The Civil Rights Division of the Department of Justice has sent a letter to the North Carolina Courts as part of its investgatory and enforcment process with respect to Language access.  The letter and accompanying materials are here. (Hereafter letter.  The Attached Report and Findings are similarly cited)  The issue has gotten substantial press coverage.

Rather than get into the details of the dispute, I would like to point out a few interesting points about the approach that the Civil Rights Division is taking.

1. DOJ does acknowledge that financial burdens and ability to comply are relevant to the reasonableness of the state’s positions.  “Adequate funding is a vital aspect of compliance, and we recognize that many state and local court systems around the country are struggling with budgetary constraints. The costs of services and the resources available to the court system are part of the determination of what language assistance is reasonably required in order to provide meaningful access. See Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455, 41,460 (June 18, 2002). However, fiscal pressures are not a blanket exemption from civil rights requirements, and our investigation has determined that financial constraints do not preclude the AOC from taking further reasonable steps to comply with its federal non-discrimination obligations, for several reasons.”  Letter at p. 2.
2. In make the impact of financial constraints, the Department is analyzing the costs of additional services, relative to the state’s court budget.  “First, according to the AOC’s Senior Deputy Director, the AOC has estimated the cost of expanding interpreter services to be approximately $1.4 million per year. A review of certified budgets revealed that $1.4 million would have been 0.3% of the AOC’s fiscal year 2011 certified budget of $463.8 million. See State of N.C., Office of State Budget and Mgmt., Post-Legis. Budget Summary 2009-2011, at 200 (2010).”  Letter at p. 2-3).
3. DOJ is, as it must, firmly rejecting state assertions of state law as a defense against what DOJ views as Federal obligations:  “I am in receipt of your March 6 letter, in which you acknowledged your sensitivity to the need for interpreters in providing access to North Carolina courts. I also appreciate your willingness to work in good faith to resolve these issues. I respectfully disagree with your observation that “there appears to be a misunderstanding or failure of communication between the Judicial Branch of North Carolina and [our] office.” In responding to our concerns regarding compliance with federal civil rights law, you have been consistent in asserting that state-law barriers and financial constraints prevent you from expanding interpreter services. We respectfully disagree with your assessment that a state law supersedes and eliminates your civil rights obligations under federal law as a recipient of federal financial assistance. We are quite willing to explain further our legal position that federal law preempts the state-law provisions that you have cited as a barrier to compliance.”  Letter at p. 3.
4. However DOJ is increasing its leverage by referencing the Safe Streets Act.  The letter asserts that finding of a violation of a state’s obligations under that Act allows for administrative procedures leading to suspension of certain funding. ” Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. §§ 2000d to 2000d-7, the Omnibus Crime Control and Safe Streets Act (Safe Streets Act), 42 U.S.C. § 3789d(c), and their implementing regulations, 28 C.F.R. Part 42, Subparts C & D, together provide that programs or activities receiving federal financial assistance may not discriminate on the basis of race, color, national origin, religion, or sex.”  Attached Report of Findings at p. 1.  “In addition, the United States may initiate administrative procedures to trigger recovery, suspension, or termination of federal funding from DOJ by making a formal determination of a Safe Streets Act violation or by making a determination, under Title VI, that compliance can not be secured by voluntary means.” Letter at 4.

While this all suggests the potential for an increase in tension after a period in which there seemed to be more consensus, some of the elements in the letter as described above suggest a possible flexibility on the part of DOJ that might enable the process of improving language access to move forward with a good spirit.  (It also invites discussion.)

If I have got this wrong, I welcome folks pointing that out.