[Federal Register Volume 66, Number 10 (Tuesday, January 16, 2001)]
[Notices]
[Pages 3834-3848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-869]



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Part X





Department of Justice





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Guidance to Federal Financial Assistance Recipients Regarding Title VI 
Prohibition Against Origin Discrimination Affecting Limited English 
Proficient Persons; Notice

  Federal Register / Vol. 66, No. 10 / Tuesday, January 16, 2001 / 
Notices  

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DEPARTMENT OF JUSTICE


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

AGENCY: United States Department of Justice.

ACTION: Policy Guidance Document.

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SUMMARY: The United States Department of Justice (DOJ) is publishing 
policy guidance on Title VI's prohibition against national origin 
discrimination as it affects limited English proficient persons.

DATES: This guidance is effective immediately. Comments must be 
submitted on or before March 19, 2001. DOJ will review all comments and 
will determine what modifications to the policy guidance, if any, are 
necessary.

ADDRESSES: Interested persons should submit written comments to Ms. 
Merrily Friedlander, Chief, Coordination and Review Section, Civil 
Rights Division, Department of Justice, P.O. Box 66560, Washington, DC 
20035-6560; Comments may also be submitted by facsimile at 202-307-
0595.

FOR FURTHER INFORMATION CONTACT: Christine Stoneman or Sebastian Aloot 
at the Civil Rights Division, P.O. Box 66560, Washington, DC 20035-
6560. Telephone 202-307-2222; TDD: 202-307-2678. Arrangements to 
receive the policy in an alternative format may be made by contacting 
the named individuals.

SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d, et seq. and its implementing regulations provide that no 
person shall be subjected to discrimination on the basis of race, 
color, or national origin under any program or activity that receives 
federal financial assistance.
    The purpose of this policy guidance is to clarify the 
responsibilities of recipients of federal financial assistance from the 
U.S. Department of Justice (DOJ) (``recipients''), and assist them in 
fulfilling their responsibilities to limited English proficient (LEP) 
persons, pursuant to Title VI of the Civil Rights Act of 1964 and 
implementing regulations. The policy guidance reiterates DOJ's 
longstanding position that in order to avoid discrimination against LEP 
persons on the grounds of national origin, recipients must take 
reasonable steps to ensure that such persons have meaningful access to 
the programs, services, and information those recipients provide, free 
of charge.
    The policy guidance includes appendices. Appendix A provides 
examples of how this guidance would apply to DOJ recipients. Appendix B 
provides further information on the legal bases for the guidance. It 
also explains further who is covered by this guidance. The text of the 
complete guidance document, including appendices, appears below.

    Dated: January 5, 2001.
Daniel Marcus,
Associate Attorney General, United States Department of Justice.

Guidance to Recipients of U.S. Department of Justice Federal 
Financial Assistance: Providing Meaningful Access to Individuals 
Who Are Limited English Proficient in Compliance With Title VI and 
Implementing Regulations (``LEP Guidance for DOJ Recipients'')

I. Introduction

    For most people living in the United States, English is their 
native language or they have learned to read, speak, and understand 
English. There are others for whom English is not their primary 
language. If they also have limited ability to read, speak, or 
understand English, then these people are limited English proficient, 
or ``LEP.'' For them, language can be a barrier to accessing benefits 
or services, understanding and exercising important rights, or 
understanding other information provided by federally funded programs 
and activities.
    This guidance (``Guidance'') is based on Title VI of the Civil 
Rights Act of 1964 and regulations that implement Title VI. Title VI 
was intended to eliminate barriers based on race, color, and national 
origin in federally assisted programs or activities. In certain 
circumstances, failing to ensure that LEP persons can effectively 
participate in or benefit from federally assisted programs and 
activities or imposing additional burdens on LEP persons is national 
origin discrimination. Therefore, recipients must take reasonable steps 
to ensure meaningful access for LEP persons.
    In August, 2000, the President signed Executive Order 13166. Under 
that order, every federal agency that provides financial assistance to 
non-federal entities must create guidance on how their recipients can 
provide meaningful access to LEP persons and therefore comply with the 
longstanding Title VI law and its regulations. DOJ is issuing this 
Guidance to comply with the Executive Order. The guidance document is 
new, but Title VI's meaningful access requirement is not.
    This Guidance should help recipients of Department of Justice (DOJ) 
financial assistance understand how to comply with the law. Recipients 
have a great deal of flexibility in determining how to comply with the 
meaningful access requirement, and are not required to use all of the 
suggested methods and options listed. As always, recipients also have 
the freedom to and are encouraged to go beyond mere compliance and 
create model programs for LEP access.
    Federal financial assistance includes grants, training, use of 
equipment, donations of surplus property, and other assistance. 
Recipients of DOJ assistance include, for example:
     Police and sheriffs' departments
     Departments of corrections
     Courts
     Certain nonprofit agencies with law enforcement missions.
    When federal funds are passed through from one recipient to a 
subrecipient, the subrecipient is also covered by Title VI.
    The LEP persons that are eligible to be served or encountered by 
these recipients include, but are not limited to:
     LEP persons who are in the custody of the recipient, 
including juveniles, detainees, wards, and inmates.
     LEP persons subject to or serviced by law enforcement 
activities, including, for example, suspects, violators, witnesses, 
victims, and community members.
     LEP persons who are not in custody but are under 
conditions of parole or probation.
     LEP persons who encounter the court system.
     Parents and family members of the above.
    Title VI applies to the entire program or activity of a recipient 
of DOJ assistance. That means that Title VI covers all parts of a 
recipient's operations. This is true even if only one part of the 
agency uses the federal assistance.
    Example: DOJ provides assistance to a state department of 
corrections to improve a particular prison facility. All of the 
operations of the entire state department of corrections--not just the 
particular prison--are covered by Title VI.

Technical Assistance

    DOJ plans to continue to provide assistance and guidance in this 
important area. For example, DOJ plans to work with representatives of 
law enforcement, corrections, courts, and LEP persons to identify model 
plans and examples of best practices and share those with recipients.

[[Page 3835]]

DOJ Programs and Activities

    At the same time as federal agencies are creating recipient 
guidance, Executive Order 13166 requires that they create LEP plans for 
their own agencies that are consistent with the standards for 
recipients. Therefore, DOJ will apply the standards in this guidance to 
its own activities.\1\
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    \1\ DOJ has created, pursuant to the Executive Order, a separate 
plan for providing meaningful access to LEP persons in DOJ conducted 
activities.
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Appendices

    There are two appendices to this guidance. Appendix A provides 
examples of how this guidance would apply to DOJ recipients.
    Appendix B provides further information on the legal bases for the 
guidance. It also explains further who is covered by this guidance.
    Both of these appendices should be considered part of this 
guidance.

State or Local ``English-Only'' Laws

    State or local ``English-only'' laws do not change the fact that 
recipients cannot discriminate in violation of Title VI. Entities in 
states and localities with ``English-only'' laws do not have to accept 
federal funding. However, if they do, they still have to comply with 
Title VI, including its prohibition against national origin 
discrimination by recipients.

II. How Recipients Should Decide What Language Services They Should 
Provide

    As mentioned in Executive Order 13166 and the DOJ Guidance issued 
in August, 2000, recipients should apply a four-factor test to decide 
what steps to take to provide meaningful access to their programs and 
activities for LEP persons. Once the recipient has chosen the services 
it will provide, the recipient should prepare a written policy on 
language assistance for LEP persons (an ``LEP policy'').

A. The Four-Factor Analysis

    Recipients must take reasonable steps to ensure meaningful access 
to their services, programs, and activities. What ``reasonable steps to 
ensure meaningful access'' means depends on a number of factors. DOJ 
recipients should apply the following four factors to the various kinds 
of contacts that they have with the public to decide what reasonable 
steps they should take to ensure meaningful access for LEP persons. The 
results of this balancing test allow a recipient to decide what 
documents to translate, when oral translation is necessary, and whether 
language services must be made immediately available.
    After applying the four-factor analysis, a recipient may conclude 
that different language assistance measures are needed for its 
different types of programs or activities. For instance, some of a 
recipient's activities will be more important than others and/or have 
greater impact on or contact with LEP persons, and thus require more in 
the way of language assistance.
(1) The Number or Proportion of LEP Persons Served or Encountered in 
the Eligible Service Population
    One factor in determining what language services recipients should 
provide is the number or proportion of LEP persons eligible to be 
served or encountered by the recipient in carrying out its operations. 
Recipients should look to available data, such as the latest census 
data for the area served, data from school systems and from community 
organizations, and data collected by the recipient.\2\ The greater the 
number or proportion of LEP persons, the more likely language services 
are needed.
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    \2\ The focus of the analysis is on lack of English proficiency, 
not the ability to speak more than one language. Note that census 
data may indicate the most frequently spoken languages other than 
English and the percentage of people who speak that language who do 
not speak or understand English very well. Some of the most commonly 
spoken languages other than English may be spoken by people who are 
also overwhelmingly proficient in English. Thus, they may not be the 
languages spoken most frequently by limited English proficient 
individuals. When using census data, it is important to focus in on 
the languages spoken by those who are not proficient in English.
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(2) The Frequency With Which LEP Individuals Come in Contact With the 
Program
    Recipients should assess, as accurately as they can, the frequency 
with which they have or should have contact with LEP language groups. 
The more frequent the contact, the more likely that language services 
are needed. The steps that are reasonable for a recipient that serves 
one LEP person a year may be very different than those expected from a 
recipient that serves several LEP persons each day. But even those that 
serve very few LEP persons on an infrequent basis should utilize this 
balancing analysis to determine what to do if an LEP individual seeks 
services under the program in question. This plan need not be 
intricate. It may be as simple as being prepared to use one of the 
commercially available language lines to obtain immediate interpreter 
services.
    In applying this standard, recipients should take care to consider 
whether appropriate outreach to LEP persons could increase the 
frequency of contact with LEP language groups.
(3) The Nature and Importance of the Program, Activity, or Service 
Provided by the Program
    The more important the activity, information, service, or program, 
or the greater the possible consequences of the contact to the LEP 
individuals, the more likely language services are needed. For example, 
the obligations to communicate rights to a person who is arrested or to 
provide medical services to an ill or injured inmate differ from those 
to provide bicycle safety courses or recreational programming. A 
recipient needs to determine if a denial or delay of access to services 
or information could have serious implications for the LEP individual. 
In addition, a decision by a federal, state, or local entity to make an 
activity compulsory, such as particular educational programs in a 
correctional facility or the communication of Miranda rights, serves as 
strong evidence of the program's importance.
(4) The Resources Available to the Recipient
    A recipient's level of resources may have an impact on the nature 
of the steps it should take. Smaller recipients with more limited 
budgets are not expected to provide the same level of language services 
as larger recipients with larger budgets. Resource issues can sometimes 
be minimized by technological advances and sharing of resources and 
translations. Large entities should ensure that their resource 
limitations are well-substantiated before using this factor as a reason 
to limit language assistance.
    Applying the four factors, for example, a small police department 
with limited resources encountering very few LEP people has far fewer 
language assistance responsibilities than larger departments with more 
resources and large populations of LEP individuals.\3\
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    \3\ As another example, under the four-part analysis, Title VI 
does not require recipients to translate documents requested under a 
state equivalent of the Freedom of Information Act or Privacy Act, 
or to translate all official state statutes or notices of 
rulemaking. The focus of the analysis is the nature of the 
information being communicated, the intended or expected audience, 
and the cost of providing translations. In virtually all instances, 
one or more of these criteria would lead to the conclusion that 
recipients need not translate these types of official documents. 
These criteria, however, may result in translation obligations 
where, for instance, laws are otherwise posted or summarized in 
waiting rooms, summarized or set forth in forms, applications, or 
vital outreach material, or special populations are provided with 
rules and regulations they must follow (e.g., in prisons, see 
Appendix A).

