ABA’s SCAID has now posted its Draft Standards for Language Access in the Courts. The project is described here. The Steering Committee and Project Advisory Group are listed here. There will be an Open Forum/Teleconference on Thursday, May 26, 2011, noon EDT, described here.
This is obviously an important project, and SCLAID is to be congratulated for the inclusiveness of its process, and comprehensiveness of its product. I must add, however notwithstanding my great agreement with the goals and general approach, that I am a bit overwhelmed by the massiveness of the changes this would all imply — and their cost. As most know, the Standards are a response to the issuance by the Civil Rights division of DOJ of a letter to Chief Justices and State Court Administrators drawing attention to the Courts’ obligations under the Civil Rights Act, with respect to language access.
The ABA standards are massive (120 pages including Commentary), and perhaps the biggest issue is what force they have. The Comments say this, under Purpose:
These Standards for Language Access in Courts are intended to assist courts in designing, implementing, and enforcing a comprehensive system of language access services that is suited to the need in the communities they serve. Facilitating access to justice is an integral part of the mission of the courts.
The Comments add, under Structure and Organization:
Standard 1 establishes the imperative that courts must “as a fundamental principle of law, fairness, and access to justice” provide language access services so that courts will be accessible to LEP persons. Standard 1 is therefore stated in mandatory terms. Standards 2‐10 set out different and essential components of a comprehensive system to address the needs of LEP persons in court and court‐related services, and are subdivided to address specific matters included within the overall subject matter of the particular standard. They provide a blueprint for courts to design, implement, and enforce a system adapted to the organization and administration of their court systems, the type of court proceedings they handle, the relative benefits and burdens of different approaches, and the composition and needs of the LEP communities they serve. Standards 2‐10 are therefore phrased in terms of “should” in order to denote that they are to be adapted to specific courts and communities. However, each of Standards 2‐10 is an essential component of a comprehensive and effective system of language access services, and courts will need to implement all of them in achieving the overarching access to justice imperative of Standard 1. Each Standard is accompanied by extended Commentary intended for courts and practitioners. The Commentary gathers legal authority, discusses legal and practical issues that can arise in specific settings as well as strategies for addressing them, identifies best practices, and provides information about additional sources of expertise and assistance.[Bold added.]
Some highlights (with a few initial comments):
- From the Scope discussion (at page 7-8): “In addition, the access to justice imperative of Standard 1 and the need for a comprehensive system for language access that addresses the principles in Standards 2‐10 are equally applicable to all adjudicatory bodies that deal with LEP persons: federal courts, territorial courts, administrative tribunals at the federal, state, and local level, military tribunals, and tribal courts. It is expected that such courts and tribunals also will conduct a review of their operations in the light of these standards and evaluate their systems and services against the access to justice imperative of Standard 1.”
- Also from the Scope discussion on enforceability (at 8): “Courts are encouraged to adopt requirements for language access through legislation, court rules, or administrative orders that are clear, effective, and enforceable.”
- Definition of Court Services (at 10-11). It’s Broad, including self-help services: “Court Services – The full range of court functions, including legal proceedings and other court‐ operated or managed offices with points of public contact. Examples of such services include information counters; intake or filing offices; cashiers; records rooms; sheriff’s offices; probation and parole offices; alternative dispute resolution programs; pro se clinics; criminal diversion programs; anger management classes; detention facilities; and other similar offices, operations, and programs.”
- Definition of Interpreter function (at 11) includes “Consultation setting.”
- Standard 1 (at 16) not only uses “shall”, but talks about an enforcable system: “As a fundamental principle of law, fairness, and access to justice, and to promote the integrity and accuracy of judicial proceedings, courts shall develop and implement an enforceable system of language access services, so that persons needing to access the court are able to do so in a language they understand, and are able to be understood by the court.“
- Legal Authority (at 16-25) The Comments to Standard 1 include a lengthy discussion of legal authority for requiring language access, as well as a shorter summary of policy relating to such legal standards.
