Civil
Rights
Limited English Proficiency (LEP)
Department of Justice Guidance
Billing Code: 4410-13
DEPARTMENT OF JUSTICE
Guidance to Federal Financial Assistance Recipients Regarding
Title VI Prohibition Against National Origin Discrimination Affecting
Limited English Proficient Persons
AGENCY: Department of Justice.
ACTION: Policy guidance document.
SUMMARY: The Department of Justice (DOJ) adopts final Guidance
to Federal Financial Assistance Recipients Regarding Title VI
Prohibition Against National Origin Discrimination Affecting Limited
English Proficient Persons (DOJ Recipient LEP Guidance). The DOJ
Recipient LEP Guidance is issued pursuant to Executive Order 13166,
and supplants existing guidance on the same subject originally
published at 66 FR 3834 (January 16, 2001).
DATES: Effective June 12, 2002.
FOR FURTHER INFORMATION CONTACT: Merrily A. Friedlander, Chief,
Coordination and Review Section, Civil Rights Division, 950 Pennsylvania
Avenue, NW-NYA, Washington, DC 20530. Telephone 202-307-2222;
TDD: 202-307-2678.
SUPPLEMENTARY INFORMATION: Under DOJ regulations implementing
Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et
seq. (Title VI), recipients of federal financial assistance have
a responsibility to ensure meaningful access to their programs
and activities by persons with limited English proficiency (LEP).
See 28 CFR 42.104(b)(2). Executive Order 13166, reprinted at 65
FR 50121 (August 16, 2000), directs each federal agency that extends
assistance subject to the requirements of Title VI to publish
guidance for its respective recipients clarifying that obligation.
Executive Order 13166 further directs that all such guidance documents
be consistent with the compliance standards and framework detailed
in DOJ Policy Guidance entitled "Enforcement of Title VI
of the Civil Rights Act of 1964--National Origin Discrimination
Against Persons with Limited English Proficiency." See 65
FR 50123 (August 16, 2000).
Initial guidance on DOJ recipients' obligations to take reasonable
steps to ensure access by LEP persons was published on January
16, 2001. See 66 FR 3834. That guidance document was republished
for additional public comment on January 18, 2002. See 67 FR 2671.
Based on public comments filed in response to the January 18,
2002 republication, DOJ published revised draft guidance for public
comment on April 18, 2002. See 67 FR 19237.
DOJ received 24 comments in response to its April 18, 2002 publication
of revised draft guidance on DOJ recipients' obligations to take
reasonable steps to ensure access to programs and activities by
LEP persons. The comments reflected the views of individuals,
organizations serving LEP populations, organizations favoring
the use of the English language, language assistance service providers,
and state agencies. While many comments identified areas for improvement
and/or revision, the overall response to the draft DOJ Recipient
LEP Guidance was favorable. Taken together, a majority of the
comments described the draft guidance as incorporating "reasonable
standards" or "helpful provisions" providing "useful
suggestions instead of mandatory requirements" reflecting
"common sense" and a "more measured tone"
over prior LEP guidance documents.
Two of the comments urged withdrawal of the draft guidance as
unsupported by law. In response, the Department notes here as
it did in the draft Recipient LEP Guidance published on April
18, 2002 that the Department's commitment to implement Title VI
through regulations reaching language barriers is long-standing
and is unaffected by recent judicial action precludingindividuals
from bringing judicial actions seeking to enforce those agency
regulations. See 67 FR at 19238-19239. This particular policy
guidance clarifies existing statutory and regulatory requirements
for LEP persons by providing a description of the factors recipients
should consider in fulfilling their responsibilities to LEP persons.
Of the remaining 22 comments, three supported adoption of the
draft guidance as published, and 19, while supportive of the guidance
and the Department's leadership in this area, suggested modifications
which would, in their view, either (1) clarify the application
of the flexible compliance standard incorporated by the draft
guidance to particular areas or situations, or (2) provide a more
definitive statement of the minimal compliance standards in this
area. Several areas were raised in more than one comment. In the
order most often raised, those common areas of comment were (1)
recipient language assistance plans, (2) use of informal interpreters,
(3) written translation safe harbors, and (4) cost considerations.
The comments in each of these area are summarized and discussed
below.
Recipient Language Assistance Plans. A large number of comments
recommended that written language assistance plans (LEP Plans)
be required of all recipients. The Department is cognizant of
the value of written LEP plans in documenting a recipient's compliance
with its obligation to ensure meaningful access by LEP persons,
and in providing a framework for the provision of reasonable and
necessary language assistance to LEP persons. The Department is
also aware of the related training, operational, and planning
benefits most recipients would derive from the generation and
maintenance of an updated written language assistance plan for
use by its employees. In the large majority of cases, the benefits
flowing from a written language assistance plan has caused or
will likely cause recipients to develop, with varying degrees
of detail, such written plans. Even small recipients with limited
contact with LEP persons would likely benefit from having a plan
in place to assure that, when the need arises, staff have a written
plan to turn to - even if it is only how to access a telephonic
or community-based interpretation service - when determining what
language services to provide and how to provide them.
However, the fact that the vast majority of the Department's
recipients already have or will likely develop a written LEP plan
to reap its many benefits does not necessarily mean that every
recipient, however small its staff, limited its resources, or
focused its services, will realize the same benefits and thus
must follow an identical path. Without clear evidence suggesting
that the absence of written plans for every single recipient is
impeding accomplishment of the goal of meaningful access, the
Department elects at this juncture to strongly recommend but not
require written language assistance plans. The Department stresses
in this regard that neither the absence of a requirement of written
LEP plans in all cases nor the election by an individual recipient
against drafting a plan obviates the underlying obligation on
the part of each recipient to provide, consistent with Title VI,
the Title VI regulations, and the DOJ Recipient LEP Guidance,
reasonable, timely, and appropriate language assistance to the
LEP populations each serves.
While the Department continues to believe that the Recipient
LEP Guidance strikes the correct balance between recommendations
and requirements in this area, the Department has revised the
introductory paragraph of Section VII of the Recipient LEP Guidance
to acknowledge a recipient's discretion in drafting a written
LEP plan yet to emphasize the many benefits that weigh in favor
of such a written plan in the vast majority of cases.
Informal Interpreters. As in the case of written LEP plans, a
large number of the comments urged the incorporation of more definitive
language strongly discouraging or severely limiting the use of
informal interpreters such as family members, guardians, caretakers,
friends, or fellow inmates or detainees. Some recommended that
the draft guidance be revised to prohibit the use of informal
interpreters except in limited or emergency situations. A common
sub-theme running through many of these comments was a concern
regarding the technical and ethical competency of such interpreters
to ensure meaningful and appropriate access at the level and of
the type contemplated under the DOJ Recipient LEP Guidance. (1)
As in the case of written LEP plans, the Department believes
that the DOJ Recipient LEP Guidance provides sufficient guidance
to allow recipients to strike the proper balance between the many
situations where the use of informal interpreters is inappropriate,
and the few situations where the transitory and/or limited use
of informal interpreters is necessary and appropriate in light
of the nature of a service or benefit being provided and the factual
context in which that service or benefit is being provided. Nonetheless,
the Department concludes that the potential for the inappropriate
use of informal interpreters or, conversely, its unnecessary avoidance,
can be minimized through additional clarifications in the DOJ
Recipient LEP Guidance. Towards that end, the subsection titled
"Use of Family Members, Friends, Other Inmates, or Other
Detainees as Interpreters" of Section VI.A. of the DOJ Recipient
LEP Guidance has been revised to include guardians and caretakers
among the potential class of informal interpreters, to note that
beneficiaries who elect to provide their own informal interpreter
do so at their own expense, to clarify that reliance on informal
interpreters should not be part of any recipient LEP plan, and
to expand the discussion of the special considerations that should
guide a recipient's limited reliance on informal interpreters.
Safe Harbors. Several comments focused on safe harbor and vital
documents provisions of the written translations section of the
DOJ Recipient LEP Guidance.(2) A few comments observed that the
safe harbor standard set out in the Recipient LEP Guidance was
too high, potentially permitting recipients to avoid translating
several critical types of vital documents (e.g., notices of denials
of benefits or rights, leases, rules of conduct, etc.). In contrast,
another comment pointed to this same standard as support for the
position that the safe harbor provision was too low, potentially
requiring a large recipient to incur extraordinary fiscal burdens
to translate all documents associated with the program or activity.
The decision as to what program-related documents should be translated
into languages other than English is a difficult one. While documents
generated by a recipient may be helpful in understanding a program
or activity, not all are critical or vital to ensuring meaningful
access by beneficiaries generally and LEP persons specifically.
Some documents may create or define legally enforceable rights
or responsibilities on the part of individual beneficiaries (e.g.,
leases, rules of conduct, notices of benefit denials, etc.). Others,
such as application or certification forms, solicit important
information required to establish or maintain eligibility to participate
in a federally-assisted program or activity. And for some programs
or activities, written documents may be the core benefit or service
provided by the program or activity. Moreover, some programs or
activities may be specifically focused on providing benefits or
services to significant LEP populations. Finally, a recipient
may elect to solicit vital information orally as a substitute
for written documents. For example, many state unemployment insurance
programs are transitioning away from paper-based application and
certification forms in favor of telephone-based systems. Also,
certain languages (e.g., Hmong) are oral rather than written,
and thus a high percentage of such LEP speakers will likely be
unable to read translated documents or written instructionssince
it is only recently that such languages have been converted to
a written form. Each of these factors should play a role in deciding
what documents should be translated, what target languages other
than English are appropriate, or even whether more effective alternatives
to a continued reliance on written documents to obtain or process
vital information exist.
As has been emphasized elsewhere, the Recipient LEP Guidance
is not intended to provide a definitive answer governing the translation
of written documents for all recipients applicable in all cases.
Rather, in drafting the safe harbor and vital documents provisions
of the Recipient LEP Guidance, the Department sought to provide
one, but not necessarily the only, point of reference for when
a recipient should consider translations of documents (or the
implementation of alternatives to such documents) in light of
its particular program or activity, the document or information
in question, and the potential LEP populations served. In furtherance
of this purpose, the safe harbor and vital document provisions
of the Recipient LEP Guidance have been revised to clarify the
elements of the flexible translation standard, and to acknowledge
that distinctions can and should be made between frequently-encountered
and less commonly-encountered languages when identifying languages
for translation.
Costs Considerations. A number of comments focused on cost considerations
as an element of the Department's flexible four-factor analysis
for identifying and addressing the language assistance needs of
LEP persons. While none urged that costs be excluded, some comments
expressed concern that a recipient could use cost as a basis for
avoiding otherwise reasonable and necessary language assistance
to LEP persons. In contrast, a few comments suggested that the
flexible fact-dependent compliance standard incorporated by the
DOJ Recipient LEP Guidance, when combined with the desire of most
recipients to avoid the risk of noncompliance, could lead some
large, state-wide recipients to incur unnecessary or inappropriate
fiscal burdens in the face of already strained program budgets.
The Department is mindful that cost considerations could be inappropriately
used to avoid providing otherwise reasonable and necessary language
assistance. Similarly, cost considerations could be inappropriately
ignored or minimized to justify the provision of a particular
level or type of language service where less costly equally effective
alternatives exist. The Department also does not dismiss the possibility
that the identified need for language services might be quite
costly for certain types of recipients in certain communities,
particularly if they have not been keeping up with the changing
needs of the populations they serve over time.
The potential for possible abuse of cost considerations by some
does not, in the Department's view, justify its elimination as
a factor in all cases when determining the appropriate "mix"
of reasonable language assistance services determined necessary
under the DOJ Recipient LEP Guidance to ensure meaningful access
by LEP persons to federally assisted programs and activities.
The Department continues to believe that costs are a legitimate
consideration in identifying the reasonableness of particular
language assistance measures, and that the DOJ Recipient LEP Guidance
identifies the appropriate framework through which costs are to
be considered.
In addition to the four larger concerns noted above, the Department
has substituted, where appropriate, technical or stylistic changes
that more clearly articulate, in the Department's view, the underlying
principle, guideline, or recommendation detailed in the Guidance.
In addition, the Guidance has been modified to expand the definition
of "courts" to include administrative adjudications
conducted by a recipient; to acknowledge that English language
instruction is an important adjunct to (but not substitute for)
the obligation to ensure access to federally assisted programs
and activities by all eligible persons; and to clarify the Guidance's
application to activities undertaken by a recipient either voluntarily
or under contract in support of a federal agency's functions.
After appropriate revision based on a careful consideration of
the comments, with particular focus on the common concerns summarized
above, the Department adopts final "Guidance to Federal Financial
Assistance Recipients Regarding Title VI Prohibition Against National
Origin Discrimination Affecting Limited English Proficient Persons."
The text of this final guidance document appears below.
It has been determined that this Guidance, which supplants existing
Guidance on the same subject previously published at 66 FR 3834
(January 16, 2001), does not constitute a regulation subject to
the rulemaking requirements of the Administrative Procedure Act,
5 U.S.C. 553.
Dated: June12, 2002.
