[Federal Register: January 18, 2002 (Volume 67, Number 13)]
[Notices]
[Page 2671-2685]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18ja02-89]
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DEPARTMENT OF JUSTICE
Guidance to Federal Financial Assistance Recipients Regarding
Title VI Prohibition Against National Origin Discrimination Affecting
Limited English Proficient Persons
AGENCY: United States Department of Justice.
ACTION: Policy guidance document.
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SUMMARY: The United States Department of Justice (DOJ) is republishing
for additional public comment policy guidance on Title VI's prohibition
against national origin discrimination as it affects limited English
proficient persons.
DATES: This guidance was effective January 19, 2001. Comments must be
submitted on or before February 19, 2002. DOJ will review all comments
and will determine what modifications to the policy guidance, if any,
are necessary.
ADDRESSES: Interested persons should submit written comments to Ms.
Merrily Friedlander, Chief, Coordination and Review Section, Civil
Rights Division, Department of Justice, 950 Pennsylvania Avenue, N.W.,
Washington, DC 20530; Comments may also be submitted by facsimile at
202-307-0595.
FOR FURTHER INFORMATION CONTACT: Christine Stoneman or Sebastian Aloot
at the Civil Rights Division, 950 Pennsylvania Avenue, N.W.,
Washington, DC 20530. Telephone 202-307-2222; TDD: 202-307-2678.
Arrangements to receive the policy in an alternative format may be made
by contacting the named individuals.
SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d, et seq. and its implementing regulations provide that no
person shall be subjected to discrimination on the basis of race,
color, or national origin under any program or activity that receives
federal financial assistance.
The purpose of this policy guidance is to clarify the
responsibilities of recipients of federal financial assistance from the
U.S. Department of Justice (DOJ) (``recipients''), and assist them in
fulfilling their responsibilities to limited English proficient (LEP)
persons, pursuant to Title VI of the Civil Rights Act of 1964 and
implementing regulations. The policy guidance reiterates DOJ's
longstanding position that in order to avoid discrimination against LEP
persons on the ground of national origin, recipients must take
reasonable steps to ensure that such persons have meaningful access to
the programs, services, and information those recipients provide, free
of charge.
This document was originally published on January 16, 2001. See 66
FR 3834. The document was based on the policy guidance issued by the
Department of Justice entitled ``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).
On October 26, 2001 and January 11, 2002, the Assistant Attorney
General for the Civil Rights Division issued to federal departments and
agencies guidance memoranda, which reaffirmed the Department of
Justice's commitment to ensuring that federally assisted programs and
activities fulfill their LEP responsibilities and which clarified and
answered certain questions raised regarding the August 16th
publication. The Department of Justice is presently reviewing its
original January 16, 2001 publication in light of these clarifications
to determine whether there is a need to clarify or modify the January
16th guidance. In furtherance of those memoranda, the Department of
Justice is republishing its guidance for the purpose of obtaining
additional public comment.
The policy guidance includes appendices. Appendix A provides
examples of how this guidance would apply to DOJ recipients. Appendix B
provides further information on the legal bases for the guidance. It
also explains further who is covered by this guidance. The text of the
complete guidance document, including appendices, appears below.
Dated: January 15, 2002.
Ralph F. Boyd, Jr.,
Assistant Attorney General, Civil Rights Division.
I. Introduction
For most people living in the United States, English is their
native language or they have learned to read, speak, and understand
English. There are others for whom English is not their primary
language. If they also have limited ability to read, speak, or
understand English, then these people are limited English proficient,
or ``LEP.'' For them, language can be a barrier to accessing benefits
or services, understanding and exercising important rights, or
understanding other information provided by federally funded programs
and activities.
This guidance (``Guidance'') is based on Title VI of the Civil
Rights Act of 1964 and regulations that implement Title VI. Title VI
was intended to eliminate barriers based on race, color, and national
origin in federally assisted programs or activities. In certain
circumstances, failing to ensure that LEP persons can effectively
participate in or benefit from federally assisted programs and
activities or imposing additional burdens on LEP persons is national
origin discrimination. Therefore, recipients must take reasonable steps
to ensure meaningful access for LEP persons.
In August, 2000, the President signed Executive Order 13166. Under
that order, every federal agency that provides financial assistance to
non-federal entities must create guidance on how their recipients can
provide meaningful access to LEP persons and therefore comply with the
longstanding Title VI law and its regulations. DOJ is issuing this
Guidance to comply with the Executive Order. The guidance document is
new, but Title VI's meaningful access requirement is not.
This Guidance should help recipients of Department of Justice (DOJ)
financial assistance understand how to comply with the law. Recipients
have a great
[[Page 2672]]
deal of flexibility in determining how to comply with the meaningful
access requirement, and are not required to use all of the suggested
methods and options listed. As always, recipients also have the freedom
to and are encouraged to go beyond mere compliance and create model
programs for LEP access.
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
courts
certain nonprofit agencies with law enforcement missions
When federal funds are passed through from one recipient to a
subrecipient, the subrecipient is also covered by Title VI.
The LEP persons that are eligible to be served or encountered by
these recipients include, but are not limited to:
LEP persons who are in the custody of the recipient,
including juveniles, detainees, wards, and inmates.
LEP persons subject to or serviced by law enforcement
activities, including, for example, suspects, violators, witnesses,
victims, and community members.
LEP persons who are not in custody but are under
conditions of parole or probation.
LEP persons who encounter the court system.
Parents and family members of the above.
Title VI applies to the entire program or activity of a recipient
of DOJ assistance. That means that Title VI covers all parts of a
recipient's operations. This is true even if only one part of the
agency uses the federal assistance.
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 by Title VI.
Technical Assistance
DOJ plans to continue to provide assistance and guidance in this
important area. For example, DOJ plans to work with representatives of
law enforcement, corrections, courts, and LEP persons to identify model
plans and examples of best practices and share those with recipients.
