Linguistic Colonialism in Puerto Rico

8/13/2019 Linguistic Colonialism in Puerto Rico

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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.


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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


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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.1In 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 second-

class constitutional protection of its citizens.2Not 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.3By 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.4Accordingly, the Court determined that

1Treaty of Peace, U.S.-Spain, Dec. 10, 1898, art. 2, 30 Stat. 1754, 1755.

2Downes v. Bidwell, 182 U.S. 244, 289 (1901).

3Andrea Freeman. Linguistic Colonialism: Law, Independence, and Language Rights in Puerto Rico, 20 Temp. Pol.

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

4Alexander Odishelidze & Arther Laffer. Pay to the Order of Puerto Rico 61 (2004).


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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.6This loyalty

created a policy of Americanizationwhere English became an official language in the

government and schools of Puerto Rico.7The 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

5Balzac v. Porto Rico, 258 U.S. 298, 312-13 (1922).

6Jose Julian Alvarez-Gonzales. Law, Language and Statehood: The Role of English in the Great State of Puerto

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

7Id. at 365.

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


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government in Puerto Rico.9It 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.10In 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.11Despite 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

91 P.R. Laws 51 (1902).

101 P.R. Laws 56 (1991).

111 P.R. Laws 59 (1993).


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should be optional, not mandatory, in Puerto Rican legal and political institutions. 12Furthermore,

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.13This 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

12See, e.g., Andrea Freeman. Linguistic Colonialism: Law, Independence, and Language Rights in Puerto Rico, 20

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

13Arredondo, Gabriela F. Class Lecture. Structural Inequalities around Race and Class. Bridging Latin American

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

14Kroeker, Allison. Sociology Paper. Internal Colonialism as a source of Latino Oppression. 5 Nov. 2010.

15Territories of the United States. West's Encyclopedia of American Law, edition 2. 2008.


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From its inception, the Court has legitimized this type of inferior treatment due to the lack of an

Anglo-Saxonpresence on the island.16As 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.17For 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.18However, 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.19In 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

16Balzac v. Porto Rico, 258 U.S. 298, 310-11 (1922).

17Addis Adeno. On Human Diversity And The Limits Of Toleration, in Ethnicity And Group Rights 127 (Ian

Shapiro & Will Kymicka eds., 1992).

18Pedro A. Malavet. Puerto Rico: Cultural Nation, American Colony, 6 Mich. J. Race & L. 1, 71 (2000).

19Amilcar Antonio Barreto. Speaking English in Puerto Rico: The Impact of Affluence, Education, and Return

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


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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.20Similarly, high-paying professions such as medicine, business,

engineering, and accounting require English fluency.21Furthermore, several political

proceedings must be conducted in English in Puerto Rico, despite the fact informal dealings take

place in Spanish.22While 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

20See, e.g., Juris Doctor Admission Requirements. Pontifical Catholic University of Puerto Rico. 2012-2014.

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


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


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

23P.R. Const. art. II, 5.

24Amilcar Antonio Barreto. Speaking English in Puerto Rico: The Impact of Affluence, Education, and Return

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


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poorly.25As 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 Englishlanguage 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.26This 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).27Such 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

25Erna Kerkhof. The Myth of the Dumb Puerto Rican: Circular Migration and Language Struggle in Puerto Rico, 75

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

2648 U.S.C. 864 (1994).

27Alicia Pousada. The Mandatory Use of English in the Federal Court of Puerto Rico, 1 Centro J. 136, 144 (2008).


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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.29The 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 communityand 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.31Pursuant 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

28Kroeker, Allison. Civil Procedure Paper. Starkist Contextualization. 5 May 2013. Citing Rosario Ortega v. Star-

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

2928 U.S.C. 1861 (2006).

3028 U.S.C. 1861 (2006).

31Taylor v. Louisiana, 419 U.S. 522 (1975); Duncan v. Louisiana, 391 U.S. 145 (1968).


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degree of proficiency sufficient to satisfactorily complete the Juror Qualification Form and to

render satisfactory jury service in [the] courtare statutorily excluded from the jury pool despite

making up the majority of their districtspopulation.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.33In contrast, eighty percent of Puerto Ricans identify themselves on the U.S. Census as

unable to communicate effectively in English.34Census 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.35Accordingly, 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 filterin application.36In Puerto Rico, this is compounded by the fact higher

3228 U.S.C. 1865(b) (2006).

33Selected Social Characteristics in the United States: California: 2006-2008, U.S. Census Bureau.