R. Alexander Acosta, Principal Deputy Assistant Attorney General,
Civil Rights Division
1. A few comments urged the Department to incorporate language
detailing particular interpretation standards or approaches. The
Department declines to set, as part of the DOJ Recipient LEP Guidance,
professional or technical standards for interpretation applicable
to all recipients in every community and in all situations. General
guidelines for translator and interpreter competency are already
set forth in the guidance. Technical and professional standards
and necessary vocabulary and skills for court interpreters and
interpreters in custodial interrogations, for instance, would
be different from those for emergency service interpreters, or,
in turn, those for interpreters in educational programs for correctional
facilities. Thus, recipients, beneficiaries, and associations
of professional interpreters and translators should collaborate
in identifying the applicable professional and technical interpretation
standards that are appropriate for particular situations.
2. One comment pointed out that current demographic information
based on the 2000 Census or other data was not readily available
to assist recipients in identifying the number or proportion of
LEP persons and the significant language groups among their otherwise
eligible beneficiaries. The Department is aware of this potential
difficulty and is, among other things, working with the Census
Bureau, among other entities, to increase the availability of
such demographic data.
I. Introduction
Most individuals living in the United States read, write, speak
and understand English. There are many individuals, however, for
whom English is not their primary language. For instance, based
on the 2000 census, over 26 million individuals speak Spanish
and almost 7 million individuals speak an Asian or Pacific Island
language at home. If these individuals have a limited ability
to read, write, speak, or understand English, they are limited
English proficient, or "LEP." While detailed data from
the 2000 census has not yet been released, 26% of all Spanish-speakers,
29.9% of all Chinese-speakers, and 28.2% of all Vietnamese-speakers
reported that they spoke English "not well" or "not
at all" in response to the 1990 census.
Language for LEP individuals can be a barrier to accessing important
benefits or services, understanding and exercising important rights,
complying with applicable responsibilities, or understanding other
information provided by federally funded programs and activities.
The Federal Government funds an array of services that can be
made accessible to otherwise eligible LEP persons. The Federal
Government is committed to improving the accessibility of these
programs and activities to eligible LEP persons, a goal that reinforces
its equally important commitment to promoting programs and activities
designed to help individuals learn English. Recipients should
not overlook the long-term positive impacts of incorporating or
offering English as a Second Language (ESL) programs in parallel
with language assistance services. ESL courses can serve as an
important adjunct to a proper LEP plan. However, the fact that
ESL classes are made available does not obviate the statutory
and regulatory requirement to provide meaningful access for those
who are not yet English proficient. Recipients of federal financial
assistance have an obligation to reduce language barriers that
can preclude meaningful access by LEP persons to important government
services. (1)
In certain circumstances, failure to ensure that LEP persons
can effectively participate in or benefit from federally assisted
programs and activities may violate the prohibition under Title
VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d and Title
VI regulations against national origin discrimination. The purpose
of this policy guidance is to assist recipients in fulfilling
their responsibilities to provide meaningful access to LEP persons
under existing law. This policy guidance clarifies existing legal
requirements for LEP persons by providing a description of the
factors recipients should consider in fulfilling their responsibilities
to LEP persons. (2) These are the same criteria DOJ will use in
evaluating whether recipients are in compliance with Title VI
and Title VI regulations.
The Department of Justice's role under Executive Order 13166
is unique. The Order charges DOJ with responsibility for providing
LEP Guidance to other Federal agencies and for ensuring consistency
among each agency-specific guidance. Consistency among Departments
of the federal government is particularly important. Inconsistency
or contradictory guidance could confuse recipients of federal
funds and needlessly increase costs without rendering the meaningful
access for LEP persons that this Guidance is designed to address.
As with most government initiatives, this requires balancing several
principles. While this Guidance discusses that balance in some
detail, it is important to note the basic principles behind that
balance. First, we must ensure that federally-assisted programs
aimed at the American public do not leave some behind simply because
they face challenges communicating in English. This is of particular
importance because, in many cases, LEP individuals form a substantial
portion of those encountered in federally-assisted programs. Second,
we must achieve this goal while finding constructive methods to
reduce the costs of LEP requirements on small businesses, small
local governments, or small non-profits that receive federal financial
assistance.
There are many productive steps that the federal government,
either collectively or as individual grant agencies, can take
to help recipients reduce the costs of language services without
sacrificing meaningful access for LEP persons. Without these steps,
certain smaller grantees may well choose not to participate in
federally assisted programs, threatening the critical functions
that the programs strive to provide. To that end, the Department
plans to continue to provide assistance and guidance in this important
area. In addition, DOJ plans to work with representatives of law
enforcement, corrections, courts, administrative agencies, and
LEP persons to identify and share model plans, examples of best
practices, and cost-saving approaches. Moreover, DOJ intends to
explore how language assistance measures, resources and cost-containment
approaches developed with respect to its own federally conducted
programs and activities can be effectively shared or otherwise
made available to recipients, particularly small businesses, small
local governments, and small non-profits. An interagency working
group on LEP has developed a website, www.lep.gov , to assist
in disseminating this information to recipients, federal agencies,
and the communities being served.
Many commentators have noted that some have interpreted the case
of Alexander v. Sandoval, 532 U.S. 275 (2001), as impliedly striking
down the regulations promulgated under Title VI that form the
basis for the part of Executive Order 13166 that applies to federally
assisted programs and activities. We have taken the position that
this is not the case, and will continue to do so. Accordingly,
we will strive to ensure that federally assisted programs and
activities work in a way that is effective for all eligible beneficiaries,
including those with limited English proficiency.
II. Legal Authority
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d, provides that no person shall "on the ground of race,
color, or national origin, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance."
Section 602 authorizes and directs federal agencies that are empowered
to extend federal financial assistance to any program or activity
"to effectuate the provisions of [section 601] * * * by issuing
rules, regulations, or orders of general applicability."
42 U.S.C. 2000d-1.
Department of Justice regulations promulgated pursuant to section
602 forbid recipients from "utiliz[ing] criteria or methods
of administration which have the effect of subjecting individuals
to discrimination because of their race, color, or national origin,
or have the effect of defeating or substantially impairing accomplishment
of the objectives of the program as respects individuals of a
particular race, color, or national origin." 28 CFR 42.104(b)(2).
The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974), interpreted
regulations promulgated by the former Department of Health, Education,
and Welfare, including a regulation similar to that of DOJ, 45
CFR 80.3(b)(2), to hold that Title VI prohibits conduct that has
a disproportionate effect on LEP persons because such conduct
constitutes national-origin discrimination. In Lau, a San Francisco
school district that had a significant number of non-English speaking
students of Chinese origin was required to take reasonable steps
to provide them with a meaningful opportunity to participate in
federally funded educational programs.
On August 11, 2000, Executive Order 13166 was issued. "Improving
Access to Services for Persons with Limited English Proficiency,"
65 FR 50121 (August 16, 2000). Under that order, every federal
agency that provides financial assistance to non-federal entities
must publish guidance on how their recipients can provide meaningful
access to LEP persons and thus comply with Title VI regulations
forbidding funding recipients from "restrict[ing] an individual
in any way in the enjoyment of any advantage or privilege enjoyed
by others receiving any service, financial aid, or other benefit
under the program" or from "utiliz[ing] criteria or
methods of administration which have the effect of subjecting
individuals to discrimination because of their race, color, or
national origin, or have the effect of defeating or substantially
impairing accomplishment of the objectives of the program as respects
individuals of a particular race, color, or national origin."
On that same day, DOJ issued a general guidance document addressed
to "Executive Agency Civil Rights Officers" setting
forth general principles for agencies to apply in developing guidance
documents for recipients pursuant to the Executive Order. "Enforcement
of Title VI of the Civil Rights Act of 1964 National Origin Discrimination
Against Persons With Limited English Proficiency," 65 FR
50123 (August 16, 2000) ("DOJ LEP Guidance").
Subsequently, federal agencies raised questions regarding the
requirements of the Executive Order, especially in light of the
Supreme Court's decision inAlexander v. Sandoval, 532 U.S. 275
(2001). On October 26, 2001, Ralph F. Boyd, Jr., Assistant Attorney
General for the Civil Rights Division, issued a memorandum for
"Heads of Departments and Agencies, General Counsels and
Civil Rights Directors." This memorandum clarified and reaffirmed
the DOJ LEP Guidance in light of Sandoval. (3) The Assistant Attorney
General stated that because Sandoval did not invalidate any Title
VI regulations that proscribe conduct that has a disparate impact
on covered groups--the types of regulations that form the legal
basis for the part of Executive Order 13166 that applies to federally
assisted programs and activities--the Executive Order remains
in force.
Pursuant to Executive Order 13166, DOJ developed its own guidance
document for recipients and initially issued it on January 16,
2001. "Guidance to Federal Financial Assistance Recipients
Regarding Title VI Prohibition Against National Origin Discrimination
Affecting Limited English Proficient Persons," 66 FR 3834
(January 16, 2001) ("LEP Guidance for DOJ Recipients").
Because DOJ did not receive significant public comment on its
January 16, 2001 publication, the Department republished on January
18, 2002 its existing guidance document for additional public
comment. "Guidance to Federal Financial Assistance Recipients
Regarding Title VI Prohibition Against National Origin Discrimination
Affecting Limited English Proficient Persons," 67 FR 2671
(January 18, 2002). The Department has since received substantial
public comment.
This guidance document is thus published pursuant to Executive
Order 13166 and supplants the January 16, 2001 publication in
light of the public comment received and Assistant Attorney General
Boyd's October 26, 2001 clarifying memorandum.
III. Who Is Covered?
Department of Justice regulations, 28 CFR 42.104(b)(2), require
all recipients of federal financial assistance from DOJ to provide
meaningful access to LEP persons. (4) Federal financial assistance
includes grants, training, use of equipment, donations of surplus
property, and other assistance. Recipients of DOJ assistance include,
for example:
•Police and sheriffs' departments
•Departments of corrections, jails, and detention facilities,
including those recipients that house detainees of the Immigration
and Naturalization Service
•Courts (5)
•Certain non profit agencies with law enforcement, public
safety, and victim assistance missions;
•Other entities with public safety and emergency service
missions.
Subrecipients likewise are covered when federal funds are passed
through from one recipient to a subrecipient.
Coverage extends to a recipient's entire program or activity,
i.e., to all parts of a recipient's operations. This is true even
if only one part of the recipient receives the federal assistance.
(6)
Example: DOJ provides assistance to a state department of corrections
to improve a particular prison facility. All of the operations
of the entire state department of corrections--not just the particular
prison--are covered.
Finally, some recipients operate in jurisdictions in which English
has been declared the official language. Nonetheless, these recipients
continue to be subject to federal non-discrimination requirements,
including those applicable to the provision of federally assisted
services to persons with limited English proficiency.
IV. Who Is a Limited English Proficient Individual?
Individuals who do not speak English as their primary language
and who have a limited ability to read, write, speak, or understand
English can be limited English proficient, or "LEP,"
entitled to language assistance with respect to a particular type
of service, benefit, or encounter.
Examples of populations likely to include LEP persons who are
encountered and/or served by DOJ recipients and should be considered
when planning language services include, but are not limited to:
•Persons who are in the custody of the recipient, including
juveniles, detainees, wards, and inmates.
•Persons subject to or serviced by law enforcement activities,
including, for example, suspects, violators, witnesses, victims,
those subject to immigration-related investigations by recipient
law enforcement agencies, and community members seeking to participate
in crime prevention or awareness activities.
•Persons who encounter the court system.
•Parents and family members of the above.
V. How Does a Recipient Determine the Extent of Its Obligation
To Provide LEP Services?
Recipients are required to take reasonable steps to ensure meaningful
access to their programs and activities by LEP persons. While
designed to be a flexible and fact-dependent standard, the starting
point is an individualized assessment that balances the following
four factors: (1) The number or proportion of LEP persons eligible
to be served or likely to be encountered by the program or grantee;
(2) the frequency with which LEP individuals come in contact with
the program; (3) the nature and importance of the program, activity,
or service provided by the program to people's lives; and (4)
the resources available to the grantee/recipient and costs. As
indicated above, the intent of this guidance is to suggest a balance
that ensures meaningful access by LEP persons to critical services
while not imposing undue burdens on small business, small local
governments, or small nonprofits.
After applying the above four-factor analysis, a recipient may
conclude that different language assistance measures are sufficient
for the different types of programs or activities in which it
engages. For instance, some of a recipient's activities will be
more important than others and/or have greater impact on or contact
with LEP persons, and thus may require more in the way of language
assistance. The flexibility that recipients have in addressing
the needs of the LEP populations they serve does not diminish,
and should not be used to minimize, the obligation that those
needs be addressed. DOJ recipients should apply the following
four factors to the various kinds of contacts that they have with
the public to assess language needs and decide what reasonable
steps they should take to ensure meaningful access for LEP persons.
(1) The Number or Proportion of LEP Persons Served or Encountered
in the Eligible Service Population
One factor in determining what language services recipients should
provide is the number or proportion of LEP persons from a particular
language group served or encountered in the eligible service population.
