[Federal Register Volume 65, Number 159 (Wednesday, August 16, 2000)]
[Notices]
[Pages 50123-50125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20867]
Federal Register / Vol. 65, No. 159 / Wednesday, August 16, 2000 /
Notices
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DEPARTMENT OF JUSTICE
Enforcement of Title VI of the Civil Rights Act of 1964--National
Origin Discrimination Against Persons With Limited English Proficiency;
Policy Guidance
AGENCY: Civil Rights Division, Department of Justice.
ACTION: Policy guidance document.
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SUMMARY: This Policy Guidance Document entitled ``Enforcement of Title
VI of the Civil Rights Act of 1964 `` National Origin Discrimination
Against Persons with Limited English Proficiency (LEP Guidance)'' is
being issued pursuant to authority granted by Executive Order 12250 and
Department of Justice Regulations. It addresses the application of
Title VI's prohibition on national origin discrimination when
information is provided only in English to persons with limited English
proficiency. This policy guidance does not create new obligations, but
rather, clarifies existing Title VI responsibilities. The purpose of
this document is to set forth general principles for agencies to apply
in developing guidelines for services to individuals with limited
English proficiency. The Policy Guidance Document appears below.
DATES: Effective August 11, 2000.
ADDRESSES: Coordination and Review Section, Civil Rights Division, P.O.
Box 66560, Washington, D.C. 20035-6560.
FOR FURTHER INFORMATION CONTACT: Merrily Friedlander, Chief,
Coordination and Review Section, Civil Rights Division, (202) 307-2222.
Helen L. Norton,
Counsel to the Assistant Attorney General, Civil Rights Division.
Office of the Assistant Attorney General
Washington, D.C. 20530
August 11, 2000.
TO: Executive Agency Civil Rights Officers
FROM: Bill Lann Lee, Assistant Attorney General, Civil Rights Division
SUBJECT: 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'')
This policy directive concerning the enforcement of Title VI of the
Civil Rights Act of 1964, 42 U.S.C. Secs. 2000d et seq., as amended, is
being issued pursuant to the authority granted by Executive Order No.
12250 \1\ and Department of Justice regulations.\2\ It addresses the
application to recipients of federal financial assistance of Title VI's
prohibition on national origin discrimination when information is
provided only in English to persons who do not understand English. This
policy guidance does not create new obligations but, rather, clarifies
existing Title VI responsibilities.
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\1\ 42 U.S.C. Sec. 2000d-1 note.
\2\ 28 C.F.R. Sec. 0.51.
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Department of Justice Regulations for the Coordination of
Enforcement of Non-discrimination in Federally Assisted Programs
(Coordination Regulations), 28 C.F.R. 42.401 et seq., direct agencies
to ``publish title VI guidelines for each type of program to which they
extend financial assistance, where such guidelines would be appropriate
to provide detailed information on the requirements of Title VI.'' 28
CFR Sec. 42.404(a). The purpose of this document is to set forth
general principles for agencies to apply in developing such guidelines
for services to individuals with limited English proficiency (LEP). It
is expected that, in developing this guidance for their federally
assisted programs, agencies will apply these general principles, taking
into account the unique nature of the programs to which they provide
federal financial assistance.
A federal aid recipient's failure to assure that people who are not
proficient in English can effectively participate in and benefit from
programs and activities may constitute national origin discrimination
prohibited by Title VI. In order to assist agencies that grant federal
financial assistance in ensuring that recipients of federal financial
assistance are complying with their responsibilities, this policy
directive addresses the appropriate compliance standards. Agencies
should utilize the standards set forth in this Policy Guidance Document
to develop specific criteria applicable to review the programs and
activities for which they offer financial assistance. The Department of
Education \3\ already has established policies, and the Department of
Health and Human Services (HHS) \4\ has been developing guidance in a
manner consistent with Title VI and this Document, that applies to
their specific programs receiving federal financial assistance.
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\3\ Department of Education policies regarding the Title VI
responsibilities of public school districts with respect to LEP
children and their parents are reflected in three Office for Civil
Rights policy documents: (1) the May 1970 memorandum to school
districts, ``Identification of Discrimination and Denial of Services
on the Basis of National Origin,'' (2) the December 3, 1985,
guidance document, ``The Office for Civil Rights' Title VI Language
Minority Compliance Procedures,'' and (3) the September 1991
memorandum, ``Policy Update on Schools Obligations Toward National
Origin Minority Students with Limited English Proficiency.'' These
documents can be found at the Department of Education website at
www.ed.gov/office/OCR.
\4\ The Department of Health and Human Services is issuing
policy guidance titled: ``Title VI Prohibition Against National
Origin Discrimination As It Affects Persons With Limited English
Proficiency.'' This policy addresses the Title VI responsibilities
of HHS recipients to individuals with limited English proficiency.
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Background
Title VI of the Civil Rights Act of 1964 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.
Sec. 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.
Sec. 2000d-4a.