DOJ Programs and Activities
At the same time as federal agencies are creating recipient
guidance, Executive Order 13166 requires that they create LEP plans for
their own agencies that are consistent with the standards for
recipients. Therefore, DOJ will apply the standards in this guidance to
its own activities.\1\
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\1\ DOJ has created, pursuant to the Executive Order, a separate
plan for providing meaningful access to LEP persons in DOJ conducted
activities.
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Appendices
There are two appendices to this guidance. Appendix A provides
examples of how this guidance would apply to DOJ recipients.
Appendix B provides further information on the legal bases for the
guidance. It also explains further who is covered by this guidance.
Both of these appendices should be considered part of this
guidance.
State or Local ``English-Only'' Laws
State or local ``English-only'' laws do not change the fact that
recipients cannot discriminate in violation of Title VI. Entities in
states and localities with ``English-only'' laws do not have to accept
federal funding. However, if they do, they still have to comply with
Title VI, including its prohibition against national origin
discrimination by recipients.
II. How Recipients Should Decide What Language Services They Should
Provide
As mentioned in Executive Order 13166 and the DOJ Guidance issued
in August, 2000, recipients should apply a four-factor test to decide
what steps to take to provide meaningful access to their programs and
activities for LEP persons. Once the recipient has chosen the services
it will provide, the recipient should prepare a written policy on
language assistance for LEP persons (an ``LEP policy'').
A. The Four-Factor Analysis
Recipients must take reasonable steps to ensure meaningful access
to their services, programs, and activities. What ``reasonable steps to
ensure meaningful access'' means depends on a number of factors. DOJ
recipients should apply the following four factors to the various kinds
of contacts that they have with the public to decide what reasonable
steps they should take to ensure meaningful access for LEP persons. The
results of this balancing test allow a recipient to decide what
documents to translate, when oral translation is necessary, and whether
language services must be made immediately available.
After applying the four-factor analysis, a recipient may conclude
that different language assistance measures are needed for its
different types of programs or activities. 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 require more in
the way of language assistance.
(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 eligible to be
served or encountered by the recipient in carrying out its operations.
Recipients should look to available data, such as the latest census
data for the area served, data from school systems and from community
organizations, and data collected by the recipient.\2\ The greater the
number or proportion of LEP persons, the more likely language services
are needed.
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\2\ The focus of the analysis is on lack of English proficiency,
not the ability to speak more than one language. Note that census
data may indicate the most frequently spoken languages other than
English and the percentage of people who speak that language who do
not speak or understand English very 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 census data, it is important to focus in on
the languages spoken by those who are not proficient in English.
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(2) The Frequency With Which LEP Individuals Come in Contact With the
Program
Recipients should assess, as accurately as they can, the frequency
with which they have or should have contact with LEP language groups.
The more frequent the contact, the more likely that language services
are needed. The steps that are reasonable for a recipient that serves
one LEP person a year may be very different than those expected from a
recipient that serves several LEP persons each day. But even those that
serve very few LEP persons on an infrequent basis should utilize 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 language lines 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.
[[Page 2673]]
(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. For example,
the obligations to communicate rights to a person who is arrested or to
provide medical services to an ill or injured inmate differ from those
to provide bicycle safety courses or recreational programming. A
recipient needs to determine if a denial or delay of access to services
or information could have serious implications for the LEP individual.
In addition, a decision 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, serves as
strong evidence of the program's importance.
(4) The Resources Available to the Recipient
A recipient's level of resources 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. Resource issues can sometimes
be minimized by technological advances and sharing of resources and
translations. Large entities should ensure that their resource
limitations are well-substantiated before using this factor as a reason
to limit language assistance.
Applying the four factors, for example, a small police department
with limited resources encountering very few LEP people has far fewer
language assistance responsibilities than larger departments with more
resources and large populations of LEP individuals.\3\
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\3\ As another example, under the four-part analysis, Title VI
does not require recipients to translate documents requested under a
state equivalent of the Freedom of Information Act or Privacy Act,
or to translate all official state statutes or notices of
rulemaking. The focus of the analysis is the nature of the
information being communicated, the intended or expected audience,
and the cost of providing translations. In virtually all instances,
one or more of these criteria would lead to the conclusion that
recipients need not translate these types of official documents.
These criteria, however, may result in translation obligations
where, for instance, laws are otherwise posted or summarized in
waiting rooms, summarized or set forth in forms, applications, or
vital outreach material, or special populations are provided with
rules and regulations they must follow (e.g., in prisons, see
Appendix A).
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B. Selecting Language Assistance Services
After applying the four-factor analysis, recipients have two main
ways to provide language services, where needed: oral interpretation
and written translation. In deciding how to provide these services,
recipients should consider the following information.
(1) Oral Language Services
Where oral interpretation is needed, recipients should develop
procedures for providing competent interpreters in a timely manner. To
do so, the recipient should consider some or all of the following
options:
Hiring Bilingual Staff for public contact positions. When
particular languages are encountered often, hiring bilingual staff
offers one of the best options. Recipients can, for example, fill
public contact positions 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 translate documents, they must be competent in
the skill of interpreting. 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.
Contracting for Interpreters. Contract interpreters may be a cost-
effective option when there is no regular need for a particular
language skill.
Using Community Volunteers. Recipient-coordinated use of community
volunteers may provide a cost-effective way to provide language
services. It is often best to use community volunteers who are trained
in the information or services of the program and can communicate
directly with LEP persons in their language. Community volunteers used
to interpret between English speakers and LEP persons, or to orally
translate documents, must be competent in the skill of interpreting. It
is best to make formal arrangements with volunteers. That way, the
service is available more regularly and volunteers understand
applicable confidentiality and impartiality rules.
