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50123Federal Register / Vol. 65, No. 159 / Wednesday, August 16, 2000 / NoticesDEPARTMENT OF JUSTICEEnforcement of Title VI of the CivilRights Act of 1964—National OriginDiscrimination Against Persons WithLimited English Proficiency; PolicyGuidanceAGENCY: Civil Rights Division,Department of Justice.ACTION: Policy guidance document.SUMMARY: This Policy GuidanceDocument entitled ‘‘Enforcement ofTitle VI of the Civil Rights Act of 1964‘‘ National Origin DiscriminationAgainst Persons with Limited EnglishProficiency (LEP Guidance)’’ is beingissued pursuant to authority granted byExecutive Order 12250 and Departmentof Justice Regulations. It addresses theapplication of Title VI’s prohibition onnational origin discrimination wheninformation is provided only in Englishto persons with limited Englishproficiency. This policy guidance doesnot create new obligations, but rather,clarifies existing Title VIresponsibilities. The purpose of thisdocument is to set forth generalprinciples for agencies to apply indeveloping guidelines for services toindividuals with limited Englishproficiency. The Policy GuidanceDocument appears below.DATES: Effective August 11, 2000.ADDRESSES: Coordination and ReviewSection, Civil Rights Division, P.O. Box66560, Washington, D.C. 20035–6560.FOR FURTHER INFORMATION CONTACT:Merrily Friedlander, Chief,Coordination and Review Section, CivilRights Division, (202) 307–2222.Helen L. Norton,Counsel to the Assistant Attorney General,Civil Rights Division.Office of the Assistant Attorney GeneralWashington, D.C. 20530August 11, 2000.TO: Executive Agency Civil RightsOfficersFROM: Bill Lann Lee, AssistantAttorney General, Civil RightsDivisionSUBJECT: Policy Guidance Document:Enforcement of Title VI of the CivilRights Act of 1964—National OriginDiscrimination Against Persons WithLimited English Proficiency (‘‘LEPGuidance’’)This policy directive concerning theenforcement of Title VI of the CivilRights Act of 1964, 42 U.S.C. §§ 2000det seq., as amended, is being issuedpursuant to the authority granted byVerDate 11 MAY 200011:46 Aug 15, 2000Executive Order No. 12250 1 andDepartment of Justice regulations.2 Itaddresses the application to recipientsof federal financial assistance of TitleVI’s prohibition on national origindiscrimination when information isprovided only in English to personswho do not understand English. Thispolicy guidance does not create newobligations but, rather, clarifies existingTitle VI responsibilities.Department of Justice Regulations forthe Coordination of Enforcement ofNon-discrimination in FederallyAssisted Programs (CoordinationRegulations), 28 C.F.R. 42.401 et seq.,direct agencies to ‘‘publish title VIguidelines for each type of program towhich they extend financial assistance,where such guidelines would beappropriate to provide detailedinformation on the requirements of TitleVI.’’ 28 CFR § 42.404(a). The purpose ofthis document is to set forth generalprinciples for agencies to apply indeveloping such guidelines for servicesto individuals with limited Englishproficiency (LEP). It is expected that, indeveloping this guidance for theirfederally assisted programs, agencieswill apply these general principles,taking into account the unique nature ofthe programs to which they providefederal financial assistance.A federal aid recipient’s failure toassure that people who are notproficient in English can effectivelyparticipate in and benefit from programsand activities may constitute nationalorigin discrimination prohibited byTitle VI. In order to assist agencies thatgrant federal financial assistance inensuring that recipients of federalfinancial assistance are complying withtheir responsibilities, this policydirective addresses the appropriatecompliance standards. Agencies shouldutilize the standards set forth in thisPolicy Guidance Document to developspecific criteria applicable to review theprograms and activities for which theyoffer financial assistance. TheDepartment of Education 3 already has1 42U.S.C. § 2000d–1 note.C.F.R. § 0.51.3 Department of Education policies regarding theTitle VI responsibilities of public school districtswith respect to LEP children and their parents arereflected in three Office for Civil Rights policydocuments: (1) the May 1970 memorandum toschool districts, ‘‘Identification of Discriminationand Denial of Services on the Basis of NationalOrigin,’’ (2) the December 3, 1985, guidancedocument, ‘‘The Office for Civil Rights’ Title VILanguage Minority Compliance Procedures,’’ and(3) the September 1991 memorandum, ‘‘PolicyUpdate on Schools Obligations Toward NationalOrigin Minority Students with Limited EnglishProficiency.’’ These documents can be found at theDepartment of Education website at www.ed.gov/office/OCR.2 28Jkt 190000PO 00000Frm 00001Fmt 4701Sfmt 4703established policies, and theDepartment of Health and HumanServices (HHS) 4 has been developingguidance in a manner consistent withTitle VI and this Document, that appliesto their specific programs receivingfederal financial assistance.BackgroundTitle VI of the Civil Rights Act of 1964prohibits recipients of federal financialassistance from discriminating againstor otherwise excluding individuals onthe basis of race, color, or nationalorigin in any of their activities. Section601 of Title VI, 42 U.S.C. § 2000d,provides:No person in the United States shall, onthe ground of race, color, or national origin,be excluded from participation in, be deniedthe benefits of, or be subjected todiscrimination under any program or activityreceiving Federal financial assistance.The term ‘‘program or activity’’ isbroadly defined. 42 U.S.C. § 2000d–4a.Consistent with the model Title VIregulations drafted by a Presidentialtask force in 1964, virtually everyexecutive agency that grants federalfinancial assistance has promulgatedregulations to implement Title VI. Theseregulations prohibit recipients from‘‘restrict[ing] an individual in any wayin the enjoyment of any advantage orprivilege enjoyed by others receivingany service, financial aid, or otherbenefit under the program’’ and‘‘utiliz[ing] criteria or methods ofadministration which have the effect ofsubjecting individuals todiscrimination’’ or have ‘‘the effect ofdefeating or substantially impairingaccomplishment of the objectives of theprogram as respects individuals of aparticular race, color, or nationalorigin.’’In Lau v. Nichols, 414 U.S. 563 (1974),the Supreme Court interpreted theseprovisions as requiring that a federalfinancial recipient take steps to ensurethat language barriers did not excludeLEP persons from effective participationin its benefits and services. Lauinvolved a group of students of Chineseorigin who did not speak English towhom the recipient provided the sameservices—an education provided solelyin English—that it provided studentswho did speak English. The Court heldthat, under these circumstances, theschool’s practice violated the Title VIprohibition against discrimination on4 The Department of Health and Human Servicesis issuing policy guidance titled: ‘‘Title VIProhibition Against National Origin DiscriminationAs It Affects Persons With Limited EnglishProficiency.’’ This policy addresses the Title VIresponsibilities of HHS recipients to individualswith limited English proficiency.E:\FR\FM\16AUN2.SGMpfrm07PsN: 16AUN2

50124Federal Register / Vol. 65, No. 159 / Wednesday, August 16, 2000 / Noticesthe basis of national origin. The Courtobserved that ‘‘[i]t seems obvious thatthe Chinese-speaking minority receivefewer benefits than the English-speakingmajority from respondents’ schoolsystem which denies them a meaningfulopportunity to participate in theeducational program—all earmarks ofthe discrimination banned by’’ the TitleVI regulations.5 Courts have applied thedoctrine enunciated in Lau both insideand outside the education context. It hasbeen considered in contexts as varied aswhat languages drivers’ license testsmust be given in or whether materialrelating to unemployment benefits mustbe given in a language other thanEnglish.6Link Between National Origin AndLanguageFor the majority of people living inthe United States, English is their nativelanguage or they have acquiredproficiency in English. They are able toparticipate fully in federally assistedprograms and activities even if writtenand oral communications areexclusively in the English language.The same cannot be said for theremaining minority who have limitedEnglish proficiency. This groupincludes persons born in othercountries, some children of immigrantsborn in the United States, and othernon-English or limited Englishproficient persons born in the UnitedStates, including some NativeAmericans. Despite efforts to learn andmaster English, their English languageproficiency may be limited for sometime.7 Unless grant recipients take stepsto respond to this difficulty, recipientseffectively may deny those who do not5 414 U.S. at 568. Congress manifested itsapproval of the Lau decision requirementsconcerning the provision of meaningful educationservices by enacting provisions in the EducationAmendments of 1974, Pub. L. No. 93–380, §§ 105,204, 88 Stat. 503–512, 515 codified at 20 U.S.C.1703(f), and the Bilingual Education Act, 20 U.S.C.7401 et seq., which provided federal financialassistance to school districts in providing languageservices.6 For cases outside the educational context, see,e.g., Sandoval v. Hagan, 7 F. Supp. 2d 1234 (M.D.Ala. 1998), affirmed, 197 F.3d 484, (11th Cir. 1999),rehearing and suggestion for rehearing en bancdenied, 211 F.3d 133 (11th Cir. Feb. 29, 2000)(Table, No. 98–6598–II), petition for certiorari filedMay 30, 2000 (No. 99–1908) (giving drivers’ licensetests only in English violates Title VI); and