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LEP obligations by engaging in the four-factor analy- to be preempted by federal LEP requirements, the sis, balancing the need to ensure meaningful access existence of state English-only laws could give rise to to the federally funded programs with avoidance legal challenges to transit agencies' language activi- of undue burdens on small businesses, small local ties. The background research did not, however, reveal governments, or small nonprofits. any such challenges. The FTA addresses LEP compliance in the agency's Title VI circular. The circular states that SUMMARY OF LEP ENFORCEMENT ACTIVITY recipients must "take responsible steps to ensure meaningful access to the benefits, services, informa- Cases tion, and other important portions of their programs Although there are a substantial number of LEP and activities for individuals who are Limited English cases related to bilingual education and a seminal Proficient (LEP)."17 Development and implementa- Supreme Court case on the issue21--as well as a num- tion of a language implementation plan is cited as a ber of housing cases--there do not appear to be any way to ensure such meaningful access, but is not reported cases directly related to LEP implementation required. The circular cites U.S. DOT's Policy Guid- by transit agencies. Transit advocates have success- ance for the elements of an effective language imple- fully challenged transit agency priorities on Title VI mentation plan. The Title VI circular includes several grounds, but the cases did not directly involve LEP other references to LEP obligations, but does not con- issues.22 However, the Supreme Court has since tain a significant amount of additional guidance on ruled that there is no private right of action to enforce implementing LEP requirements. Meeting Title VI Title VI, so earlier cases holding that such a right requirements for recipients serving populations of exists, including Lau, have limited applicability.23 The 200,000 or greater requires those recipients to con- education/housing cases appear to be of extremely duct additional outreach that will result in such agen- limited utility in assessing LEP legal requirements for cies having additional information about their LEP transit agencies because of factual differences and populations. because the cases finding Title VI violations are pre- What appears to be the FTA's primary LEP guid- Sandoval. ance is included in a 2007 LEP implementation hand- book prepared by the FTA's Civil Rights Office.18 In addition to DOT and FTA guidance, recipients The FTA may review the model language implementation plan The FTA reviews LEP compliance during FTA developed by Tri-Met of Portland, Oregon, under an regular Title VI compliance reviews, triennial FTA cooperative agreement.19 reviews, and joint FHWA/FTA planning certifica- In addition to federal requirements, both state and tion reviews24 as well as during state management local law may require local governmental entities to create language implementation plans to ensure mean- ingful access to their services.20 On the other hand, 21 Lau v. Nichols, 414 U.S. 563, 94 S. Ct. 786, 39 L. Ed. 2d 1 state or local law may prohibit government agencies (1974). from providing information in languages other than 22 E.g., Labor/Community Strategy Center and Bus Riders Union English. While such English-only laws either explic- et al. v. Los Angeles County Metropolitan Transportation itly exclude safety requirements or can be expected Authority (resulting in consent decree requiring the MTA to improve bus service), www.thestrategycenter.org/campaign/ consent-decree-compliance; oldbru.thestrategycenter.org/engli/ 17 FTA C 4702.1A IV, 4 (May 13, 2007), p. IV1. Campaigns/consentdecree/consentdecreeoverview.htm. See 18 FTA Office of Civil Rights, Implementing the Department Labor/Community Strategy Center v. Los Angeles County of Transportation's Policy Guidance Concerning Recipients' Metropolitan Transit Authority, 263 F.3d 1041 (9th Cir. 2001). 23 Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Responsibilities to Limited English Proficient (LEP) Persons: A Handbook for Public Transportation Providers, April 13, 2007. Ed. 2d 517 (2001). 19 Available through the FTA's Civil Rights website, www.fta. 24 Better Dissemination and Oversight of DOT's Guidance dot.gov/civilrights/title6/civil_rights_5741.html. Could Lead to Improved Access for Limited English-Proficient 20 E.g., New York City Executive Order No. 120 (July 22, 2008), Populations, GAO-06-52, Language Access to Transportation www.nyc.gov/html/imm/downloads/pdf/exe_order_120.pdf. Services, November 2005, p. 47, www.gao.gov/new.items/ This executive order incorporates DOJ's four-factor analysis. d0652.pdf. 4