May 20, 2002

Ms. Merrily Friedlander
Chief, Coordination and Review Section
Civil Rights Division, Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Re: Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons

Dear Ms. Friedlander:

The National Immigration Law Center (NILC) submits these comments on behalf of NILC and the undersigned organizations. The comments respond to the Department of Justice's (DOJ) request for comments on its revised Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, published in the Federal Register on April 18, 2002. NILC is a nonprofit legal services organization that works on behalf of low-income immigrants and their families.

The revised Guidance incorporates many important revisions and clarifications from the prior version. We appreciate DOJ's commitment to improving its Guidance, and in particular, its responsiveness to stakeholder comments. We commend DOJ for the many improvements in the revised Guidance, including the explicit statement that Title VI extends to all of recipients' programs and activities, the more detailed discussion of notice to LEP persons, and the reminder that the language characteristics of persons currently served by a program may not reflect those of the eligible population. We continue to strongly support the Guidance. However, we have several concerns and suggestions for further improvement. Of greatest importance, 1) the Guidance should require all recipients to have a written language access plan and 2) the Guidance should prohibit the use of children and fellow inmates as interpreters, except under extremely limited circumstances.

These and other issues are addressed below in the order that they appear in the Guidance.

How Does a Recipient Determine the Extent of its Obligation to Provide LEP Services?

The Guidance states that recipients' assessments of the number or proportion of LEP individuals in their service areas should include LEP parents whose minor children and dependants encounter the legal system. We applaud DOJ for its continued recognition that these parents play an important role in the system's encounters with their children. However, the requirement to assist LEP relatives and caretakers should not be limited to parents. Many children are cared for by grandparents or other adults, and many adults will seek the assistance of an LEP spouse or other relative in navigating the legal system.

We applaud DOJ for reminding its recipients that they should include LEP populations they should serve, as well as those currently served, in their assessments of the eligible population. However, we believe that this principle needs to be communicated more emphatically. We suggest inserting, "It is important to include LEP populations in the recipients' service area who may have been deterred from seeking services by real or perceived language barriers," as the second sentence under the heading The Frequency With Which LEP Individuals Come in Contact With the Program.

Selecting Language Assistance Services

We commend DOJ for emphasizing the importance of providing timely and competent interpretation. However, we are concerned that the Guidance on the use of bilingual employees, community volunteers and informal interpreters, such as friends and family members, could cause LEP persons to be denied access to timely and competent interpreter services.

Recipients should be prohibited from requiring, suggesting or encouraging that LEP persons provide their own interpreters. As the Guidance points out, the use of friends, family members and other informal interpreters can seriously compromise the accuracy and confidentiality of the information interpreted. It is therefore vital to ensure that the LEP person's choice of interpreter is made freely and with full information, including an awareness that an interpreter will be provided free of cost. The use of informal interpreters should be permitted only in contexts where the accuracy, effectiveness of services or confidentiality of the interpretation is not compromised; the LEP individual has been advised that an interpreter will be provided free of cost; and the individual affirmatively states that he or she wishes to provide an interpreter. In such cases, recipients should be required to document that the LEP individual was offered an interpreter.

Where the LEP person chooses to use an informal interpreter, the recipient should be required to provide its own interpreter to verify the accuracy of the interpretation in courtrooms, pre- and post-trial settings, during custodial interrogations, on 911 calls, in situations where health, safety or access to essential services is at stake, and in other contexts where the individual's rights depend on precise, complete and accurate translations.

Inmates. The Guidance states that LEP individuals should be permitted to use friends, family members and other persons of their choosing as interpreters. Fellow inmates are listed among the persons who might serve as such informal interpreters. We strongly discourage the use of inmates as interpreters. Concerns about the confidentiality of interpretation and potential conflicts of interest are acute in the correctional context. In addition, inmates are unlikely to have had interpreter training and are no more likely to be fully bilingual than any member of the general population. Correctional facilities, like other recipients, should be required to provide competent interpreters for LEP inmates. Fellow inmates should be used as interpreters only in unforeseeable exigent circumstances where credibility and confidentially are not at issue. Such circumstances do not include common, foreseeable circumstances such as intake procedures, the delivery of health-related services, meetings with correctional counselors, board hearings, and participation in treatment and educational programs.

Children. Children are also listed as potential interpreters. DOJ should more actively discourage the use of children as interpreters. Children should be permitted to interpret only in extremely limited circumstances that do not give rise to concerns about confidentiality, accuracy and inappropriate subject matter. For example, where no other bilingual person is available, a child could interpret to advise a family member that the recipient was contacting an interpreter service.

Children often lack the maturity to understand the information they are called upon to translate, as well as the vocabulary and skills necessary to provide accurate translations. Parental reliance on children as translators undermines parental authority and disrupts family dynamics. Researchers have found that children often influence the content of information they are called to interpret, acting, in effect, as decision makers for their families.⁽¹⁾ The responsibility of interpreting is burdensome for children, who report feeling embarrassed, frustrated, resentful and ill equipped to deal with the added responsibilities of interpreting.⁽²⁾

Bilingual Employees. As the Guidance states, hiring skilled bilingual employees can be among the most effective and economical ways of providing interpretation services. We support the statement that management must develop protocols to ensure that bilingual employees are fully and effectively utilized. These protocols should include requirements for interpreter training. In addition, the Guidance should state more clearly that interpreting responsibilities must be incorporated into the employee's job description and compensation structure. Bilingual staff who serve as interpreters and translators should have adjustments in their workload, as compared to colleagues in similar positions who do not provide language support. Requiring bilingual employees to interpret in addition to performing the same tasks as their counterparts is inequitable, and interferes with the employees' ability to provide interpretation on a timely basis.

