UPDATE | By Harry M. Reasoner
For people with Limited English Proficiency (LEP), there is no access to justice without access to language services in court. If a person cannot understand what is being said or communicate with the court due to a language barrier, she will not be able to fully participate in her own case and the court will not have access to information needed to reach a fair decision. It’s a lose-lose proposition.
Communication barriers caused by a lack of language access services can cause miscarriages of justice, delays, inaccurate records, unenforceable orders, and overturned judgments. Language access services are critical for preserving the legitimacy of the judicial process and the efficient functioning of our courts.
The laws governing language access are not new. In 1974, in Lau v. Nichols, the Supreme Court held that Title VI of the Civil Rights Act of 1964 prohibits conduct that has a disproportionate effect on LEP individuals—for example, failing to provide interpreters in court proceedings—because such conduct constitutes national origin discrimination. And in 1990, Congress passed the Americans with Disabilities Act, requiring courts to provide interpreters for people who are deaf and hard of hearing.
Closer to home, our own legislative history on this issue goes back at least to 1918 when the Texas Legislature declared the need for interpreters in Texas courts “an emergency and imperative public necessity” and authorized Texas counties to hire court interpreters (1). The Legislature recognized that interpreters in courts were “essential” for a just proceeding.
In recent years, the Department of Justice has stepped up its efforts to ensure language access by publishing guidance and promulgating regulations that require courts to provide interpreters for LEP litigants and witnesses. The DOJ has indicated its commitment to this issue by intervening in several states to enforce these laws.
The American Bar Association published its own Standards for Language Access (2) in Courts in 2012. The Conference of Chief Justices and the Conference of State Court Administrators had urged the ABA House of Delegates to pass the standards.
Yet despite this widespread and longstanding agreement in the legal community that courts should provide interpreters for LEP individuals, language access is an area where policies and practices don’t currently match the values of our profession and the requirements of the law.
The Commission heard from legal aid providers who report the use of children, opposing counsel, bailiffs, and other individuals (including the alleged abusive spouse in a protective order hearing) as interpreters, even those who are not fluent in the needed language. We also learned that cases were delayed when an indigent client could not pay an interpreter fee in advance of the proceeding.
In an effort to improve language access in our judicial system for low-income people, the Commission has formed a committee to work on these issues in collaboration with courts, lawyers, and access to justice advocates in the legal community and elsewhere. We invite you to join us in this effort. Please contact Trish McAllister, our Executive Director, with your thoughts at email@example.com.
(1) H.B. No. 48, 4th C.S. 35th Leg., March 18, 1918.
(2) Language access is defined as the provision of the necessary services for LEP persons to access a service or program in a language they can understand, and to the same extent as non-LEP persons.
Harry M. Reasoner is the chair of the Texas Access to Justice Commission and a partner at Vinson & Elkins in Houston, Texas. His principal area of practice is complex civil litigation, including antitrust and securities litigation. He is a Fellow of the American College of Trial Lawyers, the International Academy of Trial Lawyers, the International Society of Barristers, and the American Bar Foundation.