Race & Law

Professor Armstrong
Santa Clara University School of Law

Linguistic Colonialism
In Puerto Rico
Fall Semester
December 20, 2013

English language requirements in Puerto Rico are framed as a national necessity despite their adverse
impact on society and monolingual Spanish speakers fundamental rights. Such requirements are a
legally and morally untenable function of internal colonialism that violates international human rights.

Table of Contents
Colonial History .............................................................................................................................. 1
Language Policies ........................................................................................................................... 2
Internal Colonialism........................................................................................................................ 4
Language Privilege ......................................................................................................................... 5
Language Privilege in the District Court ........................................................................................ 7
The Right to an Impartial Jury ........................................................................................................ 8
English Proficiency Requirement ................................................................................................... 9
Fourteenth Amendment Jurisprudence ......................................................................................... 10
Sixth Amendment Jurisprudence .................................................................................................. 11
(1) The group alleged to be excluded is a distinctive group in the community......................... 11
(2) The representation of this group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the community. ................................. 12
(3) Underrepresentation is due to systematic exclusion of the group in the jury-selection
process. ...................................................................................................................................... 12
Penological Practices .................................................................................................................... 15
Congressional Remedies ............................................................................................................... 16
International Pressure.................................................................................................................... 18
Ending Linguistic Colonialism ..................................................................................................... 19
List of Works Cited ....................................................................................................................... 21

Professor Armstrong
Race & Law: Fall 2013

Linguistic Colonialism in Puerto Rico

Colonial History
In 1898, Spain relinquished its colonial power after the United States military invaded
Puerto Rico. The result was the Treaty of Paris which provided the civil rights and political
status of the native inhabitants of the territories hereby ceded to the United States shall be
determined by Congress.1 In 1900, the Foraker Act established the United States District Court
for the District of Puerto Rico. In 1917, the Jones Act gave Puerto Ricans citizenship. Puerto
Ricans were not, however, granted any representation in Congress or the right to vote for
president. Despite being subject to federal laws and control, Puerto Rico has been continually
denied any meaningful civic or political participation.
The Insular Cases explicitly sanctioned the colonial status of Puerto Rico and secondclass constitutional protection of its citizens.2 Not surprisingly, the Insular Cases were rendered
only five years after the Supreme Courts decision in Plessy v. Ferguson resting on principles of
racism and exclusion. The desire to control Puerto Ricos military, economic, and natural
resources also weighed heavily in this decision.3 By denying its residents self-governance, the
United States could secure its ability to mine for copper, nickel, and oil, control massive air and
naval bases, and enjoy targeted tax breaks on the island.4 Accordingly, the Court determined that

Treaty of Peace, U.S.-Spain, Dec. 10, 1898, art. 2, 30 Stat. 1754, 1755.

Downes v. Bidwell, 182 U.S. 244, 289 (1901).

Andrea Freeman. Linguistic Colonialism: Law, Independence, and Language Rights in Puerto Rico, 20 Temp. Pol.

& Civ. Rts. L. Rev. 179, 202-03 (2010).

4

Alexander Odishelidze & Arther Laffer. Pay to the Order of Puerto Rico 61 (2004).

Page 2
Congress has plenary control over Puerto Ricos status and only fundamental rights under the
Constitution apply to its citizens.5

Language Policies
Language policies related to colonialism in Puerto Rico have shifted in accordance with
the parties in power. When the governor, the judges of the Supreme Court, and the members of
the upper house of the legislative assembly in Puerto Rico were appointed by the president of the
United States, only the lower house of the legislature was an elective body. As a result, those in
power worked for the American president instead of the Puerto Rican people.6 This loyalty
created a policy of Americanization where English became an official language in the
government and schools of Puerto Rico.7 The Commissioner of Education eventually revoked
the latter English language requirement by administrative order in 1949, which was subsequently
codified by the Puerto Rican legislature in 1990, reinstating Spanish as the language of
instruction in its public schools.8
Official languages have also varied, to a lesser extent, by political ideology regarding
status. The major political parties of Puerto Rico are structured around status and include the
Puerto Rican Independence Party, which favors independence, the New Progressive Party, which
favors statehood, and the Popular Democratic Party, which favors maintaining some form of
commonwealth status. For nearly a century, Spanish and English were official languages of the

Balzac v. Porto Rico, 258 U.S. 298, 312-13 (1922).

Jose Julian Alvarez-Gonzales. Law, Language and Statehood: The Role of English in the Great State of Puerto

Rico,17 Law & Ineq. 359, 364 (1999).

7

Id. at 365.

68 P.R. Laws 1.02, PR-Legis 3 RS 68 (1990).

Page 3
government in Puerto Rico.9 It was not until 1991 that the Puerto Rican Independence Party
maintained control of the legislature and repealed the 1902 statute, reinstating Spanish as the
only official language.10 In a push for statehood, however, the New Progressive Party quickly
repealed the 1991 statute, once again establishing a bilingual government in line with the policy
of Americanization.11 Despite the appearance of a pro-statehood political victory, official
language policies cannot change the fact that Puerto Rico is a linguistically homogenous society
where few people speak English.
On the mainland, English-only language policies tend to attract the support of those who
favor the exclusion of racial minorities from American society for bigoted and prejudicial
reasons. For example, the United States has generally withheld statehood from territories until
they contained English-speaking majorities in an attempt to limit the enfranchisement of
undesirables. Similarly, attempts to preserve German, French, and Spanish after statehood tend
to extinguish in the face of linguistic prejudice and discrimination. Legally, however, the culture
of privilege for English speakers in the United States can no longer rest explicitly on the
principles of racism and exclusion.
As a result, remaining English language requirements are framed as a national necessity,
despite their adverse impact on linguistic minorities. Defended on the grounds of efficiency and
consistency, the national necessity rationale ironically undercuts the ability of Puerto Rico to
secure fundamental rights under the United States Constitution to underrepresented members of
the Puerto Rican community. Several commentators have therefore suggested that English

