Justice Dept. Confirms Validity of Clinton's Order Regarding Access to Services for Limited English Proficient Persons

IMMIGRANTS & PUBLIC BENEFITS

Language Access

JUSTICE DEPT. CONFIRMS VALIDITY OF CLINTON'S ORDER REGARDING ACCESS TO SERVICES FOR LIMITED ENGLISH PROFICIENT PERSONS
Immigrants' Rights Update, Vol. 15, No. 7, Nov. 16, 2001

The U.S. Dept. of Justice (DOJ) has issued a memorandum that confirms the validity of an executive order former President Bill Clinton issued to ensure that persons with limited English proficiency (LEP) have meaningful access to programs and activities conducted and funded by the federal government. Clinton's order, Executive Order 13166, clarifies the requirements of Title VI of the Civil Rights Act, which prohibits recipients of federal funds from discriminating on the basis of race, color, or national origin. Discrimination on the basis of national origin includes the failure to provide LEP persons with meaningful access to federally funded activities and programs.

The executive order is published at 65 Fed. Reg. 50,121-22 (Aug. 16, 2000). The DOJ's memo, which was issued Oct. 26, 2001, and explanatory questions and answers are available on the DOJ Civil Rights Division web site at www.usdoj.gov/crt/cor.

The executive order required agencies that provide federal financial assistance to develop guidance that directs recipients of federal funds in providing meaningful access to LEP persons. The order also required federal agencies to develop internal plans for providing meaningful access to LEP persons. The DOJ published guidance on agencies' obligations under the executive order concurrently with the order's release (see 65 Fed. Reg. 50,123-25 (Aug. 16, 2000)).

Individual members of Congress have made several attempts to repeal the executive order. In addition, the U.S. Supreme Court ruled that private individuals cannot bring Title VI lawsuits based on a claim that an agency's failure to provide meaningful access to LEP persons is discriminatory by virtue of its "disparate impact" on LEP persons. Alexander v. Sandoval, 121 S.Ct. 1511 (2001). The DOJ memo confirms that the ruling in Sandoval was limited to private lawsuits and did not affect the validity of the executive order or the ability of federal agencies to enforce Title VI.

The memo clarifies that four "reasonableness" factors set forth in the original DOJ guidance inform the actions agencies, as well as recipients, must take to meet their Title VI obligations. The factors are:

the number or proportion of people who will be excluded from the federally funded program or activity absent efforts to remove language barriers;
the frequency of the recipients' contact with persons who speak a particular language;
the nature and importance of the services provided (i.e., LEP access is more important in cases where a denial of service would have life-or-death or other serious implications); and
the resources available to implement LEP access. (The memo notes specifically that the cost of providing LEP access may be factored into the determination of available resources.)

The memo requires agencies that have developed guidance under the executive order to review their guidance for (1) consistency with the four-point clarification above, (2) compliance with the Administrative Procedure Act, and (3) compliance with the requirement that significant regulatory actions be cleared by the Office of Management and Budget.

Agencies, including those that have already published guidance documents, must make any revisions indicated by this review and submit their guidance to the public for comment. Comments received from the public may require additional revisions. All revisions must be completed by Feb. 26, 2002, 120 days after the release of the memo. Agencies that have not yet developed guidance are required to submit guidance to the DOJ by Dec. 26, 2001, 60 days after the date of the memo, and to collect public comment and publish final regulations by Feb. 26, 2002.