February 4, 2004
Regulations Division
Office of the General Counsel
Department of Housing and Urban Development
Room 10276
451 Seventh Street, SW.
Washington, DC 20410-0500
Comments of English First Foundation on the Department of Housing and Urban Development’s Guidance to Federal Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, Federal Register, December 19, 2003 (Volume 68, Number 244) Docket No. FR-4878-N-02
English First Foundation is devoted to ensuring that future generations of Americans enjoy the benefits of a common language. English First Foundation staff have been consistently involved in analyzing the implications of Clinton Executive Order 13166 ever since its issuance on August 11, 2000.
It remains the considered opinion of English First Foundation that Clinton Executive Order 13166, as well as all of its accompanying regulations, have no basis in law, are fundamentally impractical and will cost enormous sums of money.
Accordingly, the Department of Housing and Urban Development (hereinafter HUD) should withdraw its “Guidance to Federal Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons” (hereinafter LEP Guidance). We amplify upon these comments below as follows:
I. The LEP Guidance Flagrantly Ignores Large Swaths of Existing Law
Quoting from the LEP Guidance:
Many persons who commented on the
DOJ's proposed LEP guidance which was published January 16, 2001 (66 FR 3834),
later published for additional public comment on January 18, 2002 (67 FR 2671),
and published in final form on June 18, 2002 (67 FR 41455), have noted that
some in the public have interpreted the case of Alexander v. Sandoval,
532 U.S. 275 (2001), as implicitly striking down the regulations promulgated
under Title VI that form the basis for the part of Executive Order 13166 that applies to federally-assisted programs
and activities. DOJ and HUD have taken the position that this is not the case,
for the reasons explained below. . . .
Sandoval holds principally that there is no private right of action to enforce Title VI disparate-impact regulations. It did not address the validity of those regulations or Executive Order 13166 or otherwise limit the authority and responsibility of federal grant agencies to enforce their own implementing regulations.[1]
It is striking that the U.S. Supreme Court can overturn the only case equating language with the protected classification of national origin and the Supreme Court’s action is ignored by the federal government as insufficiently specific. Generally, let one judge somewhere issue a novel ruling and America is told to comply because the court has spoken. Why then is the Bush Administration treating the Supreme Court’s rejection of the entire Sandoval ruling as an advisory opinion from a group of nobodies?
Clinton Executive Order 13166 and all the subsequent regulations it has spawned now claim that language has always been understood as protected under Title VI of the 1964 Civil Rights Act. That understanding seems limited to those who seek to make a person’s language choice a protected civil right.
The now-repudiated Alabama official English case (Sandoval) was the first to specifically equate language with national origin. In doing so, the lower court’s ruling in Sandoval ignored the Supreme Court's careful and limited reading of the phrase “national origin” in Espinoza v. Farah Mfg. Co. 414 U.S. 86 (1973).
Furthermore, the Fifth Circuit held that “the EEO Act does not support an interpretation that equates the language an employee prefers to use with his national origin.” Garcia v. Gloor 618 F.2d 264, 270 (5 th Cir. 1980), cert. den., 449 U.S. 113 (1981). Similarly, the Second Circuit has said “Language, by itself, does not identify members of a suspect class.” Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983), cert. den. 466 U.S. 929 (1984).
The lower court ruling in Sandoval
also conflicts with other circuits' rulings in cases where the plaintiff could
not speak English at all. See, e.g., Vasquez v. McAllen Bag & Supply
Co., 660 F.2d 686, 687 (5 th Cir. 1981)(rejecting section 1981 claim by monolingual Spanish-speaking truck driver).
In addition, the Second, Sixth, Seventh and Ninth Circuits found no requirement for examinations, services or notices to be in languages other than English. Toure v. United States, 24 F.3d 444, 446 (2 nd Cir. 1994)(rejecting request for multilingual forfeiture notices); Frontera v. Sindell, 522 F.2d 1215, 1220 (6 th Cir. 1975)(upholding English-language civil service
examination, “In conducting the examination in English, the Commission violated no constitutional or civil right of Frontera”); Nazarova v. INS, 171 F.3d 478, 483 (7 th Cir. 1999)(“It has long been established that due process allows notice of a hearing (and its attendant procedures and consequences) to be given solely in English to a non-English speaker”); Carmona v. Sheffield, 475 F.2d 738, 739 (9 th Cir. 1973)(rejecting a claim for Spanish-speaking interpreters and permitting English language benefit termination notices).
This understanding that “national origin” did not encompass “language” was also the understanding of official English opponent Senator Paul Simon (D-IL) in 1991. Senator Simon tried to add the word “language” to the purview of the Civil Rights Commission (S. 1264). Since the Commission is already responsible for discrimination based on “national origin” this is an admission by an opponent of official English that “national origin” is not “language.”
