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11 G. Executive Order 13166 (2000), Department of eral agencies to utilize the guidance "to develop specific Justice and USDOT Policy Guidance, and the 2007 criteria...to review the programs and activities for FTA Title VI Circular Regarding Access to Transit which they offer financial assistance."108 Services for LEP Persons and Compliance with 3. USDOT Policy Guidance Concerning Recipients' Title VI Responsibilities to LEP Persons 1. Executive Order 13166 (2000) and Improving On December 14, 2005, the USDOT issued a revision of its earlier guidance. The legal basis for USDOT's Pol- Access to Services for LEP Persons icy Guidance Concerning Recipients' Responsibilities to On August 11, 2000, President Clinton signed Ex- Limited English Proficient (LEP) Persons109 (DOT LEP ecutive Order 13166 entitled "Improving Access to Ser- Policy Guidance) is the prohibition against national vices for Persons with Limited English Proficiency,"101 origin discrimination in Title VI as it affects LEP per- which directed every federal agency "to examine the sons.110 The USDOT LEP Policy Guidance clarifies the services it provides and develop and implement a sys- responsibilities of recipients of federal financial assis- tem by which LEP persons can meaningfully access tance from USDOT and assists them in fulfilling their those services consistent with, and without unduly bur- 111 responsibilities to LEP persons. As defined in the 102 dening, the fundamental mission of the agency" and USDOT's guidance, the term "limited English profi- "to prepare a plan to improve access to its federally cient" means those "[i]ndividuals who do not speak Eng- conducted programs and activities by eligible LEP per- lish as their primary language and who have a limited sons."103 ability to read, write, speak, or understand Eng- lish...."112 As such, they are entitled to language assis- 2. Department of Justice Policy Guidance Regarding tance under Title VI with respect to any "service, bene- Enforcement of Title VI of the Civil Rights Act of 1964 fit, or encounter."113 The 2007 FTA Title VI Circular Concerning "National Origin Discrimination" Against defines LEP persons as those persons "for whom Eng- LEP Persons lish is not their primary language and who have a lim- Pursuant to Executive Order 13166, on August 16, ited ability to speak, understand, read, or write Eng- 2000, the Department of Justice (DOJ) issued a Policy lish," including "people who reported to the U.S. Census Guidance entitled ``Enforcement of Title VI of the Civil that they do not speak English well or do not speak Rights Act of 1964--National Origin Discrimination English at all."114 against Persons with Limited English Proficiency" The USDOT LEP Policy Guidance informed recipi- (DOJ LEP Guidance).104 The DOJ LEP Policy Guidance ents that they must "take reasonable steps to ensure is clear that neither it nor the executive order creates meaningful access to their programs and activities by any new obligations but only clarifies existing Title VI LEP persons" by making "an individualized assessment responsibilities.105 The guidance states that "[a] federal that balances four factors,"115 the language of which aid recipient's failure to assure that people who are not differs somewhat from the foregoing DOJ LEP Policy proficient in English can effectively participate in and benefit from programs and activities may constitute 106 national origin discrimination prohibited by Title VI." 108 Federal agencies were advised that what constituted Id. at 50123. meaningful access was to be determined based on a 109 DOT LEP Policy Guidance, 70 Fed. Reg. 74087 (Dec. 14, consideration of four factors: "the number or proportion 2005), available at http://edocket.access.gpo.gov/2005/05- of LEP persons in the eligible service population, the 23972.htm (Last visited on Sept. 9, 2010). DOT "revised its frequency with which LEP individuals come in contact LEP guidance to insure greater consistency with DOJ's revised with the program, the importance of the service pro- LEP guidance, published June 18, 2002, and other agencies' revised LEP guidance. 67 Fed. Reg. 117 (June 18, 2002)." Id. at vided by the program, and the resources available to 74091. the recipient."107 The Justice Department advised fed- 110 Id. at 74087 (summary). 111 101 Id. Executive Order 13166, 65 Fed. Reg. 50121 (Aug. 16, 112 Id. at 74091. 2000), hereinafter cited as "Exec. Order 13166 (2000)." 113 102 Id. Id. 1. 114 103 FTA C 4702.1A (May 13, 2007), hereinafter cited as "FTA Id. 2. 104 Title VI Circular," at ch. II-4-5 6(n), link is accessible DOJ LEP Policy Guidance, 65 Fed. Reg. 50123 (Aug. 16, at http://www.fta.dot.gov/laws/circulars/leg_reg_5956.html 2000), hereinafter cited as "DOJ LEP Policy Guidance." (Last visited Sept. 9, 2010). 105 Id. (Summary). 115 DOT LEP Policy Guidance, 70 Fed. Reg. 74087 (Dec. 14, 106 Id. 2005), available at http://edocket.access.gpo.gov/2005/05- 107 Id. at 50124. 23972.htm, at 74091. (Last visited on Sept. 9, 2010).