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(Q) What is Executive Order 13166? (A) E.O. 13166 was signed by Bill Clinton on August 11, 2000. E.O. 13166 declared that a person’s language choice was a protected civil right, based primarily on one lower court ruling (Sandoval). (Q) Will repeal of E.O.13166 mean that federally funded entities which currently assist Limited English Proficient persons in their own tongue may no longer do so? (A) No. Repeal of E.O. 13166 would simply make provision of services by federally-funded entities voluntary, rather than mandatory.
(Q) What are the costs of E.O. 13166 likely to be? (A) No one still really knows. Sandoval was overturned by the Supreme Court and the Bush Administration did not enforce E.O. 13166 with vigor. The Office of Management and Budget's 2001 estimate of medical translation costs found a “low-end calculation [of] .042 per encounter in the health care area” (page 54) http://www.whitehouse.gov/omb/inforeg/lepfinal3-14.pdf Yet the National Health Law Program (NHeLP), an E.O. 13166 advocate, had admitted to an average cost per encounter nearly 1,000 times higher in its comments to OMB: In Washington state, state law requires language assistance. The
state estimates that it will spend $24 million over two years for oral
interpretation. With an estimated 26,000 encounters per month (or
624,000 encounters in 2 years), the average cost of providing oral
interpretation is $38.46 per encounter. http://www.healthlaw.org/pubs/200201comments.html (Q) Why did the Bush Administration fail to rescind E.O. 13166? (A) By allowing E.O. 13166 to stand, the Bush administration repeated a similar language policy error made by the Reagan administration. In 1980, during the last days of the Carter administration, the EEOC declared that language choice was a protected civil right. Instead of repealing this absurd policy outright, the Reagan folks busied themselves with other, important, matters. And the anti-English radicals at the EEOC simply waited for a friendlier administration. Under Bill Clinton, the EEOC's language-rights policy came back with a vengeance despite its earlier rejection by federal courts. (Q) What is the impact of E.O. 13166 on tort liability? (A) E.O. 13166 applied to health care would function as an engine of personal injury and malpractice lawsuits. This is because, according to a 2003 study published in Pediatrics Magazine, trained, professional interpreters still made at least one mistake 53% of the time. While professional translators make fewer mistakes than nonprofessionals, any error by a translator employed by a hospital invites a malpractice lawsuit in a way that a translation provided by a friend or neighbor does not. (Q) The text of Executive Order 13166 seems pretty harmless. (A) The text of E.O. 13166 formally includes this statement in Section 1: [T]he Department of Justice has today issued a general guidance document (LEP Guidance), which sets forth the compliance standards that recipients [of federal funds] must follow . . . [emphasis English First]. Even though the Bush Administration believes it has superseded this guidance with its own, later guidance from DOJ, the fact remains that the original Clinton-era guidance is part and parcel of E.O. 13166. Q. E.O. 13166 states in Section 5 that it “does not create any right or benefit” Is that correct? A. Only if every federal court, up to and including the U.S. Supreme Court, misread the Supreme Court’s ruling in Lau v. Nichols from 1974 until August 11, 2000. The majority opinion in Lau v. Nichols 414 US 563 (1974) did not create a right to services in anyone’s native tongue: No specific remedy is urged upon us. [p565] Teaching English to the students of Chinese ancestry who do not speak the language is one choice. Giving instructions to this group in Chinese is another. There may be others. Petitioners ask only that the Board of Education be directed to apply its expertise to the problem and rectify the situation. Other than the 1999 decision of the Eleventh Circuit, Sandoval v. Hagan,
197 F.3d 484 (11th Cir. 1999), lower courts have consistently rejected efforts to equate a person’s language choice with the protected category of national origin.. In 2001, the Supreme Court reversed the Eleventh Circuit in Sandoval, and rejected Lau’s interpretation of Title VI as reaching beyond intentional discrimination. Alexander v. Sandoval, 532 U.S. 275 (2001). After Sandoval, there is no extant Supreme Court or Court of Appeals decision which equates language and national origin under Titles VI or VII of the Civil Rights Act. (Q) What was E.O. 13166 meant to accomplish? (A) Without having interviewed the author of this effort, Bill Lann Lee, it can safely be said that E.O. 13166 was intended to create a new wave of lawsuits, as no federally-funded entity would be in 100% compliance with E.O. 13166. Had the Supreme Court ruled differently in Sandoval, then anyone could file a lawsuit against any federally funded entity claiming a violation of Title VI on language grounds. Given that there are over 300 languages spoken in the United States, there were bound to be federally funded programs in violation. Success civil suits also bring payments for attorney’s fees and “expert” witnesses.. Lee, himself a former NAACP Legal Defense and Educational Fund attorney, had considerable experience with the power of Title VI lawsuits. (Q) Why did the Bush Administration continue to enforce an Executive Order promulgated by a man who was never confirmed and based upon a lower court decision reversed by the Supreme Court? (A) The Bush Administration was a victim of its staffing choices. The man in charge of E.O. 13166 enforcement in 2005 was R. Alex Acosta, who was praised by the National Council of La Raza specifically because: During his tenure at DOJ, Mr. Acosta played a pivotal role in the Limited-English-Proficient (LEP) Guidance enforcing Title VI of the Civil Rights Act of 1964, which requires recipients of federal financial assistance to provide language assistance to LEP persons. |
