2014 Latino Community Report For the 130th General Assembly
Medical and Legal Language Access in Ohio Demographics, Law and Policy
Latino Community Report – Language Access in Ohio Latino Community Reports are issued several times each year to members of Ohio’s General Assembly. Each report is a research piece which covers a topic of salient interest to Ohio Hispanics. Latino Community Reports include data, analysis and discussion. Where possible, each report includes data tailored to individual legislative districts or the counties comprising individual districts. Recent Latino Community Reports are available on the OCHLA website and have covered: Deferred Action for Childhood Arrivals (2013) Ohio Hispanic Voting Trends (2013) Housing Discrimination Among Ohio Hispanics (2012) Ohio’s Migrant Seasonal Farm Workers (2012) Diabetes Among Ohio Hispanics (2011) Ohio Hispanic Community Demographics (2011) This report was issued by the Ohio Commission on Hispanic/Latino Affairs on 3/24/2014, and was composed by: Nolan Stevens, Public Policy Officer The best efforts were made to gather and provide accurate and current information. Data presented from previous years indicates the most up to date research available. OCHLA will provide any additional information or data upon request as it becomes available. For more information, please email Nolan Stevens directly at email@example.com or contact the Commission at: Ohio Commission on Hispanic/Latino Affairs 77 South High Street, 18th Floor Columbus, Ohio. 43215. (614) 466—8333 http://ochla.ohio.gov
Table of Contents Execu&ve Summary……………………………………………………………………………3 Language Diversity in the United States…………………………………………...4 Language Diversity in Ohio……………………………………………………………….7 Law Regula*ng Language Access in Ohio Courts.…………………………….15 Language Access in Ohio Courts……………………………………………………..18 Law Regula*ng Language Access in Ohio Hospitals……………………….24 Language Access in Ohio Hospitals…………………………………………………26 Conclusion……………………………………………………………………………………..28 Appendix: Expanded Legal Nota*ons………………………………………………31
Latino Community Report – Language Access in Ohio
1. Executive Summary Ohio is an increasingly diverse state, and its emerging diversity cuts across many demographic categories. Ohioans come from myriad racial, national, ethnic, cultural, linguistic, political and religious backgrounds. While diversity is certainly a strength both for Ohio and for the United States, it can create challenges in policy formulation. Language diversity is one such challenge. The State is currently working to educate an increasingly linguistically-‐diverse student population, for example, and difficulty with English is an obstacle in many facets of every-‐day life for the hundreds of thousands of Ohioans who are Limited English Proficient (LEP). LEP Ohioans must overcome language barriers at the places that all Ohioans must frequent – the school, the bank, the grocery store, the BMV and elsewhere. Nowhere are the stakes in overcoming those obstacles higher than in Ohio courts and in Ohio hospitals. The need for smart policy that guarantees meaningful access to services has never been greater. The growth of languages other than English spoken in Ohio has been both broad and rapid, mirroring the growth nationally. More and more Ohioans are speaking more and more languages, and with increasing numbers of LEP Ohioans the State must be prepared to render services to those quarter-‐of-‐a-‐million Ohioans who struggle with speaking and understanding English. This Latino Community Report will examine the systems of law and policy that govern the provision of services to LEP Ohioans in the state’s courts and in the state’s hospitals and clinics. Because language access is such a broad challenge, both federal and state policy address language access differently in separate domains. This is most evident in analyzing and comparing the competing legal schemes governing language access in courts and in hospitals. Federal and State law have extensively regulated the provision of language access in both state and federal courts. While many decisions are left to the court’s discretion, in most cases an LEP party or witness must be provided an interpreter certified to practice in whichever court in which he finds himself – both federal courts and state courts have parallel schemes governing the certification, appointment and compensation of interpreters. This scheme boasts strong guarantees of equality, predictability and accuracy, and strong protections for constitutional and civil rights. It also provides for the precision that legal proceedings require. But it’s not without its drawbacks. This is an expensive set of laws to maintain and enforce, and even with the extensive regulation some Ohio courts do not yet abide by the rules on language access that govern them. More, depressed compensation and rigorous certification protocols for court interpreters in Ohio have combined to create a shortage of the certified interpreters that Ohio requires to meet the demands of the regulatory scheme. Contrast that environment with the provision of language services in Ohio clinics, hospitals and medical offices. Far fewer laws – and none at the State level – govern the provision of language access in healthcare contexts. This deregulated environment gives individual healthcare providers the flexibility to plan and implement their own policies for language access, which may depend on the demographic parameters of the populations they serve. In this way, costs are kept lower as individual institutions formulate policies that address their specific language needs without implicating broader regulation at the state level. And as no certification is required for medical interpreters, the shortage of medical 3
interpreters is not as severe as the shortage of certified court interpreters. This system also, however, has its disadvantages. It can be a poor protector of civil liberties for LEP Ohioans, as there are no certification requirements for interpreters and translators. Too often informal interpreters are used. Further, different hospitals may have wildly divergent language services – even among those that serve the same local population – making meaningful access unpredictable from institution to institution. Examining two competing regulatory schemes illustrates the strengths and weaknesses of each while demographic data provides context for the debate. This report includes analysis, discussion and suggested conclusions, but it will be for Ohio’s elected leaders to balance these competing interests and craft a policy that guarantees meaningful access to medical care and justice for all Ohioans, regardless of the language they speak. The Ohio Commission on Hispanic/Latino affairs is required to assist the General Assembly in this endeavor by providing legislators with advice1 on crafting and implementing policies that address the unique challenges faced by Ohio Hispanics. Accordingly, the Commission will gather input from our community and other linguistically diverse Ohio communities, examine service delivery models in other jurisdictions, and communicate with stakeholders before creating a set of policy recommendations that address the gaps in language access in Ohio courts and hospitals. This Latino Community Report is intended to introduce the issue to legislators and to provide legal and demographic contexts for better understanding the issue and its implications. OCHLA will supplement this report by delivering these policy recommendations to the General Assembly in the coming weeks.
2. Language Diversity in the United States The United States has, by a huge margin, the largest population of foreign-‐born residents of any country on Earth. In 2013, the United States was home to more than 45 foreign-‐born residents – 19.3% of all immigrants worldwide.2 Foreign-‐born residents made up 12.3% of the population of the United States in the 2010 Census.3 With such a magnitude of national origins, accompanying linguistic diversity is no surprise. However, not all immigrants speak a language other than English at home, and not all speakers of other languages in the United States are immigrants. In 2013 the U.S. Census Bureau estimated that 60,577,020 Americans – 21% of that population -‐ spoke a language other than English at home in 2011, the most recent estimates.4 A note on terminology and the data in this section. Each year, the American Community Survey asks respondents aged five or older about the languages they speak at home, and the data included below is focused on survey respondents that indicated that they or another person in their home aged five or 1 2
Ohio Revised Code §121.32(F).
Trends in International Migrant Stock: The 2013 Revision, United Nations, 2013. 3 2010 American Community Survey, U.S. Census Bureau, 2010. 4 Language Use in the United States: 2011, American Community Survey Reports, U.S. Census Bureau, August 2013, p.3
Latino Community Report – Language Access in Ohio older spoke a language other than English at home. Throughout this section I will use “speakers of other languages” and “non-‐English speakers” interchangeably to describe this demographic. The survey goes on to ask respondents to identify the language they spoke in lieu of English. The Census Bureau estimates that more than 300 languages are spoken in the United States5 but one deserves special mention. 37,579,787 Americans – 62% of the population aged five or older that speaks a language other than English at home, speak Spanish at home.6 This means that 12.9% of the total U.S. population aged five and above speak Spanish at home.7 In contrast, the next most widely –spoken language at home is Chinese, with 2,882,497 speakers, or 4.8% of the population of speakers of other languages and less than 1% of the population at large.8 Only speakers of Spanish, Chinese, Vietnamese and French comprised more that 2% of speakers of other languages, so while Spanish is dominant, the overall linguistic landscape is tremendously diverse.