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B. Selecting Language Assistance Services

    After applying the four-factor analysis, recipients have two main 
ways to provide language services, where needed: Oral interpretation 
and written translation. In deciding how to provide these services, 
recipients should consider the following information.
(1) Oral Language Services
    Where oral interpretation is needed, recipients should develop 
procedures for providing competent interpreters in a timely manner. To 
do so, the recipient should consider some or all of the following 
options:
    Hiring Bilingual Staff For public contact positions. When 
particular languages are encountered often, hiring bilingual staff 
offers one of the best options. Recipients can, for example, fill 
public contact positions with staff who are bilingual and competent to 
communicate directly with LEP persons in their language. If bilingual 
staff are also used to interpret between English speakers and LEP 
persons, or to orally translate documents, they must be competent in 
the skill of interpreting. When bilingual staff cannot meet all of the 
language service obligations of the recipient, the recipient should 
turn to other options.
    Hiring Staff Interpreters. Hiring interpreters may be most helpful 
where there is a frequent need for interpreting services in one or more 
languages.
    Contracting for Interpreters. Contract interpreters may be a cost-
effective option when there is no regular need for a particular 
language skill.
    Using Community Volunteers. Recipient-coordinated use of community 
volunteers may provide a cost-effective way to provide language 
services. It is often best to use community volunteers who are trained 
in the information or services of the program and can communicate 
directly with LEP persons in their language. Community volunteers used 
to interpret between English speakers and LEP persons, or to orally 
translate documents, must be competent in the skill of interpreting. It 
is best to make formal arrangements with volunteers. That way, the 
service is available more regularly and volunteers understand 
applicable confidentiality and impartiality rules.
    Using Telephone Interpreter Lines. Telephone interpreter service 
lines often offer speedy interpreting assistance in many different 
languages. Although they are useful in many situations, it is important 
to ensure that such services have interpreters who are able to 
interpret any legal terms or terms that are specific to a particular 
program when such terms may come up in the conversation. Also, 
sometimes it may be necessary to provide on-site interpreters to 
provide accurate and meaningful communication with an LEP person.
    Competence of Interpreters. When providing oral assistance, 
recipients should ensure competency of the language service provider, 
no matter which of the above options they use. Competency requires more 
than self-identification as bilingual. Some bilingual staff and 
community volunteers, for instance, may be able to communicate 
effectively in a different language when communicating information 
directly in that language, but not be competent to interpret in and out 
of English.
    Competency to interpret does not always mean formal certification 
as an interpreter. However, certification is helpful. When using 
interpreters, recipients should ensure that they:
     Demonstrate proficiency in both English and in the other 
language;
     Are bound to confidentiality and impartiality to the same 
extent the recipient employee they are interpreting for is so bound 
and/or to the extent their position requires;
     Have knowledge in both languages of any specialized terms 
or concepts peculiar to the entity's program or activity; and
     Demonstrate the ability to convey information in both 
languages, accurately;
    Some recipients, such as courts, may have additional self-imposed 
requirements for interpreters.
    Inappropriate Use of Family Members, Friends, Other Inmates, or 
Detainees. As a general rule, when language services are required, 
recipients should provide competent interpreter services free of cost 
to the LEP person. LEP persons should be advised that they may choose 
either to secure the assistance of an interpreter of their own 
choosing, at their own expense, or a competent interpreter provided by 
the recipient.\4\ If the LEP person decides to provide his or her own 
interpreter, the provision of this notice and the LEP person's election 
should be documented in any written record generated with respect to 
the LEP person. In emergency situations that are not reasonably 
foreseeable, use of interpreters not provided by the recipient may be 
necessary. Proper recipient planning and implementation can help avoid 
such situations.
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    \4\ While an LEP person may sometimes look to bilingual family 
members or friends or other persons with whom they are comfortable 
for language assistance, there are many situations where an LEP 
person might want to rely upon recipient-supplied interpretative 
services. For example, such individuals may not be available when 
and where they are needed, or may not have the ability to translate 
program-specific technical information. Alternatively, an individual 
may feel uncomfortable revealing or describing sensitive, 
confidential, or potentially embarrassing medical, law enforcement 
(e.g., sexual or violent assaults), family, or financial information 
to a family member, friend, or member of the local community. 
Similarly, there may be situations where a recipient's own interests 
justify the provision of an interpreter regardless of whether the 
LEP individual also provides his or her own interpreter. For 
example, where precise, complete and accurate translations of 
information and/or testimony are critical for law enforcement, 
adjudicatory or legal reasons, a recipient might decide to provide 
its own, independent interpreter, even if an LEP person wants to use 
their own interpreter as well.
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(2) Translation of Written Materials
    An effective LEP policy ensures that vital written materials are 
translated into the language of each regularly encountered LEP group 
eligible to be served and/or likely to be affected by the recipient's 
program.
    The term ``vital documents'' includes, for example:
     Consent and complaint forms
     Intake forms with the potential for important consequences
     Written notices of rights, denial, loss, or decreases in 
benefits or services, parole, and other hearings
     Notices of disciplinary action
     Notices advising LEP persons of free language assistance
     Prison rule books
     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
     Applications to participate in a recipient's program or 
activity or to receive recipient benefits or services.
    Whether or not a document is ``vital'' also depends upon the 
importance of the program, information, encounter, or service involved. 
For instance, applications for bicycle safety courses would not 
generally be considered vital, whereas applications for drug and 
alcohol counseling in prison would generally be considered vital.
    Many large documents have both vital and non-vital information in 
them. Written translation of only the vital information is usually 
sufficient.
    It sometimes may be hard to tell the difference between vital and 
non-vital documents. This may be especially true for outreach materials 
like brochures or other information on rights and services.

[[Page 3837]]

In order to have meaningful access, LEP persons need to be aware of 
those rights and services. Of course, it would be impossible to 
translate every piece of outreach material into every language. 
However, sometimes lack of awareness that a particular program, right, 
or service exists may effectively deny LEP individuals meaningful 
access. Thus, recipients should regularly assess the needs of the 
populations frequently encountered or affected by the program or 
activity to determine whether certain critical outreach materials 
should be translated. Community organizations may be helpful in 
determining what outreach materials may be most helpful to translate.
    Recent technological advances have made it easier for recipients to 
store and share translated documents. At the same time, DOJ recognizes 
that recipients in a number of areas, such as many large cities, 
regularly serve LEP persons from many different areas of the world who 
speak dozens and sometimes over 100 different languages. It would be 
too burdensome to demand that recipients in these circumstances 
translate all written materials into all of those languages. 
Nevertheless, well-substantiated claims of lack of resources to 
translate all vital documents into dozens of languages do not 
necessarily relieve the recipient of the obligation to translate those 
documents into at least several of the most frequently encountered 
languages, and to set benchmarks for continued translations over time. 
As a result, the extent of the recipient's obligation to provide 
written translations of documents will be determined on a case-by-case 
basis, looking at the totality of the circumstances.
    One way for a recipient to know with greater certainty that it will 
be found in compliance with its obligation to provide written 
translations in languages other than English is for the DOJ recipient 
to meet the guidelines outlined in paragraphs (a) and (b) below.
    Paragraphs (a) and (b) outline the circumstances that provide a 
``safe harbor'' for recipients regarding the requirements for 
translation of written materials. A ``safe harbor'' means that if a 
recipient provides written translations under these circumstances, this 
will be considered strong evidence of compliance, in the area of 
written translations.
    The failure to provide written translations under the circumstances 
outlined in paragraphs (a) and (b) will not necessarily mean non-
compliance with Title VI. In such circumstances, DOJ reviews the 
totality of the circumstances to determine the recipient's obligation 
to provide written materials in languages other than English.

    Example: Even if the safe harbors are not used, if written 
translation of a certain document(s) would be so burdensome as to 
defeat the legitimate objectives of its program, DOJ will not find 
the translation of written materials necessary for compliance with 
Title VI. Other ways of providing meaningful access, such as 
effective oral interpretation of vital documents, would be 
acceptable under such circumstances.

    Safe Harbor. DOJ will consider a recipient to be in compliance with 
its Title VI obligation to provide written materials in non-English 
languages if:

    (a) The DOJ recipient provides written translations of, at a 
minimum, 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 vital 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 translation of those written materials, free of cost.

    These safe harbor provisions apply to the translation of written 
documents only. They do not affect the requirement to provide 
meaningful access to LEP individuals through competent oral 
interpreters where oral language services are needed. For example, 
correctional facilities should ensure that prison rules have been 
explained to LEP inmates, at orientation, for instance, prior to taking 
disciplinary action against them.
    The term ``persons eligible to be served or likely to be affected 
or encountered'' as used in paragraph (a) relates to the issue of 
identifying the DOJ recipient's service area for purposes of meeting 
its Title VI obligation. Because of the wide variety of recipient 
programs and activities, there is no ``one size fits all'' definition 
of what constitutes ``persons eligible to be served or likely to be 
affected or encountered.'' Generally, the term means those persons who 
are in the geographic area that has been approved by a federal grant 
agency as the service area and who are either eligible for the 
recipient's services or otherwise might be affected or encountered by 
the recipient.
    Where no service area has been approved, DOJ will consider the 
relevant service area as that approved by state or local authorities or 
designated by the recipient itself, provided that these designations do 
not themselves discriminatorily exclude certain populations. Appendix A 
provides examples of determining the relevant service area. When 
considering the number or proportion of LEP individuals in a service 
area, recipients need to consider LEP parent(s) when their English-
proficient or LEP minor children and dependents encounter the legal 
system.
    Just as with oral interpreters, translators of written documents 
must be competent. It is a good idea to build in a ``check'' on the 
translation. For instance, an independent translator could check the 
first translation. Or, one translator could translate the document, and 
a second, independent translator could translate it back into English. 
This is called ``back translation.''
    Translators should understand the expected reading level of the 
audience. Sometimes direct translation of materials results in a 
translation that is written at a much more difficult level than the 
English language version. Community organizations may be able to help 
consider whether a document is written at a good level for the 
audience.
    Finally, recipients will find it more effective and less costly if 
they try to maintain consistency in the words and phrases used to 
translate terms of art, legal, or other technical concepts. Creating or 
using already-created glossaries of commonly-used terms may be useful 
for LEP persons and translators, and cost effective for the recipient. 
Providing translators with examples of previous translations of similar 
material by the recipient, other recipients, or federal agencies may be 
helpful.

