BACKGROUND AND QUESTIONS AND ANSWERS
October 26, 2001 DOJ Clarifying Memorandum
Regarding Limited English Proficiency and Executive Oreder 13166
LEP Executive Order. Title VI of the Civil Rights Act prohibits
discrimination on the basis of national origin, among other things. The LEP Executive
Order (Executive Order 13166) ensures that, consistent with Title VI, persons with limited
English proficiency ("LEP") have meaningful access to federally conducted and
federally funded programs and activities. The Order requires all agencies that provide
federal financial assistance to issue guidance on how Title VI applies to recipients of
that assistance in their contact with persons who are LEP. The Order also requires that
federal agencies create plans for ensuring that their own activities also provide
meaningful access for persons who are LEP.
August 2000 DOJ Guidance. The Department of Justice, at the time the EO
was published, also issued a guidance document for agencies to follow in designing their
own LEP guidance for recipients, and in creating plans for making federal activities and
programs meaningfully accessible. The guidance clarified long-standing LEP
responsibilities under Title VI and the Title VI regulations, including disparate impact
regulations and a 1976 DOJ regulation requiring translation of documents in certain
circumstances. The DOJ guidance document told agencies to consider four factors in
developing LEP guidance for their recipients (the number of LEP persons in the eligible
service population or likely to be encountered in recipient activities and programs; the
frequency with which LEP individuals come into contact with the program; the importance of
the service or information provided by the program; and the resources available to the
recipient of the federal funds). Agencies have asked DOJ for additional guidance regarding
how to balance these four factors.
Agency Recipient Guidance and Federally Conducted Plans. Pursuant to the
Executive Order and the DOJ guidance document, a number of agencies have issued their own
LEP guidance documents for their recipients. Several agencies have also created plans for
making their own federally conducted activities meaningfully accessible to persons who are
LEP ("federally conducted plans").
Requests for Clarification. There has been significant support among
recipients for recipient guidance documents issued by agencies. A number of recipients of
federal funds, however, have indicated that they believe the documents could be confusing,
and that they may impose requirements that are not necessary effectively to deliver
important LEP services. Prompted by questions from the recipient community, the
Departments of Health and Human Services and Labor have asked the Department of Justice
for advice on how to move forward on LEP issues.
DOJ Memorandum Clarifies August 2000 Guidance. In response to these
requests, on October 26, the Department of Justice issued a memorandum to agency heads.
The memorandum reaffirms the Administrations commitment to ensuring that LEP
individuals have meaningful access to federally funded and federally conducted programs
and activities. The Administration likewise recognizes that LEP services must be delivered
in a cost-effective manner. Thus, the memorandum is designed to ensure the delivery of LEP
services to eliminate invidious discrimination prohibited by Title VI itself and
unjustified disparate impact prohibited by the Title VI regulations consistent with the
four "reasonableness" factors outlined in the DOJ LEP Guidance.
A factor in determining the reasonableness of a recipients efforts is the
number or proportion of people who will be excluded from the program or activity absent
efforts to remove language barriers.
Frequency of contact must also be considered. Where the frequency and number of
contacts with individuals who speak a particular language is very small, Title VI may
impose fewer substantial LEP obligations on recipients. At the same time, when an agency
serves a large LEP population, it will have to take more substantial steps to ensure that
it meets its Title VI obligations.
The nature and importance of the program is a consideration. Where the denial or
delay of access may have life or death or other serious implications, the importance of
the full and effective delivery of LEP services is at its zenith.
Resources available are a consideration. A larger recipient with extensive
resources may have to take greater steps than a smaller recipient with limited resources.
Although on-the-premises translators may be needed in some circumstances, written
translation, access to centralized interpreter language lines or other means, may be
appropriate in others.
Costs must be factored into this balancing test as part of the consideration of
"resources available." "Reasonable steps" may cease to be reasonable
where the costs imposed substantially exceed the benefits in light of the factors outlined
in the DOJ LEP Guidance.
DOJ Memorandum Clarifies Procedures for Recipient Guidance. In addition
to clarifying its LEP guidance, the DOJ memorandum also assures that the public be given a
full opportunity to comment on agencies LEP guidance. Thus, it directs agencies to
obtain public comment on their existing recipient guidance. Agencies must review their
existing and proposed recipient guidance documents for (a) consistency with
DOJs clarifications; (b) compliance with the Administrative Procedure Act (notice
and comment requirements); and (c) compliance with requirements for significant
regulatory action (See Executive Order 12866 (setting forth OMB clearance
requirements)). It is up to each agency to determine whether its recipient guidance
document is a significant regulatory action and whether the Administrative Procedure
Acts notice and comment requirements apply.
DOJ Memorandum Clarifies Procedures for Federally Conducted Plans. The
memorandum clarifies the steps that agencies should take in ensuring that recipients of
federal funds comply with Title VI of the Civil Rights Act. Federal agencies likewise
should review plans for federally conducted programs and activities in light of the
Questions and Answers
Q. What does Executive Order 13166 require?
Executive Order 13166 (EO 13166) is directed at implementing the obligations imposed by
Title VI of the Civil Rights Act of 1964 and the Title VI regulations. Accordingly, it
prohibits recipients of federal financial assistance from discriminating based on national
origin by, among other things, failing to provide meaningful access to individuals who are
LEP. The Executive Order requires federal agencies that provide federal financial
assistance to develop guidance to clarify those obligations for recipients of such
assistance ("recipient guidance").
In addition, the Executive Order requires all federal agencies to apply the same
four-factor analysis as federal financial assistance recipients in providing meaningful
access for LEP individuals to all of its federally conducted programs and activities. Each
federal agency is required to develop a plan for taking reasonable steps to provide
meaningful access for LEP persons, in light of the four-factor analysis.
