TO: Executive Agency Civil Rights Officers
FROM: Bill Lann Lee
Assistant Attorney General
Department of Justice
Civil Rights Division
SUBJECT: Policy Guidance Document:
Enforcement of Title VI of the Civil Rights Act of 1964 ?
National Origin Discrimination Against Persons With Limited
English Proficiency (?LEP Guidance?)
This policy directive concerning the enforcement of Title VI of the
Civil Rights Act of 1964, 42 U.S.C. ?? 2000d et seq., as amended, is being
issued pursuant to the authority granted by Executive Order No. 12250// 42
U.S.C. ? 2000d-1 note. and Department of Justice regulations.// 28 C.F.R.
? 0.51. It addresses the application to recipients of federal financial
assistance of Title VI's prohibition on national origin discrimination when
information is provided only in English to persons who do not understand
English. This policy guidance does not create new obligations but, rather,
clarifies existing Title VI responsibilities.
-14-
Department of Justice Regulations for the Coordination of Enforcement
of Non-discrimination in Federally Assisted Programs (Coordination
Regulations), 28 C.F.R. 42.401 et seq., direct agencies to ?publish title
VI guidelines for each type of program to which they extend financial
assistance, where such guidelines would be appropriate to provide detailed
information on the requirements of Title VI.? 28 C.F.R. ? 42.404(a). The
purpose of this document is to set forth general principles for agencies to
apply in developing such guidelines for services to individuals with
limited English proficiency (LEP). It is expected that, in developing this
guidance for their federally assisted programs, agencies will apply these
general principles, taking into account the unique nature of the programs
to which they provide federal financial assistance.
A federal aid recipient's failure to assure that people who are not
proficient in English can effectively participate in and benefit from
programs and activities may constitute national origin discrimination
prohibited by Title VI. In order to assist agencies that grant federal
financial assistance in ensuring that recipients of federal financial
assistance are complying with their responsibilities, this policy directive
addresses the appropriate compliance standards. Agencies should utilize
the standards set forth in this Policy Guidance Document to develop
specific criteria applicable to review the programs and activities for
which they offer financial assistance. The Department of Education//
Department of Education policies regarding the Title VI responsibilities of
public school districts with respect to LEP children and their parents are
reflected in three Office for Civil Rights policy documents: (1) the May
1970 memorandum to school districts, ?Identification of Discrimination and
Denial of Services on the Basis of National Origin,? (2) the December 3,
1985, guidance document, ?The Office for Civil Rights? Title VI Language
Minority Compliance Procedures,? and (3) the September 1991 memorandum,
?Policy Update on Schools Obligations Toward National Origin Minority
Students with Limited English Proficiency.? These documents can be found
at the Department of Education website at www.ed.gov/office/OCR. already
has established policies, and the Department of Health and Human Services
(HHS)// The Department of Health and Human Services is issuing policy
guidance titled: ?Title VI Prohibition Against National Origin
Discrimination As It Affects Persons With Limited English Proficiency.?
This policy addresses the Title VI responsibilities of HHS recipients to
individuals with limited English proficiency. has been developing
guidance in a manner consistent with Title VI and this Document, that
applies to their specific programs receiving federal financial assistance.
BACKGROUND
Title VI of the Civil Rights Act of 1964 prohibits recipients of
federal financial assistance from discriminating against or otherwise
excluding individuals on the basis of race, color, or national origin in
any of their activities. Section 601 of Title VI, 42 U.S.C. ? 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.
Consistent with the model Title VI regulations drafted by a
Presidential task force in 1964, virtually every executive agency that
grants federal financial assistance has promulgated regulations to
implement Title VI. These regulations prohibit recipients from
"restrict[ing] an individual in any way in the enjoyment of any advantage
or privilege enjoyed by others receiving any service, financial aid, or
other benefit under the program" and "utiliz[ing] criteria or methods of
administration which have the effect of subjecting individuals to
discrimination" or have "the effect of defeating or substantially impairing
accomplishment of the objectives of the program as respects individuals of
a particular race, color, or national origin."