C. Elements of Effective Written Policy on Language Assistance for LEP 
Persons (``LEP Policy'')

    After completing the four-factor analysis and deciding what 
language assistance services are needed, the recipient should include 
those in a written LEP policy. The key to providing meaningful access 
is accurate and effective communication between the DOJ recipient and 
the LEP individual.
    Although DOJ recipients have a great deal of flexibility in 
designing their policies, effective programs usually have five 
elements, discussed below. Failure to take all of the steps outlined in 
this section does not necessarily mean that a recipient has violated 
the law. Just as with all Title VI complaints, DOJ assesses each 
complaint on a case-by-case basis. DOJ applies the four factors in 
deciding whether the steps

[[Page 3838]]

taken by a recipient provide meaningful access.
(1) Identifying LEP Individuals Who Need Language Assistance.
    As noted above, the first two parts of the four-factor analysis of 
need include an assessment of the number or proportion of LEP 
individuals eligible to be served or encountered and the frequency of 
encounters. In addition, when developing a plan, recipients should 
develop a process for employees to identify the language of LEP persons 
encountered so that language services can be provided.
    One way to determine the language of communication is to use 
language identification cards (or ``I speak cards''), which invite LEP 
persons to identify their language needs to staff. Such cards, for 
instance, might say ``I speak Spanish'' in both Spanish and English, 
``I speak Vietnamese'' in both English and Vietnamese, etc. When 
records are normally kept of past interactions with members of the 
public, the language of the LEP person should be included as part of 
the record. In addition to helping employees identify the language of 
LEP persons they encounter, this process will help in future 
application of the first two factors of the four-factor analysis.
(2) Language Assistance Measures
    The LEP policy should include information about the ways in which 
language assistance will be provided. For instance, it should include 
information on at least the following:
     Types of language services available (see Section IIB, 
above).
     How staff can obtain those services.
     How to respond to LEP callers.
     How to respond to written communications from LEP persons.
     How to respond to LEP individuals who have in-person 
contact with recipient staff.
     How to ensure competency of interpreters and translation 
services.
(3) Training Staff
    Staff need to know that they must provide meaningful access to 
information and services for LEP persons. Recipients should provide 
training to ensure that:
     Staff know about LEP policies and procedures.
     Staff having contact with the public (or those in a 
recipient's custody) are trained to work effectively with in-person and 
telephone interpreters.
    It is important that this training be part of the orientation for 
new employees and that all employees in public contact positions (or 
having contact with those in a recipient's custody) be properly 
trained. Recipients have flexibility in deciding the way the training 
is provided. The more frequent the contact with LEP persons, the 
greater the need will be for in-depth training. Staff with little or no 
contact with LEP persons may only have to be aware of an LEP policy.
(4) Providing Notice to LEP Persons
    Once an agency has decided, based on the four factors, that it will 
provide language services, it is important to let LEP persons know that 
those services are available and that they are free of charge. 
Recipients should provide this notice in a language LEP persons will 
understand. Examples of notification that recipients should consider 
include:
     Posting signs in intake areas and other entry points. When 
language assistance is needed to ensure meaningful access to 
information and services, the signs could state that LEP persons have a 
right to free language assistance. The signs should be translated into 
the most common languages encountered. They should explain how to get 
the language help.
     Stating in outreach documents that language services are 
available from the agency. Announcements could be in, for instance, 
brochures, booklets, and in outreach and recruitment information. These 
statements should be translated into the most common languages and 
could be ``tagged'' onto the front of common documents.
     Working with community-based organizations and other 
stakeholders to inform LEP individuals of the recipients' services, 
including the right to language services.
     Using a telephone voice mail menu. The menu could be in 
the most common languages encountered. It should provide information 
about available language assistance services and how to get them.
     Including notices in local newspapers in languages other 
than English.
     Providing notices on non-English-language radio stations 
about the available language assistance services and how to get them.
(5) Monitoring and Updating the LEP Policy
    Recipients should always consider whether new documents, programs, 
services, and activities need to be made accessible for LEP 
individuals, and they should make any needed changes. They should then 
provide notice of any changes in services to the LEP public and to 
employees. In addition, DOJ recipients should evaluate their entire 
language policy at least every three years. One way to evaluate the LEP 
policy is to seek feedback from the community.
    In their reviews, recipients should assess changes in:
     Current LEP populations in service area or population 
affected or encountered.
     Frequency of encounters with LEP language groups.
     Nature and importance of activities to LEP persons.
     Availability of resources, including technological 
advances and sources of additional resources.
     Whether existing assistance is meeting the needs of LEP 
persons.
     Whether staff knows and understands the LEP policy and how 
to implement it.
     Whether identified sources for assistance are still 
available and viable.

III. Application to Specific Types of Recipients

    Appendix A of this Guidance provides examples of how the Title VI 
meaningful access requirement applies to law enforcement, corrections, 
courts, and other recipients of DOJ assistance.

A. State and Local Law Enforcement

    Appendix A further explains how law enforcement recipients can 
apply the four factors to a range of encounters with the public. The 
responsibility for providing language services differs with different 
types of encounters.
    Appendix A helps recipients identify the population they should 
consider when deciding the types of services to provide. It then 
provides guidance and examples of applying the four factors. For 
instance, it gives examples on how to apply this guidance to:
     Receiving and responding to requests for help
     Enforcement stops short of arrest and field investigations
     Custodial interrogations
     Intake/detention
     Community outreach

B. Departments of Corrections

    Appendix A also helps departments of corrections understand how to 
apply the four factors. For instance, it gives examples of LEP access 
in:
     Intake
     Disciplinary action
     Health and safety
     Participation in classes or other programs affecting 
length of sentence
     English as a Second Language (ESL) Classes
     Community corrections programs

[[Page 3839]]

C. Other Types of Recipients

    Appendix A also applies the four factors and gives examples for 
other types of recipients. Those include, for example:
     Courts
     Juvenile Justice Programs
     Domestic Violence Prevention/Treatment Programs

Title VI Compliance Procedures

    DOJ recipients have a great deal of flexibility in deciding how to 
comply with these obligations. DOJ will continue to use the same 
process for handling complaints based on LEP as it uses in any other 
Title VI complaint. That process emphasizes voluntary compliance. (See 
Appendix B for further information). In addition, DOJ will use this 
Guidance, including the appendices, in conducting investigations or 
reviews of a recipient's language services.

Appendix A--Application of LEP Guidance for DOJ Recipients to 
Specific Types of Recipients

    While a wide range of entities receive federal financial assistance 
through DOJ, most of DOJ's assistance goes to law enforcement agencies, 
including state and local police and sheriffs' departments, and to 
state departments of corrections. Sections A and B below provide 
examples of how these two major types of DOJ recipients might apply the 
four-factor analysis. Section C provides examples for other types of 
recipients. The examples in this Appendix are not meant to be 
exhaustive.
    The requirements of Title VI and its implementing regulations, as 
clarified by this Guidance, supplement, but do not supplant, 
constitutional and other statutory or regulatory provisions that may 
require LEP services. For instance, while application of the four-
factor analysis may lead to a similar result, it does not replace 
constitutional or other statutory protections mandating warnings and 
notices in languages other than English in the criminal justice 
context. Rather, this Guidance clarifies the Title VI obligation to 
address, in appropriate circumstances and in a reasonable manner, the 
language assistance needs of LEP individuals beyond those required by 
the Constitution or statutes and regulations other than Title VI.

A. State and Local Law Enforcement

    For the vast majority of the public, exposure to law enforcement 
begins and ends with interactions with law enforcement personnel 
discharging their duties while on patrol, responding to a request for 
services, talking to witnesses, or conducting community outreach 
activities. For a much smaller number, that exposure includes a visit 
to a station house. And for an important but even smaller number, that 
visit to the station house results in entry into the criminal justice, 
judicial, or juvenile justice systems.
    The common thread running through these and other interactions 
between the public and law enforcement is the exchange of information. 
LEP individuals' encounters with police and sheriffs' departments are 
covered by Title VI if those departments receive federal financial 
assistance. This Guidance focuses on the requirements under Title VI to 
communicate effectively with persons who are LEP to ensure that they 
have meaningful access to the system, including, for example, 
understanding rights and accessing police assistance.
    Many police and sheriffs' departments already provide language 
services in a wide variety of circumstances to obtain information 
effectively, to build trust and relationships with the community, and 
to contribute to the safety of law enforcement personnel. For example, 
many police departments have available printed Miranda rights in 
languages other than English.\1\ In areas where significant LEP 
populations reside, law enforcement officials already may have forms 
and notices in languages other than English or they may employ 
bilingual law enforcement officers, intake personnel, counselors, and 
support staff. These experiences can form a strong basis for assessing 
need and implementing a plan in compliance with Title VI and its 
implementing regulations.
---------------------------------------------------------------------------

    \1\ DOJ's own Federal Bureal of Investigation makes written 
versions of those rights available in several different languages.
---------------------------------------------------------------------------

1. General Principles

    The touchstone of the four-factor analysis is reasonableness based 
upon the specific purposes, needs, and capabilities of the law 
enforcement service under review and an appreciation of the nature and 
particularized needs of the LEP population served. Accordingly, the 
analysis cannot provide a single uniform answer on how service to LEP 
persons must be provided in all programs or activities in all 
situations. Knowledge of local conditions and community needs becomes 
critical in determining the type and level of language services needed. 
The more predictable the need for language services, the greater the 
responsibility under the four-factor analysis.
    Before giving specific examples, several general points should 
assist law enforcement planners in correctly applying the analysis to 
the wide range of services employed in their particular jurisdictions.
a. Permanent Versus Seasonal Populations
    In many communities, resident populations change over time or 
season. For example, in some resort communities, populations swell 
during peak vacation periods, many times exceeding the number of 
permanent residents of the jurisdiction. In other communities, 
primarily agricultural areas, transient populations of agricultural 
workers will require increased law enforcement services during the 
relevant harvest season. This dynamic demographic ebb and flow can also 
dramatically change the size and nature of the LEP community likely to 
come into contact with law enforcement personnel. Thus, law enforcement 
officials should not limit their analysis to numbers and percentages of 
permanent residents. In assessing factor one--the number or proportion 
of LEP individuals--police departments should consider any significant 
but temporary changes in a jurisdiction's demographics.

