Blog
Language Access
By Laura Klein Abel – 10/24/11
This post originally appeared on the White House Champions of Change blog.
On October 13, Attorney General Eric Holder recognized me as a Champion of Change for helping low-income people get their day in court. Of course, the real heroes are the people who fight daily in court to protect their lives and their families, despite an inability to find a lawyer, language barriers, and other obstacles. Here are two of their stories.
Charles Guider was late making a mortgage payment after his mother died. When he tried to pay, none of the banks or mortgage servicers that had bought and sold the mortgage over the years would take the money. One of them filed for foreclosure. He’s still in his home today because his civil legal aid lawyer persuaded the lender to accept the money and drop the foreclosure.
Charles is one of the lucky ones. Record numbers of people are turning to the courts for help dealing with the effects of the financial crisis on their lives, including foreclosure, eviction, unjust denial of subsistence benefits, and domestic violence. The vast majority cannot afford a lawyer and cannot find one to help them for free. Nonetheless, the House of Representatives is pushing for a 27% cut in funding for the Legal Services Corporation, which provides lawyers for low-income families needing legal help. To spur discussion about the need for civil legal aid, my colleagues and I produced a series of short videos telling the stories of Charles and other homeowners. Please watch them and join us in the push for civil legal aid funding.
Maythe Ramirez tried to warn the judge in her child custody case that her husband had beaten her and might harm the children. But Ms. Ramirez speaks Spanish, and there was no interpreter in the courtroom. She later told a New York Times reporter, “It is really as if you are doing nothing in court, standing still and not being able to explain what’s really happening.”
Ms. Ramirez had the misfortune to be in court in California, a state that provides interpreters for some court cases but not others. But her story is prompting change. Colorado, Ohio, Pennsylvania and Utah are among the states that have vastly improved their court interpreter programs in the past few years. And the American Bar Association is developing a historic set of standards for language access in courts, which will help the courts educate legislators and others about the need to fund this important aspect of access to the courts.
I have spent over a decade building a national program that uses advocacy, policy analysis, scholarship, public education and litigation to ensure that the justice system works when low-income communities need it. When I hear Charles’s and Maythe’s stories, I know our work is far from over. I am proud to have the opportunity to work with my fellow Champions of Change to hold our nation to its promise of “equal justice under law.”
Tags: Justice, Civil Justice, Civil Legal Aid, Language Access
By Laura Klein Abel – 04/29/11
On April 18, the Department of Homeland Security issued long-awaited final guidance informing the many police departments, motor vehicle departments, emergency response and other groups it funds that they must take steps to ensure that they can communicate with the people they serve. The most immediate beneficiaries will be people with limited proficiency in English (LEP) who seek help from the police or the Red Cross. We will all benefit, though, because the effective, efficient operation of these essential taxpayer-funded services matters to us all.
The guidelines are an overdue but welcome development. They lay out important basic principles. Under Title VI of the Civil Rights Act, entities receiving funding from DHS must:
- Use interpretation and translation in order to communicate with the LEP individuals they serve
- Ensure the interpretation and translation is accurate and timely
- Tell LEP individuals they encounter that they have a right to free interpretation
- Provide a way for LEP individuals to complain about a lack of language access
At the same time, the guidelines are oddly toothless. DHS write that it will look more kindly on the language access efforts of any recipients who have drafted a language access policy and shared that policy with their staff. That’s all well and good. But DHS rejected public comments urging it to tell recipients to identify particular personnel who are responsible for implementing the policy, describe how they will monitor implementation, and set a time frame for implementation. A policy that sits in a file drawer, with no one charged with ensuring that it happens, is unlikely to have any effect in the real world.
Unfortunately, there is a long history of language access policies having no real world effect. For a decade, DHS itself ignored President Clinton’s 2000 Executive Order instructing all executive agencies to issue language access guidance. The Department of Justice did issue language access guidance to its recipients, including law enforcement agencies, almost immediately. Nonetheless, eight years later the Detroit Police Department was hampered in its search for a missing two-year-old girl because its officers were unable to communicate with the girl’s Bangladeshi community. Many state courts, too, ignored DOJ’s guidance, forcing DOJ’s Civil Rights Division to warn last summer that it “continues to encounter state court language access policies or practices that are inconsistent with federal civil rights requirements.”
DHS still has an opportunity to ensure that its language access guidance has an impact. It can provide applicants for DHS funding with clear, detailed information about the type of language access expected of applicants for that type of funding. Law enforcement agencies, for instance, should be provided with the Justice Department’s detailed language access guidance for law enforcement agencies. DHS should also require applicants for DHS funding to specifically affirm that they have read the DHS language access guidance, and to describe the measures that they will take to communicate effectively with the LEP individuals they are likely to encounter. The Civil Rights Information Request for Medicare Certification, used by the U.S. Department of Health and Human Services, provides one model.