The greater the number or proportion of these LEP persons, the
more likely language services are needed. Ordinarily, persons
"eligible to be served, or likely to be directly affected,
by" a recipient's program or activity are those who are served
or encountered in the eligible service population. This population
will be program-specific, and includes persons who are in the
geographic area that has been approved by a federal grant agency
as the recipient's service area. However, where, for instance,
a precinct serves a large LEP population, the appropriate service
area is most likely the precinct, and not the entire population
served by the department. Where no service area has previously
been approved, the relevant service area may be that which is
approved by state or local authorities or designated by the recipient
itself, provided that these designations do not themselves discriminatorily
exclude certain populations. Appendix A provides examples to assist
in determining the relevant service area. When considering the
number or proportion of LEP individuals in a service area, recipients
should consider LEP parent(s) when their English-proficient or
LEP minor children and dependents encounter the legal system.
Recipients should first examine their prior experiences with
LEP encounters and determine the breadth and scope of language
services that were needed. In conducting this analysis, it is
important to include language minority populations that are eligible
for their programs or activities but may be underserved because
of existing language barriers. Other data should be consulted
to refine or validate a recipient's prior experience, including
the latest census data for the area served, data from school systems
and from community organizations, and data from state and local
governments. (7) Community agencies, school systems, religious
organizations, legal aid entities, and others can often assist
in identifying populations for whom outreach is needed and who
would benefit from the recipients' programs and activities were
language services provided.
(2) The Frequency With Which LEP Individuals Come in Contact
With the Program
Recipients should assess, as accurately as possible, the frequency
with which they have or should have contact with an LEP individual
from different language groups seeking assistance. The more frequent
the contact with a particular language group, the more likely
that enhanced language services in that language are needed. The
steps that are reasonable for a recipient that serves an LEP person
on a one-time basis will be very different than those expected
from a recipient that serves LEP persons daily. It is also advisable
to consider the frequency of different types of language contacts.
For example, frequent contacts with Spanish-speaking people who
are LEP may require certain assistance in Spanish. Less frequent
contact with different language groups may suggest a different
and less intensified solution. If an LEP individual accesses a
program or service on a daily basis, a recipient has greater duties
than if the same individual's program or activity contact is unpredictable
or infrequent. But even recipients that serve LEP persons on an
unpredictable or infrequent basis should use this balancing analysis
to determine what to do if an LEP individual seeks services under
the program in question. This plan need not be intricate. It may
be as simple as being prepared to use one of the commercially-available
telephonic interpretation services to obtain immediate interpreter
services. In applying this standard, recipients should take care
to consider whether appropriate outreach to LEP persons could
increase the frequency of contact with LEP language groups.
(3) The Nature and Importance of the Program, Activity, or Service
Provided by the Program
The more important the activity, information, service, or program,
or the greater the possible consequences of the contact to the
LEP individuals, the more likely language services are needed.
The obligations to communicate rights to a person who is arrested
or to provide medical services to an ill or injured inmate differ,
for example, from those to provide bicycle safety courses or recreational
programming. A recipient needs to determine whether denial or
delay of access to services or information could have serious
or even life-threatening implications for the LEP individual.
Decisions by a federal, state, or local entity to make an activity
compulsory, such as particular educational programs in a correctional
facility or the communication of Miranda rights, can serve as
strong evidence of the program's importance.
(4) The Resources Available to the Recipient and Costs
A recipient's level of resources and the costs that would be
imposed on it may have an impact on the nature of the steps it
should take. Smaller recipients with more limited budgets are
not expected to provide the same level of language services as
larger recipients with larger budgets. In addition, "reasonable
steps" may cease to be reasonable where the costs imposed
substantially exceed the benefits.
Resource and cost issues, however, can often be reduced by technological
advances; the sharing of language assistance materials and services
among and between recipients, advocacy groups, and Federal grant
agencies; and reasonable business practices. Where appropriate,
training bilingual staff to act as interpreters and translators,
information sharing through industry groups, telephonic and video
conferencing interpretation services, pooling resources and standardizing
documents to reduce translation needs, using qualified translators
and interpreters to ensure that documents need not be "fixed"
later and that inaccurate interpretations do not cause delay or
other costs, centralizing interpreter and translator services
to achieve economies of scale, or the formalized use of qualified
community volunteers, for example, may help reduce costs. (8)
Recipients should carefully explore the most cost-effective means
of delivering competent and accurate language services before
limiting services due to resource concerns. Large entities and
those entities serving a significant number or proportion of LEP
persons should ensure that their resource limitations are well-substantiated
before using this factor as a reason to limit language assistance.
Such recipients may find it useful to be able to articulate, through
documentation or in some other reasonable manner, their process
for determining that language services would be limited based
on resources or costs.
This four-factor analysis necessarily implicates the "mix"
of LEP services required. Recipients have two main ways to provide
language services: Oral interpretation either in person or via
telephone interpretation service (hereinafter "interpretation")
and written translation (hereinafter "translation").
Oral interpretation can range from on-site interpreters for critical
services provided to a high volume of LEP persons to access through
commercially-available telephonic interpretation services. Written
translation, likewise, can range from translation of an entire
document to translation of a short description of the document.
In some cases, language services should be made available on an
expedited basis while in others the LEP individual may be referred
to another office of the recipient for language assistance.
The correct mix should be based on what is both necessary and
reasonable in light of the four-factor analysis. For instance,
a police department in a largely Hispanic neighborhood may need
immediate oral interpreters available and should give serious
consideration to hiring some bilingual staff. (Of course, many
police departments have already made such arrangements.) In contrast,
there may be circumstances where the importance and nature of
the activity and number or proportion and frequency of contact
with LEP persons may be low and the costs and resources needed
to provide language services may be high - such as in the case
of a voluntary general public tour of a courthouse - in which
pre-arranged language services for the particular service may
not be necessary. Regardless of the type of language service provided,
quality and accuracy of those services can be critical in order
to avoid serious consequences to the LEP person and to the recipient.
Recipients have substantial flexibility in determining the appropriate
mix.
VI. Selecting Language Assistance Services
Recipients have two main ways to provide language services: oral
and written language services. Quality and accuracy of the language
service is critical in order to avoid serious consequences to
the LEP person and to the recipient.
A. Oral Language Services (Interpretation)
Interpretation is the act of listening to something in one language
(source language) and orally translating it into another language
(target language). Where interpretation is needed and is reasonable,
recipients should consider some or all of the following options
for providing competent interpreters in a timely manner:
Competence of Interpreters. When providing oral assistance, recipients
should ensure competency of the language service provider, no
matter which of the strategies outlined below are used. Competency
requires more than self-identification as bilingual. Some bilingual
staff and community volunteers, for instance, may be able to communicate
effectively in a different language when communicating information
directly in that language, but not be competent to interpret in
and out of English. Likewise, they may not be able to do written
translations.
Competency to interpret, however, does not necessarily mean formal
certification as an interpreter, although certification is helpful.
When using interpreters, recipients should ensure that they:
Demonstrate proficiency in and ability to communicate information
accurately in both English and in the other language and identify
and employ the appropriate mode of interpreting (e.g., consecutive,
simultaneous, summarization, or sight translation);
Have knowledge in both languages of any specialized terms or
concepts peculiar to the entity's program or activity and of any
particularized vocabulary and phraseology used by the LEP person;
(9) and understand and follow confidentiality and impartiality
rules to the same extent the recipient employee for whom they
are interpreting and/or to the extent their position requires.
Understand and adhere to their role as interpreters without deviating
into a role as counselor, legal advisor, or other roles (particularly
in court, administrative hearings, or law enforcement contexts).
Some recipients, such as courts, may have additional self-imposed
requirements for interpreters. Where individual rights depend
on precise, complete, and accurate interpretation or translations,
particularly in the contexts of courtrooms and custodial or other
police interrogations, the use of certified interpreters is strongly
encouraged. (10) Where such proceedings are lengthy, the interpreter
will likely need breaks and team interpreting may be appropriate
to ensure accuracy and to prevent errors caused by mental fatigue
of interpreters.
While quality and accuracy of language services is critical,
the quality and accuracy of language services is nonetheless part
of the appropriate mix of LEP services required. The quality and
accuracy of language services in a prison hospital emergency room,
for example, must be extraordinarily high, while the quality and
accuracy of language services in a bicycle safety class need not
meet the same exacting standards.
Finally, when interpretation is needed and is reasonable, it
should be provided in a timely manner. To be meaningfully effective,
language assistance should be timely. While there is no single
definition for "timely" applicable to all types of interactions
at all times by all types of recipients, one clear guide is that
the language assistance should be provided at a time and place
that avoids the effective denial of the service, benefit, or right
at issue or the imposition of an undue burden on or delay in important
rights, benefits, or services to the LEP person. For example,
when the timeliness of services is important, such as with certain
activities of DOJ recipients providing law enforcement, health,
and safety services, and when important legal rights are at issue,
a recipient would likely not be providing meaningful access if
it had one bilingual staffer available one day a week to provide
the service. Such conduct would likely result in delays for LEP
persons that would be significantly greater than those for English
proficient persons. Conversely, where access to or exercise of
a service, benefit, or right is not effectively precluded by a
reasonable delay, language assistance can likely be delayed for
a reasonable period.
Hiring Bilingual Staff. When particular languages are encountered
often, hiring bilingual staff offers one of the best, and often
most economical, options. Recipients can, for example, fill public
contact positions, such as 911 operators, police officers, guards,
or program directors, with staff who are bilingual and competent
to communicate directly with LEP persons in their language. If
bilingual staff are also used to interpret between English speakers
and LEP persons, or to orally interpret written documents from
English into another language, they should be competent in the
skill of interpreting. Being bilingual does not necessarily mean
that a person has the ability to interpret. In addition, there
may be times when the role of the bilingual employee may conflict
with the role of an interpreter (for instance, a bilingual law
clerk would probably not be able to perform effectively the role
of a courtroom or administrative hearing interpreter and law clerk
at the same time, even if the law clerk were a qualified interpreter).
Effective management strategies, including any appropriate adjustments
in assignments and protocols for using bilingual staff, can ensure
that bilingual staff are fully and appropriately utilized. When
bilingual staff cannot meet all of the language service obligations
of the recipient, the recipient should turn to other options.
Hiring Staff Interpreters. Hiring interpreters may be most helpful
where there is a frequent need for interpreting services in one
or more languages. Depending on the facts, sometimes it may be
necessary and reasonable to provide on-site interpreters to provide
accurate and meaningful communication with an LEP person.
Contracting for Interpreters. Contract interpreters may be a
cost-effective option when there is no regular need for a particular
language skill. In addition to commercial and other private providers,
many community-based organizations and mutual assistance associations
provide interpretation services for particular languages. Contracting
with and providing training regarding the recipient's programs
and processes to these organizations can be a cost-effective option
for providing language services to LEP persons from those language
groups.
Using Telephone Interpreter Lines. Telephone interpreter service
lines often offer speedy interpreting assistance in many different
languages. They may be particularly appropriate where the mode
of communicating with an English proficient person would also
be over the phone. Although telephonic interpretation services
are useful in many situations, it is important to ensure that,
when using such services, the interpreters used are competent
to interpret any technical or legal terms specific to a particular
program that may be important parts of the conversation. Nuances
in language and non-verbal communication can often assist an interpreter
and cannot be recognized over the phone. Video teleconferencing
may sometimes help to resolve this issue where necessary. In addition,
where documents are being discussed, it is important to give telephonic
interpreters adequate opportunity to review the document prior
to the discussion and any logistical problems should be addressed.
Using Community Volunteers. In addition to consideration of bilingual
staff, staff interpreters, or contract interpreters (either in-person
or by telephone) as options to ensure meaningful access by LEP
persons, use of recipient-coordinated community volunteers, working
with, for instance, community-based organizations may provide
a cost-effective supplemental language assistance strategy under
appropriate circumstances. They may be particularly useful in
providing language access for a recipient's less critical programs
and activities. To the extent the recipient relies on community
volunteers, it is often best to use volunteers who are trained
in the information or services of the program and can communicate
directly with LEP persons in their language. Just as with all
interpreters, community volunteers used to interpret between English
speakers and LEP persons, or to orally translate documents, should
be competent in the skill of interpreting and knowledgeable about
applicable confidentiality and impartiality rules. Recipients
should consider formal arrangements with community-based organizations
that provide volunteers to address these concerns and to help
ensure that services are available more regularly.
Use of Family Members, Friends, Other Inmates, or Other Detainees
as Interpreters. Although recipients should not plan to rely on
an LEP person's family members, friends, or other informal interpreters
to provide meaningful access to important programs and activities,
where LEP persons so desire, they should be permitted to use,
at their own expense, an interpreter of their own choosing (whether
a professional interpreter, family member, friend, other inmate,
other detainee) in place of or as a supplement to the free language
services expressly offered by the recipient. LEP persons may feel
more comfortable when a trusted family member, friend, or other
inmate acts as an interpreter. In addition, in exigent circumstances
that are not reasonably foreseeable, temporary use of interpreters
not provided by the recipient may be necessary. However, with
proper planning and implementation, recipients should be able
to avoid most such situations.
