Federal Coordination and Compliance Section Publications

 [Federal Register: January 18, 2002 (Volume 67, Number 13)] [Notices]                [Page 2671-2685] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr18ja02-89]                           -----------------------------------------------------------------------  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 republishing  for additional public comment policy guidance on Title VI's prohibition  against national origin discrimination as it affects limited English  proficient persons.  DATES: This guidance was effective January 19, 2001. Comments must be  submitted on or before February 19, 2002. DOJ will review all comments  and will determine what modifications to the policy guidance, if any,  are necessary.  ADDRESSES: Interested persons should submit written comments to Ms.  Merrily Friedlander, Chief, Federal Coordination and Compliance Section, Civil  Rights Division, Department of Justice, 950 Pennsylvania Avenue, N.W.,  Washington, DC 20530; Comments may also be submitted by facsimile at  202-307-0595.  FOR FURTHER INFORMATION CONTACT: Christine Stoneman or Sebastian Aloot  at the Civil Rights Division, 950 Pennsylvania Avenue, N.W.,  Washington, DC 20530. Telephone 202-307-2222; TDD: 202-307-2678.  Arrangements to receive the policy in an alternative format may be made  by contacting the named individuals.  SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964, 42  U.S.C. 2000d, et seq. and its implementing regulations provide that no  person shall be subjected to discrimination on the basis of race,  color, or national origin under any program or activity that receives  federal financial assistance.     The purpose of this policy guidance is to clarify the  responsibilities of recipients of federal financial assistance from the  U.S. Department of Justice (DOJ) (``recipients''), and assist them in  fulfilling their responsibilities to limited English proficient (LEP)  persons, pursuant to Title VI of the Civil Rights Act of 1964 and  implementing regulations. The policy guidance reiterates DOJ's  longstanding position that in order to avoid discrimination against LEP  persons on the ground of national origin, recipients must take  reasonable steps to ensure that such persons have meaningful access to  the programs, services, and information those recipients provide, free  of charge.     This document was originally published on January 16, 2001. See 66  FR 3834. The document was based on the policy guidance issued by the  Department of Justice entitled ``Enforcement of Title VI of the Civil  Rights Act of 1964--National Origin Discrimination Against Persons with  Limited English Proficiency.'' 65 FR 50123 (August 16, 2000).     On October 26, 2001 and January 11, 2002, the Assistant Attorney  General for the Civil Rights Division issued to federal departments and  agencies guidance memoranda, which reaffirmed the Department of  Justice's commitment to ensuring that federally assisted programs and  activities fulfill their LEP responsibilities and which clarified and  answered certain questions raised regarding the August 16th  publication. The Department of Justice is presently reviewing its  original January 16, 2001 publication in light of these clarifications  to determine whether there is a need to clarify or modify the January  16th guidance. In furtherance of those memoranda, the Department of  Justice is republishing its guidance for the purpose of obtaining  additional public comment.     The policy guidance includes appendices. Appendix A provides  examples of how this guidance would apply to DOJ recipients. Appendix B  provides further information on the legal bases for the guidance. It  also explains further who is covered by this guidance. The text of the  complete guidance document, including appendices, appears below.      Dated: January 15, 2002. Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights Division.  I. Introduction      For most people living in the United States, English is their  native language or they have learned to read, speak, and understand  English. There are others for whom English is not their primary  language. If they also have limited ability to read, speak, or  understand English, then these people are limited English proficient,  or ``LEP.'' For them, language can be a barrier to accessing benefits  or services, understanding and exercising important rights, or  understanding other information provided by federally funded programs  and activities.     This guidance (``Guidance'') is based on Title VI of the Civil  Rights Act of 1964 and regulations that implement Title VI. Title VI  was intended to eliminate barriers based on race, color, and national  origin in federally assisted programs or activities. In certain  circumstances, failing to ensure that LEP persons can effectively  participate in or benefit from federally assisted programs and  activities or imposing additional burdens on LEP persons is national  origin discrimination. Therefore, recipients must take reasonable steps  to ensure meaningful access for LEP persons.     In August, 2000, the President signed Executive Order 13166. Under  that order, every federal agency that provides financial assistance to  non-federal entities must create guidance on how their recipients can  provide meaningful access to LEP persons and therefore comply with the  longstanding Title VI law and its regulations. DOJ is issuing this  Guidance to comply with the Executive Order. The guidance document is  new, but Title VI's meaningful access requirement is not.     This Guidance should help recipients of Department of Justice (DOJ)  financial assistance understand how to comply with the law. Recipients  have a great  [[Page 2672]]  deal of flexibility in determining how to comply with the meaningful  access requirement, and are not required to use all of the suggested  methods and options listed. As always, recipients also have the freedom  to and are encouraged to go beyond mere compliance and create model  programs for LEP access.     Federal financial assistance includes grants, training, use of  equipment, donations of surplus property, and other assistance.  Recipients of DOJ assistance include, for example:      police and sheriffs' departments      departments of corrections      courts      certain nonprofit agencies with law enforcement missions     When federal funds are passed through from one recipient to a  subrecipient, the subrecipient is also covered by Title VI.     The LEP persons that are eligible to be served or encountered by  these recipients include, but are not limited to:     LEP persons who are in the custody of the recipient,  including juveniles, detainees, wards, and inmates.     LEP persons subject to or serviced by law enforcement  activities, including, for example, suspects, violators, witnesses,  victims, and community members.     LEP persons who are not in custody but are under  conditions of parole or probation.     LEP persons who encounter the court system.      Parents and family members of the above.     Title VI applies to the entire program or activity of a recipient  of DOJ assistance. That means that Title VI covers all parts of a  recipient's operations. This is true even if only one part of the  agency uses the federal assistance.      Example: DOJ provides assistance to a state department of  corrections to improve a particular prison facility. All of the  operations of the entire state department of corrections--not just  the particular prison--are covered by Title VI.  Technical Assistance      DOJ plans to continue to provide assistance and guidance in this  important area. For example, DOJ plans to work with representatives of  law enforcement, corrections, courts, and LEP persons to identify model  plans and examples of best practices and share those with recipients.  DOJ Programs and Activities      At the same time as federal agencies are creating recipient  guidance, Executive Order 13166 requires that they create LEP plans for  their own agencies that are consistent with the standards for  recipients. Therefore, DOJ will apply the standards in this guidance to  its own activities.\1\ ---------------------------------------------------------------------------      \1\ DOJ has created, pursuant to the Executive Order, a separate  plan for providing meaningful access to LEP persons in DOJ conducted  activities. ---------------------------------------------------------------------------  Appendices      There are two appendices to this guidance. Appendix A provides  examples of how this guidance would apply to DOJ recipients.     Appendix B provides further information on the legal bases for the  guidance. It also explains further who is covered by this guidance.     Both of these appendices should be considered part of this  guidance.  State or Local ``English-Only'' Laws      State or local ``English-only'' laws do not change the fact that  recipients cannot discriminate in violation of Title VI. Entities in  states and localities with ``English-only'' laws do not have to accept  federal funding. However, if they do, they still have to comply with  Title VI, including its prohibition against national origin  discrimination by recipients.  II. How Recipients Should Decide What Language Services They Should  Provide      As mentioned in Executive Order 13166 and the DOJ Guidance issued  in August, 2000, recipients should apply a four-factor test to decide  what steps to take to provide meaningful access to their programs and  activities for LEP persons. Once the recipient has chosen the services  it will provide, the recipient should prepare a written policy on  language assistance for LEP persons (an ``LEP policy'').  A. The Four-Factor Analysis      Recipients must take reasonable steps to ensure meaningful access  to their services, programs, and activities. What ``reasonable steps to  ensure meaningful access'' means depends on a number of factors. DOJ  recipients should apply the following four factors to the various kinds  of contacts that they have with the public to decide what reasonable  steps they should take to ensure meaningful access for LEP persons. The  results of this balancing test allow a recipient to decide what  documents to translate, when oral translation is necessary, and whether  language services must be made immediately available.     After applying the four-factor analysis, a recipient may conclude  that different language assistance measures are needed for its  different types of programs or activities. For instance, some of a  recipient's activities will be more important than others and/or have  greater impact on or contact with LEP persons, and thus require more in  the way of language assistance. (1) The Number or Proportion of LEP Persons Served or Encountered in  the Eligible Service Population     One factor in determining what language services recipients should  provide is the number or proportion of LEP persons eligible to be  served or encountered by the recipient in carrying out its operations.  Recipients should look to available data, such as the latest census  data for the area served, data from school systems and from community  organizations, and data collected by the recipient.\2\ The greater the  number or proportion of LEP persons, the more likely language services  are needed. ---------------------------------------------------------------------------      \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.  [[Page 2673]]  (3) The Nature and Importance of the Program, Activity, or Service  Provided By the Program     The more important the activity, information, service, or program,  or the greater the possible consequences of the contact to the LEP  individuals, the more likely language services are needed. For example,  the obligations to communicate rights to a person who is arrested or to  provide medical services to an ill or injured inmate differ from those  to provide bicycle safety courses or recreational programming. A  recipient needs to determine if a denial or delay of access to services  or information could have serious implications for the LEP individual.  In addition, a decision by a federal, state, or local entity to make an  activity compulsory, such as particular educational programs in a  correctional facility or the communication of Miranda rights, serves as  strong evidence of the program's importance. (4) The Resources Available to the Recipient     A recipient's level of resources may have an impact on the nature  of the steps it should take. Smaller recipients with more limited  budgets are not expected to provide the same level of language services  as larger recipients with larger budgets. Resource issues can sometimes  be minimized by technological advances and sharing of resources and  translations. Large entities should ensure that their resource  limitations are well-substantiated before using this factor as a reason  to limit language assistance.     Applying the four factors, for example, a small police department  with limited resources encountering very few LEP people has far fewer  language assistance responsibilities than larger departments with more  resources and large populations of LEP individuals.\3\ ---------------------------------------------------------------------------      \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 following information. (1) Oral Language Services     Where oral interpretation is needed, recipients should develop  procedures for providing competent interpreters in a timely manner. To  do so, the recipient should consider some or all of the following  options:     Hiring Bilingual Staff for public contact positions. When  particular languages are encountered often, hiring bilingual staff  offers one of the best options. Recipients can, for example, fill  public contact positions with staff who are bilingual and competent to  communicate directly with LEP persons in their language. If bilingual  staff are also used to interpret between English speakers and LEP  persons, or to orally translate documents, they must be competent in  the skill of interpreting. When bilingual staff cannot meet all of the  language service obligations of the recipient, the recipient should  turn to other options.     Hiring Staff Interpreters. Hiring interpreters may be most helpful  where there is a frequent need for interpreting services in one or more  languages.     Contracting for Interpreters. Contract interpreters may be a cost- effective option when there is no regular need for a particular  language skill.     Using Community Volunteers. Recipient-coordinated use of community  volunteers may provide a cost-effective way to provide language  services. It is often best to use community volunteers who are trained  in the information or services of the program and can communicate  directly with LEP persons in their language. Community volunteers used  to interpret between English speakers and LEP persons, or to orally  translate documents, must be competent in the skill of interpreting. It  is best to make formal arrangements with volunteers. That way, the  service is available more regularly and volunteers understand  applicable confidentiality and impartiality rules.     Using Telephone Interpreter Lines. Telephone interpreter service  lines often offer speedy interpreting assistance in many different  languages. Although they are useful in many situations, it is important  to ensure that such services have interpreters who are able to  interpret any legal terms or terms that are specific to a particular  program when such terms may come up in the conversation. Also,  sometimes it may be necessary to provide on-site interpreters to  provide accurate and meaningful communication with an LEP person.     Competence of Interpreters. When providing oral assistance,  recipients should ensure competency of the language service provider,  no matter which of the above options they use. Competency requires more  than self-identification as bilingual. Some bilingual staff and  community volunteers, for instance, may be able to communicate  effectively in a different language when communicating information  directly in that language, but not be competent to interpret in and out  of English.     Competency to interpret does not always mean formal certification  as an interpreter. However, certification is helpful. When using  interpreters, recipients should ensure that they:      demonstrate proficiency in both English and in the other  language;      are bound to confidentiality and impartiality to the same  extent the recipient employee they are interpreting for is so bound  and/or to the extent their position requires;      have knowledge in both languages of any specialized terms  or concepts peculiar to the entity's program or activity; and      demonstrate the ability to convey information in both  languages, accurately;     Some recipients, such as courts, may have additional self-imposed  requirements for interpreters.     Inappropriate Use of Family Members, Friends, Other Inmates, or  Detainees. As a general rule, when language services are required,  recipients should provide competent interpreter services free of cost  to the LEP person. LEP persons should be advised that they may choose  either to secure the assistance of an interpreter of their own  choosing, at their own expense, or a competent interpreter provided by  the recipient.\4\ If the LEP  [[Page 2674]]  person decides to provide his or her own interpreter, the provision of  this notice and the LEP person's election should be documented in any  written record generated with respect to the LEP person. In emergency  situations that are not reasonably foreseeable, use of interpreters not  provided by the recipient may be necessary. Proper recipient planning  and implementation can help avoid such situations. ---------------------------------------------------------------------------      \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 example:      consent and complaint forms      intake forms with the potential for important consequences      written notices of rights, denial, loss, or decreases in  benefits or services, parole, and other hearings      notices of disciplinary action      notices advising LEP persons of free language assistance      prison rule books      written tests that do not assess English language  competency, but test competency for a particular license, job, or skill  for which knowing English is not required      applications to participate in a recipient's program or  activity or to receive recipient benefits or services.     Whether or not a document is ``vital'' also depends upon the  importance of the program, information, encounter, or service involved.  For instance, applications for bicycle safety courses would not  generally be considered vital, whereas applications for drug and  alcohol counseling in prison would generally be considered vital.     Many large documents have both vital and non-vital information in  them. Written translation of only the vital information is usually  sufficient.     It sometimes may be hard to tell the difference between vital and  non-vital documents. This may be especially true for outreach materials  like brochures or other information on rights and services. In order to  have meaningful access, LEP persons need to be aware of those rights  and services. Of course, it would be impossible to translate every  piece of outreach material into every language. However, sometimes lack  of awareness that a particular program, right, or service exists may  effectively deny LEP individuals meaningful access. Thus, recipients  should regularly assess the needs of the populations frequently  encountered or affected by the program or activity to determine whether  certain critical outreach materials should be translated. Community  organizations may be helpful in determining what outreach materials may  be most helpful to translate.     Recent technological advances have made it easier for recipients to  store and share translated documents. At the same time, DOJ recognizes  that recipients in a number of areas, such as many large cities,  regularly serve LEP persons from many different areas of the world who  speak dozens and sometimes over 100 different languages. It would be  too burdensome to demand that recipients in these circumstances  translate all written materials into all of those languages.  Nevertheless, well-substantiated claims of lack of resources to  translate all vital documents into dozens of languages do not  necessarily relieve the recipient of the obligation to translate those  documents into at least several of the most frequently encountered  languages, and to set benchmarks for continued translations over time.  As a result, the extent of the recipient's obligation to provide  written translations of documents will be determined on a case-by-case  basis, looking at the totality of the circumstances.     One way for a recipient to know with greater certainty that it will  be found in compliance with its obligation to provide written  translations in languages other than English is for the DOJ recipient  to meet the guidelines outlined in paragraphs (a) and (b) below.     Paragraphs (a) and (b) outline the circumstances that provide a  ``safe harbor'' for recipients regarding the requirements for  translation of written materials. A ``safe harbor'' means that if a  recipient provides written translations under these circumstances, this  will be considered strong evidence of compliance, in the area of  written translations.     The failure to provide written translations under the circumstances  outlined in paragraphs (a) and (b) will not necessarily mean non- compliance with Title VI. In such circumstances, DOJ reviews the  totality of the circumstances to determine the recipient's obligation  to provide written materials in languages other than English.      Example: Even if the safe harbors are not used, if written  translation of a certain document(s) would be so burdensome as to  defeat the legitimate objectives of its program, DOJ will not find  the translation of written materials necessary for compliance with  Title VI. Other ways of providing meaningful access, such as  effective oral interpretation of vital documents, would be  acceptable under such circumstances.      Safe Harbor. DOJ will consider a recipient to be in compliance with  its Title VI obligation to provide written materials in non-English  languages if:     (a) The DOJ recipient provides written translations of, at a  minimum, vital documents for each eligible LEP language group that  constitutes five percent or 1,000, whichever is less, of the population  of persons eligible to be served or likely to be affected or  encountered. Translation of other vital documents, if needed, can be  provided orally; or     (b) If there are fewer than 50 persons in a language group that  reaches the five percent trigger in (a), the recipient does not  translate vital written materials but provides written notice in the  primary language of the LEP language group of the right to receive  competent oral translation of those written materials, free of cost.     