1 P.R. Laws 51 (1902).

10

1 P.R. Laws 56 (1991).

11

1 P.R. Laws 59 (1993).

Page 4
should be optional, not mandatory, in Puerto Rican legal and political institutions.12 Furthermore,
I contend that federal English language requirements are an internationally reprehensible
function of internal colonialism.

Internal Colonialism
Internal colonialism is a process where racism forms the material basis of social
stratification and domination. Racialized minorities are grouped into internal colonies that are
present within the dominant society.13 This can be thought of in opposition to external
colonialism where the colonial powers are a numerical minority, since under internal colonialism
they constitute the majority, yet under both systems it is the colonizers who receive an
abundance of privilege and power. The result is self-perpetuating colonial rule wrought with
institutional racism (e.g. education, employment, etc.) and cultural disparagement (e.g. language,
religion, etc.). This leaves racial minorities in a state of disempowerment and with a lack of
privilege, most often traceable to a history of involuntary incorporation into the United States. 14
For example, Native Americans were involuntarily appropriated through conquest, African
Americans through slavery, and as will be discussed here, Puerto Ricans by territorial
occupation.
Currently, Puerto Rico belongs to the United States under a commonwealth status,
giving the island more autonomy than it held as a territory, but less sovereignty than statehood.15

12

See, e.g., Andrea Freeman. Linguistic Colonialism: Law, Independence, and Language Rights in Puerto Rico, 20

Temp. Pol. & Civ. Rts. L. Rev. 179, 187 (2010).

13

Arredondo, Gabriela F. Class Lecture. Structural Inequalities around Race and Class. Bridging Latin American

and Latin@ Studies. University of California, Santa Cruz. 20 Oct. 2010.

14

Kroeker, Allison. Sociology Paper. Internal Colonialism as a source of Latino Oppression. 5 Nov. 2010.

15

Territories of the United States. West's Encyclopedia of American Law, edition 2. 2008.

Page 5
From its inception, the Court has legitimized this type of inferior treatment due to the lack of an
Anglo-Saxon presence on the island.16 As a result, Puerto Ricans have been socially and
legally constructed as other, lesser beings that can be subjugated due to their racial composition
and second-class relationship to the United States. It is in this negative construct of the other
that internal colonialism operates.
At times, embracing the other label can be used positively to empower marginalized
people.17 For example, the unique identity and culture of Puerto Ricans has proved resilient
enough to survive a century of attempts at Americanization. Unfortunately, the rejection of
American culture has simply shifted the policy of Americanization from one of childhood
indoctrination to social stratification and domination.18 However, the racialization and
marginalization of Puerto Ricans is not a fixed construction. There are colonized elites that
transcend a porous boundary between the commonwealth of Puerto Rico and dominant society.
This transcendence is accomplished through language.

Language Privilege
The English language is simultaneously viewed by island natives as a necessary skill for
socioeconomic mobility and as a threat to their culture and identity.19 In both theory and practice,
English requirements limit those eligible for socioeconomic advancement and meaningful
participation in society to a small, elite class of privileged individuals. The majority of Puerto

16

Balzac v. Porto Rico, 258 U.S. 298, 310-11 (1922).

17

Addis Adeno. On Human Diversity And The Limits Of Toleration, in Ethnicity And Group Rights 127 (Ian

Shapiro & Will Kymicka eds., 1992).

18
19

Pedro A. Malavet. Puerto Rico: Cultural Nation, American Colony, 6 Mich. J. Race & L. 1, 71 (2000).
Amilcar Antonio Barreto. Speaking English in Puerto Rico: The Impact of Affluence, Education, and Return

Migration, 7 Centro J. 5, 7 (2000).

Page 6
Ricans are thus effectively denied social, economic, civic, and political power based on language
privilege. For example, admission to law schools and other graduate programs require a broad
knowledge of English.20 Similarly, high-paying professions such as medicine, business,
engineering, and accounting require English fluency.21 Furthermore, several political
proceedings must be conducted in English in Puerto Rico, despite the fact informal dealings take
place in Spanish.22 While most of these proceedings pertain to federal agencies or executive
affairs, the Constitution of Puerto Rico also requires legislators to be able to read and write in
both English and Spanish.23
As a result, English language requirements represent political and cultural domination in
fields where Spanish is ascribed a second-class status. This competition for status between the
two languages perpetuates social inequality between English speakers and monolingual Spanish
speakers by reinforcing stereotypes associated with ancestry, class, and education. Instead of
rewriting the laws and working to remedy discrimination based on language, the English
speaking elite find ways to perpetuate their superiority. For example, wealthy Puerto Ricans
enroll their children in expensive private schools where English is the language of instruction.24
Conversely, the attrition rate in public high school is two times higher than the United States
national average, and even public high school graduates do not speak English or only do so

20

See, e.g., Juris Doctor Admission Requirements. Pontifical Catholic University of Puerto Rico. 2012-2014.

http://spserver2008.pucpr.edu/derecho/images/registro/docs/Catalogo2012Web.pdf.
21

Jose Julian Alvarez-Gonzales. Law, Language and Statehood: The Role of English in the Great State of Puerto

Rico, 17 Law & Ineq. 359, 376-77 (1999).

