Justice Department and North Carolina State Courts Reach Agreement to Resolve Decade-Long Discrimination Complaints

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On October 25, the U.S. Department of Justice (DOJ) announced a civil rights settlement agreement with the North Carolina state court system, represented by the N.C. Administrative Office of the Courts (NCAOC or AOC). According to DOJ:

“This agreement resolves Justice Department findings that the NCAOC failed to provide LEP court users with meaningful language access to court proceedings and other important court services in violation of Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from discriminating on the basis of race, color or national origin. The department found that the lack of language services resulted in longer incarcerations, conflicts of interests in criminal proceedings and barriers to important civil protections in domestic violence and child custody proceedings.”

North Carolina state courts receive federal funding from DOJ. Title VI of the Civil Rights Act of 1964 prohibits discrimination based  on race, color and national origin, which corresponds to discrimination based on spoken language or limited English language proficiency. If a federal funding recipient violates Title VI, DOJ first encourages voluntary compliance. If this cannot be achieved, DOJ may begin federal fund termination proceedings.

The North Carolina case began in 2012 with discrimination complaints against the AOC. In a March 8, 2012 DOJ Letter of Findings to the AOC:

“[W]e have determined after a comprehensive investigation that the AOC’s policies and practices discriminate on the basis of national origin, in violation of federal law, by failing to provide limited English proficient (LEP) individuals with meaningful access to state court proceedings and operations. The AOC’s policies and practices have significant consequences for LEP individuals who are parties or witnesses to North Carolina state court proceedings.

Among the harms we identified in the course of our investigation are longer incarceration as a result of continuances caused by the failure to locate an interpreter; serious conflicts of interest caused by allowing state prosecutors to interpret for defendants in criminal proceedings; requiring pro se and indigent litigants to proceed with domestic violence, child custody, housing eviction, wage dispute, and other important proceedings without an interpreter; and other barriers to accessing court proceedings and other court operations.

These harms are the function of not only a state interpreter policy that is unduly restrictive, but also of the failure to implement even this limited policy according to its terms. We further found that the AOC is aware of the harm caused by its court policies and practices on LEP individuals. The Civil Rights Division conducted this investigation after receiving complaints alleging national origin discrimination in the North Carolina state courts.”

The 2022 agreement resolves a long running, decade-long investigation of the AOC, with myriad Title VI complaints being filed since DOJ released its 2012 letter.

As DOJ states in the current settlement agreement, DOJ received a new national origin discrimination complaint in 2016. This complaint alleged that the AOC was not providing Title VI meaningful access to LEP parties in state district court proceedings. The complainant alleged that the AOC was not supplying “Spanish language versions of guilty plea forms in court rooms, timely assigning interpreters to avoid delay, providing interpreters for the criminal mediation program, or providing adequately skilled interpreters or appropriate equipment to support telephone interpreting.”

As DOJ further explains in the new 2022 settlement agreement:

“DOJ resumed its investigation in 2017, and informed the NCAOC of its concerns in meetings held in January 2018 and May 2019 and in a letter dated October 9, 2019.

That letter cited dozens of incidents reported to or observed by DOJ in which persons who are LEP were denied services or access to court or faced substantial delays not encountered by English speakers. The letter noted that the continued problems reflected failure of judges and staff to follow existing policies; the need to further strengthen court policies; and weaknesses in managing interpreters, translated resources, and monitoring.”

To remedy multiple Title VI discrimination and language access complaints, the AOC agrees in the 2022 settlement to the following:

  1. Reestablish and reconvene the Language Access Stakeholders Committee.
  2. Ensure that NCAOC gathers and analyzes telephone, in-person, and video remote interpreter data.
  3. Review and revise the interpreter assignment system and consider methods to reduce reliance on requests from LEP parties and their lawyers.
  4. Revise the current language access and court interpreter complaint processes to make clear to all involved that retaliation against complainants is prohibited.
  5. Compile and transmit an inventory of all written materials and web content that may be of use to LEP parties that is not yet translated, and share a translation progress report every six months.
  6. Translate the interpreter request form and any website version into Spanish, Vietnamese, and other languages as appropriate, distribute the translated paper versions to all court clerks, and urge court clerks to display these translated forms conspicuously in public-facing areas of all courthouses.
  7. Post all interpreter request forms on its websites.
  8. Produce and distribute multilingual signs in all courthouses and on court websites that conspicuously inform people of the availability of qualified court interpreters in proceedings, the availability of appropriate language access services in court operations, and how to obtain those language access services.
  9. Review the manner in which video proceedings are initiated and conducted with LEP people trying to access court programs, activities, and services.
  10. Implement a plan to conduct a pilot project on video remote interpreting system(s) for in-court proceedings and operations.
  11. Provide a “refresher” language assistance services training for current judicial officials and other court personnel across the state, which is offered twice per year, and within six months for new court employees who interact with the public.
  12. Issue guidance that explains the responsibilities and skills of bilingual staff, how to assess language skills when hiring bilingual staff, and how bilingual staff have a different role and language skills than authorized court interpreters.
  13. Devise a process to conduct periodic language access audits around the state and conduct an initial pilot audit of at least five judicial districts, and
  14. Gather and analyze interpreter usage data to identify areas for improvement.

The 2022 agreement, which expires in 2024, will hopefully resolve the legal violations and discrimination complaints documented by DOJ since 2012. They encompass several significant issues, such as the following complaint described in the 2012 Letter:

“The AOC impermissibly restricts the types of proceedings in which the AOC will provide interpreters. For instance, AOC policy does not provide interpreters in child custody hearings; child support hearings, civil no-contact order proceedings, foreclosures, and divorce proceedings; in all small claims court matters, which can include wage disputes and eviction proceedings; to non-indigent defendants for criminal and traffic matters, non-indigent respondents in domestic violence proceedings and involuntary commitment proceedings, and non-indigent parents in juvenile proceedings; and in post-judgment services centers where a defendant’s sentence is coordinated and monitored. AOC policy and practices result in numerous types of court proceedings moving forward without any language assistance for LEP individuals who therefore are unable to meaningfully participate in their case, causing harmful delays and outcomes.”

The gravity of the complaints to DOJ are well summarized by the 2012 comments of then-Assistant Attorney General for Civil Rights Thomas Perez:

“In responding to our concerns regarding compliance with federal civil rights law, you [AOC] 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…

If the AOC is not interested in voluntary compliance, or if we determine that efforts to achieve compliance by voluntary means are unsuccessful, the United States will take appropriate enforcement action as authorized by Title VI and the Safe Streets Act… 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 cannot be secured by voluntary means.”

© Bruce L. Adelson 2022. 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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