Senator Simon’s view was also that of then-Senator George Mitchell. On August 5, 1994, Senator Mitchell’s S.2357, was placed on the Senate Legislative Calendar. This bill contained Section 1602, “Anti-Discrimination,” which also banned discrimination “on the basis of race, national origin, sex, religion, language, income, age, sexual orientation, disability, health status or anticipated need for health services” (emphasis added).
Given this lengthy legal and legislative history, it is curious that HUD seemed to enjoy its own unique understanding of Title VI and the language issue during the 1990s.
The city of Allentown, Pennsylvania, enacted a local English-only ordinance on September 7, 1994 by a vote of 6 - 1. The text of the Allentown ordinance read:
English shall be the official language of the government of the City of Allentown. The Administration is urged to issue all documents, publications, correspondence, literature or any written material of whatever nature by or on the behalf of the City of Allentown in the English language only and in no other language except where required by State or Federal law or where public safety or health issues may require otherwise.[2]
On December 15, 1994, HUD General Counsel Nelson Diaz sent a memo to Roberta Achtenberg, then-Assistant Secretary for Fair Housing and Equal Opportunity at HUD, claiming that the Allentown ordinance was a violation of Title VI and urged an investigation.[3] In February, 1995, Allentown’s city clerk was told by a HUD official that the city faced a loss of federal funds unless the ordinance was repealed.[4] Twenty-three members of Congress sent Henry Cisneros, then HUD Secretary, a letter asking him to clarify upon what legal authority this threat was based. At this point, a HUD spokesman told the Times that it was “not investigating Allentown’s official-English ordinance and has no plans to do so.”[5]
This radical interpretation of Title VI by the Clinton Administration goes unmentioned by the present LEP Guidance. It would seem the legal precedents relied upon by Nelson Diaz in 1994 rested in large part on thin air.[6]
II.
The LEP Guidance Requires Recipients of Scarce Funds to Spend Them on
Potentially Nonexistent Persons.
Given that there are large numbers of actual people seeking housing, it seems odd that this LEP Guidance contains such extensive focus of persons who may not exist:
Finally, when interpretation is needed and is reasonable, it should be provided in a timely manner. To be meaningfully effective, language assistance should be timely. While there is no single definition for “timely” applicable to all types of interactions at all times by all types of recipients, one clear guide is that the language assistance should be provided at a time and place that avoids the effective denial of the service, benefit, or right at issue or the imposition of an undue burden on or delay in important rights, benefits, or services to the LEP person.[7]
In conducting this analysis, it is important to include language minority populations that are eligible for their programs or activities but may be undeserved because of existing language barriers.[8]
[E]ven recipients that serve LEP persons on an unpredictable or infrequent basis should use this balancing analysis to determine what to do if an LEP individual seeks services under the program in question.[9]
Lack of awareness that a particular program, right, or service exists may effectively deny LEP persons meaningful access.[10]
HUD recipients are required to reach out to, educate, and affirmatively market their services to potential beneficiaries in the geographic area who are least likely to apply for or receive the benefits of the program without such affirmative marketing.[11]
People who are deemed “unaware” of a given benefit may not in fact even exist, let alone ever present themselves at a HUD-funded office. The regulations also implicitly require that recipients of HUD funds are to be ready to provide immediate service in any language:
(For example, the program could announce in major languages in any public notice of the meeting that anyone in need of an interpreter should call a certain number before the meeting to request one -- and ensure that someone at that number can communicate with the person.)[12]
III.
Expensive Good-Faith Efforts by Recipients May Still Result in Costly
Complaints to HUD
The LEP Guidance suggests that bilingual staff be hired, and then announce that doing so still does not protect the recipient of HUD funds from complaints of inadequate translation:
For instance, a public housing provider in a largely Hispanic neighborhood may need immediate oral interpreters available and should give serious consideration to hiring some bilingual staff. (Of course, many have already made such arrangements.)[13]
Some bilingual staff and community volunteers, for instance, may be able to communicate effectively in a different language when communicating information directly in that language, but not be competent to interpret in and out of English. Likewise, they may not be able to do written translations.[14]
How a supervisor can properly monitor, let alone distinguish, between “communication” and “interpretation” if the supervisor does not speak the identical dialect of the language in question is not explained. Is HUD requiring the use of two or more interpreters of every dialect of every language for quality control purposes?
