[Federal Register Volume 68, Number 6 (Thursday, January 9, 2003)]
[Notices]
[Pages 1210-1212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-364]


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LEGAL SERVICES CORPORATION


Limited English Proficiency Guidance--Request for Comments

AGENCY: Legal Services Corporation.

ACTION: Limited English Proficiency Guidance--request for comments.

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SUMMARY: As part of their obligation to refrain from national origin 
discrimination, LSC grantees must ensure they are providing proper 
service to persons with limited English proficiency (LEP). LSC is 
considering whether guidance (formal or informal) from LSC on LEP 
compliance would assist grantees, or, alternately whether there is some 
other form of information sharing that LSC can facilitate among 
grantees to help ensure all grantees are in compliance with LEP related 
requirements. According, LSC is requesting public comment on this 
matter.

DATES: Written comments must be received on or before March 10, 2003.

ADDRESSES: Written comments may be submitted by mail, fax or email to 
Mattie C. Condray at the addresses listed below.

FOR FURTHER INFORMATION CONTACT: Mattie C. Condray, Senior Assistant 
General Counsel, Office of Legal Affairs, Legal Services Corporation, 
750 First Street, NE, Washington, DC 20002-4250; 202-336-8817 (phone); 
202-336-8952 (fax); [email protected].

SUPPLEMENTARY INFORMATION: The Legal Services Corporation (LSC) is a 
private, non-profit corporation created by Congress and funded through 
annual appropriations from Congress. LSC's mission is to promote equal 
access to the system of justice and improve opportunities for low-
income people

[[Page 1211]]