Languages Spoken by Non-‐English Speakers 28.70%
Chinese Vietnamese French Other
2.10% 4.90% 2.30%
Source: Language Use in the United States: 2011. U.S. Census Bureau, August 2013
The U.S. Census Bureau began asking these three questions as part of the decennial census in 1980. They continued to do so in 1990 and 2000, but later moved these questions to the American Community Survey.9 Through that data, however, it’s possible to trace the growth and change of the population of speakers of other languages in the United States. Since 1980, the number of strictly English-‐speaking households has increased by 22.7%, while the number of households where a language other than
Id. at 4. Id. at 3. 7 See Id. at 3. 8 Id. 9 Id. at 2. 6
English is spoken at home increased by 158.2%,10 a rate nearly seven times the growth rate of English-‐ speaking households. The languages spoken in these non-‐English households have likewise changed as earlier immigrant waves assimilated and began speaking English exclusively. Since 1980, only five languages have declined in use – Italian, German, Polish, Yiddish and Greek – by 55%, 33%, 26%, 51% and 24%, respectively.11 These languages represent those spoken by waves of immigrants that came to the United States in the earlier parts of the 20th century. Meanwhile, use of languages from Eastern Europe, Asia and Latin America has expanded dramatically along with the populations of those ethnic groups. The national population of Vietnamese speakers has increased by 599% since 1980 and speakers of Spanish, Russian, Chinese and Korean have increased by 233% (Spanish) to 394% (Russian).12 So not only is the use of English declining relatively in the United States, but the use of other Western European languages are actually declining. Finally, the annual American Community Survey asks respondents that spoke languages other than English at home to assess their fluency in English. Encouragingly, 58.2% of respondents said than non-‐ English speakers in their homes aged five or above also spoke English “very well”.13 However, another 19.4% said they only spoke English “well”, 15.4% said they spoke English “not well”, and another 7% said they spoke English “not at all”.14 The lowest rates for English proficiency were among speakers of East-‐ and-‐Southeast-‐Asian Languages.15 Among Spanish-‐speakers, slightly fewer respondents said they spoke Spanish “very well” or “well”, and slightly more indicated that they spoke English “not well” or “not at all”.16 English competency unsurprisingly correlates to ethnicity and other factors. There is a 27-‐ percentae point gap in English fluency between non-‐Hispanic whites and Hispanics, for example.17 Additionally, for all speakers of other languages at home, English proficiency correlated statistically with socioeconomic indicators like education level, labor participation and poverty status.18
Id. Id. 12 Id. 13 Id. 14 Id. 15 Id. 16 Id. 17 Id. at 8. 18 Id. at 9. 11
Latino Community Report – Language Access in Ohio
English Proﬁciency Among Non-‐English Speakers NaEonwide
7% 15.40% Speak English "Very Well" 19.40%
Speak English "Well" Speak English "Not Well" Speak English "Not at All"
Source: Language Use in the United States: 2011. U.S. Census Bureau, August 2013
Extrapolating this data, 41.8% of Americans aged five or older that speak a language other than English at home speak English somewhat less than “very well”. That’s more than 25 million people in the United States and more than 8% of the country’s 316 million-‐plus population.19 “Limited English Proficient” individuals, or “LEP”, is defined as an individual whose native language is not English, and who has a limited ability to speak, read, write or understand English.20 This report will refer to this demographic -‐ those aged five or older whose native language is not English and who indicated that they speak English worse than “very well” -‐ as “Limited English Proficient”, or simply “LEP”. With such a large population of LEP residents, guaranteeing language access to government services is a significant challenge. In sum, more than 60 million Americans aged five or older, or about 21% of the country’s population, speaks a language other than English at home. There are some 300 other languages spoken with some regularity nationwide, but speakers of just one of those languages – Spanish – account for 62% of all speakers of languages other than English in the United States and almost 13% of the country’s population. Languages other than English are spoken in more and more households in the United States, and their growth rate since 1980 eclipses the national growth rate of strictly English-‐speaking households sevenfold. While the use of Asian, Latin American, African and Eastern European languages in U.S. households has in many cases doubled, tripled and even sextupled since 1980, growth in English remains low and the use of other Western European languages has even decreased. More than 58% of these 60 million speakers of other languages nonetheless speak English “very well”, while the remaining 42% -‐ about 25 million Americans – are Limited English Proficient. 19
State and County Quick Facts, U.S. Census Bureau, 2013. Who is a Limited English Proficient Individual?, Frequently Asked Questions, www.lep.gov
3. Language Diversity in Ohio Ohio is less linguistically diverse than the country at large. Of Ohio’s 10+ million residents, only 6.7% -‐ 721,796 -‐ spoke a language other than English at home21 compared to nearly 21% nationally. Among the 50 states and the District of Columbia, Ohio ranks just 39th in the percentage of residents aged five or older speaking a language other than English at home. Ohio is a big state, however, and the state’s 721,796 speakers of other languages is the 19th highest population among the 50 states and the District of Colombia. Ohio’s non-‐English speaking population is, then, somewhat unique. The population is large but the percentage of the State’s residents that it encompasses is relatively small. Ohio’s total number of resident speakers of other language is most similar to the populations of Connecticut and New Mexico.22 Both states, however, have much higher percentages of such residents that Ohio does – 26.4% and 36.5% respectively23 – compared to Ohio’s 6.7%. Meanwhile, Ohio’s closest peers by percentage of non-‐ English speaking population are Maine, South Carolina and South Dakota – all at 6.6% -‐ but each of these states has a dramatically lower total population of non-‐English speakers: 83,579 live in Maine, 289,004 live in South Carolina and just 50,355 are residents of South Dakota. Ohio has roughly 300,000 more speakers of other languages than the combined total of those three states.
Comparison of PopulaEon of Speakers of Other Languages in Ohio and NaEonally, by Percentage Speakers of Other Languages by Percentage
Najonally 79.22% 93.30%
English Speakers by Percentage
Source: Language Use in the United States: 2011. U.S. Census Bureau, August 2013
Language Use in the United States:2011, supra, at 11. Id. 23 Id. 22
Latino Community Report – Language Access in Ohio Ohioans do speak a very wide array of languages, which is reflective of national linguistic diversity. In 2010, there were 30 languages spoken in Ohio homes by at least 4,000 Ohioans.24 Spanish is also less dominant a second-‐language than it is nationally. In Ohio, Spanish-‐speakers account for only 34% of speakers of other languages, while the percentages of speakers of several other languages – most notably Arabic and German – are much higher25 than national rates.26
Language Diversity in Ohio Among Non-‐ English Speakers 2.38%
2.06% 1.90% 1.58%
Russian Hindi Greek Polish
Source: American Community Survey, 5-‐Year Estimates, Public Use Microdata Sample, 2006–2010.
Ohio’s speakers of other languages are also more proficient with English than their peers nationally. 64.9% of Ohioans that speak other languages at home say they also speak English “very well”, and another 20.8% speak English “well”.27 Contrast those figures with the national figures above and notice that Ohio speakers of other languages outpace national rates in English competency by 6.7 percentage points. Likewise, 11.4% of Ohio respondents said that they spoke English “not well” and just 2.9% said they didn’t speak English at all.28 24
American Community Survey, 5-‐Year Estimates, Public Use Microdata Sample, 2006–2010. Id. 26 Language Use in the United States: 2011, supra, at page 3. 27 Id. at 11. 28 Id. 25
English Proficiency National Speakers of Other Languages (Total) Speak English “very well” Speak English “well”, "not well" or "not at all" Ohio Speakers of Other Languages (Total) Speak English “very well”
Population 60,577,020 35,255,825 25,321,195
Percentage 100.00% 58.2% 41.8%
Speak English “well”, "not well" or "not at all"
Sources: American Community Survey 5-‐Year Estimates, Language Use in the United States: 2011
English proficiency in Ohio households appears to vary according to the other language spoken. Generally, Ohioans that speak Western European and South Asian languages are most often fluent in English.29 Ohio Speakers of languages indigenous to Africa, Latin America, Eastern Europe and East Asia, by contrast, have the lowest rates of English proficiency.30 While Ohio’s population is growing much more slowly than that of other states and the country as a whole, the state is experiencing growth among speakers of languages other than English. Overall in Ohio, the growth of all languages other than English between the 2000 and 2010 Census is about 11% -‐ less than half of the national rate of 27%.31 That’s more than five times the pace, however, at which Ohio’s strictly English-‐speaking population is growing – a meager 2%.32 The growth of specific languages in Ohio is also different from their rates of growth nationally. While the State lags national growth rates for most languages, in a few cases Ohio’s – like Chinese -‐ growth is faster than the national pace. To conclude, Ohio is less diverse linguistically than the nation at large. Only 6.7% of Ohioans aged five or older speak a language other than English at home – about a third of the national percentage. Still, that population is significant – at more than 721,000 – and it is diverse. More than 30 languages are spoken by at least 4,000 Ohioans, and the State’s population of Spanish-‐speakers is much less hegemonic relative to other languages than the national rate. Instead, Ohio is home to higher-‐than-‐ average percentages of people that speak other languages besides Spanish – most notably German and Arabic. 29
American Community Survey, supra. Id. 31 Language Use in the United States:2011, supra, at 7. 32 See 2000 U.S. Census, 2010 American Community Survey. 30
Latino Community Report – Language Access in Ohio English Proficiency Among Ohioans Speaking Other Languages 27,593 Arabic Speak English “very well” or "well" 24,845 Speak English "not well" or "not at all" 2748 27,670 Chinese Speak English “very well” or "well" 22,369 Speak English "not well" or "not at all" 5,301 5,661 Croatian Speak English “very well” or "well" 4,759 Speak English "not well" or "not at all" 902 9,604 Cushite Speak English “very well” or "well" 7,709 Speak English "not well" or "not at all" 1,895 9,611 Dutch Speak English “very well” or "well" 9,240 Speak English "not well" or "not at all" 371 27,035 French Speak English “very well” or "well" 24,674 Speak English "not well" or "not at all" 2,361 57,664 German Speak English “very well” or "well" 54,487 Speak English "not well" or "not at all" 3,177 12,487 Greek Speak English “very well” or "well" 11,438 Speak English "not well" or "not at all" 1,049 6,519 Gujarathi Speak English “very well” or "well" 5,971 Speak English "not well" or "not at all" 548 14,371 Hindi Speak English “very well” or "well" 13,870 Speak English "not well" or "not at all" 501 11
90.04% 9.96% 80.84% 19.16% 84.07% 15.93% 80.27% 19.78% 96.21% 3.79% 91.27% 8.73% 94.49% 5.51% 91.60% 8.40% 91.59% 8.41% 96.51% 3.49%
Speak English “very well” or "well"
Speak English “very well” or "well"
Speak English “very well” or "well"
Speak English "not well" or "not at all"
Speak English “very well” or "well"
Speak English "not well" or "not at all"
Kru, Ibo, Yoruba
Speak English “very well” or "well"
Speak English “very well” or "well"
Speak English “very well” or "well"
Speak English “very well” or "well"
Speak English "not well" or "not at all"
Speak English “very well” or "well"
Speak English "not well" or "not at all"
Speak English "not well" or "not at all"
Speak English "not well" or "not at all"
Speak English "not well" or "not at all"
Speak English "not well" or "not at all"
Speak English "not well" or "not at all" Polish
Latino Community Report – Language Access in Ohio Russian Speak English “very well” or "well" Speak English "not well" or "not at all" Spanish Speak English “very well” or "well" Speak English "not well" or "not at all" Tagalog Speak English “very well” or "well" Speak English "not well" or "not at all" Telugu Speak English “very well” or "well" Speak English "not well" or "not at all" Ukrainian Speak English “very well” or "well" Speak English "not well" or "not at all" Urdu Speak English “very well” or "well" Speak English "not well" or "not at all" Vietnamese Speak English “very well” or "well" Speak English "not well" or "not at all"
15,672 11,898 3,774 233,819 181,998
75.92% 24.08% 77.84%
10,293 376 6,907 6,729 178
96.48% 3.52% 97.42% 2.58%
9,010 7,217 1,793 5,325 5,017 308 10,835 8,052 2,783
80.10% 19.90% 94.22% 5.78% 74.31% 25.69%
Source: American Community Survey, Five-‐Year Estimates.