Recipients, however, should take special care to ensure that
family, legal guardians, caretakers, and other informal interpreters
are appropriate in light of the circumstances and subject matter
of the program, service or activity, including protection of the
recipient's own administrative or enforcement interest in accurate
interpretation. In many circumstances, family members (especially
children), friends, other inmates or other detainees are not competent
to provide quality and accurate interpretations. Issues of confidentiality,
privacy, or conflict of interest may also arise. LEP individuals
may feel uncomfortable revealing or describing sensitive, confidential,
or potentially embarrassing medical, law enforcement (e.g., sexual
or violent assaults), family, or financial information to a family
member, friend, or member of the local community. (11) In addition,
such informal interpreters may have a personal connection to the
LEP person or an undisclosed conflict of interest, such as the
desire to protect themselves or another perpetrator in a domestic
violence or other criminal matter. For these reasons, when oral
language services are necessary, recipients should generally offer
competent interpreter services free of cost to the LEP person.
For DOJ recipient programs and activities, this is particularly
true in a courtroom, administrative hearing, pre- and post-trial
proceedings, situations in which health, safety, or access to
important benefits and services are at stake, or when credibility
and accuracy are important to protect an individual's rights and
access to important services.
An example of such a case is when police officers respond to
a domestic violence call. In such a case, use of family members
or neighbors to interpret for the alleged victim, perpetrator,
or witnesses may raise serious issues of competency, confidentiality,
and conflict of interest and is thus inappropriate. While issues
of competency, confidentiality, and conflict of interest in the
use of family members (especially children), friends, other inmates
or other detainees often make their use inappropriate, the use
of these individuals as interpreters may be an appropriate option
where proper application of the four factors would lead to a conclusion
that recipient-provided services are not necessary. An example
of this is a voluntary educational tour of a courthouse offered
to the public. There, the importance and nature of the activity
may be relatively low and unlikely to implicate issues of confidentiality,
conflict of interest, or the need for accuracy. In addition, the
resources needed and costs of providing language services may
be high. In such a setting, an LEP person's use of family, friends,
or others may be appropriate.
If the LEP person voluntarily chooses to provide his or her own
interpreter, a recipient should consider whether a record of that
choice and of the recipient's offer of assistance is appropriate.
Where precise, complete, and accurate interpretations or translations
of information and/or testimony are critical for law enforcement,
adjudicatory, or legal reasons, or where the competency of the
LEP person's interpreter is not established, a recipient might
decide to provide its own, independent interpreter, even if an
LEP person wants to use his or her own interpreter as well. Extra
caution should be exercised when the LEP person chooses to use
a minor as the interpreter. While the LEP person's decision should
be respected, there may be additional issues of competency, confidentiality,
or conflict of interest when the choice involves using children
as interpreters. The recipient should take care to ensure that
the LEP person's choice is voluntary, that the LEP person is aware
of the possible problems if the preferred interpreter is a minor
child, and that the LEP person knows that a competent interpreter
could be provided by the recipient at no cost.
B. Written Language Services (Translation)
Translation is the replacement of a written text from one language
(source language) into an equivalent written text in another language
(target language).
What Documents Should be Translated? After applying the four-factor
analysis, a recipient may determine that an effective LEP plan
for its particular program or activity includes the translation
of vital written materials into the language of each frequently-encountered
LEP group eligible to be served and/or likely to be affected by
the recipient's program.
Such written materials could include, for example:
•Consent and complaint forms
•Intake forms with the potential for important consequences
•Written notices of rights, denial, loss, or decreases in
benefits or services, parole, and other hearings
•Notices of disciplinary action
•Notices advising LEP persons of free language assistance
•Prison rule books
•Written tests that do not assess English language competency,
but test competency for a particular license, job, or skill for
which knowing English is not required
•Applications to participate in a recipient's program or
activity or to receive recipient benefits or services.
Whether or not a document (or the information it solicits) is
"vital" may depend upon the importance of the program,
information, encounter, or service involved, and the consequence
to the LEP person if the information in question is not provided
accurately or in a timely manner. For instance, applications for
bicycle safety courses should not generally be considered vital,
whereas applications for drug and alcohol counseling in prison
could be considered vital. Where appropriate, recipients are encouraged
to create a plan for consistently determining, over time and across
its various activities, what documents are "vital" to
the meaningful access of the LEP populations they serve.
Classifying a document as vital or non-vital is sometimes difficult,
especially in the case of outreach materials like brochures or
other information on rights and services. Awareness of rights
or services is an important part of "meaningful access."
Lack of awareness that a particular program, right, or service
exists may effectively deny LEP individuals meaningful access.
Thus, where a recipient is engaged in community outreach activities
in furtherance of its activities, it should regularly assess the
needs of the populations frequently encountered or affected by
the program or activity to determine whether certain critical
outreach materials should be translated. Community organizations
may be helpful in determining what outreach materials may be most
helpful to translate. In addition, the recipient should consider
whether translations of outreach material may be made more effective
when done in tandem with other outreach methods, including utilizing
the ethnic media, schools, religious, and community organizations
to spread a message.
Sometimes a document includes both vital and non-vital information.
This may be the case when the document is very large. It may also
be the case when the title and a phone number for obtaining more
information on the contents of the document in frequently- encountered
languages other than English is critical, but the document is
sent out to the general public and cannot reasonably be translated
into many languages. Thus, vital information may include, for
instance, the provision of information in appropriate languages
other than English regarding where a LEP person might obtain an
interpretation or translation of the document.
Into What Languages Should Documents be Translated? The languages
spoken by the LEP individuals with whom the recipient has contact
determine the languages into which vital documents should be translated.
A distinction should be made, however, between languages that
are frequently encountered by a recipient and less commonly-encountered
languages. Many recipients serve communities in large cities or
across the country. They regularly serve LEP persons who speak
dozens and sometimes over 100 different languages. To translate
all written materials into all of those languages is unrealistic.
Although recent technological advances have made it easier for
recipients to store and share translated documents, such an undertaking
would incur substantial costs and require substantial resources.
Nevertheless, well-substantiated claims of lack of resources to
translate all vital documents into dozens of languages do not
necessarily relieve the recipient of the obligation to translate
those documents into at least several of the more frequently-encountered
languages and to set benchmarks for continued translations into
the remaining languages over time. As a result, the extent of
the recipient's obligation to provide written translations of
documents should be determined by the recipient on a case-by-case
basis, looking at the totality of the circumstances in light of
the four-factor analysis. Because translation is a one-time expense,
consideration should be given to whether the upfront cost of translating
a document (as opposed to oral interpretation) should be amortized
over the likely lifespan of the document when applying this four-factor
analysis.
Safe Harbor. Many recipients would like to ensure with greater
certainty that they comply with their obligations to provide written
translations in languages other than English. Paragraphs (a) and
(b) outline the circumstances that can provide a "safe harbor"
for recipients regarding the requirements for translation of written
materials. A "safe harbor" means that if a recipient
provides written translations under these circumstances, such
action will be considered strong evidence of compliance with the
recipient's written-translation obligations.
The failure to provide written translations under the circumstances
outlined in paragraphs (a) and (b) does not mean there is non-compliance.
Rather, they provide a common starting point for recipients to
consider whether and at what point the importance of the service,
benefit, or activity involved; the nature of the information sought;
and the number or proportion of LEP persons served call for written
translations of commonly-used forms into frequently-encountered
languages other than English. Thus, these paragraphs merely provide
a guide for recipients that would like greater certainty of compliance
than can be provided by a fact-intensive, four-factor analysis.
Example: Even if the safe harbors are not used, if written translation
of a certain document(s) would be so burdensome as to defeat the
legitimate objectives of its program, the translation of the written
materials is not necessary. Other ways of providing meaningful
access, such as effective oral interpretation of certain vital
documents, might be acceptable under such circumstances.
Safe Harbor. The following actions will be considered strong
evidence of compliance with the recipient's written-translation
obligations:
(a) The DOJ recipient provides written translations of vital
documents for each eligible LEP language group that constitutes
five percent or 1,000, whichever is less, of the population of
persons eligible to be served or likely to be affected or encountered.
Translation of other documents, if needed, can be provided orally;
or
(b) If there are fewer than 50 persons in a language group that
reaches the five percent trigger in (a), the recipient does not
translate vital written materials but provides written notice
in the primary language of the LEP language group of the right
to receive competent oral interpretation of those written materials,
free of cost.
These safe harbor provisions apply to the translation of written
documents only. They do not affect the requirement to provide
meaningful access to LEP individuals through competent oral interpreters
where oral language services are needed and are reasonable. For
example, correctional facilities should, where appropriate, ensure
that prison rules have been explained to LEP inmates, at orientation,
for instance, prior to taking disciplinary action against them.
Competence of Translators. As with oral interpreters, translators
of written documents should be competent. Many of the same considerations
apply. However, the skill of translating is very different from
the skill of interpreting, and a person who is a competent interpreter
may or may not be competent to translate.
Particularly where legal or other vital documents are being translated,
competence can often be achieved by use of certified translators.
Certification or accreditation may not always be possible or necessary.
(12) Competence can often be ensured by having a second, independent
translator "check" the work of the primary translator.
Alternatively, one translator can translate the document, and
a second, independent translator could translate it back into
English to check that the appropriate meaning has been conveyed.
This is called "back translation."
Translators should understand the expected reading level of the
audience and, where appropriate, have fundamental knowledge about
the target language group's vocabulary and phraseology. Sometimes
direct translation of materials results in a translation that
is written at a much more difficult level than the English language
version or has no relevant equivalent meaning. (13) Community
organizations may be able to help consider whether a document
is written at a good level for the audience. Likewise, consistency
in the words and phrases used to translate terms of art, legal,
or other technical concepts helps avoid confusion by LEP individuals
and may reduce costs. Creating or using already-created glossaries
of commonly-used terms may be useful for LEP persons and translators
and cost effective for the recipient. Providing translators with
examples of previous accurate translations of similar material
by the recipient, other recipients, or federal agencies may be
helpful.
While quality and accuracy of translation services is critical,
the quality and accuracy of translation services is nonetheless
part of the appropriate mix of LEP services required. For instance,
documents that are simple and have no legal or other consequence
for LEP persons who rely on them may use translators that are
less skilled than important documents with legal or other information
upon which reliance has important consequences (including, e.g.,
information or documents of DOJ recipients regarding certain law
enforcement, health, and safety services and certain legal rights).
The permanent nature of written translations, however, imposes
additional responsibility on the recipient to ensure that the
quality and accuracy permit meaningful access by LEP persons.
VII. Elements of Effective Plan on Language Assistance for LEP
Persons
After completing the four-factor analysis and deciding what language
assistance services are appropriate, a recipient should develop
an implementation plan to address the identified needs of the
LEP populations they serve. Recipients have considerable flexibility
in developing this plan. The development and maintenance of a
periodically-updated written plan on language assistance for LEP
persons ("LEP plan") for use by recipient employees
serving the public will likely be the most appropriate and cost-effective
means of documenting compliance and providing a framework for
the provision of timely and reasonable language assistance. Moreover,
such written plans would likely provide additional benefits to
a recipient's managers in the areas of training, administration,
planning, and budgeting. These benefits should lead most recipients
to document in a written LEP plan their language assistance services,
and how staff and LEP persons can access those services. Despite
these benefits, certain DOJ recipients, such as recipients serving
very few LEP persons and recipients with very limited resources,
may choose not to develop a written LEP plan. However, the absence
of a written LEP plan does not obviate the underlying obligation
to ensure meaningful access by LEP persons to a recipient's program
or activities. Accordingly, in the event that a recipient elects
not to develop a written plan, it should consider alternative
ways to articulate in some other reasonable manner a plan for
providing meaningful access. Entities having significant contact
with LEP persons, such as schools, religious organizations, community
groups, and groups working with new immigrants can be very helpful
in providing important input into this planning process from the
beginning.
The following five steps may be helpful in designing an LEP plan
and are typically part of effective implementation plans.
(1) Identifying LEP Individuals Who Need Language Assistance
The first two factors in the four-factor analysis require an
assessment of the number or proportion of LEP individuals eligible
to be served or encountered and the frequency of encounters. This
requires recipients to identify LEP persons with whom it has contact.
One way to determine the language of communication is to use
language identification cards (or "I speak cards"),
which invite LEP persons to identify their language needs to staff.
Such cards, for instance, might say "I speak Spanish"
in both Spanish and English, "I speak Vietnamese" in
both English and Vietnamese, etc. To reduce costs of compliance,
the federal government has made a set of these cards available
on the Internet. The Census Bureau "I speak card" can
be found and downloaded at http://www.usdoj.gov/crt/cor/13166.htm.
When records are normally kept of past interactions with members
of the public, the language of the LEP person can be included
as part of the record. In addition to helping employees identify
the language of LEP persons they encounter, this process will
help in future applications of the first two factors of the four-factor
analysis. In addition, posting notices in commonly encountered
languages notifying LEP persons of language assistance will encourage
them to self-identify.
(2) Language Assistance Measures
An effective LEP plan would likely include information about
the ways in which language assistance will be provided. For instance,
recipients may want to include information on at least the following:
• Types of language services available.
• How staff can obtain those services.
• How to respond to LEP callers.