    Example: A rural jurisdiction has a permanent population of 
30,000, 7% of which is Hispanic. Based on census data and an 
information from the contiguous school district, of that number, 
only 15% are estimated to be LEP individuals. Thus, the total 
estimated permanent LEP population is 315 or approximately 1% of the 
total permanent population. Under the four-factor analysis, a 
sheriffs' department could reasonably conclude that the small number 
of LEP persons makes the affirmative translation of documents and/or 
employment of bilingual staff unnecessary. However, during the 
spring and summer planting and harvest seasons, the local population 
swells to 40,000 due to the influx of seasonal agricultural workers. 
Of this transitional number, about 75% are Hispanic and about 50% of 
that number are LEP individuals. This information comes from the 
schools and a local migrant worker community group. Thus, during the 
harvest season, the jurisdiction's LEP population increases to over 
10% of all residents. In this case, the department should consider, 
under the safe harbor provisions of this Guidance, translating vital 
written documents into Spanish. In addition, the predictability of 
contact during those seasons makes it important for the jurisdiction 
to review its oral language services to ensure meaningful access for 
LEP individuals.

[[Page 3840]]

b. Target Audiences
    For most law enforcement services, the target audience is defined 
in geographic rather than programmatic terms. However, some services 
may be targeted to reach a particular audience (e.g., elementary school 
children, elderly, residents of high crime areas, minority communities, 
small business owners/operators, etc.). Also, within the larger 
geographic area covered by a police department, certain precincts or 
portions of precincts may have concentrations of LEP persons. In these 
cases, even if the overall number or proportion of LEP individuals in 
the district is low, the frequency of contact may be foreseeably higher 
for certain areas or programs. Thus, the second factor--frequency of 
contact--should be considered in light of the specific program or the 
geographic area being served. The police department could then focus 
language services where they are most likely to be needed.

    Example:  A police department that receives funds from the DOJ 
Office of Justice Programs initiates a program to increase awareness 
and understanding of police services among elementary school age 
children in high crime areas of the jurisdiction. This program 
involves ``Officer in the Classroom'' presentations at elementary 
schools located in areas of high poverty. The population of the 
jurisdiction is estimated to include only 3% LEP individuals. 
However, the LEP population at the target schools is 35%, the vast 
majority of whom are Vietnamese speakers. In applying the four-
factor analysis, the higher LEP language group populations of the 
target schools and the frequency of contact within the program with 
LEP students in those schools, not the LEP population generally, 
should be used in determining the nature of the LEP needs of that 
particular program. Further, because the Vietnamese LEP population 
is concentrated in one or two main areas of town, the police 
department should expect the frequency of contact with Vietnamese 
LEP individuals in general to be quite high in those areas, and it 
should plan accordingly.
c. Importance of Service/Information
    Given the critical role law enforcement plays in maintaining 
quality of life and property, traditional law enforcement and 
protective services rank high on the critical/non-critical continuum. 
However, this does not mean that information about, or provided by, 
each of the myriad services and activities performed by law enforcement 
officials must be equally available in languages other than English. 
While clearly important to the ultimate success of law enforcement, 
certain community outreach activities do not have the same direct 
impact on the provision of core law enforcement services as the 
activities of 911 lines or law enforcement officials' ability to 
respond to requests for assistance while on patrol, to communicate 
basic information to suspects, etc. Nevertheless, with the rising 
importance of community partnerships and community-based programming as 
a law enforcement technique, the need for language services should be 
considered in such activities as well.
d. Interpreters
    Just as with other recipients, law enforcement recipients have a 
variety of options for providing language services. As a general rule, 
when language services are required, recipients should provide 
competent interpreter services free of cost to the LEP person. LEP 
persons should be advised that they may choose either to secure the 
assistance of an interpreter of their own choosing, at their own 
expense, or a competent interpreter provided by the recipient.
    If the LEP person decides to provide his or her own interpreter, 
the provision of this notice and the LEP person's election should be 
documented in any written record generated with respect to the LEP 
person. While an LEP person may sometimes look to bilingual family 
members or friends or other persons with whom they are comfortable for 
language assistance, there are many situations where an LEP person 
might want to rely upon recipient-supplied interpretative services. For 
example, such individuals may not be available when and where they are 
needed, or may not have the ability to translate program-specific 
technical information. Alternatively, an individual may feel 
uncomfortable revealing or describing sensitive, confidential, or 
potentially embarrassing medical, law enforcement (e.g., sexual or 
violent assaults), family, or financial information to a family member, 
friend, or member of the local community. Similarly, there may be 
situations where a recipient's own interests justify the provision of 
an interpreter regardless of whether the LEP individual also provides 
his or her own interpreter. For example, where precise, complete and 
accurate translations of information and/or testimony are critical for 
law enforcement, adjudicatory or legal reasons, a recipient might 
decide to provide its own, independent interpreter, even if an LEP 
person wants to use their own interpreter as well.
    In emergency situations that are not reasonably foreseeable, the 
recipient may have to temporarily rely on non-recipient-provided 
language services. Proper recipient planning and implementation can 
help avoid such situations.
    While all language services need to be competent, the greater the 
potential consequences, the greater the need to monitor interpretation 
services for quality. For instance, it is important that interpreters 
in custodial interrogations be highly competent to translate legal and 
other law enforcement concepts, as well as be extremely accurate in 
their interpretation. It may be sufficient, however, for a desk clerk 
who is bilingual but not skilled at interpreting to help an LEP person 
figure out to whom he or she needs to talk about setting up a 
neighborhood watch.

2. Applying the Four-Factor Analysis Along the Law Enforcement 
Continuum

    While all police activities are important, the Title VI analysis 
requires some prioritizing so that language services are targeted where 
most needed because of the nature and importance of the particular law 
enforcement activity involved. In addition, because of the 
``reasonableness'' standard, and frequency of contact and resources 
factors, the obligation to provide language services increases where 
the importance of the activity is greater, the law enforcement activity 
is more focused, and/or the provision of language services is more 
``within the control'' of the police department.
    Under this framework, then, critical areas for language assistance 
include: 911 calls, custodial interrogation, and health and safety 
issues for persons within the control of the police. These activities 
should be considered the most important under the four-factor analysis. 
Systems for receiving and investigating complaints from the public are 
important; further, complaint forms and investigations/hearings are 
directly within the control of the department. Thus, forms, hearings, 
and other complaint procedures should be made accessible to LEP 
individuals. Often very important, but less focused and controlled are: 
Routine patrol activities, receiving non-emergency information 
regarding potential crimes, and ticketing. In these situations, the LEP 
plan should provide for a great deal of flexibility while at the same 
time ensuring that, wherever reasonable, language resources are 
available to officers and the LEP persons they encounter and that, when 
not available, the consequences to the LEP individuals are minimized. 
Community outreach activities are hard to categorize, but generally 
they do not rise to the same level of importance as the other 
activities listed. However, with the importance of community 
partnerships

[[Page 3841]]

and community-based programming as a law enforcement technique, the 
need for language services should be considered in these activities as 
well. Police departments have a great deal of flexibility in 
determining how to best address their outreach to LEP populations.
a. Receiving and Responding to Requests for Assistance
    LEP persons must have meaningful access to police services when 
they are victims of or witnesses to alleged criminal activity. 
Effective reporting systems transform victims, witnesses, or bystanders 
into assistants in law enforcement and investigation processes. Given 
the critical role the public plays in reporting crimes or directing 
limited law enforcement resources to time-sensitive emergency or public 
safety situations, efforts to address the language assistance needs of 
LEP individuals could have a significant impact on improving 
responsiveness, effectiveness, and safety.
    All emergency service lines, or ``911'' lines, operated by agencies 
that receive federal financial assistance must be accessible to persons 
who are LEP. This will mean different things to different 
jurisdictions. For instance, in large cities with significant LEP 
communities, the 911 line may have operators who are bilingual and 
capable of accurately interpreting in high stress situations. Smaller 
cities or areas with small LEP populations should still have to have a 
plan for serving callers who are LEP, but the LEP policy and 
implementation may involve a telephonic language line that is fast 
enough and reliable enough to attend to the emergency situation, or 
include some other accommodation short of hiring bilingual operators.

    Example:  A large city provides bilingual operators for the most 
frequently encountered languages, and uses a commercial telephone 
language line when it receives calls from LEP persons who speak 
other languages. Ten percent of the city's population is LEP, and 
sixty percent of the LEP population speaks Spanish. In addition to 
911 service, the city has a 311 line for non-emergency police 
services. The 311 Center has Spanish speaking operators available, 
and uses a language bank, staffed by the city's bilingual city 
employees who are competent translators, for other non-English-
speaking callers. The city also has a campaign to educate non-
English speakers when to use 311 instead of 911. Such services are 
consistent with Title VI principles.
b. Enforcement Stops Short of Arrest and Field Investigations
    Field enforcement includes, for example, traffic stops, pedestrian 
stops, serving warrants and restraining orders, Terry stops, and crowd/
traffic control. Because of the diffuse nature of these activities, the 
reasonableness standard allows for great flexibility in providing 
meaningful access, for example, in routine field investigations and 
traffic stops. Nevertheless, the ability of law enforcement personnel 
to discharge fully and effectively its enforcement and crime 
interdiction mission requires the ability to communicate instructions, 
commands, and notices. For example, a routine traffic stop can become a 
difficult situation if an officer is unable to communicate effectively 
the reason for the stop, the need for identifying or other information, 
and the meaning of any written citation. Requests for consent to search 
are meaningless if the request is not understood. Similarly, crowd 
control commands will be wholly ineffective where significant numbers 
of people in a crowd cannot understand the meaning of law enforcement 
commands.
    Given the wide range of possible situations in which law 
enforcement in the field can take place, it is impossible to equip 
every officer with the tools necessary to respond to every possible LEP 
scenario. Rather, in applying the four factors to field enforcement, 
the goal should be to implement measures addressing the language needs 
of significant LEP populations in the most likely and common 
situations.

    Example:  A police department serves a jurisdiction with a 
significant number of LEP individuals residing in one or more 
precincts, and it is routinely asked to provide crowd control 
services at community events or demonstrations in those precincts. 
Consistent with the requirements of the four-factor analysis, the 
police department should assess how it will discharge its crowd 
control duties in a language-appropriate manner. Among the possible 
approaches are plans to assign bilingual officers, basic language 
training of all officers in common law enforcement commands, the use 
of devices that provide audio commands in the predictable languages, 
or the distribution of translated written materials for use by 
officers.

    Field investigations include neighborhood canvassing, witness 
identification and interviewing, investigative or Terry stops, and 
similar activities designed to solicit and obtain information from the 
community. Encounters with LEP individuals will often be less 
predictable in field investigations. However, the jurisdiction should 
still assess the potential for contact with LEP individuals in the 
course of field investigations and investigative stops, identify the 
LEP language group(s) most likely to be encountered, and provide their 
officers with sufficient written or oral translation resources to 
ensure that lack of English proficiency does not impede otherwise 
proper investigations or unduly burden LEP individuals.