Growth of Selected Languages in Ohio and NaEonally, 2000-‐2010 Vietnamese
Any Non-‐English Language
Percent Growth Najonally Percent Growth in Ohio
10% 20% 30% 40% 50% 60%
See 2000 U.S. Census, 2010 American Community Survey.
Despite its relative small size, Ohio’s population of speakers of other languages is growing rapidly. The growth rate of Ohioans speaking languages other than English at home is more than five times the state’s growth rate for households speaking only English, but still less than half of the national rate. The growth of individual languages in Ohio also diverges from those rates nationally. In most cases Ohio’s growth trails the growth of the language nationally but in a few – notably Chinese – Ohio outpaces the national rate. Ohioans that speak languages other than English at home are also better English-‐speakers than the same populations in most other states. 64.9% of Ohioans that primarily speak other languages also speak English “very well”. Just 35.1% of these Ohioans are LEP – a rate far below the national average of 41.8% among speakers of other languages aged five or older. Those Ohioans that speak languages that originate in Western Europe and South Asia are more likely to speak English well than their peers that speak languages indigenous to Africa, Latin America, Eastern Europe and East Asia. Despite better-‐than-‐average English proficiency rates among Ohioans that primarily speak other languages, more than 250,000 Ohioans are Limited English Proficient, which presents the State with challenges in providing adequate access to state services for these Ohioans. The impact may be most keenly-‐felt in the state’s education system, where an estimated 39,800 LEP students that natively speak more than 110 different languages were enrolled during the 2010-‐2011 school year -‐ an increase of
Latino Community Report – Language Access in Ohio 199% since 200033. This report, however, will instead examine the impact of Ohio’s LEP population on the provision of legal and medical services in Ohio.
Representative John Patterson House District 99 County
# of LEP
Source: 2012 American Community Survey Five-‐Year Estimates
4. Law Regulating Language Access in Ohio Courts Section 4(A) features a summary of relevant federal and state law, for the sake of maintaining a digestible format and length for this Latino Community Report. For an exhaustive detailing of relevant state and federal law, please see the expanded legal notation in this Report’s appendix, beginning on page 31. Multiple sources of federal and state law mandate the use of an interpreter for LEP individuals in many courtroom settings. Federal sources for this requirement include the U.S. Constitution, two federal statutes, a federal executive order, an administrative guidance and federal court rules. At the state level, the provision of interpreter services in Ohio courts is mandated by state statute, state case law and the Ohio Supreme Court’s Rules of Superintendence. Courts have found that failing to provide an interpreter violates a party’s due process rights in the Fifth and Fourteenth Amendments as well as, in criminal cases, his Sixth Amendment rights to effective assistance of counsel and confrontation of witnesses.34 Courts have held that a criminal defendant is not granted due process when he is not given the opportunity to meaningfully participate in his own trial. They have also reasoned that counsel cannot provide effective assistance through a language barrier without interpretive services and that a defendant’s right to confront witnesses against him is violated when no interpreter is provided for him to understand the testimony. In addition to the U.S. Constitution and attendant case law, the federal Court Interpreters Act mandates the use of an interpreter in most cases where an LEP individual is a defendant in federal court. Accordingly, the federal courts have created a robust set of rules governing the appointment, qualification and compensation of interpreters practicing before them. This law requires the appointment of certified interpreters in federal courts, and contains myriad rules that outline certification protocols as well as judicial appointments of interpreters.
Profile of Ohio's English Language Learners (ELL)/ Limited English Proficient (LEP) Students, Ohio Department of Education, June 2012. 34 nd See, e.g., U.S. ex rel Negron v. New York, 434 F. 2d 386, 389 (2 Circuit, 1970).
Additionally, Title VI of the Civil Rights Act of 1964 prohibits discrimination on national origin grounds, which courts have construed to forbid language discrimination against LEP individuals.35 Federal regulations promulgated by the U.S. Department of Justice and other agencies pursuant to Title VI extended this protection for LEP individuals to cases of unintentional, so-‐called “disparate impact” discrimination as well, and courts have tentatively upheld such regulations. A key executive order from President Clinton drastically expanded the duty federal agencies to deliver services to eligible LEP populations, and the agencies in turn enforce these strictures on all state, local and community institutions that receive federal assistance.36 In short, a thick set of constitutional rights, federal statutes, administrative regulations, judicial rules, agency guidelines for recipients and an executive order combine to protect an individual’s right to an interpreter in legal proceedings. Examples DOJ Federal Assistance Recipients
Example LEP individuals served by DOJ Recipients37
-‐ Police and sheriff's departments -‐ Departments of corrections, jails and detention facilities, including those holding immigrant detainees -‐ Courts -‐ Certain non-‐profit agencies with law enforcement, public safety and victim assistance missions -‐ Other entities with a public safety or emergency service mission
-‐ People in custody, including juveniles, detainees, wards and inmates -‐ People serviced by law enforcement, including suspects, violators, witnesses, victims, those subject to immigration investigations and community members involved in crime prevention -‐ People who encounter the court system -‐Family of the above people
Ohio regulation is no less extensive in this area. The State has an extensive legal scheme both requiring and regulating the appointment of interpreters in the state’s courts. Ohio courts are required to appoint an interpreter where a party or witness “cannot readily understand or communicate”.38 Ohio case law places the discretion in appointing and qualifying an interpreter squarely on the court,39 and requires the court to administer an oath to any appointed interpreter.40 For decades the statute and attendant case law were the sole sources of law and regulation regarding the appointment of interpreters in Ohio courts, and judges were free to exercise broad discretion. That discretion – both in appointment and qualification of an interpreter -‐ can be challenged on appeal, but the challenging party had to be very careful to protect the record at trial. In the absence of an 35
See, e.g., Lau v. Nichols, 414 U.S. 564 (1974). Improving Access to Services for Persons with Limited English Proficiency, Executive Order 13166, August, 2000. 37 “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons”, U.S. Department of Justice, 67 F.R. 117, 41455 – 41472, (2002), at 41459. 38 Ohio Rev. Code §2311.14(A)(1). 39 See, e.g., Fennen v. State, 1903 Ohio Misc. LEXIS 143. 40 Ohio Rev. Code §2311.14(B). 36
Latino Community Report – Language Access in Ohio objection at trial to the failure to appoint an interpreter, an Ohio appellate court will only reverse a decision if the failure to appoint an interpreter constituted either abuse of discretion or plain error41, both of which are high legal standards. It does not constitute abuse of discretion or plain error if a court fails to appoint an interpreter where a party or witness has an imperfect grasp of English, as long as he is able to understand and communicate.42 Likewise, failure to administer the requisite oath is not reversible error when the party failed to object at trial, and if a defendant consents to the appointment of an interpreter at trial, without objection, he or she cannot then raise a challenge to the court’s failure to qualify the interpreter on appeal.43 Ohio courts have not readily found abuse of discretion or plain error in appellate cases turning on the appointment or qualification of an interpreter. When a party does not object, for example, the appointment of a volunteer, informal interpreter does not constitute abuse of discretion.44 To show plain error, the mistake in appointment or qualification must be so egregious that it affects a party’s substantial rights, causes a miscarriage of justice or causes an unfair trial,45 and Ohio courts have been no quicker to find plain error in these cases. It is not plain error for a court to allow a prosecutor to call the defendant’s interpreter as a rebuttal witness,46 for example. Nor is it plain error for a court to fail to appoint an interpreter during the jury selection process.47 Courts have adopted a similar approach in appellate cases where the qualification, rather than appointment, of an interpreter is at issue. Ohio courts have said that the court cannot simply appoint a relative or a bilingual person, but once more that will not always constitute reversible error.48 Still, family is not totally barred, and the court must qualify the interpreter as normal49, though the appointment of an interpreter with an obvious conflict of interest – like a defendant’s wife and co-‐ defendant50 -‐ is reversible error.