Using Telephone Interpreter Lines. Telephone interpreter service
lines often offer speedy interpreting assistance in many different
languages. Although they are useful in many situations, it is important
to ensure that such services have interpreters who are able to
interpret any legal terms or terms that are specific to a particular
program when such terms may come up in the conversation. Also,
sometimes it may be necessary to provide on-site interpreters to
provide accurate and meaningful communication with an LEP person.
Competence of Interpreters. When providing oral assistance,
recipients should ensure competency of the language service provider,
no matter which of the above options they use. 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.
Competency to interpret does not always mean formal certification
as an interpreter. However, certification is helpful. When using
interpreters, recipients should ensure that they:
demonstrate proficiency in both English and in the other
language;
are bound to confidentiality and impartiality to the same
extent the recipient employee they are interpreting for is so bound
and/or to the extent their position requires;
have knowledge in both languages of any specialized terms
or concepts peculiar to the entity's program or activity; and
demonstrate the ability to convey information in both
languages, accurately;
Some recipients, such as courts, may have additional self-imposed
requirements for interpreters.
Inappropriate Use of Family Members, Friends, Other Inmates, or
Detainees. As a general rule, when language services are required,
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.\4\ If the LEP
[[Page 2674]]
person decides to provide his or her own interpreter, the provision of
this notice and the LEP person's election should be documented in any
written record generated with respect to the LEP person. In emergency
situations that are not reasonably foreseeable, use of interpreters not
provided by the recipient may be necessary. Proper recipient planning
and implementation can help avoid such situations.
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\4\ 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 translate
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.
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(2) Translation of Written Materials
An effective LEP policy ensures that vital written materials are
translated into the language of each regularly encountered LEP group
eligible to be served and/or likely to be affected by the recipient's
program.
The term ``vital documents'' includes, 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 is ``vital'' also depends upon the
importance of the program, information, encounter, or service involved.
For instance, applications for bicycle safety courses would not
generally be considered vital, whereas applications for drug and
alcohol counseling in prison would generally be considered vital.
Many large documents have both vital and non-vital information in
them. Written translation of only the vital information is usually
sufficient.
It sometimes may be hard to tell the difference between vital and
non-vital documents. This may be especially true for outreach materials
like brochures or other information on rights and services. In order to
have meaningful access, LEP persons need to be aware of those rights
and services. Of course, it would be impossible to translate every
piece of outreach material into every language. However, sometimes lack
of awareness that a particular program, right, or service exists may
effectively deny LEP individuals meaningful access. Thus, recipients
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.
Recent technological advances have made it easier for recipients to
store and share translated documents. At the same time, DOJ recognizes
that recipients in a number of areas, such as many large cities,
regularly serve LEP persons from many different areas of the world who
speak dozens and sometimes over 100 different languages. It would be
too burdensome to demand that recipients in these circumstances
translate all written materials into all of those languages.
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 most frequently encountered
languages, and to set benchmarks for continued translations over time.
As a result, the extent of the recipient's obligation to provide
written translations of documents will be determined on a case-by-case
basis, looking at the totality of the circumstances.
One way for a recipient to know with greater certainty that it will
be found in compliance with its obligation to provide written
translations in languages other than English is for the DOJ recipient
to meet the guidelines outlined in paragraphs (a) and (b) below.
Paragraphs (a) and (b) outline the circumstances that 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, this
will be considered strong evidence of compliance, in the area of
written translations.
The failure to provide written translations under the circumstances
outlined in paragraphs (a) and (b) will not necessarily mean non-
compliance with Title VI. In such circumstances, DOJ reviews the
totality of the circumstances to determine the recipient's obligation
to provide written materials in languages other than English.
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, DOJ will not find
the translation of written materials necessary for compliance with
Title VI. Other ways of providing meaningful access, such as
effective oral interpretation of vital documents, would be
acceptable under such circumstances.
Safe Harbor. DOJ will consider a recipient to be in compliance with
its Title VI obligation to provide written materials in non-English
languages if:
(a) The DOJ recipient provides written translations of, at a
minimum, 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 vital 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 translation 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. For example,
correctional facilities should ensure that prison rules have been
explained to LEP inmates, at orientation, for instance, prior to taking
disciplinary action against them.
The term ``persons eligible to be served or likely to be affected
or encountered'' as used in paragraph (a) relates to the issue of
identifying the DOJ recipient's service area for purposes of meeting
its Title VI obligation. Because of the wide variety of recipient
programs and activities, there is no ``one size fits all'' definition
of what constitutes ``persons eligible to be served or likely to be
affected or encountered.'' Generally, the term means those persons who
are in the geographic area that has been approved by a federal grant
agency as the service area and who are either eligible for the
recipient's services or otherwise might be affected or encountered by
the recipient.
Where no service area has been approved, DOJ will consider the
relevant service area as that approved by
[[Page 2675]]
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 of
determining the relevant service area. When considering the number or
proportion of LEP individuals in a service area, recipients need to
consider LEP parent(s) when their English-proficient or LEP minor
children and dependents encounter the legal system.
Just as with oral interpreters, translators of written documents
must be competent. It is a good idea to build in a ``check'' on the
translation. For instance, an independent translator could check the
first translation. Or, one translator could translate the document, and
a second, independent translator could translate it back into English.
This is called ``back translation.''
Translators should understand the expected reading level of the
audience. Sometimes direct translation of materials results in a
translation that is written at a much more difficult level than the
English language version. Community organizations may be able to help
consider whether a document is written at a good level for the
audience.
Finally, 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, 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.
C. Elements of Effective Written Policy on Language Assistance for LEP
Persons (``LEP Policy'')
After completing the four-factor analysis and deciding what
language assistance services are needed, the recipient should include
those in a written LEP policy. The key to providing meaningful access
is accurate and effective communication between the DOJ recipient and
the LEP individual.
