Digital Commons at St. Mary's University Faculty Articles School of Law Faculty Scholarship 1996 Speaking the Language of Exclusion: How Equal Protection and Fundamental Rights Analyses Permit Language Discrimination (comment) Donna F. Coltharp St. Mary’s University School of Law, [email protected] Follow this and additional works at: https://commons.stmarytx.edu/facarticles Part of the Civil Rights and Discrimination Commons, and the Human Rights Law Commons Recommended Citation Donna F. Coltharp, Speaking the Language of Exclusion: How Equal Protection and Fundamental Rights Analyses Permit Language Discrimination (comment), 28 St. Mary's L.J. 149 (1996). This Article is brought to you for free and open access by the School of Law Faculty Scholarship at Digital Commons at St. Mary's University. It has been accepted for inclusion in Faculty Articles by an authorized administrator of Digital Commons at St. Mary's University. For more information, please contact [email protected]. COMMENTS SPEAKING THE LANGUAGE OF EXCLUSION: HOW EQUAL PROTECTION AND FUNDAMENTAL RIGHTS ANALYSES PERMIT LANGUAGE DISCRIMINATION DONNA F. COLTHARP I. Introduction ................................................. 150 II. Language in American History .............................. 158 A. Diversity v. Unification: The Beginnings of Dispute ...... 158 B. The Early Supreme Court Cases: Choosing Fundamental Rights and the Due Process Clause ...................... 161 III. Equal Protection: Classifying the Class ...................... 165 A. Identifying Classifications ................................ 165 B. Hernandez v. New York: The Supreme Court's Latest W ord on Language ...................................... 169 C. Confusion in the Lower Courts: Is There a Nexus R equirem ent? .......... 172 IV. Due Process and Fundamental Rights: No Room Under the Penum bra? ............ 177 A. Fundamental Rights and Finding a Place to Stand ........ 177 B. Due Process: What Duty? ....... 179 C. Affirmative Duties?: Protecting the Rights ............... 183 V. The Flores D ecision ......................................... 186 VI. An Argument for a Less Formalistic Reading of the Fourteenth Amendment ..................................... 190 A. Equal Protection: Remembering What Makes a Group Suspect .................................................. 190 B. Fundamental Rights: Knowing Them When We See Th em ................................................... 194 C. Trusting the Tests ........................................ 203 1. Making an Argument for Language Discrimination... 203 2. Rebutting the Argument for Language Discrim- ination .............................................. 207 V II. Conclusion .................................................. 211 ST MARY'S LAW JOURNAL [Vol. 28:149 "If you spoke as she did, sir, instead of the way you do, why you might be selling flowers, too."' I. INTRODUCTION In the summer of 1995, the en banc Texas Court of Criminal Appeals in Flores v. State2 upheld a lower court's ruling that gave a drunk-driving (DWI) offender, Aristeo Lira Flores, a one-year term of imprisonment rather than a one-year term of probation.3 The trial judge denied proba- tion not because of the offender's character or the seriousness of the of- fense, but because Mr. Flores could not speak English.4 The county in which Mr. Flores was arrested and convicted did not provide a DWI reha- bilitation program in Spanish. Therefore, the judge reasoned that Mr. Flores could not benefit from probation.5 In his appeal to the Texas Court of Criminal Appeals, Mr. Flores claimed that the lower court violated his equal protection and due pro- cess rights under the Fourteenth Amendment of the United States Con- stitution,6 and his equality rights and due course of law rights under the 1. My FAIR LADY (20th Century Fox 1964). 2. 904 S.W.2d 129 (Tex. Crim. App. 1995) (en banc), cert. denied, 116 S. Ct. 716 (1996). 3. Flores, 904 S.W.2d at 131. 4. Id. at 130. Mr. Flores previously had been convicted of the same offense and placed on probation, but the trial judge did not cite this prior conviction or any other factor in defending his decision. Id. at 133 (Overstreet, J., dissenting). 