5. Language Access in Ohio Courts A courtroom defendant’s constitutional rights to due process, effective assistance of counsel and confrontation of witnesses must be observed in Ohio courts as well as federal courts. The states must 41
State v. Saah, 67 Ohio App. 3d 86, 585 N.E. 2d 999 (1990). State v. Castro, Ohio App. LEXIS 4105 (1995). 43 State v. Rosa, 47 Ohio App. 3d 172. 44 Ohio v. Fonseca, 124 Ohio App. 3d 231, 705 N.E. 2d 1278 (1997). 45 State v. Rodriguez, Ohio App. 3d District No. 9-‐01-‐01, 2001 Ohio 2179 (2001). 46 th State v. Gerardi, 2002 Ohio 732, 5 District (2002). 47 th State v. Frunza, 2003 Ohio 4809, 8 District (2003). 48 th State v. Gandarella, Ohio App. 8 District No. 36129 (1971). 48 th In re Kinney, Ohio App. 7 District, 2001 Ohio 3280 (2001). 48 th State v. Torres, Ohio App. 8 District No. 64335 (1993). 42
honor the constitutional rights of their citizens because the Fourteenth Amendment applies the Bill of Rights to the states. Likewise, all state courts receive money from the U.S. Department of Justice, and so must provide meaningful access to LEP individuals in accordance with the Department’s Guidance on Title VI compliance for recipients of federal assistance. But beyond complying with the basic mandates in the U.S. Constitution and the overtly flexible guidelines from the Department of Justice, the State is not obligated to regulate the provision of language services in its courts. Ohio was and is not required to adopt a statute addressing the provision of an interpreter in its courts, and its judicial system remains free of any imperative to develop an accompanying body of state case law. Likewise, the State is under no obligation to promulgate a robust set of rules akin to the rules used for interpreters in federal courts for use in its own courts. Yet it has done exactly that. This report is, at its heart, a juxtaposition of two state-‐level enforcement models for the provision of language services to the quarter of a million Ohioans who are limited English proficient. Both have advantages and disadvantages. The first model is in the provision of these services in Ohio’s courts, and in this model Ohio has been proactive. This model has led to excellent provision of language access to Ohio’s LEP citizens that find themselves in Court. The model’s rigorous standards for the certification and maintenance of a group of qualified interpreters ensures that LEP Ohioans are able to meaningfully participate in their trials, and that their constitutional and civil rights will be protected. With Ohio’s model, no Court should fear the withdrawal of federal funding due to Title VI noncompliance. These same high standards, however -‐ combined with compensation rates that do not reflect the exhausting demands on these interpreters -‐ have led to a dearth of available and appropriate interpreters. Additionally, this proactive enforcement model is costlier, at least as an initial investment from the State, than the model under which Ohio’s medical providers operate. Ohio went beyond mere statute and case law. In December of 2003, the Supreme Court of Ohio created the Interpreter Services Program, which codified statewide standards for the appointment and qualification of interpreters in Ohio courts. Through the promulgation of Rules of Superintendence, the Supreme Court sought to regulate and normalize the constitutional protection of the rights of LEP individuals in Ohio courts. These Rules are promulgated according to the Ohio Constitution51, and are binding on all courts of appeal, courts of common pleas, county courts and municipal courts in Ohio.52 This excludes only the state’s Supreme Court itself and mayor’s “courts”, which generally are not treated as true courts anyway. The rules mandate than an interpreter appointed in Ohio be certified53, and the process for an interpreter to become certified is arduous. An applicant for certification must be a U.S. citizen, legal resident or otherwise have a legal right to work in the United States, for starters, and the applicant undergoes a background check to verify his eligibility and to check for any disqualifying convictions for crimes of “moral turpitude.”54 Applicants must take an orientation course -‐ which in most cases comes 51
Ohio Const. Art. IV, Sec 5(A)(1). Ohio Sup. R. 1. 53 Ohio Sup. R. 88. 54 Ohio Sup. R. 81 (B & C). 52
Latino Community Report – Language Access in Ohio with an accompanying fee – to cover the basics of interpreter ethics, modes of interpretation and legal procedure and terminology.55 The first obstacle for aspiring certified interpreters is passing a written exam drafted by the National Center for State Courts (NCSC).56 To advance, and applicant must score 80% of better in exam sections on English, grammar, court terms and professional conduct, and applicants that fall short of this mark must wait a year to take the exam again.57 Following the passage of the written exam, applicants must take a training course, for a fee, focused on the simultaneous, consecutive and sight interpretation methods of interpretation.58 Finally, to become fully certified, an applicant must score 70% or better on all sections of the oral examination administered by the Supreme Court of Ohio.59 Applicants that score less than 70% but higher than 60% are “provisionally qualified” for 24 months.60 Ohio’s certification scheme also contains reciprocity provisions for interpreters certified by the federal court system, by another CLAC member state’s certification program, or by the National Association of Judiciary Interpreters and Translators.61 Upon their certification, Ohio’s judicial interpreters must take an oath or affirmation promising to abide by the Code of Professional Conduct for Court Interpreters and Translators62, and must take 24 credit hours of continuing professional education – six of which must be on ethics – every two years.63
Ohio Sup. R. 81 (D). Ohio Sup. R. 81 (E). 57 Id. 58 Ohio Sup. R. 81(F) 59 Ohio Sup. R. 81 (G). 60 Id. 61 Ohio Sup. R. 81 (I). 62 Ohio Sup. R. 81 (J). 63 Ohio Sup. R. 85 (A). 56
Geographical Distribution of Cases Involving Interpreters in Ohio Courts, 2010 Fulton
# of Cases None Reported
Latino Community Report – Language Access in Ohio These rules also provide strict provisions for the appointment of interpreters in Ohio courts, but maintain some autonomy and discretion for courts. Ohio courts must appoint an interpreter where a party or witness requests an interpreter if he or she is LEP and the court deems it necessary or, in the alternative, in the absence of such a request if the court deems it necessary.64 In making this determination, a Court must conduct an examination of the party or witness on the record and using an interpreter, but this interpreter need not be certified.65 Parties may waive the appointment of an interpreter, but they must have a interpreter present when they do so (who does not need to be certified), and a court can ignore this waiver for the party’s protection.66 Courts must appoint an interpreter certified according to the provisions outlined above, except where no certified interpreter is “reasonably available”.67 In that instance, the Court may appoint a provisionally certified interpreter, as above, if the court deems it appropriate after considering the gravity of the proceedings and the costs of rescheduling.68 If neither a certified interpreter nor a provisionally certified interpreter is reasonably available -‐and the Court deems it appropriate in light of the gravity of the proceedings and the practicability of rescheduling – the court may appoint an informal interpreter who demonstrates to the satisfaction of the court proficiency in both English and the target language, and who the court believes is competent to interpret proceedings.69 If a court appoints such an informal interpreter, the court must qualify him – by documenting his or her experience, knowledge and training -‐ and administer an oath to the individual.70 Additionally, when either a provisionally certified or informal interpreter is appointed, the court must document for the record the reasons for the appointment of a non-‐certified interpreter and the steps the court first took to secure one.71 Finally, Ohio’s rules require the appointment of more than one certified interpreter when a court function will last two or more hours and require continuous simultaneous or consecutive interpretation, when a proceeding will take less than two hours but its complexity warrants the appointment of a second interpreter or when more than one party, witness or juror require an interpreter’s services.72 Extensive regulation in this model has significant advantages for Ohio and the state’s LEP citizens. First among those advantages, this regulatory scheme is a guarantor of constitutional protections for people over whom Ohio is exercising jurisdiction, many of whom will be residents or citizens of the State. It protects the rights of Ohioans to due process, effective assistance of counsel and the confrontation of witnesses. It guarantees fairness and access to justice for all Ohioans, statewide, regardless of the court they’re before or language they speak, which creates desirable predictability and faith in the courts as just institutions. Further, the tenets of the program and the promulgated rules are clearly within the 64
Ohio Sup. R. 88 (A)(1&2). Ohio Sup. R. 88 (G). 66 Ohio Sup. R. 88 (H). 67 Ohio Sup. R. 88 (D)(1). 68 Ohio Sup. R. 88 (D)(2). 69 Ohio Sup. R. 88 (D)(3). 70 Id. 71 Ohio Sup. R. 88 (D) (2&3). 72 Ohio Sup. R. 88 (F). 65
guidelines given by the U.S. Department of Justice for Title VI compliance, and as they mirror the rules adopted by federal courts and other states, represent the highest standard in the provision of interpreters to LEP individuals accessing Ohio’s justice system.
Cases Requiring Interpreters in Ohio Courts 2005-‐2010
Number of Cases
Number of Languages
Source: Language Demographics in Ohio Courts.
The most important advantage of a thoroughly regulated system like this, however, is in the accuracy that it provides. When stakes are as high as they often are in court – parental rights, property rights, incarceration and commitment are all often at stake – the accuracy of the communication done through an interpreter is of paramount importance. The use of interpreters certified under Ohio’s rigorous standards, creates more faith in the proceedings and likely aids judicial economy by decreasing the number of cases each year that are appealed under some assignment of error regarding the appointment or qualification of an interpreter. For all of its advantages, however, this model has a couple of serious disadvantages. First, the rigorous and expensive certification process combines with incongruously meager interpreter compensation to create a serious dearth of interpreters in Ohio. Ohio has just 57 interpreters statewide, and just 29 additional provisionally certified interpreters.73 The shortage is not just in numbers but in language competencies as well. Those 57 interpreters are certified in a total of just four languages – Spanish, Russian, French and Arabic74 -‐ and among those Spanish is dominant. Just six of those interpreters are certified in Russian, three are certified in French, and only one is certified in Arabic.75 In 2010, Ohio had 24,770 cases which required the appointment of an interpreter, and these cases required service 73
Roster of Certified, ASL-‐Eligible and Provisional Court Interpreters, Supreme Court of Ohio, January 2014. “Language Demographics in Ohio Courts”, Supreme Court of Ohio, 2012. 75 Id. 74
Latino Community Report – Language Access in Ohio delivery in 66 different languages.76 In fact, over the last several years Ohio averages about 2,071 cases per year in which an interpreter was needed for a language that no certified Ohio interpreter spoke.77 To meet this incredible demand, Ohio’s 57 certified interpreters would have to each speak Spanish and at least one other language that none of the others spoke – some would have to speak two or more such languages. Each interpreter would also have to handle 434 cases per year. It’s worth noting that Ohio’s poor compensation rates for certified interpreters incentivize the prioritization of federal work or work in other, better-‐paying states for Ohio’s scarce certified interpreters. Finally, the program is also new, and is not yet particularly well-‐understood in the ranks of the Ohio judiciary. Even now, judges in many rural jurisdictions around the state aren’t familiar with Ohio’s regulations on the appointment and qualification of court interpreters.
