Wednesday, August 18, 2010
Assistant Attorney General Tom Perez this week reminded state court chief justices and administrators of their obligation to provide "meaningful access" for individuals with limited English language proficiency.
The obligation comes from the conditional spending measures in Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d et seq., and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. Sec. 3789d(c), both of which prohibit national origin discrimination by federal fund recipients, and E.O. 13166 (2000), which requires federal agencies to "work to ensure that recipients of Federal financial assistance . . . provide meaningful access to their [applicants with limited English proficiency]." The Supreme Court ruled in Lau v. Nichols in 1974 that failure to take measures to provide access to individuals with limited English proficiency is a form of national origin discrimination banned by Title VI.
Perez also delineated some of the ways in which state courts are failing to meet their obligations: limiting the types of proceedings for which interpreter services are provided; charging interpreter costs to a party; and restricting language services to the courtroom (and not court offices and other court personnel).
Congress and the president effectively banned all discrimination against individuals with limited English proficiency in state courts through conditional spending (because all state courts receive some federal funding and thus accept the non-discriminatory condition). Because state courts "contractually agreed" (quoting Lau v. Nichols) to the non-discrimination provisions as a condition of receiving federal funds, they are bound by them, notwithstanding state law to the contrary. (As Perez writes, "The federal requirement to provide language assistance . . . applies notwithstanding conflicting state or local laws or court rules.") As a conditional spending requirement, there is no Tenth Amendment problem. See South Dakota v. Dole (stating the requirements for federal conditional spending programs).
But Congress could also almost certainly achieve this result directly if it wished--by outlawing discrimination in state courts under its Fourteenth Amendment, Section 5, authority. The Supreme Court upheld just such a law in Tennessee v. Lane in 2004--Title II of the Americans with Disabilities Act, which outlawed discrimination against individuals with disabilities in access to the state courts.