Federal Coordination and Compliance Section Publications

 [Federal Register: March 20, 2001 (Volume 66, Number 54)] [Notices]                [Page 15765-15766] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr20mr01-124]                           ======================================================================= -----------------------------------------------------------------------  NATIONAL SCIENCE FOUNDATION    Enforcement of Title VI of the Civil Rights Act of 1964--National  Origin Discrimination Against Persons With Limited English Proficiency;  Policy Guidance  AGENCY: National Science Foundation.  ACTION: Notice.  -----------------------------------------------------------------------  SUMMARY: The National Science Foundation (NSF) is publishing policy  guidance on Title VI's prohibition against national origin  discrimination as it affects limited English proficient persons. This  policy guidance does not create new obligations, but rather, clarifies  existing Title VI responsibilities. The purpose of this document is to  set forth general principles for the recipients of NSF financial  assistance to apply when developing services to individuals with  limited English proficiency as required by Title VI of the Civil Rights  Act of 1964.  DATES: This guidance is effective immediately. Comments must be  submitted on or before May 21, 2001. NSF 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 Office  of Equal Opportunity Programs, National Science Foundation, 4201 Wilson  Blvd., Arlington, VA 22230. Comments may also be submitted by e-mail  to: rleichte@nsf.gov.  FOR FURTHER INFORMATION CONTACT: Ana Ortiz or Ruth Leichter at the  above address or by telephone at 703-292-8020; TDD: 703-292-9027.  Arrangements to receive the policy in an alternative format may be made  by contacting the named individuals.  Ana Ortiz, Program Manager, Office of Equal Opportunity Programs, National Science  Foundation.  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 National Science Foundation (NSF), 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 NSF's  longstanding position that in order to avoid discrimination against LEP  persons on the grounds of national origin, recipients must take  reasonable steps to ensure that such persons have meaningful access to  the programs, services, and information those recipients provide, free  of charge.  I. Background      On August 11, 2000, the President issued Executive Order 13166,  titled ``Improving Access to Services by Persons With Limited English  Proficiency.'' 65 FR 50121 (August 16, 2000). On the same day, the  Assistant Attorney General for Civil Rights issued a Policy Guidance  Document, titled ``Enforcement of Title VI of the Civil Rights Act of  1964--National Origin Discrimination Against Persons With Limited  English Proficiency'' (hereinafter referred to as ``DOJ LEP  Guidance''), reprinted at 65 FR 50123 (August 16, 2000).     Executive Order 13166 requires federal agencies to assess and  address the needs of otherwise eligible persons seeking access to  federally conducted programs and activities who, due to limited English  proficiency, cannot fully and equally participate in or benefit from  those programs and activities. The DOJ LEP Guidance in turn advises  each federal department or agency to ``take reasonable steps to ensure  `meaningful' access [to LEP individuals] to the information and  services they provide.'' DOJ LEP Guidance, 65 FR at 50124. The DOJ LEP  Guidance goes on to provide that what constitutes reasonable steps to  ensure meaningful access will be contingent on a number of factors.  Among the factors to be considered are the number or proportion of LEP  persons in the eligible service population, the frequency with which  LEP individuals come in contact with the program, the importance of the  service provided by the program, and the resources available to the  agency. Id. The DOJ LEP Guidance explains that the identification of  ``reasonable steps'' to provide oral and written services in languages  other than English is to be determined on a case-by-case basis through  a balancing of all four factors. As required by Executive Order 13166,  this policy guidance is consistent with the compliance standards set  out in the DOJ LEP Guidance.  II. Legal Background      The Title VI requirement to provide meaningful access to LEP  persons is not new. Section 601 of Title VI of the Civil Rights Act of  1964, 42 U.S.C. Section 2000d, et seq. states: ``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.'' This is further ordered by Executive  Order 13166, ``Improving Access to Services for Persons With  [[Page 15766]]  Limited English Proficiency,'' and United States Department of Justice  Guidance as published in the Federal Register, Vol. 65, No. 159, August  16, 2000. Pursuant to its coordination authority over federal  enforcement of Title VI, DOJ addressed in 1976 the circumstances under  which recipient/covered entities might be required to provide written  language assistance to LEP persons. See 28 CFR 42.405(d)(1). These  regulations ``govern the respective obligations of Federal agencies  regarding enforcement of Title VI.'' 28 CFR 42.405. Section  42.405(d)(1) formalized LEP obligations under Title VI which were  sustained 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.; 45 CFR, Part  611 (NSF's Title VI Regulations); and 28 CFR 42.401, et seq. (DOJ Title  VI enforcement coordination regulation). Further, this Guidance is  issued pursuant to Executive Order 12250, reprinted at 42 U.S.C.  