By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
 
 

Dear Legal Mailbag:

I am an administrator in a middle school and one of our teachers (she is actually the president of the teachers’ union) came to me to report an ongoing struggle she is having in her classroom. She wanted to inform me that two bilingual students have been harassing another student in the classroom. The problem is that they are doing it in Spanish. The teacher does not speak Spanish, but had several students in the class come to her to report what was being said. She told me that she wants to tell these two students that, moving forward, they are not allowed to speak Spanish in her classroom. They are both extremely skilled in the English language, and she thinks that they are only speaking in Spanish when they want to use inappropriate language, including their harassing statements to the other student. Can she establish “English Only” as a rule in her classroom?

Ayuda Por Favor
 

Dear Ayuda:

Thank you for your question. For once, I can give a simple answer. Yes. Under these circumstances, she can establish the proposed English-only rule. But wait! There’s more!

The key here is that the teacher has a legitimate reason for the requirement. In some circumstances, an English-only rule will be considered discriminatory. However, here, the teacher is concerned that these students not be permitted to harass another student or otherwise use language that is inappropriate by using another language. Given that legitimate concern, there is no question that the teacher may establish this rule in her classroom.

As discussed below, educators have some flexibility in adopting English-only rules for instructional purposes. However, in this context, the EEOC position on English-only rules in the workplace provides a helpful framework for analysis. Specifically, the EEOC has ruled that a strict ban on speaking other languages in the workplace is not permissible because such a ban can be discriminatory against workers whose first language is not English. However, the EEOC has also ruled that employers may have legitimate business interests that justify a limited prohibition against speaking other languages at work. The Connecticut Business and Industry Association has provided guidance on the subject, and there are three key points:

• If an employer adopts a rule requiring employees to speak only English at all times in the workplace, the EEOC will presume the rule violates Title VII because its broad reach cannot be justified and it may work to discriminate against some workers on the basis on national origin.
• An English-only rule that applies only at certain times is acceptable if the employer can show that the rule is justified by “business necessity.”
• An employer who has a justifiable business reason for an English-only rule that is limited to certain times must notify employees in advance of situations when speaking English is required because of such business necessity.
  (Source: Connecticut Business and Industry Association, “Can You Require Employees to Only Speak English on the Job?“)

Here, the teacher has reasons for imposing the rule similar to the “business necessity” that may justify English-only rules in the workplace (such as when dealing with customers). Moreover, English-only rules have been adopted in classrooms for educational reasons. The educational merit of such rules has been studied and debated. See, e.g., Shvidko, “Learners’ Attitudes Toward ‘English-Only’ Institutional Policies: Language Use Outside the Classroom,” ERIC (2017). However, the debate is centered on the efficacy of such rules, not whether they are permitted. ¡De nada!