A somewhat complicated picture is emerging about the progress of the ABA language Access Standards. The bottom line is the ABA House of Delegates has postponed consideration of the Standards to the February 2012 meeting, following a resolution from the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA).
As I understand it, there are going to be ongoing discussions to try to develop a modified document by the November deadline for matters to be considered in February 2012.
This action follows the passage by CCJ and COSCA last week of a Joint Resolution opposing passage of the Standards in their current form, and suggesting a Summit and a Roundtable on the topic.
The Conferences’ opposition to the passage of the Standards in their current form focused particularly on arguments expressed in the Resolution that:
“The proposed standards are based upon unsettled fundamental legal premises;”
“The proposed standards place the entire responsibility for implementation on the state courts without placing corresponding responsibilities on the federal judicial system or state administrative adjudicatory agencies;”
“The unprecedented fiscal crisis facing state courts places severe constraints on the ability of courts to provide services that are not constitutionally mandated;”
“The proposed standards do not sufficiently recognize the limitations on state court authority and the requirements of separation of powers;”
“The proposed standards mandate providing interpreters in such non-court settings as depositions, witness interviews, and the like;”
However, it is very important to note that the Conferences:
“Reaffirm[ed] their commitment to access to justice for limited English proficient individuals and urge[d] their members to take a leadership role to identify and to address gaps in language access services in their respective jurisdictions.”
Speaking strictly only for myself, I would like to observe that while the delay may be disappointing to language access advocates, the support of the courts is critical to giving any real meaning to the Standards, and so the wait should turn out well worthwhile. Conversely, it is very important to the courts to have Standards that are practicable and provide useful guidance.
My own view is that there are two main inter-related issues that need to be resolved in these discussions. The first is whether the Standards are mandatory or aspirational. The Standards attempted a compromise by describing the only mandatory Standard as Standard one:
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.
However, other language seems to create ambiguity. Here, for example is the Structure and Organization discussion from the Commentary to Standard One.
“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 and the type of court proceedings they handle, and to discuss the relative benefits and burdens of different approaches, in light of 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.” (Underlining added.)
The second issue relates to “reasonableness” and cost. It seems to me that there is in the Standards a rigidity as to issues of cost that is making life very hard for the courts in a time of shrinking resources and competing demands. I hope that the ultimate product will be more respectful of these pressures, while maintaining the clear and appropriate focus on the ultimate issue: accessibility, regardless of language status.
But the bottom line remains the same: the state courts are deeply committed to language access, and this is surely excellent and important news. Let’s hope that a period of discussion will result in Standards that retain the force and urgency of the access vision, and show how it can be achieved, while being respectful of the real world needs of the courts.