The goal of all of this is to ensure that words are not empty: that people seeking help from DHS-funded agencies can get their message through, and that both the Civil Rights Act’s prohibition of national origin discrimination and DHS’ own language access guidance are understood and respected. The guidance is a start, but DHS must follow it up with a real commitment to action.
Tags: Justice, Civil Justice, Language Access, Liberty & National Security
By Laura Klein Abel – 02/28/11
This month, the Attorney General instructed the head of every executive agency to take immediate action to ensure that the agency is able to communicate with the people it serves, regardless of English language ability. While this move has been overshadowed by the justifiably loud celebration of the Justice Department’s decision to stop defending the anti-gay Defense of Marriage Act, it promises to have an equally profound effect on civil rights.
In order to serve its customers, the federal government must be able to communicate with them. As the Attorney General wrote, “[e]vents such as the H1N1 influenza pandemic, Hurricanes Katrina and Rita, the Gulf oil spill, and the 2010 Decennial Census highlight the need for federal agencies to ensure language access.”
Miscommunication can lead to tragedies. Human rights groups have documented instances of immigrants unable to communicate their need for health care, food or other assistance to staff at the detention centers run by the Department of Homeland Security. Domestic violence victims have been unable to inform law enforcement officers of their need for protection. Parents have been unable to obtain Food Stamps or healthcare for their children.
A year ago, on behalf of the National Language Access Advocates Network, the Brennan Center warned the Justice Department about these problems, describing the failure of many federal agencies to comply with their language access obligations. As we had recommended, the Attorney General’s recent letter to the executive agencies instructs each to develop or update a plan for ensuring that the agency’s own employees are able to communicate with the limited English proficient people they encounter. And, it reminds each of its obligation to provide language assistance guidance to all non-profits, state and local governments, and businesses it funds. Most importantly, the letter warns that DOJ will monitor whether federal agencies are fulfilling their language access obligations.
Without interpreters, all too often federal agencies cannot communicate with the people they serve. Without monitoring, all too often the Justice Department’s warnings are just empty words. The Attorney General’s letter promises improvement on both fronts.
Tags: Justice, Racial Justice, Civil Justice, Language Access
By Laura Klein Abel – 01/19/11
Brennan Center Applauds Utah Courts’ Proposal to Expand Access to Court Interpreters, Urges the State to Stop Charging for Interpreters
The Utah Supreme Court is considering whether to expand its court interpreter program to cover all civil matters, in order to comply with federal law. Currently, court interpreters are available only in criminal cases and a limited number of civil ones. They are not provided, for instance, in cases in which people are facing the loss of child custody to another family member, eviction from their homes, or the ability to recover wages owed to them. The changes proposed late last year by Utah’s Judicial Council would fix that.
This is an important step in a state in which 12.5% of the population speaks a language other than English at home. Without adequate court interpretation, witnesses and other court participants cannot convey crucial information to the courts. People turning to the court to protect their rights cannot understand the proceedings in their own cases. Judges cannot communicate the terms of court orders to the people who must obey those orders. As the Judicial Council’s report warns, “not just the person of limited English proficiency, but also the court has an interest in the quality of interpretation and in expediting the proceedings.”
Not only are the proposed changes good policy, but they are necessary to move the state towards compliance with the federal Civil Rights Act, which requires recipients of federal funding to ensure that the services they provide are available to people with limited proficiency in English. Last August, Assistant Attorney General Thomas E. Perez warned the high courts of all fifty states that if they deny access to interpreters in civil matters they run the risk that the Justice Department will come after them. As the Judicial Council acknowledged, a recent Brennan Center report has identified Utah as being among the many states that fail to provide interpreters in important civil cases.
Unfortunately, even with the proposed changes Utah will still violate the Civil Rights Act, because the state will continue charging some limited English proficient individuals for their interpreters. According to the Assistant Attorney General's letter, the effect of such charges is "either to subject some individuals to a surcharge based upon a party's or witness' English language proficiency, or to discourage parties from requesting or using a competent interpreter."
The Utah Judicial Council’s report disagrees with the Justice Department, claiming that the Civil Rights Act allows the states to charge limited English proficient individuals for their interpreters. The Brennan Center has written to the Supreme Court, reminding it that Utah and other states routinely provide sign language interpreters free of charge. Many states started providing sign language interpreters for free because Section 504 of the federal Rehabilitation Act required them to do so, and the courts have repeatedly upheld that interpretation of Section 504. Because Section 504 was itself based on the Civil Rights Act, there is every reason to believe that the Civil Rights Act, too, bars courts from charging for interpreters.
