updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 617
for a job because of an accent that the employer claims hinders communication.
314 In the Ninth Circuit, an employer need not provide any
justification for adopting an English-only policy despite the plaintiffs’
claim that this policy, although not necessarily difficult to comply
with, “contributed to an atmosphere of isolation, inferiority, or intimidation.”
315 Yick Wo v. Hopkins was a rare case in which the Court
saw through the proxy—strict regulations for a type of laundry-washing
technique used almost exclusively by Chinese businesses in San
Francisco—and held that the regulations constituted illegal
discrimination. 316
The next inquiry is to determine which is less harmful for people
belonging to the targeted group: considering race explicitly or pretending
not to consider it at all. Declaring race irrelevant may “begin the
difficult task of purging racial considerations from border enforcement,”
317 but it also assumes unrealistically that race does not matter
and that officers will automatically not consider race once they are
told not to do so. 318 In the end, it may “encourage[ ] courts to assume
nonracial motives,” “demonize[ ] the use of race,” and close off any
discussion about race. 319 A prime example of these potential results is
seen in Terry v. Ohio, the case discussed above, which is well known
for establishing the reasonableness standard used in evaluating some
Fourth Amendment events. 320 The opinion does not mention the de-
Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100
YALE L.J. 1329, 1397 (1991) (“The recent push for English-only laws, and the attack
on bilingual education, may represent new outlets for racial anxiety now that many
traditional outlets are denied. The angry insistence that ‘they’ should speak English
serves as a proxy for a whole range of fears displaced by the social opprobrium directed
at explicit racism.”).
314. See Fragante v. City and County of Honolulu, 699 F. Supp. 1429, 1432 (D.
Haw. 1987) (finding the plaintiff, who spoke perfect English but with a Filipino accent,
was legitimately denied the job for business reasons); Matsuda, supra note 313, R
at 1333–40 (noting that Fragrante’s English grammar from the trial transcript was
better than the lawyers’ and the judge’s).
315. Garcia v. Spun Steak Co., 998 F.2d 1480, 1488–89 (9th Cir. 1993), rehearing
en banc denied, 13 F.3d 296 (9th Cir. 1994) (internal quotations omitted) (holding
plaintiffs failed at establishing prima facie case of discriminatory impact). Dissenting
from the court’s decision not to rehear the case en banc, Judge Reinhardt pointed out
that “[l]anguage is intimately tied to national origin and cultural identity: its discriminatory
suppression cannot be dismissed as an ‘inconvenience’ to the affected employees.”
Spun Steak, 13 F.3d at 298 (Reinhardt, J., dissenting).
316. Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886).
317. Johnson, Against Racial Profiling in Immigration Enforcement, supra note 108, R
at 680.
318. See supra notes 305–307 and accompanying text. R
319. Thompson, supra note 22, at 1008. R
320. Terry v. Ohio, 392 U.S. 1 (1968). See discussion supra Part I.A. Another
example is Tennessee v. Garner, 471 U.S. 1 (1985), in which the Court omitted any