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and recipients and subrecipients of federal assistance right of action under Title VI,2 and state and local to certify compliance with the requirements of Title language access requirements. In addition, the con- VI as part of the grant approval process. Given that tractor identified specific issues related to LEP in the the Supreme Court has held that there is no private transit context: the disproportionate reliance on tran- right of action to enforce Title VI regulations, the sit by LEP populations, reported lack of consistency vigor of enforcement of federal LEP requirements in transit agencies' language access activities, poten- depends on the policies of the U.S. DOT and the U.S. tial gaps between U.S. DOT requirements and tran- Department of Justice (DOJ). In addition, state and sit agency implementation, problems that can result local governments may impose LEP requirements from lack of effective LEP outreach, and benefits of that can be enforced in state court. These state LEP outreach. requirements may impose further compliance respon- The researcher examined general interest period- sibilities. On the other hand, proponents of English- icals, law review articles, reports and policy papers, only policies could object to the provision of multi- articles written by both legal practitioners and LEP lingual services. and/or transit advocates, and guidance from rele- The objective of TCRP Project J-5 Study Topic vant federal and state agencies. Phase I research 11-03 was to assess the legal issues associated with also involved case law research on both federal and transit operators' LEP compliance efforts. The study state cases related to Title VI in general and LEP in was intended to encompass a review and analysis particular. of both administrative compliance actions taken by Finally, Phase I research included a survey ques- transit operators and litigation associated with the tionnaire sent out to almost 300 transit agencies subject, provided that such compliance actions and nationwide. Eighty-four transit agencies provided litigation existed. Assuming sufficient material was responses to the questionnaire. The scope of the available, the goal of the study was to produce a questionnaire and results concerning complaints are digest that would serve as a single source of infor- summarized below. mation concerning the development and current status of transit LEP implementation efforts by SUMMARY OF LEP REQUIREMENTS state and local legislative and operational bodies. It was expected that the bulk of any such complaint/ Section 601 of Title VI of the Civil Rights Act case activity would be based on transit agencies' of 19643--and its implementing regulations4-- failure to provide sufficient language access ser- prohibits discrimination, inter alia, on the basis vices to LEP populations, although the possibility of national origin under any program or activity was raised that English-only proponents objecting that receives federal financial assistance. The fed- to the provision of language access services could eral government has interpreted this prohibition as raise some complaints. Out of a concern that suffi- requiring recipients to ensure meaningful access to cient case activity did not exist to support a digest, the their programs and activities by LEP populations.5 The Supreme Court has ruled that conduct that dis- study was divided into two phases, with the execution of Phase II being dependent on the results of the Phase I research. 2 Advocates have called for reinstatement of the private right of action as part of the reauthorization of the surface transporta- tion program. Ensuring Non-Discrimination in Transportation SUMMARY OF PHASE I RESEARCH PROCESS Investments (last accessed 7/2/10). 3 42 U.S.C. 2000d. During Phase I, the contractor conducted back- 4 28 CFR 42.104(b)(2) prohibits discrimination based on race, ground research on a variety of topics, including the need for language activities due to a growing LEP color, or national origin in federally financed programs, which has a disparate impact; federal financial assistance recipients population, possible conflicts between federal and must provide meaningful access to LEP persons. state definitions of LEP, Title VI requirements in 5 DOJ, Policy Guidance Document, Guidance to Federal Finan- general, possible conflicts between state and local cial Assistance Recipients Regarding Title VI Prohibition Against English-only laws and federal LEP requirements, National Origin Discrimination Affecting Limited English Profi- use of Section 1983 to enforce LEP requirements, cient Persons, 67 Fed. Reg. 41455, June 18, 2002 (June 2002 prospects for legislative reinstatement of a private DOJ Policy guidance document). 2