22

Jose Julian Alvarez-Gonzales. Law, Language and Statehood: The Role of English in the Great State of Puerto

Rico, 17 Law & Ineq. 359, 374 (1999).

23

P.R. Const. art. II, 5.

24

Amilcar Antonio Barreto. Speaking English in Puerto Rico: The Impact of Affluence, Education, and Return

Migration, 7 Centro J. 5, 7 (2000).

Page 7
poorly.25 As a result, life opportunities in Puerto Rico continue to be controlled by limiting
socioeconomic mobility through language privilege.

Language Privilege in the District Court

While language privilege permeates everyday social interaction and economic
opportunities for Puerto Ricans, the District Courts English language environment also excludes
potential federal litigants from receiving judicial services, adjudications, and remedies in their
native language. While no United States constitutional provision establishes English as a
mandatory or preferred language in Puerto Rico, federal law requires that all pleadings and
proceedings in the United States District Court for the District of Puerto Rico be conducted in
English.26 This limits the pool of potential staff to those with a bilingual education, in addition to
limiting potential plaintiffs due to the expenses associated with representation, and jurors due to
an English proficiency prerequisite.
Many Puerto Rican lawyers refuse to bring cases to the federal court due to the English
language environment. For example, some lawyers have managed to complete law school with
only minimal knowledge of English, some feel genuinely concerned about their ability to argue
orally in English, and others may simply be deterred by United States norms within the District
Court (i.e., speaking volume, timetables, and levels of supervision).27 Such concerns are logically
amplified for trial judges and court interpreters, limiting eligible personnel to run the courts and
increasing the costs of federal litigation. A direct consequence of expensive litigation practices is
that plaintiffs have a harder time obtaining affordable representation and bringing cases to
25

Erna Kerkhof. The Myth of the Dumb Puerto Rican: Circular Migration and Language Struggle in Puerto Rico, 75

New W. Indian Guide 257, 269 (2001).

26

48 U.S.C. 864 (1994).

27

Alicia Pousada. The Mandatory Use of English in the Federal Court of Puerto Rico, 1 Centro J. 136, 144 (2008).

Page 8
federal court. This is especially detrimental for tort plaintiffs with an incentive to sue in federal
court in the hope of acquiring larger judgments because civil jury trials are unavailable in the
local courts of Puerto Rico.28

The Right to an Impartial Jury

In contrast to the commonwealth courts influenced by Spanish civil law, the United
States guarantees the right to a trial by jury in both criminal and civil cases in its federal district
courts. Congress codified the fair-cross-section requirement for an impartial jury guaranteed by
the Sixth Amendment in the Jury Service and Selection Act (JSSA): It is the policy of the
United States that all litigants in Federal courts entitled to trial by jury shall have the right to
grand and petit juries selected at random from a fair cross section of the community in the
district or division wherein the court convenes.29 The JSSA was enacted to establish a uniform
jury selection process in an effort to ensure that jury pools are drawn from a fair cross section of
the community and that no citizen shall be excluded from service as a grand or petit juror in
the [federal courts] on account of race, color, religion, sex, national origin, or economic status.30
Notably, the Sixth Amendment right to an impartial jury, which includes the right to a
jury selected from a fair cross selection of the community, has been deemed a fundamental right
by the Supreme Court.31 Pursuant to the Insular Cases, this means Puerto Ricans are entitled to a
jury that represents a fair cross section of their community in federal court. It is ironic, then, that
Puerto Rican jurors who cannot read, write, speak, and understand the English language with a
28

Kroeker, Allison. Civil Procedure Paper. Starkist Contextualization. 5 May 2013. Citing Rosario Ortega v. Star-

Kist Foods, Inc., 370 F.3d 124 (2004).

29

28 U.S.C. 1861 (2006).

30

28 U.S.C. 1861 (2006).

31

Taylor v. Louisiana, 419 U.S. 522 (1975); Duncan v. Louisiana, 391 U.S. 145 (1968).

Page 9
degree of proficiency sufficient to satisfactorily complete the Juror Qualification Form and to
render satisfactory jury service in [the] court are statutorily excluded from the jury pool despite
making up the majority of their districts population.32

English Proficiency Requirement

On the mainland, the majority of residents meet the federal jury service requirement of
English proficiency. For example, in California, eighty percent of the population is proficient in
English.33 In contrast, eighty percent of Puerto Ricans identify themselves on the U.S. Census as
unable to communicate effectively in English.34 Census data, however, may be inaccurate
because the surveys are written in Spanish and respondents can easily overstate their ability. In
an effort to correct errors related to self-reporting, a study by the University of Puerto Rico
evaluating the language ability of potential jurors found nine out of ten Puerto Ricans cannot
speak English at the required level.35 Accordingly, closer to ninety percent of the Puerto Rican
population cannot participate in federal juries due to the English language requirement.
While English proficiency is written as a facially neutral criterion, it operates as an
economic status filter in application.36 In Puerto Rico, this is compounded by the fact higher

32

28 U.S.C. 1865(b) (2006).

33

Selected Social Characteristics in the United States: California: 2006-2008, U.S. Census Bureau.

http://www.factfinder.census.gov.
34

Selected Social Characteristics in the United States: Puerto Rico: 2006-2008, U.S. Census Bureau.

http://www.factfinder.census.gov.
35

Gutierrez, Elias R. Planning Paper. Discrimination in Federal Court. Graduate School of Planning. University of

Puerto Rico. 4 Sep. 2002. http://graduados.uprrp.edu/planificacion/facultad/eliasgutierrez/FederalJuryPR%5B1%5D.pdf.

