conflict. At times, the conflict has taken the form of blatant violence and hostility toward immigrants. For example, in 2008, a man on Staten Island drove his truck into several storefronts owned by Mexican immigrants, causing significant damage.

At other times, the conflict has manifested itself in the form of extreme laws or law enforcement measures targeted at unauthorized immigrants. Sheriff Joe Arpaio of Maricopa County, Arizona, is at the vanguard of this form of conflict. Sheriff Arpaio's law enforcement tactics have included forcing inmates to wear exposed pink underwear and housing them in tents, and he and his deputies have gained notoriety for aggressive raids on immigrant communities.

Ethnic conflict has manifested itself in a variety of legislative forms, including the so-called English-only movement. In the early 1980s, California Senator S.I. Hayakawa helped found an advocacy group called U.S. English, which lobbies for Official English and against [multi]lingualism in public life. The movement has been highly influential throughout the nation-by 2000, twenty-four states had adopted some form of Official English legislation. In the wake of the English-only movement's early lobbying activities, voters in California and Arizona passed propositions that mandate English-only instruction for students with limited English proficiency.

Arizona's state legislature recently contributed to the conflict by passing the toughest illegal immigration law in the nation. Under the law, state and local police are required to determine the legal status of people if there is reasonable suspicion that they are unauthorized immigrants. Police are also required to arrest those who are unable to pro[duce] documentation proving they are in the country legally. Many are concerned that the law will result in discrimination against Latinos. Opponents claim that [y]ou cannot tell if a person walking on a sidewalk is undocumented or not . . . [so] this is a mandate for racial profiling.

It is crucial that we as a nation effectively minimize and manage this conflict, for, as the above statistics indicate, the United States is becoming more ethnically diverse every day. Nowhere is conflict management more important than in the context of education. Immigration's impact is often first seen in the classroom. Our nation's education system is rapidly becoming more diverse. In 1993, the diversity index (the percent chance that two students selected randomly would be members of different ethnic groups) in our education system was 52%. By 2006, that figure had increased to 61%. Approximately 21% of the student population in the education system is Hispanic, 17% is African American, 5% is Asian, and 1% is Native American.

Many students in our public school system speak English as a second language, with a large number of them learning English as they go through school. During the 2004 2005 and 2005 2006 school years, 13.5% of students in the 100 largest school districts in the nation received instruction in English Language Learner [ELL] programs. This amounted to over 1.5 million students. In the Los Angeles Unified School District alone, 40.4% of students were served by ELL programs, amounting to 293,711 students.

This large population of public school students speaking languages other than English creates special challenges for teachers and school administrators. First, where teachers or administrators are unable to understand a language spoken by students, their control over the students is potentially diminished. Any communication expressed in a language teachers cannot understand represents a sphere of student activity to which the teacher or administrator has limited access. With limited supervision comes the potential for student abuse. Second, one of the primary functions of public schools is to develop students' language abilities. English is the predominant language spoken in the United States, and therefore teachers and administrators have a duty to adequately develop students' English language skills.

As Rubio demonstrates, some teachers and school administrators have responded to these challenges by imposing English-only rules on students. It comes as no surprise that these rules have been controversial and have added to the conflict among ethnic groups in our nation. In addition to the controversy played out in the court of public opinion, these rules raise interesting issues under the U.S. Constitution and Title VI of the Civil Rights Act of 1964. This Note focuses on one of these issues: the constitutionality of English-only rules in public schools under the First Amendment.

Part II reviews the literature on the constitutionality of English-only rules in public schools and explains how this Note contributes to the current literature. Part III addresses the threshold question of whether, for purposes of the First Amendment, the content of a statement includes the language in which the statement is communicated. Part IV discusses and analyzes the Supreme Court's line of student speech cases, from Tinker to Morse. Part V examines the extent to which the Constitution limits the power of public school authorities to prescribe and control the school curriculum. Part VI analyzes the constitutionality of English-only rules in public schools in light of the Court's student speech and curriculum cases. This Part fills many of the gaps in the current literature by identifying and offering solutions to various issues arising from the application of the First Amendment to English-only rules in public schools. Part VII concludes the Note with suggestions for future research.