5. Id. at 130. The trial judge stated, "'I'm not going to put you on probation. To put someone on probation, I have to feel that they can be rehabilitated, and there are no provisions in this county to help Spanish speaking people who are convicted of alcohol offenses."' Id. at 133 (Overstreet, J., dissenting). According to the Texas Code of Criminal Procedure, judges who grant probation to convicted drunk-driving defendants must order that the individuals attend and successfully complete "an educational program jointly ap- proved by the Texas Commission on Alcohol and Drug Abuse, the Department of Public Safety, the Traffic Safety Section of the Texas Department of Transportation, and the com- munity justice assistance division of the Texas Department of Criminal Justice." TEX. CODE CRIM. PROC. ANN. art. 42.12 § 13(h) (Vernon Supp. 1996). Judges may waive this requirement or grant a time extension on a showing by the defendants of good cause. Id. To determine whether good cause exists, judges may consider: (1) "the defendant's school and work schedule"; (2) "the defendant's health"; (3) "the distance the defendant must travel to attend an educational program"; and (4) whether or not the defendant has trans- portation. Id. Judges make their decision based on what they believe to be in the best interest of justice, the public, and the defendant. Id. art. 42.12 § 3(a). 6. Flores, 904 S.W.2d at 130. The Fourteenth Amendment provides in pertinent part: No State shall make or enforce any law which shall abridge the privileges or immuni- ties of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV, § 1. 1996] COMMENT Texas Constitution.7 Had the judge denied Mr. Flores, a Latino, proba- tion because of his race, Mr. Flores almost certainly would have been successful on his federal claims,' because the very notion of equal protec- tion is intrinsically connected with race.9 Likewise, Mr. Flores probably would have prevailed on his due process claim had he been able to estab- lish that he had a fundamental right to probation or to be a monolingual 7. Flores, 904 S.W.2d at 130. Texas's version of equal protection provides, in part, that "[aIll free men ... have equal rights." TEX. CONST. art. I, § 3. Texas's due course of law provision states that "[n]o citizen of this state shall be deprived of life, liberty, property, privileges, or immunities, or in any manner disfranchised, except by the due course of the law of the land." Id. § 19. In addition, Mr. Flores claimed that the Texas Equal Rights Amendment offered protections beyond those provided anywhere in the federal or Texas constitutions and was broad enough to protect Texas citizens from classifications made on the basis of language ability. Flores, 904 S.W.2d at 131; see also TEX. CONST. art. I, § 3a (providing that "[e]quality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin"). 8. See Flores, 904 S.W.2d at 130 (stating that "[t]here is no question that discrimina- tion based on race or national origin is prohibited by the due process, due course of law, equal protection, and equal rights clauses of the United States and Texas constitutions"); id. at 131-32 (Myers, J., concurring) (asserting that conviction would be overturned if rec- ord had indicated that judge's sentence was intended to discriminate on basis of race). 9. See Washington v. Davis, 426 U.S. 229, 239 (1976) (stating that main purpose of Fourteenth Amendment's Equal Protection Clause is to prevent racial discrimination); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding (stating that preventing discrimination against former slaves was chief aim of Fourteenth Amendment), in THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHrS: THE INCORPORATION THEORY 85, 101-02 (Charles Fairman & Stanley Morri- son eds., 1970); Alan D. Freeman, Legitimizing Racial Discrimination Through Antidis- crimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049, 1061 (1978) (maintaining that overwhelming goal of Civil War amendments was to estab- lish and protect freedoms of newly-freed slaves); Johnny Parker, When Johnny Came Marching Home Again: A Critical Review of Contemporary Equal Protection Interpreta- tion, 37 How. L.J. 393, 394 (1994) (acknowledging that principal object of Fourteenth Amendment was to create equality between African-Americans and Caucasians); see also Harry F. Tepker, Jr., Separating Prejudicefrom Rationality in Equal Protection Cases: A Legacy of Thurgood Marshall, 47 OKLA. L. REV. 93, 94 (1994) (indicating that because preventing racial discrimination was primary reason for Fourteenth Amendment, Supreme Court evaluates laws promoting racial bigotry with closer scrutiny). How strictly the early Court reviewed race discrimination is debated. Compare Michael Klarman, An Interpreta- tive History of Modern Equal Protection, 90 MICH. L. REV. 213, 227 (1991) (arguing that, before 1960s, Supreme Court failed to read Fourteenth Amendment as presumptively striking racial classifications), with Mark Strasser, Suspect Classes and Suspect Classifica- tions: On Discriminating,Unwittingly