36

Gutierrez, Elias R. Planning Paper. Discrimination in Federal Court. Graduate School of Planning. University of

Puerto Rico. 4 Sep. 2002. http://graduados.uprrp.edu/planificacion/facultad/eliasgutierrez/FederalJuryPR%5B1%5D.pdf.

Page 10
education and socioeconomic status correlate closely with Europeans of Spanish descent who are
lighter skinned.37 As a result, unequal representation of educational and socioeconomic
backgrounds on juries also translates into unequal representations of race. The English-language
requirement therefore acts as a proxy for education, class, race, and to a lesser extent gender,
resulting in a scandalously small, homogenous pool of wealthy, lighter skinned elites. The
systemic exclusion of monolingual Spanish speakers is therefore not only discriminatory in
application but a blatant manifestation of [colonialism.]38

Fourteenth Amendment Jurisprudence

To combat this kind of unequal representation, the Court held in Hernandez v. Texas that
the systemic exclusion of Mexican Americans solely on the basis of ancestry or national origin is
discrimination prohibited under the Fourteenth Amendment.39 The holding was especially useful
for eradicating manifestations of colonialism because the Court adopted an anti-subordination
approach, focusing on hierarchy and social stratification, as opposed to formal racial
classifications.40 Unfortunately, the Court later held that English proficiency requirements do not
violate the Equal Protection Clause of the Fourteenth Amendment because linguistic minorities
are not a suspect class, despite the obvious implications of ancestry, national origin, and even
racialization.41 In other words, under contemporary Fourteenth Amendment jurisprudence, the

37

Jasmine B. Gonzales Rose. The Exclusion of Non-English-Speaking Jurors: Remedying a Century of Denial of

the Sixth Amendment in the Federal Courts of Puerto Rico, 46 Harv. C.R.C.L. L. Rev. 497, 510 (2011).
38

Andrea Freeman. Linguistic Colonialism: Law, Independence, and Language Rights in Puerto Rico, 20 Temp.

Pol. & Civ. Rts. L. Rev. 179, 186 (2010).

39

Hernandez v. Texas, 347 U.S. 475, 482 (1954).

40

Ian Haney Lopez. Jim Crow, Mexican Americans, and the Anti-Subordination Approach, in Race Law Stories

(Rachel Moran & Devon Wayne Carbado eds., 2008).

41

Lassiter v. Northampton County Bd. Of Election, 360 U.S. 45 (1959).

Page 11
Court regards with constitutional indifference any subordination not predicated on an express
use of a racial classification.42

Sixth Amendment Jurisprudence

Approaching the language question from a different angle, the Supreme Court
subsequently decided on a framework for challenges to the fair-cross-section requirement under
the Sixth Amendment in Duren v. Missouri: Three factors are necessary to establish a prima
facie case of unconstitutional jury disproportionality(1) that the group alleged to be excluded
is a distinctive group in the community; (2) that the representation of this group in venires from
which juries are selected is not fair and reasonable in relation to the number of such persons in
the community; and (3) that this underrepresentation is due to systematic exclusion of the group
in the jury-selection process.43 After a defendant establishes a prima facie case, the government
may show no constitutional violation occurred by demonstrating the jury qualification
manifestly and primarily advances a significant state interest.44
(1) The group alleged to be excluded is a distinctive group in the community.
For Puerto Ricans, culture refers to their collective identity, forged through five hundred
years of common history unique to the United States.45 The defense of Spanish and defiance of

42

Ian Haney Lopez. Jim Crow, Mexican Americans, and the Anti-Subordination Approach, in Race Law Stories

(Rachel Moran & Devon Wayne Carbado eds., 2008).

43

Duren v. Missouri, 439 U.S. 357, 364 (1979).

44

Id., at 367-68.

45

Jose Julian Alvarez-Gonzales. Law, Language and Statehood: The Role of English in the Great State of Puerto

Rico, 17 Law & Ineq. 359, 439 (1999).