• How to respond to written communications from LEP persons.
• How to respond to LEP individuals who have in-person contact
with recipient staff.
• How to ensure competency of interpreters and translation
services.
(3) Training Staff
Staff should know their obligations to provide meaningful access
to information and services for LEP persons. An effective LEP
plan would likely include training to ensure that:
•Staff know about LEP policies and procedures.
•Staff having contact with the public (or those in a recipient's
custody) are trained to work effectively with in-person and telephone
interpreters.
Recipients may want to include this training as part of the orientation
for new employees. It is important to ensure that all employees
in public contact positions (or having contact with those in a
recipient's custody) are properly trained. Recipients have flexibility
in deciding the manner in which the training is provided. The
more frequent the contact with LEP persons, the greater the need
will be for in-depth training. Staff with little or no contact
with LEP persons may only have to be aware of an LEP plan. However,
management staff, even if they do not interact regularly with
LEP persons, should be fully aware of and understand the plan
so they can reinforce its importance and ensure its implementation
by staff.
(4) Providing Notice to LEP Persons
Once an agency has decided, based on the four factors, that it
will provide language services, it is important for the recipient
to let LEP persons know that those services are available and
that they are free of charge. Recipients should provide this notice
in a language LEP persons will understand. Examples of notification
that recipients should consider include:
•Posting signs in intake areas and other entry points.
When language assistance is needed to ensure meaningful access
to information and services, it is important to provide notice
in appropriate languages in intake areas or initial points of
contact so that LEP persons can learn how to access those language
services. This is particularly true in areas with high volumes
of LEP persons seeking access to certain health, safety, or law
enforcement services or activities run by DOJ recipients. For
instance, signs in intake offices could state that free language
assistance is available. The signs should be translated into the
most common languages encountered. They should explain how to
get the language help. (14)
•Stating in outreach documents that language services are
available from the agency. Announcements could be in, for instance,
brochures, booklets, and in outreach and recruitment information.
These statements should be translated into the most common languages
and could be "tagged" onto the front of common documents.
•Working with community-based organizations and other stakeholders
to inform LEP individuals of the recipients' services, including
the availability of language assistance services.
•Using a telephone voice mail menu. The menu could be in
the most common languages encountered. It should provide information
about available language assistance services and how to get them.
•Including notices in local newspapers in languages other
than English.
•Providing notices on non-English-language radio and television
stations about the available language assistance services and
how to get them.
•Presentations and/or notices at schools and religious organizations.
(5) Monitoring and Updating the LEP Plan
Recipients should, where appropriate, have a process for determining,
on an ongoing basis, whether new documents, programs, services,
and activities need to be made accessible for LEP individuals,
and they may want to provide notice of any changes in services
to the LEP public and to employees. In addition, recipients should
consider whether changes in demographics, types of services, or
other needs require annual reevaluation of their LEP plan. Less
frequent reevaluation may be more appropriate where demographics,
services, and needs are more static. One good way to evaluate
the LEP plan is to seek feedback from the community.
In their reviews, recipients may want to consider assessing changes
in:
•Current LEP populations in service area or population
affected or encountered.
•Frequency of encounters with LEP language groups.
•Nature and importance of activities to LEP persons.
•Availability of resources, including technological advances
and sources of additional resources, and the costs imposed.
•Whether existing assistance is meeting the needs of LEP
persons.
•Whether staff knows and understands the LEP plan and how
to implement it.
•Whether identified sources for assistance are still available
and viable.
In addition to these five elements, effective plans set clear
goals, management accountability, and opportunities for community
input and planning throughout the process.
VIII. Voluntary Compliance Effort
The goal for Title VI and Title VI regulatory enforcement is
to achieve voluntary compliance. The requirement to provide meaningful
access to LEP persons is enforced and implemented by DOJ through
the procedures identified in the Title VI regulations. These procedures
include complaint investigations, compliance reviews, efforts
to secure voluntary compliance, and technical assistance.
The Title VI regulations provide that DOJ will investigate whenever
it receives a complaint, report, or other information that alleges
or indicates possible noncompliance with Title VI or its regulations.
If the investigation results in a finding of compliance, DOJ will
inform the recipient in writing of this determination, including
the basis for the determination. DOJ uses voluntary mediation
to resolve most complaints. However, if a case is fully investigated
and results in a finding of noncompliance, DOJ must inform the
recipient of the noncompliance through a Letter of Findings that
sets out the areas of noncompliance and the steps that must be
taken to correct the noncompliance. It must attempt to secure
voluntary compliance through informal means. If the matter cannot
be resolved informally, DOJ must secure compliance through the
termination of federal assistance after the DOJ recipient has
been given an opportunity for an administrative hearing and/or
by referring the matter to a DOJ litigation section to seek injunctive
relief or pursue other enforcement proceedings. DOJ engages in
voluntary compliance efforts and provides technical assistance
to recipients at all stages of an investigation. During these
efforts, DOJ proposes reasonable timetables for achieving compliance
and consults with and assists recipients in exploring cost-effective
ways of coming into compliance. In determining a recipient's compliance
with the Title VI regulations, DOJ's primary concern is to ensure
that the recipient's policies and procedures provide meaningful
access for LEP persons to the recipient's programs and activities.
While all recipients must work toward building systems that will
ensure access for LEP individuals, DOJ acknowledges that the implementation
of a comprehensive system to serve LEP individuals is a process
and that a system will evolve over time as it is implemented and
periodically reevaluated. As recipients take reasonable steps
to provide meaningful access to federally assisted programs and
activities for LEP persons, DOJ will look favorably on intermediate
steps recipients take that are consistent with this Guidance,
and that, as part of a broader implementation plan or schedule,
move their service delivery system toward providing full access
to LEP persons. This does not excuse noncompliance but instead
recognizes that full compliance in all areas of a recipient's
activities and for all potential language minority groups may
reasonably require a series of implementing actions over a period
of time. However, in developing any phased implementation schedule,
DOJ recipients should ensure that the provision of appropriate
assistance for significant LEP populations or with respect to
activities having a significant impact on the health, safety,
legal rights, or livelihood of beneficiaries is addressed first.
Recipients are encouraged to document their efforts to provide
LEP persons with meaningful access to federally assisted programs
and activities.
IX. Application to Specific Types of Recipients
Appendix A of this Guidance provides examples of how the meaningful
access requirement of the Title VI regulations applies to law
enforcement, corrections, courts, and other recipients of DOJ
assistance.
A. State and Local Law Enforcement
Appendix A further explains how law enforcement recipients can
apply the four factors to a range of encounters with the public.
The responsibility for providing language services differs with
different types of encounters.
Appendix A helps recipients identify the population they should
consider when considering the types of services to provide. It
then provides guidance and examples of applying the four factors.
For instance, it gives examples on how to apply this guidance
to:
•Receiving and responding to requests for help
•Enforcement stops short of arrest and field investigations
•Custodial interrogations
•Intake/detention Community outreach
B. Departments of Corrections
Appendix A also helps departments of corrections understand how
to apply the four factors. For instance, it gives examples of
LEP access in:
•Intake
•Disciplinary action
•Health and safety
•Participation in classes or other programs affecting length
of sentence
•English as a Second Language (ESL) Classes
•Community corrections programs
C. Other Types of Recipients
Appendix A also applies the four factors and gives examples for
other types of recipients. Those include, for example:
•Courts
•Juvenile Justice Programs
•Domestic Violence Prevention/Treatment Programs
1. DOJ recognizes that many recipients had language assistance
programs in place prior to the issuance of Executive Order 13166.
This policy guidance provides a uniform framework for a recipient
to integrate, formalize, and assess the continued vitality of
these existing and possibly additional reasonable efforts based
on the nature of its program or activity, the current needs of
the LEP populations it encounters, and its prior experience in
providing language services in the community it serves.
2. The policy guidance is not a regulation but rather a guide.
Title VI and its implementing regulations require that recipients
take responsible steps to ensure meaningful access by LEP persons.
This guidance provides an analytical framework that recipients
may use to determine how best to comply with statutory and regulatory
obligations to provide meaningful access to the benefits, services,
information, and other important portions of their programs and
activities for individuals who are limited English proficient.
3. The memorandum noted that some commentators have interpreted
Sandoval as impliedly striking down the disparate-impact regulations
promulgated under Title VI that form the basis for the part of
Executive Order 13166 that applies to federally assisted programs
and activities. See, e.g., Sandoval, 532 U.S. at 286, 286 n.6
("[W]e assume for purposes of this decision that section
602 confers the authority to promulgate disparate-impact regulations;
. . . We cannot help observing, however, how strange it is to
say that disparate-impact regulations are `inspired by, at the
service of, and inseparably intertwined with ' Sec. 601 * * *
when Sec. 601 permits the very behavior that the regulations forbid.").
The memorandum, however, made clear that DOJ disagreed with the
commentators' interpretation. Sandoval holds principally that
there is no private right of action to enforce Title VI disparate-impact
regulations. It did not address the validity of those regulations
or Executive Order 13166 or otherwise limit the authority and
responsibility of federal grant agencies to enforce their own
implementing regulations.
4. Pursuant to Executive Order 13166, the meaningful access requirement
of the Title VI regulations and the four-factor analysis set forth
in the DOJ LEP Guidance are to additionally apply to the programs
and activities of federal agencies, including the Department of
Justice.
5. As used in this guidance, the word "court" or "courts"
includes administrative adjudicatory systems or administrative
hearings administered or conducted by a recipient.
6. However, if a federal agency were to decide to terminate federal
funds based on noncompliance with Title VI or its regulations,
only funds directed to the particular program or activity that
is out of compliance would be terminated. 42 U.S.C. 2000d-1.
7. The focus of the analysis is on lack of English proficiency,
not the ability to speak more than one language. Note that demographic
data may indicate the most frequently spoken languages other than
English and the percentage of people who speak that language who
speak or understand English less than well. Some of the most commonly
spoken languages other than English may be spoken by people who
are also overwhelmingly proficient in English. Thus, they may
not be the languages spoken most frequently by limited English
proficient individuals. When using demographic data, it is important
to focus in on the languages spoken by those who are not proficient
in English.
8. Small recipients with limited resources may find that entering
into a bulk telephonic interpretation service contract will prove
cost effective.
9. Many languages have "regionalisms," or differences
in usage. For instance, a word that may be understood to mean
something in Spanish for someone from Cuba may not be so understood
by someone from Mexico. In addition, because there may be languages
which do not have an appropriate direct interpretation of some
courtroom or legal terms and the interpreter should be so aware
and be able to provide the most appropriate interpretation. The
interpreter should likely make the recipient aware of the issue
and the interpreter and recipient can then work to develop a consistent
and appropriate set of descriptions of these terms in that language
that can be used again, when appropriate
10. For those languages in which no formal accreditation or certification
currently exists, courts and law enforcement agencies should consider
a formal process for establishing the credentials of the interpreter.
11. For example, special circumstances of confinement may raise
additional serious concerns regarding the voluntary nature, conflicts
of interest, and privacy issues surrounding the use of inmates
and detainees as interpreters, particularly where an important
right, benefit, service, disciplinary concern, or access to personal
or law enforcement information is at stake. In some situations,
inmates could potentially misuse information they obtained in
interpreting for other inmates. In addition to ensuring competency
and accuracy of the interpretation, recipients should take these
special circumstances into account when determining whether an
inmate or detainee makes a knowing and voluntary choice to use
another inmate or detainee as an interpreter.
12. For those languages in which no formal accreditation currently
exists, a particular level of membership in a professional translation
association can provide some indicator of professionalism.
13. For instance, there may be languages which do not have an
appropriate direct translation of some courtroom or legal terms
and the translator should be able to provide an appropriate translation.
The translator should likely also make the recipient aware of
this. Recipients can then work with translators to develop a consistent
and appropriate set of descriptions of these terms in that language
that can be used again, when appropriate. Recipients will find
it more effective and less costly if they try to maintain consistency
in the words and phrases used to translate terms of art and legal
or other technical concepts. Creating or using already-created
glossaries of commonly used terms may be useful for LEP persons
and translators and cost effective for the recipient. Providing
translators with examples of previous translations of similar
material by the recipient, other recipients, or federal agencies
may be helpful.
14. The Social Security Administration has made such signs available
at http://www.ssa.gov/multilanguage/langlist1.htm. These signs
could, for example, be modified for recipient use.
APPENDIX A--APPLICATION OF LEP GUIDANCE FOR DOJ RECIPIENTS TO
SPECIFIC TYPES OF RECIPIENTS
While a wide range of entities receive federal financial assistance
through DOJ, most of DOJ's assistance goes to law enforcement
agencies, including state and local police and sheriffs' departments,
and to state departments of corrections. Sections A and B below
provide examples of how these two major types of DOJ recipients
might apply the four-factor analysis. Section C provides examples
for other types of recipients. The examples in this Appendix are
not meant to be exhaustive and may not apply in many situations.