Although DOJ recipients have a great deal of flexibility in
designing their policies, effective programs usually have five
elements, discussed below. Failure to take all of the steps outlined in
this section does not necessarily mean that a recipient has violated
the law. Just as with all Title VI complaints, DOJ assesses each
complaint on a case-by-case basis. DOJ applies the four factors in
deciding whether the steps taken by a recipient provide meaningful
access.
(1) Identifying LEP Individuals Who Need Language Assistance
As noted above, the first two parts of the four-factor analysis of
need include an assessment of the number or proportion of LEP
individuals eligible to be served or encountered and the frequency of
encounters. In addition, when developing a plan, recipients should
develop a process for employees to identify the language of LEP persons
encountered so that language services can be provided.
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. When
records are normally kept of past interactions with members of the
public, the language of the LEP person should 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
application of the first two factors of the four-factor analysis.
(2) Language Assistance Measures
The LEP policy should include information about the ways in which
language assistance will be provided. For instance, it should include
information on at least the following:
Types of language services available (see Section IIB,
above).
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 need to know that they must provide meaningful access to
information and services for LEP persons. Recipients should provide
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.
It is important that this training be part of the orientation for
new employees and that all employees in public contact positions (or
having contact with those in a recipient's custody) be properly
trained. Recipients have flexibility in deciding the way 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 policy.
(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 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, the signs could state that LEP persons have a
right to free language assistance. The signs should be translated into
the most common languages encountered. They should explain how to get
the language help.
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 right to language 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 stations
about the available language assistance services and how to get them.
(5) Monitoring and Updating the LEP policy
Recipients should always consider whether new documents, programs,
services, and activities need to be made accessible for LEP
individuals, and they should make any needed changes. They should then
provide notice of any changes in services to the LEP public and to
employees. In addition, DOJ
[[Page 2676]]
recipients should evaluate their entire language policy at least every
three years. One way to evaluate the LEP policy is to seek feedback
from the community.
In their reviews, recipients should assess 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.
Whether existing assistance is meeting the needs of LEP
persons.
Whether staff knows and understands the LEP policy and how
to implement it.
Whether identified sources for assistance are still
available and viable.
III. Application to Specific Types of Recipients
Appendix A of this Guidance provides examples of how the Title VI
meaningful access requirement 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 deciding 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
Title VI Compliance Procedures
DOJ recipients have a great deal of flexibility in deciding how to
comply with these obligations. DOJ will continue to use the same
process for handling complaints based on LEP as it uses in any other
Title VI complaint. That process emphasizes voluntary compliance. (See
Appendix B for further information). In addition, DOJ will use this
Guidance, including the appendices, in conducting investigations or
reviews of a recipient's language services.
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.
The requirements of Title VI and its implementing regulations, as
clarified by this Guidance, supplement, but do not supplant,
constitutional and other statutory or regulatory provisions that may
require LEP services. For instance, while application of the four-
factor analysis may lead to a similar result, it 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 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 Title VI.
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 entry into 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.
LEP individuals' encounters with police and sheriffs' departments are
covered by Title VI if those departments receive federal financial
assistance. This Guidance focuses on the requirements under Title VI to
communicate effectively with persons who are LEP to ensure that they
have meaningful access to the system, including, for example,
understanding rights and accessing police assistance.
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 have available printed Miranda rights in
languages other than English.\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 assessing
need and implementing a plan in compliance with Title VI and its
implementing regulations.
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\1\ DOJ's own Federal Bureau of Investigation makes written
versions of those rights available in several different languages.
---------------------------------------------------------------------------
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. Knowledge of local conditions and community needs becomes
critical in determining the type and level of language services needed.
The more predictable the need for language
[[Page 2677]]
services, the greater the responsibility under the four-factor
analysis.
Before giving specific examples, several general points should
assist law enforcement planners 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 agricultural 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 should not 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 census data and an
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 should consider,
under the safe harbor provisions of this Guidance, translating vital
written documents into Spanish. In addition, the predictability of
contact during those seasons makes it important for the jurisdiction
to review its oral language 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, etc.).
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. The police
department could then focus language services where they are most
likely to be needed.
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 expect the frequency of contact with Vietnamese
LEP individuals in general to be quite high in those areas, and it
should plan accordingly.
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 should be considered in such activities as well.
d. Interpreters. Just as with other recipients, law enforcement
recipients have a variety of options for providing language services.
As a general rule, when language services are required, 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 notice 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 translate 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. Proper recipient planning and implementation can
help avoid such situations.
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
[[Page 2678]]
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 Title VI 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
factors, the obligation to provide language services increases where
the importance of the activity is greater, the law enforcement activity
is more focused, and/or the provision of language services is more
``within the control'' of the police department.
Under this framework, then, critical areas for language assistance
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; further, complaint forms and investigations/hearings are
directly within the control of the department. Thus, forms, hearings,
and other complaint procedures should be made accessible to LEP
individuals. Often very important, but less focused and controlled are:
routine patrol activities, receiving non-emergency information
regarding potential crimes, and ticketing. In these situations, the LEP
plan should provide for a great deal of flexibility while at the same
time ensuring that, wherever reasonable, language resources are
available to officers and the LEP persons they encounter and that, when
not available, the consequences to the LEP individuals are minimized.
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 should be considered in these
activities as well. 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.
All emergency service lines, 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 to have a
plan for serving callers who are LEP, but the LEP policy and
implementation may involve a telephonic language line 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
language line 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. Such services are
consistent with Title VI principles.
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, and crowd/
traffic control. Because of the diffuse nature of these activities, the
reasonableness standard allows for great flexibility in providing
meaningful access, for example, in routine field investigations and
traffic stops. Nevertheless, the ability of law enforcement personnel
to discharge fully and effectively its 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 identifying 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 and common
situations.
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.
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. 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 their
officers with sufficient written or oral 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
[[Page 2679]]
enforcement officials could reasonably consider the adoption of a
policy 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 telephone
language line access where other options are not successful and
safety and availability of phone access permit.
