HARRY HUGHES, Governor

3985

impact; it requires a showing "that the decision-maker selected
or reaffirmed a particular course of action at least in part
'because of' not merely 'in spite of' its adverse effects upon an
identifiable group." Soberal-Perez, 717 F.2d at 42. In the
absence of such a showing, the strict scrutiny test is not
triggered, and the statute will be upheld if it bears a rational
relationship to a legitimate state purpose. Washington v. Davis,
426 U.S. 229, 242 (1976). 2/

As we have no evidence of a legislative intent to
discriminate against the foreign-born, we apply the rational
basis test. The apparent purpose of House Bill 573 is to ensure
that health care professionals are able to communicate with the
public they serve and with other professionals involved with
their patients' care. That there is a legitimate state interest
in protecting the health and safety of the public, and that that
interest is served by requiring that health care professionals be
able to communicate effectively was recognized in Southeastern
Community College v. Davis, 442 U.S. 397 (1979), a case
concerning the refusal of a nursing school to admit a
hearing-impaired student. 3/ A requirement that an applicant for
a health occupations license demonstrate the ability to
effectively communicate with patients and with other health care
workers appears rationally related to that goal. 4/

Another issue raised by the bill is that the requirement of
oral competency in the English language may exclude people with
disabilities that prevent them from communicating orally in any
language, even if they can communicate effectively with English
speakers. While disability has not been held to be a suspect
class, Cal. Ass'n of Physically Handicapped v. FCC, 721 F.2d 677
(9th Cir. 1983) cert. den. 105 S.Ct. 121 (1984); National Ass'n
of Property Owners v. U.S., 499 F.Supp. 1223 (D. Minn. 1980)
aff'd sub. nom, State of Minnesota by Alexander v. Block, 660
F.2d 1240 (8th Cir. 1981; Doe v. Colautti, 454 F.Supp. 621 (D.
Pa. 1978) aff'd 592 F.2d 704 (3rd Cir. 1979), the requirement
that a person who has developed a workable method of non-oral
communication with English speakers be able to demonstrate oral
competency in English in order to be allowed to practice their
profession may not even meet the lax standard set by the rational
basis test. The existence of a rational basis is further called
into question by the fact that two applicants with identical
communication skills may be treated differently if one graduated
from an English-speaking professional school and the other did
not. However, since no court has decided this issue, and since
courts tend to defer to the states with respect to licensing
requirements, we cannot say that the law is clearly
unconstitutional on this ground.

An even more troublesome feature of the bill is that the
lack of standards for the licensing boards to apply in its
administration, leaves them broad discretion to exclude
applicants in a discriminatory fashion. The term "oral
competency" is itself so amorphous as to give little or no