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A new Executive Order signed by President Clinton, requiring federal
agencies to provide “programs and activities normally provided in
English” to non-English-speaking residents, will effectively elevate the
inability to speak English as “a protected civil right,” say critics.

The order, signed Aug. 11 while Clinton was in Los Angeles preparing
to attend the Democratic National Convention, is listed as

EO 13166,
and was entered into the Federal Register Aug. 16.

Titled, “Improving Access to Services For Persons With Limited English Proficiency,” the order calls on the federal government “to improve access to federally conducted and federally assisted programs and activities for persons who, as a result of national origin, are limited in their English proficiency (LEP).”

The order requires that the “Federal Government provides and funds an array of services that can be made accessible to otherwise eligible persons who are not proficient in the English language. To this end, each Federal agency shall examine the services it provides and develop and implement a system by which LEP persons can meaningfully access those services consistent with, and without unduly burdening, the fundamental mission of the agency.”

Any agency not complying with the order would be found in violation of title VI of the Civil Rights Act of 1964 — that is, of discriminating on the “basis of national origin.”

The order also notes that the Justice Department has already been instructed to write and issue guidelines that agencies “must follow to ensure that the programs and activities they normally provide in English are accessible to LEP persons and thus do not discriminate …”

Federal agencies have four months to develop their own “agency specific” guidelines, which must then be submitted to the Justice Department for approval.

“The Department of Justice shall consult with the agencies in creating their guidance and, within 120 days of the date of this order, each agency shall submit its specific guidance to the Department of Justice for review and approval,” said the order. “Following approval by the Department of Justice, each agency shall publish its guidance document in the Federal Register for public comment.”

Agencies developing new guidelines per the president’s order will report to the Civil Rights Division within the Justice Department — the same division headed by Asst. Attorney General Bill Lan Lee, who was appointed to his post by Clinton during congressional recess and over the objections of some members of Congress.

“This policy guidance does not create new obligations, but rather, clarifies existing Title VI responsibilities,” said a

Justice
Department policy statement
outlining the order’s requirements.

Clinton’s order, Justice said, “is being issued pursuant to authority granted by Executive Order 12250 and Department of Justice Regulations. It addresses the application of Title VI’s prohibition on national origin discrimination when information is provided only in English to persons with limited English proficiency.”

A White House web search for EO 12250 brought up documents mentioning the order, but not describing it. The actual order, which appears to be directed specifically towards the attorney general’s office, did not come up at the White House site or at another government archives site.

Justice officials said that the new executive order may not universally apply in all cases.

“Title VI [of the 1964 Civil Rights Act] does not require recipients to remove language barriers when English is an essential aspect of the program (such as providing civil service examinations in English when the job requires person to communicate in English),” said the department policy statement.

“Similar balancing tests are used in other nondiscrimination provisions that are concerned with effects of an entity’s actions,” the statement said. “For example, under Title VII of the Civil Rights Act of 1964, employers need not cease practices that have a discriminatory effect if they are ‘consistent with business necessity’ and there is no ‘alternative employment practice’ that is equally effective.”

Nevertheless, according to

English First,
a Virginia-based group that advocates making English the official language for all government and educational institutions in the U.S., the new executive order is rife with problems.

Jim Boulet, executive director of English First, pointed to the cost factor of compliance — which would be expensive enough for government compliance — as well as major ramifications the order may have for private businesses as well.

“The order, as interpreted by the Office of Civil Rights in the Department of Justice, requires every recipient of federal funds, including ‘a federally assisted zoo or theater … to take reasonable steps to provide meaningful opportunities for access’ by Limited English Proficient individuals,” Boulet said. “What might these reasonable steps consist of?”

Boulet compared the new order, and Asst. Attorney General Lee’s definition of what it means, to the effects on law and society caused by the Americans With Disabilities Act.

“The track record of the civil-rights industry and its allies in government suggests more good reason for concern,” Boulet said. “The Americans with Disabilities Act has provoked litigation over alcoholic airline pilots and half-blind truck drivers. A Rand Corporation study found that an employer can expect to spend $12,000 or more defending against these frivolous lawsuits.”

Essentially, Boulet said, “the order makes the inability to speak English a protected civil right.”

According to the Justice Department’s descriptive policy statement:

“[T]he failure to address language barriers may not be simply an oversight, but rather may be attributable, at least in part, to invidious discrimination on the basis of national origin and race. While there is not always a direct relationship between an individual’s language and national origin, often language does serve as an identifier of national origin …

“A federal aid recipient’s failure to assure that people who are not proficient in English can effectively participate in and benefit from programs and activities may constitute national origin discrimination prohibited by Title VI.”

Boulet said just one non-English-speaking person who enters a business may be enough to trigger a Justice Department response.

“Programs that serve a few or even one LEP person are still subject to the Title VI obligation to take reasonable steps to provide meaningful opportunities for access,” he said.

And as is typical, Boulet noted, the language of the Justice Department regulations enforcing Clinton’s order is ambiguous.

“What are the ‘reasonable steps’ defined as? They are going to be defined as anything some lawyer says is or should be ‘reasonable.’”

Finally, Boulet pointed out, translations from English into other languages of “pamphlets and other written documents” will not be enough to satisfy Justice. According to the regulatory policy statement, “[A] recipient’s obligation to provide meaningful opportunity is not limited to written translations. Oral communication between recipients and beneficiaries often is a necessary part of the exchange of information.

“Thus, a recipient that limits its language assistance to the provision of written materials may not be allowing LEP persons ‘effectively to be informed of or to participate in the program’ in the same manner as persons who speak English,” the regulations said.

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