Extraordinary distinctions are made which all but invite complaints from anyone denied any benefits for which they apply:
Being bilingual does not necessarily mean that a person has the ability to interpret.[15]
[T]he skill of translating is very different from the skill of interpreting, and a person who is a competent interpreter may or may not be competent to translate.[16]
This kind of hairsplitting, so beloved by academics everywhere, has no place in a legal document intended to give recipients of HUD funds clear direction as to what they are supposed to do in order to comply with E.O. 13166.
HUD furthermore has had its own troubles with translation accuracy. HUD’s 1999 translation of a pamphlet into Haitian Creole provoked national ridicule:
Federal officials hoping to inform Haitian residents in the Creole language about subsidized housing have delivered a pamphlet written in an imitation Jamaican dialect.
It's a tough read:
“Yuh as a rezedent, ave di rights ahn di rispansabilities to elp mek yuh HUD-asisted owzing ah behta owme fi yuh ahn yuh fambily,” the pamphlet states.
What the U.S. Department of Housing and Urban Development was trying to say was: “You as a resident have the rights and the responsibilities to help make your HUD-assisted housing a better home for you and your family” . . .
Haitian Creole, the national language of Haiti, is based on French, while Jamaicans read and write standard English. The presumed language of the HUD document is the spoken Jamaican dialect - translated phonetically.[17]
HUD spokeswoman Ginny Terzano resorted to blaming errant subcontractors for the agency's infamous Haitian Creole pamphlet, Rezedents Rights and Rispansabilities (signed by “Sekretary Andrew M. Cuomo fella”) since “we don't translate and we don't print.”
IV.
The LEP Guidance Offers Moneysaving Compliance Suggestions With One Hand
While Undercutting that Same Advice Elsewhere in the Same Guidance.
Small recipients with limited resources may find that entering into a bulk telephonic interpretation service contract will prove cost effective.[18]
Nuances in language and non-verbal communication can often assist an interpreter and cannot be recognized over the phone.[19]
The conflicting advice offered above suggests that a recipient of HUD funds who simply utilizes a telephonic interpretation service would do well to simply grant the application of anyone who claims to speak only another language. Denials of applications will only invite complaints that a “better” alternative as defined by HUD itself, personal face-to-face translation, was not utilized by the recipient and thus a violation of Title VI..
V.
The LEP Guidance Would Effectively Close Many Shelters for Abused Women
English First Foundation is frankly appalled that the LEP Guidance, while claiming to keep costs reasonable, imposes some of the strictest interpretation standards upon those organizations least likely to be able to comply: “The quality and accuracy of language services in an abused woman’s shelter, for example, must be extraordinarily high.”[20]
Shelters for abused women are hardly swimming in funds. Is it HUD’s intention to preclude such shelters from ministering to the needs of some women simply because they are unable to minister to the needs of every possible woman?
VI.
How Many Translators Must Be Hired? Who Knows.
The LEP Guidance
effectively recommends at least two translators per translation:
If the LEP person voluntarily chooses to provide his/her own interpreter, a recipient should consider whether a record of that choice and of the recipient's offer of assistance is appropriate. Where precise, complete, and accurate interpretations or translations of information and/or testimony are critical for legal reasons, or where the competency of the LEP person's interpreter is not established, a recipient might decide to provide its own, independent interpreter, even if an LEP person wants to use his or her own interpreter as well.[21]
Competence can often be ensured by having a second, independent translator “check” the work of the primary translator. Alternatively, one translator can translate the document, and a second, independent translator could translate it back into English to check that the appropriate meaning has been conveyed. This is called “back translation.”[22]
For example, where precise, complete, and accurate interpretation of information is critical for lease enforcement, or at group meetings dealing with vital issues, such as pending displacement, a recipient might provide its own, independent interpreters, regardless of what recipients choose. This should ensure that information has been interpreted completely and is legally accurate.[23]
Sometimes, the LEP Guidance recommends more than two translators be utilized:
Where such proceedings are lengthy, the interpreter will likely need breaks and team interpreting may be appropriate to ensure accuracy and to prevent errors caused by mental fatigue of interpreters.[24]
A recipient who hires an interpreter ready to translate a written document may also fall short of the LEP Guidance simply because a person is illiterate: “It should be kept in mind that many LEP persons may not be able to read their native languages and back-up availability of oral interpretation is always advantageous.”[25]
Clear, bright lines should exist between legal and illegal conduct. The LEP Guidance falls quite short by this standard: “Each HUD recipient's evaluation of the need and level of LEP services for each process in its services must be highly individualized.”[26]
Depending on the second guessing of administrative agencies, a good-faith effort conducted by a recipient in one circumstance can be a violation in another situation which is to all appearances identical.
