Legal Obligations of the Juvenile Justice System for Limited English Proficient YouthSam Jammal

Legislative Staff AttorneyMALDEF

Rights & Obligations for LEP Juveniles Two Bodies of Law to Consider:

Legal Protections and Obligations

Educational Rights for Limited English Proficient (LEP) Students in the Juvenile Justice System

Legal Protections & Obligations Civil Rights Act of 1964

Lao v. Nichols

Executive Order No. 13166

Dept. of Justice Implementation of Executive Order No. 13166

Civil Rights Act of 1964

Section 601 provides that no person shall “on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

Section 602 authorizes and directs federal agencies that are empowered to extend federal financial assistance to any program or activity "to effectuate the provisions of [section 601] by issuing rules, regulations, or orders of general applicability."

Lao v. Nichols

United States Supreme Court decision from 1974

Holding: San Francisco school district required to provide linguistically appropriate accommodations for LEP persons

Language is often used as a proxy for national origin discrimination, which is prohibited under the Civil Rights Act of 1964

Executive Order No. 13166 Clinton Administration

Signed by President Clinton in August 2000

Requires federal agencies to examine the services they provide to LEP persons and implement a system that provides meaningful access

Federal Agencies must ensure recipients of federal funds provide meaningful access to LEP applicants and beneficiaries

Recipients include law enforcement, courts and corrections agencies

Executive Order No. 13166 Bush Administration

Affirmed Clinton Administration Order in 2002

Dept. of Justice (DOJ) has provided guidance for recipients of DOJ funds and other agencies in order to comply with the Executive Order

Four-step Balancing Test for Meaningful Access Number of LEP persons eligible to be served or encountered Frequency of contact with LEP persons Nature and importance of the program to LEP persons Resources available, including costs of providing particular

services for LEP persons

Meaningful Access for LEPs in the Juvenile Justice System Meaningful access requirements apply to all LEP persons whether

they be adult inmates, detainees, juveniles or persons involved in community corrections programs.

When applying the four factors, recipients encountering juveniles should take into account that certain programs or activities may be even more critical and difficult to access for juveniles than they would be for adults.

LEP persons do not have equitable access to services or benefits if they are charged a fee for language assistance services

Language assistance services are a high priority whenever a LEP person receives instructions on matters affecting rights or responsibilities, such as Miranda warnings, or whenever a LEP person needs assistance related to personal safety or medical care

DOJ Bureau of Prisons

Bureau of Prisons (BOP) administers and maintains correctional facilities for people placed in U.S. custody

BOP provides Spanish-language program statements, orientations, statement of rules and procedures, and other documents because LEP inmates who speak Spanish represent over 5% of the total inmate prison population

For smaller LEP communities, oral and written communications in their native language are provided on ad hoc basis

Educational Rights

Every student has a right to a quality education regardless of whether they are in an alternative educational setting

Quality alternative settings for juveniles are a means of rehabilitation and prevention of further juvenile delinquency

Judicial and Statutory Protections

Judicial Protections for LEP Students Mendez v. Westminster- 9th Circuit Court of Appeals (1947)

Holding: Segregation of Mexican and Mexican American students into separate “Mexican” schools was unconstitutional

Brown v. Board of Education- United States Supreme Court (1954) Holding: State laws that segregated black and white students are

unconstitutional and deny black children equal educational opportunities

Lao v. Nichols- United States Supreme Court (1974) Holding: School districts in this country are required to take the

necessary actions in order to provide students who do not speak English as their first language the ability to overcome the educational barriers associated with not being able to properly comprehend what is being taught to them

Judicial Protections for LEP Students (Cont.) Castañeda v. Pickard- 5th Circuit Court of Appeals (1981)

Holding: Three Part Test for Bilingual Education Programs under the Equal Educational Opportunities Act

The bilingual education program must be “based on sound educational theory.

The program must be “implemented effectively with resources for personnel, instructional materials, and space.”

After a trial period, the program must be proven effective in overcoming language barriers/handicaps.

Alexander v. Sandoval- United States Supreme Court (2001) Holding: A regulation enacted under Title VI of the Civil Rights

Act of 1964 does not include a private right of action to allow private lawsuits based on evidence of disparate impact, as policies with a disparate impact on minorities are presumed to be unintentional discrimination

Statutory Protections for LEP Students Bilingual Education Act of 1968

Intended to provide funding for programs for LEP students Provided school districts the opportunity to provide bilingual education without

violating segregation laws Merged in to the Elementary and Secondary Education Act

Equal Educational Opportunities Act of 1974 Prohibited discrimination against faculty, staff and students, including racial

segregation of students, and requires school districts to take action to overcome barriers to students' equal participation

Stated that language barriers must be overcome by instructional programming Castañeda provided guidance on quality bilingual educational programs

No Child Left Behind Act of 2001 Established accountability measures for LEP students under Title III Made schools responsible for LEP students regardless of whether these

students are in regular or alternative school settings Required test scores for LEP students to be included in overall district scores

Current Challenge

Many jurisdictions are still not receiving or seeking adequate technical assistance to implement integrated system changes to assist LEP youth