The requirements of the Title VI regulations, as clarified by
this Guidance, supplement, but do not supplant, constitutional
and other statutory or regulatory provisions that may require
LEP services. Thus, a proper application of the four-factor analysis
and compliance with the Title VI regulations does not replace
constitutional or other statutory protections mandating warnings
and notices in languages other than English in the criminal justice
context. Rather, this Guidance clarifies the Title VI regulatory
obligation to address, in appropriate circumstances and in a reasonable
manner, the language assistance needs of LEP individuals beyond
those required by the Constitution or statutes and regulations
other than the Title VI regulations.
A. State and Local Law Enforcement
For the vast majority of the public, exposure to law enforcement
begins and ends with interactions with law enforcement personnel
discharging their duties while on patrol, responding to a request
for services, talking to witnesses, or conducting community outreach
activities. For a much smaller number, that exposure includes
a visit to a station house. And for an important but even smaller
number, that visit to the station house results in one's exposure
to the criminal justice, judicial, or juvenile justice systems.
The common thread running through these and other interactions
between the public and law enforcement is the exchange of information.
Where police and sheriffs' departments receive federal financial
assistance, these departments have an obligation to provide LEP
services to LEP individuals to ensure that they have meaningful
access to the system, including, for example, understanding rights
and accessing police assistance. Language barriers can, for instance,
prevent victims from effectively reporting crimes to the police
and hinder police investigations of reported crimes. For example,
failure to communicate effectively with a victim of domestic violence
can result in reliance on the batterer or a minor child and failure
to identify and protect against harm.
Many police and sheriffs' departments already provide language
services in a wide variety of circumstances to obtain information
effectively, to build trust and relationships with the community,
and to contribute to the safety of law enforcement personnel.
For example, many police departments already have available printed
Miranda rights in languages other than English as well as interpreters
available to inform LEP persons of their rights and to interpret
police interviews. (1) In areas where significant LEP populations
reside, law enforcement officials already may have forms and notices
in languages other than English or they may employ bilingual law
enforcement officers, intake personnel, counselors, and support
staff. These experiences can form a strong basis for applying
the four-factor analysis and complying with the Title VI regulations.
1. General Principles
The touchstone of the four-factor analysis is reasonableness
based upon the specific purposes, needs, and capabilities of the
law enforcement service under review and an appreciation of the
nature and particularized needs of the LEP population served.
Accordingly, the analysis cannot provide a single uniform answer
on how service to LEP persons must be provided in all programs
or activities in all situations or whether such service need be
provided at all. Knowledge of local conditions and community needs
becomes critical in determining the type and level of language
services needed.
Before giving specific examples, several general points should
assist law enforcement in correctly applying the analysis to the
wide range of services employed in their particular jurisdictions.
a. Permanent Versus Seasonal Populations
In many communities, resident populations change over time or
season. For example, in some resort communities, populations swell
during peak vacation periods, many times exceeding the number
of permanent residents of the jurisdiction. In other communities,
primarily agricultural areas, transient populations of workers
will require increased law enforcement services during the relevant
harvest season. This dynamic demographic ebb and flow can also
dramatically change the size and nature of the LEP community likely
to come into contact with law enforcement personnel. Thus, law
enforcement officials may not want to limit their analysis to
numbers and percentages of permanent residents. In assessing factor
one--the number or proportion of LEP individuals--police departments
should consider any significant but temporary changes in a jurisdiction's
demographics.
Example: A rural jurisdiction has a permanent population of 30,000,
7% of which is Hispanic. Based on demographic data and on information
from the contiguous school district, of that number, only 15%
are estimated to be LEP individuals. Thus, the total estimated
permanent LEP population is 315 or approximately 1% of the total
permanent population. Under the four-factor analysis, a sheriffs'
department could reasonably conclude that the small number of
LEP persons makes the affirmative translation of documents and/or
employment of bilingual staff unnecessary. However, during the
spring and summer planting and harvest seasons, the local population
swells to 40,000 due to the influx of seasonal agricultural workers.
Of this transitional number, about 75% are Hispanic and about
50% of that number are LEP individuals. This information comes
from the schools and a local migrant worker community group. Thus,
during the harvest season, the jurisdiction's LEP population increases
to over 10% of all residents. In this case, the department may
want to consider whether it is required to translate vital written
documents into Spanish. In addition, this increase in LEP population
during those seasons makes it important for the jurisdiction to
review its interpretation services to ensure meaningful access
for LEP individuals.
b. Target Audiences
For most law enforcement services, the target audience is defined
in geographic rather than programmatic terms. However, some services
may be targeted to reach a particular audience (e.g., elementary
school children, elderly, residents of high crime areas, minority
communities, small business owners/operators). Also, within the
larger geographic area covered by a police department, certain
precincts or portions of precincts may have concentrations of
LEP persons. In these cases, even if the overall number or proportion
of LEP individuals in the district is low, the frequency of contact
may be foreseeably higher for certain areas or programs. Thus,
the second factor--frequency of contact--should be considered
in light of the specific program or the geographic area being
served.
Example: A police department that receives funds from the DOJ
Office of Justice Programs initiates a program to increase awareness
and understanding of police services among elementary school age
children in high crime areas of the jurisdiction. This program
involves "Officer in the Classroom" presentations at
elementary schools located in areas of high poverty. The population
of the jurisdiction is estimated to include only 3% LEP individuals.
However, the LEP population at the target schools is 35%, the
vast majority of whom are Vietnamese speakers. In applying the
four-factor analysis, the higher LEP language group populations
of the target schools and the frequency of contact within the
program with LEP students in those schools, not the LEP population
generally, should be used in determining the nature of the LEP
needs of that particular program. Further, because the Vietnamese
LEP population is concentrated in one or two main areas of town,
the police department should consider whether to apply the four-factor
analysis to other services provided by the police department.
c. Importance of Service/Information
Given the critical role law enforcement plays in maintaining
quality of life and property, traditional law enforcement and
protective services rank high on the critical/non-critical continuum.
However, this does not mean that information about, or provided
by, each of the myriad services and activities performed by law
enforcement officials must be equally available in languages other
than English. While clearly important to the ultimate success
of law enforcement, certain community outreach activities do not
have the same direct impact on the provision of core law enforcement
services as the activities of 911 lines or law enforcement officials'
ability to respond to requests for assistance while on patrol,
to communicate basic information to suspects, etc. Nevertheless,
with the rising importance of community partnerships and community-based
programming as a law enforcement technique, the need for language
services with respect to these programs should be considered in
applying the four-factor analysis.
d. Interpreters
Just as with other recipients, law enforcement recipients have
a variety of options for providing language services. Under certain
circumstances, when interpreters are required and recipients should
provide competent interpreter services free of cost to the LEP
person, LEP persons should be advised that they may choose either
to secure the assistance of an interpreter of their own choosing,
at their own expense, or a competent interpreter provided by the
recipient.
If the LEP person decides to provide his or her own interpreter,
the provision of this choice to the LEP person and the LEP person's
election should be documented in any written record generated
with respect to the LEP person. While an LEP person may sometimes
look to bilingual family members or friends or other persons with
whom they are comfortable for language assistance, there are many
situations where an LEP person might want to rely upon recipient-supplied
interpretative services. For example, such individuals may not
be available when and where they are needed, or may not have the
ability to interpret program-specific technical information. Alternatively,
an individual may feel uncomfortable revealing or describing sensitive,
confidential, or potentially embarrassing medical, law enforcement
(e.g., sexual or violent assaults), family, or financial information
to a family member, friend, or member of the local community.
Similarly, there may be situations where a recipient's own interests
justify the provision of an interpreter regardless of whether
the LEP individual also provides his or her own interpreter. For
example, where precise, complete and accurate translations of
information and/or testimony are critical for law enforcement,
adjudicatory or legal reasons, a recipient might decide to provide
its own, independent interpreter, even if an LEP person wants
to use their own interpreter as well.
In emergency situations that are not reasonably foreseeable,
the recipient may have to temporarily rely on non-recipient-provided
language services. Reliance on children is especially discouraged
unless there is an extreme emergency and no preferable interpreters
are available.
While all language services need to be competent, the greater
the potential consequences, the greater the need to monitor interpretation
services for quality. For instance, it is important that interpreters
in custodial interrogations be highly competent to translate legal
and other law enforcement concepts, as well as be extremely accurate
in their interpretation. It may be sufficient, however, for a
desk clerk who is bilingual but not skilled at interpreting to
help an LEP person figure out to whom he or she needs to talk
about setting up a neighborhood watch.
2. Applying the Four-Factor Analysis Along the Law Enforcement
Continuum
While all police activities are important, the four-factor analysis
requires some prioritizing so that language services are targeted
where most needed because of the nature and importance of the
particular law enforcement activity involved. In addition, because
of the "reasonableness" standard, and frequency of contact
and resources/costs factors, the obligation to provide language
services increases where the importance of the activity is greater.
Under this framework, then, critical areas for language assistance
could include 911 calls, custodial interrogation, and health and
safety issues for persons within the control of the police. These
activities should be considered the most important under the four-factor
analysis. Systems for receiving and investigating complaints from
the public are important. Often very important are routine patrol
activities, receiving non-emergency information regarding potential
crimes, and ticketing. Community outreach activities are hard
to categorize, but generally they do not rise to the same level
of importance as the other activities listed. However, with the
importance of community partnerships and community-based programming
as a law enforcement technique, the need for language services
with respect to these programs should be considered in applying
the four-factor analysis. Police departments have a great deal
of flexibility in determining how to best address their outreach
to LEP populations.
a. Receiving and Responding to Requests for Assistance
LEP persons must have meaningful access to police services when
they are victims of or witnesses to alleged criminal activity.
Effective reporting systems transform victims, witnesses, or bystanders
into assistants in law enforcement and investigation processes.
Given the critical role the public plays in reporting crimes or
directing limited law enforcement resources to time- sensitive
emergency or public safety situations, efforts to address the
language assistance needs of LEP individuals could have a significant
impact on improving responsiveness, effectiveness, and safety.
Emergency service lines for the public, or 911 lines, operated
by agencies that receive federal financial assistance must be
accessible to persons who are LEP. This will mean different things
to different jurisdictions. For instance, in large cities with
significant LEP communities, the 911 line may have operators who
are bilingual and capable of accurately interpreting in high stress
situations. Smaller cities or areas with small LEP populations
should still have a plan for serving callers who are LEP, but
the LEP plan and implementation may involve a telephonic interpretation
service that is fast enough and reliable enough to attend to the
emergency situation, or include some other accommodation short
of hiring bilingual operators.
Example: A large city provides bilingual operators for the most
frequently encountered languages, and uses a commercial telephone
interpretation service when it receives calls from LEP persons
who speak other languages. Ten percent of the city's population
is LEP, and sixty percent of the LEP population speaks Spanish.
In addition to 911 service, the city has a 311 line for non-emergency
police services. The 311 Center has Spanish speaking operators
available, and uses a language bank, staffed by the city's bilingual
city employees who are competent translators, for other non-English-speaking
callers. The city also has a campaign to educate non- English
speakers when to use 311 instead of 911. These actions constitute
strong evidence of compliance.
b. Enforcement Stops Short of Arrest and Field Investigations
Field enforcement includes, for example, traffic stops, pedestrian
stops, serving warrants and restraining orders, Terry stops, activities
in aid of other jurisdictions or federal agencies (e.g., fugitive
arrests or INS detentions), and crowd/traffic control. Because
of the diffuse nature of these activities, the reasonableness
standard allows for great flexibility in providing meaningful
access. Nevertheless, the ability of law enforcement agencies
to discharge fully and effectively their enforcement and crime
interdiction mission requires the ability to communicate instructions,
commands, and notices. For example, a routine traffic stop can
become a difficult situation if an officer is unable to communicate
effectively the reason for the stop, the need for identification
or other information, and the meaning of any written citation.
Requests for consent to search are meaningless if the request
is not understood. Similarly, crowd control commands will be wholly
ineffective where significant numbers of people in a crowd cannot
understand the meaning of law enforcement commands.
Given the wide range of possible situations in which law enforcement
in the field can take place, it is impossible to equip every officer
with the tools necessary to respond to every possible LEP scenario.
Rather, in applying the four factors to field enforcement, the
goal should be to implement measures addressing the language needs
of significant LEP populations in the most likely, common, and
important situations, as consistent with the recipients' resources
and costs.
Example: A police department serves a jurisdiction with a significant
number of LEP individuals residing in one or more precincts, and
it is routinely asked to provide crowd control services at community
events or demonstrations in those precincts. If it is otherwise
consistent with the requirements of the four-factor analysis,
the police department should assess how it will discharge its
crowd control duties in a language-appropriate manner. Among the
possible approaches are plans to assign bilingual officers, basic
language training of all officers in common law enforcement commands,
the use of devices that provide audio commands in the predictable
languages, or the distribution of translated written materials
for use by officers.
Field investigations include neighborhood canvassing, witness
identification and interviewing, investigative or Terry stops,
and similar activities designed to solicit and obtain information
from the community or particular persons. Encounters with LEP
individuals will often be less predictable in field investigations.
However, the jurisdiction should still assess the potential for
contact with LEP individuals in the course of field investigations
and investigative stops, identify the LEP language group(s) most
likely to be encountered, and provide, if it is consistent with
the four-factor analysis, its officers with sufficient interpretation
and/or translation resources to ensure that lack of English proficiency
does not impede otherwise proper investigations or unduly burden
LEP individuals.