Source: Language Demographics in Ohio Courts.
The program does require state resources. The expense of promulgating the rules, hiring staff, creating courses and study materials, administering exams and hiring the requisite staff to implement these rules is significant. In 2010, the estimated total cost of the interpreter services program was $1,102,421.21 – a significant increase compared to the years prior to the advent of the program.78 House Bill 309, which has passed the Ohio House of Representatives and is pending in the 130th General Assembly, would amend Ohio statute to allow for the costs of an appointed court interpreter to be assigned to a party or witness unless that party or witness is indigent.79 Such a change may be both controversial and legally problematic, however. In 2013, the Michigan Supreme Court adopted a similar Rule -‐ allowing state courts to pass interpretation costs to LEP parties that were not indigent.80 In a subsequent letter to the Michigan Attorney General’s Chief Legal Counsel, the U.S. Department of Justice expresses its opposition to the adoption of the Rule and its “grave concerns that the Rule will result in national origin 76
Id. Id. 78 Id. 79 Gold, David. House Bill 309 Bill Analysis, Ohio Legislative Service Commission, January 2014. 80 Mich. Ct. R. 1.111. 77
discrimination”81 and reminds Michigan that its own courts – like Ohio’s are right now – are participating in a cooperative program review82 with the Department of Justice.
6. Law Regulating Language Access in Ohio Hospitals Ohio’s medical institutions are subject to a smaller set of applicable federal laws in the provision of language access services than their courthouse counterparts. While there is much applicable federal law, in addition to state law, which governs the provision of language services in courts, very few of these sources of law exist when language services are provided in medical contexts. Constitutional rights are not implicated, for starters. While the inadequate provision of language services to an LEP individual may violate federal statute and common law, an individual’s constitutional rights to due process, effective assistance of counsel and confrontation of witnesses are not at stake. Likewise, there is no federal statute independent of Title VI governing the provision of language access in the healthcare industry. Accordingly, there is therefore no body of independent case law dealing with these absent provisions of federal law. The healthcare industry is not governed centrally, as the state and federal courts are by their respective supreme courts, either, so there’s no set of rules of conduct governing language access in the provision of medical services. That leaves just Title VI of the Civil Rights Act with which Ohio hospitals must comply in their provision of language services. The departmental guidance on Title VI compliance issued by the U.S. Department of Health and Human Services (HHS) is, therefore, the sole source of language access laws by which Ohio’s medical service providers must abide. The Department of Health and Human Services (HHS) adopted a Guidance based on the DOJ Guidance in 2003.83 In the interest of consistency, agencies were asked to use the DOJ Guidance as a model, and that’s exactly what HHS did, with few modifications. For example, the HHS Guidance suggests referrals among doctors and other providers with language-‐competent staffers as long as the matter is not urgent and the patient is not harmed.84 Except in emergency settings, HHS recipients are never to demand that a patient use an informal interpreter85, and in situations where a hidden conflict of interest is foreseeable – such as if a patient arrives with signs of domestic abuse and insists that her husband translate – or when a provider determines that the medical terminology is too complex for an informal interpreter to competently communicate, HHS recipients must provide an interpreter anyway.86 The Department of Health and Human Services also has the same guidelines for determining vital documents that must be translated that DOJ sets forth. Their list of likely vital documents includes: 81
Samuels, Jocelyn. U.S. Department of Justice letter to Matthew Schneider dated 17 September of 2013. Id. 83 68 F.R. 153, 47311 – 47323. 84 Id. At 47315. 85 Id. At 47318. 86 Id. 82
Latino Community Report – Language Access in Ohio consent and complaint forms; intake forms with the potential for important consequences; written notices of eligibility criteria, rights, denial, loss, or decreases in benefits or services; actions affecting parental custody, child support, or other hearings; notices advising LEP persons of free language assistance; 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; or applications to participate in a recipient’s program or activity or to receive recipient benefits or services. Non-‐vital documents, on the other hand, might include hospital menus, third-‐party materials distributed by the institution as a public service, large documents such as enrollment handbooks, and general information about the program used for informational purposes only. The HHS guidance closes by outlining a similar enforcement protocol to the Department of Justice’s -‐ Title VI compliance among HHS recipients is enforced by the Department’s Office of Civil Rights.87 Finally, the Guidance closes with an “FAQ” for HHS recipients seeking Title VI language compliance. This is the only major source of law specific to medical language access in Ohio. Example HHS Federal Assistance Recipients88 -‐ Hospitals, nursing home, home healthcare agencies and managed care organizations -‐ Universities and other entities with health or social service research programs -‐ State, county and local health agencies -‐ State, county and local welfare agencies -‐ State Medicaid agencies -‐ Programs for families, youth and children -‐ Head Start programs
Example LEP individuals served by HHS Recipients -‐ People seeking Temporary Assistance for Needy Families and other social services -‐ People seeking health care and health-‐related services -‐ Community members seeking to participate in health promotion or awareness activities -‐People that encounter the public health system -‐ Parents and legal guardians of minors eligible for coverage concerning such programs
7. Language Access in Ohio Hospitals In stark contrast to Ohio’s extensive regulation of court interpreters, the state has not legislated or regulated medial interpreting at all. Ohio medical offices, clinics, hospitals, nursing homes, health & welfare agencies and all of the vendors, contractors and subcontractors they employ, therefore, are subject to absolutely no state regulation of the provision of interpretive services. The state’s vast industry is valued at hundreds of billions of dollars and it employs hundreds of thousands of Ohioans. 87
Id. At 47321-‐47322. Id. At 47313-‐47314.
This is diametrically opposite to the approach in our courts. When an LEP Ohioan encounters the state courts, he or she can reasonably expect the provision of a competent, qualified interpreter and have confidence that his or her English language impairment will not interfere with fairness or with the application of justice. When one of Ohio’s quarter-‐of-‐a-‐million LEP residents walks into a hospital in Ohio, however, outcomes are unpredictable and LEP status is a legitimate concern. The State of Ohio does not independently regulate Title VI prohibitions on language discrimination in the medical sector as it does in the state’s courts. National origin is included in the State’s non-‐ discrimination clause, 89 however, and Ohio courts are bound by the U.S. Supreme Court’s determination that discrimination against an LEP individual constitutes discrimination on national origin grounds. Further, all state agencies receiving federal dollars and all health-‐oriented community organizations and medical institutions that receive those dollars are subject to the HHS guidance on Title VI compliance. But the Ohio Civil Rights Commission, the State’s investigatory agency for discriminatory practices, does not have jurisdiction to enforce federal law, or to enforce state anti-‐discrimination law in the state’s healthcare industry. Many states, including those with significant immigrant populations like Texas, California and New York90, have created independent regulatory schemes governing medical interpreting. Altogether , this means that the Office of Civil Rights at the U.S. Department of Health and Human Services – specifically the Midwest regional office in Chicago – is the sole enforcement authority for the provision of language access in healthcare in Ohio. In this vacuum of state regulation and enforcement, institutions in Ohio are free to decide upon the extent and type of language services they will offer, so long as such provisions satisfy the HHS guidance on Title VI compliance. Some institutions use videoconferencing interpretation services, some use language lines, some have staff interpreters, some hire interpreters as contractors and some contract with local community organizations which provide interpreter services. The variation in services offered is tremendous – rural institutions offer fewer services in fewer languages, for example. Hospitals in Columbus and central Ohio translate vital documents into Somali while a hospital in Toledo would not. Some healthcare institutions also rely too often on informal interpreters – a patient’s family or friend – in the provision of medical services. In the 1990’s, one central Ohio nonprofit – the Ohio Hispanic Coalition (OHCO) – introduced their Promotoras de Salud Program, wherein trained bilingual community health workers were placed at the Columbus Neighborhood Health Centers and at Columbus Public Health clinics. As a result of this partnership, OHCO was instrumental in assisting the Universal Healthcare Action Network of Ohio (UHCAN Ohio) in addressing the need for language access policies at local hospitals. OHCO brought other community based-‐organizations -‐ such as Asian American Community Services, Somali Women & Children Alliance, Jewish Family Services and the Cambodian Mutual Assistance Association -‐ to become part of what became a multi-‐agency collaborative. An assessment was created and each agency conducted the assessment within its own community. OHCO conducted the assessment of language access services to LEP Hispanics in central Ohio medical institutions. Each of the agencies encountered horror stories in their research – anecdotal evidence of 89
See Ohio Revised Code §4112.02. See, e.g., California Standards for Healthcare Interpreters, California Healthcare Interpreters Association, 2002.