These safe harbor provisions apply to the translation of written  documents only. They do not affect the requirement to provide  meaningful access to LEP individuals through competent oral  interpreters where oral language services are needed. For example,  correctional facilities should ensure that prison rules have been  explained to LEP inmates, at orientation, for instance, prior to taking  disciplinary action against them.     The term ``persons eligible to be served or likely to be affected  or encountered'' as used in paragraph (a) relates to the issue of  identifying the DOJ recipient's service area for purposes of meeting  its Title VI obligation. Because of the wide variety of recipient  programs and activities, there is no ``one size fits all'' definition  of what constitutes ``persons eligible to be served or likely to be  affected or encountered.'' Generally, the term means those persons who  are in the geographic area that has been approved by a federal grant  agency as the service area and who are either eligible for the  recipient's services or otherwise might be affected or encountered by  the recipient.     Where no service area has been approved, DOJ will consider the  relevant service area as that approved by  [[Page 2675]]  state or local authorities or designated by the recipient itself,  provided that these designations do not themselves discriminatorily  exclude certain populations. Appendix A provides examples of  determining the relevant service area. When considering the number or  proportion of LEP individuals in a service area, recipients need to  consider LEP parent(s) when their English-proficient or LEP minor  children and dependents encounter the legal system.     Just as with oral interpreters, translators of written documents  must be competent. It is a good idea to build in a ``check'' on the  translation. For instance, an independent translator could check the  first translation. Or, one translator could translate the document, and  a second, independent translator could translate it back into English.  This is called ``back translation.''     Translators should understand the expected reading level of the  audience. Sometimes direct translation of materials results in a  translation that is written at a much more difficult level than the  English language version. Community organizations may be able to help  consider whether a document is written at a good level for the  audience.     Finally, recipients will find it more effective and less costly if  they try to maintain consistency in the words and phrases used to  translate terms of art, legal, or other technical concepts. Creating or  using already-created glossaries of commonly-used terms may be useful  for LEP persons and translators, and cost effective for the recipient.  Providing translators with examples of previous translations of similar  material by the recipient, other recipients, or federal agencies may be  helpful.  C. Elements of Effective Written Policy on Language Assistance for LEP  Persons (``LEP Policy'')      After completing the four-factor analysis and deciding what  language assistance services are needed, the recipient should include  those in a written LEP policy. The key to providing meaningful access  is accurate and effective communication between the DOJ recipient and  the LEP individual.     Although DOJ recipients have a great deal of flexibility in  designing their policies, effective programs usually have five  elements, discussed below. Failure to take all of the steps outlined in  this section does not necessarily mean that a recipient has violated  the law. Just as with all Title VI complaints, DOJ assesses each  complaint on a case-by-case basis. DOJ applies the four factors in  deciding whether the steps taken by a recipient provide meaningful  access. (1) Identifying LEP Individuals Who Need Language Assistance     As noted above, the first two parts of the four-factor analysis of  need include an assessment of the number or proportion of LEP  individuals eligible to be served or encountered and the frequency of  encounters. In addition, when developing a plan, recipients should  develop a process for employees to identify the language of LEP persons  encountered so that language services can be provided.     One way to determine the language of communication is to use  language identification cards (or ``I speak cards''), which invite LEP  persons to identify their language needs to staff. Such cards, for  instance, might say ``I speak Spanish'' in both Spanish and English,  ``I speak Vietnamese'' in both English and Vietnamese, etc. When  records are normally kept of past interactions with members of the  public, the language of the LEP person should be included as part of  the record. In addition to helping employees identify the language of  LEP persons they encounter, this process will help in future  application of the first two factors of the four-factor analysis. (2) Language Assistance Measures     The LEP policy should include information about the ways in which  language assistance will be provided. For instance, it should include  information on at least the following:      Types of language services available (see Section IIB,  above).      How staff can obtain those services.      How to respond to LEP callers.      How to respond to written communications from LEP persons.      How to respond to LEP individuals who have in-person  contact with recipient staff.      How to ensure competency of interpreters and translation  services. (3) Training Staff     Staff need to know that they must provide meaningful access to  information and services for LEP persons. Recipients should provide  training to ensure that:      Staff know about LEP policies and procedures.      Staff having contact with the public (or those in a  recipient's custody) are trained to work effectively with in-person and  telephone interpreters.     It is important that this training be part of the orientation for  new employees and that all employees in public contact positions (or  having contact with those in a recipient's custody) be properly  trained. Recipients have flexibility in deciding the way the training  is provided. The more frequent the contact with LEP persons, the  greater the need will be for in-depth training. Staff with little or no  contact with LEP persons may only have to be aware of an LEP policy. (4) Providing Notice to LEP Persons     Once an agency has decided, based on the four factors, that it will  provide language services, it is important to let LEP persons know that  those services are available and that they are free of charge.  Recipients should provide this notice in a language LEP persons will  understand. Examples of notification that recipients should consider  include:      Posting signs in intake areas and other entry points. When  language assistance is needed to ensure meaningful access to  information and services, the signs could state that LEP persons have a  right to free language assistance. The signs should be translated into  the most common languages encountered. They should explain how to get  the language help.      Stating in outreach documents that language services are  available from the agency. Announcements could be in, for instance,  brochures, booklets, and in outreach and recruitment information. These  statements should be translated into the most common languages and  could be ``tagged'' onto the front of common documents.      Working with community-based organizations and other  stakeholders to inform LEP individuals of the recipients' services,  including the right to language services.      Using a telephone voice mail menu. The menu could be in  the most common languages encountered. It should provide information  about available language assistance services and how to get them.      Including notices in local newspapers in languages other  than English.      Providing notices on non-English-language radio stations  about the available language assistance services and how to get them. (5) Monitoring and Updating the LEP policy     Recipients should always consider whether new documents, programs,  services, and activities need to be made accessible for LEP  individuals, and they should make any needed changes. They should then  provide notice of any changes in services to the LEP public and to  employees. In addition, DOJ  [[Page 2676]]  recipients should evaluate their entire language policy at least every  three years. One way to evaluate the LEP policy is to seek feedback  from the community.     In their reviews, recipients should assess changes in:      Current LEP populations in service area or population  affected or encountered.      Frequency of encounters with LEP language groups.      Nature and importance of activities to LEP persons.      Availability of resources, including technological  advances and sources of additional resources.      Whether existing assistance is meeting the needs of LEP  persons.      Whether staff knows and understands the LEP policy and how  to implement it.      Whether identified sources for assistance are still  available and viable.  III. Application to Specific Types of Recipients      Appendix A of this Guidance provides examples of how the Title VI  meaningful access requirement applies to law enforcement, corrections,  courts, and other recipients of DOJ assistance.  A. State and Local Law Enforcement      Appendix A further explains how law enforcement recipients can  apply the four factors to a range of encounters with the public. The  responsibility for providing language services differs with different  types of encounters.     Appendix A helps recipients identify the population they should  consider when deciding the types of services to provide. It then  provides guidance and examples of applying the four factors. For  instance, it gives examples on how to apply this guidance to:      Receiving and responding to requests for help      Enforcement stops short of arrest and field investigations      Custodial interrogations      Intake/detention      Community outreach  B. Departments of Corrections      Appendix A also helps departments of corrections understand how to  apply the four factors. For instance, it gives examples of LEP access  in:      Intake      Disciplinary action      Health and safety      Participation in classes or other programs affecting  length of sentence      English as a Second Language (ESL) Classes      Community corrections programs  C. Other Types of Recipients      Appendix A also applies the four factors and gives examples for  other types of recipients. Those include, for example:      Courts      Juvenile Justice Programs      Domestic Violence Prevention/Treatment Programs  Title VI Compliance Procedures      DOJ recipients have a great deal of flexibility in deciding how to  comply with these obligations. DOJ will continue to use the same  process for handling complaints based on LEP as it uses in any other  Title VI complaint. That process emphasizes voluntary compliance. (See  Appendix B for further information). In addition, DOJ will use this  Guidance, including the appendices, in conducting investigations or  reviews of a recipient's language services.  Appendix A--Application of LEP Guidance for DOJ Recipients to  Specific Types of Recipients      While a wide range of entities receive federal financial assistance  through DOJ, most of DOJ's assistance goes to law enforcement agencies,  including state and local police and sheriffs' departments, and to  state departments of corrections. Sections A and B below provide  examples of how these two major types of DOJ recipients might apply the  four-factor analysis. Section C provides examples for other types of  recipients. The examples in this Appendix are not meant to be  exhaustive.     