- Need for Rules. Standard 2.1 on rules: “Courts should promulgate, or support the promulgation of, rules that are enforceable in proceedings and binding upon staff, to implement these Standards.” The text of Standard 2 itself reads: “Courts should ensure that persons with limited English proficiency have meaningful access to all the services, including language access services, provided by the court.” (Thus arguably, the mandate is only for the “enforceable system of language access services, so that persons needing to access the court are able to do so in a language they understand, and are able to be understood by the court,” of Standard 1 but not for the “ensur[ing language of Standard 2] that persons with limited English proficiency have meaningful access.” Good luck parsing this with the language of the Comment that “each of Standards 2‐10 is an essential component of a comprehensive and effective system of language access services, and courts will need to implement all of them in achieving the overarching access to justice imperative of Standard 1.”
- Comment under Standard 2.2 (at 27) on Notice distinguishes between most frequent and other needs: “Using the most recent language data for their service area, courts should provide written notice in the most common languages spoken and should establish procedures for providing oral notice to individuals who speak languages that are less common.” Standard 2.2 reads: “Courts should provide notice of the availability of language access services to all
persons in a language that they understand.”
- Notice should be at all points of contact with the court. (Comments at 28 .)
- No Charge, Regardless of Financial Status or State Law (at 29-20). Standard 2.3: “Courts should provide language access services without charge.” Moreover, “Both the obligation to provide meaningful access pursuant to Title VI, and the fundamental principle of access to justice, do not allow a court to impose the cost of interpreter services upon either party or to limit the provision of free interpreter services to specific case types. State laws to the contrary are superseded by these requirements. In state courts where the current practice includes an forma pauperis (IFP) standard to qualify for free interpreter services, those practices must be changed to comply with federal law.”
- Earliest Point of Contact. Under Standard 3.1, identification of needs must be at easiest point of contact. “Courts should gather comprehensive language access data as well as individualized language access data at the earliest point of contact.” In the Comments to the above (at 33): “These encounters may occur at the clerk’s office, an information counter, self‐help centers, or other places where the court provides information to the public.”
- Needed Tracking. Comment at 33-34: “(1) the nature of the legal proceeding or event for which an interpreter is needed;(2) the location, time frame, and duration of each event; (3) the estimated number of interpreters needed in the matter; (4) documentation of any conflicts of interest of interpreters; (5) the names of interpreters (including contact information) assigned to each interpreting event; (6) identification of other individuals involved in the case, including attorneys and court‐appointed professionals; and, (7) a system to prioritize or flag a case where there are a limited number of interpreters in the particular language needed which may require special scheduling considerations.” Moreover: “Courts should be careful to ensure that case management systems include not just courtroom services, but also settings outside of the courtroom where language access is needed.”
- The Affirmative Duty is on Courts — Standard 3.3 (at 37): “Courts should establish a process that places an affirmative duty on judges and court personnel to provide language access services if unable to understand a person or if it appears that he or she is not fluent in English.”
- Obligation of Inquiry (Comments to 3.3 at 37): Questions for the judge to ask (examples) : “How did you come to court today? Please tell me about your country of origin. Describe for me some of the things or people you see in the courtroom. What is the purpose of your court hearing today? How did you learn English, and what is most difficult about communicating in English? Tell me a little bit about how comfortable you feel speaking and understanding English.”
- Discussion of Waiver of Interpreter at 37-38. Presumption is against waiver, and judge should try and discover and alleviate concerns (through interpreter.)
- Most Competent/Best Suited Interpreter Services (Standard 4.3 at 42). “Courts should meet their obligation to provide competent interpreter services during all legal proceedings through the use of staff court interpreters and contracted interpreters, who appear either in‐person or through the use of remote telephonic or video technology.” Comment focuses on above standard, not on keeping a presumption in favor of in person interpretation. However, “Telephonic remote interpreter services require specialized equipment at both locations to provide adequate services.” (Comments at 43.)