Page 12
English is therefore a predominant form of cultural maintenance on the island.46 Accordingly, the
absence of monolingual Spanish speakers results in the absence of a culturally distinctive group
of Puerto Ricans. Peculiar to this analysis is that the distinctive group as defined represents the
majority of residents on the island. Consequently, the exclusion of monolingual Spanish speakers
results in the exclusion of those who genuinely identify as Puerto Rican from serving on federal
juries in their own district court.
(2) The representation of this group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the community.
Approximately ninety percent of otherwise-eligible potential jurors are excluded based on
the language prerequisite. This is both an unfair and unreasonable limitation on representatives
of the Puerto Rican community. It is unfair in the sense that language privilege is highly
correlated with education and socioeconomic status which serve as proxies for race and gender.
It is also unreasonable in light of the fact the district court is located in a Spanish speaking
commonwealth. As a result, actual representatives of the community, as opposed to the outlier
class of elites, are being denied any and all representation.
(3) Underrepresentation is due to systematic exclusion of the group in the jury-selection process.
Clearly, the underrepresentation of Puerto Ricans is due to exclusion based on English
proficiency in the jury-selection process. However, the Ninth Circuit held that non-English
speakers cannot be considered a cognizable group entitled to representation in the jury pool for
Sixth Amendment purposes because they are not eligible for jury service under the JSSA.47 In

46

Jasmine B. Gonzales Rose. The Exclusion of Non-English-Speaking Jurors: Remedying a Century of Denial of

the Sixth Amendment in the Federal Courts of Puerto Rico, 46 Harv. C.R.C.L. L. Rev. 497, 507 (2011).
47

United States v. Torres-Hernandez, 447 F.3d 699, 702 (9th Cir. 2006).

Page 13
other words, monolingual Spanish speakers are constitutionally excluded because they are
statutorily excluded. This reasoning is circular and inadequate for districts residing outside of the
continental United States.
First and foremost, Puerto Rico is not a state and does not have meaningful or effective
representation in Congress. Accordingly, the interests of Puerto Rico were not taken into account
when enacting this legislation. Moreover, Congress has the ability to exempt Puerto Rico from
the English language juror prerequisite so long as there is a rational basis for its actions.48 Thus
the only equitable conclusion is that Puerto Rico has established a prima facie case of
unconstitutional jury disproportionality regardless of the fairness or reasonableness of statutory
requirements as applied to the states.
Unfortunately, reviewing courts have consistently held that the English-language
requirement primarily and manifestly advances the governments significant interest in having a
branch of the national court system operate in the national language to ensure efficiency and
consistency.49 Despite its [recognition] that most jurors, and even judges, in Puerto Rico may be
more comfortable speaking in Spanish than in English, the First Circuit refuses to acknowledge
that language requirements are not efficient in the context of Puerto Rico.50 Furthermore, despite
its concession that with disturbing frequency the district court judges in Puerto Rico [allow]
parties to offer briefs, documents, and testimony in Spanish without translation, the First Circuit
refuses to hold that any efficient procedure can and should be inconsistent with federal procedure
as applied to the states.51

48

Harris v. Rosario, 446 U.S. 651, 651-52 (1980).

49

See, e.g., United States v. Benmuhar, 658 F.2d 14, 19-20 (1st Cir. 1981), cert. denied.

50

U.S. v. Rivera-Rosario et. al., 300 F.3d 1, 20 (2002).

51

Id..

Page 14
The resulting imposition of English in the District Court inevitably perpetuates hostility
on the island. For example, the fact Puerto Ricans are compelled to litigate their cases through
interpreters, despite the fact everyone in the courtroom is competent in Spanish, demonstrates yet
another unpleasant reminder to many of Puerto Ricos continued colonial status.52 While the
reviewing court may be basing its decision on the English record, the trial judge and jury
inevitably reach their conclusions based on testimony they heard in their native language.53
Moreover, translations are often inaccurate, biased, and unreliable as a source of review.54 As a
result, it should not matter when the translation occurs, be it contemporaneously in the courtroom
or for use on appeal, as the usefulness and quality of translation will be the same. Regardless, the
First Circuit has continued to deny supplementing its English record with Spanish testimony
actually relied on by the trial judge and jury.55
As a result, the framing of English language requirements as a national necessity is
irrational and colonial in nature, not at all the kind of precedent that should constitute stare
decisis for refusing Puerto Ricans their fundamental rights. The underlying rationales of
efficiency and consistency also seem to be grounded in nothing more than the exclusion of
Puerto Rican interests from the national agenda. Linguistic colonialism in the federal courts
therefore needlessly perpetuates hostility towards the English language and resentment for
American rule of law.

52

C. William Schweers & Jorge A. Velez. To Be or Not To Be Bilingual in Puerto Rico: That Is the Issue, 2 TESOL

J. 23, 26 (1992).
53

Andrea Freeman. Linguistic Colonialism: Law, Independence, and Language Rights in Puerto Rico, 20 Temp.

Pol. & Civ. Rts. L. Rev. 179, 185 (2010).

54

Id. at 189.

55

Estades v. Associates Corp. of North America, 359 F.3d 1 (1st Cir. 2004); Gonzales v. Family Dep't., 377 F.3d 81

(1st Cir. 2004).

Page 15
Penological Practices
Even sentencing practices are unfair to criminal defendants and cultivate opposition on
the island. For example, certain crimes defined by federal statute, as well as their sentencing
guidelines, may not be pertinent to Puerto Rican penological goals and ideology.56 For an
especially controversial example, the Federal Death Penalty Act has been held applicable in
Puerto Rico, despite the fact the death penalty is banned by the Puerto Rican Constitution.57
Furthermore, incarceration is pursued by American agencies such as the FBI, the DEA, and ICE
Homeland Security Investigations with a history of secret, unethical, and politically-motivated
practices on the island.58 Even upon conviction, time is served in Puerto Ricos federal prison
managed by the Federal Bureau of Prisons instead of a local law enforcement agency. The
natural result is communal enmity towards the imposition of a forced incarceration regime that is
potentially harmful and untailored to the interests of island inhabitants.
Political leaders, especially advocates of statehood, are sacrificing Puerto Ricans
collective autonomy by tolerating federal acts of prejudice and discrimination within the islands
legal system. Internal colonialism cannot be extinguished in light of the English requirements
and other attempts at Americanization inherent in these agencies and institutions. A different
balance needs to be found between commonwealth identity and national identity that supports
the cultivation of Puerto Rican culture, ideology, and autonomy. Regardless of what status
Puerto Rico ultimately decides to pursue, colonial policies such as those pertaining to English
language requirements need to end. Puerto Rico has a unique population that deserves legislative

56

Moreno Rios v. Untied States, 256 F.2d 68, 71-73 (1st Cir. 1958).