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, recipients'
ability to anticipate and plan for a need for language services, and
the control over LEP and other individuals asserted by recipients in
custodial interrogation situations, law enforcement recipients must
ensure competent and free language services for LEP individuals in such
situations. A clear written policy, understood and easily accessible by
all officers, will assist the law enforcement agency in complying with
this obligation. In formulating a written policy for effectively
communicating with LEP individuals, agencies should consider whether
law enforcement personnel themselves ought to serve as interpreters
during custodial interrogation, or whether a qualified independent
interpreter would be more appropriate.\2\
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\2\ Some state laws prohibit police officers from serving as
interpreters during custodial interrogation of suspects.
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 statement, and any communication by an LEP individual in
response to a law enforcement officer. When considering whether an
interpreter is qualified, the LEP policy discourages use of police
officers as interpreters in interrogations except under
circumstances in which 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. Such a
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plan is consistent with Title VI responsibilities.
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
essential that law enforcement agencies have the ability to communicate
effectively with an LEP arrestee. In jurisdictions with few bilingual
officers or in situations where the LEP person speaks a language not
encountered very frequently, language lines 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 LEP 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. The department should take reasonable steps to make
the counseling accessible to LEP individuals. In this case, the
department successfully sought bilingual counselors (for whom they
provided training in translation) for some of the counseling
positions. In addition, the department has 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 must sign a confidentiality agreement
with the department. This would be consistent with Title VI
responsibilities.
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 would be
consistent with Title VI responsibilities.
B. Departments of Corrections
All 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.
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\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.
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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 translating, 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. Language lines 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
[[Page 2680]]
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 present the most critical
situations under the four-factor analysis.
a. Assessment. In order to create a plan for providing language
services, 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 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, will likely need 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 language line 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 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 language line. Each person receives at
least an oral explanation of the rights, rules, and opportunities.
This orientation plan would be considered consistent with Title VI.
c. Disciplinary Action. When a prisoner who is LEP is the subject
of disciplinary action, the prison must provide language assistance.
That assistance must 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 cannot serve as
interpreters in disciplinary hearings.
d. Health and Safety. Prisons providing health services should
refer to Department of Health and Human Services' guidance \4\
regarding health care providers' Title VI obligations, as well as with
this Guidance.
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\4\ A copy of that guidance can be found on the HHS website at
http://www.hhs.gov/ocr/lep/ and at http://www.usdoj.gov/crt/cor.
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Health care services are obviously extremely important. LEP
individuals must be provided with access to those services. How that
access is provided depends upon the number or proportion of LEP
individuals, the frequency of contact with those LEP individuals, and
the resources available to the recipient. If, for instance, a prison
serves a high proportion of LEP individuals who speak Spanish, then the
prison health care provider should 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 cannot 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; or
(2) 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 must 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 will
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. Another possible
option would be to waive the requirement for the LEP prisoners and
allow early release without this prerequisite.
f. ESL Classes. States often mandate English-as-a-Second language
(ESL) classes for LEP inmates. Nothing in this Guidance prohibits or
requires such mandates. ESL courses often serve as an important part of
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 provided 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
[[Page 2681]]
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. 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. Title VI and this Guidance apply to those
entities. Examples involving some of those recipients follow:
1. Courts.
Application of the four-factor analysis requires recipient courts
to ensure that LEP parties and witnesses receive competent language
services. At a minimum, every effort should be taken to ensure
translations 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 certification procedures for interpreters.
This is one way of meeting the Title VI requirement that recipients
ensure competency of interpreters. Courts will not, however, always be
able to find a certified interpreter, particularly for less frequently
encountered languages.
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. This type of assessment of need, planning, and
implementation is consistent with Title VI principles.
Many individuals, while able to communicate in English to some
extent, are still LEP. 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.
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. Such a procedure is
consistent with Title VI principles.
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. 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 is one appropriate way of ensuring meaningful
access to the LEP individual.
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 are important steps in providing meaningful access
to the court for LEP individuals.
Just as corrections recipients must 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
must ensure that LEP persons have access to programs that would give
them the 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 and alcohol
abuse counseling, as is given to non-LEP persons in the same
circumstances.
[[Page 2682]]
Courts have significant contact with the public outside of the
courtroom. Providing meaningful access to the legal process for LEP
individuals requires 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 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. 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 and thereby
benefits from the work of the urban county. Because this type of
outreach material can be vital for an unrepresented person seeking
access to a vital service of the court, such a translation is
consistent with Title VI obligations and falls within the safe
harbor. Creative solutions, such as sharing resources across
jurisdictions, can help overcome serious financial concerns in areas
with few resources.
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, which 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
language line service suffices.
2. Juvenile Justice Programs
DOJ provides funds to many juvenile justice programs to whom this
Guidance applies.
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 should 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.
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.
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 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. This program is consistent with Title VI principles.
D. Framework for Creating a Model Plan
The following is an example of a framework for a model LEP policy
that is potentially useful for all recipients, but is particularly
appropriate for recipients serving and encountering significant and
diverse LEP populations. The framework for a model plan incorporates a
variety of options and methods for providing meaningful access to LEP
persons. Recipients should consider some or all of these options for
their plans:
A formal written LEP policy;
Identification and assessment of the number or proportion of
LEP persons likely to be encountered through a review of census, school
district, community agency, recipient and/or other data. The data will
clearly be more within the control of some recipients than others. For
instance, corrections facilities will likely be able to obtain accurate
data more easily than police departments. Nevertheless, police
departments should take reasonable steps to identify the language needs
of the population they serve.
Identification of the frequency of contact with LEP language
groups.
Identification of important information, services, and
encounters that may require language services.
Identification of resources available to provide services.