- Scope of Services. Language in the Comments to 4.4 (“Courts should provide interpreter services that are consistent with interpreter codes of professional conduct”) makes overly broad generalizations about the limitations of interactions with the interpreter: “The code prohibits the giving of advice or otherwise engaging in activities that can be construed as the practice of law. Policies or practices that ask interpreters to go beyond sight translation of forms to explaining forms or court processes violate these provisions.” (In my opinion, this is part of a much bigger discussion of the role of interpreters, and it is important not to assume that any explanation of form or process is equivalent to the practice of law.)
- Standard 5, Court Services. Standard as to inclusion is “contact” with the public. (Comments at 51). “Services included are all those necessary to access the courts, ranging from routine matters such as gathering information about court procedures from a court clerk, to filing pleadings, paying court ordered fines, and using any services incidental to the resolution of a legal matter. Services in which access is required include the following: information counters; websites, services for pro se individuals; court clerk’s offices; intake or filing offices; cashiers; record rooms; security personnel within the courthouse; and offices to pay fines. Courts should also ensure that any screening procedures implemented by a court do not create barriers for LEP persons; for example, security personnel should be provided with signage, video instructions, or a method to contact telephonic interpreters and should be trained on the need for and delivery of these services.”
- External Programs: Comment under Standard 5.2 (“most appropriate manner for providing language access“) at page 53: “[W]here the court relies on an external program to provide essential court functions and that program does not receive federal assistance, the court should ensure that language access services are provided, and should be responsible for the cost of the services.“
- Comment at pge 54 on Impact of Complexity of Interaction: “The complexity of the communication will also determine the appropriate language access 26 service necessary to meet the language needs of the LEP person. Court services and programs range from basic to very detailed. For example, the routine services at a cashier’s window may be handled differently than the more complicated services at a court intake office. Where courts provide some of their information in written form, translating these documents into the most common languages may be adequate, as long as there is also a system for two way communication (if available to English speaking persons) and for communication to an LEPead the translated information182 or speaks a language not included in the translated versions.“
- Anxiety About Overlap between Court Interpreters and Service Interpreters: Comment under Standard 5.2 at 58-59. “Thus, hiring a court certified interpreter to provide services directly, such as to LEP persons in a pro se clinic, would only be feasible where the roles are strictly defined, where the likelihood of working with a litigant in both capacities is reduced to avoid inefficiencies, and where the interpreter is properly trained to disclose all prior contact.”
- Emphasizing the distinction between those who provide information in a differnt language and those who interpret (Comment to Standard 5.2 at page 59). “In some jurisdictions, in response to the overwhelming number of LEP pro se litigants, courts are promoting an expanded role for the interpreter who, in addition to facilitating communication, provides the pro se individual basic information about the court and the nature of the legal proceeding in which he or she is involved. These non‐lawyer staff can provide legal information but are prohibited from the practice of law. Legal information provided may include helping pro se litigants navigate the judicial system, identifying necessary forms, and ensuring that those forms are completed appropriately, at times explaining and clarifying the content, particularly in regards to the court culture. Staff being used in this way are not functioning as interpreters and should never be labeled as such.”