Example: A police department in a moderately large city includes
a precinct that serves an area which includes significant LEP
populations whose native languages are Spanish, Korean, and Tagalog.
Law enforcement officials could reasonably consider the adoption
of a plan assigning bilingual investigative officers to the precinct
and/or creating a resource list of department employees competent
to interpret and ready to assist officers by phone or radio. This
could be combined with developing language-appropriate written
materials, such as consents to searches or statements of rights,
for use by its officers where LEP individuals are literate in
their languages. In certain circumstances, it may also be helpful
to have telephonic interpretation service access where other options
are not successful and safety and availability of phone access
permit.
Example: A police department receives federal financial assistance
and serves a predominantly Hispanic neighborhood. It routinely
sends officers on domestic violence calls. The police department
is in a state in which English has been declared the official
language. The police therefore determine that they cannot provide
language services to LEP persons. Thus, when the victim of domestic
violence speaks only Spanish and the perpetrator speaks English,
the officers have no way to speak with the victim so they only
get the perpetrator's side of the story. The failure to communicate
effectively with the victim results in further abuse and failure
to charge the batterer. The police department should be aware
that despite the state's official English law, the Title VI regulations
apply to it. Thus, the police department should provide meaningful
access for LEP persons.
c. Custodial Interrogations
Custodial interrogations of unrepresented LEP individuals trigger
constitutional rights that this Guidance is not designed to address.
Given the importance of being able to communicate effectively
under such circumstances, law enforcement recipients should ensure
competent and free language services for LEP individuals in such
situations. Law enforcement agencies are strongly encouraged to
create a written plan on language assistance for LEP persons in
this area. In addition, in formulating a plan for effectively
communicating with LEP individuals, agencies should strongly consider
whether qualified independent interpreters would be more appropriate
during custodial interrogations than law enforcement personnel
themselves. (2) Example: A large city police department institutes
an LEP plan that requires arresting officers to procure a qualified
interpreter for any custodial interrogation, notification of rights,
or taking of a formal statement where the suspect's legal rights
could be adversely impacted. . When considering whether an interpreter
is qualified, the LEP plan discourages use of police officers
as interpreters in interrogations except under circumstances in
which the LEP individual is informed of the officer's dual role
and the reliability of the interpretation is verified, such as,
for example, where the officer has been trained and tested in
interpreting and tape recordings are made of the entire interview.
In determining whether an interpreter is qualified, the jurisdiction
uses the analysis noted above. These actions would constitute
strong evidence of compliance.
d. Intake/Detention
State or local law enforcement agencies that arrest LEP persons
should consider the inherent communication impediments to gathering
information from the LEP arrestee through an intake or booking
process. Aside from the basic information, such as the LEP arrestee's
name and address, law enforcement agencies should evaluate their
ability to communicate with the LEP arrestee about his or her
medical condition. Because medical screening questions are commonly
used to elicit information on the arrestee's medical needs, suicidal
inclinations, presence of contagious diseases, potential illness,
resulting symptoms upon withdrawal from certain medications, or
the need to segregate the arrestee from other prisoners, it is
important for law enforcement agencies to consider how to communicate
effectively with an LEP arrestee at this stage. In jurisdictions
with few bilingual officers or in situations where the LEP person
speaks a language not encountered very frequently, telephonic
interpretation services may provide the most cost effective and
efficient method of communication.
e. Community Outreach
Community outreach activities increasingly are recognized as
important to the ultimate success of more traditional duties.
Thus, an application of the four-factor analysis to community
outreach activities can play an important role in ensuring that
the purpose of these activities (to improve police/community relations
and advance law enforcement objectives) is not thwarted due to
the failure to address the language needs of LEP persons.
Example: A police department initiates a program of domestic
counseling in an effort to reduce the number or intensity of domestic
violence interactions. A review of domestic violence records in
the city reveals that 25% of all domestic violence responses are
to minority areas and 30% of those responses involve interactions
with one or more LEP persons, most of whom speak the same language.
After completing the four-factor analysis, the department should
take reasonable steps to make the counseling accessible to LEP
individuals. For instance, the department could seek bilingual
counselors (for whom they provided training in translation) for
some of the counseling positions. In addition, the department
could have an agreement with a local university in which bilingual
social work majors who are competent in interpreting, as well
as language majors who are trained by the department in basic
domestic violence sensitivity and counseling, are used as interpreters
when the in-house bilingual staff cannot cover the need. Interpreters
under such circumstances should sign a confidentiality agreement
with the department. These actions constitute strong evidence
of compliance.
Example: A large city has initiated an outreach program designed
to address a problem of robberies of Vietnamese homes by Vietnamese
gangs. One strategy is to work with community groups and banks
and others to help allay traditional fears in the community of
putting money and other valuables in banks. Because a large portion
of the target audience is Vietnamese speaking and LEP, the department
contracts with a bilingual community liaison competent in the
skill of translating to help with outreach activities. This action
constitutes strong evidence of compliance.
B. Departments of Corrections/Jails/Detention Centers
Departments of corrections that receive federal financial assistance
from DOJ must provide LEP prisoners (3) with meaningful access
to benefits and services within the program. In order to do so,
corrections departments, like other recipients, must apply the
four-factor analysis.
1. General Principles
Departments of corrections also have a wide variety of options
in providing translation services appropriate to the particular
situation. Bilingual staff competent in interpreting, in person
or by phone, pose one option. Additionally, particular prisons
may have agreements with local colleges and universities, interpreter
services, and/or community organizations to provide paid or volunteer
competent translators under agreements of confidentiality and
impartiality. Telephonic interpretation services may offer a prudent
oral interpreting option for prisons with very few and/or infrequent
prisoners in a particular language group. Reliance on fellow prisoners
is generally not appropriate. Reliance on fellow prisoners should
only be an option in unforeseeable emergency circumstances; when
the LEP inmate signs a waiver that is in his/her language and
in a form designed for him/her to understand; or where the topic
of communication is not sensitive, confidential, important, or
technical in nature and the prisoner is competent in the skill
of interpreting.
In addition, a department of corrections that receives federal
financial assistance would be ultimately responsible for ensuring
that LEP inmates have meaningful access within a prison run by
a private or other entity with which the department has entered
into a contract. The department may provide the staff and materials
necessary to provide required language services, or it may choose
to require the entity with which it contracted to provide the
services itself.
2. Applying the Four Factors Along the Corrections Continuum
As with law enforcement activities, critical and predictable
contact with LEP individuals poses the greatest obligation for
language services. Corrections facilities have somewhat greater
abilities to assess the language needs of those they encounter,
although inmate populations may change rapidly in some areas.
Contact affecting health and safety, length of stay, and discipline
likely present the most critical situations under the four-factor
analysis.
a. Assessment
Each department of corrections that receives federal financial
assistance should assess the number of LEP prisoners who are in
the system, in which prisons they are located, and the languages
he or she speaks. Each prisoner's LEP status, and the language
he or she speaks, should be placed in his or her file. Although
this Guidance and Title VI are not meant to address literacy levels,
agencies should be aware of literacy problems so that LEP services
are provided in a way that is meaningful and useful (e.g., translated
written materials are of little use to a nonliterate inmate).
After the initial assessment, new LEP prisoners should be identified
at intake or orientation, and the data should be updated accordingly.
b. Intake/Orientation
Intake/Orientation plays a critical role not merely in the system's
identification of LEP prisoners, but in providing those prisoners
with fundamental information about their obligations to comply
with system regulations, participate in education and training,
receive appropriate medical treatment, and enjoy recreation. Even
if only one prisoner doesn't understand English, that prisoner
should likely be given the opportunity to be informed of the rules,
obligations, and opportunities in a manner designed effectively
to communicate these matters. An appropriate analogy is the obligation
to communicate effectively with deaf prisoners, which is most
frequently accomplished through sign language interpreters or
written materials. Not every prison will use the same method for
providing language assistance. Prisons with large numbers of Spanish-speaking
LEP prisoners, for example, may choose to translate written rules,
notices, and other important orientation material into Spanish
with oral instructions, whereas prisons with very few such inmates
may choose to rely upon a telephonic interpretation service or
qualified community volunteers to assist.
Example: The department of corrections in a state with a 5% Haitian
Creole-speaking LEP corrections population and an 8% Spanish-speaking
LEP population receives federal financial assistance to expand
one of its prisons. The department of corrections has developed
an intake video in Haitian Creole and another in Spanish for all
of the prisons within the department to use when orienting new
prisoners who are LEP and speak one of those languages. In addition,
the department provides inmates with an opportunity to ask questions
and discuss intake information through either bilingual staff
who are competent in interpreting and who are present at the orientation
or who are patched in by phone to act as interpreters. The department
also has an agreement whereby some of its prisons house a small
number of INS detainees. For those detainees or other inmates
who are LEP and do not speak Haitian Creole or Spanish, the department
has created a list of sources for interpretation, including department
staff, contract interpreters, university resources, and a telephonic
interpretation service. Each person receives at least an oral
explanation of the rights, rules, and opportunities. These actions
constitute strong evidence of compliance. Example:
A department of corrections that receives federal financial assistance
determines that, even though the state in which it resides has
a law declaring English the official language, it should still
ensure that LEP prisoners understand the rules, rights, and opportunities
and have meaningful access to important information and services
at the state prisons. Despite the state's official English law,
the Title VI regulations apply to the department of corrections.
c. Disciplinary Action
When a prisoner who is LEP is the subject of disciplinary action,
the prison, where appropriate, should provide language assistance.
That assistance should ensure that the LEP prisoner had adequate
notice of the rule in question and is meaningfully able to understand
and participate in the process afforded prisoners under those
circumstances. As noted previously, fellow inmates should generally
not serve as interpreters in disciplinary hearings.
d. Health and Safety
Prisons providing health services should refer to the Department
of Health and Human Services' guidance (4) regarding health care
providers' Title VI and Title VI regulatory obligations, as well
as with this Guidance.
Health care services are obviously extremely important. How access
to those services is provided depends upon the four-factor analysis.
If, for instance, a prison serves a high proportion of LEP individuals
who speak Spanish, then the prison health care provider should
likely have available qualified bilingual medical staff or interpreters
versed in medical terms. If the population of LEP individuals
is low, then the prison may choose instead, for example, to rely
on a local community volunteer program that provides qualified
interpreters through a university. Due to the private nature of
medical situations, only in unpredictable emergency situations
or in non-emergency cases where the inmate has waived rights to
a non-inmate interpreter would the use of other bilingual inmates
be appropriate.
e. Participation Affecting Length of Sentence
If a prisoner's LEP status makes him/her unable to participate
in a particular program, such a failure to participate should
not be used to adversely impact the length of stay or significantly
affect the conditions of imprisonment. Prisons have options in
how to apply this standard. For instance, prisons could: (1) make
the program accessible to the LEP inmate; (2) identify or develop
substitute or alternative, language-accessible programs, or (3)
waive the requirement.
Example: State law provides that otherwise eligible prisoners
may receive early release if they take and pass an alcohol counseling
program. Given the importance of early release, LEP prisoners
should, where appropriate, be provided access to this prerequisite
in some fashion. How that access is provided depends on the three
factors other than importance. If, for example, there are many
LEP prisoners speaking a particular language in the prison system,
the class could be provided in that language for those inmates.
If there were far fewer LEP prisoners speaking a particular language,
the prison might still need to ensure access to this prerequisite
because of the importance of early release opportunities. Options
include, for example, use of bilingual teachers, contract interpreters,
or community volunteers to interpret during the class, reliance
on videos or written explanations in a language the inmate understands,
and/or modification of the requirements of the class to meet the
LEP individual's ability to understand and communicate.
f. ESL Classes
States often mandate English-as-a-Second language (ESL) classes
for LEP inmates. Nothing in this Guidance indicates how recipients
should address such mandates. But recipients should not overlook
the long-term positive impacts of incorporating or offering ESL
programs in parallel with language assistance services as one
possible strategy for ensuring meaningful access. ESL courses
can serve as an important adjunct to a proper LEP plan in prisons
because, as prisoners gain proficiency in English, fewer language
services are needed. However, the fact that ESL classes are made
available does not obviate the need to provide meaningful access
for prisoners who are not yet English proficient.
g. Community Corrections
This guidance also applies to community corrections programs
that receive, directly or indirectly, federal financial assistance.
For them, the most frequent contact with LEP individuals will
be with an offender, a victim, or the family members of either,
but may also include witnesses and community members in the area
in which a crime was committed.
As with other recipient activities, community corrections programs
should apply the four factors and determine areas where language
services are most needed and reasonable. Important oral communications
include, for example: interviews; explaining conditions of probations/release;
developing case plans; setting up referrals for services; regular
supervision contacts; outlining violations of probations/parole
and recommendations; and making adjustments to the case plan.
Competent oral language services for LEP persons are important
for each of these types of communication. Recipients have great
flexibility in determining how to provide those services.