Tags: Justice, Language Access
By Laura Klein Abel – 09/09/10
While the national immigration debate becomes more vicious by the day, the Department of Justice has taken steps to further understanding between immigrants and the larger society. In mid-August, Assistant Attorney General Thomas Perez, head of DOJ’s Civil Rights Division, wrote to the chief justices of the nation’s 50 state court systems, reminding them of their obligation to ensure that the courts are accessible to people with limited proficiency in English (often known as “LEP” individuals). In particular, the letter stressed that the courts must provide interpreters to people who need them, at no cost, in all types of court proceedings.
This letter holds out the promise of a court system that is open to everyone in this country. As the inscription over the entrance to the U.S. Supreme Court proclaims, “Equal Justice Under Law” is a cornerstone of our legal system, and of our democracy itself.
When court interpreters are not available, bad things happen to good people. Victims of domestic violence are unable to explain why they are scared, and so cannot get a restraining order. Parents cannot explain what they are doing to keep their children safe, and so their children are sent to foster care. Criminal defendants cannot explain where they were on the night in question, and so innocent people end up behind bars.
In the past decade, some state court systems have made great progress towards providing language access. New York State, for example, provides interpreters in all types of cases, and it conducts rigorous testing to ensure that the interpreters have the language and interpreting skills that are needed for that case. At least 40 states have banded together into the Consortium for Language Access in the Courts to share resources, including court interpreter tests.
But, as a 2009 Brennan Center report found, in many states court interpreters still are unavailable in civil matters concerning housing, child custody and other basic human needs. And in criminal matters, interpreters often are unable to communicate effectively.
A report issued this summer by the University of North Carolina Law School shows what such problems look like in practice. Students observing court proceedings in their local state courts learned that LEP defendants often have to sit through initial court appearances with no interpreter. Prosecutors’ staff sometimes provide interpretation for the court and defendant in criminal cases, raising at least the appearance of bias. In civil cases, people often have to bring family members or friends with them to interpret, creating a high risk that the resulting interpretations will be inaccurate.
The UNC report also highlights DOJ’s mixed record protecting the civil rights of LEP people who need access to the courts. DOJ has repeatedly made clear, in letters resembling the one it issued in August, that the obligation to provide court interpreters flows from Title VI of the Civil Rights Act of 1964, which bars recipients of federal funding from discriminating on the basis of national origin. But DOJ has not backed up its increasingly strong warnings with strong enforcement measures. Four years ago, a North Carolina attorney sent DOJ a Title VI complaint based on many of the same language access problems highlighted by UNC’s report. DOJ sent staff to investigate, but it has taken no visible steps either to request that the courts make changes or to close the complaint.
DOJ’s recent letter warns that DOJ will “continue to review courts for compliance and to investigate complaints.” The North Carolina situation makes clear that DOJ must do more. Business as usual will not be sufficient to induce long-term Title VI violators to change. DOJ must intensify its enforcement efforts now.
Tags: Civil Justice, Language Access
By Laura Klein Abel – 07/26/10
On July 16, 2010, the Brennan Center filed comments urging the Department of Homeland Security (DHS) to instruct police departments to make 911 lines accessible to crime victims with limited English-speaking skills.
Together with thirteen immigrant advocacy and legal aid programs, the Center also pushed DHS to expand the use of outside interpreters for doctors visiting immigrant detention centers. In some instances, immigrants with limited English-speaking skills themselves have been called upon to translate the maladies of others, which can lead to misdiagnoses and other problems. The groups urged DHS to ban the practice.
The groups also recommended that DHS require DMVs to safeguard personal information by avoiding the use of family and friends to interpret for drivers license applicants
Our comments respond to a set of guidelines DHS has proposed to provide to the many government agencies, nonprofits and businesses receiving DHS funding. Since its establishment in early 2003, DHS has distributed billions of dollars in grants to hundreds of state and local governments, as well as corporations and non-profit organizations. Title VI of the Civil Rights Act requires these funding recipients to use interpretation and translation in order to communicate with the LEP individuals they serve. With its proposed guidelines, DHS is for the first time making a serious effort to ensure that its funding recipients do in fact provide this language assistance.
