3986

VETOES

guidance to the boards. An interpretation that is too strict
could exclude applicants who can effectively communicate with
patients but who stutter, or have foreign accents or less than
perfect diction. Such an interpretation is not barred by the
language of the bill, yet it would discriminate against the
disabled and the foreign-born and would have no rational
relationship to the purpose of the bill. In addition, the
concept of "oral competency" is not one that would lend itself to
rule-making, and thus would be applied on a case-by-case basis,
increasing the risk of discriminatory administration.

The boards would also apparently have the discretion to
determine what constitutes a "recognized, English-speaking,
professional school", raising the possibility that a board could
decide to exclude foreign schools that even though they teach
some or all of their classes in English. 5/ Finally, the law is
not clear whether graduation from an English-speaking school is
conclusive proof of competency or whether it is merely a method
of proof which a board, in its discretion, may accept. If the
latter interpretation is correct, the boards would have broad
discretion to single out certain groups, for example those with
hispanic surnames, and require further proof of oral competency.

It has long been recognized that although a law itself may

"be fair on its face, and impartial in appliance,
yet if it is applied and administered by public
authorities with an evil eye and an unequal hand,
so as practically to make unjust and illegal
discriminations between persons in similar
circumstances, material to their rights, the
denial of equal justice is still within the
prohibition of the constitution." Yick Wo
v. Hopkins, 118 U.S. 356, 373-374 (1886).

In our view, the dangers inherent in the broad discretion
given to the boards raise grave doubts about the
constitutionality of this bill. However, in the absence of a
record, and with no case law on point as guidance, we cannot say
that the bill is clearly unconstitutional.

Very truly yours,
Stephen H. Sachs
Attorney General

1/ Each of these cases, however, involves a decision by a
governmental entity to conduct its business in English.
While, as a practical matter that decision requires those
who deal with the government to have some knowledge of
English, or at least to know someone who does, it does not
present the dangers of discriminatory administration raised
by a requirement of "oral competency" in English. The
potential problems raised by administration of House Bill
573 are discussed later.