Presentation to the Iowa Legal Aid Board of Directors

October 16, 2010

If the sales clerk at the check-out asked you a question, and you had to have your 10-year-old child interpret?

How about having your 10-year-old interpret as the doctor describes your illness?

What if you could not understand the lawyer’s explanation of your rights?

Or the questions being asked by the police? By the prosecutor?

2000 census data: By far, the most common language spoken at home is Spanish.

2010 census data not available Office of Latino Affairs: 96,793 people age

5 or older in 2008 who speak Spanish at home. Of those, more than half say they speak English “very well.”

Total intakes in a language other than English-782: ◦ Spanish-556; ◦ Bosnian-43; ◦ Arabic-38; ◦ Vietnamese-26; ◦ French-22; ◦ Somali-19; ◦ Sign language-11

Other languages in single digits.

Mexican 74.4% Guatemalan 5.0% Puerto Rican 4.5% Salvadoran 4.0% Cuban 1.3% All other 10.8%About 36% of Iowa Latinos are foreign-

born“Latinos in Iowa: 2010”Iowa Office of Latino Affairs

As of July 2009: 134,402—4.5 %◦ 63% increase from 2000◦ Iowa’s largest race or ethnic minority

Projected population as of July 2040: 384,320—11%

“Limited English Proficiency” is the term used in federal laws. It means:◦ Individuals who do not speak English as their

primary language and ◦ who have a limited ability to read, write, speak, or

understand English. Many people prefer to speak of a “Language

Access Plan,” rather than an “LEP Plan.”

Federal law requires it for recipients of federal funds.

The Supreme Court has held that failure to take reasonable steps to ensure meaningful access for LEP persons is a form of national origin discrimination prohibited by Title VI of the Civil Rights Act of 1964. Lau v. Nichols

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.

Purpose of the August 2000 order: “to improve access to federally conducted

and federally assisted programs and activities

for persons who, as a result of national origin, are limited in…English proficiency (LEP)….”

Department of Justice (DOJ) issued regulations in conjunction with the Executive Order, which apply to recipients of DOJ funding.

DOJ regulations serve as a template for other federal agencies in developing their own regulations for recipients.

http://www.lep.gov

If a recipient gets federal funding or assistance for some but not all programs, Title VI applies to ALL, not just those receiving federal funds.

Example: If HHS provides assistance to a state department of health to immunize children, the entire state department of health is covered by Title VI.

Iowa Legal Aid itself has an LEP obligation as a recipient of federal funds.◦ Iowa Legal Aid has

its own LEP policy and staff assigned to monitor language access.

Iowa Legal Aid represents LEP clients to enforce rights under Title VI and other laws:◦ Agency and court

proceedings◦ Informal advocacy to

enforce LEP provisions.

Language Access (no cost to clients):◦ Staff, AmeriCorps members with proficiency in

other languages are tested for competency (presently, mostly for Spanish)

◦ Contract with Pacific Interpreters for telephone interpretation

◦ Contract with International Language Services for translation services (written)

Iowa Legal Aid has an LEP Plan, approved by the Board of Directors

Iowa Legal Aid received a one-year grant to focus on interpretation and translation for LEP clients and prospective clients.

Collaboration with Des Moines Area Community College, Interpretation/Translation Certification Program

Up to 4.2 full-time equivalent positions (2 full-time, 3 reduced half-time, and 4 quarter-time)

Received notice of the grant in September; hope to have first hires by late October.

DOJ: law enforcement, courts, sub-recipients

HHS: hospitals; nursing homes; home health agencies; state, county and local health agencies and welfare agencies; public and private contractors, subcontractors and vendors

HUD: Housing Authorities, project-based subsidized housing

The individual does. For example: “HUD and its recipients do not determine

who is LEP. The beneficiaries of the services and activities identify themselves as LEP.”

72 Fed. Reg. No. 13 January 22, 2007 (p. 2737)

(1) The number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee;

(2) the frequency with which LEP individuals come into 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.

If the application of the four factors indicates the service must be provided, it is free to the LEP person.

Interpreter Issues:◦ Who will receive an interpreter?◦ How to determine interpreter competence◦ Payment for interpreters

What about other required court programs: Children in the Middle? Mediation?

“Court-managed offices, operations, and programs” or language access in encounters with professionals

Iowa Legal Aid has used the LEP regulations to advocate for clients who were not provided with interpretation or translated documents:◦ Housing Authorities◦ Department of Human Services◦ Workforce Development◦ Social Security Administration

Enforcement is mostly by the agency that gave the funds to the recipient. Will try to get “voluntary compliance” by recipient.

No private right of action for a disparate impact claim under Title VI. Alexander v. Sandoval, 532 U.S. 275 (2001)

No enforcement of Title VI regulations under Section 1983. Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2002)