Consistent with the model Title VI regulations drafted by a
Presidential task force in 1964, virtually every executive agency that
grants federal financial assistance has promulgated regulations to
implement Title VI. These 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.''
In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court
interpreted these provisions as requiring that a federal financial
recipient take steps to ensure that language barriers did not exclude
LEP persons from effective participation in its benefits and services.
Lau involved a group of students of Chinese origin who did not speak
English to whom the recipient provided the same services--an education
provided solely in English--that it provided students who did speak
English. The Court held that, under these circumstances, the school's
practice violated the Title VI prohibition against discrimination on
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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
regulations.\5\ Courts have applied the doctrine enunciated in Lau both
inside and outside the education context. It has been considered in
contexts as varied as what languages drivers' license tests must be
given in or whether material relating to unemployment benefits must be
given in a language other than English.\6\
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\5\ 414 U.S. at 568. Congress manifested its approval of the Lau
decision requirements concerning the provision of meaningful
education services by enacting provisions in the Education
Amendments of 1974, Pub. L. No. 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 in providing language
services.
\6\ 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 filed May 30, 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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Link Between National Origin And Language
For the majority of people living in the United States, English is
their native language or they have acquired proficiency in English.
They are able to participate fully in federally assisted programs and
activities even if written and oral communications are exclusively in
the English language.
The same cannot be said for the remaining minority who have limited
English proficiency. This group includes persons born in other
countries, some children of immigrants born in the United States, and
other non-English or limited English proficient persons born in the
United States, including some Native Americans. Despite efforts to
learn and master English, their English language proficiency may be
limited for some time.\7\ Unless grant recipients take steps to respond
to this difficulty, recipients effectively may deny those who do not
speak, read, or understand English access to the benefits and services
for which they qualify.
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\7\ Certainly it is important to achieve English language
proficiency in order to fully participate at every level in American
society. As we understand the Supreme Court's interpretation of
Title VI's prohibition of national origin discrimination, it does
not in any way disparage use of the English language.
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Many recipients of federal financial assistance recognize that the
failure to provide language assistance to such persons may deny them
vital access to services and benefits. In some instances, a recipient's
failure to remove language barriers is attributable to ignorance of the
fact that some members of the community are unable to communicate in
English, to a general resistance to change, or to a lack of awareness
of the obligation to address this obstacle.
In some cases, however, the failure to address language barriers
may not be simply an oversight, but rather may be attributable, at
least in part, to invidious discrimination on the basis of national
origin and race. While there is not always a direct relationship
between an individual's language and national origin, often language
does serve as an identifier of national origin.\8\ The same sort of
prejudice and xenophobia that may be at the root of discrimination
against persons from other nations may be triggered when a person
speaks a language other than English.
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\8\ As the Supreme Court observed, ``[l]anguage permits an
individual to express both a personal identity and membership in a
community, and those who share a common language may interact in
ways more intimate than those without this bond.'' Hernandez v. New
York, 500 U.S. 352, 370 (1991) (plurality opinion).
Language elicits a response from others, ranging from admiration
and respect, to distance and alienation, to ridicule and scorn.
Reactions of the latter type all too often result from or initiate
racial hostility * * *. It may well be, for certain ethnic groups
and in some communities, that proficiency in a particular language,
like skin color, should be treated as a surrogate for race under an
equal protection analysis.\9\
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\9\ Id. at 371 (plurality opinion).
While Title VI itself prohibits only intentional discrimination on
the basis of national origin,\10\ the Supreme Court has consistently
upheld agency regulations prohibiting unjustified discriminatory
effects.\11\ The Department of Justice has consistently adhered to the
view that the significant discriminatory effects that the failure to
provide language assistance has on the basis of national origin, places
the treatment of LEP individuals comfortably within the ambit of Title
VI and agencies' implementing regulations.\12\ Also, existing language
barriers potentially may be rooted in invidious discrimination. The
Supreme Court in Lau concluded that a recipient's failure to take
affirmative steps to provide ``meaningful opportunity'' for LEP
individuals to participate in its programs and activities violates the
recipient's obligations under Title VI and its regulations.
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\10\ Alexander v. Choate, 469 U.S. 287, 293 (1985).
\11\ 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). 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.''
\12\ The Department's position with regard to written language
assistance is articulated in 28 CFR Sec. 42.405(d)(1), which is
contained in the Coordination Regulations, 28 CFR Subpt. F, issued
in 1976. These Regulations ``govern the respective obligations of
Federal agencies regarding enforcement of title VI.'' 28 CFR
Sec. 42.405. Section 42.405(d)(1) addresses the prohibitions cited
by the Supreme Court in Lau.