In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court interpreted
these provisions as requiring that a federal financial recipient take steps
to ensure that language barriers did not exclude LEP persons from effective
participation in its benefits and services. Lau involved a group of
students of Chinese origin who did not speak English to whom the recipient
provided the same services -- an education provided solely in English --
that it provided students who did speak English. The Court held that,
under these circumstances, the school?s practice violated the Title VI
prohibition against discrimination on the basis of national origin. The
Court observed that ?[i]t seems obvious that the Chinese-speaking minority
receive fewer benefits than the English-speaking majority from respondents'
school system which denies them a meaningful opportunity to participate in
the educational program -- all earmarks of the discrimination banned by?
the Title VI regulations.// 414 U.S. at 568. Congress manifested its
approval of the Lau decision requirements concerning the provision of
meaningful education services by enacting provisions in the Education
Amendments of 1974, Pub. L. No. 93-380, ?? 105, 204, 88 Stat. 503-512, 515
codified at 20 U.S.C. 1703(f), and the Bilingual Education Act, 20 U.S.C.
7401 et seq., which provided federal financial assistance to school
districts in providing language services. Courts have applied the doctrine
enunciated in Lau both inside and outside the education context. It has
been considered in contexts as varied as what languages drivers? license
tests must be given in or whether material relating to unemployment
benefits must be given in a language other than English.// For cases
outside the educational context, see, e.g., Sandoval v. Hagan, 7 F. Supp.
2d 1234 (M.D. Ala. 1998), affirmed, 197 F.3d 484,(11th Cir. 1999),
rehearing and suggestion for rehearing en banc denied, 211 F.3d 133 (11th
Cir. Feb. 29, 2000)(Table, No. 98-6598-II),petition for certiorari filed
May 30, 2000 (No. 99-1908)(giving drivers? license tests only in English
violates Title VI); and Pabon v. Levine, 70 F.R.D. 674 (S.D.N.Y. 1976)
(summary judgment for defendants denied in case alleging failure to provide
unemployment insurance information in Spanish violated Title VI).
Link Between National Origin And Language
For the majority of people living in the United States, English is
their native language or they have acquired proficiency in English. They
are able to participate fully in federally assisted programs and activities
even if written and oral communications are exclusively in the English
language.
The same cannot be said for the remaining minority who have limited
English proficiency. This group includes persons born in other countries,
some children of immigrants born in the United States, and other
non-English or limited English proficient persons born in the United
States, including some Native Americans. Despite efforts to learn and
master English, their English language proficiency may be limited for some
time.// Certainly it is important to achieve English language proficiency
in order to fully participate at every level in American society. As we
understand the Supreme Court?s interpretation of Title VI?s prohibition of
national origin discrimination, it does not in any way disparage use of the
English language.
Unless grant recipients take steps to respond to this difficulty,
recipients effectively may deny those who do not speak, read, or understand
English access to the benefits and services for which they qualify.
Many recipients of federal financial assistance recognize that the
failure to provide language assistance to such persons may deny them vital
access to services and benefits. In some instances, a recipient?s failure
to remove language barriers is attributable to ignorance of the fact that
some members of the community are unable to communicate in English, to a
general resistance to change, or to a lack of awareness of the obligation
to address this obstacle.
In some cases, however, the failure to address language barriers may
not be simply an oversight, but rather may be attributable, at least in
part, to invidious discrimination on the basis of national origin and race.
While there is not always a direct relationship between an individual's
language and national origin, often language does serve as an identifier of
national origin.// As the Supreme Court observed, "[l]anguage permits an
individual to express both a personal identity and membership in a
community, and those who share a common language may interact in ways more
intimate than those without this bond.? Hernandez v. New York, 500 U.S.
352, 370 (1991) (plurality opinion). The same sort of prejudice and
xenophobia that may be at the root of discrimination against persons from
other nations may be triggered when a person speaks a language other than
English.
Language elicits a response from others, ranging from admiration and
respect, to distance and alienation, to ridicule and scorn. Reactions
of the latter type all too often result from or initiate racial
hostility. . . . It may well be, for certain ethnic groups and in
some communities, that proficiency in a particular language, like skin
color, should be treated as a surrogate for race under an equal
protection analysis.// Id. at 371 (plurality opinion).
