Guidance to Recipients of NHPRC Grants — Providing Meaningful Access to Individuals with Limited English Proficiency
This guidance is based on Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq., and regulations that implement Title VI. Title VI was intended to eliminate barriers based on race, color, and national origin in Federally-assisted programs or activities. In certain circumstances, failing to ensure that persons with Limited English Proficiency (LEP) can effectively participate in or benefit from Federally-assisted programs and activities or imposing additional burdens on persons with LEP constitutes national origin discrimination.
In August 2000, the President signed Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency. Under that Executive Order, every Federal agency that provides financial assistance to non-Federal entities must issue guidance on how their recipients can, consistent with long-standing obligations under Title VI and their fundamental mission, provide reasonable, yet meaningful access to persons with LEP.
The essence of the meaningful access requirement is "reasonableness." In some circumstances, a NHPRC recipient directly serving significant numbers of LEP persons may be obligated to provide language assistance services, including, as appropriate, written translations of documents, procedures and/or forms critical to accessing NHPRC-supported archives. In many other circumstances, however, NHPRC recipients will have little or no obligation to provide language services beyond those many already provide.
This does not mean, however, that the four-factor analysis set out in this Guidance should be read as limiting recipient discretion to provide language assistance services in an effort to broaden its services to the communities it serves. Recipients are encouraged to exercise their flexibility under this Guidance and go beyond minimal compliance to create model programs for LEP access.
As required under Executive Order 13166 and the companion DOJ LEP Guidance issued in August, 2000, recipients should apply a four-factor test to decide what steps are necessary and reasonable to provide meaningful access to their programs and activities for persons with LEP. Once the recipient has identified what language services, if any, are reasonable, the recipient should prepare a written policy on language assistance for persons with LEP (an "LEP policy"). This plan need not be intricate. It may be as simple as being prepared to use one of the commercially available language lines to obtain interpreter services.
- The Four-Factor Analysis
"Reasonable steps to ensure meaningful access" will vary depending on a number of factors. NHPRC recipients should apply the following four factors to the various contacts that they have with the public to decide what reasonable steps they should take to ensure meaningful access for persons with LEP. This balancing test preserves recipient management discretion and flexibility in determining how to best address the language needs of the LEP communities when deciding what documents to translate, and when oral translation is necessary.
The number or proportion of LEP persons served or encountered in the eligible service population.
One factor in determining what language services recipients should provide is the number or proportion of persons with LEP eligible to be served or encountered by the recipient in carrying out its operations. The greater the number or proportion of persons with LEP, the more likely language services are needed.
- The frequency with which LEP individuals come in contact with the program.
Recipients should assess, in some fashion, the frequency with which they have contact with LEP language groups. The more frequent the contact, the more likely that language services are needed. The steps that are reasonable for a recipient that serves one person with LEP a year may be very different from those expected from a recipient that serves several persons with LEP each day. For instance, a NHPRC-supported project to arrange and describe a collection consisting primarily of documents originally created in the Spanish language could provide finding aids that are linguistically accessible for Spanish persons with LEP.
The nature and importance of the program, activity, or service provided by the program.
The more important the activity, information, service, or program, or the greater the possible consequences of the contact to the LEP individuals, the more likely language services are needed. A recipient should determine if a denial or delay of access to services or information could have serious implications for the LEP individual. This factor weighs heavily in favor of providing language services in situations where the failure to provide such services could have an adverse effect on health, safety, economic security, and other critical areas. Typically, recipients of NHPRC funds provide significant cultural and societal services but such services do not rise to the same level of importance as do the previously mentioned critical areas. In such circumstances, the resources available to the recipient and the cost of providing the services will weigh more heavily in considering what, if any, language services to provide to frequently encountered LEP language groups.
- The resources available to the recipient.
A recipient's level of resources may have an impact on the nature of the steps it should take. Smaller recipient entities with more limited budgets are not expected to provide the same level of language services as larger recipient entities with larger budgets. However, such small recipients should still consider what language services are needed and what they are able to provide. Resource issues can sometimes be minimized by technological advances and sharing of resources and translations.
- The number or proportion of LEP persons served or encountered in the eligible service population.
Application of the Four Factors to NHPRC Recipients
NHPRC recipients include, but are not limited to state, county, and local historical societies and archives; universities; colleges; and libraries. All aspects of a program or activity that receives NHPRC assistance are covered by Title VI. Thus, recipient activities vary widely and the results of the application of the four factors vary as well.
NHPRC recipients' Title VI obligations in many cases will be satisfied by making available oral language assistance or commissioning translations on an as-needed basis. There are many circumstances where, after an application and balancing of the four factors noted above, Title VI would not require translation at all. For instance, based on a typical application of the nature and importance of the activity to persons with LEP and the resources available, Title VI does not require an archivist to translate archived collections, but it does require the implementation of appropriate language assistance measures to permit a person with LEP to have access to publicly accessible archives.
- Guidance to Federal Financial Assistance Recipients Regarding Title VI, Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons and
Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, at 65 FR 50121.