    Example:  A police department in a moderately large city 
includes a precinct that serves an area which includes significant 
LEP populations whose native languages are Spanish, Korean, and 
Tagalog. Law enforcement officials could reasonably consider the 
adoption of a policy assigning bilingual investigative officers to 
the precinct and/or creating a resource list of department employees 
competent to interpret and ready to assist officers by phone or 
radio. This could be combined with developing language-appropriate 
written materials, such as consents to searches or statements of 
rights, for use by its officers where LEP individuals are literate 
in their languages. In certain circumstances, it may also be helpful 
to have telephone language line access where other options are not 
successful and safety and availability of phone access permit.
c. Custodial Interrogations
    Custodial interrogations of unrepresented LEP individuals trigger 
constitutional rights that this Guidance is not designed to address. 
Given the importance of being able to communicate effectively under 
such circumstances, recipients' ability to anticipate and plan for a 
need for language services, and the control over LEP and other 
individuals asserted by recipients in custodial interrogation 
situations, law enforcement recipients must ensure competent and free 
language services for LEP individuals in such situations. A clear 
written policy, understood and easily accessible by all officers, will 
assist the law enforcement agency in complying with this obligation. In 
formulating a written policy for effectively communicating with LEP 
individuals, agencies should consider whether law enforcement personnel 
themselves ought to serve as interpreters during custodial 
interrogation, or whether a qualified independent interpreter would be 
more appropriate.\2\
---------------------------------------------------------------------------

    \2\ Some state laws prohibit police officers from serving as 
interpreters during custodial interrogation of suspects.
---------------------------------------------------------------------------

    Example: A large city police department institutes an LEP plan 
that requires arresting officers to procure a qualified interpreter 
for any custodial interrogation, notification of rights, or taking 
of a statement, and any communication by an LEP individual in 
response to a law enforcement officer. When considering whether an 
interpreter is qualified, the LEP policy discourages use of police 
officers as interpreters in interrogations except under 
circumstances in which the reliability of the interpretation is 
verified, such as, for example, where the officer has been trained 
and tested in

[[Page 3842]]

interpreting and tape recordings are made of the entire interview. 
In determining whether an interpreter is qualified, the jurisdiction 
uses the analysis noted above. Such a plan is consistent with Title 
VI responsibilities.
d. Intake/Detention
    State or local law enforcement agencies that arrest LEP persons 
should consider the inherent communication impediments to gathering 
information from the LEP arrestee through an intake or booking process. 
Aside from the basic information, such as the LEP arrestee's name and 
address, law enforcement agencies should evaluate their ability to 
communicate with the LEP arrestee about his or her medical condition. 
Because medical screening questions are commonly used to elicit 
information on the arrestee's medical needs, suicidal inclinations, 
presence of contagious diseases, potential illness, resulting symptoms 
upon withdrawal from certain medications, or the need to segregate the 
arrestee from other prisoners, it is essential that law enforcement 
agencies have the ability to communicate effectively with an LEP 
arrestee. In jurisdictions with few bilingual officers or in situations 
where the LEP person speaks a language not encountered very frequently, 
language lines may provide the most cost effective and efficient method 
of communication.
e. Community Outreach
    Community outreach activities increasingly are recognized as 
important to the ultimate success of more traditional duties. Thus, an 
application of the four-factor LEP analysis to community outreach 
activities can play an important role in ensuring that the purpose of 
these activities (to improve police/community relations and advance law 
enforcement objectives) is not thwarted due to the failure to address 
the language needs of LEP persons.

    Example: A police department initiates a program of domestic 
counseling in an effort to reduce the number or intensity of 
domestic violence interactions. A review of domestic violence 
records in the city reveals that 25% of all domestic violence 
responses are to minority areas and 30% of those responses involve 
interactions with one or more LEP persons, most of whom speak the 
same language. The department should take reasonable steps to make 
the counseling accessible to LEP individuals. In this case, the 
department successfully sought bilingual counselors (for whom they 
provided training in translation) for some of the counseling 
positions. In addition, the department has an agreement with a local 
university in which bilingual social work majors who are competent 
in interpreting, as well as language majors who are trained by the 
department in basic domestic violence sensitivity and counseling, 
are used as interpreters when the in-house bilingual staff cannot 
cover the need. Interpreters must sign a confidentiality agreement 
with the department. This would be consistent with Title VI 
responsibilities.
    Example: A large city has initiated an outreach program designed 
to address a problem of robberies of Vietnamese homes by Vietnamese 
gangs. One strategy is to work with community groups and banks and 
others to help allay traditional fears in the community of putting 
money and other valuables in banks. Because a large portion of the 
target audience is Vietnamese speaking and LEP, the department 
contracts with a bilingual community liaison competent in the skill 
of translating to help with outreach activities. This would be 
consistent with Title VI responsibilities.

B. Departments of Corrections

    All departments of corrections that receive federal financial 
assistance from DOJ must provide LEP prisoners \3\ with meaningful 
access to benefits and services within the program. In order to do so, 
corrections departments, like other recipients, must apply the four-
factor analysis.
---------------------------------------------------------------------------

    \3\ In this Guidance, the terms ``prisoners'' or ``inmates'' 
include all of those individuals, including Immigration and 
Naturalization Service (INS) detainees and juveniles, who are held 
in a facility operated by a recipient. Certain statutory, 
regulatory, or constitutional mandates/rights may apply only to 
juveniles, such as educational rights, including those for students 
with disabilities or limited English proficiency. Because a decision 
by a recipient or a federal, state, or local entity to make an 
activity compulsory serves as strong evidence of the program's 
importance, the obligation to provide language services may differ 
depending upon whether the LEP person is a juvenile or an adult 
inmate.
---------------------------------------------------------------------------

1. General Principles

    Departments of corrections also have a wide variety of options in 
providing translation services appropriate to the particular situation. 
Bilingual staff competent in translating, in person or by phone, pose 
one option. Additionally, particular prisons may have agreements with 
local colleges and universities, interpreter services, and/or community 
organizations to provide paid or volunteer competent translators under 
agreements of confidentiality and impartiality. Language lines may 
offer a prudent oral interpreting option for prisons with very few and/
or infrequent prisoners in a particular language group. Reliance on 
fellow prisoners is generally not appropriate. Reliance on fellow 
prisoners should only be an option in unforeseeable emergency 
circumstances; when the LEP inmate signs a waiver that is in his/her 
language and in a form designed for him/her to understand; or where the 
topic of communication is not sensitive, confidential, important, or 
technical in nature and the prisoner is competent in the skill of 
interpreting.
    In addition, a department of corrections that receives federal 
financial assistance would be ultimately responsible for ensuring that 
LEP inmates have meaningful access within a prison run by a private or 
other entity with which the department has entered into a contract. The 
department may provide the staff and materials necessary to provide 
required language services, or it may choose to require the entity with 
which it contracted to provide the services itself.

2. Applying the Four Factors Along the Corrections Continuum

    As with law enforcement activities, critical and predictable 
contact with LEP individuals poses the greatest obligation for language 
services. Corrections facilities have somewhat greater abilities to 
assess the language needs of those they encounter, although inmate 
populations may change rapidly in some areas. Contact affecting health 
and safety, length of stay, and discipline present the most critical 
situations under the four-factor analysis.
a. Assessment
    In order to create a plan for providing language services, each 
department of corrections that receives federal financial assistance 
should assess the number of LEP prisoners who are in the system, in 
which prisons they are located, and the languages he or she speaks. 
Each prisoner's LEP status, and the language he or she speaks, should 
be placed in his or her file. Although this Guidance and Title VI are 
not meant to address literacy levels, agencies should be aware of 
literacy problems so that LEP services are provided in a way that is 
meaningful and useful (e.g., translated written materials are of little 
use to a nonliterate inmate). After the initial assessment, new LEP 
prisoners should be identified at intake or orientation, and the data 
should be updated accordingly.
b. Intake/Orientation
    Intake/Orientation plays a critical role not merely in the system's 
identification of LEP prisoners, but in providing those prisoners with 
fundamental information about their obligations to comply with system 
regulations, participate in education and training, receive appropriate 
medical treatment, and enjoy recreation. Even if only one prisoner 
doesn't understand English, that prisoner should be given the 
opportunity to be informed of the rules, obligations, and opportunities 
in a manner designed effectively to

[[Page 3843]]

communicate these matters. An appropriate analogy is the obligation to 
communicate effectively with deaf prisoners, which is most frequently 
accomplished through sign language interpreters or written materials. 
Not every prison will use the same method for providing language 
assistance. Prisons with large numbers of Spanish-speaking LEP 
prisoners, for example, will likely need to translate written rules, 
notices, and other important orientation material into Spanish, with 
oral instructions, whereas prisons with very few such inmates may 
choose to rely upon a language line or qualified community volunteers 
to assist.

    Example: The department of corrections in a state with a 5% 
Haitian Creole-speaking LEP corrections population and an 8% 
Spanish-speaking LEP population receives federal financial 
assistance to expand one of its prisons. The department of 
corrections has developed an intake video in Haitian Creole and 
another in Spanish for all of the prisons within the department to 
use when orienting new prisoners who are LEP and speak one of those 
languages. In addition, the department provides inmates with an 
opportunity to ask questions and discuss intake information through 
either bilingual staff who are competent in interpreting who are 
present at the orientation or who are patched in by phone to act as 
interpreters. The department also has an agreement whereby some of 
its prisons house a small number of INS detainees. For those 
detainees or other inmates who are LEP and do not speak Haitian 
Creole or Spanish, the department has created a list of sources for 
interpretation, including department staff, contract interpreters, 
university resources, and a language line. Each person receives at 
least an oral explanation of the rights, rules, and opportunities. 
This orientation plan would be considered consistent with Title VI.
c. Disciplinary Action
    When a prisoner who is LEP is the subject of disciplinary action, 
the prison must provide language assistance. That assistance must 
ensure that the LEP prisoner had adequate notice of the rule in 
question and is meaningfully able to understand and participate in the 
process afforded prisoners under those circumstances. As noted 
previously, fellow inmates cannot serve as interpreters in disciplinary 
hearings.
d. Health and Safety
    Prisons providing health services should refer to Department of 
Health and Humans Services' guidance \4\ regarding health care 
providers' Title VI obligations, as well as with this Guidance.
---------------------------------------------------------------------------

    \4\ A copy of that guidance can be found on the HHS website at 
http://www.hhs.gov/ocr/lep/ and at http://www.usdoj.gov/crt/cor.
---------------------------------------------------------------------------

    Health care services are obviously extremely important. LEP 
individuals must be provided with access to those services. How that 
access is provided depends upon the number or proportion of LEP 
individuals, the frequency of contact with those LEP individuals, and 
the resources available to the recipient. If, for instance, a prison 
serves a high proportion of LEP individuals who speak Spanish, then the 
prison health care provider should have available qualified bilingual 
medical staff or interpreters versed in medical terms. If the 
population of LEP individuals is low, then the prison may choose 
instead, for example, to rely on a local community volunteer program 
that provides qualified interpreters through a university. Due to the 
private nature of medical situations, only in unpredictable emergency 
situations or in non-emergency cases where the inmate has waived rights 
to an non-inmate interpreter would the use of other bilingual inmates 
be appropriate.
e. Participation Affecting Length of Sentence
    If a prisoner's LEP status makes him/her unable to participate in a 
particular program, such a failure to participate cannot be used to 
adversely impact the length of stay or significantly affect the 
conditions of imprisonment. Prisons have options in how to apply this 
standard. For instance, prisons could: (1) Make the program accessible 
to the LEP inmate; or (2) waive the requirement.