throughout the United States by making grants for the provision of 
high-quality civil legal assistance to those who would be otherwise 
unable to afford legal counsel.
    Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq., 
prohibits the recipients of Federal assistance from, inter alia, 
discriminating on the basis of national origin. As part of a 
government-wide effort, the Justice Department has recently issued 
guidance regarding national origin discrimination affecting persons of 
limited English proficiency (LEP). The DOJ guidance notes that ``[i]n 
certain circumstances, failure to ensure that LEP persons can 
effectively participate in or benefit from Federally assisted programs 
and activities may violate the prohibition under Title VI * * * against 
national origin discrimination.'' 67 FR 41455, at 41457. The DOJ 
guidance is intended to provide assistance to DOJ grant recipients and 
to serve as a model to other Federal agencies, which are required by 
Executive Order 13166 to issue their own guidance on LEP.\1\ LSC is not 
subject to the executive order (because LSC is not a department, agency 
or instrumentality of the Federal Government) and is not, therefore, 
required to issue guidance on this subject. However, to the extent that 
the Federal effort is intended to improve access to Federally funded 
services for LEP persons and help ensure compliance with Title VI, it 
is appropriate to consider whether our grantees could benefit from 
similar guidance from LSC.
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    \1\ Under the DOJ Guidance, recipients are encouraged to 
undertake an individualized assessment that balances the following 
four factors: (1) The number of proportion of LEP persons eligible 
to be served or likely to be encountered by the program or grantee/
recipient; (2) the frequency with which LEP individuals come in 
contact with the program; (3) the nature and importance of the 
program, activity, or service provided by the program to people's 
lives; and (4) the resources available to the grantee/recipient and 
costs. The guidance recommends that recipients consider adopting LEP 
plans or policies based on the results of their assessment. The 
guidance identifies the following elements which may be helpful in 
designing an LEP policy or plan: (1) identifying LEP persons who 
need language assistance; (2) identifying ways in which language 
assistance will be provided; (3) training staff; (4) providing 
notice to LEP persons; and (5) monitoring and updating LEP policy. 
The guidance also identifies a variety of language assistance 
services which recipients may consider using, including oral 
interpretation services, bilingual staff, telephone interpreter 
lines, written language services and community volunteers.
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    At the outset, a question has been raised with LSC regarding 
whether our grantees are, in fact, even subject to the requirements of 
Title VI of the Civil Rights Act. The argument in this case is that LSC 
grantees should not be considered recipients of Federal financial 
assistance, and, therefore, not subject to Title VI. There is no single 
answer to the question of the ``Federal'' nature of LSC funds; LSC 
funds are considered ``Federal'' funds for some purposes and ``non-
Federal'' for others.\2\ This has been the case for the entire history 
of the Corporation and the differing answers are justified by reference 
to the laws governing the particular use of the funds in question.
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    \2\ For example, LEP funds are considered non-Federal funds for 
the purpose of matching Title III funds under the Older Americans 
Act, but they are considered Federal funds for the purpose of a 
federal prosecution for theft or embezzlement under Title 18 of the 
U.S. Code.
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    In this instance, the most closely analogous law is Section 504 of 
the Rehabilitation Act of 1973, which prohibits against discrimination 
on the basis of handicap by recipients of Federal financial assistance. 
In adopting its regulations at 45 CFR Part 1624 implementing Section 
504, the Corporation stated that its decision to adopt the regulations 
was based, in part, on the fact that Section 504 applied directly to 
LSC recipients as recipients of ``Federal financial assistance.'' 44 FR 
55175 (Sept. 25, 1979). Unfortunately, the preamble to the regulation 
does not provide an analysis of how that conclusion was reached. Based 
on the discussion in the preamble, however, it does not appear that the 
conclusion that LSC grantees are recipients of Federal financial 
assistance for the purpose of Section 504 was challenged by any of the 
commenters and in the 23 years since the Part 1624 regulations were 
adopted no one has raised that issue with LSC.
    LSC does not discern a meaningful difference between Section 504 
and Title VI in this instance. Both are anti-discrimination laws 
applicable to recipients of Federal financial assistance. To the extent 
that LSC and its grantees have understood LSC funds to be Federal funds 
for the purpose of Section 504, LSC believes that LSC funds must also 
be considered Federal funds for the purpose of Title VI. However, the 
Corporation specifically invites comment on this issue.
    Even if it were to be determined that Title VI is not directly 
applicable to LSC's grantees, it would remain appropriate at this time 
to consider LEP guidance. Each LSC grantee signs a grant assurance 
under which it promises not to discriminate on the basis of, among 
other things, national origin. Although the text of the grant assurance 
does not mention Title VI specifically, it is clear that the language 
of the grant assurance is based on the non-discrimination provisions of 
Federal civil rights laws, such as the Civil Rights Act, the 
Rehabilitation Act and the Americans with Disabilities Act. Thus, there 
is a contractual obligation on the part of each grantee to ensure it is 
not engaging in national origin discrimination, requiring it to 
properly serve LEP persons.
    Moreover, LSC believes there are sound programmatic reasons to 
consider this issue at this time. A considerable portion of the LSC 
grantee client base has always been comprised of LEP persons; many of 
our grantees have extensive experience in providing services to LEP 
persons simply out of necessity. Due to changing demographics, and 
state planning efforts resulting in reconfigured service areas, 
however, many grantees are grappling with issues relating to serving 
LEP persons for the first time. It is, therefore, meant to consider 
whether guidance from LSC would assist these grantees, or, alternately 
whether there is some other form of information sharing that LSC can 
facilitate among grantees to help ensure that the knowledge and best 
practices of the grantees who have been leaders on this issue is 
available to all grantees and that all grantees are meeting their 
obligations in this regard.
    LSC has identified several possible approaches it could take to 
this issue: LSC could issue regulations, as it did with Section 504; 
LSC could issue its own guidance (based on the DOJ guidance or 
otherwise); LSC could choose to refrain from issuing guidance, but 
could endorse the DOJ guidance; LSC could, either instead of or in 
conjunction with issuing guidance and/or endorsing the DOJ guidance, 
choose to engage in other activities to collect and distribute 
information of a best practices nature, illustrating what grantees with 
experience in dealing with LEP persons have been doing as an aid to 
other grantees needing assistance in this area; or LSC could choose to 
do nothing at all. Each of these approaches has advantages and 
disadvantages. Before determining a course of action, LSC, with this 
notice, is looking to the field for information on which option (or 
another course of action not identified above) would be most 
appropriate and helpful for grantees. LSC invites comment on the issues 
discussed below and on any other relevant consideration regarding 
service to LEP persons.

Issuing Regulations

    LSC could issue its own regulations on the matter. Doing so would 
be analogous to LSC's action in issuing its Part 1624 regulations. LSC 
was not

[[Page 1212]]

obligated to issue regulations implementing Section 504, but chose to 
do so because of the importance of the subject matter. Justifying the 
decision to issue 504 implementing regulations, the Corporation said 
(in the preamble to the rule) that ``discriminatory practices by legal 
services programs interfere directly with the ability of those programs 
to provide high quality legal assistance in an efficient and effective 
manner.'' 44 FR 55175. The same rationale could be said to be 
applicable in this situation as well.
    The disadvantage of taking such an approach is that it would impose 
an additional regulatory burden on grantees and, given that LSC is not 
receiving significant complaints of discrimination by grantees related 
to service to LEP persons, it is does not appear to LSC that such an 
additional regulatory burden is warranted. Moreover, by issuing 
regulations, LSC would become obligated to monitor compliance with and 
enforce any such regulations adopted. Notwithstanding some expansion of 
its Office and Compliance and Enforcement staff, the Corporation 
nonetheless has limited resources and the OCE staff does not have the 
expertise in these matters as do EEOC and DOJ staff. In addition, as 
with claims of violation of Part 1624, LSC would be without statutory 
authority to direct a recipient to take any specific action to come 
into compliance, nor could LSC make any award to an aggrieved 
complainant; LSC would be limited to attempting to resolve problems 
informally and to punishing violations by considering suspension or 
termination of the grant. As such, LSC is not well suited to resolving 
such claims in the manner that most complainants would find helpful to 
them.