The requirements of Title VI and its implementing regulations, as  clarified by this Guidance, supplement, but do not supplant,  constitutional and other statutory or regulatory provisions that may  require LEP services. For instance, while application of the four- factor analysis may lead to a similar result, it does not replace  constitutional or other statutory protections mandating warnings and  notices in languages other than English in the criminal justice  context. Rather, this Guidance clarifies the Title VI obligation to  address, in appropriate circumstances and in a reasonable manner, the  language assistance needs of LEP individuals beyond those required by  the Constitution or statutes and regulations other than Title VI.  A. State and Local Law Enforcement      For the vast majority of the public, exposure to law enforcement  begins and ends with interactions with law enforcement personnel  discharging their duties while on patrol, responding to a request for  services, talking to witnesses, or conducting community outreach  activities. For a much smaller number, that exposure includes a visit  to a station house. And for an important but even smaller number, that  visit to the station house results in entry into the criminal justice,  judicial, or juvenile justice systems.     The common thread running through these and other interactions  between the public and law enforcement is the exchange of information.  LEP individuals' encounters with police and sheriffs' departments are  covered by Title VI if those departments receive federal financial  assistance. This Guidance focuses on the requirements under Title VI to  communicate effectively with persons who are LEP to ensure that they  have meaningful access to the system, including, for example,  understanding rights and accessing police assistance.     Many police and sheriffs' departments already provide language  services in a wide variety of circumstances to obtain information  effectively, to build trust and relationships with the community, and  to contribute to the safety of law enforcement personnel. For example,  many police departments have available printed Miranda rights in  languages other than English.\1\ In areas where significant LEP  populations reside, law enforcement officials already may have forms  and notices in languages other than English or they may employ  bilingual law enforcement officers, intake personnel, counselors, and  support staff. These experiences can form a strong basis for assessing  need and implementing a plan in compliance with Title VI and its  implementing regulations. ---------------------------------------------------------------------------      \1\ DOJ's own Federal Bureau of Investigation makes written  versions of those rights available in several different languages. ---------------------------------------------------------------------------  1. General Principles      The touchstone of the four-factor analysis is reasonableness based  upon the specific purposes, needs, and capabilities of the law  enforcement service under review and an appreciation of the nature and  particularized needs of the LEP population served. Accordingly, the  analysis cannot provide a single uniform answer on how service to LEP  persons must be provided in all programs or activities in all  situations. Knowledge of local conditions and community needs becomes  critical in determining the type and level of language services needed.  The more predictable the need for language  [[Page 2677]]  services, the greater the responsibility under the four-factor  analysis.     Before giving specific examples, several general points should  assist law enforcement planners in correctly applying the analysis to  the wide range of services employed in their particular jurisdictions.     a. Permanent Versus Seasonal Populations. In many communities,  resident populations change over time or season. For example, in some  resort communities, populations swell during peak vacation periods,  many times exceeding the number of permanent residents of the  jurisdiction. In other communities, primarily agricultural areas,  transient populations of agricultural workers will require increased  law enforcement services during the relevant harvest season. This  dynamic demographic ebb and flow can also dramatically change the size  and nature of the LEP community likely to come into contact with law  enforcement personnel. Thus, law enforcement officials should not limit  their analysis to numbers and percentages of permanent residents. In  assessing factor one--the number or proportion of LEP individuals-- police departments should consider any significant but temporary  changes in a jurisdiction's demographics.      Example: A rural jurisdiction has a permanent population of  30,000, 7% of which is Hispanic. Based on census data and an  information from the contiguous school district, of that number,  only 15% are estimated to be LEP individuals. Thus, the total  estimated permanent LEP population is 315 or approximately 1% of the  total permanent population. Under the four-factor analysis, a  sheriffs' department could reasonably conclude that the small number  of LEP persons makes the affirmative translation of documents and/or  employment of bilingual staff unnecessary. However, during the  spring and summer planting and harvest seasons, the local population  swells to 40,000 due to the influx of seasonal agricultural workers.  Of this transitional number, about 75% are Hispanic and about 50% of  that number are LEP individuals. This information comes from the  schools and a local migrant worker community group. Thus, during the  harvest season, the jurisdiction's LEP population increases to over  10% of all residents. In this case, the department should consider,  under the safe harbor provisions of this Guidance, translating vital  written documents into Spanish. In addition, the predictability of  contact during those seasons makes it important for the jurisdiction  to review its oral language services to ensure meaningful access for  LEP individuals.      b. Target Audiences. For most law enforcement services, the target  audience is defined in geographic rather than programmatic terms.  However, some services may be targeted to reach a particular audience  (e.g., elementary school children, elderly, residents of high crime  areas, minority communities, small business owners/operators, etc.).  Also, within the larger geographic area covered by a police department,  certain precincts or portions of precincts may have concentrations of  LEP persons. In these cases, even if the overall number or proportion  of LEP individuals in the district is low, the frequency of contact may  be foreseeably higher for certain areas or programs. Thus, the second  factor--frequency of contact--should be considered in light of the  specific program or the geographic area being served. The police  department could then focus language services where they are most  likely to be needed.      Example: A police department that receives funds from the DOJ  Office of Justice Programs initiates a program to increase awareness  and understanding of police services among elementary school age  children in high crime areas of the jurisdiction. This program  involves ``Officer in the Classroom'' presentations at elementary  schools located in areas of high poverty. The population of the  jurisdiction is estimated to include only 3% LEP individuals.  However, the LEP population at the target schools is 35%, the vast  majority of whom are Vietnamese speakers. In applying the four- factor analysis, the higher LEP language group populations of the  target schools and the frequency of contact within the program with  LEP students in those schools, not the LEP population generally,  should be used in determining the nature of the LEP needs of that  particular program. Further, because the Vietnamese LEP population  is concentrated in one or two main areas of town, the police  department should expect the frequency of contact with Vietnamese  LEP individuals in general to be quite high in those areas, and it  should plan accordingly.      c. Importance of Service/Information. Given the critical role law  enforcement plays in maintaining quality of life and property,  traditional law enforcement and protective services rank high on the  critical/non-critical continuum. However, this does not mean that  information about, or provided by, each of the myriad services and  activities performed by law enforcement officials must be equally  available in languages other than English. While clearly important to  the ultimate success of law enforcement, certain community outreach  activities do not have the same direct impact on the provision of core  law enforcement services as the activities of 911 lines or law  enforcement officials' ability to respond to requests for assistance  while on patrol, to communicate basic information to suspects, etc.  Nevertheless, with the rising importance of community partnerships and  community-based programming as a law enforcement technique, the need  for language services should be considered in such activities as well.     d. Interpreters. Just as with other recipients, law enforcement  recipients have a variety of options for providing language services.  As a general rule, when language services are required, recipients  should provide competent interpreter services free of cost to the LEP  person. LEP persons should be advised that they may choose either to  secure the assistance of an interpreter of their own choosing, at their  own expense, or a competent interpreter provided by the recipient.     If the LEP person decides to provide his or her own interpreter,  the provision of this notice and the LEP person's election should be  documented in any written record generated with respect to the LEP  person. While an LEP person may sometimes look to bilingual family  members or friends or other persons with whom they are comfortable for  language assistance, there are many situations where an LEP person  might want to rely upon recipient-supplied interpretative services. For  example, such individuals may not be available when and where they are  needed, or may not have the ability to translate program-specific  technical information. Alternatively, an individual may feel  uncomfortable revealing or describing sensitive, confidential, or  potentially embarrassing medical, law enforcement (e.g., sexual or  violent assaults), family, or financial information to a family member,  friend, or member of the local community. Similarly, there may be  situations where a recipient's own interests justify the provision of  an interpreter regardless of whether the LEP individual also provides  his or her own interpreter. For example, where precise, complete and  accurate translations of information and/or testimony are critical for  law enforcement, adjudicatory or legal reasons, a recipient might  decide to provide its own, independent interpreter, even if an LEP  person wants to use their own interpreter as well.     In emergency situations that are not reasonably foreseeable, the  recipient may have to temporarily rely on non-recipient-provided  language services. Proper recipient planning and implementation can  help avoid such situations.     