While all language services need to be competent, the greater the potential consequences, the greater the need to monitor interpretation services for quality. For example, it is important that interpreters of legal concepts be highly competent to translate legal and lease enforcement concepts as well as be extremely accurate in their interpretation when discussing relocation and displacement issues. It may be sufficient, however, for a desk clerk who is fully bilingual, but not skilled at interpreting, to help an LEP person complete an application in the language the LEP person and bilingual person have in common.[27]
VII. The LEP
Guidance is an Open Invitation to Extortion
The LEP Guidance invited recipients of HUD funds to consult with “legal aid entities” to “assist in identifying populations for whom outreach is needed.” What happens if the recipient does not follow the advice of the “legal aid entities” it consults? A complaint to HUD would follow just as a sunrise follows a sunset.
The LEP Guidance also invites professional ethnic activist groups to climb on board the HUD’s financial gravy train and complain if money is not showered upon them by recipients of HUD dollars.
The examples given in “Appendix A: Application of Limited English Proficiency (LEP) Guidance for HUD Recipients” share a common and troubling theme which becomes apparent when direct comparison is made.
The Fair Housing Assistance Program (FHAP): ...The office has a contract with a nonprofit Hispanic organization for interpreters on an as-needed basis its education and outreach activities to the Hispanic community.[28]
The Fair Housing Initiatives Program (FHIP): ...To address this need, the FHIP partnered with Asian Action Network, a community-based social service agency, to translate materials and to present free seminars at the local public library.[29]
Housing Choice Voucher Program . . . places a public service announcement in English, Spanish, Chinese, or Vietnamese in the local general circulation, Spanish, Chinese, or Vietnamese newspapers and radio and TV stations, as applicable.[30]
Supportive Housing for the Elderly . . . partners with community-based organizations that serve the city's East and South Asian immigrants to arrange for interpreters at meetings.[31]
HOME Investment Partnership Program ... Under the program requirements, PJs are required to implement affirmative marketing strategies, under which they identify groups within the eligible population that are least likely to apply and conduct special outreach efforts through advertising in local media, including media targeted at LEP citizens.[32]
Organizations denied contracts from recipients of HUD funds are more than likely to file complaints with HUD claiming that the rights of LEP citizens are being violated. Their proof? The recipient has not put their particular organization on its payroll, or purchased a sufficient number of advertisements. This circular reasoning would be considered by HUD as proof of noncompliance.
Since many community organizations lack other funding sources, E.O. 13166 would invite a kind of gold rush which drafters of this LEP Guidance would do well to contemplate. In fact, since the LEP Guidance is prospective, requiring outreach to persons who speak languages which the recipient has not hitherto encountered, it is an open invitation to ethnic entrepreneurs to invent limited-circulation newspapers written in obscure languages with expensive advertising rates.
Community organizations are also all but invited by the LEP Guidance to announce inflated numbers of constituents in need of language services and make decisions for the entire community as to what constitutes essential documents:
Other data should be consulted to refine or validate a recipient's prior experience, including the latest census data for the area served, data from school systems and from community organizations, and data from State and local governments.[33]
Community organizations may be helpful in determining what outreach materials may be most helpful to translate.[34]
VIII.
Conclusion
The HUD LEP Guidance, if not rejected outright as we recommend, merits a drastic rewriting.
Sincerely,
Jim Boulet, Jr.
Executive Director
Appendix A
[1] Department of Housing and Urban Development, “Guidance to Federal Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons,” Federal Register, December 19, 2003 (Volume 68, Number 244) at 70969 (hereinafter HUD LEP Guidance).
[2]See also House Judiciary Committee, Subcommittee on the Constitution, April 18, 1996, (Testimony of Professor Ronald Rotunda) http://www.house.gov/judiciary/2183.htm:
1
2 Not too long ago the Department of Housing and Urban Development investigated Allentown, Pennsylvania, after the city council enacted a voluntary official English law. The ordinance was hardly earth-shaking: it merely urged the mayor to issue all documents exclusively in English (unless public health and safety were involved, or federal or state law mandated otherwise). The HUD bureaucracy was anti-English, and threatened to cut off Allentown's federal housing money. HUD claimed that Congress had made it a civil right to speak in a language other than English. I know of no such law, and HUD never cited any code sections. Eventually, because of Congressional pressure, HUD backed down.
[6] A lawsuit brought by HUD against the Chicago Housing Authority claiming discrimination against Latinos “on the basis of race, color and national origin” was settled on June 8, 1995. It is not clear if Title VI was invoked in that case. A lack of Spanish-speakers in public housing offices was considered proof that the unit was unreceptive to Latinos. “HUD Settles Latino Bias Suit,” Chicago Tribune, June 9, 1995 at Section 2, 3.
1
2
[8]Id. at 70970-71.
[13] Id. at 70971.
[20] Id. at 70972.
[26] Id. at 70978.