    Example: State law provides that otherwise eligible prisoners 
may receive early release if they take and pass an alcohol 
counseling program. Given the importance of early release, LEP 
prisoners must be provided access to this prerequisite in some 
fashion. How that access is provided depends on the three factors 
other than importance. If, for example, there are many LEP prisoners 
speaking a particular language in the prison system, the class could 
be provided in that language for those inmates. If there were far 
fewer LEP prisoners speaking a particular language, the prison will 
still need to ensure access to this prerequisite because of the 
importance of early release opportunities. Options include, for 
example, use of bilingual teachers, contract interpreters, or 
community volunteers to interpret during the class, reliance on 
videos or written explanations in a language the inmate understands, 
and/or modification of the requirements of the class to meet the LEP 
individual's ability to understand and communicate. Another possible 
option would be to waive the requirement for the LEP prisoners and 
allow early release without this prerequisite.
f. ESL Classes
    States often mandate English-as-a-Second language (ESL) classes for 
LEP inmates. Nothing in this Guidance prohibits or requires such 
mandates. ESL courses often serve as an important part of a proper LEP 
plan in prisons because, as prisoners gain proficiency in English, 
fewer language services are needed. However, the fact that ESL classes 
are provided does not obviate the need to provide meaningful access for 
prisoners who are not yet English proficient.
g. Community Corrections
    This guidance also applies to community corrections programs that 
receive, directly or indirectly, federal financial assistance. For 
them, the most frequent contact with LEP individuals will be with an 
offender, a victim, or the family members of either, but may also 
include witnesses and community members in the area in which a crime 
was committed.
    As with other recipient activities, community corrections programs 
should apply the four factors and determine areas where language 
services are most needed. Important oral communications include, for 
example: interviews; explaining conditions of probations/release; 
developing case plans; setting up referrals for services; regular 
supervision contacts; outlining violations of probations/parole and 
recommendations; and making adjustments to the case plan. Competent 
oral language services for LEP persons are important for each of these 
types of communication. Recipients have great flexibility in 
determining how to provide those services.
    Just as with all language services, it is important that language 
services be competent. Some knowledge of the legal system may be 
necessary in certain circumstances. For example, special attention 
should be given to the technical interpretation skills of interpreters 
used when obtaining information from an offender during pre-sentence 
and violation of probation/parole investigations or in other 
circumstances in which legal terms and the results of inaccuracies 
could impose an enormous burden on the LEP person.
    In addition, just as with other recipients, corrections programs 
should identify vital written materials for probation and parole that 
should be translated when a significant number or proportion of LEP 
individuals that speak a particular language is encountered. Vital 
documents in this context could include, for instance: probation/parole 
department

[[Page 3844]]

descriptions and grievance procedures, offender rights information, the 
pre-sentence/release investigation report, notices of alleged 
violations, sentencing/release orders, including conditions of parole, 
and victim impact statement questionnaires.

C. Other Types of Recipients

    DOJ provides federal financial assistance to many other types of 
entities and programs, including, for example, courts, juvenile justice 
programs, shelters for victims of domestic violence, and domestic 
violence prevention programs. Title VI and this Guidance apply to those 
entities. Examples involving some of those recipients follow:

1. Courts

    Application of the four-factor analysis requires recipient courts 
to ensure that LEP parties and witnesses receive competent language 
services. At a minimum, every effort should be taken to ensure 
translations for LEP individuals during all hearings, trials, and 
motions during which the LEP individual must and/or may be present. 
When a recipient court appoints an attorney to represent an LEP 
defendant, the court should ensure that either the attorney is 
proficient in the LEP person's language or that a competent interpreter 
is provided during consultations between the attorney and the LEP 
person.
    Many states have created certification procedures for interpreters. 
This is one way of meeting the Title VI requirement that recipients 
ensure competency of interpreters. Courts will not, however, always be 
able to find a certified interpreter, particularly for less frequently 
encountered languages.

    Example: A state court receiving DOJ federal financial 
assistance has frequent contact with LEP individuals as parties and 
witnesses, but has experienced a shortage in certified interpreters 
in the range of languages encountered. State court officials work 
with training and testing consultants to broaden the number of 
certified interpreters available in the top several languages spoken 
by LEP individuals in the state. Because resources are scarce and 
the development of tests expensive, state court officials decide to 
partner with other states that have already established agreements 
to share proficiency tests and to develop new ones together. The 
state court officials also look to other existing state plans for 
examples of: Codes of professional conduct for interpreters; 
mandatory orientation and basic training for interpreters; 
interpreter proficiency tests in Spanish and Vietnamese language 
interpretation; a written test in English for interpreters in all 
languages covering professional responsibility, basic legal term 
definitions, court procedures, etc. They are considering working 
with other states to expand testing certification programs in coming 
years to include several other most frequently encountered 
languages. This type of assessment of need, planning, and 
implementation is consistent with Title VI principles.

    Many individuals, while able to communicate in English to some 
extent, are still LEP. Courts should consider carefully whether a 
person will be able to understand and communicate effectively in the 
stressful role of a witness or party and in situations where knowledge 
of language subtleties and/or technical terms and concepts are 
involved.

    Example: Judges in a county court receiving federal financial 
assistance have adopted a voir dire for determining a witness' need 
for an interpreter. The voir dire avoids questions that could be 
answered with ``yes'' or ``no.'' It includes questions about comfort 
level in English, and questions that require active responses, such 
as: ``How did you come to court today?'' etc. The judges also ask 
the witness more complicated conceptual questions to determine the 
extent of the person's proficiency in English. Such a procedure is 
consistent with Title VI principles.

    When courts experience low numbers or proportions of LEP 
individuals from a particular language group and infrequent contact 
with that language group, creation of a new certification test for 
interpreters may be overly burdensome. In such cases, other methods 
should be used to determine the competency of interpreters for the 
court's purposes.

    Example: A witness in a county court in a large city speaks Urdu 
and not English. The jurisdiction has no court interpreter 
certification testing for Urdu language interpreters because very 
few LEP individuals encountered speak Urdu. However, a non-certified 
interpreter is available and has been given the standard English-
language test on court processes and interpreter ethics. The judge 
brings in a second, independent, bilingual Urdu-speaking person from 
a local university, and asks the prospective interpreter to 
interpret the judge's conversation with the second individual. The 
judge then asks the second Urdu speaker a series of questions 
designed to determine whether the interpreter accurately interpreted 
their conversation. Given the infrequent contact, the low number and 
proportion of Urdu LEP individuals in the area, and the high cost of 
providing certification tests for Urdu interpreters, this ``second 
check'' solution is one appropriate way of ensuring meaningful 
access to the LEP individual.

    Another key to successful use of interpreters in the courtroom is 
to ensure that everyone in the process understands the role of the 
interpreter.

    Example: Judges in a recipient court administer a standard oath 
to each interpreter and make a statement to the jury that the role 
of the interpreter is to interpret, verbatim, the questions posed to 
the witness and the witness' response. The jury should focus on the 
words, not the non-verbals, of the interpreter. The judges also 
clarify the role of the interpreter to the witness and the 
attorneys. These are important steps in providing meaningful access 
to the court for LEP individuals.

    Just as corrections recipients must take care to ensure that 
eligible LEP individuals have the opportunity to reduce the term of 
their sentence to the same extent that non-LEP individuals do, courts 
must ensure that LEP persons have access to programs that would give 
them the opportunity to avoid serving a sentence at all.

    Example: An LEP defendant should be given the same access to 
alternatives to sentencing, such as anger management and alcohol 
abuse counseling, as is given to non-LEP persons in the same 
circumstances.

    Courts have significant contact with the public outside of the 
courtroom. Providing meaningful access to the legal process for LEP 
individuals requires more than just providing interpreters in the 
courtroom. Recipient courts should assess the need for language 
services all along the process, particularly in areas with high numbers 
of unrepresented individuals, such as family and small claims courts.

    Example: Only twenty thousand people live in a rural county. The 
county superior court receives DOJ funds but does not have a budget 
comparable to that of a more-populous urbanized county in the state. 
Over 1000 LEP Hispanic immigrants have settled in the rural county. 
The urbanized county also has more than 1000 LEP Hispanic 
immigrants. Both counties have ``how to'' materials in English 
helping unrepresented individuals negotiate the family court 
processes. The urban county has taken the lead in developing 
Spanish-language translations of materials that would explain the 
process. The rural county modifies these slightly and thereby 
benefits from the work of the urban county. Because this type of 
outreach material can be vital for an unrepresented person seeking 
access to a vital service of the court, such a translation is 
consistent with Title VI obligations and falls within the safe 
harbor. Creative solutions, such as sharing resources across 
jurisdictions, can help overcome serious financial concerns in areas 
with few resources.

    Just as with police departments, courts and/or particular divisions 
within courts may have more contact with LEP individuals than an 
assessment of the general population would indicate. Recipients should 
consider that higher contact level when determining the number or 
proportion

[[Page 3845]]

of LEP individuals in the contact population, and the frequency of such 
contact.

    Example: A county has very few residents who are LEP. However, 
many Vietnamese-speaking LEP motorists go through a major freeway 
running through the county, which connects two areas with high 
populations of Vietnamese speaking LEP individuals. As a result, the 
Traffic Division of the county court processes a large number of LEP 
persons, but it has taken no steps to train staff or provide forms 
or other language access in that Division because of the small 
number of LEP individuals in the county. The Division should assess 
the number and proportion of LEP individuals processed by the 
Division and the frequency of such contact. With those numbers high, 
the Traffic Division may find that it needs to provide key forms or 
instructions in Vietnamese. It may also find, from talking with 
community groups, that many older Vietnamese LEP individuals do not 
read Vietnamese well, and that it should provide oral language 
services as well. The court may already have Vietnamese-speaking 
staff competent in interpreting in a different section of the court; 
it may decide to hire a Vietnamese-speaking employee who is 
competent in the skill of interpreting; or it may decide that a 
language line service suffices.

2. Juvenile Justice Programs

    DOJ provides funds to many juvenile justice programs to whom this 
Guidance applies.

    Example: A county coordinator for an anti-gang program operated 
by a DOJ recipient has noticed that increasing numbers of gangs have 
formed comprised primarily of LEP individuals speaking a particular 
foreign language. The coordinator should assess the number of LEP 
youths at risk of involvement in these gangs, so that she can 
determine whether the program should hire a counselor who is 
bilingual in the particular language and English, or provide other 
types of language services to the LEP youths.

3. Domestic Violence Prevention/Treatment Programs

    Several domestic violence prevention and treatment programs receive 
DOJ financial assistance and thus must apply this Guidance to their 
programs and activities.