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

34Selected Social Characteristics in the United States: Puerto Rico: 2006-2008, U.S. Census Bureau.

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

35Gutierrez, 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/elias-

gutierrez/FederalJuryPR%5B1%5D.pdf.

36Gutierrez, Elias R. Planning Paper. Discrimination in Federal Court. Graduate School of Planni ng. University of

Puerto Rico. 4 Sep. 2002. http://graduados.uprrp.edu/planificacion/facultad/elias-

gutierrez/FederalJuryPR%5B1%5D.pdf.


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education and socioeconomic status correlate closely with Europeans of Spanish descent who are

lighter skinned.37As 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.39The 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.40Unfortunately, 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.41In other words, under contemporary Fourteenth Amendment jurisprudence, the

37Jasmine 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).

38Andrea Freeman. Linguistic Colonialism: Law, Independence, and Language Rights in Puerto Rico, 20 Temp.

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

39Hernandez v. Texas, 347 U.S. 475, 482 (1954).

40Ian Haney Lopez. Jim Crow, Mexican Americans, and the Anti-Subordination Approach, in Race Law Stories

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

41Lassiter v. Northampton County Bd. Of Election, 360 U.S. 45 (1959).


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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.43After a defendant establishes a prima facie case, the government

may show no constitutional violation occurred by demonstrating the jury qualification

manifestly and primarilyadvances 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.45The defense of Spanish and defiance of

42Ian Haney Lopez. Jim Crow, Mexican Americans, and the Anti-Subordination Approach, in Race Law Stories

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

43Duren v. Missouri, 439 U.S. 357, 364 (1979).

44Id., at 367-68.


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


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English is therefore a predominant form of cultural maintenance on the island.46Accordingly, 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 groupas 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.47In



47United States v. Torres-Hernandez, 447 F.3d 699, 702 (9th Cir. 2006).


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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.48Thus

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 languageto ensure efficiency and

consistency.49Despite 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.50Furthermore, 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

48Harris v. Rosario, 446 U.S. 651, 651-52 (1980).

49See, e.g., United States v. Benmuhar, 658 F.2d 14, 19-20 (1st Cir. 1981), cert. denied.

50U.S. v. Rivera-Rosario et. al., 300 F.3d 1, 20 (2002).

51Id..


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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.52While 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.54As 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.

52C. 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).


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

54Id. at 189.

55Estades 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).


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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.56For 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 Ricosfederal 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

56Moreno Rios v. Untied States, 256 F.2d 68, 71-73 (1st Cir. 1958).

57United States v. Acosta-Martinez, 252 F.3d 13 (1st Cir. 2001).



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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 Ricansinvestment in the system and

reduce hostility.59Reserving 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.60By 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.61Furthermore, 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


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



61Id. at 499.

62Id. at 549.


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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.63In 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.65This 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.66As 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

63Laura 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).

64Id.

65Pueblo v. Tribunal Superior, 92 P.R.R. 580 (1965).

66Diffenderfer v. Gomez-Colon, 587 F. Supp. 2d 338, 347 (D.P.R. 2008).

67Jackson 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.68Yet 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 territoryunder Article 73 of the United Nations Charter.69Based on the

theory of mutuality, the United Nations agreed and accepted the United Statesposition that it

created a bilateral relationship with Puerto Rico.70The 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.

68Purposes of the United Nations. Article I. Charter of the United Nations. 1945.

69Barry E. Carter & Phillip R. Trimble. U.N. Charter art. 73, in International Law: Selected Documents 17-18

(1991).

70G.A. Res. 748, U.N. GAOR, 8th Sess., Supp. No. 17, at 25-26, U.N. Doc. A/2630. 1953.


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Notwithstanding the United States actof obfuscation before the United Nations, the

Supreme Court continues to define Puerto Rico as an unincorporated territory subject to

Congress plenary power.71Consequently, 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.73Even 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 otherswith citizenship inferior to

that of Americancitizens 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

71Califano v. Torres, 435 U.S. 1 (1978); Harris v. Rosario, 446 U.S. 651 (1980).

72Torres v. Puerto Rico, 442 U.S. 465 (1979).

73Pedro A. Malavet. Puerto Rico: Cultural Nation, American Colony, 6 Mich. J. Race & L. 1, 44-45 (2000).


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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.74Unfortunately, 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.75That 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.


75Id. at 106.


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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


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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


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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


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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

Linguistic Colonialism in Puerto Rico

Documents

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