Sec. 2000d, note; Executive Order 13166; and is consistent with the DOJ  LEP Guidance.  III. Purpose and Application      The Title VI regulations prohibit both intentional discrimination  and policies and practices that appear neutral but have a  discriminatory effect. Thus, a recipient entity's policies or practices  regarding the provision of benefits and services to LEP persons need  not be intentional to be discriminatory, but may constitute a violation  of Title VI if they have an adverse effect on the ability of national  origin minorities to meaningfully access programs and services.  Accordingly, it is useful for recipient entities to examine their  policies and practices to determine whether they adversely affect LEP  persons. This policy guidance provides a brief analytical framework  consistent with the governing Title VI compliance standards set out in  the DOJ LEP Guidance to assist recipient/covered entities in conducting  such assessments.  IV. Compliance and Enforcement      A four-factor analysis is recommended for compliance. Elements of  an effective language assistance plan to consider are identification of  LEP individuals who need language assistance, available language  assistance options, training staff, providing notice to LEP persons,  and monitoring effectiveness and need for modifications. It should  consist of a determination of the number or proportion of eligible  individuals with LEP who might be excluded from a program absent  efforts to remove language barriers, their frequency of contact with  the program, the nature and importance of the program (is it vital to  your existence?) and the resources available. Once it is established  that a need exists, one or both of two types of language assistance may  be appropriate. Oral language interpretation and/or written material  translation may be selected as necessary. These factors, plan elements,  and their related compliance standards are discussed in detail in  related guidance documents issued by other federal agencies. NSF  recipients jointly funded by other federal agencies may rely upon  guidance issued by those agencies.     Recipient entities have considerable flexibility in determining how  to comply with their legal obligation in the LEP setting and are not  required to use the suggested methods and options listed. However,  recipient entities 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. NSF's regulations implementing Title VI contain compliance  and enforcement provisions to ensure that a recipient's policies and  practices overcome barriers resulting from language differences that  would deny LEP persons an equal opportunity to participate in and  access to programs, services and benefits offered by NSF. See 45 CFR,  Part 611. We will ensure that our recipient entities fulfill their  responsibilities to LEP persons through the procedures provided for in  the Title VI regulations.     Executive Order 13166 requires that each federal department or  agency extending federal financial assistance subject to Title VI issue  separate guidance implementing uniform Title VI compliance standards  with respect to LEP persons. Where recipients of federal financial  assistance from NSF also receive assistance from one or more other  federal departments or agencies, there is no obligation to conduct and  document separate but identical analyses and language assistance plans  for NSF. NSF, in discharging its compliance and enforcement obligations  under Title VI, looks to analyses performed and plans developed in  response to similar detailed LEP guidance issued by other federal  agencies. Recipients may rely upon guidance issued by those agencies.     In determining a recipient entity's compliance with Title VI, NSF's  primary concern is to ensure that the entity'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. A recipient entity's appropriate use  of the methods and options discussed in this policy guidance is viewed  by NSF as evidence of that entity's willingness to comply voluntarily  with its Title VI obligations.  V. English-only Provision      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, in certain circumstances, violates Title VI.     If you have any questions related to this policy, please contact  the NSF Office of Equal Opportunity Programs.  [FR Doc. 01-6918 Filed 3-19-01; 8:45 am] BILLING CODE 7555-01-P