57

United States v. Acosta-Martinez, 252 F.3d 13 (1st Cir. 2001).

58

Pedro A. Malavet. Puerto Rico: Cultural Nation, American Colony, 6 Mich. J. Race & L. 1, 74 (2000).

Page 16
tailoring. Congress has the plenary power under the Territories Clause to change Puerto Ricos
status; the least they can do is recognize its citizens linguistic preference.

Congressional Remedies
To begin, Congress should amend the Jury Service and Selection Act to eliminate the
English proficiency requirement and prohibit discrimination based on language because greater
participation in the federal judiciary would increase Puerto Ricans investment in the system and
reduce hostility.59 Reserving jury service to only a small group of educated, wealthy,
linguistically privileged, lighter-skinned individuals is a manifestation of colonialism that
undermines the credibility of the federal system in the eyes of natives.60 By broadening jury
service to be representative of the Puerto Rican population, otherwise-eligible citizens can finally
take advantage of direct participation in a step towards self-governance long-denied by the
federal government.61 Furthermore, by amending the JSSA, Congress can actually denounce the
second-class status of non-English speaking citizens, not only in Puerto Rico, but throughout the
United States by implementing a policy of juror language accommodation.62
Monolingual Spanish speakers can easily and effectively serve as jurors in the current
English language environment of the District Court through the use of interpreters. The cost of
hiring additional court interpreters is insignificant when compared to remedying the
constitutional deprivation of fundamental rights, especially where monolingual Spanish speakers

59

Andrea Freeman. Linguistic Colonialism: Law, Independence, and Language Rights in Puerto Rico, 20 Temp.

Pol. & Civ. Rts. L. Rev. 179, 203 (2010).

60

Jasmine B. Gonzales Rose. The Exclusion of Non-English-Speaking Jurors: Remedying a Century of Denial of

the Sixth Amendment in the Federal Courts of Puerto Rico, 46 Harv. C.R.C.L. L. Rev. 497, 530 (2011).
61

Id. at 499.

62

Id. at 549.

Page 17
constitute approximately ninety percent of the otherwise-eligible population. Moreover, the use
of interpreters for non-English speaking jurors is not a novel or implausible concept. Spanish
speakers often served as jurors with the assistance of interpreters in the southwestern states after
the acquisition of Mexico.63 In fact, New Mexico state courts still provide translation for Spanish
jurors, and federal courts without protest provide translation for deaf jurors.64
Alternatively, Congress has the power to permit the District Court in Puerto Rico to
require filings and proceedings be conducted in Spanish like the commonwealth courts where
monolingual Spanish speakers have been accommodated for years.65 This approach, although
radical, would respect the unique history, culture, and people of Puerto Rico. Likewise, English
is frequently identified with natives of the continental United States, as a distinct national
category apart from native-born Puerto Ricans, for whom Spanish remains their mother
tongue.66 As a result, this remedy also conforms more closely to the constitutional principle of
equality before the law by respecting the language preference of native-born citizens in the
judicial system the same way we do on the mainland. Finally, this compromise will not unduly
burden monolingual English speakers on the island. Since the First Circuit held translations for
English-speaking criminal defendants in the commonwealth courts complies with due process,
the same should logically be held true for the District Court.67

63

Laura E. Gomez. Race, Colonialism, and Criminal Law: Mexicans and the American Criminal Justice System in

Territorial New Mexico, 34 Law & Socy Rev. 1129, 1172-73 (2000).
64

Id.

65

Pueblo v. Tribunal Superior, 92 P.R.R. 580 (1965).

66

Diffenderfer v. Gomez-Colon, 587 F. Supp. 2d 338, 347 (D.P.R. 2008).

67

Jackson v. Cintron Garcia, 665 F.2d 395 (1st Cir. 1981).

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International Pressure
International ideology also overwhelmingly supports enhancing civic and political
participation by eradicating linguistic colonialism as a matter of human rights. The cultural
diversity that accompanies globalization requires linguistic inclusion and empowerment in order
to maintain equitable social exchanges. Accordingly, the Charter of the United Nations demands
respect for fundamental rights and prohibits discrimination based on language.68 Yet under the
facade of democracy, the United States continues to unilaterally impose English language
requirements on a Spanish speaking populace in violation of the Charters purposes and
principles. This conspicuous manifestation of colonialism is not just morally untenable, but
legally untenable in light of the United Nations decolonization requirements.
Despite legal efforts to abolish colonialism, the United States camouflages its colonial
power under the pretext of mutual agreement arising from the Federal Relations Act and
continues to elude international criticism by emphasizing the technicalities of such a compact.
For example, the Department of State announced the new Commonwealth cannot be considered
as a non-self-governing territory under Article 73 of the United Nations Charter.69 Based on the
theory of mutuality, the United Nations agreed and accepted the United States position that it
created a bilateral relationship with Puerto Rico.70 The current arrangement, however, is in
practice still an unlawful territory due to its colonial nature. The United States continues to
forbid Puerto Ricos self-determination and deprive the Puerto Rican people of an acceptable
form of legal citizenship at the expense of their fundamental rights.