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All Recipients Must Take Reasonable Steps To Provide Meaningful
Access
Recipients who fail to provide services to LEP applicants and
beneficiaries in their federally assisted programs and activities may
be discriminating on the basis of national origin in violation of Title
VI and its implementing regulations. Title VI and its regulations
require recipients to take reasonable steps to ensure ``meaningful''
access to the information and services they provide. What constitutes
reasonable steps to ensure meaningful access will be contingent on a
number of factors. Among the factors to be considered are the number or
proportion of LEP persons in the eligible service population, the
frequency with which LEP individuals come in contact with the program,
the importance of the service provided by the program, and the
resources available to the recipient.
(1) Number or Proportion of LEP Individuals
Programs that serve a few or even one LEP person are still subject
to the Title VI obligation to take reasonable steps to provide
meaningful opportunities for access. However, a factor in determining
the reasonableness of a recipient's efforts is the number or proportion
of people who will be excluded from the benefits or services absent
efforts to remove language barriers. The steps that are reasonable for
a recipient who serves one LEP person a year may be different than
those expected from a recipient that serves several LEP persons each
day. But even those who serve very few LEP persons on an infrequent
basis should utilize this balancing analysis to determine whether
reasonable steps are
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possible and if so, have a plan of what to do if a LEP individual seeks
service 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.
(2) Frequency of Contact with the Program
Frequency of contacts between the program or activity and LEP
individuals is another factor to be weighed. For example, if LEP
individuals must access the recipient's program or activity on a daily
basis, e.g., as they must in attending elementary or secondary school,
a recipient has greater duties than if such contact is unpredictable or
infrequent. Recipients should take into account local or regional
conditions when determining frequency of contact with the program, and
should have the flexibility to tailor their services to those needs.
(3) Nature and Importance of the Program
The importance of the recipient's program to beneficiaries will
affect the determination of what reasonable steps are required. More
affirmative steps must be taken in programs where the denial or delay
of access may have life or death implications than in programs that are
not as crucial to one's day-to-day existence. For example, the
obligations of a federally assisted school or hospital differ from
those of a federally assisted zoo or theater. In assessing the effect
on individuals of failure to provide language services, recipients must
consider the importance of the benefit to individuals both immediately
and in the long-term. A decision by a federal, state, or local entity
to make an activity compulsory, such as elementary and secondary school
attendance or medical inoculations, serves as strong evidence of the
program's importance.
(4) Resources Available
The resources available to a recipient of federal assistance may
have an impact on the nature of the steps that recipients must take.
For example, a small recipient with limited resources may not have to
take the same steps as a larger recipient to provide LEP assistance in
programs that have a limited number of eligible LEP individuals, where
contact is infrequent, where the total cost of providing language
services is relatively high, and/or where the program is not crucial to
an individual's day-to-day existence. Claims of limited resources from
large entities will need to be well-substantiated.\13\
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\13\ 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 ``substantial
legitimate justification for the challenged practice.'' Elston v.
Talladega County Bd. of Educ., 997 F.2d 1394, 1407 (11th Cir. 1993).
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 ``consistent with business necessity'' and there is no
``alternative employment practice'' that is equally effective. 42
U.S.C. Sec. 2000e-2(k). Under Section 504 of the Rehabilitation Act,
29 U.S.C. Sec. 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'' to take no affirmative steps
to provide further access.
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Written vs. Oral Language Services
In balancing the factors discussed above to determine what
reasonable steps must be taken by recipients to provide meaningful
access to each LEP individual, agencies should particularly address the
appropriate mix of written and oral language assistance. Which
documents must be translated, when oral translation is necessary, and
whether such services must be immediately available will depend upon
the factors previously mentioned.\14\ Recipients often communicate with
the public in writing, either on paper or over the Internet, and
written translations are a highly effective way of communicating with
large numbers of people who do not speak, read or understand English.
While the Department of Justice's Coordination Regulation, 28 CFR
Sec. 42.405(d)(1), expressly addresses requirements for provision of
written language assistance, a recipient's obligation to provide
meaningful opportunity is not limited to written translations. Oral
communication between recipients and beneficiaries often is a necessary
part of the exchange of information. 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'' in the same manner as persons who speak English.
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\14\ Under the four-part analysis, for instance, Title VI would
not require recipients to translate documents requested under a
state equivalent of the Freedom of Information Act or Privacy Act,
or to translate all state statutes or notices of rulemaking made
generally available to the public. 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
documents.
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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 some 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. It is the responsibility of
federal assistance-granting agencies, in conducting their Title VI
compliance activities, to make more specific judgments by applying
their program expertise to concrete cases.
Conclusion
This document provides a general framework by which agencies can
determine when LEP assistance is required in their federally assisted
programs and activities and what the nature of that assistance should
be. We expect agencies to implement this document by issuing guidance
documents specific to their own recipients as contemplated by the
Department of Justice Coordination Regulations and as HHS and the
Department of Education already have done. The Coordination and Review
Section is available to assist you in preparing your agency-specific
guidance. In addition, agencies should provide technical assistance to
their recipients concerning the provision of appropriate LEP services.
[FR Doc. 00-20867 Filed 8-15-00; 8:45 am]
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