Posting of signs in waiting areas and public entry points, in
several languages, informing people what interpreter services are
available and inviting them to identify themselves as needing language
assistance.
Informing LEP suspects, detainees, inmates and others
potentially subject to criminal or disciplinary action of their right
to language assistance.
Use of ``I speak'' cards by those who encounter the public in-
person, in order to identify the language an LEP person speaks.
If a record is normally kept on encounters with individuals,
noting the language of the LEP person in his or her record.
Employing bilingual staff in public contact positions such as
police officers, 911 operators, guards, etc.
Contracting with interpreting services that can provide
competent interpreters in a variety of languages in a timely manner.
Formal arrangements with community groups for competent and
timely interpreter services by community volunteers.
An arrangement with a telephone language interpreter line
(these can be arranged by, for instance, contacting major telephone
services and asking if they have language line services).
Where certain LEP populations make up a significant number of
the population in the recipient's target
[[Page 2683]]
area and are frequently encountered by the recipient, translation of
vital documents into the languages of those LEP populations.
Notice and training to staff, particularly those with public
contact, of the LEP policy and how to access language services.
Outreach to the LEP population on available language services.
Appointing a senior level employee to coordinate the language
assistance program, and ensure that there is regular monitoring of the
program.
As noted, these suggestions for a model plan are particularly
appropriate for larger recipients encountering significant LEP
populations. However, several of these steps will help smaller
recipients prepare for and provide meaningful access when LEP
individuals are encountered.
For smaller recipients with few LEP encounters, identifying the
most important activities is critical, and determining how to provide
language services in those critical areas should be a priority. This
may be as simple as accessing a commercially available language line.
Plans for such recipients should include monitoring and expanding
services as needed.
Appendix B--Coverage and Legal Background
A. Who Is Covered?
Title VI applies to every entity that manages or administers a
program or activity receiving direct or indirect federal financial
assistance from DOJ. The term ``recipients,'' as used in this guidance,
includes all covered entities. ``Covered entities'' include any state
or local agency, private institution or organization, or any public or
private individual that receives federal financial assistance from DOJ
directly or through another DOJ recipient. Examples of covered entities
include but are not limited to: police departments; sheriffs'
departments; state departments of corrections; courts; shelters for
victims of domestic violence; community corrections programs; juvenile
justice programs; and nonprofit organizations with law enforcement
missions. DOJ operates over eighty different grant programs that
provide funding to these and other different types of non-federal
entities. Many of those grants are disbursed to subrecipients, which
are also covered entities.
Grants are not the only type of ``federal financial assistance'' to
which Title VI applies. Federal financial assistance includes, but is
not limited to: grants and loans of federal funds; grants or donations
of federal surplus or real property; details of federal personnel; use
of federal facilities; or any agreement, arrangement, or other contract
which has as one of its purposes the provision of assistance. See 28
CFR 42.102(c). Training, equitable sharing of federally forfeited
property, and use of FBI computers can also be considered federal
financial assistance.\1\
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\1\ See Appendix A to Subpart C of the Department of Justice's
regulations implementing Title VI of the Civil Rights Act of 1964
(Subpart C, 28 CFR 42.101-112).
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In 1988, Congress clarified what constitutes a ``program or
activity'' covered by Title VI when it enacted the Civil Rights
Restoration Act of 1987 (CRRA). The CRRA provides that, in most cases,
when a recipient receives federal financial assistance for a particular
program or activity, all operations of the recipient are covered by
Title VI, not just the part of the program that uses the federal
assistance. Thus, Title VI covers all parts of the recipient's
operations, even if only one part of the agency uses the federal
assistance. For example, when DOJ provides federal financial assistance
to a state department of corrections to improve a particular prison
facility, all of the operations of the entire department of
corrections--not just the particular prison--are covered by Title
VI.\2\
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\2\ However, if a federal agency were to decide to terminate
federal funds based on noncompliance with Title VI, only funds
directed to the specific entity that is out of compliance--e.g., a
particular prison--would be terminated. 42 U.S.C. 2000d-1.
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The Department of Justice also has jurisdiction over enforcement of
the antidiscrimination provisions of the Omnibus Crime Control and Safe
Streets Act, as amended, 42 U.S.C. 3789d(c) (Safe Streets Act). The
standards for compliance with Title VI's prohibition against national
origin discrimination also apply to the prohibition against national
origin discrimination by recipients of Safe Streets Act funds.
B. Legal Background and Authority
The Title VI requirement to provide meaningful access to LEP
persons is not new. The Department's position with regard to written
language assistance is articulated in 28 CFR 42.405(d)(1), which is
contained in the DOJ Coordination Regulations, 28 CFR part 42, subpart
F, issued in 1976. These regulations ``govern the respective
obligations of Federal agencies regarding enforcement of Title VI.'' 28
CFR 42.405. Section 42.405(d)(1) addresses the prohibitions cited by
the Supreme Court in Lau v. Nichols, 414 U.S. 563 (1974). Thus, this
Guidance draws its authority from Title VI of the Civil Rights Act of
1964, as amended, 42 U.S.C. 2000d, et seq.; 28 CFR part 42, subpart C
(DOJ Title VI Regulations) and the Title VI regulations of other
federal agencies; 28 CFR part 42, subpart F. Further, this Guidance is
issued pursuant to Executive Order 12250, reprinted at 42 U.S.C. 2000d,
note; Executive Order 13166, 65 FR 50121 (August 16, 2000); and is
consistent with the DOJ ``Policy Guidance Document: on Enforcement of
Title VI of the Civil Rights Act of 1964--National Origin
Discrimination Against Persons With Limited English Proficiency (LEP
Guidance),'' reprinted at 65 FR 50123 (August 16, 2000).