While all language services need to be competent, the greater the  potential consequences, the greater the need to monitor interpretation  services for quality. For instance, it is important that interpreters  in custodial interrogations  [[Page 2678]]  be highly competent to translate legal and other law enforcement  concepts, as well as be extremely accurate in their interpretation. It  may be sufficient, however, for a desk clerk who is bilingual but not  skilled at interpreting to help an LEP person figure out to whom he or  she needs to talk about setting up a neighborhood watch. 2. Applying the Four-Factor Analysis Along the Law Enforcement  Continuum     While all police activities are important, the Title VI analysis  requires some prioritizing so that language services are targeted where  most needed because of the nature and importance of the particular law  enforcement activity involved. In addition, because of the  ``reasonableness'' standard, and frequency of contact and resources  factors, the obligation to provide language services increases where  the importance of the activity is greater, the law enforcement activity  is more focused, and/or the provision of language services is more  ``within the control'' of the police department.     Under this framework, then, critical areas for language assistance  include: 911 calls, custodial interrogation, and health and safety  issues for persons within the control of the police. These activities  should be considered the most important under the four-factor analysis.  Systems for receiving and investigating complaints from the public are  important; further, complaint forms and investigations/hearings are  directly within the control of the department. Thus, forms, hearings,  and other complaint procedures should be made accessible to LEP  individuals. Often very important, but less focused and controlled are:  routine patrol activities, receiving non-emergency information  regarding potential crimes, and ticketing. In these situations, the LEP  plan should provide for a great deal of flexibility while at the same  time ensuring that, wherever reasonable, language resources are  available to officers and the LEP persons they encounter and that, when  not available, the consequences to the LEP individuals are minimized.  Community outreach activities are hard to categorize, but generally  they do not rise to the same level of importance as the other  activities listed. However, with the importance of community  partnerships and community-based programming as a law enforcement  technique, the need for language services should be considered in these  activities as well. Police departments have a great deal of flexibility  in determining how to best address their outreach to LEP populations.     a. Receiving and Responding to Requests for Assistance. LEP persons  must have meaningful access to police services when they are victims of  or witnesses to alleged criminal activity. Effective reporting systems  transform victims, witnesses, or bystanders into assistants in law  enforcement and investigation processes. Given the critical role the  public plays in reporting crimes or directing limited law enforcement  resources to time-sensitive emergency or public safety situations,  efforts to address the language assistance needs of LEP individuals  could have a significant impact on improving responsiveness,  effectiveness, and safety.     All emergency service lines, or ``911'' lines, operated by agencies  that receive federal financial assistance must be accessible to persons  who are LEP. This will mean different things to different  jurisdictions. For instance, in large cities with significant LEP  communities, the 911 line may have operators who are bilingual and  capable of accurately interpreting in high stress situations. Smaller  cities or areas with small LEP populations should still have to have a  plan for serving callers who are LEP, but the LEP policy and  implementation may involve a telephonic language line that is fast  enough and reliable enough to attend to the emergency situation, or  include some other accommodation short of hiring bilingual operators.      Example: A large city provides bilingual operators for the most  frequently encountered languages, and uses a commercial telephone  language line when it receives calls from LEP persons who speak  other languages. Ten percent of the city's population is LEP, and  sixty percent of the LEP population speaks Spanish. In addition to  911 service, the city has a 311 line for non-emergency police  services. The 311 Center has Spanish speaking operators available,  and uses a language bank, staffed by the city's bilingual city  employees who are competent translators, for other non-English- speaking callers. The city also has a campaign to educate non- English speakers when to use 311 instead of 911. Such services are  consistent with Title VI principles.      b. Enforcement Stops Short of Arrest and Field Investigations.  Field enforcement includes, for example, traffic stops, pedestrian  stops, serving warrants and restraining orders, Terry stops, and crowd/ traffic control. Because of the diffuse nature of these activities, the  reasonableness standard allows for great flexibility in providing  meaningful access, for example, in routine field investigations and  traffic stops. Nevertheless, the ability of law enforcement personnel  to discharge fully and effectively its enforcement and crime  interdiction mission requires the ability to communicate instructions,  commands, and notices. For example, a routine traffic stop can become a  difficult situation if an officer is unable to communicate effectively  the reason for the stop, the need for identifying or other information,  and the meaning of any written citation. Requests for consent to search  are meaningless if the request is not understood. Similarly, crowd  control commands will be wholly ineffective where significant numbers  of people in a crowd cannot understand the meaning of law enforcement  commands.     Given the wide range of possible situations in which law  enforcement in the field can take place, it is impossible to equip  every officer with the tools necessary to respond to every possible LEP  scenario. Rather, in applying the four factors to field enforcement,  the goal should be to implement measures addressing the language needs  of significant LEP populations in the most likely and common  situations.      Example: A police department serves a jurisdiction with a  significant number of LEP individuals residing in one or more  precincts, and it is routinely asked to provide crowd control  services at community events or demonstrations in those precincts.  Consistent with the requirements of the four-factor analysis, the  police department should assess how it will discharge its crowd  control duties in a language-appropriate manner. Among the possible  approaches are plans to assign bilingual officers, basic language  training of all officers in common law enforcement commands, the use  of devices that provide audio commands in the predictable languages,  or the distribution of translated written materials for use by  officers.      Field investigations include neighborhood canvassing, witness  identification and interviewing, investigative or Terry stops, and  similar activities designed to solicit and obtain information from the  community. Encounters with LEP individuals will often be less  predictable in field investigations. However, the jurisdiction should  still assess the potential for contact with LEP individuals in the  course of field investigations and investigative stops, identify the  LEP language group(s) most likely to be encountered, and provide their  officers with sufficient written or oral translation resources to  ensure that lack of English proficiency does not impede otherwise  proper investigations or unduly burden LEP individuals.      Example: A police department in a moderately large city includes  a precinct that serves an area which includes significant LEP  populations whose native languages are Spanish, Korean, and Tagalog.  Law  [[Page 2679]]  enforcement officials could reasonably consider the adoption of a  policy assigning bilingual investigative officers to the precinct  and/or creating a resource list of department employees competent to  interpret and ready to assist officers by phone or radio. This could  be combined with developing language-appropriate written materials,  such as consents to searches or statements of rights, for use by its  officers where LEP individuals are literate in their languages. In  certain circumstances, it may also be helpful to have telephone  language line access where other options are not successful and  safety and availability of phone access permit.      c. Custodial Interrogations. Custodial interrogations of  unrepresented LEP individuals trigger constitutional rights that this  Guidance is not designed to address. Given the importance of being able  to communicate effectively under such circumstances, recipients'  ability to anticipate and plan for a need for language services, and  the control over LEP and other individuals asserted by recipients in  custodial interrogation situations, law enforcement recipients must  ensure competent and free language services for LEP individuals in such  situations. A clear written policy, understood and easily accessible by  all officers, will assist the law enforcement agency in complying with  this obligation. In formulating a written policy for effectively  communicating with LEP individuals, agencies should consider whether  law enforcement personnel themselves ought to serve as interpreters  during custodial interrogation, or whether a qualified independent  interpreter would be more appropriate.\2\ ---------------------------------------------------------------------------      \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.      d. Intake/Detention. State or local law enforcement agencies that  arrest LEP persons should consider the inherent communication  impediments to gathering information from the LEP arrestee through an  intake or booking process. Aside from the basic information, such as  the LEP arrestee's name and address, law enforcement agencies should  evaluate their ability to communicate with the LEP arrestee about his  or her medical condition. Because medical screening questions are  commonly used to elicit information on the arrestee's medical needs,  suicidal inclinations, presence of contagious diseases, potential  illness, resulting symptoms upon withdrawal from certain medications,  or the need to segregate the arrestee from other prisoners, it is  essential that law enforcement agencies have the ability to communicate  effectively with an LEP arrestee. In jurisdictions with few bilingual  officers or in situations where the LEP person speaks a language not  encountered very frequently, language lines may provide the most cost  effective and efficient method of communication.     e. Community Outreach. Community outreach activities increasingly  are recognized as important to the ultimate success of more traditional  duties. Thus, an application of the four-factor LEP analysis to  community outreach activities can play an important role in ensuring  that the purpose of these activities (to improve police/community  relations and advance law enforcement objectives) is not thwarted due  to the failure to address the language needs of LEP persons.      