January 9, 2001
SMU LAW PROFESSOR ADVANCES LEGAL THEORY OF LANGUAGE BIAS AS PROXY FOR DISCRIMINATION
DALLAS (SMU) -- In recent years, propositions that might appear to discriminate against Latinos have been placed on ballots across the country. While some people try to stop such initiatives at the ballot box, Southern Methodist University Law Professor George Martinez believes there is another way to stop them: in the courts.
Martinez is advancing a novel legal theory under which language bias can substitute for racial discrimination under the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. Because civil rights law developed historically to protect African Americans, Martinez and other legal scholars believe most case law relies too heavily on race. They favor a broader interpretation of the Equal Protection Clause to reflect a more diverse American society. Recognizing language as a proxy for national origin or race, they argue, would extend constitutional protections to other minorities such as Latinos, Asians, and Native Americans.
In an article published in the most recent issue of The University of California at Davis Law Review, Martinez and co-author Kevin Johnson, UC Davis law professor, argue that ballot initiatives in California and Arizona to restrict bilingual education for non-English speakers use language as a proxy for national origin, therefore, discriminating against Latinos. Their article looks particularly at the successful 1998 anti-bilingual initiative in California known as Proposition 227.
"During the campaign for 227, the focus was almost exclusively on the Spanish language. The Spanish language, we contend, is central to the identity of Latinos. In targeting the language, these voters were, in effect, really targeting Latinos by proxy," Martinez says.
To prove a constitutional violation, the law requires proof of intentional discrimination. Martinez and Johnson cite as evidence historical segregation and funding inequality of Mexican-American schools; the racial tone of the Proposition 227 campaign, which almost exclusively focused on Spanish speakers; and previous California ballot initiatives, Proposition 187, which barred undocumented immigrants from a variety of public benefits, and Proposition 209, which dismantled affirmative action programs in the state. Taken together, Martinez says they can prove discrimination on the part of voters.
"If you can show that race was a motivating factor behind the passage of the measure, then it is sufficient to establish a constitutional violation, and we believe we have brought forward that evidence," Martinez says.
Already Martinez has been contacted by an Arizona law professor interested in using the UC Davis Law Review article to lay the groundwork for a federal court challenge in that state. Martinez expects other attorneys to use his article's legal arguments in court fights against language-bias laws.
Martinez, who has taught at SMU since 1991, received a B.A. in philosophy from Arizona State University, his M.A. from the University of Michigan, and his J.D. cum laude from Harvard Law School. He has published 17 law review articles and five book chapters on such subjects as race, civil rights, legal theory, and federal court procedures.
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