As previously blogged, the agreement between CCJ/COSCA and the Language Access Group of SCLAID is a major milestone for access (Revised Standards here; CCJ/COSCA Resolution here).  Having the courts on the same page as language access advocates changes the whole game, given that implementation really is a court matter, and that enforcement by the DOJ takes a long time, and is subject to legal uncertainties.  (Of course federal law remains independently enforceable by DOJ, regardless of the content or legal force of these ABA Standards or the systems put in place by the states.)

So what is really key about these Standards, and how has the negotiation process changed them?  Does this provide any hints as to how this is going to play out in the future?

Point One:  Aspirational versus Enforceable

The CCJ/COSCA resolution describes the Standards as “aspirational.”  The resolution uses the following language:  “WHEREAS, the revised standards are aspirational and provide guidance for implementation of the standards.”  Indeed, the Comment to Standard One says the same thing: “The Standards are aspirational in nature and are not intended to create legal rights.”  No equivalent language exists in the original draft of the Standards (the one to which CCJ and COSCA objected, and I discussed the ambiguity about this issue in detail in the post that I blogged back at the time of this objection.)

One the other hand, the overall approach of the standards remains to create enforceability. Standard One says,  “As a fundamental principle of law, fairness, and access to justice, and to promote the integrity and accuracy of judicial proceedings, courts should 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.”

So, I read the compromise to mean that there is an aspirational goal of creating an “enforceable system of language access services.”  Given that the ABA has no legal authority, one could say that language access advocates have not given anything up.  On the other hand, the use of “aspirational” means that those defending against attempts to enforce access to language services in a jurisdiction that has not created any system of enforceability can now make the argument that they are not in violation of the Standards since inherent in the concept of aspirationalness is the idea that there is no such thing as a violation.  (This does not, of course impact, except potentially at the very margin and only in the details, the fundamental fact that Title VI remains independently enforceable under Federal law by DOJ).

Note, however, that when a state does meet the aspirational goal of creating an “enforceable system of language access services,” it might well choose, to or be inferred to, have created a private right of enforcement.  Indeed, Standard 2.1 (Courts should promulgate, or support the promulgation of, rules that are enforceable in proceedings and binding upon staff, to implement these Standards) would appear to envision that compliance with the system to be set up would be enforceable in the underlying proceedings themselves, regardless of the private cause of action issue.  This would create a different situation from that under Federal law with respect to the language access regulations, Alexander v. Sandoval, 532 U.S. 275 (2001)(refusing to find private right of action to enforce DOJ disparate impact regulations.)

Two:  Cost Issues

A major issue for the courts seems to have been that the Standards would have required that all services be free, regardless of ability to pay.  In tough economic times, courts regarded this as intrusive, wasteful, and inimical to access overall. (This concern was not made explicit in the earlier objecting CCJ/COSCA resolution, but much was made of the costs and burdens imposed by the Standard.)

The new version of Standard 2.3 recognizes those concerns, reading as follows:

Courts should provide language access services without charge, and may assess  or recoup the cost of such services only in a manner that is consistent with principles of  fairness, access to justice and integrity of the judicial process, and that comports with  legal requirements.

The Comments now add:

The cost of language services, if imposed, should not unduly impact LEP persons. The court may assess or recoup those costs from a well resourced party who has the ability to pay, as appropriate and where allowed by law. Whatever test the court applies to determine if costs should be assessed or recouped, it cannot have a chilling effect on the rights of the LEP person to access the court system (emphasis added).

This seems like a wise compromise, that protects access for those without resources, without allowing ridiculous results, such as the idea of a non-English speaking billionaire getting a free interpreter.  Of course,it will all depend on the interpretation of the phrase “well resourced person.”  However one might reasonably infer that the decision not to use the word “indigent” here was intentional, and that the language emphasizing the need not to chill the right of access makes clear that the test is a practical one, not a formulaic one relying on the prior law of indigency.

To repeat, this agreement as a whole dramatically increases the chances for real progress in this area — particularly with the reality that DOJ is watching and intervening when it feels it is  appropriate.