Example: A police department initiates a program of domestic  counseling in an effort to reduce the number or intensity of  domestic violence interactions. A review of domestic violence  records in the city reveals that 25% of all domestic violence  responses are to minority areas and 30% of those responses involve  interactions with one or more LEP persons, most of whom speak the  same language. The department should take reasonable steps to make  the counseling accessible to LEP individuals. In this case, the  department successfully sought bilingual counselors (for whom they  provided training in translation) for some of the counseling  positions. In addition, the department has an agreement with a local  university in which bilingual social work majors who are competent  in interpreting, as well as language majors who are trained by the  department in basic domestic violence sensitivity and counseling,  are used as interpreters when the in-house bilingual staff cannot  cover the need. Interpreters must sign a confidentiality agreement  with the department. This would be consistent with Title VI  responsibilities.     Example: A large city has initiated an outreach program designed  to address a problem of robberies of Vietnamese homes by Vietnamese  gangs. One strategy is to work with community groups and banks and  others to help allay traditional fears in the community of putting  money and other valuables in banks. Because a large portion of the  target audience is Vietnamese speaking and LEP, the department  contracts with a bilingual community liaison competent in the skill  of translating to help with outreach activities. This would be  consistent with Title VI responsibilities.  B. Departments of Corrections      All departments of corrections that receive federal financial  assistance from DOJ must provide LEP prisoners \3\ with meaningful  access to benefits and services within the program. In order to do so,  corrections departments, like other recipients, must apply the four- factor analysis. ---------------------------------------------------------------------------      \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  [[Page 2680]]  entity with which it contracted to provide the services itself. 2. Applying the Four Factors Along the Corrections Continuum     As with law enforcement activities, critical and predictable  contact with LEP individuals poses the greatest obligation for language  services. Corrections facilities have somewhat greater abilities to  assess the language needs of those they encounter, although inmate  populations may change rapidly in some areas. Contact affecting health  and safety, length of stay, and discipline present the most critical  situations under the four-factor analysis.     a. Assessment. In order to create a plan for providing language  services, each department of corrections that receives federal  financial assistance should assess the number of LEP prisoners who are  in the system, in which prisons they are located, and the languages he  or she speaks. Each prisoner's LEP status, and the language he or she  speaks, should be placed in his or her file. Although this Guidance and  Title VI are not meant to address literacy levels, agencies should be  aware of literacy problems so that LEP services are provided in a way  that is meaningful and useful (e.g., translated written materials are  of little use to a nonliterate inmate). After the initial assessment,  new LEP prisoners should be identified at intake or orientation, and  the data should be updated accordingly.     b. Intake/Orientation. Intake/Orientation plays a critical role not  merely in the system's identification of LEP prisoners, but in  providing those prisoners with fundamental information about their  obligations to comply with system regulations, participate in education  and training, receive appropriate medical treatment, and enjoy  recreation. Even if only one prisoner doesn't understand English, that  prisoner should be given the opportunity to be informed of the rules,  obligations, and opportunities in a manner designed effectively to  communicate these matters. An appropriate analogy is the obligation to  communicate effectively with deaf prisoners, which is most frequently  accomplished through sign language interpreters or written materials.  Not every prison will use the same method for providing language  assistance. Prisons with large numbers of Spanish-speaking LEP  prisoners, for example, will likely need to translate written rules,  notices, and other important orientation material into Spanish, with  oral instructions, whereas prisons with very few such inmates may  choose to rely upon a language line or qualified community volunteers  to assist.      Example: The department of corrections in a state with a 5%  Haitian Creole-speaking LEP corrections population and an 8%  Spanish-speaking LEP population receives federal financial  assistance to expand one of its prisons. The department of  corrections has developed an intake video in Haitian Creole and  another in Spanish for all of the prisons within the department to  use when orienting new prisoners who are LEP and speak one of those  languages. In addition, the department provides inmates with an  opportunity to ask questions and discuss intake information through  either bilingual staff who are competent in interpreting who are  present at the orientation or who are patched in by phone to act as  interpreters. The department also has an agreement whereby some of  its prisons house a small number of INS detainees. For those  detainees or other inmates who are LEP and do not speak Haitian  Creole or Spanish, the department has created a list of sources for  interpretation, including department staff, contract interpreters,  university resources, and a language line. Each person receives at  least an oral explanation of the rights, rules, and opportunities.  This orientation plan would be considered consistent with Title VI.      c. Disciplinary Action. When a prisoner who is LEP is the subject  of disciplinary action, the prison must provide language assistance.  That assistance must ensure that the LEP prisoner had adequate notice  of the rule in question and is meaningfully able to understand and  participate in the process afforded prisoners under those  circumstances. As noted previously, fellow inmates cannot serve as  interpreters in disciplinary hearings.     d. Health and Safety. Prisons providing health services should  refer to Department of Health and Human Services' guidance \4\  regarding health care providers' Title VI obligations, as well as with  this Guidance. ---------------------------------------------------------------------------      \4\ A copy of that guidance can be found on the HHS website at  http://www.hhs.gov/ocr/lep/ and at http://www.usdoj.gov/crt/cor. ---------------------------------------------------------------------------      Health care services are obviously extremely important. LEP  individuals must be provided with access to those services. How that  access is provided depends upon the number or proportion of LEP  individuals, the frequency of contact with those LEP individuals, and  the resources available to the recipient. If, for instance, a prison  serves a high proportion of LEP individuals who speak Spanish, then the  prison health care provider should have available qualified bilingual  medical staff or interpreters versed in medical terms. If the  population of LEP individuals is low, then the prison may choose  instead, for example, to rely on a local community volunteer program  that provides qualified interpreters through a university. Due to the  private nature of medical situations, only in unpredictable emergency  situations or in non-emergency cases where the inmate has waived rights  to a non-inmate interpreter would the use of other bilingual inmates be  appropriate.     e. Participation Affecting Length of Sentence. If a prisoner's LEP  status makes him/her unable to participate in a particular program,  such a failure to participate cannot be used to adversely impact the  length of stay or significantly affect the conditions of imprisonment.  Prisons have options in how to apply this standard. For instance,  prisons could: (1) make the program accessible to the LEP inmate; or  (2) waive the requirement.      Example: State law provides that otherwise eligible prisoners  may receive early release if they take and pass an alcohol  counseling program. Given the importance of early release, LEP  prisoners must be provided access to this prerequisite in some  fashion. How that access is provided depends on the three factors  other than importance. If, for example, there are many LEP prisoners  speaking a particular language in the prison system, the class could  be provided in that language for those inmates. If there were far  fewer LEP prisoners speaking a particular language, the prison will  still need to ensure access to this prerequisite because of the  importance of early release opportunities. Options include, for  example, use of bilingual teachers, contract interpreters, or  community volunteers to interpret during the class, reliance on  videos or written explanations in a language the inmate understands,  and/or modification of the requirements of the class to meet the LEP  individual's ability to understand and communicate. Another possible  option would be to waive the requirement for the LEP prisoners and  allow early release without this prerequisite.      f. ESL Classes. States often mandate English-as-a-Second language  (ESL) classes for LEP inmates. Nothing in this Guidance prohibits or  requires such mandates. ESL courses often serve as an important part of  a proper LEP plan in prisons because, as prisoners gain proficiency in  English, fewer language services are needed. However, the fact that ESL  classes are provided does not obviate the need to provide meaningful  access for prisoners who are not yet English proficient.     g. Community Corrections. This guidance also applies to community  corrections programs that receive, directly or indirectly, federal  financial assistance. For them, the most frequent contact with LEP  individuals will be with an offender, a victim, or the family members  of either, but may also include witnesses and community members in  [[Page 2681]]  the area in which a crime was committed.     As with other recipient activities, community corrections programs  should apply the four factors and determine areas where language  services are most needed. Important oral communications include, for  example: Interviews; explaining conditions of probations/release;  developing case plans; setting up referrals for services; regular  supervision contacts; outlining violations of probations/parole and  recommendations; and making adjustments to the case plan. Competent  oral language services for LEP persons are important for each of these  types of communication. Recipients have great flexibility in  determining how to provide those services.     Just as with all language services, it is important that language  services be competent. Some knowledge of the legal system may be  necessary in certain circumstances. For example, special attention  should be given to the technical interpretation skills of interpreters  used when obtaining information from an offender during pre-sentence  and violation of probation/parole investigations or in other  circumstances in which legal terms and the results of inaccuracies  could impose an enormous burden on the LEP person.     