October 26, 2001
MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES
GENERAL COUNSELS AND CIVIL RIGHTS DIRECTORS
FROM: Ralph F.
Boyd, Jr.
Assistant Attorney General
Civil Rights Division
SUBJECT: Executive Order 13166
(Improving Access to Services for Persons with Limited
English Proficiency)
Federal agencies have recently raised
several questions regarding the requirements of Executive Order 13166. This Memorandum
responds to those questions. As discussed below, in view of the clarifications provided in
this Memorandum, agencies that have issued Limited English Proficiency ("LEP")
guidance for their recipients pursuant to Executive Order 13166 and Title VI of the Civil
Rights Act should, after notifying the Department of Justice ("DOJ"), publish a
notice asking for public comment on the guidance documents they have issued. Based on the
public comment it receives and this Memorandum, an agency may need to clarify or modify
its existing guidance. Agencies that have not yet published guidance documents should
submit agency-specific guidance to the Department of Justice. Following approval by the
Department of Justice and before finalizing its guidance, each agency should obtain public
comment on their proposed guidance documents. With regard to plans for federally conducted
programs and activities, agencies should review their plans in light of the clarifications
provided below.
BACKGROUND OF EXECUTIVE ORDER 13166
The legal basis for Executive Order 13166 is explained in
policy guidance issued by the Department of Justice entitled "Enforcement of Title VI
of the Civil Rights Act of 1964 B National
Origin Discrimination Against Persons With Limited English Proficiency." 65 F.R.
50123 (August 16, 2000). This "DOJ LEP Guidance" was referenced in and issued
concurrently with the Executive Order.
As the DOJ LEP Guidance details, Title VI of the Civil Rights Act of
1964 prohibits discrimination on the basis of race, color, or national origin in any
program or activity receiving federal financial assistance. Department of Justice
regulations enacted to effectuate this prohibition bar recipients of federal financial
assistance 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. These regulations thus prohibit unjustified disparate impact on the basis
of national origin.
As applied, the regulations have been interpreted to require foreign
language assistance in certain circumstances. For instance, where a San Francisco school
district had a large number of non-English speaking students of Chinese origin, it was
required to take reasonable steps to provide them with a meaningful opportunity to
participate in federally funded educational programs. Lau v. Nichols, 414 U.S. 563
(1974).1
The Supreme Court most recently addressed the scope of the Title VI
disparate impact regulations in Alexander v. Sandoval, 121 S. Ct. 1511 (2001).
There, the Court held that there is no private right of action to enforce these
regulations. It ruled that, even if the Alabama Department of Public Safetys policy
of administering drivers license examinations only in English violates the Title VI
regulations, a private party could not bring a case to enjoin Alabamas policy. Some
have interpreted Sandoval as impliedly striking down Title VI =s disparate impact
regulations and thus that part of Executive Order 13166 that applies to federally assisted
programs and activities.2
The Department of Justice disagrees. Sandoval holds
principally that there is no private right of action to enforce the Title VI disparate
impact regulations. It did not address the validity of those regulations or Executive
Order 13166. Because the legal basis for Executive Order 13166 is the Title VI disparate
impact regulations and because Sandoval did not invalidate those regulations, it is
the position of the Department of Justice that the Executive Order remains in force.
REQUIREMENTS OF EXECUTIVE ORDER 13166
Federally Assisted Programs and Activities. The DOJ LEP
Guidance explains that, with respect to federally assisted programs and activities,
Executive Order 13166 "does not create new obligations, but rather, clarifies
existing Title VI responsibilities." Its purpose is to clarify for federal-funds
recipients the steps those recipients can take to avoid administering programs in a way
that results in discrimination on the basis of national origin in violation of the Title
VI disparate impact regulations. To this end, the Order requires each Federal Agency
providing federal financial assistance to explain to recipients of federal funds their
obligations under the Title VI disparate impact regulations.
In developing their own LEP guidance for recipients of federal
funds, an agency should balance the factors set forth in the DOJ LEP Guidance. These
factors include, but are not limited to (i) the number or proportion of LEP individuals,
(ii) the frequency of contact with the program, (iii) the nature and importance of the
program, and (iv) the resources available.
As the DOJ LEP Guidance explains, "a factor in determining the
reasonableness of a recipient =s efforts is the number or proportion of people who will be
excluded from the benefits or services absent efforts to remove language barriers."
Similarly, the frequency of contact must be considered. Where the frequency and number of
contacts is so small as to preclude any significant national origin based disparate
impact, agencies may conclude that the Title VI disparate impact regulations impose no
substantial LEP obligations on recipients.
The nature and importance of the program is another factor. Where
the denial or delay of access may have life or death implications, LEP services are of
much greater importance than where denial of access results in mere inconvenience.
Resources available and costs must likewise be weighed. A small
recipient with limited resources may not have to take the same steps as a larger
recipient. See DOJ LEP Guidance at 50125. Costs, too, must be factored into this
balancing test. "Reasonable steps" may cease to be reasonable where the costs
imposed substantially exceed the benefits in light of the factors outlined in the DOJ LEP
Guidance. The DOJ LEP Guidance explains that a small recipient may not have to take
substantial steps "where contact is infrequent, where the total costs of providing
language services is relatively high and where the program is not crucial to an
individuals day-to-day existence." By contrast, where number and frequency of
contact is high, where the total costs for LEP services are reasonable, and where the lack
of access may have life and death implications, the availability of prompt LEP services
may be critical. In these latter cases, claims based on lack of resources will need to be
well substantiated.