For additional background on Title VI and its methods of
enforcement, see the DOJ Title VI Legal Manual (September, 1998); DOJ's
Investigation Procedures Manual for the Investigation and Resolution of
Complaints Alleging Violations of Title VI and Other Nondiscrimination
Statutes (September 1998); DOJ Guidelines for the Enforcement of Title
VI, 28 CFR 50.3; the Attorney General's ``Memorandum for Heads of
Departments and Agencies that Provide Federal Financial Assistance
Regarding the Use of the Disparate Impact Standard in Administrative
Regulations Under Title VI of the Civil Rights Act of 1964'' (July 14,
1994); and the Assistant Attorney General for Civil Rights' ``Policy
Guidance Document: Enforcement of Title VI and Related Statutes in
Block Grant-Type Programs'' (January 28, 1999).\3\
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\3\ The documents referenced in this section are available for
viewing or downloading at http://www.usdoj.gov/crt/cor.
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1. Existing State and Local Laws
State and local laws may provide additional obligations to serve
LEP individuals, but such laws cannot compel recipients of federal
financial assistance to violate Title VI. For instance, given our
constitutional structure, state or local ``English-only'' laws do not
relieve an entity that receives federal funding from its
responsibilities under federal anti-discrimination laws. Entities in
states and localities with ``English-only'' laws are certainly not
required to accept federal funding--but if they do, they have to comply
with Title VI, including its prohibition against national origin
discrimination by recipients of federal assistance. Failing to make
federally assisted programs and activities accessible to individuals
who are LEP will, in certain circumstances, violate Title VI.
[[Page 2684]]
2. Basic Requirements Under Title VI
Title VI prohibits recipients of federal financial assistance from
discriminating against or otherwise excluding individuals on the basis
of race, color, or national origin in any of their activities. Section
601 of Title VI, 42 U.S.C. 2000d, provides:
No person in the United States 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.
The term ``program or activity'' is broadly defined. 42 U.S.C. 2000d-
4a.
On its face, Title VI prohibits only intentional discrimination.\4\
However, virtually every federal agency, including DOJ, that grants
federal financial assistance has promulgated regulations implementing
Title VI. Those regulations prohibit 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'' and ``utiliz[ing] criteria or methods of
administration which have the effect of subjecting individuals to
discrimination'' 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
42.04(b)(2). The Supreme Court has consistently upheld agency
regulations prohibiting unjustified discriminatory effects.\5\
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\4\ Alexander v. Choate, 469 U.S. 287, 293 (1985).
\5\ Id. at 293-294; Guardians Ass'n v. Civil Serv. Comm'n, 463
U.S. 582, 584 n.2 (1983) (White, J.), 623 n.15 (Marshall, J.), 642-
645 (Stevens, Brennan, Blackmun, JJ.); Lau v. Nichols, 414 U.S. at
568; id. at 571 (Stewart, J., concurring in result). Further, in a
July 24, 1994, Memorandum to Heads of Departments and Agencies that
Provide Federal Financial Assistance concerning Use of the Disparate
Impact Standard in Administrative Regulations Under Title VI of the
Civil Rights Act of 1964, the Attorney General stated that each
agency ``should ensure that the disparate impact provisions of your
regulations are fully utilized so that all persons may enjoy equally
the benefits of federally financed programs.''
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In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court
interpreted similar U.S. Department of Education regulations to require
recipients of federal financial assistance to ensure, in appropriate
circumstances, that language barriers did not exclude LEP persons from
effective participation in federally assisted programs or activities.
In Lau, a recipient provided the same services--an education provided
solely in English--for a group of students who did not speak English as
it did for students who did speak English. In finding for the Chinese-
American students, the Court held that, under these circumstances, the
school's practice violated the Title VI regulations' prohibition
against discrimination on the basis of national origin. The Court
observed that ``[i]t seems obvious that the Chinese-speaking minority
receive fewer benefits than the English-speaking majority from
respondents' school system which denies them a meaningful opportunity
to participate in the educational program--all earmarks of the
discrimination banned by'' the Title VI implementing regulations.\6\
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\6\ 414 U.S. at 568. Congress manifested its approval of the Lau
decision by enacting provisions in the Education Amendments of 1974,
Pub. L. 93-380, secs. 105, 204, 88 Stat. 503-512, 515 codified at 20
U.S.C. 1703(f), and the Bilingual Education Act, 20 U.S.C. 7401, et
seq., which provided federal financial assistance to school
districts to provide language services to LEP students.
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While Lau arose in the educational context, its core holding--that
the failure to address limited English proficiency among beneficiary
classes could constitute national origin discrimination in violation of
Title VI--has equal vitality with respect to any federally assisted
program or activity providing services to the public.\7\
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\7\ For cases outside the educational context, see, e.g.,
Sandoval v. Hagan, 7 F. Supp. 2d 1234 (M.D. Ala. 1998), affirmed,
197 F.3d 484,(11th Cir. 1999), rehearing and suggestion for
rehearing en banc denied, 211 F.3d 133 (11th Cir. Feb. 29, 2000)
(Table, No. 98-6598-II), petition for certiorari granted, Alexander
v. Sandoval 121 S. Ct. 28 (Sept. 26, 2000) (No. 99-1908) (giving
drivers' license tests only in English violates Title VI); and Pabon
v. Levine, 70 F.R.D. 674 (S.D.N.Y. 1976) (summary judgment for
defendants denied in case alleging failure to provide unemployment
insurance information in Spanish violated Title VI).
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The failure to provide language assistance has significant
discriminatory effects on the basis of national origin. The Department
of Justice has consistently adhered to the view that these effects
place the treatment of LEP individuals comfortably within the ambit of
Title VI and agencies' implementing regulations.\8\ Also, existing
language barriers may reflect underlying intentional or invidious
discrimination of the type prohibited directly by Title VI itself.
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\8\ See, e.g., 28 CFR 42.405(d)(1).
