Homeland Security Issues Guidance on Need to Provide Language Access

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.