[Federal Register Volume 67, Number 47 (Monday, March 11, 2002)]
[Notices]
[Pages 10938-10939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5616]



[[Page 10938]]

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NATIONAL SCIENCE FOUNDATION


Enforcement of Title VI of the Civil Rights Act of 1964--National 
Origin Discrimination Against Persons With Limited English Proficiency; 
Policy Guidance

AGENCY: National Science Foundation.

ACTION: Notice.

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SUMMARY: The National Science Foundation (NSF) is publishing policy 
guidance on Title VI's prohibition against national origin 
discrimination as it affects limited English proficient persons. This 
policy guidance does not create new obligations, but rather, clarifies 
existing Title VI responsibilities. The purpose of this document is to 
set forth general principles for the recipients of NSF financial 
assistance to apply when developing services to individuals with 
limited English proficiency as required by Title VI of the Civil Rights 
Act of 1964.

DATES: This guidance is effective immediately. Comments must be 
submitted on or before May 10, 2002. NSF 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 Office 
of Equal Opportunity Programs, National Science Foundation, 4201 Wilson 
Blvd., Arlington, VA 22230. Comments may also be submitted by e-mail 
to: [email protected].

FOR FURTHER INFORMATION CONTACT: Ana Ortiz or Ruth Leichter at the 
above address or by telephone at 703-292-8020; TDD: 703-292-9027. 
Arrangements to receive the policy in an alternative format may be made 
by contacting the named individuals.

    Dated: February 19, 2002.
Ana A. Ortiz,
Director, Office of Equal Opportunity Programs, National Science 
Foundation.

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 National Science Foundation (NSF), 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 NSF'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.

I. Background

    On August 11, 2000, the President issued Executive Order 13166, 
titled ``Improving Access to Services by Persons With Limited English 
Proficiency.'' 65 FR 50121 (August 16, 2000). On the same day, the 
Assistant Attorney General for Civil Rights issued a Policy Guidance 
Document, titled ``Enforcement of Title VI of the Civil Rights Act of 
1964--National Origin Discrimination Against Persons With Limited 
English Proficiency'' (hereinafter referred to as ``DOJ LEP 
Guidance''), reprinted at 65 FR 50123 (August 16, 2000). However, 
pursuant to a memorandum issued by the United States Department of 
Justice on October 26, 2001, NSF is republishing this guidance and 
inviting public comment on the guidance.
    Executive Order 13166 requires federal agencies to assess and 
address the needs of otherwise eligible persons seeking access to 
federally conducted programs and activities who, due to limited English 
proficiency, cannot fully and equally participate in or benefit from 
those programs and activities. The DOJ LEP Guidance in turn advises 
each federal department or agency to ``take reasonable steps to ensure 
`meaningful' access [to LEP individuals] to the information and 
services they provide.'' DOJ LEP Guidance, 65 FR at 50124. The DOJ LEP 
Guidance goes on to provide that what constitutes reasonable steps to 
ensure meaningful access will be contingent on a number of factors. 
Among the factors to be considered are the number or proportion of LEP 
persons in the eligible service population, the frequency with which 
LEP individuals come in contact with the program, the importance of the 
service provided by the program, and the resources available to the 
agency. Id. The DOJ LEP Guidance explains that the identification of 
``reasonable steps'' to provide oral and written services in languages 
other than English is to be determined on a case-by-case basis through 
a balancing of all four factors. As required by Executive Order 13166, 
this policy guidance is consistent with the compliance standards set 
out in the DOJ LEP Guidance.