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Title VI does not require recipients to remove language barriers
when English is an essential aspect of the program (such as providing
civil service examinations in English when the job requires person to
communicate in English, see Frontera v. Sindell, 522 F.2d 1215 (6th
Cir. 1975)), or there is another non-pretextual ``substantial
legitimate justification for the challenged practice'' and there is no
comparably effective alternative practice with less discriminatory
affects. Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407
(11th Cir. 1993); New York City Environmental Alliance v. Giuliani, 214
F.3d 65, 72 (2nd Cir. 2000) (plaintiffs failed to show less
discriminatory options available to accomplish defendant city's
legitimate goal of building new housing and fostering urban renewal).
Similar balancing tests are used in other nondiscrimination provisions
that are concerned with effects of an entity's actions. For example,
under Title VII of the Civil Rights Act of 1964, employers need not
cease practices that have a discriminatory effect if they are job-
related and ``consistent with business necessity'' and there is no
equally effective ``alternative employment practice'' that is less
discriminatory. 42 U.S.C. 2000e-2(k). Under Section 504 of the
Rehabilitation Act, 29 U.S.C. 794, recipients do not need to provide
access to persons with disabilities if such steps impose an undue
burden on the recipient. Alexander v. Choate, 469 U.S. at 300. Thus, in
situations where all of the factors identified in the text are at their
nadir, it may be ``reasonable'' not to take affirmative steps to
provide further access.
Executive Order 13166 reaffirms and clarifies the obligation to
eliminate limited English proficiency as a barrier to full and
meaningful participation in federally assisted programs and activities.
65 FR 50121 (August 16, 2000). That order states, in part:
The Federal Government is committed to improving the
accessibility of * * * services to eligible [limited English
proficiency] persons, a goal that reinforces its equally important
commitment to promoting programs and activities designed to help
individuals learn English* * * [E]ach Federal agency shall* * *
work to ensure that recipients of Federal financial assistance
(recipients) provide meaningful access to their LEP applicants and
beneficiaries* * * . [R]ecipients must take reasonable steps to
ensure meaningful access to their programs and activities by LEP
persons.\9\
\9\ Section 1, Executive Order 13166.
The Executive Order requires each federal agency to develop agency-
specific LEP guidance for recipients of federal financial assistance.
As an aid in developing this Guidance, the Executive Order incorporates
the Department of Justice's Policy Guidance Document: ``Enforcement of
Title VI of the Civil Rights Act of 1964--National Origin
Discrimination Against Persons With Limited English Proficiency (`LEP
Guidance')'' issued contemporaneously with the Executive Order.\10\
That general LEP Guidance ``sets forth the
[[Page 2685]]
compliance standards that recipients must follow to ensure that
programs and activities they normally provide in English are accessible
to LEP persons.'' \11\ This LEP Guidance for DOJ Recipients represents
the application of DOJ's general LEP Guidance to recipients of DOJ's
federal financial assistance.
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\10\ LEP Guidance, 65 FR 50123.
\11\ See Executive Order 13166 at Section 1.
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While the Department of Justice's Coordination Regulation, 28 CFR
42.405(d)(1),\12\ expressly addresses requirements for provision of
written language assistance, a recipient's obligation to provide
meaningful opportunity is not limited to written translations.
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\12\ Section 42.405(d)(1) states: ``Where a significant number
or proportion of the population eligible to be served or likely to
be affected by a federally assisted program (e.g., affected by
relocation) needs service or information in a language other than
English in order effectively to be informed or to participate in the
program, the recipient shall take reasonable steps, considering the
scope of the program and the size and concentration of such
population, to provide information in appropriate languages to such
persons. This requirement applies with regard to written material of
the type which is ordinarily distributed to the public.'' This LEP
Guidance for DOJ Recipients is intended to clarify obligations under
this regulation and further obligations under Title VI to provide
language services outside of the context of such written documents.
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Oral communication between recipients and beneficiaries, clients,
customers, wards, or other members of the public often is a necessary
part of the exchange of information. In some cases, ``meaningful
opportunity'' to benefit from the program requires the recipient to
take steps to assure that translation services are promptly available.
In other circumstances, instead of translating all of its written
materials, a recipient may meet its obligation by making available oral
assistance, or by commissioning written translations on reasonable
request. Thus, a recipient that limits its language assistance to the
provision of written materials may not be allowing LEP persons
``effectively to be informed of or to participate in the program.''
This Guidance provides information to recipients on how to comply with
the meaningful access requirement.
D. Explanation of Title VI Compliance Procedures
This Guidance, including appendices, is not intended to be
exhaustive. DOJ recipients have considerable flexibility in determining
how to comply with their legal obligations in the LEP setting, and are
not required to use all of the suggested methods and options listed.
However, DOJ recipients must establish and implement policies and
procedures for providing language assistance sufficient to fulfill
their Title VI responsibilities and provide LEP persons with meaningful
access to services. DOJ encourages recipients to document efforts to
comply with the provisions of this Guidance. DOJ will make assessments
on a case-by-case basis and will consider the four factors in assessing
whether the steps taken by a DOJ recipient provide meaningful access.
DOJ enforces Title VI through the procedures identified in the
Title VI regulations. These procedures include complaint
investigations, compliance reviews, efforts to secure voluntary
compliance, and technical assistance. In addition, aggrieved
individuals may seek judicial relief.
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. 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 assist recipients in exploring cost-
effective ways of coming into compliance by sharing information on
potential community resources, by increasing awareness of emerging
technologies, and by sharing information on how other recipient/covered
entities have addressed the language needs of diverse populations.
In determining a recipient's compliance with Title VI, DOJ's
primary concern is to ensure that the recipient's policies and
procedures overcome barriers resulting from language differences that
would deny LEP persons a meaningful opportunity to participate in and
access programs, services, and benefits.
[FR Doc. 02-1391 Filed 1-17-02; 8:45 am]
BILLING CODE 4410-13-P