68

Purposes of the United Nations. Article I. Charter of the United Nations. 1945.

69

Barry E. Carter & Phillip R. Trimble. U.N. Charter art. 73, in International Law: Selected Documents 17-18

(1991).
70

G.A. Res. 748, U.N. GAOR, 8th Sess., Supp. No. 17, at 25-26, U.N. Doc. A/2630. 1953.

Page 19
Notwithstanding the United States act of obfuscation before the United Nations, the
Supreme Court continues to define Puerto Rico as an unincorporated territory subject to
Congress plenary power.71 Consequently, Puerto Ricans are afforded only a deferential rational
basis standard of review concerning legal rights that are guaranteed to citizens on the mainland.72
So far, this standard has resulted in an unacceptable form of citizenship that denies equal civil
and political participation, let alone the human right to engage in such activities using their
native language. This treatment is absolutely reprehensible considering the United States
imposes the same burdens of federal law on Puerto Ricans (e.g., taxation, military service, and
criminal punishment), yet provides less benefits to its citizens than are guaranteed by living in
the states. 73 Even worse, those responsible for perpetuating the colonial power over Puerto Rico
have alleviated themselves of responsibility by placing the burden of ending its occupation on
the Puerto Rican people. Clearly, this approach is dismissive of human rights and ignores
entirely the issue of linguistic colonialism.

Ending Linguistic Colonialism

The social and legal construction of Puerto Ricans as others with citizenship inferior to
that of American citizens is an international violation of human rights. Notably, however,
neither formal citizenship nor statehood can correct Americas imposition of language privilege.
In order to reclaim Spanish as a tool for self-empowerment and socioeconomic mobility, Puerto
Ricans must be free to redefine the dominant language used in formal proceedings and their

71

Califano v. Torres, 435 U.S. 1 (1978); Harris v. Rosario, 446 U.S. 651 (1980).

72

Torres v. Puerto Rico, 442 U.S. 465 (1979).

73

Pedro A. Malavet. Puerto Rico: Cultural Nation, American Colony, 6 Mich. J. Race & L. 1, 44-45 (2000).

Page 20
institutions. Unfortunately, the power to legislate such change is held in the hands of the
colonizers.
Ultimately, then, the decision to end linguistic colonialism must be made by those in
power. The legislature has this responsibility both under the United States Constitution and
under fundamental notions of justice and morality.74 Unfortunately, given the United States
history of conditioning statehood on Anglo-Saxon, English-speaking majorities, it is not
farfetched to think Congress will continue to condition the receipt of federal funds or benefits
based on English language requirements. While a declaration of independence could eradicate
these concerns, internally colonized groups that have grievances against the dominant majority
do not necessarily wish to secede. In fact, Puerto Ricos plebiscites consistently show a
preference for maintaining some form of commonwealth status, albeit with enhanced citizenship
and cultural freedom.
Accordingly, Congress should give Puerto Ricans the same protections of the United
States Constitution that apply to an incorporated territory.75 That way Puerto Ricans can have
impartial citizenship that will both recognize cultural diversity and the need for enhanced civic
and political participation. This would be consistent with the international theory of human rights
by enfranchising racialized minorities and respecting cultural differences. And while this version
of a post-colonial future is surely consistent with international ideology, it also retains a form of
commonwealth status, respecting the plebiscite voters act of self-determination rightfully
reserved to the islands native inhabitants. It is under this paradigm that Puerto Ricans may
finally meaningfully negotiate for morally and legally acceptable congressional remedies, such
as those outlined above, to end linguistic colonialism.
74

Pedro A. Malavet. Puerto Rico: Cultural Nation, American Colony, 6 Mich. J. Race & L. 1, 103 (2000).

75

Id. at 106.

Page 21
List of Works Cited
Cases
Balzac v. Porto Rico, 258 U.S. 298 (1922). ................................................................................ 2, 5
Califano v. Torres, 435 U.S. 1 (1978)........................................................................................... 19
Diffenderfer v. Gomez-Colon, 587 F. Supp. 2d 338 (D.P.R. 2008). ............................................ 17
Downes v. Bidwell, 182 U.S. 244 (1901). ...................................................................................... 1
Duncan v. Louisiana, 391 U.S. 145 (1968)..................................................................................... 8
Duren v. Missouri, 439 U.S. 357 (1979)....................................................................................... 11
Estades v. Associates Corp. of North America, 359 F.3d 1 (1st Cir. 2004) ................................. 14
Gonzales v. Family Dep't., 377 F.3d 81 (1st Cir. 2004). .............................................................. 14
Harris v. Rosario, 446 U.S. 651 (1980). ................................................................................. 13, 19
Hernandez v. Texas, 347 U.S. 475 (1954). ................................................................................... 10
Jackson v. Cintron Garcia, 665 F.2d 395 (1st Cir. 1981). ............................................................ 17
Lassiter v. Northampton County Bd. Of Election, 360 U.S. 45 (1959). ....................................... 10
Moreno Rios v. Untied States, 256 F.2d 68 (1st Cir. 1958). ........................................................ 15
Pueblo v. Tribunal Superior, 92 P.R.R. 580 (1965). ..................................................................... 17
Taylor v. Louisiana, 419 U.S. 522 (1975) ...................................................................................... 8
Torres v. Puerto Rico, 442 U.S. 465 (1979). ................................................................................ 19
U.S. v. Rivera-Rosario et. al., 300 F.3d 1 (2002). ........................................................................ 13
United States v. Acosta-Martinez, 252 F.3d 13 (1st Cir. 2001).................................................... 15
United States v. Benmuhar, 658 F.2d 14 (1st Cir. 1981). ............................................................. 13
United States v. Torres-Hernandez, 447 F.3d 699 (9th Cir. 2006). .............................................. 12

