Happy 50th Birthday Lau v. Nichols, the Landmark Supreme Court Language Access Decision

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50 years ago, the U.S. Supreme Court established for the first time in U.S. history the federal civil right to language access and an affirmative legal requirement for federally funded organizations to provide such access to Limited English Proficient (LEP) people. The Court held that Title VI of the Civil Rights Act of 1964 (42 United States Code § 2000d), which prohibits discrimination based on race, color, or national origin, protected people from discrimination because they do not speak or read English.

The Court unanimously decided that:

“Students who do not understand English are effectively foreclosed from any meaningful education” without language assistance.

Finding national origin discrimination against Chinese-speaking students “obvious,” the Court established the federal civil right to language access and an affirmative legal requirement for language assistance.

The Court  ruled that “[w]here inability to speak and understand the English language excludes national origin-minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students.”

Lau vNichols, 414 U.S. 563 (1974)

 

In 1974, when the Court decided Lau, there were over 1,800 students of Chinese descent enrolled in the San Francisco Unified School District who did not speak English, and who were not receiving any instruction to help them learn English. Noting the school district’s failure to teach these students the skills necessary to access the school’s educational program, which was taught entirely in English, the Court decided that the district had made “a mockery of public education.”

Additionally, the Court opined that “there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum.” Students who did not speak English were “certain to find their classroom experiences wholly incomprehensible and in no way meaningful.”

Since the Lau decision, federal agencies and many other courts have cited and applied the Supreme Court ruling to other federally funded programs and activities beyond public education, including health care , law enforcement, state courts, airports, public transportation, and more. The Lau decision is now well-established precedent that has spawned myriad federal enforcement actions, guidance documents, and regulations to further imbed Lau’s dictates into American life and law.

 

For example, since 1974, federal courts have repeatedly held that language-based discrimination is national origin discrimination prohibited by Title VI. See, e.g.,

  • Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1116-17 (9th Cir. 2009) (denying challenge to federal agency’s guidance on LEP access and noting that Lau concluded that “discrimination against LEP individuals was discrimination based on national origin in violation of Title VI”);
  • Serna v. Portales Mun. Schs., 499 F.2d 1147, 1152-54 (10th Cir. 1974) (school district’s failure to rectify language deficiencies to provide LEP students with meaningful education violates Title VI);
  • S. v. Maricopa Cnty., 915 F. Supp. 2d 1073, 1079-80 (D. Ariz. 2012) (quoting Lau and relying on federal LEP guidance in a case alleging discrimination against LEP prisoners);
  • Jones v. Gusman, 296 F.R.D. 416, 454 (E.D. La. 2013) (in case about prison conditions, noting that “longstanding case law, federal regulations and agency interpretation of those regulations hold language-based discrimination constitutes a form of national origin discrimination under Title VI”);
  • Faith Action for Community v. State of Hawaii, (D. Hawaii, 2014, CIVIL Action NO. 13-00450 (“Language is close[ly related to] national origin [and] restrictions on the use of languages may mask discrimination against specific national origin groups or, more generally, conceal nativist sentiment) ; and
  • Nat’l Multi Hous. Council v. Jackson, 539 F. Supp. 2d 425, 430 (D.D.C. 2008) (Longstanding Justice Department regulations also expressly require communication between funding recipients and program beneficiaries in languages other than English to ensure Title VI compliance.”)

 

In 2000, President Clinton signed Executive Order 13166. This Order extended Lau’s reach and required every federal agency that provided financial assistance to state, local, nonprofit, and other entities to identify the need for language services to LEP people and to provide those services to enable “meaningful access “ to federally subsidized programs, services, and activities.

In addition, the Executive Order requires federal agencies to issue guidance to their recipients to ensure a better understanding of their legal obligations to take reasonable steps to provide meaningful access to LEP persons. Thus, the Department of Justice first issued guidance in 2002 for law enforcement, juvenile justice, district attorneys, state courts, and a variety of other recipients of federal funds. Other agencies have issued guidance to housing, social services, employment, transportation, parks and recreation, and a myriad of other types of state and local agencies to ensure that they understood their obligation to take reasonable steps to provide meaningful access to LEP persons they encounter or serve.

 

Since the 24-year-old Executive Order, U.S. Department of Justice has issued regulations requiring federal funding recipients take reasonable steps to communicate with LEP persons in languages other than English to ensure meaningful access under Title VI. 28 Code of Federal Regulations § 42.405(d)(1) (1976).

These regulations require that federal funding recipients “take reasonable steps” “in appropriate languages” so that LEP people are effectively “informed of” or able to “participate in” the recipient’s program. DOJ also has provided guidance to federal agencies on the standards that their funding recipients must follow to ensure programs are accessible to LEP persons.

So, Happy 50th Birthday, Lau v. Nichols, the Court decision that recognized the critical salience of language access to people who cannot read or write English. The words of the Supreme Court in establishing the right to language assistance resonate loudly today:

“Any ability grouping or tracking system employed by the school system to deal with the special language skill needs of national origin minority group children must be designed to meet such language skill needs as soon as possible, and must not operate as an educational dead-end or permanent track. Respondent school district contractually agreed to comply with title VI of the Civil Rights Act of 1964 . . . and all requirements imposed by or pursuant to the [Title VI regulations].”

 

Senator Hubert Humphrey, during the floor debates on the Civil Rights Act of 1964, said:  “Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in … discrimination.”

 

Senator Humphrey’s speech informs the Lau decision, with his words ringing true 50 years later.

 

 

© Bruce L. Adelson 2023. All Rights Reserved The material herein is educational and informational only.  No legal advice is intended or conveyed.

Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise.  Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.  Mr. Adelson is a faculty member at the Georgetown University School of Medicine and University of Pittsburgh School of Law where he teaches organizational culture, implicit bias, cultural and civil rights awareness.

Mr. Adelson’s blogs are a Bromberg exclusive.

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