Issuing Non-Regulatory Guidance

    The recent guidance issued by DOJ is not in the form of 
regulations, and LSC could follow suit with issuing its own non-
regulatory guidance. Issuing non-binding guidance would avoid some of 
the disadvantages of issuing regulations, yet would still allow LSC 
provide assistance to its grantees as to what grantees can, at a 
minimum, be doing to ensure that they are in compliance with their 
obligations to refrain from national origin discrimination.
    However, if LSC chooses to issue guidance, even taking care to make 
it clear that such guidance was in the nature of ``best practices'' and 
not mandatory standards, LSC could find itself obligated to investigate 
a claim that a grantee had discriminated against an LEP person (or 
persons). As noted above, the Corporation has long taken the position 
that it is not suited to undertaking such investigations. On the other 
hand, LSC is obligated by Part 1618 of its regulations to investigate 
claims of violations of grant assurances. Thus, to the extent the grant 
assurances prohibit discrimination LSC already has a duty to 
investigate claims of national origin discrimination. In such a case, 
issuing guidance on LEP would not impose any additional risks or 
obligations on LSC or its grantees.
    In addition, to the extent that many of LSC grantees receive grants 
from Federal agencies, such as DOJ, the Department of Housing and Urban 
Development and the Internal Revenue Service, these grantees will 
already be subject to the Federal guidance issuing from those agencies. 
Additional guidance from LSC would, at best, be duplicative and, 
therefore, unnecessary, and, at worst, be inconsistent, putting 
grantees in a difficult spot in complying with both sets of standards. 
LSC is specifically interested in learning how many grantees will 
already be subject to the DOJ (or other Federal agency) guidance as a 
result of receipt of DOJ (or other Federal) grants.

Refraining from Issuing Guidance

    LSC could decline to issue its own guidance, but could commend the 
DOJ guidance to grantees. Such a message would make clear that the DOJ 
guidance is not directly applicable to them (unless they also receive 
grants from DOJ), but might be helpful to them in ensuring that they 
are complying with their obligations to LEP persons. This approach 
would remind our recipients of their contractual obligations under the 
grant assurances as well as any applicable Title VI obligations and 
provide them with some potentially useful guidance, without injecting 
LSC directly into the issue. Moreover, as noted above, to the extent 
that grantees receive grants from Federal agencies, they will already 
be subject to the Federal guidance issuing from those agencies. 
Additional guidance from LSC would, at best, be duplicative and, 
therefore, unnecessary, and, at worst, be inconsistent, putting 
grantees in a difficult spot in complying with both sets of standards.
    The disadvantage of this approach is that, as the DOJ guidance is 
aimed at a somewhat different grantee population, the guidance might 
not be as helpful as it would be if LSC developed its own policy 
guidance document tailored to the legal services community. Further, 
there is the possibility that if LSC recommended the DOJ guidance to 
grantees that such an action would be the functional equivalent to 
issuing its own guidance, with the attendant advantages and 
disadvantages outlines above.

Refraining from Taking Any Action

    LSC could decline to take any action. As noted above, the Executive 
Order does not apply to LSC and LSC does not have direct responsibility 
for enforcing Title VI.\3\ This approach is legally defensible and 
would avoid the potential disadvantages which might be generated by 
either developing LSC's own guidance or endorsing the DOJ guidance. On 
the other hand, although LSC is not bound to follow Federal initiatives 
such as this one, LSC often takes cues from them. As noted above, the 
rationale that led LSC to issue its regulations at Part 1624, would 
appear to be applicable also in this situation. Moreover, to the extent 
that LEP persons comprise a significant proportion of the legal 
services client community, it would appear that guidance in this area 
would be warranted and helpful to our grantees. LSC specifically 
invites comments on this issue.
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    \3\ Leaving aside the LSC's responsibility to enforce its grant 
assurances which prohibit national origin discrimination.
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Other Actions

    Either in addition to, or in lieu of, any of the options above, LSC 
could collect and disseminate information on ideas and best practices 
from grantees who are already serving LEP persons. This would allow 
grantees to reap the benefits of others' experience to lead to an 
improvement of services throughout the country.
    There are any number of ways this could be accomplished. LSC could 
gather and post information on its Legal Resource Initiative Web site, 
http://www.lri.lsc.gov and success stories could be published in Equal 
Justice Magazine. There are also resources external to LSC, such as the 
National LEP Advocacy Task Force, with which LSC could work to the 
benefit of grantees. LSC requests suggestions and ideas about the best 
ways for LSC to provide assistance in this area.

Victor M. Fortuno,
General Counsel and Vice President for Legal Affairs.
[FR Doc. 03-364 Filed 1-8-03; 8:45 am]
BILLING CODE 7050-01-P