Pabonv. Levine, 70 F.R.D. 674 (S.D.N.Y. 1976) (summaryjudgment for defendants denied in case allegingfailure to provide unemployment insuranceinformation in Spanish violated Title VI).7 Certainly it is important to achieve Englishlanguage proficiency in order to fully participate atevery level in American society. As we understandthe Supreme Court’s interpretation of Title VI’sprohibition of national origin discrimination, itdoes not in any way disparage use of the Englishlanguage.VerDate 11 MAY 200016:45 Aug 15, 2000speak, read, or understand Englishaccess to the benefits and services forwhich they qualify.Many recipients of federal financialassistance recognize that the failure toprovide language assistance to suchpersons may deny them vital access toservices and benefits. In some instances,a recipient’s failure to remove languagebarriers is attributable to ignorance ofthe fact that some members of thecommunity are unable to communicatein English, to a general resistance tochange, or to a lack of awareness of theobligation to address this obstacle.In some cases, however, the failure toaddress language barriers may not besimply an oversight, but rather may beattributable, at least in part, to invidiousdiscrimination on the basis of nationalorigin and race. While there is notalways a direct relationship between anindividual’s language and nationalorigin, often language does serve as anidentifier of national origin.8 The samesort of prejudice and xenophobia thatmay be at the root of discriminationagainst persons from other nations maybe triggered when a person speaks alanguage other than English.Language elicits a response from others,ranging from admiration and respect, todistance and alienation, to ridicule andscorn. Reactions of the latter type all toooften result from or initiate racial hostility* * *. It may well be, for certain ethnicgroups and in some communities, thatproficiency in a particular language, like skincolor, should be treated as a surrogate forrace under an equal protection analysis.9While Title VI itself prohibits onlyintentional discrimination on the basisof national origin,10 the Supreme Courthas consistently upheld agencyregulations prohibiting unjustifieddiscriminatory effects.11 TheDepartment of Justice has consistentlyadhered to the view that the significant8 As the Supreme Court observed, ‘‘[l]anguagepermits an individual to express both a personalidentity and membership in a community, andthose who share a common language may interactin ways more intimate than those without thisbond.’’ Hernandez v. New York, 500 U.S. 352, 370(1991) (plurality opinion).9 Id. at 371 (plurality opinion).10 Alexander v. Choate, 469 U.S. 287, 293 (1985).11 Id. at 293–294; Guardians Ass’n v. Civil Serv.Comm’n, 463 U.S. 582, 584 n.2 (1983) (White, J.),623 n.15 (Marshall, J.), 642–645 (Stevens, Brennan,Blackmun, JJ.); Lau v. Nichols, 414 U.S. at 568; id.at 571 (Stewart, J., concurring in result). In a July24, 1994, memorandum to Heads of Departmentsand Agencies that Provide Federal FinancialAssistance concerning ‘‘Use of the Disparate ImpactStandard in Administrative Regulations Under TitleVI of the Civil Rights Act of 1964,’’ the AttorneyGeneral stated that each agency ‘‘should ensure thatthe disparate impact provisions of your regulationsare fully utilized so that all persons may enjoyequally the benefits of federally financedprograms.’’Jkt 190000PO 00000Frm 00002Fmt 4701Sfmt 4703discriminatory effects that the failure toprovide language assistance has on thebasis of national origin, places thetreatment of LEP individualscomfortably within the ambit of Title VIand agencies’ implementingregulations.12 Also, existing languagebarriers potentially may be rooted ininvidious discrimination. The SupremeCourt in Lau concluded that arecipient’s failure to take affirmativesteps to provide ‘‘meaningfulopportunity’’ for LEP individuals toparticipate in its programs and activitiesviolates the recipient’s obligationsunder Title VI and its regulations.All Recipients Must Take ReasonableSteps To Provide Meaningful AccessRecipients who fail to provideservices to LEP applicants andbeneficiaries in their federally assistedprograms and activities may bediscriminating on the basis of nationalorigin in violation of Title VI and itsimplementing regulations. Title VI andits regulations require recipients to takereasonable steps to ensure ‘‘meaningful’’access to the information and servicesthey provide. What constitutesreasonable steps to ensure meaningfulaccess will be contingent on

Department of Justice Enforcement of Title VI of the Civil Rights Act of 1964—National Origin Discrimination Against Persons With Limited English Proficiency; Notice . VerDate 112000 11:37 Aug 15, 2000 Jkt 190000 PO 00000 Frm 00003 Fmt 4705 Sfmt 4790 E:\FR\FM\16AUE0.SGM pfrm07 PsN: 16AUE0 . Department of Education website at www.ed.gov .