Latino Community Report – Language Access in Ohio the use of children as young as three as medical interpreters and more. They found that the provision of language access at central Ohio medical institutions was woefully insufficient. The Coalition invited the United States Department of Health and Human Services Office of Civil Rights in Chicago to visit Columbus to hear from the community about their experiences and the lack of language services accessibility. As a result of this, the collaborative submitted a complaint with the HHS Office of Civil Rights in Chicago. OCR opened an investigation and reviewed several hospitals in central Ohio, and demanded corrective measures be implemented at these hospitals for them to remain compliant with Title VI. In the face of this and other pressure – particularly the renewed federal emphasis on language access at the turn of the century manifested in Executive Order 13166 – central Ohio hospitals began hiring and contracting interpreters in earnest. Shortly thereafter, the Ohio Hispanic Coalition and the collaborative received a grant to begin a medical interpreting program within each community in central Ohio. Today, despite increasing competition from for-‐profit interpretive services agencies, the Ohio Hispanic Coalition’s program is still running, and it’s grown. It is now statewide and offers services in over 50 of the most used-‐languages today. The Ohio Hispanic Coalition trains its interpreters according to standards modeled by national professional organizations for medical interpreters. There are several such organizations, including the National Council on Interpreting in Healthcare, the National Board of Certification for Medical Interpreters and the International Medical Interpreters Association, to name a few. None of these are governmental agencies, but in the absence of standardized certification requirements in Ohio or federally, their guidelines and programming are authoritative in the field. The OHC training is several days long and focuses heavily on medical terms and procedures, ethical standards and interpretive techniques. A medical professional conducts eight hours of medical terminology training on the last day. At the conclusion of the training, applicants must pass an examination before they may interpret for OHCO. The coalition provides over 40 hours of training to their interpreters. Note that this training process is not part of any standardized certification scheme – it is simply the training protocol at one community organization offering medical interpreting in Ohio. This model, where Ohio does not become involved at all with medical language services at all, bears its own set of advantages. First, the State of Ohio spends nothing on its medical interpreting program, compared to more than a million annually on the legal interpreter program. This deregulated system also offers local control, which means an institution has the flexibility to choose language services appropriate to its service population but within its budget. In the legal interpreting program, by contrast, every court in the state must follow the same rigid rules in the provision of interpreter services, regardless of the population they serve or their budgets. Ohio’s laissez faire approach in medical interpreting is much more market-‐driven and flexible than the state’s approach to legal interpreting. This system also, of course, has disadvantages. Medical interpreting is less reliable, accurate, egalitarian or predictable than legal interpreting in Ohio. An LEP Ohioan seeking service at a medical institution in Ohio cannot predict the manner or adequacy of the language services to which he or she will have access. Instead, the budget, manner and location of the facility he chooses will determine the variety 27
and quality of language services offered. This is inherently unequal – demographics demand that LEP Ohioans in urban areas have hospitals that offer much more in the variety and quality of language services than their rural counterparts. Further, the reliable accuracy that certified interpreters provide to legal proceedings is absent in medical interpreting in Ohio. The Ohio Hispanic Coalition still sees anecdotal evidence of Title VI noncompliance as well, particularly regarding the use of informal interpreters. Hospitals use young children as interpreters occasionally, and potential abusers or other friends or relatives of the patient who may have conflicts of interest, are used as interpreters with some regularity. Finally, there is also a shortage of medical interpreters in Ohio – even in the absence of an arduous certification program. While the shortage is not nearly as severe, anecdotally there are persistent interpreter shortages at medical facilities in Cleveland, Lorain and Toledo.
8. Conclusion – Could Compensation Be the Key? Each of the two models for the provision of language services in Ohio – in courts and in hospitals – has advantages and disadvantages for LEP Ohioans, the State of Ohio and the institutions themselves. For the most part, as the two models are opposites -‐ their advantages differ and their disadvantages differ. The legal model prioritizes quality and universality while the medical model prefers flexibility and frugality, for example. Both also have serious but disparate drawbacks. The perfect solution combines their strengths and minimizes their weaknesses. But they both face one shared problem to differing degrees – a shortage of interpreters relative to demand. Compensation for qualified, competent interpreters is low for several historical, economic and demographic reasons. First among them is the reality that language skills simply are not valued in the United States or in Ohio in the way that they are elsewhere in the world. Demographically, immigration to the United States slowed to a trickle between the Great Depression and the 1970’s. The great waves of immigrants from Poland, Italy, Germany, Ireland and elsewhere in Europe were by then assimilated groups that had spoken English, often exclusively, for a generation. This resulted in multi-‐generational linguistic isolation in the United States, where English was the only language spoken with any regularity. By the time immigration to the United States picked up in earnest again in the 1970’s, the country was isolated linguistically and did not value other languages. While that axiom may be shifting, the shift has been slow. Today, for example, in many parts of the country open hostility to languages other than English is almost a requisite for “patriotism”. Further, many states and municipalities have considered passing “English only” laws, and some company policies have discouraged the use of languages other than English in the workplace. Because language skills are not valued in the U.S., market forces do not prop compensation rates for language professionals. A bilingual employee is an asset for an employer – there is simply a broader scope of work he or she is capable of than an otherwise identical but monolingual colleague. This is increasingly true as free trade, international investment and loosened immigration laws propels the 28
Latino Community Report – Language Access in Ohio disparate pockets of humanity close together toward globalization. Yet that employee’s language skill, which is absolutely and indisputably an asset, will earn him no more than that monolingual colleague. While some corporations are beginning to offer “bilingual differentials” and other incentives to attract a labor force with diverse language skills, it is not yet prevalent. Bilingual employees are not paid more for their expanded value because our economy does not yet value language skills. Accordingly, students and young professionals choose to study and develop other skills in lieu of language skills. Because compensation is so low, students do not seek and schools do not offer interpreting or translation programs independently from their foreign language programs, even though the requisite skills to translate or interpret are separate and distinct from general language proficiency. Compounding this problem, the rigorous standards of the court interpreters program in Ohio and others like it will further dissuade qualified interpreters from pursuing certification or careers as interpreters. Compensation for Ohio Court Interpreters The solution, of course, is artificially inflating interpreter compensation. Federal courts, agencies and institutions do this already, and many states have followed suit. Ohio’s interpreters earn much less than their counterparts in other states, and will always choose to work in federal court over state court because it pays better. In a letter to a couple of congressional leaders last year, the National Association of Judiciary Interpreters and Translators called upon Oregon to raise its interpreter compensation rates for these same reasons.91 If legal interpreters in Ohio were compensated more competitively, students and young professionals would begin to pursue these careers. If demand were sufficient, community colleges and other educational institutions could begin offering coursework in interpreting and translation techniques, independent of the language in question. This would, however, add costs to an already costly system. Many county courts particularly, in the State’s rural areas, do not budget sufficiently for the costs of interpreters as it is. Further, these may not even be the best costs to add. While both systems have advantages and disadvantages, a certification protocol for medical interpreters in Ohio would vastly improve the provision of language services to Ohio’s large and growing LEP population. It would compound the interpreter shortage as well, but this could be offset by making Ohio’s interpreter compensation rates more competitive. Ultimately, as ever, 91
Estill, John. Letter to Oregon State Senator Jackie Winters and State Representative Jennifer Williamson, April 2013.
Ohio’s elected leaders and the General Assembly must find the wisest course for the all Ohioans – even those 250,000 that struggle with English.