Finally, consideration of resources available naturally implicates
the "mix" of LEP services required. While on-the-premise translators may be
needed in certain circumstances, written translation, access to centralized translation
language lines or other means may be appropriate in the majority of cases. The correct
balance should be based on what is both necessary to eliminate unjustified disparate
impact prohibited by the Title VI regulations and reasonable in light of the factors
outlined in the DOJ LEP Guidance.
Federally Conducted Programs and Activities. Executive Order
13166 also applies to federally conducted programs and activities. With respect to these,
the Order requires each Federal Agency to prepare a plan to improve access to federally
conducted programs and activities by eligible LEP persons. These plans, too, must be
consistent with the DOJ LEP Guidance. Federal agencies should apply the same standards to
themselves as they apply to their recipients.
PROCEDURAL CONSIDERATIONS
Administrative Procedure Act: Agency action taken pursuant to
Executive Order 13166 and the DOJ LEP Guidance may be subject to the Administrative
Procedure Acts ("APA") rulemaking requirements. 5 U.S.C. § 553.
Although interpretive rules, general statements of policy, and rules of agency
organization and procedure are not subject to section 553, courts have ruled that any
final agency action that carries the force and effect of law must comply with section
553s notice and comment requirements. See Paralyzed Veterans of America v.
D. C. Arena, 117 F.3d 579, 588 (D. C. Cir. 1997). Agencies, therefore, should consider
whether the action they have taken or that they propose to take to implement Executive
Order 13166 and Title VI of the Civil Rights Act is subject to the APAs
requirements. If it is, they must comply with these statutory obligations. Agencies must
bear in mind, however, that Executive Order 13166 "does not create new obligations,
but rather, clarifies existing Title VI responsibilities." Accordingly, agency action
taken pursuant to Executive Order 13166 must not impose new obligations on recipients of
federal funds, but should instead help recipients to understand their existing
obligations.
Executive Order 12866: Agency action taken pursuant to
Executive Order 13166 and the DOJ LEP Guidance may also be subject to requirements set
forth in Executive Order 12866 (Regulatory Review and Planning, Sept. 30, 1993).
That Order directs agencies to submit to the Office of Management and Budget for review
any "significant regulatory actions" the agency wishes to take. See
§ 6(a). Agencies, therefore, should consider whether the action they have taken or
that they propose to take to implement Executive Order 13166 and Title VI of the Civil
Rights Act is subject to Executive Order 12866s requirements. If it is, they should
ensure that the action or proposed action complies with Executive Order 12866s
obligations. With regard to federally conducted programs and activities, agencies should
review their plans for their federally conducted programs in light of the clarifications
below and make any necessary modifications.
FURTHER AGENCY ACTION
Existing LEP Guidance and Plans for Federally Conducted Programs
and Activities: Agencies that have already published LEP guidance pursuant to
Executive Order 13166 or Title VI of the Civil Rights Act should obtain public comment on
the guidance documents they have issued. Agencies should then review their existing
guidance documents in view of public comment and for consistency with the clarifications
provided in this Memorandum. The Justice Departments Civil Rights Division,
Coordination and Review Section ((202) 307-2222), is available to assist agencies in
making this determination. Should this review lead an agency to conclude that it is
appropriate to clarify or modify aspects of its LEP guidance documents, it should notify
the Department of Justice of that conclusion within 60 days from the date of this
Memorandum. Any agency effort to clarify or modify existing LEP guidance should be
completed within 120 days from the date of this Memorandum. Agencies likewise should
review plans for federally conducted programs and activities in light of the above
clarification.
New LEP Guidance and Plans for Federally Conducted Programs and
Activities: Agencies that have not yet published LEP guidance pursuant to Executive
Order 13166 and Title VI of the Civil Rights Act should submit to the Department of
Justice, within 60 days from the date of this Memorandum, agency-specific recipient
guidance that is consistent with Executive Order 13166 and the DOJ LEP Guidance, including
the clarifications set forth in this Memorandum. In preparing their guidance, agencies
should ensure that the action they propose to take is consistent with the requirements of
the Administrative Procedure Act and Executive Order 12866. The Justice Departments
Civil Rights Division, Coordination and Review Section, is available to assist agencies in
preparing agency-specific guidance. Following approval by the Department of Justice and
before finalizing its guidance, each agency should obtain public comment on its proposed
guidance documents. Final agency-specific LEP guidance should be published within 120 days
from the date of this memorandum. Agencies likewise should submit to the Department of
Justice plans for federally conducted programs and activities. The Department of Justice
is the central repository for these agency plans.
* * *
Federally assisted programs and activities may not be administered
in a way that violates the Title VI regulations. Each Federal Agency is responsible for
ensuring that its agency-specific guidance outlines recipients obligations under the
Title VI regulations and the steps recipients can take to avoid violating these
obligations. While Executive Order 13166 requires only that Federal Agencies take steps to
eliminate recipient discrimination based on national origin prohibited by Title VI, each
Federal Agency is encouraged to explore whether, as a matter of policy, additional
affirmative outreach to LEP individuals is appropriate. Federal Agencies likewise must
eliminate national origin discrimination in their own federally conducted programs and
activities. The Department of Justice is available to help agencies in reviewing and
preparing agency-specific LEP guidance and federally conducted plans.
Footnotes
1 "It seems obvious that the
Chinese-speaking minority receive fewer benefits than the English-speaking majority from
respondents' school system which denies thema meaningful opportunity to participate in the
education program - all earmarks of the discrimination banned by the regulations."
414 U.S. at 568.
2 See Sandoval, 121 S. Ct. at
1516 n.6 ("[W]e assume for purposes of this decision that § 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' § 601 . . . when § 601
permits the very behavior that the regulations forbid.").
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