Community Volunteers. The Guidance should limit the use of community volunteers to situations where the recipient and the community volunteer or organization have entered into a formal agreement. The lack of a formal agreement hinders the recipient's ability to assess interpreter competency, and burdens community organizations. It is not unusual for community organizations to be contacted, without prior arrangement, and asked to interpret without compensation. Such requests pressure community organizations to stretch their scarce resources to help important agencies or fellow immigrants, to the detriment of the charitable missions for which they are funded. In addition, such ad hoc requests prevent the recipient's assessment of interpreter competence. Volunteers may be more likely to have weaker linguistic skill levels or inadequate interpreter training than professional interpreters and full-time bilingual staff.

Telephone Interpretation. In addition, we support the Guidance that competent telephone interpreter services offer a convenient alternative to in-person interpretation. However, the Guidance should more clearly emphasize that in-person interpretation is preferable to telephone interpretation. The use of telephone interpretation should be restricted to situations where application of the four-factor test indicates that recipients may provide a reduced level of language assistance, as in cases where a recipient rarely encounters a particular language.

Written Language Services

We commend DOJ for recognizing the importance of translator competence, and that effective communication through written materials requires consideration of the audience's reading level and particular vocabulary and phraseology. The Guidance should state more clearly that regional and national differences in the use of particular languages must be considered. We agree that the permanent nature of written translations imposes additional responsibility on the recipients, and urge DOJ to require recipients to verify the accuracy of translations of important documents through a second translator's review or back translation.

Elements of an Effective Policy on Language Assistance for LEP Persons

The Guidance should require all recipients to develop written language assistance plans. Written plans serve as a valuable resource for recipients' staff, and help to ensure that recipients' responses to LEP individuals are consistent and well thought out. It is particularly important that recipients who rarely encounter LEP individuals have a written plan for staff to consult when interpreter or translator services are required.

Recipients should be required to review and update their plans annually. The annual review should address the recipient's progress in implementing the plan, the LEP population likely to be served by the recipient, and the availability of interpretation and translation resources in the recipient's community. Community representatives should be included in the design and review of recipients' plans.

All staff in public contact positions should receive both initial and periodic refresher training on the recipients' plan. Staff training should address working with interpreters and culturally appropriate interactions with LEP persons, as well as policy and resource issues. DOJ should incorporate a model training curriculum in the Guidance to assist recipients in developing their programs.

Voluntary Compliance Efforts

While we agree that recipients should comply voluntarily, we applaud DOJ's statement that it will investigate all complaints, reports and other information indicating recipients' non-compliance with Title VI. However, the compliance and enforcement policies discussed in the Guidance suggest that DOJ's enforcement activities will be complaint-driven. DOJ should proactively monitor recipients' compliance with their Title VI obligations, and incorporate consideration of disparate impact into these compliance efforts. Random reviews could promote the efficient use of resources in this process.

Thank you for the opportunity to submit these comments. We look forward to working with you in the future.

Sincerely,

Gabrielle Lessard
Staff Attorney
National Immigration Law Center

Asian & Pacific Islander Institute on Domestic Violence of the APIA Health Forum
Asian Law Alliance
Center for Civil Justice
Center for Public Policy Priorities
Child Care Law Center
Chinese for Affirmative Action
Consumers Union
Florida Legal Services, Inc.
Idaho Office for Refugees
Immigrant and Refugee Rights Project, Washington Lawyers' Committee for Civil Rights and Urban Affairs
Iowa Coalition Against Domestic Violence
Language Access Project Community Legal Services
Language Rights Project, A Joint Project of the ACLU of Northern California and the Legal Aid Society-Employment Law Center
Latino Legal Assistance Project, Public Justice Center
Legal Aid Services of Oregon
The Massachusetts Associates of Teachers to Speakers of Other Languages (MATSOL)
Migrant Legal Action Program
National Association of Latino Elected and Appointed Officials (NALEO) Educational Fund
National Health Law Program
National LEP Advocacy Task Force
National Representative for Immigrant and Refugee Rights
New York Immigration Coalition
Refugee and Immigrant Services, Catholic Diocese of Richmond
Tennessee Foreign Language Institute
The Legal Aid Society

NOTES

1.  See generally, Tse, Language Brokering in Minority Communities: The Case of Chinese and Vietnamese American Students, The Bilingual Research Journal 20(3/4) at 485-498 (1996), and McQuillan and Tse, Child Language Brokering in Linguistic Minority Communities: Effects on Cultural Interaction, Cognition and Literacy, Language and Education 9(3) at 195-215 (1995).

2.  McQuillan and Tse at 205.

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