Latino Community Report – Language Access in Ohio
Appendix -‐ Federal and State Laws Governing Language Access in Legal and Medical Contexts A. Federal Law on Language Access in the Provision of Legal Services A(1). The U.S. Constitution Demands Language Services for LEP Individuals in Legal Proceedings The Supreme Court of the United States recognized that when a court failed to appoint an attorney or an interpreter for an LEP criminal defendant, he “was denied the due process of law which the Fourteenth Amendment requires” as early as 1948.92 Since then, federal courts have overwhelmingly indicated that an LEP criminal defendant has a right to an interpreter, couched in the U.S. Constitution.93 The cases indicate the due process clause in the Fifth Amendment94 and, particularly, the Fourteenth Amendment95, make it imperative that a defendant is given the opportunity to understand and participate in his trial.96 Likewise, courts have held that the failure to provide an interpreter to an LEP criminal defendant violates his Sixth Amendment rights97 to have the effective assistance of counsel and confront witnesses against him.98 In U.S. ex rel Negron v. New York, a defendant spoke only Spanish and was convicted of murder at trial.99 The defendant’s attorney did not speak Spanish, and only two of the witnesses that testified spoke Spanish. Defendant was not provided an interpreter for the testimony of the English-‐speaking witnesses.100 The Court ruled that the Fifth, Fourteenth and Sixth Amendments guaranteed an LEP criminal defendant an interpreter.101 The Court also indicated that it was the State’s duty to pay for such an interpreter and advise LEP defendants of this right.102
A(2). Federal Statutes, Rules and Regulations Mandate Language Services for LEP Individuals in Legal Proceedings Congress codified the interpretation of the U.S. courts in the Court Interpreters Act.103 This statute authorized the Director of the Administrative Office of United States Courts to adopt rules regarding the appointment, certification, qualification and compensation of interpreters used in federal courts.104
Marino v. Ragen, 332 U.S. 561, 562 (1948). st See, e.g., U.S. v. Carrion, 488 F. 2d 12, 14 (1 Circuit, 1973). 94 U.S. Const., amend. V. 95 U.S. Const., amend XIV. 96 nd See, e.g., U.S. ex rel Negron v. New York, 434 F. 2d 386, 389 (2 Circuit, 1970). 97 U.S. Const., amend VI. 98 U.S. ex rel. Negron, supra, at 389. 99 Id. at 386. 100 Id. 101 Id. at 389. 102 Id. 103 28 U.S.C. §1827. 104 Id. 93
These rules apply to all federal courts except the U.S. Supreme Court, and apply to all in-‐court criminal proceedings and all in-‐court civil proceedings in which the United States is the plaintiff.105 This statute led to the promulgation of a robust system of rules regarding the use of interpreters in federal courts. Federal courts must appoint certified interpreters for LEP parties under the above circumstances, and such appointments also include pretrial and probationary hearings and consultations.106 These rules also cover an interpreter’s qualifications. Interpreters can be either “certified”, “professionally qualified” or “language-‐skilled/ad hoc.”107 Certified interpreters in federal courts must have taken and passed the Federal Court Interpreter Certification Examination.108 Thus far, the Administrative Office has created a testing and certification program for Spanish, Navajo and Haitian Creole.109 Interpreters in all other languages are “professionally qualified” and, to work in a federal court, must either have passed the State Department’s conference or seminar interpreter test – or the United Nations interpreter test -‐ in English and the target language, or be a member in good standing of the Association Internationale des Interprètes de Conférence (AIIC); or The American Association of Language Specialists (TAALS) whose membership qualifications include fluency in both English and the target language.110 Federal courts must appoint a certified interpreter if one is reasonably available.111 If such an interpreter is not reasonably available – because, for example, there is no certification program for the language in question -‐ the Court may appoint a professionally qualified interpreter instead, if one is reasonably available.112 Only if neither is available may the Court appoint an ad hoc interpreter who is skilled in English and the target language, and the Court must voir dire the interpreter to determine his or her qualifications and experience.113 The federal rules also set compensation for the various levels of interpreters and mandate administration of an oath for interpreters.114 Court interpreters for LEP individuals are also required by civil rights law. Title VI of the 1964 Civil Rights Act prohibits federal agencies from discriminating in the provision of services on grounds of race, color or national origin.115 Specifically, Section 601 says “no person shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to
Guide to Judiciary Policy, Vol. 5, §210.10. Id. at §235.10. 107 Id. at §320. 108 Id. at §320.10. 109 Id. 110 Id. at §320.20.20. 111 28 U.S.C. §1827. 112 Guide to Judiciary Policy, supra, at §320.20. 113 Id. 114 Id. at Chapter 3, Chapter 4. 115 42 U.S.C. §2000 et. seq. 106
Latino Community Report – Language Access in Ohio discrimination under any program or activity” covered by Title VI.116 The following section, 602, authorizes these agencies to promulgate rules designed to enforce this provision.117 The U.S. Department of Justice has drafted several regulations designed to enforce this prohibition on discrimination. One such regulation extended this prohibition on discrimination to all institutions that were recipients of federal funds.118 Further regulations from the U.S. Department of Justice require proactive steps for guaranteeing language access in communities with large populations of linguistic minorities, saying “where a significant number or proportion of the population eligible to be served or likely to be directly affected by a federally assisted program... needs service or information in a language other than English in order effectively to be informed of 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.”119 The DOJ and other agencies have since adopted several other regulations, including regulations prohibiting conduct or policies that result in disparate impacts upon LEP individuals.120 In 2000, President Clinton further strengthened the prohibition of discrimination against LEP individuals in Title VI by signing Executive Order 13166. Entitled “Improving Access to Services for Persons with Limited English Proficiency”, the Executive Order requires federal agencies to examine their services and identify a need for those services among LEP individuals.121 The order requires that the agencies then work to install protocols to ensure that LEP individuals have “meaningful access” to those services.122 Finally, and critically, the Order requires that federal agencies work to ensure that institutions receiving federal dollars provide the same access to the people they serve.123 That is, not only are federal agencies subject to Title VI compliance, but any institution that receives federal money is as well. The Executive Order also charged the Department of Justice with guiding other agencies in enforcing Title VI compliance on the recipients of their assistance.124 It was not immediately clear from Title VI how language discrimination was related to national origin discrimination. The Supreme Court of the United States ruled in Lau v. Nichols, however, that regulations promulgated by another federal agency forbade conduct which resulted in a disparate impact on LEP individuals, as that conduct resulted in national origin discrimination.125 In that case, a San
Id. Id. 118 28 C.F.R. §42.104(b)(2). 119 28 C.F.R. §42.405(d)(1). 120 See, e.g., Lau v. Nichols, 414 U.S. 564 (1974). 121 Improving Access to Services for Persons with Limited English Proficiency, Executive Order 13166, August, 2000 122 Id. 123 Id. 124 Id. 125 See Lau v. Nichols, supra. 117
Francisco school district with a large number of students of Chinese origin was obligated to provide them with a meaningful access to federally-‐funded education programs.126 The Court has not gone as far to protect LEP individuals from discrimination as it has other protected classes, however. While the Court in Lau acknowledged that regulations promulgated under §602 that forbid disparate impact on LEP individuals are valid, the Court noted in Alexander v. Sandoval that the statute itself prohibited only intentional discrimination, and not the unintended discriminatory outcomes conduct or policies that result in disparate impact on LEP individuals.127 The Court also rejected the notion that private individuals have an implied right of action to sue for disparate impact discrimination, instead noting that an agency’s power to defund an institution was the enforcement mechanism that Congress intended.128 The Alexander Court did acknowledge once more that federal regulations promulgated under §602 could legitimately prohibit disparate impact discrimination, but was careful to be clear that it was making that assumption solely for the purpose of deciding the Alexander case.129 The Court’s rejection of a private right of action under Title VI for policies resulting in disparate impacts on LEP individuals – and it’s weak-‐to-‐nonexistent endorsement of agency regulations that do the same -‐ leaves the door ajar for further suits challenging the legitimacy of regulations like these. A fringe of legal scholars believe that the Alexander case impliedly invalidated all such regulations. No court, however, has thus far taken that position, and the Department of Justice under President George W. Bush reaffirmed these regulations and Executive Order 13166, noting that the Court did not strike down any such regulations in Alexander.130 Accordingly, U.S. statute forbids intentional discrimination against LEP individuals and myriad federal rules and regulations prohibit agencies and funding recipients from practices that result in disparate impacts on LEP individuals. Such agencies and organizations are required to provide appropriate language services at no cost to LEP individuals.
1(C). Federal Regulations on Title VI Compliance Apply to All Non-‐Federal Institutions that Receive Federal Assistance The U.S. Department of Justice issued a “Guidance” in 2002, under the terms of Executive Order 13166, for recipients of federal funds on providing access to LEP individuals in order to remain in compliance with Title VI. The Guidance begins by charging all recipients of federal financial assistance with providing meaningful access to LEP people and defining the scope of federal financial assistance to include grants, training, donation of surplus property, use of equipment, “and other assistance.”131 Covered institutions are reminded that Title VI compliance requirements extend to a recipient’s entire operation – not just
Id. Alexander v. Sandoval, 532 U.S. 275 (2001) at 280. 128 Id. at 289-‐290. 129 Id. at 281. 130 “Memorandum for Heads of Departments and Agencies, General Counsels and Civil Rights Directors”. Assistant Attorney General Ralph F. Boyd, Jr, U.S. Department of Justice. October 26, 2001. 131 “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons”, U.S. Department of Justice, 67 F.R. 117, 41455 – 41472, (2002), at 41459. 127
Latino Community Report – Language Access in Ohio the program that is federally funded – and to any sub-‐recipients federal assistance.132 Finally, the DOJ reminds recipients in jurisdictions where English is the official language that their institutions are nevertheless obligated to be in compliance with Title VI.133 The Guidance defines LEP as native speakers of another language that have difficulty speaking, writing, reading or understanding English and lists, not exclusively, some persons that must be provided with language assistance.134 They include suspects, violators, victims, witnesses, inmates, detainees, those subject to immigration proceedings and those that encounter the court system, as well as their family members.135 The Guidance also lists institutions obligated to comply with Title VI, and then turns to the specific requirements for providing meaningful access. The DOJ calls their evaluation model “flexible and fact-‐dependent standard”, but begins with an individualized assessment of four factors.136 The stated goal is to ensure the provision of services to LEP individuals without unduly burdening small governments, businesses or non-‐profits, and the Guidance encourages recipients to examine all programming and create an LEP service delivery plan for each program based on the four factors.137 Those factors are:138 1. The number or proportion of LEP individuals served or encountered in the eligible service population, and; 2. The frequency with which LEP individuals come into contact with the program, and; 3. The nature and importance of the program, activity or service provided, and; 4. Resources available and costs to recipient The DOJ first asks recipients to measure the LEP population in their service area, which could be defined by a grant, by jurisdiction or by other means and encourages agencies to consider the LEP parents and family members of minors.139 It tells agencies to examine census data and population estimates from state and local governments as well as local community organizations, and to analyze the breadth and scope of LEP encounters the agency has had in the past – keeping in mind that many eligible populations may be historically underserved due to language barriers.140 The second factor asks recipients to analyze the frequency of their encounters with LEP persons as well as the languages they speak – an institutions serving Spanish-‐speakers daily, for example -‐ may need assistance with Spanish that outweighs language assistance for languages encountered much more rarely.141 Institutions still must have a plan for providing services to rarely-‐encountered linguistic minorities.142 The Guidance also contemplates the nature and importance of the service provided, and 132
