Federal Register: January 16, 2001 (Volume 66, Number 10)]
Department of Justice
Guidance to Federal Financial Assistance Recipients Regarding Title VI
Prohibition Against Origin Discrimination Affecting Limited English
Proficient Persons; Notice
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.
SUMMARY: The United States Department of Justice (DOJ) is publishing
policy guidance on Title VI's prohibition against national origin discrimination as it
affects limited English proficient persons.
DATES: This guidance is effective
immediately. Comments must be submitted on or before March 19, 2001. DOJ will review all
comments and will determine what modifications to the policy guidance, if any, are
ADDRESSES: Interested persons should
submit written comments to Ms. Merrily Friedlander, Chief, Coordination and Review
Section, Civil Rights Division, Department of Justice, P.O. Box 66560, Washington, DC
20035-6560; 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, P.O. Box 66560,
Washington, DC 20035-6560. Telephone 202-307-2222; TDD: 202-307-2678. Arrangements to
receive the policy in an alternative format may be made by contacting the named
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
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 grounds 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.
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 5, 2001.
Daniel Marcus, Associate Attorney General, United States
Department of Justice.
Guidance to Recipients of U.S. Department of
Justice Federal Financial Assistance:
Providing Meaningful Access to Individuals Who Are Limited English Proficient
in Compliance With Title VI and Implementing Regulations ("LEP Guidance for DOJ
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 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
- 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
- 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.
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
1 DOJ has created, pursuant to the
Executive Order, a separate plan for providing meaningful access to LEP persons in DOJ
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
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
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.
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.
(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.
(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
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
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).
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
(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
Contracting for Interpreters. Contract
interpreters may be a cost-effective option when there is no regular need for a particular
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
- 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
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 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.
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.
(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
- 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
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
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
(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
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 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
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
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
(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,
- 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
(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
- 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
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
- Working with community-based organizations and other
stakeholders to inform LEP individuals of the recipients' services, including the right to
- 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
- 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 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
- 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
- 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
- Disciplinary action
- Health and safety
- Participation in classes or other programs affecting length
- 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:
- 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.
1 DOJ's own Federal Bureal of
Investigation makes written versions of those rights available in several different
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 services, the greater the responsibility under the
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
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.
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 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
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
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
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
b. Enforcement Stops Short of Arrest and Field
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
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 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
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 plan is consistent with Title VI responsibilities.
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
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 prisoners3
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.
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.
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 entity
with which it contracted to provide the services itself.
2. Applying the Four Factors Along the Corrections
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.
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
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 Humans Services' guidance4 regarding
health care providers' Title VI obligations, as well as with this Guidance.
4 A copy of that guidance
can be found on the HHS website at http://www.hhs.gov/ocr/civilrights/resources/specialtopics/lep
and at http://www.usdoj.gov/crt/cor.
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 an 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 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
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
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
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
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
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
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
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.
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
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
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
--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
--Identification of important information, services, and
encounters that may require language services.
--Identification of resources available to provide
--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
--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 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
--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
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 42.101-42.112).
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
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.
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
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
3 The documents referenced
in this section are available for viewing or downloading at http://www.usdoj.gov/crt/cor.
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.
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
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
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."
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
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
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
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).
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
8 See, e.g., 28 CFR 42.405(d)(1).
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
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 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.
10 LEP Guidance, 65 FR 50123.
11 See Executive Order 13166 at
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.
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.
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. 01-869 Filed 1-12-01; 8:45 am]
BILLING CODE 4410-13-P