In addition, just as with other recipients, corrections programs  should identify vital written materials for probation and parole that  should be translated when a significant number or proportion of LEP  individuals that speak a particular language is encountered. Vital  documents in this context could include, for instance: probation/parole  department descriptions and grievance procedures, offender rights  information, the pre-sentence/release investigation report, notices of  alleged violations, sentencing/release orders, including conditions of  parole, and victim impact statement questionnaires.  C. Other Types of Recipients      DOJ provides federal financial assistance to many other types of  entities and programs, including, for example, courts, juvenile justice  programs, shelters for victims of domestic violence, and domestic  violence prevention programs. Title VI and this Guidance apply to those  entities. Examples involving some of those recipients follow: 1. Courts.     Application of the four-factor analysis requires recipient courts  to ensure that LEP parties and witnesses receive competent language  services. At a minimum, every effort should be taken to ensure  translations for LEP individuals during all hearings, trials, and  motions during which the LEP individual must and/or may be present.  When a recipient court appoints an attorney to represent an LEP  defendant, the court should ensure that either the attorney is  proficient in the LEP person's language or that a competent interpreter  is provided during consultations between the attorney and the LEP  person.     Many states have created certification procedures for interpreters.  This is one way of meeting the Title VI requirement that recipients  ensure competency of interpreters. Courts will not, however, always be  able to find a certified interpreter, particularly for less frequently  encountered languages.      Example: A state court receiving DOJ federal financial  assistance has frequent contact with LEP individuals as parties and  witnesses, but has experienced a shortage in certified interpreters  in the range of languages encountered. State court officials work  with training and testing consultants to broaden the number of  certified interpreters available in the top several languages spoken  by LEP individuals in the state. Because resources are scarce and  the development of tests expensive, state court officials decide to  partner with other states that have already established agreements  to share proficiency tests and to develop new ones together. The  state court officials also look to other existing state plans for  examples of: codes of professional conduct for interpreters;  mandatory orientation and basic training for interpreters;  interpreter proficiency tests in Spanish and Vietnamese language  interpretation; a written test in English for interpreters in all  languages covering professional responsibility, basic legal term  definitions, court procedures, etc. They are considering working  with other states to expand testing certification programs in coming  years to include several other most frequently encountered  languages. This type of assessment of need, planning, and  implementation is consistent with Title VI principles.      Many individuals, while able to communicate in English to some  extent, are still LEP. Courts should consider carefully whether a  person will be able to understand and communicate effectively in the  stressful role of a witness or party and in situations where knowledge  of language subtleties and/or technical terms and concepts are  involved.      Example: Judges in a county court receiving federal financial  assistance have adopted a voir dire for determining a witness' need  for an interpreter. The voir dire avoids questions that could be  answered with ``yes'' or ``no.'' It includes questions about comfort  level in English, and questions that require active responses, such  as: ``How did you come to court today?'' etc. The judges also ask  the witness more complicated conceptual questions to determine the  extent of the person's proficiency in English. Such a procedure is  consistent with Title VI principles.      When courts experience low numbers or proportions of LEP  individuals from a particular language group and infrequent contact  with that language group, creation of a new certification test for  interpreters may be overly burdensome. In such cases, other methods  should be used to determine the competency of interpreters for the  court's purposes.      Example: A witness in a county court in a large city speaks Urdu  and not English. The jurisdiction has no court interpreter  certification testing for Urdu language interpreters because very  few LEP individuals encountered speak Urdu. However, a non-certified  interpreter is available and has been given the standard English- language test on court processes and interpreter ethics. The judge  brings in a second, independent, bilingual Urdu-speaking person from  a local university, and asks the prospective interpreter to  interpret the judge's conversation with the second individual. The  judge then asks the second Urdu speaker a series of questions  designed to determine whether the interpreter accurately interpreted  their conversation. Given the infrequent contact, the low number and  proportion of Urdu LEP individuals in the area, and the high cost of  providing certification tests for Urdu interpreters, this ``second  check'' solution is one appropriate way of ensuring meaningful  access to the LEP individual.      Another key to successful use of interpreters in the courtroom is  to ensure that everyone in the process understands the role of the  interpreter.      Example: Judges in a recipient court administer a standard oath  to each interpreter and make a statement to the jury that the role  of the interpreter is to interpret, verbatim, the questions posed to  the witness and the witness' response. The jury should focus on the  words, not the non-verbals, of the interpreter. The judges also  clarify the role of the interpreter to the witness and the  attorneys. These are important steps in providing meaningful access  to the court for LEP individuals.      Just as corrections recipients must take care to ensure that  eligible LEP individuals have the opportunity to reduce the term of  their sentence to the same extent that non-LEP individuals do, courts  must ensure that LEP persons have access to programs that would give  them the opportunity to avoid serving a sentence at all.      Example: An LEP defendant should be given the same access to  alternatives to sentencing, such as anger management and alcohol  abuse counseling, as is given to non-LEP persons in the same  circumstances.   [[Page 2682]]       Courts have significant contact with the public outside of the  courtroom. Providing meaningful access to the legal process for LEP  individuals requires more than just providing interpreters in the  courtroom. Recipient courts should assess the need for language  services all along the process, particularly in areas with high numbers  of unrepresented individuals, such as family and small claims courts.      Example: Only twenty thousand people live in a rural county. The  county superior court receives DOJ funds but does not have a budget  comparable to that of a more-populous urbanized county in the state.  Over 1000 LEP Hispanic immigrants have settled in the rural county.  The urbanized county also has more than 1000 LEP Hispanic  immigrants. Both counties have ``how to'' materials in English  helping unrepresented individuals negotiate the family court  processes. The urban county has taken the lead in developing  Spanish-language translations of materials that would explain the  process. The rural county modifies these slightly and thereby  benefits from the work of the urban county. Because this type of  outreach material can be vital for an unrepresented person seeking  access to a vital service of the court, such a translation is  consistent with Title VI obligations and falls within the safe  harbor. Creative solutions, such as sharing resources across  jurisdictions, can help overcome serious financial concerns in areas  with few resources.      Just as with police departments, courts and/or particular divisions  within courts may have more contact with LEP individuals than an  assessment of the general population would indicate. Recipients should  consider that higher contact level when determining the number or  proportion of LEP individuals in the contact population, and the  frequency of such contact.      Example: A county has very few residents who are LEP. However,  many Vietnamese-speaking LEP motorists go through a major freeway  running through the county, which connects two areas with high  populations of Vietnamese speaking LEP individuals. As a result, the  Traffic Division of the county court processes a large number of LEP  persons, but it has taken no steps to train staff or provide forms  or other language access in that Division because of the small  number of LEP individuals in the county. The Division should assess  the number and proportion of LEP individuals processed by the  Division and the frequency of such contact. With those numbers high,  the Traffic Division may find that it needs to provide key forms or  instructions in Vietnamese. It may also find, from talking with  community groups, that many older Vietnamese LEP individuals do not  read Vietnamese well, and that it should provide oral language  services as well. The court may already have Vietnamese-speaking  staff competent in interpreting in a different section of the court;  it may decide to hire a Vietnamese-speaking employee who is  competent in the skill of interpreting; or it may decide that a  language line service suffices. 2. Juvenile Justice Programs     DOJ provides funds to many juvenile justice programs to whom this  Guidance applies.      Example: A county coordinator for an anti-gang program operated  by a DOJ recipient has noticed that increasing numbers of gangs have  formed comprised primarily of LEP individuals speaking a particular  foreign language. The coordinator should assess the number of LEP  youths at risk of involvement in these gangs, so that she can  determine whether the program should hire a counselor who is  bilingual in the particular language and English, or provide other  types of language services to the LEP youths. 3. Domestic Violence Prevention/Treatment Programs     Several domestic violence prevention and treatment programs receive  DOJ financial assistance and thus must apply this Guidance to their  programs and activities.      Example: A shelter for victims of domestic violence is operated by  a recipient of DOJ funds and located in an area where 15 percent of the  women in the service area speak Spanish and are LEP. Seven percent of  the women in the service area speak various Chinese dialects and are  LEP. The shelter uses community volunteers to help translate vital  outreach materials into Chinese (which is one written language despite  many dialects) and Spanish. The shelter hotline has a menu providing  key information, such as location, in English, Spanish, and two of the  most common Chinese dialects. Calls for immediate assistance are  handled by the bilingual staff. The shelter has one counselor and  several volunteers fluent in Spanish and English. Some volunteers are  fluent in different Chinese dialects and in English. The shelter works  with community groups to access interpreters in the several Chinese  dialects that they encounter. Shelter staff train the community  volunteers in the sensitivities of domestic violence intake and  counseling. Volunteers sign confidentiality agreements. The shelter is  looking for a grant to increase its language capabilities despite its  tiny budget. This program is consistent with Title VI principles.  