Id. Id. 134 Id. 135 Id. 136 Id. 137 Id. 138 Id. 139 Id. at 41460. 140 Id. 141 Id. 142 Id. 133
specifically notes that individuals involved in legal proceedings and seeking medical care are very high priorities, and will require adequate measures to guarantee language access.143 The fourth factor considers a recipient’s resources and the costs of providing language access. The Guidance notes that smaller recipients with smaller budgets need not provide the same level of language services as larger, better-‐endowed recipients.144 The guidance also warns recipients that they should first exhaust cost-‐saving measures and be prepared to thoroughly document costs if they plan to use this fourth factor to limit language services.145 These four factors cause institutions to arrive at separate conclusions regarding the strength and breadth of services they must offer depending on both the program and language in question. The DOJ’s Guidance breaks down potential language services into two categories: interpretation (oral language services) and translation (written language services).146 In both cases the quality and accuracy of the language services provided is critical, and the Guidance warns that simple bilingual status does not equate to competency to interpret or translate – listening to something in one language and then orally saying it in another, for example, is an entirely separate skill from simply speaking another language.147 Likewise, some bilingual individuals may not be competent to translate simply because they speak the language. The Guidance does note, however, that competency to interpret does not necessitate formal certification as an interpreter, though that helps.148 The Department of Justice lists the following factors in considering a potential interpreter’s competence and the quality of an institution’s interpreter service:149 1. The potential interpreter demonstrates proficiency in communication in both English and in the other language, and; 2. The potential interpreter identifies and employs the right mode of interpreting – simultaneous, summarization, consecutive or sight translation – for each interpretive context and; 3. The potential interpreter has knowledge in both languages of any specialized terms relevant to the program or service, and; 4. The potential interpreter has knowledge of the particularized phraseology and vocabulary of an LEP person – including dialectical deviations, and; 5. The potential interpreter understands and follows confidentiality and impartiality standards as though she were an employee of the service provider, and; 6. The potential interpreter stays within his role as an interpreter and does not deviate and take on an inappropriate role as a legal advisor or counselor, and; 143
Id. Id. 145 Id. 146 Id. at 41461. 147 Id. 148 Id. 149 Id. 144
Latino Community Report – Language Access in Ohio 7. In contexts that demand precise, complete and accurate translation or interpretation – such as legal proceedings or custodial interrogations – recipients ought to use certified interpreters, and; 8. Interpretive services are timely – delivered in a time and place that avoids the effective denial of a service, benefit or right and does not impose an undue burden or delay on the extension of such a benefit to the LEP person. The Guidance contemplates offering interpreter services in a variety of ways. It recommends hiring bilingual staff where certain languages are encountered with particular frequency, but reminds recipients that interpretation is a separate skill from simple language fluency and recommends appropriate management strategies to utilize these personnel effectively.150 It recommends hiring staff interpreters under the same circumstances, or contracting interpreters – perhaps at a community organization -‐ where an institution has no regular need for a particular language skill, provided that organization trains its interpreters on the particulars and dynamics of the program in question.151 The DOJ recommends the use of telephonic interpreters, particularly in contexts where the same communication with an English-‐speaker would take place over the phone, but cautions an institution to ensure that the interpreter on the phone is competent to handle technical and legal terms specific to the institution’s programming.152 The guidance suggests video conferencing where appropriate to allow the interpreter and LEP client to use nuance of facial expressions, enunciation and body language in communicating accurately and, where documents are involved, suggests providing the interpreter adequate time to review them before the call.153 More, the Guidance contemplates the use of community volunteers as interpreters -‐ particularly for use with an institution’s “less-‐critical” programming – and perhaps by formal agreement with a local community organization.154 Institutions are encouraged to ensure such volunteers are trained on the specifics and vocabulary of their program, competent to interpret and knowledgeable about relevant confidentiality and impartiality standards.155 Finally, the DOJ Guidance addresses the use of informal interpreters -‐ an LEP individual’s family, friends or fellow custodial detainees. Institutions are told never to rely on such people for offering meaningful language access, but to honor an LEP individual’s desire to have such a person interpret for them in addition to or in place of the institution’s explicitly-‐offered, free language services.156 Institutions are cautioned to ensure that the use of an informal is appropriate in light of the stakes, circumstances and subject matter of the dialogue. In many circumstances, particularly with the use of children as interpreters, such informal interpreters are simply not qualified to adequately understand and convey complex information.157 Privacy concerns, including an LEP individual’s willingness to disclose confidential, sensitive or potentially embarrassing medical or legal details to family or friends, are also 150
Id. at 41462. Id. 152 Id. 153 Id. 154 Id. 155 Id. 156 Id. 157 Id. 151
worthy of careful consideration.158 Last, informal interpreters are more likely to have a personal connection to the LEP individual, and may have an undisclosed conflict of interest.159 For example, a family member may not faithfully interpret with law enforcement if he seeks to protect himself in a domestic violence or other criminal matter.160 For these reasons, the Department recommends providing free, professional interpretive services in lieu of reliance on informal interpreters wherever oral interpretation is indicated.161 The Guidance is particularly clear that for DOJ recipients, this is a practical necessity in legal proceedings or other contexts where the rights or benefits of an LEP person are at stake.162 The Guidance specifically mentions that responding to a domestic violence call and using informal interpreters to communicate or investigate at the scene is unacceptable.163 It urges agencies to ensure that an LEP individual choosing to use his own interpreter in lieu of the institution’s language services is informed of her right to an interpreter at no cost and to document the LEP individual’s choice and, in cases when an LEP individual insists on the use of a minor as an informal translator or when the LEP individual has rights or benefits at stake, the institution may be best served by providing their own, independent interpreter anyway, in addition to the interpreter of the client’s choosing.164 Recipients of federal assistance often must, as a component of their language services, utilize translation in addition to or instead of interpretation. The DOJ obliges the translation of “vital” documents into the languages used by each LEP group that is eligible for or served by the program.165 Vital documents are those that are mandatory for providing meaningful access to the LEP populations a program serves, and institutions must consider several factors in classifying a document as “vital”. If an individual would be harmed – perhaps by the loss of a right or benefit – where information on a document is not provided in a timely and accurate way, the document is likely vital.166 The Guidance lists several documents that are frequently vital, including: complaint and consent forms, notices of loss, denial, interruption or decrease in rights or benefits, notices of disciplinary action, intake forms, applications, notices of available language services, and written assessments required for some license or benefit that does not require English fluency.167 Further, awareness of rights or services are a critical part of “meaningful access”, and outreach materials may be vital.168 For documents that are not practical to translate, it may be prudent to provide instructions in other languages on how LEP individuals might access an oral interpretation of the document.169 Recipients must translate vital documents into the languages that they encounter
Id. Id. 160 Id. 161 Id. 162 Id. 163 Id. 164 Id. at 41463. 165 Id. 166 Id. 167 Id. 168 Id. 169 Id. 159
Latino Community Report – Language Access in Ohio most frequently, and DOJ evaluations of adequate translation are conducted on a case-‐by-‐case basis, use the four-‐factored analysis above and consider the totality of the circumstances.170 With such a complex and arguably subjective evaluation protocol, the DOJ has created an alternative. In response to demand from recipient agencies of additional assurance that translation is compliant with the requirements of Title VI, the Department of Justice created its “safe harbor” standards. If a recipient provides written translation according to the safe harbor circumstances outlined below, such action will be considered “strong evidence” of an institution’s compliance with its document translation obligations, but failure to provide written translations according to the safe harbor standards does not necessarily mean an institution is out of compliance.171 Rather, they provide agencies with a guide to understanding when their forms ought to be translated. There are two routes to safe harbor compliance:172 a. The DOJ recipient provides written translations of 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 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 interpretation of those written materials, free of cost. The Guidance reminds institutions that written translation may not be enough, and oral interpretive services may still be indicated. It also reminds readers that translation is a skill separate from bilingualism and even from interpretation, and that a competent translator will understand the nuanced vocabulary and phraseology of the target language group as well as the target audience’s reading level.173 The DOJ suggests using a certified translator where appropriate or having a second translator translate it back to the original language to check for accuracy.174 The Department of Justice Guidance ends with tips for recipient institutions on creating and implementing an LEP plan. Institutions are to consider the four factors, collect data on the population they serve, train staff on Title VI compliance requirements, interacting with LEP clients, and accessing the selected language resources.175 It also includes tips on outreach and signage as well as monitoring and updating an LEP plan.176 Finally, the Guidance outlines the protocol for DOJ investigations into allegations of language discrimination, which entails investigating complaints or tips of potential noncompliance and, if the institution is found to be out of compliance, the DOJ must list steps for the 170
Id. Id. 172 Id. at 41464. 173 Id. 174 Id. 175 Id. at 41465. 176 Id. 171
institution to take to achieve voluntary compliance.177 If the recipient is unwilling or unable to achieve voluntary compliance, the Department will terminate funding pending an administrative hearing, and may refer the matter to departmental litigation personnel to pursue injunctive relief or other remedies.178 Finally, the DOJ Guidance includes appendices with more specific instructions for its most common recipients – law enforcement agencies, detention centers, and courts.179 Enforcement is handled by the Federal Coordination and Compliance Section of the Civil Rights Division of the Department of Justice.180 This guidance is so important because of the Justice Department’s unique role under Executive Order 13166. The Department’s guidance informed the Title VI language access guidance that every federal agency wrote, and most simply adopted the DOJ guidance. While the guidance focuses on law enforcement, courts, and other likely DOJ recipients, it is worth understanding well because its principles – interpreter competence factors, “vital” documents, “safe harbor” translation, the four-‐ factor test and much more -‐ have been adopted by most or all other federal agencies. These same agencies also submit their Title VI LEP compliance plans, as well as their guidance for recipients, to the DOJ for the agency’s consideration.
Id. at 41466. Id. 179 Id. 180 Who will enforce the LEP rules?, Frequently Asked Questions, www.lep.gov. 178