Unfortunately, DHS’ guidelines are vague. They do not identify the specific language access obligations of specific types of agencies. Our comments urge DHS to provide clear guidance regarding the language assistance obligations of the state and local law enforcement agencies, prisons, emergency/disaster management agencies and motor vehicle departments that receive DHS funding. With this sort of clear, easy to follow guidance, DHS can help state and local government agencies communicate with the communities they serve
Tags: Justice, Civil Justice, Language Access
By Laura Klein Abel – 01/05/07
By Laura K. Abel & David Pedulla
*Cross-posted from TortDeform.com
In November, the voters called for a different approach to national
policy. With the New Year, it is time for Congress to make that new
approach happen. These are some policy reforms that would help fix one
fundamentally flawed aspect of our government – the inability of
low-income people with pressing civil legal needs to get a fair day in
court.
1. Allocate more funding to the Legal Services Corporation.
Every county of every state is served by civil legal aid lawyers
receiving federal funding through the Legal Services Corporation
(“LSC”). Those lawyers provide representation in cases regarding the
daily, crucial legal needs of low-income people, in matters such as
child custody, evictions, and subsistence-level public benefits.
Repeated studies show that about 80% of those legal needs go unmet
because LSC lacks adequate funding. Pro bono and other palliative
measures are unable to fill the gap. The minimum Congress should
allocate is $411 million – the amount called for by LSC and the
American Bar Association. Even that amount will leave many dire legal
needs unmet, but it will be an improvement over the current LSC funding
level of $330 million.
2. Ensure that Interest on Lawyers’ Trust Accounts accrue the same level of interest as other bank accounts.
Interest on Lawyers’ Trust Accounts (“IOLTA”) – a program in which
attorneys bundle client funds in order to generate interest revenue
where no interest would otherwise be generated – is one of the nation’s
largest funding sources for civil legal aid. Unfortunately, banks
sometimes pay less interest on IOLTA accounts than they do on other
similar bank accounts. Congress should follow the practice of many
state legislatures and state court systems by instituting banking
reforms to require banks to pay interest at the same rate on IOLTA
accounts as they do on comparable accounts.
3. Remove the LSC “physical separation requirement.”
A holdover policy from the Gingrich-era Congress requires civil legal
aid programs receiving LSC funds to waste their scarce resources by
establishing two different offices if they want to use their non-LSC
funds free of cumbersome restrictions. The restrictions bar the
programs from representing clients in class action lawsuits, claiming
court-ordered attorneys’ fee awards to strengthen clients’ cases, and
representing many categories of immigrants, among other activities.
Congress should remove the wasteful physical separation requirement to
allow civil legal aid lawyers to help their clients in the most
efficient and effective manner.
4. Examine whether the LSC Inspector General is overstepping
his mandate by interfering with the ability of civil legal aid programs
to serve their clients.
Civil legal aid programs receiving LSC funding recently have come under
attack by LSC’s Inspector General (“IG”). The IG claims to be trying to
ensure that impact work does not interfere with civil legal aid
programs’ ability to meet the basic needs of low-income clients. Our
fear is that the IG’s investigations themselves are interfering with
the ability of civil legal aid lawyers to meet the needs of their
client communities in the most efficient and effective manner. Congress
must investigate whether this is the case.
5. Reform the Bankruptcy Act.
In 2005, Congress enacted sweeping changes in the bankruptcy laws. One
change that went too far was the imposition of personal liability on
lawyers representing clients in bankruptcy proceedings. This reform has
scared countless lawyers in public interest organizations and in
private practice away from representing clients seeking bankruptcy
protection. Congress must roll back this provision to increase
financial protection for low-income people and to ensure that the
bankruptcy system can benefit from the participation of lawyers skilled
at counseling and representing clients.
6. Fund student loan forgiveness programs for civil legal aid lawyers.
Another reason low-income people have a hard time finding high-quality
legal representation is that few recent law school graduates can afford
to take public interest jobs. A recent study
found that more than 80% of law students borrow money to pay for law
school, with an average loan burden of $78,763 for students attending
private schools. For these students, taking a legal aid job paying an
average of $35,000 is not an option. Congress should expand a pilot
program operated by the Legal Services Corporation, which helps civil
legal aid attorneys repay their loans.
7. Pass legislation similar to the Civil Rights Act of 2004 (the FAIRNESS Act).
Over the course of the past decade, the federal courts have stripped
themselves of the ability to enforce many important civil rights
protections. The result is that people suffering discrimination often
find that they have no way to enforce their rights. The FAIRNESS Act
would restore access to the courts for seniors seeking to challenge age
discrimination, for immigrants seeking to enforce their language access
rights, and for many others seeking fair treatment under the law.
Tags: Justice, Civil Justice, Attorneys' Fee Awards, Civil Legal Aid, Fair Forums, Language Access
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