Q. Who will enforce the LEP rules?
Most federal agencies have an office that is responsible for enforcing Title VI of the
Civil Rights Act. To the extent that a recipients actions are inconsistent with
their obligations under Title VI, then such agencies will take the necessary corrective
The Federal Coordination and Compliance Section of the Civil Rights Division of DOJ has taken the
lead in coordinating and implementing this Executive Order.
Q. What are recipients of federal funds required to do to meet LEP requirements?
The actions that a recipient must take to meet the obligations imposed by Title VI of
the Civil Rights Act are necessarily an individualized determination. There are no
hard-and-fast rules. What might make sense for a large entity may not make sense for a
smaller entity. The memorandum that the Department of Justice issues today clarifies that
the steps that agencies and federally funded entities must take to ensure compliance with
Title VI may vary depending upon the services they offer, the community they serve, and
their resources. The Department of Justice stands ready to assist agencies in formulating
guidelines that take the appropriate approach to LEP issues.
Q. Has there been a change in Executive Order 13166?
No. There has been no change to the Executive Order. This Administration and the
Department of Justice are fully committed to ensuring that LEP persons have meaningful
access to federally funded and federally conducted programs and activities.
Q. Didnt the Supreme Court address and reject the LEP obligation under Title VI
last term in Alexander v. Sandoval?
No. In Alexander v. Sandoval, 121 S. Ct. 1511 (2001), the Supreme Court
held that there is no private right of action for private parties to enforce the disparate
impact regulations under Title VI. It ruled that, even if the Alabama Department of Public
Safetys policy of administering drivers license examinations only in English
violates the Title VI regulations, a private party could not bring a lawsuit under those
regulations to enjoin Alabamas policy. Sandoval did not invalidate Title VI
or the Title VI disparate impact regulations, and federal agencies obligation to
enforce the statute and regulations remains in effect. Because the legal basis for the
recipient guidance documents required under Executive Order 13166 is Title VI and the
disparate impact regulations and because Sandoval did not invalidate either one,
the Executive Order remains in force.
Q. Why did DOJ issue new Guidance?
A number of recipients of federal funds have stated that they are confused by current
LEP recipient guidance documents issued by federal agencies. In addition, they have raised
concerns that the public be provided sufficient opportunity to comment. The Department of
Justice believes that, in light of these concerns, it was necessary to issue this
The Department of Justice has issued this memorandum to clarify the guidance that it
issued last August, in which it described LEP obligations that Title VI of the Civil
Rights Act imposes. This memorandum makes clear that agencies must ensure that the public
has sufficient opportunity to comment on their recipient guidance documents and agencies
must review these documents in light of any comments they receive and this clarifying
Q. How is the October 26 Memorandum different from the earlier LEP Guidance?
The October 26 Memorandum reaffirms the Administrations commitment to LEP
services. It does not change the requirements of the existing Executive Order and existing
DOJ guidance. It does require additional process designed to ensure sufficient public
comment regarding agencies responsibilities as follows:
First, the Memorandum states that agencies that published recipient guidance after
Executive Order 13166 should: "After notifying the Department of Justice, obtain
public comment on the guidance documents that they have issued." This means they
- Review that guidance for consistency with the four-factor analysis from the August 2000
DOJ LEP guidance and the October 26 clarifying Memorandum.
- Determine whether or not the document is a significant regulatory action that is subject
to the requirements of Executive Order 12866 and whether it is subject to the notice and
comment requirements of the Administrative Procedures Act.
Some agencies may determine that they need to revise their guidance, and others may
determine that their guidance already complies with Title VI and procedural legal
standards as clarified in the Memorandum and is not "significant regulatory
action" subject to the requirements of Executive Order 12866.
- After notifying the Department of Justice, publish a notice asking for public comment on
the guidance (as revised, if necessary, in light of the October 26 Memorandum). Prior to
publication, DOJ should review any substantive revisions for consistency with the August
2000 guidance and clarifying Memo.
- Determine whether further revisions of their existing guidance are appropriate, in light
of public comment received (and disseminate as appropriate).
Second, agencies that have not already published recipient guidance should consider
these factors and clarifications in preparing guidance documents. They should then submit
their guidance documents to DOJ for approval prior to publication, as is required by the
Executive Order. Following approval by the Department of Justice and before finalizing its
guidance, each agency should obtain public comment on its proposed guidance documents.
Those agencies also need to make the determinations regarding the Administrative Procedure
Act and Executive Order 12866 as explained above.
Third, as required by the Executive Order, agencies should continue to design and
implement plans for making their own federally conducted programs and activities
meaningfully accessible to LEP persons, and should consider the four-factor analysis from
the DOJ guidance and todays memorandum in doing so.
Q. What about agencies that dont grant federal financial assistance? What do they
have to do?
Federal financial assistance includes, but is not limited to, grants and loans of
federal funds; grants or donations of federal property; training; details of federal
personnel; or any agreement, arrangement, or other contract which has as one of its
purposes the provision of assistance. If an agency does not engage in any of those
activities, it does not grant federal financial assistance and does not have to issue a
recipient guidance document. However, it must still design and implement a federally
conducted plan to ensure access for LEP individuals to all of its federally conducted
programs and activities (basically, everything that it does).
Q. Is DOJ saying that the existing recipient guidance documents are "significant
No. The memorandum explains that it is up to each agency to determine whether its
recipient guidance is "significant regulatory action" subject to the
requirements set forth in Executive Order 12866.