II. Legal Background

    The Title VI requirement to provide meaningful access to LEP 
persons is not new. Section 601 of Title VI of the Civil Rights Act of 
1964, 42 U.S.C. Section 2000d, et seq. states: ``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.'' This is further ordered by Executive 
Order 13166, ``Improving Access to Services for Persons With Limited 
English Proficiency,'' and United States Department of Justice Guidance 
as published in the Federal Register, Vol. 65,No. 159, August 16, 2000. 
Pursuant to its coordination authority over federal enforcement of 
Title VI, DOJ addressed in 1976 the circumstances under which 
recipient/covered entities might be required to provide written 
language assistance to LEP persons. See 28 CFR 42.405(d)(1). These 
regulations ``govern the respective obligations of Federal agencies 
regarding enforcement of Title VI.'' 28 CFR 42.405. Section 
42.405(d)(1) formalized LEP obligations under Title VI which were 
sustained 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.; 45 CFR, Part 
611 (NSF's Title VI Regulations); and 28 CFR 42.401, et seq. (DOJ Title 
VI enforcement coordination regulation). Further, this Guidance is 
issued pursuant to Executive Order 12250, reprinted at 42 U.S.C. 2000d, 
note; Executive Order 13166; and is consistent with the DOJ LEP 
Guidance.

III. Purpose and Application

    The Title VI regulations prohibit both intentional discrimination 
and policies and practices that appear neutral but have a 
discriminatory effect. Thus, a recipient entity's policies or practices 
regarding the provision of benefits and services to LEP persons need 
not be intentional to be discriminatory, but may constitute a violation 
of Title VI if they have an adverse effect on the ability of national 
origin minorities to meaningfully access programs and services. 
Accordingly, it is useful for recipient entities to examine their 
policies and practices to determine whether they adversely affect LEP 
persons. This policy guidance provides a brief analytical framework 
consistent with the governing Title VI compliance standards set out in 
the DOJ LEP

[[Page 10939]]

Guidance to assist recipient/covered entities in conducting such 
assessments.

IV. Compliance and Enforcement

    A four-factor analysis is recommended for compliance. Elements of 
an effective language assistance plan to consider are identification of 
LEP individuals who need language assistance, available language 
assistance options, training staff, providing notice to LEP persons, 
and monitoring effectiveness and need for modifications. It should 
consist of a determination of the number or proportion of eligible 
individuals with LEP who might be excluded from a program absent 
efforts to remove language barriers, their frequency of contact with 
the program, the nature and importance of the program (is it vital to 
your existence?) and the resources available. Once it is established 
that a need exists, one or both of two types of language assistance may 
be appropriate. Oral language interpretation and/or written material 
translation may be selected as necessary. These factors, plan elements, 
and their related compliance standards are discussed in detail in 
related guidance documents issued by other federal agencies. NSF 
recipients jointly funded by other federal agencies may rely upon 
guidance issued by those agencies.
    Recipient entities have considerable flexibility in determining how 
to comply with their legal obligation in the LEP setting and are not 
required to use the suggested methods and options listed. However, 
recipient entities 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. NSF's regulations implementing Title VI contain compliance 
and enforcement provisions to ensure that a recipient's policies and 
practices overcome barriers resulting from language differences that 
would deny LEP persons an equal opportunity to participate in and 
access to programs, services and benefits offered by NSF. See 45 CFR, 
Part 611. We will ensure that our recipient entities fulfill their 
responsibilities to LEP persons through the procedures provided for in 
the Title VI regulations.
    Executive Order 13166 requires that each federal department or 
agency extending federal financial assistance subject to Title VI issue 
separate guidance implementing uniform Title VI compliance standards 
with respect to LEP persons. Where recipients of federal financial 
assistance from NSF also receive assistance from one or more other 
federal departments or agencies, there is no obligation to conduct and 
document separate but identical analyses and language assistance plans 
for NSF. NSF, in discharging its compliance and enforcement obligations 
under Title VI, looks to analyses performed and plans developed in 
response to similar detailed LEP guidance issued by other federal 
agencies. Recipients may rely upon guidance issued by those agencies.
    In determining a recipient entity's compliance with Title VI, NSF's 
primary concern is to ensure that the entity'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. A recipient entity's appropriate use 
of the methods and options discussed in this policy guidance is viewed 
by NSF as evidence of that entity's willingness to comply voluntarily 
with its Title VI obligations.

V. English-Only Provision

    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, in certain circumstances, violates Title VI.
    If you have any questions related to this policy, please contact 
the NSF Office of Equal Opportunity Programs.

[FR Doc. 02-5616 Filed 3-8-02; 8:45 am]
BILLING CODE 7555-01-P