While Title VI itself prohibits only intentional discrimination on the
basis of national origin,// Alexander v. Choate, 469 U.S. 287, 293 (1985).
the Supreme Court has consistently upheld agency regulations prohibiting
unjustified discriminatory effects.// Id. at 293-294; Guardians Ass'n v.
Civil Serv. Comm'n, 463 U.S. 582, 584 n.2 (1983) (White, J.), 623 n.15
(Marshall, J.), 642-645 (Stevens, Brennan, Blackmun, JJ.); Lau v. Nichols,
414 U.S. at 568; id. at 571 (Stewart, J., concurring in result). In a July
24, 1994, memorandum to Heads of Departments and Agencies that Provide
Federal Financial Assistance concerning "Use of the Disparate Impact
Standard in Administrative Regulations Under Title VI of the Civil Rights
Act of 1964," the Attorney General stated that each agency "should ensure
that the disparate impact provisions of your regulations are fully utilized
so that all persons may enjoy equally the benefits of federally financed
programs." The Department of Justice has consistently adhered to the view
that the significant discriminatory effects that the failure to provide
language assistance has on the basis of national origin, places the
treatment of LEP individuals comfortably within the ambit of Title VI and
agencies? implementing regulations.// The Department's position with
regard to written language assistance is articulated in 28 C.F.R. ?
42.405(d)(1), which is contained in the Coordination Regulations, 28 C.F.R.
Subpt. F, issued in 1976. These Regulations "govern the respective
obligations of Federal agencies regarding enforcement of title VI." 28
C.F.R. ? 42.405. Section 42.405(d)(1) addresses the prohibitions cited by
the Supreme Court in Lau. Also, existing language barriers potentially may
be rooted in invidious discrimination. The Supreme Court in Lau concluded
that a recipient?s failure to take affirmative steps to provide "meaningful
opportunity" for LEP individuals to participate in its programs and
activities violates the recipient?s obligations under Title VI and its
regulations.
ALL RECIPIENTS MUST TAKE REASONABLE STEPS TO PROVIDE MEANINGFUL ACCESS
Recipients who fail to provide services to LEP applicants and
beneficiaries in their federally assisted programs and activities may be
discriminating on the basis of national origin in violation of Title VI and
its implementing regulations. Title VI and its regulations require
recipients to take reasonable steps to ensure "meaningful" access to the
information and services they provide. What constitutes reasonable steps
to ensure meaningful access will be contingent on a number of factors.
Among the factors to be considered are the number or proportion of LEP
persons in the eligible service population, the frequency with which LEP
individuals come in contact with the program, the importance of the service
provided by the program, and the resources available to the recipient.
1) Number or Proportion of LEP Individuals
Programs that serve a few or even one LEP person are still subject to
the Title VI obligation to take reasonable steps to provide meaningful
opportunities for access. However, a factor in determining the
reasonableness of a recipient?s efforts is the number or proportion of
people who will be excluded from the benefits or services absent efforts to
remove language barriers. The steps that are reasonable for a recipient
who serves one LEP person a year may be different than those expected from
a recipient that serves several LEP persons each day. But even those who
serve very few LEP persons on an infrequent basis should utilize this
balancing analysis to determine whether reasonable steps are possible and
if so, have a plan of what to do if a LEP individual seeks service under
the program in question. This plan need not be intricate; it may be as
simple as being prepared to use one of the commercially available language
lines to obtain immediate interpreter services.
2) Frequency of Contact with the Program
Frequency of contacts between the program or activity and LEP
individuals is another factor to be weighed. For example, if LEP
individuals must access the recipient?s program or activity on a daily
basis, e.g., as they must in attending elementary or secondary school, a
recipient has greater duties than if such contact is unpredictable or
infrequent. Recipients should take into account local or regional
conditions when determining frequency of contact with the program, and
should have the flexibility to tailor their services to those needs.