D. Framework for Creating a Model Plan      The following is an example of a framework for a model LEP policy  that is potentially useful for all recipients, but is particularly  appropriate for recipients serving and encountering significant and  diverse LEP populations. The framework for a model plan incorporates a  variety of options and methods for providing meaningful access to LEP  persons. Recipients should consider some or all of these options for  their plans:   A formal written LEP policy;  Identification and assessment of the number or proportion of  LEP persons likely to be encountered through a review of census, school  district, community agency, recipient and/or other data. The data will  clearly be more within the control of some recipients than others. For  instance, corrections facilities will likely be able to obtain accurate  data more easily than police departments. Nevertheless, police  departments should take reasonable steps to identify the language needs  of the population they serve.  Identification of the frequency of contact with LEP language  groups.  Identification of important information, services, and  encounters that may require language services.  Identification of resources available to provide services.  Posting of signs in waiting areas and public entry points, in  several languages, informing people what interpreter services are  available and inviting them to identify themselves as needing language  assistance.  Informing LEP suspects, detainees, inmates and others  potentially subject to criminal or disciplinary action of their right  to language assistance.  Use of ``I speak'' cards by those who encounter the public in- person, in order to identify the language an LEP person speaks.  If a record is normally kept on encounters with individuals,  noting the language of the LEP person in his or her record.  Employing bilingual staff in public contact positions such as  police officers, 911 operators, guards, etc.  Contracting with interpreting services that can provide  competent interpreters in a variety of languages in a timely manner.  Formal arrangements with community groups for competent and  timely interpreter services by community volunteers.  An arrangement with a telephone language interpreter line  (these can be arranged by, for instance, contacting major telephone  services and asking if they have language line services).  Where certain LEP populations make up a significant number of  the population in the recipient's target  [[Page 2683]]  area and are frequently encountered by the recipient, translation of  vital documents into the languages of those LEP populations.  Notice and training to staff, particularly those with public  contact, of the LEP policy and how to access language services.  Outreach to the LEP population on available language services.  Appointing a senior level employee to coordinate the language  assistance program, and ensure that there is regular monitoring of the  program.     As noted, these suggestions for a model plan are particularly  appropriate for larger recipients encountering significant LEP  populations. However, several of these steps will help smaller  recipients prepare for and provide meaningful access when LEP  individuals are encountered.     For smaller recipients with few LEP encounters, identifying the  most important activities is critical, and determining how to provide  language services in those critical areas should be a priority. This  may be as simple as accessing a commercially available language line.  Plans for such recipients should include monitoring and expanding  services as needed.  Appendix B--Coverage and Legal Background  A. Who Is Covered?      Title VI applies to every entity that manages or administers a  program or activity receiving direct or indirect federal financial  assistance from DOJ. The term ``recipients,'' as used in this guidance,  includes all covered entities. ``Covered entities'' include any state  or local agency, private institution or organization, or any public or  private individual that receives federal financial assistance from DOJ  directly or through another DOJ recipient. Examples of covered entities  include but are not limited to: police departments; sheriffs'  departments; state departments of corrections; courts; shelters for  victims of domestic violence; community corrections programs; juvenile  justice programs; and nonprofit organizations with law enforcement  missions. DOJ operates over eighty different grant programs that  provide funding to these and other different types of non-federal  entities. Many of those grants are disbursed to subrecipients, which  are also covered entities.     Grants are not the only type of ``federal financial assistance'' to  which Title VI applies. Federal financial assistance includes, but is  not limited to: grants and loans of federal funds; grants or donations  of federal surplus or real property; details of federal personnel; use  of federal facilities; or any agreement, arrangement, or other contract  which has as one of its purposes the provision of assistance. See 28  CFR 42.102(c). Training, equitable sharing of federally forfeited  property, and use of FBI computers can also be considered federal  financial assistance.\1\ ---------------------------------------------------------------------------      \1\ See Appendix A to Subpart C of the Department of Justice's  regulations implementing Title VI of the Civil Rights Act of 1964  (Subpart C, 28 CFR 42.101-112). ---------------------------------------------------------------------------      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 Act funds.  B. Legal Background and Authority      The Title VI requirement to provide meaningful access to LEP  persons is not new. The Department's position with regard to written  language assistance is articulated in 28 CFR 42.405(d)(1), which is  contained in the DOJ Coordination Regulations, 28 CFR part 42, subpart  F, issued in 1976. These regulations ``govern the respective  obligations of Federal agencies regarding enforcement of Title VI.'' 28  CFR 42.405. Section 42.405(d)(1) addresses the prohibitions cited by  the Supreme Court in Lau v. Nichols, 414 U.S. 563 (1974). Thus, this  Guidance draws its authority from Title VI of the Civil Rights Act of  1964, as amended, 42 U.S.C. 2000d, et seq.; 28 CFR part 42, subpart C  (DOJ Title VI Regulations) and the Title VI regulations of other  federal agencies; 28 CFR part 42, subpart F. Further, this Guidance is  issued pursuant to Executive Order 12250, reprinted at 42 U.S.C. 2000d,  note; Executive Order 13166, 65 FR 50121 (August 16, 2000); and is  consistent with the DOJ ``Policy Guidance Document: on Enforcement of  Title VI of the Civil Rights Act of 1964--National Origin  Discrimination Against Persons With Limited English Proficiency (LEP  Guidance),'' reprinted at 65 FR 50123 (August 16, 2000).     For additional background on Title VI and its methods of  enforcement, see the DOJ Title VI Legal Manual (September, 1998); DOJ's  Investigation Procedures Manual for the Investigation and Resolution of  Complaints Alleging Violations of Title VI and Other Nondiscrimination  Statutes (September 1998); DOJ Guidelines for the Enforcement of Title  VI, 28 CFR 50.3; the Attorney General's ``Memorandum for Heads of  Departments and Agencies that Provide Federal Financial Assistance  Regarding the Use of the Disparate Impact Standard in Administrative  Regulations Under Title VI of the Civil Rights Act of 1964'' (July 14,  1994); and the Assistant Attorney General for Civil Rights' ``Policy  Guidance Document: Enforcement of Title VI and Related Statutes in  Block Grant-Type Programs'' (January 28, 1999).\3\ ---------------------------------------------------------------------------      \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.  [[Page 2684]]  2. Basic Requirements Under Title VI     Title VI prohibits recipients of federal financial assistance from  discriminating against or otherwise excluding individuals on the basis  of race, color, or national origin in any of their activities. Section  601 of Title VI, 42 U.S.C. 2000d, provides:      No person in the United States shall, on the ground of race,  color, or national origin, be excluded from participation in, be  denied the benefits of, or be subjected to discrimination under any  program or activity receiving federal financial assistance.  The term ``program or activity'' is broadly defined. 42 U.S.C. 2000d- 4a.     On its face, Title VI prohibits only intentional discrimination.\4\  However, virtually every federal agency, including DOJ, that grants  federal financial assistance has promulgated regulations implementing  Title VI. Those regulations prohibit recipients from ``restrict[ing] an  individual in any way in the enjoyment of any advantage or privilege  enjoyed by others receiving any service, financial aid, or other  benefit under the program'' and ``utiliz[ing] criteria or methods of  administration which have the effect of subjecting individuals to  discrimination'' or have ``the effect of defeating or substantially  impairing accomplishment of the objectives of the program as respects  individuals of a particular race, color, or national origin.'' 28 CFR  42.04(b)(2). The Supreme Court has consistently upheld agency  regulations prohibiting unjustified discriminatory effects.\5\ ---------------------------------------------------------------------------      \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 students. ---------------------------------------------------------------------------      While Lau arose in the educational context, its core holding--that  the failure to address limited English proficiency among beneficiary  classes could constitute national origin discrimination in violation of  Title VI--has equal vitality with respect to any federally assisted  program or activity providing services to the public.\7\ ---------------------------------------------------------------------------      \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 itself. ---------------------------------------------------------------------------      \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 13166.      The Executive Order requires each federal agency to develop agency- specific LEP guidance for recipients of federal financial assistance.  As an aid in developing this Guidance, the Executive Order incorporates  the Department of Justice's Policy Guidance Document: ``Enforcement of  Title VI of the Civil Rights Act of 1964--National Origin  Discrimination Against Persons With Limited English Proficiency (`LEP  Guidance')'' issued contemporaneously with the Executive Order.\10\  That general LEP Guidance ``sets forth the  [[Page 2685]]  compliance standards that recipients must follow to ensure that  programs and activities they normally provide in English are accessible  to LEP persons.'' \11\ This LEP Guidance for DOJ Recipients represents  the application of DOJ's general LEP Guidance to recipients of DOJ's  federal financial assistance. ---------------------------------------------------------------------------      \10\ LEP Guidance, 65 FR 50123.     \11\ See Executive Order 13166 at Section 1. ---------------------------------------------------------------------------      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. 02-1391 Filed 1-17-02; 8:45 am] BILLING CODE 4410-13-P  
Updated August 6, 2015