    Example: A shelter for victims of domestic violence is operated 
by a recipient of DOJ funds and located in an area where 15 percent 
of the women in the service area speak Spanish and are LEP. Seven 
percent of the women in the service area speak various Chinese 
dialects and are LEP. The shelter uses community volunteers to help 
translate vital outreach materials into Chinese (which is one 
written language despite many dialects) and Spanish. The shelter 
hotline has a menu providing key information, such as location, in 
English, Spanish, and two of the most common Chinese dialects. Calls 
for immediate assistance are handled by the bilingual staff. The 
shelter has one counselor and several volunteers fluent in Spanish 
and English. Some volunteers are fluent in different Chinese 
dialects and in English. The shelter works with community groups to 
access interpreters in the several Chinese dialects that they 
encounter. Shelter staff train the community volunteers in the 
sensitivities of domestic violence intake and counseling. Volunteers 
sign confidentiality agreements. The shelter is looking for a grant 
to increase its language capabilities despite its tiny budget. This 
program is consistent with Title VI principles.

D. Framework for Creating a Model Plan

    The following is an example of a framework for a model LEP policy 
that is potentially useful for all recipients, but is particularly 
appropriate for recipients serving and encountering significant and 
diverse LEP populations. The framework for a model plan incorporates a 
variety of options and methods for providing meaningful access to LEP 
persons. Recipients should consider some or all of these options for 
their plans:
--A formal written LEP policy;
--Identification and assessment of the number or proportion of LEP 
persons likely to be encountered through a review of census, school 
district, community agency, recipient and/or other data. The data will 
clearly be more within the control of some recipients than others. For 
instance, corrections facilities will likely be able to obtain accurate 
data more easily than police departments. Nevertheless, police 
departments should take reasonable steps to identify the language needs 
of the population they serve.
--Identification of the frequency of contact with LEP language groups.
--Identification of important information, services, and encounters 
that may require language services.
--Identification of resources available to provide services.
--Posting of signs in waiting areas and public entry points, in several 
languages, informing people what interpreter services are available and 
inviting them to identify themselves as needing language assistance.
--Informing LEP suspects, detainees, inmates and others potentially 
subject to criminal or disciplinary action of their right to language 
assistance.
--Use of ``I speak'' cards by those who encounter the public in-person, 
in order to identify the language an LEP person speaks.
--If a record is normally kept on encounters with individuals, noting 
the language of the LEP person in his or her record.
--Employing bilingual staff in public contact positions such as police 
officers, 911 operators, guards, etc.
--Contracting with interpreting services that can provide competent 
interpreters in a variety of languages in a timely manner.
--Formal arrangements with community groups for competent and timely 
interpreter services by community volunteers.
--An arrangement with a telephone language interpreter line (these can 
be arranged by, for instance, contacting major telephone services and 
asking if they have language line services).
--Where certain LEP populations make up a significant number of the 
population in the recipient's target area and are frequently 
encountered by the recipient, translation of vital documents into the 
languages of those LEP populations.
--Notice and training to staff, particularly those with public contact, 
of the LEP policy and how to access language services.
--Outreach to the LEP population on available language services.
--Appointing a senior level employee to coordinate the language 
assistance program, and ensure that there is regular monitoring of the 
program.

    As noted, these suggestions for a model plan are particularly 
appropriate for larger recipients encountering significant LEP 
populations. However, several of these steps will help smaller 
recipients prepare for and provide meaningful access when LEP 
individuals are encountered.
    For smaller recipients with few LEP encounters, identifying the 
most important activities is critical, and determining how to provide 
language services in those critical areas should be a priority. This 
may be as simple as accessing a commercially available language line. 
Plans for such recipients should include monitoring and expanding 
services as needed.

Appendix B--Coverage and Legal Background

A. Who is Covered?

    Title VI applies to every entity that manages or administers a 
program or activity receiving direct or indirect federal financial 
assistance from DOJ. The term ``recipients,'' as used in this guidance, 
includes all covered entities. ``Covered entities'' include any state 
or local agency, private institution or organization, or any public or 
private individual that receives federal financial assistance from DOJ 
directly or through another DOJ recipient. Examples of covered entities 
include but are not

[[Page 3846]]

limited to: Police departments; sheriffs' departments; state 
departments of corrections; courts; shelters for victims of domestic 
violence; community corrections programs; juvenile justice programs; 
and nonprofit organizations with law enforcement missions. DOJ operates 
over eighty different grant programs that provide funding to these and 
other different types of non-federal entities. Many of those grants are 
disbursed to subrecipients, which are also covered entities.
    Grants are not the only type of ``federal financial assistance'' to 
which Title VI applies. Federal financial assistance includes, but is 
not limited to: Grants and loans of federal funds; grants or donations 
of federal surplus or real property; details of federal personnel; use 
of federal facilities; or any agreement, arrangement, or other contract 
which has as one of its purposes the provision of assistance. See 28 
CFR 42.102(c). Training, equitable sharing of federally forfeited 
property, and use of FBI computers can also be considered federal 
financial assistance.\1\
---------------------------------------------------------------------------

    \1\ See Appendix A to Subpart C of the Department of Justice's 
regulations implementing Title VI of the Civil Rights Act of 1964 
(Subpart C, 28 CFR 42.101-42.112).
---------------------------------------------------------------------------

    In 1988, Congress clarified what constitutes a ``program or 
activity'' covered by Title VI when it enacted the Civil Rights 
Restoration Act of 1987 (CRRA). The CRRA provides that, in most cases, 
when a recipient receives federal financial assistance for a particular 
program or activity, all operations of the recipient are covered by 
Title VI, not just the part of the program that uses the federal 
assistance. Thus, Title VI covers all parts of the recipient's 
operations, even if only one part of the agency uses the federal 
assistance. For example, when DOJ provides federal financial assistance 
to a state department of corrections to improve a particular prison 
facility, all of the operations of the entire department of 
corrections--not just the particular prison--are covered by Title 
VI.\2\
---------------------------------------------------------------------------

    \2\ However, if a federal agency were to decide to terminate 
federal funds based on noncompliance with Title VI, only funds 
directed to the specific entity that is out of compliance--e.g., a 
particular prison--would be terminated. 42 U.S.C. 2000d-\1\1.
---------------------------------------------------------------------------

    The Department of Justice also has jurisdiction over enforcement of 
the antidiscrimination provisions of the Omnibus Crime Control and Safe 
Streets Act, as amended, 42 U.S.C. 3789d(c) (Safe Streets Act). The 
standards for compliance with Title VI's prohibition against national 
origin discrimination also apply to the prohibition against national 
origin discrimination by recipients of Safe Streets Act funds.

B. Legal Background and Authority

    The Title VI requirement to provide meaningful access to LEP 
persons is not new. The Department's position with regard to written 
language assistance is articulated in 28 CFR 42.405(d)(1), which is 
contained in the DOJ Coordination Regulations, 28 CFR Part 42, subpart 
F, issued in 1976. These regulations ``govern the respective 
obligations of Federal agencies regarding enforcement of Title VI.'' 28 
CFR 42.405. Section 42.405(d)(1) addresses the prohibitions cited by 
the Supreme Court in Lau v. Nichols, 414 U.S. 563 (1974). Thus, this 
Guidance draws its authority from Title VI of the Civil Rights Act of 
1964, as amended, 42 U.S.C. 2000d, et seq.; 28 CFR Part 42, subpart C, 
(DOJ Title VI Regulations) and the Title VI regulations of other 
federal agencies; 28 CFR Part 42, subpart F. Further, this Guidance is 
issued pursuant to Executive Order 12250, reprinted at 42 U.S.C. 2000d, 
note; Executive Order 13166, 65 FR 50121 (August 16, 2000); and is 
consistent with the DOJ ``Policy Guidance Document: on Enforcement of 
Title VI of the Civil Rights Act of 1964--National Origin 
Discrimination Against Persons With Limited English Proficiency (LEP 
Guidance),'' reprinted at 65 FR 50123 (August 16, 2000).
    For additional background on Title VI and its methods of 
enforcement, see the DOJ Title VI Legal Manual (September, 1998); DOJ's 
Investigation Procedures Manual for the Investigation and Resolution of 
Complaints Alleging Violations of Title VI and Other Nondiscrimination 
Statutes (September 1998); DOJ Guidelines for the Enforcement of Title 
VI, 28 CFR 50.3; the Attorney General's ``Memorandum for Heads of 
Departments and Agencies that Provide Federal Financial Assistance 
Regarding the Use of the Disparate Impact Standard in Administrative 
Regulations Under Title VI of the Civil Rights Act of 1964'' (July 14, 
1994); and the Assistant Attorney General for Civil Rights' ``Policy 
Guidance Document: Enforcement of Title VI and Related Statutes in 
Block Grant-Type Programs'' (January 28, 1999).\3\
---------------------------------------------------------------------------

    \3\ The documents referenced in this section are available for 
viewing or downloading at http://www.usdoj.gov/crt/cor.
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1. Existing State and Local Laws

    State and local laws may provide additional obligations to serve 
LEP individuals, but such laws cannot compel recipients of federal 
financial assistance to violate Title VI. For instance, given our 
constitutional structure, state or local ``English-only'' laws do not 
relieve an entity that receives federal funding from its 
responsibilities under federal anti-discrimination laws. Entities in 
states and localities with ``English-only'' laws are certainly not 
required to accept federal funding--but if they do, they have to comply 
with Title VI, including its prohibition against national origin 
discrimination by recipients of federal assistance. Failing to make 
federally assisted programs and activities accessible to individuals 
who are LEP will, in certain circumstances, violate Title VI.

2. Basic Requirements Under Title VI

    Title VI prohibits recipients of federal financial assistance from 
discriminating against or otherwise excluding individuals on the basis 
of race, color, or national origin in any of their activities. Section 
601 of Title VI, 42 U.S.C. 2000d, provides:

    No person in the United States shall, on the ground of race, 
color, or national origin, be excluded from participation in, be 
denied the benefits of, or be subjected to discrimination under any 
program or activity receiving federal financial assistance.

