Advancing Language Access through State-Level Civil Rights Laws
By Joann Lee
Under civil rights law, recipients of federal funding, including state and local agencies, must provide meaningful access to every person seeking to participate in their programs and activities, regardless of that individual’s English proficiency. This right to language access extends to the more than 25 million U.S. residents with limited English proficiency (a legally utilized term that some advocates criticize as reinforcing a deficit view, instead preferring people-first language and terms such as “non-dominant language users”). Legal interpretations of this right, however, largely limit the ability of individuals to file lawsuits to ensure they receive meaningful access to federally funded programs and activities. Despite this federal-level limitation, California’s civil rights laws and regulations provide greater opportunities to utilize legal action to demand compliance with language rights requirements for the state’s nearly 6.5 million individuals with limited English proficiency, who speak more than 200 languages and linguistic variants.
This Practitioner’s Corner details California’s statewide language rights mandates and explores how advocates have used these laws to foster improved language access in state programs and state-funded entities.
What are the limitations to the enforcement of language access rights at the federal level?
Title VI of the Civil Rights Act of 1964 was created to prohibit discrimination based on race, color, or national origin in federally funded programs and activities. This landmark law strove to create equity and meaningful access to a wide range of programs and activities, including employment, education, health care, housing, and other critical services and benefits. The law has provided critically important protections for many marginalized groups, including the tens of millions of people in the United States who do not use English as their preferred language.
Legal advocates’ ability to bring lawsuits to compel government agencies and other covered entities to comply with the law’s requirements has been an important component of the Civil Rights Act. The 2001 Supreme Court decision in Alexander v. Sandoval, however, limited the types of legal cases that could be adjudicated by the courts under Title VI, particularly those related to language access. The decision required that private parties prove intentional discrimination on the part of federally funded recipients rather than just showing there was a discriminatory effect or disparate impact. As a result, individuals who felt they had been denied meaningful access to federally funded services had to prove that government agencies had intentionally discriminated against them, which requires a higher burden of proof, in order to bring a lawsuit. While lawsuits based on intentional discrimination have proceeded in some cases, many individuals and advocates have had to resort to administrative complaint processes managed by federal agencies, which can be lengthy and limited in available redress.
Despite this 2001 ruling, California has leveraged its own laws and regulations related to language rights to develop state-level rights to private action, including claims based on disparate impact discrimination. California’s example provides an important window into what a private right of action for individuals with limited proficiency in English and their advocates entails and what impacts it can have on efforts to expand linguistic access to government services.
What major state-level laws in California relate to language access rights?
California has a number of laws and policies that implicate language rights, but the statute that bears the most similarity to Title VI is found at Government Code § 11135 et seq (commonly referenced as Section 11135). This statute broadens Title VI federal standards in various ways. Section 11135 has more protected categories and covers state agencies themselves, unlike Title VI, which does not apply to federal agencies and the programs and activities they conduct directly.
This state-level statute has an explicit private right of action stated at Section 11139: “This article and regulations adopted pursuant to this article may be enforced by a civil action for equitable relief, which shall be independent of any other rights and remedies.” Further, regulations at 2 Cal. Code Reg. § 11154 prohibit conducting programs or activities that have the “purpose or effect of subjecting a person to discrimination.” This means that unlike Title VI, where an individual must demonstrate that the discrimination was intentional, Section 11135 allows disparate impact claims by private parties, thus broadening the ability of advocates to bring legal action around language access violations.
In addition to Section 11135, California has several other relevant laws and policies related to language access. Most notably, the state’s longstanding Dymally Alatorre Bilingual Services Act represents one of the oldest and most notable state laws related to language access. The act lays out a number of regulations, standards, and procedures related to bilingual staffing, reporting, and translation of written materials for state agencies, though evaluations have found the law has not been fully effective. California has other statutes implicating language rights related to specific sectors and industries such as Civil Code § 1632, the Unruh Civil Rights Act, and others connected to unemployment insurance benefits, Medi-Cal Managed Care, state courts, and voting.
How does Section 11135 implicate language rights?
The list of protected groups in Section 11135 includes national origin and ethnic group identification—both of which cover individuals with limited English proficiency. Ethnic group identification is defined as “the possession of the racial, cultural, or linguistic characteristics common to a racial, cultural, or ethnic group or the country or ethnic group from which the person or his or her forebears originated.” Accompanying regulations at Title 2, Sections 11161 and 11162 of the California Code of Regulations state that it is discriminatory to not take appropriate steps to provide “alternative communication services” for individuals based on their national origin or ethnic group identification. These alternative communication services include “the provision of the services of a multilingual employee or an interpreter for the benefit of an ultimate beneficiary and the provision of written materials in a language other than English.” In sum, these regulations protect the right of individuals with limited proficiency in English to language access but also, critically, make clear that not providing services such as interpretation and translation constitutes discrimination, which under Section 11135 would permit lawsuits against recipients of state funding or state agencies themselves. Regulations proposed in February 2023 may also lead to stronger enforcement mechanisms and improved quality control.
What effect has a private right to action on language access had in California and how have advocates used Section 11135 to advance language access?
Although Section 11135 has been litigated in various contexts, government agencies have not faced a significant number of lawsuits. There have been very few published decisions addressing discrimination based on national origin and ethnic identification. The high burden of proof to demonstrate disparate impact discrimination, including a focus on the need for statistical evidence, has been viewed as an impediment to successful 11135 litigation. Nevertheless, advocates have raised Section 11135 in their efforts to advance language rights, resulting in settlement agreements through lawsuits, writs, and administrative complaints. Section 11135 has been a powerful tool in advocacy efforts, resulting in positive change and needed enhancements in areas such as state courts, government benefits issuance, and housing.
In an example of how Section 11135 has been used to enforce language rights, the Legal Aid Foundation of Los Angeles (LAFLA) filed an administrative complaint pursuant to Section 11135 with the California Civil Rights Department that led to a settlement against the California Employment Development Department (EDD) unemployment insurance program. EDD provides critical benefits to eligible workers, and while language barriers have always existed, access became even more challenging during the COVID-19 pandemic, with operations moving into virtual spaces offered only in English and Spanish. LAFLA partnered with various organizations and engaged in a voluntary mediation process through the California Civil Rights Department that lasted more than a year.
LAFLA and its partners eventually reached a settlement with EDD, also filed in court to enhance enforcement and address preclusion issues. The agreement expanded EDD’s provision of language services through a series of improvements scheduled to be implemented through April 2024. The holistic agreement covers a wide range of provisions, including properly identifying language needs; providing on-demand interpreting and language services; extending deadlines due to language barriers and good cause; strengthening community outreach and engagement; and requiring regular monitoring and reporting to advocates through April 2024. These provisions complement and provide more detailed directives around new parallel legislative changes, as well as other existing legal mandates.
What lessons does this hold for other states considering enhancements of private rights to action around language access?
Although federal civil rights laws provide important protections, they have historically been difficult to litigate and enforce, in part because it is difficult for individuals with limited proficiency in English and others to distinguish whether programs and services are provided by or through federal, state, county, or city entities. State and local antidiscrimination laws thus are valuable ways of ensuring that all critical services and benefits, regardless of their funding streams, are accessible to linguistically marginalized communities and create different paths to make access meaningful and enforcement attainable. While some state and local measures grew from adversarial actions, many have also resulted in collaborative endeavors that have upheld the civil rights and dignity of diverse communities and their vast language abilities.
Joann Lee serves as Special Counsel on Language Justice with the Legal Aid Foundation of Los Angeles, a nonprofit law firm that provides free legal services to more than 100,000 people living in poverty across greater Los Angeles every year.