3) Nature and Importance of the Program
The importance of the recipient?s program to beneficiaries will affect
the determination of what reasonable steps are required. More affirmative
steps must be taken in programs where the denial or delay of access may
have life or death implications than in programs that are not as crucial to
one?s day-to-day existence. For example, the obligations of a federally
assisted school or hospital differ from those of a federally assisted zoo
or theater. In assessing the effect on individuals of failure to provide
language services, recipients must consider the importance of the benefit
to individuals both immediately and in the long-term. A decision by a
federal, state, or local entity to make an activity compulsory, such as
elementary and secondary school attendance or medical inoculations, serves
as strong evidence of the program's importance.
4) Resources Available
The resources available to a recipient of federal assistance may have
an impact on the nature of the steps that recipients must take. For
example, a small recipient with limited resources may not have to take the
same steps as a larger recipient to provide LEP assistance in programs that
have a limited number of eligible LEP individuals, where contact is
infrequent, where the total cost of providing language services is
relatively high, and/or where the program is not crucial to an individual?s
day-to-day existence. Claims of limited resources from large entities will
need to be well-substantiated.// Title VI does not require recipients to
remove language barriers when English is an essential aspect of the program
(such as providing civil service examinations in English when the job
requires person to communicate in English, see Frontera v. Sindell, 522
F.2d 1215 (6th Cir. 1975)), or there is another "substantial legitimate
justification for the challenged practice." Elston v. Talladega County Bd.
of Educ., 997 F.2d 1394, 1407 (11th Cir. 1993). Similar balancing tests
are used in other nondiscrimination provisions that are concerned with
effects of an entity's actions. For example, under Title VII of the Civil
Rights Act of 1964, employers need not cease practices that have a
discriminatory effect if they are "consistent with business necessity" and
there is no "alternative employment practice" that is equally effective.
42 U.S.C. ? 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"
to take no affirmative steps to provide further access.
Written vs. Oral Language Services
In balancing the factors discussed above to determine what reasonable
steps must be taken by recipients to provide meaningful access to each LEP
individual, agencies should particularly address the appropriate mix of
written and oral language assistance. Which documents must be translated,
when oral translation is necessary, and whether such services must be
immediately available will depend upon the factors previously mentioned.//
Under the four-part analysis, for instance, Title VI would not require
recipients to translate documents requested under a state equivalent of the
Freedom of Information Act or Privacy Act, or to translate all state
statutes or notices of rulemaking made generally available to the public.
The focus of the analysis is the nature of the information being
communicated, the intended or expected audience, and the cost of providing
translations. In virtually all instances, one or more of these criteria
would lead to the conclusion that recipients need not translate these types
of documents. Recipients often communicate with the public in writing,
either on paper or over the Internet, and written translations are a highly
effective way of communicating with large numbers of people who do not
speak, read or understand English. While the Department of Justice's
Coordination Regulation, 28 C.F.R. ? 42.405(d)(1), expressly addresses
requirements for provision of written language assistance, a recipient's
obligation to provide meaningful opportunity is not limited to written
translations. Oral communication between recipients and beneficiaries
often is a necessary part of the exchange of information. Thus, a
recipient that limits its language assistance to the provision of written
materials may not be allowing LEP persons "effectively to be informed of or
to participate in the program" in the same manner as persons who speak
English.
In some cases, "meaningful opportunity" to benefit from the program
requires the recipient to take steps to assure that translation services
are promptly available. In some circumstances, instead of translating all
of its written materials, a recipient may meet its obligation by making
available oral assistance, or by commissioning written translations on
reasonable request. It is the responsibility of federal
assistance-granting agencies, in conducting their Title VI compliance
activities, to make more specific judgments by applying their program
expertise to concrete cases.
CONCLUSION
This document provides a general framework by which agencies can
determine when LEP assistance is required in their federally assisted
programs and activities and what the nature of that assistance should be.
We expect agencies to implement this document by issuing guidance documents
specific to their own recipients as contemplated by the Department of
Justice Coordination Regulations and as HHS and the Department of Education
already have done. The Coordination and Review Section
is available to assist you in preparing your agency-specific guidance. In
addition, agencies should provide technical assistance to their recipients
concerning the provision of appropriate LEP services.
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