The term ``program or activity'' is broadly defined. 42 U.S.C. 2000d-
4a.
    On its face, Title VI prohibits only intentional discrimination.\4\ 
However, virtually every federal agency, including DOJ, that grants 
federal financial assistance has promulgated regulations implementing 
Title VI. Those regulations prohibit recipients from ``restrict[ing] an 
individual in any way in the enjoyment of any advantage or privilege 
enjoyed by others receiving any service, financial aid, or other 
benefit under the program'' and ``utiliz[ing] criteria or methods of 
administration which have the effect of subjecting individuals to 
discrimination'' or have ``the effect of defeating or substantially 
impairing accomplishment of the objectives of the program as respects 
individuals of a particular race, color, or national origin.'' 28 CFR 
42.04(b)(2). The Supreme Court has consistently upheld agency 
regulations prohibiting unjustified discriminatory effects.\5\
---------------------------------------------------------------------------

    \4\ Alexander v. Choate, 469 U.S. 287, 293 (1985).
    \5\ Id. at 293-294; Guardians Ass'n v. Civil Serv. Comm'n, 463 
U.S. 582, 584 n.2 (1983) (White, J.), 623 n.15 (Marshall, J.), 642-
645 (Stevens, Brennan, Blackmun, JJ.); Lau v. Nichols, 414 U.S. at 
568; id. at 571 (Stewart, J., concurring in result). Further, in a 
July 24, 1994, Memorandum to Heads of Departments and Agencies that 
Provide Federal Financial Assistance concerning Use of the Disparate 
Impact Standard in Administrative Regulations Under Title VI of the 
Civil Rights Act of 1964, the Attorney General stated that each 
agency ``should ensure that the disparate impact provisions of your 
regulations are fully utilized so that all persons may enjoy equally 
the benefits of federally financed programs.''

---------------------------------------------------------------------------

[[Page 3847]]

    In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court 
interpreted similar U.S. Department of Education regulations to require 
recipients of federal financial assistance to ensure, in appropriate 
circumstances, that language barriers did not exclude LEP persons from 
effective participation in federally assisted programs or activities. 
In Lau, a recipient provided the same services--an education provided 
solely in English--for a group of students who did not speak English as 
it did for students who did speak English. In finding for the Chinese-
American students, the Court held that, under these circumstances, the 
school's practice violated the Title VI regulations' prohibition 
against discrimination on the basis of national origin. The Court 
observed that ``[i]t seems obvious that the Chinese-speaking minority 
receive fewer benefits than the English-speaking majority from 
respondents' school system which denies them a meaningful opportunity 
to participate in the educational program--all earmarks of the 
discrimination banned by'' the Title VI implementing regulations.\6\
---------------------------------------------------------------------------

    \6\ 414 U.S. at 568. Congress manifested its approval of the Lau 
decision by enacting provisions in the Education Amendments of 1974, 
Pub. L. 93-380, secs. 105, 204, 88 Stat. 503-512, 515 codified at 20 
U.S.C. 1703(f), and the Bilingual Education Act, 20 U.S.C. 7401, et 
seq., which provided federal financial assistance to school 
districts to provide language services to LEP students.
---------------------------------------------------------------------------

    While Lau arose in the educational context, its core holding--that 
the failure to address limited English proficiency among beneficiary 
classes could constitute national origin discrimination in violation of 
Title VI--has equal vitality with respect to any federally assisted 
program or activity providing services to the public.\7\
---------------------------------------------------------------------------

    \7\ For cases outside the educational context, see, e.g., 
Sandoval v. Hagan, 7 F. Supp. 2d 1234 (M.D. Ala. 1998), affirmed, 
197 F.3d 484, (11th Cir. 1999), rehearing and suggestion for 
rehearing en banc denied, 211 F.3d 133 (11th Cir. Feb. 29, 2000) 
(Table, No. 98-6598-II), petition for certiorari granted, Alexander 
v. Sandoval 121 S. Ct. 28 (Sept. 26, 2000) (No. 99-1908) (giving 
drivers' license tests only in English violates Title VI); and Pabon 
v. Levine, 70 F.R.D. 674 (S.D.N.Y. 1976) (summary judgment for 
defendants denied in case alleging failure to provide unemployment 
insurance information in Spanish violated Title VI).
---------------------------------------------------------------------------

    The failure to provide language assistance has significant 
discriminatory effects on the basis of national origin. The Department 
of Justice has consistently adhered to the view that these effects 
place the treatment of LEP individuals comfortably within the ambit of 
Title VI and agencies' implementing regulations.\8\ Also, existing 
language barriers may reflect underlying intentional or invidious 
discrimination of the type prohibited directly by Title VI itself.
---------------------------------------------------------------------------

    \8\ See, e.g., 28 CFR 42.405(d)(1).
---------------------------------------------------------------------------

    Title VI does not require recipients to remove language barriers 
when English is an essential aspect of the program (such as providing 
civil service examinations in English when the job requires person to 
communicate in English, see Frontera v. Sindell, 522 F.2d 1215 (6th 
Cir. 1975)), or there is another non-pretextual ``substantial 
legitimate justification for the challenged practice'' and there is no 
comparably effective alternative practice with less discriminatory 
affects. Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407 
(11th Cir. 1993); New York City Environmental Alliance v. Giuliani, 214 
F.3d 65, 72 (2nd Cir. 2000) (plaintiffs failed to show less 
discriminatory options available to accomplish defendant city's 
legitimate goal of building new housing and fostering urban renewal). 
Similar balancing tests are used in other nondiscrimination provisions 
that are concerned with effects of an entity's actions. For example, 
under Title VII of the Civil Rights Act of 1964, employers need not 
cease practices that have a discriminatory effect if they are job-
related and ``consistent with business necessity'' and there is no 
equally effective ``alternative employment practice'' that is less 
discriminatory. 42 U.S.C. 2000e-2(k). Under Section 504 of the 
Rehabilitation Act, 29 U.S.C. 794, recipients do not need to provide 
access to persons with disabilities if such steps impose an undue 
burden on the recipient. Alexander v. Choate, 469 U.S. at 300. Thus, in 
situations where all of the factors identified in the text are at their 
nadir, it may be ``reasonable'' not to take affirmative steps to 
provide further access.
    Executive Order 13166 reaffirms and clarifies the obligation to 
eliminate limited English proficiency as a barrier to full and 
meaningful participation in federally assisted programs and activities. 
65 FR 50121 (August 16, 2000). That order states, in part:

    The Federal Government is committed to improving the 
accessibility of * * * services to eligible [limited English 
proficiency] persons, a goal that reinforces its equally important 
commitment to promoting programs and activities designed to help 
individuals learn English * * * [E]ach Federal agency shall * * * 
work to ensure that recipients of Federal financial assistance 
(recipients) provide meaningful access to their LEP applicants and 
beneficiaries * * *. [R]ecipients must take reasonable steps to 
ensure meaningful access to their programs and activities by LEP 
persons.\9\
---------------------------------------------------------------------------

    \9\ Section 1, Executive Order 13166.

    The Executive Order requires each federal agency to develop agency-
specific LEP guidance for recipients of federal financial assistance. 
As an aid in developing this Guidance, the Executive Order incorporates 
the Department of Justice's Policy Guidance Document: ``Enforcement of 
Title VI of the Civil Rights Act of 1964--National Origin 
Discrimination Against Persons With Limited English Proficiency (`LEP 
Guidance')'' issued contemporaneously with the Executive Order.\10\ 
That general LEP Guidance ``sets forth the compliance standards that 
recipients must follow to ensure that programs and activities they 
normally provide in English are accessible to LEP persons.'' \11\ This 
LEP Guidance for DOJ Recipients represents the application of DOJ's 
general LEP Guidance to recipients of DOJ's federal financial 
assistance.
---------------------------------------------------------------------------

    \10\ LEP Guidance, 65 FR 50123.
    \11\ See Executive Order 13166 at Section 1.
---------------------------------------------------------------------------

    While the Department of Justice's Coordination Regulation, 28 CFR 
42.405(d)(1),\12\ expressly addresses requirements for provision of 
written language assistance, a recipient's obligation to provide 
meaningful opportunity is not limited to written translations.
---------------------------------------------------------------------------

    \12\ Section 42.405(d)(1) states: ``Where a significant number 
or proportion of the population eligible to be served or likely to 
be affected by a federally assisted program (e.g., affected by 
relocation) needs service or information in a language other than 
English in order effectively to be informed 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.'' This LEP 
Guidance for DOJ Recipients is intended to clarify obligations under 
this regulation and further obligations under Title VI to provide 
language services outside of the context of such written documents.
---------------------------------------------------------------------------

    Oral communication between recipients and beneficiaries, clients, 
customers, wards, or other members of the public often is a necessary 
part of the exchange of information. In some cases, ``meaningful 
opportunity'' to benefit from the program requires the recipient to 
take steps to assure that translation services are promptly available. 
In other circumstances, instead of translating all of its written 
materials, a recipient may meet its obligation by making available oral 
assistance, or by commissioning written translations on reasonable 
request.

[[Page 3848]]

Thus, a recipient that limits its language assistance to the provision 
of written materials may not be allowing LEP persons ``effectively to 
be informed of or to participate in the program.'' This Guidance 
provides information to recipients on how to comply with the meaningful 
access requirement.

D. Explanation of Title VI Compliance Procedures

    This Guidance, including appendices, is not intended to be 
exhaustive. DOJ recipients have considerable flexibility in determining 
how to comply with their legal obligations in the LEP setting, and are 
not required to use all of the suggested methods and options listed. 
However, DOJ recipients must establish and implement policies and 
procedures for providing language assistance sufficient to fulfill 
their Title VI responsibilities and provide LEP persons with meaningful 
access to services. DOJ encourages recipients to document efforts to 
comply with the provisions of this Guidance. DOJ will make assessments 
on a case-by-case basis and will consider the four factors in assessing 
whether the steps taken by a DOJ recipient provide meaningful access.
    DOJ enforces Title VI through the procedures identified in the 
Title VI regulations. These procedures include complaint 
investigations, compliance reviews, efforts to secure voluntary 
compliance, and technical assistance. In addition, aggrieved 
individuals may seek judicial relief.
    The Title VI regulations provide that DOJ will investigate whenever 
it receives a complaint, report, or other information that alleges or 
indicates possible noncompliance with Title VI. If the investigation 
results in a finding of compliance, DOJ will inform the recipient in 
writing of this determination, including the basis for the 
determination. DOJ uses voluntary mediation to resolve most complaints. 
However, if a case is fully investigated and results in a finding of 
noncompliance, DOJ must inform the recipient of the noncompliance 
through a Letter of Findings that sets out the areas of noncompliance 
and the steps that must be taken to correct the noncompliance. It must 
attempt to secure voluntary compliance through informal means. If the 
matter cannot be resolved informally, DOJ must secure compliance 
through the termination of federal assistance after the DOJ recipient 
has been given an opportunity for an administrative hearing, and/or by 
referring the matter to a DOJ litigation section to seek injunctive 
relief or pursue other enforcement proceedings.
    DOJ engages in voluntary compliance efforts and provides technical 
assistance to recipients at all stages of an investigation. During 
these efforts, DOJ proposes reasonable timetables for achieving 
compliance and consults with and assist recipients in exploring cost-
effective ways of coming into compliance by sharing information on 
potential community resources, by increasing awareness of emerging 
technologies, and by sharing information on how other recipient/covered 
entities have addressed the language needs of diverse populations.
    In determining a recipient's compliance with Title VI, DOJ's 
primary concern is to ensure that the recipient's policies and 
procedures overcome barriers resulting from language differences that 
would deny LEP persons a meaningful opportunity to participate in and 
access programs, services, and benefits.

[FR Doc. 01-869 Filed 1-12-01; 8:45 am]
BILLING CODE 4410-13-P