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proportionately affects LEP persons constitutes of that particular recipient to meet the recipient's national origin discrimination prohibited under LEP obligations.12 The four factors are Title VI.6 While the Supreme Court has since ruled 1. The number or proportion of LEP persons that there is no private right of action to enforce eligible to be served or likely to be encountered Title VI regulations,7 the Court has yet to invali- by the program or grantee; date the underlying regulations themselves; DOJ 2. The frequency with which LEP individuals takes the position that the regulations and the Exec- come in contact with the program; utive Order on LEP compliance remain in effect.8 3. The nature and importance of the program, A 2000 Executive Order (EO) on language activity, or service provided by the program to access9 requires federal agencies (1) to ensure that people's lives; and they provide meaningful access for LEP persons 4. The resources available to the grantee/recipient to the agencies' own programs and (2) to work to and costs.13 ensure their recipients provide meaningful access to LEP applicants and beneficiaries.10 EO 13166 Conducting the analysis requires making a fact- requires each federal agency to publish guidance for specific determination of the significance of each its recipients on how to provide meaningful access to factor. Thus, the four-factor approach provides flex- LEP persons. Both U.S. DOT and the FTA have pub- ibility, but also lack of certainty, because individual- lished guidance based on DOJ's policy guidance. ized assessments are required to determine LEP DOJ's regulation prohibits DOJ's recipients from: services required in a particular services area. U.S. DOT has issued its own Title VI regulations, utiliz[ing] criteria or methods of administration consistent with the DOJ regulations,14 as well as pol- which have the effect of subjecting individuals to discrimination because of their race, color, icy guidance on LEP compliance15 based on DOJ's or national origin, or have the effect of defeat- four-factor analysis. Under the guidance, U.S. DOT ing or substantially impairing accomplishment promotes voluntary compliance and turns to "more of the objectives of the program as respects intrusive administrative remedies only if voluntary individuals of a particular race, color, or national compliance cannot be secured."16 U.S. DOT's Title VI origin.11 requirements apply to all recipients of federal trans- portation assistance including metropolitan planning The national origin prohibition includes preclud- organizations; regional transportation agencies; and ing or inhibiting LEP persons from accessing feder- regional, state, and local transit agencies (and the sub- ally funded services. DOJ's policy guidance on recipients of those transit agencies). Receipt of fed- implementing its LEP requirements explains the eral funding by one program of a recipient subjects "four-factor analysis" that each recipient should con- the recipient's entire program to Title VI require- duct to determine what steps are required in the case ments. These requirements apply even to recipients that operate in English-only jurisdictions. However, 6 Lau v. Nichols, 414 U.S. 563, 94 S. Ct. 786, 39 L. Ed. 2d 1 if federal funding were terminated because of lack of compliance with LEP requirements, only funding to (1974) (holding failure of San Francisco school system to pro- the out-of-compliance program would be terminated. vide English language instruction to approximately 1,800 stu- dents of Chinese ancestry who did not speak English or to pro- Recipients are required to determine the extent of their vide them with other adequate instructional procedures denied them meaningful opportunity to participate in public educa- 12 tional program and thus violated 601 of the Civil Rights Act June 2002 DOJ Policy Guidance Document, 67 Fed. Reg. of 1964). 41455. 7 Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. 13 Id. at 41459. 14 49 C.F.R. pt. 21, Nondiscrimination in Federally Assisted Pro- Ed. 2d 517 (2001). 8 June 2002 DOJ Policy Guidance Document, 67 Fed. Reg. at grams of the U.S. DOT--Effectuation of Title VI of the Civil 41458, n. 5. Rights Act of 1964. 9 Executive Order 13166, Improving Access to Services for 15 Office of the Secretary (OST), U.S. DOT, Policy Guidance Persons with Limited English Proficiency, August 11, 2000, Concerning Recipients' Responsibilities to Limited English Proficient (LEP) Persons, 70 Fed. Reg. 74087, December 14, 10 LEP Questions and Answers, 2005. 11 28 C.F.R. 42.104(b)(2). 16 Id. at 74089. 3