Just as with all language services, it is important that language
services be competent. Some knowledge of the legal system may
be necessary in certain circumstances. For example, special attention
should be given to the technical interpretation skills of interpreters
used when obtaining information from an offender during pre-sentence
and violation of probation/parole investigations or in other circumstances
in which legal terms and the results of inaccuracies could impose
an enormous burden on the LEP person.
In addition, just as with other recipients, corrections programs
should identify vital written materials for probation and parole
that should be translated when a significant number or proportion
of LEP individuals that speak a particular language is encountered.
Vital documents in this context could include, for instance: probation/parole
department descriptions and grievance procedures, offender rights
information, the pre-sentence/release investigation report, notices
of alleged violations, sentencing/release orders, including conditions
of parole, and victim impact statement questionnaires.
C. Other Types of Recipients
DOJ provides federal financial assistance to many other types
of entities and programs, including, for example, courts, juvenile
justice programs, shelters for victims of domestic violence, and
domestic violence prevention programs. The Title VI regulations
and this Guidance apply to those entities. Examples involving
some of those recipients follow:
1. Courts (5)
Application of the four-factor analysis requires recipient courts
to ensure that LEP parties and witnesses receive competent language
services, consistent with the four-factor analysis. At a minimum,
every effort should be taken to ensure competent interpretation
for LEP individuals during all hearings, trials, and motions during
which the LEP individual must and/or may be present. When a recipient
court appoints an attorney to represent an LEP defendant, the
court should ensure that either the attorney is proficient in
the LEP person's language or that a competent interpreter is provided
during consultations between the attorney and the LEP person.
Many states have created or adopted certification procedures
for court interpreters. This is one way for recipients to ensure
competency of interpreters. Where certification is available,
courts should consider carefully the qualifications of interpreters
who are not certified. Courts will not, however, always be able
to find a certified interpreter, particularly for less frequently
encountered languages. In a courtroom or administrative hearing
setting, the use of informal interpreters, such as family members,
friends, and caretakers, would not be appropriate.
Example: A state court receiving DOJ federal financial assistance
has frequent contact with LEP individuals as parties and witnesses,
but has experienced a shortage in certified interpreters in the
range of languages encountered. State court officials work with
training and testing consultants to broaden the number of certified
interpreters available in the top several languages spoken by
LEP individuals in the state. Because resources are scarce and
the development of tests expensive, state court officials decide
to partner with other states that have already established agreements
to share proficiency tests and to develop new ones together. The
state court officials also look to other existing state plans
for examples of: codes of professional conduct for interpreters;
mandatory orientation and basic training for interpreters; interpreter
proficiency tests in Spanish and Vietnamese language interpretation;
a written test in English for interpreters in all languages covering
professional responsibility, basic legal term definitions, court
procedures, etc. They are considering working with other states
to expand testing certification programs in coming years to include
several other most frequently encountered languages. These actions
constitute strong evidence of compliance.
Many individuals, while able to communicate in English to some
extent, are still LEP insofar as ability to understand the terms
and precise language of the courtroom. Courts should consider
carefully whether a person will be able to understand and communicate
effectively in the stressful role of a witness or party and in
situations where knowledge of language subtleties and/or technical
terms and concepts are involved or where key determinations are
made based on credibility.
Example: Judges in a county court receiving federal financial
assistance have adopted a voir dire for determining a witness'
need for an interpreter. The voir dire avoids questions that could
be answered with "yes" or "no." It includes
questions about comfort level in English, and questions that require
active responses, such as: "How did you come to court today?"
etc. The judges also ask the witness more complicated conceptual
questions to determine the extent of the person's proficiency
in English. These actions constitute strong evidence of compliance.
Example: A court encounters a domestic violence victim who is
LEP. Even though the court is located in a state where English
has been declared the official language, it employs a competent
interpreter to ensure meaningful access. Despite the state's official
English law, the Title VI regulations apply to the court.
When courts experience low numbers or proportions of LEP individuals
from a particular language group and infrequent contact with that
language group, creation of a new certification test for interpreters
may be overly burdensome. In such cases, other methods should
be used to determine the competency of interpreters for the court's
purposes.
Example: A witness in a county court in a large city speaks Urdu
and not English. The jurisdiction has no court interpreter certification
testing for Urdu language interpreters because very few LEP individuals
encountered speak Urdu and there is no such test available through
other states or organizations. However, a non-certified interpreter
is available and has been given the standard English-language
test on court processes and interpreter ethics. The judge brings
in a second, independent, bilingual Urdu-speaking person from
a local university, and asks the prospective interpreter to interpret
the judge's conversation with the second individual. The judge
then asks the second Urdu speaker a series of questions designed
to determine whether the interpreter accurately interpreted their
conversation. Given the infrequent contact, the low number and
proportion of Urdu LEP individuals in the area, and the high cost
of providing certification tests for Urdu interpreters, this "second
check" solution may be one appropriate way of ensuring meaningful
access to the LEP individual.
Example: In order to minimize the necessity of the type of intense
judicial intervention on the issue of quality noted in the previous
example, the court administrators in a jurisdiction, working closely
with interpreter and translator associations, the bar, judges,
and community groups, have developed and disseminated a stringent
set of qualifications for court interpreters. The state has adopted
a certification test in several languages. A questionnaire and
qualifications process helps identify qualified interpreters even
when certified interpreters are not available to meet a particular
language need. Thus, the court administrators create a pool from
which judges and attorneys can choose. A team of court personnel,
judges, interpreters, and others have developed a recommended
interpreter oath and a set of frequently asked questions and answers
regarding court interpreting that have been provided to judges
and clerks. The frequently asked questions include information
regarding the use of team interpreters, breaks, the types of interpreting
(consecutive, simultaneous, summary, and sight translations) and
the professional standards for use of each one, and suggested
questions for determining whether an LEP witness is effectively
able to communicate through the interpreter. Information sessions
on the use of interpreters are provided for judges and clerks.
These actions constitute strong evidence of compliance.
Another key to successful use of interpreters in the courtroom
is to ensure that everyone in the process understands the role
of the interpreter.
Example: Judges in a recipient court administer a standard oath
to each interpreter and make a statement to the jury that the
role of the interpreter is to interpret, verbatim, the questions
posed to the witness and the witness' response. The jury should
focus on the words, not the non-verbals, of the interpreter. The
judges also clarify the role of the interpreter to the witness
and the attorneys. These actions constitute strong evidence of
compliance.
Just as corrections recipients should take care to ensure that
eligible LEP individuals have the opportunity to reduce the term
of their sentence to the same extent that non-LEP individuals
do, courts should ensure that LEP persons have access to programs
that would give them the equal opportunity to avoid serving a
sentence at all.
Example: An LEP defendant should be given the same access to
alternatives to sentencing, such as anger management, batterers'
treatment and intervention, and alcohol abuse counseling, as is
given to non-LEP persons in the same circumstances.
Courts have significant contact with the public outside of the
courtroom. Providing meaningful access to the legal process for
LEP individuals might require more than just providing interpreters
in the courtroom. Recipient courts should assess the need for
language services all along the process, particularly in areas
with high numbers of unrepresented individuals, such as family,
landlord-tenant, traffic, and small claims courts.
Example: Only twenty thousand people live in a rural county.
The county superior court receives DOJ funds but does not have
a budget comparable to that of a more-populous urbanized county
in the state. Over 1000 LEP Hispanic immigrants have settled in
the rural county. The urbanized county also has more than 1000
LEP Hispanic immigrants. Both counties have "how to"
materials in English helping unrepresented individuals negotiate
the family court processes and providing information for victims
of domestic violence. The urban county has taken the lead in developing
Spanish-language translations of materials that would explain
the process. The rural county modifies these slightly with the
assistance of family law and domestic violence advocates serving
the Hispanic community, and thereby benefits from the work of
the urban county. Creative solutions, such as sharing resources
across jurisdictions and working with local bar associations and
community groups, can help overcome serious financial concerns
in areas with few resources.
There may be some instances in which the four-factor analysis
of a particular portion of a recipient's program leads to the
conclusion that language services are not currently required.
For instance, the four-factor analysis may not necessarily require
that a purely voluntary tour of a ceremonial courtroom be given
in languages other than English by courtroom personnel, because
the relative importance may not warrant such services given an
application of the other factors. However, a court may decide
to provide such tours in languages other than English given the
demographics and the interest in the court. Because the analysis
is fact-dependent, the same conclusion may not be appropriate
with respect to all tours.
Just as with police departments, courts and/or particular divisions
within courts may have more contact with LEP individuals than
an assessment of the general population would indicate. Recipients
should consider that higher contact level when determining the
number or proportion of LEP individuals in the contact population
and the frequency of such contact.
Example: A county has very few residents who are LEP. However,
many Vietnamese-speaking LEP motorists go through a major freeway
running through the county that connects two areas with high populations
of Vietnamese speaking LEP individuals. As a result, the Traffic
Division of the county court processes a large number of LEP persons,
but it has taken no steps to train staff or provide forms or other
language access in that Division because of the small number of
LEP individuals in the county. The Division should assess the
number and proportion of LEP individuals processed by the Division
and the frequency of such contact. With those numbers high, the
Traffic Division may find that it needs to provide key forms or
instructions in Vietnamese. It may also find, from talking with
community groups, that many older Vietnamese LEP individuals do
not read Vietnamese well, and that it should provide oral language
services as well. The court may already have Vietnamese-speaking
staff competent in interpreting in a different section of the
court; it may decide to hire a Vietnamese-speaking employee who
is competent in the skill of interpreting; or it may decide that
a telephonic interpretation service suffices.
2. Juvenile Justice Programs
DOJ provides funds to many juvenile justice programs to which
this Guidance applies. Recipients should consider LEP parents
when minor children encounter the legal system. Absent an emergency,
recipients are strongly discouraged from using children as interpreters
for LEP parents.
Example: A county coordinator for an anti-gang program operated
by a DOJ recipient has noticed that increasing numbers of gangs
have formed comprised primarily of LEP individuals speaking a
particular foreign language. The coordinator may choose to assess
the number of LEP youths at risk of involvement in these gangs,
so that she can determine whether the program should hire a counselor
who is bilingual in the particular language and English, or provide
other types of language services to the LEP youths.
When applying the four factors, recipients encountering juveniles
should take into account that certain programs or activities may
be even more critical and difficult to access for juveniles than
they would be for adults. For instance, although an adult detainee
may need some language services to access family members, a juvenile
being detained on immigration-related charges who is held by a
recipient may need more language services in order to have access
to his or her parents.
3. Domestic Violence Prevention/Treatment Programs
Several domestic violence prevention and treatment programs receive
DOJ financial assistance and thus must apply this Guidance to
their programs and activities. As with all other recipients, the
mix of services needed should be determined after conducting the
four-factor analysis. For instance, a shelter for victims of domestic
violence serving a largely Hispanic area in which many people
are LEP should strongly consider accessing qualified bilingual
counselors, staff, and volunteers, whereas a shelter that has
experienced almost no encounters with LEP persons and serves an
area with very few LEP persons may only reasonably need access
to a telephonic interpretation service. Experience, program modifications,
and demographic changes may require modifications to the mix over
time.
Example: A shelter for victims of domestic violence is operated
by a recipient of DOJ funds and located in an area where 15 percent
of the women in the service area speak Spanish and are LEP. Seven
percent of the women in the service area speak various Chinese
dialects and are LEP. The shelter uses competent community volunteers
to help translate vital outreach materials into Chinese (which
is one written language despite many dialects) and Spanish. The
shelter hotline has a menu providing key information, such as
location, in English, Spanish, and two of the most common Chinese
dialects. Calls for immediate assistance are handled by the bilingual
staff. The shelter has one counselor and several volunteers fluent
in Spanish and English. Some volunteers are fluent in different
Chinese dialects and in English. The shelter works with community
groups to access interpreters in the several Chinese dialects
that they encounter. Shelter staff train the community volunteers
in the sensitivities of domestic violence intake and counseling.
Volunteers sign confidentiality agreements. The shelter is looking
for a grant to increase its language capabilities despite its
tiny budget. These actions constitute strong evidence of compliance.
1. The Department's Federal Bureau of Investigation makes written
versions of those rights available in several different languages.
Of course, where literacy is of concern, these are most useful
in assisting an interpreter in using consistent terms when providing
Miranda warnings orally.
2. Some state laws prohibit police officers from serving as interpreters
during custodial interrogation of suspects.
3. In this Guidance, the terms "prisoners" or "inmates"
include all of those individuals, including Immigration and Naturalization
Service (INS) detainees and juveniles, who are held in a facility
operated by a recipient. Certain statutory, regulatory, or constitutional
mandates/rights may apply only to juveniles, such as educational
rights, including those for students with disabilities or limited
English proficiency. Because a decision by a recipient or a federal,
state, or local entity to make an activity compulsory serves as
strong evidence of the program's importance, the obligation to
provide language services may differ depending upon whether the
LEP person is a juvenile or an adult inmate.
4. A copy of that guidance can be found on the HHS Web site at
http://www.hhs.gov/ocr/lep/ and at http://www.usdoj.gov/crt/cor.
5. As used in this appendix, the word "court" or "courts"
includes administrative adjudicatory systems or administrative
hearings administered or conducted by a recipient.
|