The fact that increasing numbers of Americans can’t speak or read English poses severe problems for our society, not least, of course, for those individuals who are, in the jargon, LEP— “limited English proficient”—and whose life opportunities will be limited as a result. In a sensible political culture, teaching and encouraging everyone to learn the dominant language would be a high priority. But many of our elites instead seem to take pride in balkanizing America.
One challenge that states face is providing LEP persons meaningful access to their courts. Under the rules that have existed in Michigan, for example, interpreters have been provided for all criminal defendants who need them, and courts in civil matters have had discretion to appoint interpreters. According to Michigan justice Stephen J. Markman:
By all measures, these rules have operated well. Indeed, in my experience on this Court over the past 14 years, I cannot recall a single case in which an LEP person alleged that he or she had been denied an interpreter.
Nevertheless, on August 16, 2010, Thomas E. Perez, the Assistant Attorney General for the U.S. Department of Justice’s Civil Rights Division, sent a form letter (“Dear Chief Justice/State Court Administrator”) to Michigan’s chief justice in which he purported to “provide greater clarity regarding the requirement that courts receiving federal financial assistance provide meaningful access for LEP individuals.” Perez’s letter includes among matters “of particular concern” limits on the types of proceedings for which interpreters are guaranteed; failing to “provide language assistance to non-party LEP individuals whose presence or participation is necessary or appropriate”; charging interpreter costs to non-indigent parties; and failing to provide language services for court-managed operations outside the courtroom.
Two weeks ago, the Michigan supreme court issued an order responding to Perez’s letter but falling short of its demands. Undertaking to “strike the balance between ensuring meaningful access while not imposing undue burdens on Michigan’s local courts,” the supreme court’s rule requires that an interpreter be provided for a party or witness in any court proceeding in which the judge determines that an interpreter is needed in order for the party or witness to meaningfully participate. It also provides that a party will be required to reimburse for interpreter services only if the party has income above 125% of the poverty level and the judge finds that assessment of the costs would not unreasonably impede the person’s ability to pursue or defend a claim.
Justice Markman’s dissent from the order (beginning on page 12) is worth reading in full. Here are some excerpts (various citations and footnotes omitted; emphases in original):
The breadth of the Department’s demands, and the intransigence of its position, are all the more remarkable in light of the flimsiness of the legal support for its view that Michigan and other states would be in violation of the laws of the United States by failing to adopt in toto its LEP rules.… [T]he Department relies upon a letter signed by the Assistant Attorney General purporting to interpret his own “policy guidance” purporting to be grounded in a regulation of the Department purporting to construe an actual statute, which statute in relevant part closely implicates the Fourteenth Amendment to the Constitution. Not exactly, I would submit, what the Framers had in mind when they described the “legislative power” of the United States in Article I, § 1 of the Constitution….
Not surprisingly, the Department fails to provide any specific details or documentary, non-anecdotal evidence of instances in which discriminatory practices within the Michigan court system have actually prevented any individual from “meaningfully participating” in the judicial process because of race, color, or national origin. But, of course, as the Department views things, “discrimination” does not simply mean “discrimination,” as traditionally understood i.e., distinguishing or differentiating between persons “because of,” “due to,” “on account of,” “on the basis of,” or “on the grounds of” race, color, or national origin, but encompasses also the theory of “disparate impact or results,” or statistical “discrimination.” …
In numerous cases, … the U.S. Supreme Court has held that Title VI prohibits only intentional discrimination and that “[i]t is clear now that the disparate-impact regulations do not simply apply [Title VI]– since they indeed forbid conduct that [Title VI] permits.” Indeed, the Civil Rights Division’s own recent conduct demonstrates that it is well aware of the shaky foundations of its “disparate impact” theory. As the media has widely reported, Assistant Attorney General Perez, apparently apprehensive that the U.S. Supreme Court might directly repudiate the “disparate impact” theory, engaged in a quid pro quo in February with the city of St. Paul, Minnesota, whereby the Department agreed not to intervene in two civil rights cases against the city in exchange for the city’s agreement to withdraw its appeal in Magner v Gallagher, a case calling the “disparate impact” theory into question and scheduled to be heard by the U.S. Supreme Court.… However, not only has the Department failed to present any evidence of any intentional discrimination by Michigan based “on the ground of race, color, or national origin,” but it has failed even to present evidence of “disparate impact discrimination,” much less connect a state’s LEP policies with Title VI discriminations.…
Rather than adopting the new court rules under duress from the Department, I would reject its demands and apprise now-Secretary Perez’s successor as Assistant Attorney General that, in the judgment of the people of Michigan, and as reflected in the decisions of their elected legislative, executive, and judicial representatives, the court rules of our state concerning interpreters have operated fairly and effectively to ensure that limited-English-proficient individuals have reasonable and meaningful access to Michigan’s court system in circumstances in which there is a constitutional or legal right to a free interpreter. If the Department then wishes to carry out its implicit threats to sue the state, I would aggressively defend against that suit and ensure that the burden of proof is clearly placed upon the Department to demonstrate: (1) that there is a constitutional or legal right to a free interpreter in all judicial and court-related proceedings or programs; (2) that there is a constitutional or legal right to a free interpreter in all judicial and court-related proceedings or programs, without regard to financial ability to pay; (3) that there is evidence that the state of Michigan has been engaged in either constitutional or statutorily-prohibited discrimination against persons on the basis of national origin or any other “protected category;” (4) that “discrimination” in the context of either the Constitution or Title VI is properly defined with reference to “disparate impact” analysis; (5) that a federal agency acts pursuant to its authority within our constitutional architecture, in particular our system of federalism, when it seeks to require the supreme courts of every state to adopt court rules imposing considerable new financial costs upon their citizens, which rules are predicated upon “letter interpretations” grounded in statements of “policy guidance” based upon administrative regulations purporting to interpret congressional statutes; and (6) that the Department possesses the constitutional authority to deprive the Michigan court system of the entirety of its federal financial assistance where Michigan does not fully assent to the conditions imposed by the Department pertaining to limited-English-proficiency persons, i.e., that the “financial inducement” the Department has chosen in that circumstance is closer to a “relatively mild encouragement” than to a “gun to the head.”
Perhaps most troubling to me is that the demands of the Department are reflective of an increasingly familiar pattern by which this and other state supreme courts have routinely been “commandeered” or “dragooned” by federal agencies to enact new court rules, not as the product of any exercise of independent judgment by the courts themselves that such rules are warranted, but as the product of financial threats by these agencies.