Page 22
Statutes
1 P.R. Laws 51 (1902). ................................................................................................................ 3
1 P.R. Laws 56 (1991). ................................................................................................................ 3
1 P.R. Laws 59 (1993). ................................................................................................................ 3
28 U.S.C. 1861 (2006). ................................................................................................................ 8
28 U.S.C. 1865(b) (2006). ........................................................................................................... 9
48 U.S.C. 864 (1994). .................................................................................................................. 7
68 P.R. Laws 1.02, PR-Legis 3 RS 68 (1990). ......................................................................... 2
Constitutional Provisions
P.R. Const. art. II, 5. ....................................................................................................................... 6
Treaties
Treaty of Peace, U.S.-Spain, Dec. 10, 1898. .................................................................................. 1
Journals
Alicia Pousada. The Mandatory Use of English in the Federal Court of Puerto Rico, 1 Centro J.
136 (2008). .................................................................................................................................. 7
Amilcar Antonio Barreto. Speaking English in Puerto Rico: The Impact of Affluence, Education,
and Return Migration, 7 Centro J. 5 (2000). ........................................................................... 5, 6
Andrea Freeman. Linguistic Colonialism: Law, Independence, and Language Rights in Puerto
Rico, 20 Temp. Pol. & Civ. Rts. L. Rev. 179 (2010). ........................................................ passim
C. William Schweers & Jorge A. Velez. To Be or Not To Be Bilingual in Puerto Rico: That Is
the Issue, 2 TESOL J. 23 (1992). .............................................................................................. 14

Page 23
Erna Kerkhof. The Myth of the Dumb Puerto Rican: Circular Migration and Language Struggle
in Puerto Rico, 75 New W. Indian Guide 257 (2001). ................................................................ 7
Jasmine B. Gonzales Rose. The Exclusion of Non-English-Speaking Jurors: Remedying a
Century of Denial of the Sixth Amendment in the Federal Courts of Puerto Rico, 46 Harv.
C.R.C.L. L. Rev. 497 (2011). ........................................................................................ 10, 12, 16
Jose Julian Alvarez-Gonzales. Law, Language and Statehood: The Role of English in the Great
State of Puerto Rico,17 Law & Ineq. 359 (1999).............................................................. 2, 6, 11
Laura E. Gomez. Race, Colonialism, and Criminal Law: Mexicans and the American Criminal
Justice System in Territorial New Mexico, 34 Law & Socy Rev. 1129 (2000). ..................... 17
Pedro A. Malavet. Puerto Rico: Cultural Nation, American Colony, 6 Mich. J. Race & L. 1
(2000). ....................................................................................................................... 5, 15, 19, 20
Books
Addis Adeno. On Human Diversity And The Limits Of Toleration, in Ethnicity And Group
Rights (Ian Shapiro & Will Kymicka eds., 1992). ...................................................................... 5
Alexander Odishelidze & Arther Laffer. Pay to the Order of Puerto Rico (2004). ........................ 1
Barry E. Carter & Phillip R. Trimble. U.N. Charter art. 73, in International Law: Selected
Documents (1991). .................................................................................................................... 18
Ian Haney Lopez. Jim Crow, Mexican Americans, and the Anti-Subordination Approach, in
Race Law Stories (Rachel Moran & Devon Wayne Carbado eds., 2008). ......................... 10, 11
Scholarly Works
Arredondo, Gabriela F. Class Lecture. Structural Inequalities around Race and Class. Bridging
Latin American and Latin@ Studies. University of California, Santa Cruz. 20 Oct. 2010. ....... 4

Page 24
Gutierrez, Elias R. Planning Paper. Discrimination in Federal Court. Graduate School of
Planning. University of Puerto Rico. 4 Sep. 2002. ..................................................................... 9
Kroeker, Allison. Civil Procedure Paper. Starkist Contextualization. 5 May 2013. ................... 8
Kroeker, Allison. Sociology Paper. Internal Colonialism as a source of Latino Oppression. 5
Nov. 2010. ................................................................................................................................... 4
Other Works Cited
G.A. Res. 748, U.N. GAOR, 8th Sess., Supp. No. 17, U.N. Doc. A/2630. 1953. ........................ 18
Juris Doctor Admission Requirements. Pontifical Catholic University of Puerto Rico.
2012-2014.................................................................................................................................... 6
Purposes of the United Nations. Article I. Charter of the United Nations. 1945.......................... 18
Selected Social Characteristics in the United States. U.S. Census Bureau. 2006-2008. ................ 9
Territories of the United States. West's Encyclopedia of American Law, edition 2. 2008. ........... 4