M.E.L.L.F.I.N. General Meeting September 18, 2015 Presenter: Virginia Rosa, Attorney, Legal Aid Bureau.

M.E.L.L.F.I.N. General MeetingSeptember 18, 2015

Presenter:• Virginia Rosa, Attorney, Legal Aid Bureau

Addressing Language Barriers and the Needs of LEP Communities

Introduction

Overall Language Access Rights & Obligations

Language Access Rights & Obligations with respect to Education

Resources available in Maryland

Question & Answer Period

Maryland’s diverse population – a few statistics

• About 13.5% of Maryland’s population or almost 775,000 thousand Marylanders are foreign born.

• 61% of this population is concentrated in Montgomery, Prince George’s and Baltimore counties

• Over 117 different languages are spoken in Montgomery county alone.

• Approximately 340,000 Maryland residents speak English less than very well.

Source: U.S. Census Bureau, 2007-2011 American Community Survey 5 Year Estimates, “Selected Social Characteristics in the United States.

Source: U.S. Census Bureau, American Community Survey 2005-2007

Foreign Born Population

40%

32%

16%

10% 1%

Areas of Origin

Latin AmericaAsiaAfricaEuropeOther

Language Access Rights Limited English Proficiency (LEP)

• LEP: Limited English Proficiency

• LEP Individuals: Those persons, who cannot speak, read, write or understand English well enough to interact effectively with service agencies.

• Recipient: Government agency that receives Federal financial assistance and/or operates a "program or activity" whose conduct is subject to Title VI of the Civil Rights Act

Definitions:

Lack of translated information and oral assistance means that people with Limited English Proficiency are:

◦ less likely to understand and exercise their rights and obligations,

◦ less able to access government services; and,

◦ less able to achieve economic stability.

FACTS:

Title VI of Civil Rights Act of 1964 (“Title VI”)1

Food Stamp Act of 19772

Equal Educational Opportunities Act of 19743

Public Health Service Act4

Federal Language Access Laws

1 42 U.S.C. § 2000d (2004).2 7 U.S.C.A. § 2020(c).

3 20 U.S.C. § 1706.4 42 U.S.C. § 254 b(b)(1)(A)(i)(III)(IV).

Section 601 provides:

″No person in the United States shall, on ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal Financial Assistance″.9

Title VI

9 42 U.S.C. § 2000d (2004).

The Supreme Court has held that undocumented aliens are considered "persons" under the equal protection and due process clauses of the Fifth and Fourteenth Amendments. Plyler v. Doe10; Mathews v. Diaz11, etc.

To whom does Title VI apply?

10 Plyler v. Doe, 457 U.S. 202 (1982).11 Mathews v. Diaz, 426 U.S. 67 (1976).

• Government agencies (and other recipients) with federally funded program or services are required:

o to offer interpreters to LEP clients for their services at no cost;

o to translate vital documents into the most commonly spoken languages of clients;

o to inform LEP clients of their right to a free interpreter through:

posting multilingual signs; or

the use of "language identification cards" listing many languages (the client then points to the language that he or she speaks).

• Under Title VI, recipients may not:

o Ask an individual to bring an interpreter to receive services.

o Allow an individual to use a minor as an interpreter.

Implications of Title VI

Limited English Proficiency: A Federal Interagency Website, Federal Agency LEP Guidance and Language Access Plans (May 7, 2009), available at http://www.lep.gov/guidance_index.html

Several states have passed language access laws.

In 2002, Maryland passed the “Equal Access to Public Services for Individuals with Limited English Proficiency”

(“MD Language Access Law”).5

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State Language Access Laws

5 MD Code., State Gov’t, § 10-1101-1105.

The statute provides a mandatory timetable for specific state agencies to take “reasonable steps” to provide equal access to LEP individuals.

13

MD Language Access Law

MD Code., State Gov’t, § 10-1101-1105.

“Equal access” is defined as:

to be informed of, participate in, and benefit from public services offered by a State agency at a level equal to English proficient individuals.

MD Language Access Law

MD Code Ann., State Gov’t. § 10-1102(b).

“Reasonable steps” to provide equal access to government services include:

oral language services

translation of vital documents

any additional methods or means necessary to achieve equal access

MD Language Access Law

MD Code., State Gov’t, § 10-1101-1105.

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Education Department of Education’s initial guidance

under Title IV:

“School districts have the responsibility to adequately notify national origin-minority group parents of school activities which are called to the attention of other parents. Such notice in order to be adequate may have to be in a language other than English.”

35 Fed. Reg. 11595, July 18, 1970.

ALWAYS:1. Assist LEP clients with identifying that they need an interpreter by using the

“Point to the Language You Speak” List

2. When LEP client is identified, offer phone or in-person interpretation immediately

3. Accept an application for assistance and conduct an interview with customers who do not speak English or are hearing impaired

4. Use the services of an interpreter if you cannot conduct an interview because of the customer’s language or hearing difficulties

5. Interpreter= NO CHARGE!

6. Note the person’s request for language assistance in the case record

Good Practices

NEVER:

1. NEVER ask an LEP client to return to the office with the own interpreter

2. NEVER ask ANY family member or friend to serve as an interpreter

3. NEVER ask CHILDREN to serve as interpreters

4. NEVER turn a client away for needing an interpreter

5. NEVER ask for SS #s of any family member that is not applying for benefits

Practices continued…

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Education In Lau v. Nichols the United States Supreme

Court required a school district to take reasonable steps to provide LEP students a meaningful opportunity to participate in federally funded educational programs.