- Technology Outside the Courtroom (relatively limited discussion), Comment at 60. “Technology can play a role in ensuring equal access to the information provided by courts and in court programs. Many court websites provide information, including online forms, e‐filing, and self‐help materials, in English written text. Millions of LEP individuals in the United States are barred from accessing this information. To address this problem, courts can incorporate features that enable LEP users to access the site’s information through use of quality translated materials and interpreted audio and video recordings. Technology to create simple videos and audio recordings is advancing quickly. When courts create an online informational piece, resource, forms, or self‐help materials, they should create and post the non‐English language
versions without significant delay. Any project to create online content for court users should include the development of the same content in the most common languages spoken in the area.“
- Alternative for Non-Critical Services is to Waive Requirement. Standard 6 at 60 (Courts should ensure that persons with limited English proficiency have access to court‐ mandated services, court‐offered alternative services and programs, and court‐appointed professionals to the same extent as persons who are proficient in English“.) Comment Language at 61: “Courts should use the information in this Standard to determine what language access services are needed. Where the court‐mandated or offered service is critical, courts should ensure that language access services are available; however, where language access services are not available and the service is not critical, participation need not be required. This is true for court‐mandated services or programs in both civil and criminal matters. For example, if requiring parents to enroll in parenting classes is part of a custody determination and the classes are not accessible to an LEP individual, then the court may decide to waive the requirement. However, if the services are necessary for the protection of the children due to domestic violence or risk to the children, then an interpreter should be appointed so the parent can take the class.”
- Stanard 7, Support for Written Translations (at 68). “Courts should provide access to translated written information to persons with limitedEnglish proficiency to ensure meaningful access to all court services.” Comment points out this is done less frequently than interpretation. Standard 7.2 recommends establishing Translation Protocol (at 75).
- Standard 8 Deals with Qualifications and Certification of Language Access Service Providers.
- Stanard 9 Deals with Training.
- Standard 10 Covers Statewide Coordination (at 110). “Each court system should establish a Language Access Services Office to coordinate and facilitate the provision of language access services.” Its tasks would include coordination, rules, compliance monitoring, certification, resource development etc.
It will be fascinating to see how this all works out.
The language access obligations of federal funds recipients were created in July 2, 1964 with the passage of Title VI of the Civil Rights Act. Since then there have been cases and regulations that further clarify this obligation and what it means in terms of national origing discrimination. Thirty six years after passage of the Act, President Clinton issued and executive order, in 2000 Execuive order 13166. This order required each federal department to issue regulations. Some agencies like the Department of Health and Human Services, which funds from Medicare, Medicare, mental health, and a myriad of other national programs, heeded the order and started to work on this. They continue to make significant progress in ensuring that agencies do not have practices/policies that delay, reduce, or deny services on the basis of national origin. Other agencies and departments did not or were slower in moving to comply with Title VI. The August letter of 2010, was yet another attempt by DOJ to community to the DOJ funded agencies their need to move toward compliance. This letter came 10 years after the Executive order and 46 years after the initial passing of the law. In these past 46 years there have been years were state coffers and court funding has been better than it is today. In the past 10 years there have been opportunities to improve the ability of courts to communicate with LEP court users. Some court systems some strides and started down this path and those examples are included in the Standards. The Standards offer a roadmap. Rather than feeling overwhelmed, readers of the standards need to keep in mind that the road of 1000 miles start with the first step. As the demographics across the country change and resources for legal aid continue to dwindle, courts will have to interface more directly with the public at large. Making sure that they understand the requests ligitants make of them and that the orders are based on a correct understanding of the request will improve the effectiveness of orders and other services mandated by courts. The costs of courts and adjudicatory systems not being unable to communicate with the parties, particularly if those parties are without representation, are far greater than the costs of not taking the first steps, evaluating, modifying and improving. This is both in human terms (loosing a child, getting thrown out of your home, loosing your house to the bank) and also in terms of making sure litigants get orders that they know are based on their circumstances, that the process was fair and open to all involved regardless of national origin, and being able to understand what is required of them and what the next steps are should additional court action be needed. Additional information about Title VI, can be found at http://www.lep.gov. I encourage anyone reading the Standards to read the standards with fresh eyes and read through them to find great new ideas and suggestions and as a document that represent much thought and discussion and debate by a very diverse group representing courts, judges, interpreters, legal aid advocates, etc. July 2 , it will be 47 years since the Act was signed. Let us not wait another 47 years or another 11 years (since Executive Order 13166) to make it so. In the interest of full disclosure: I was part of the working group.