Later in 1974 the Equal Educational Opportunity Act (EEOA) included a key provision from the Lau decision…

Lau v. Nichols, 414 U.S. 563, 566 (1974).

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Equal Educational Opportunities Act10

No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by the failure to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.

20 U.S.C.A. § 1703(f).

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No Child Left Behind Act

◦ School districts must promote parental and community participation in language instruction educational programs for the parents and communities of limited English proficient children.11

◦ School districts must provide equal opportunities for the participation of parents with limited English proficiency. 12

11 20 U.S.C.A. § 6812.

12 20 U.S.C.A. § 6312.

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No Child Left Behind Act◦ If a child is identified for participation in a

language instruction educational program, the notice to the parents must include: the reasons their child was identified as LEP;

the child's level of English proficiency, how such level was assessed, and the status of the child's academic achievement;

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No Child Left Behind Act the methods of instruction used in the program

in which their child is, or will be participating, and the methods of instruction used in other available programs;

how the program will meet the educational strengths and needs of their child;

how such program will specifically help their child learn English;

the expected rate of transition from such program into classrooms that are not for LEP children. 13

13 20 U.S.C.A. § 6312(g)(1)(A).

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No Child Left Behind Act◦The notice must be in an understandable

and provided in a language that the LEP parents can understand.14

◦Public schools must also develop an effective means of outreach “to parents of limited English proficient students to inform the parents regarding how the parents can be involved in the education of their children, and be active participants in assisting their children to attain English proficiency” 15

◦This includes notice of opportunities for regular meetings for the purpose of formulating and responding to recommendations from parents of students. 15

14 20 U.S.C.A. § 6312(g)(1)(B)(2).

15 20 U.S.C.A. § 6312(g)(1)(B)(4).

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DOJ / Dept. Ed OCR Letter

◦The DOJ Civil Rights Division and the U.S. Dept. of Education Office of Civil Rights issued joint guidance to state educational agencies, school districts and public schools regarding their language access obligations.

◦The letter issued on January 7, 2015.

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DOJ / Dept. Ed OCR Letter◦The letter addresses:

Identifying and assessing all EL students Providing EL students with a language assistance

program Staffing and supporting an EL program Providing meaningful access to all curricular and

extracurricular programs Avoiding unnecessary segregation of EL students Evaluating EL students for special education

needs Meeting needs of EL students who opt out Monitoring and Exiting EL students from EL

programs Evaluating the effectiveness of EL programs Ensuring meaningful communication with LEP

parents

For violations with respect to food stamps:

U.S. Department of AgricultureDirector, Office of Adjudication and

Compliance1400 Independence Avenue, SW

Washington, DC 20250-9410

(800) 632-9992(202) 260-1026

For violations with respect to temporary cash assistance,

medical assistance, etc.

U.S. Department of Health & Human Services

150 S. Independence Mall West, Suite 372Philadelphia, PA 19106

(215) 861-4441(215) 861-4440

(215) 861-4431 (Fax)

HHS OCR Region III: DE, DC, MD, PA, VA, WV

For violations with respect to education

U.S. Department of Education100 Penn Square East,

Suite 515Philadelphia, PA 19107

(215) 656-8541 (215) 656-8605 (Fax)

[email protected]

DE, MD, KY, PA, WV

Overview of Maryland’s Resources and Initiatives

Statewide Language Access Contracts DHR initiatives

◦ Revamping training◦ Identifying language access coordinators◦ Coordinating a statewide toolkit

Statewide Resources

Statewide Language Access Contracts◦ Three contracts

By telephone On-site at your location Written document translation

◦ Rates negotiated by Department of Budget and Management for all state agencies

◦ Rates also available to Maryland non-profits◦ http://www.dbm.maryland.gov/contractors/swcontracts/

Pages/LanguageContractHome.aspx

Statewide Resources

Non-Profit Interpreter Banks◦ Ayuda -- Over 111 legal interpreters that speak over 42

languages (including ASL and CDI interpreters as well) David Steib -- [email protected]

◦ Asian-Pacific American Legal Resource Center Legal Interpreter Project covers: Bengali, Cantonese, Dari, Hakka,

Hindi, Korean, Indonesian, Mandarin, Pashto, Sinhalese, Teo Chew, Urdu, and Vietnamese.

[email protected] ◦ Foreign-born Information Network –

Interpreters cover 19 languages most prevalent in Howard County Laura Pfeifer -- www.firnonline.org

Statewide Resources

Language Access Toolkit◦ DHR created this tool to summarize legal authorities and best

practices around language access The Toolkit provides materials on how to:

conduct a self-assessment on how to make services accessible to LEP individuals

develop a language access policy and plan provide signage and user-friendly tools equip your workforce and leverage data to drive results

Available at: http://www.publicjustice.org/uploads/file/pdf/Language_Access_Toolkit_216c.pdf

Statewide Resources

Language Access Task Force – clearinghouse for anyone who spots language access issues and wants to brainstorm solutions◦ Meets bimonthly (4th Tuesday of even months)◦ Veronique Felix – [email protected]

Governmental Access Work Group◦ Public-Private Partnership between DHR and non-profit

service providers to improve language access at DHR and other government agencies

◦ Camilla Roberson – [email protected]