Language Access: Complying with Title VI of the 1964 Civil Rights Act

1. Language Access: Complying with Title VI of the 1964 Civil Rights Act Isela Arras Immigration Project Administrator KDVA (502) 209-5382 ext. 21 iarras@kdva.org DRAFT Used with Permission by Kentucky Victim Assistance Academy

2. Learning Objectives for 4.2 • 1. Define language accessibility • 2. Explain the proper way to use an interpreter DRAFT Used with Permission by Kentucky Victim Assistance Academy

3. The Goal All staff serve all persons. All persons receive equal services. Agency Responsibility! DRAFT Used with Permission by Kentucky Victim Assistance Academy

4. Title VI • Federal Fund Recipients • Language – National Origin • Meaningful Access / Competent Language Services DRAFT Used with Permission by Kentucky Victim Assistance Academy

5. Responsibilities of FFR • Meaningful Access • Notice • Policy / Procedure • Periodic Training and Monitoring • Multilingual Materials • Competent Interpreters / Translators DRAFT Used with Permission by Kentucky Victim Assistance Academy

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7. When to use an Interpreter • Persons who cannot speak, read, write or understand the English language at a level that permits them to interact effectively with providers • Persons who request an interpreter • May understand more than speak • May speak more than understand • Language proficiency decreases in crisis DRAFT Used with Permission by Kentucky Victim Assistance Academy

8. Interpretation Options • Telephone Interpretation Services • Language Advocates • Multilingual Staff • Volunteer Interpreters • Paid Interpreters DRAFT Used with Permission by Kentucky Victim Assistance Academy

9. Interpreter vs. Translator • Interpreter • Translator • Language is important! • Skill • Linguistic ability DRAFT Used with Permission by Kentucky Victim Assistance Academy

10. Competent Interpreters / Translators • Cost and Available resources • Distinctions • Code of ethics (Quality and Professionalism) • Role of the interpreter • Non-bilingual provider guidelines DRAFT Used with Permission by Kentucky Victim Assistance Academy

11. Who should NOT Interpret? DRAFT Used with Permission by Kentucky Victim Assistance Academy

12. Who should NOT Interpret? (Con’t) • Family member of a victim • Family member of a perpetrator • Friend of the family • Interpreter used by the perpetrator • Perpetrator DRAFT Used with Permission by Kentucky Victim Assistance Academy

13. Who Should Interpret? • Someone who has a commitment to interpreter ethics. • Received training in interpreter skills • Proficient in both languages. • Non Judgmental • Adult DRAFT Used with Permission by Kentucky Victim Assistance Academy

14. The Role of the Interpreter DRAFT Used with Permission by Kentucky Victim Assistance Academy

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17. Guidelines for Non-bilingual Staff • Begin with a pre-session • Speak directly to the person • Do not permit side conversations • Purposeful seating • Maintain Control DRAFT Used with Permission by Kentucky Victim Assistance Academy

18. Three Presumptions DRAFT Used with Permission by Kentucky Victim Assistance Academy

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20. Language Access and U Visas: Serving Immigrant and Refugee Victims Effectively Gretchen Hunt, Esq. Training Coordinator Kentucky Association of Sexual Assault Programs DRAFT Used with Permission by Kentucky Victim Assistance Academy

21. Goals of workshop • Become familiar with language access, cultural considerations and immigration protections as potential options for your clients • Review the kinds of documentation needed for the immigration case • Understand the process of applying for relief from Immigration (or why does it take so long?) DRAFT Used with Permission by Kentucky Victim Assistance Academy

22. Opportunities • Provide more safety and stability to immigrant victims • Strengthen ability of law enforcement to enforce laws • Inform more victims of their rights • Reduce power of abusers to use threats of deportation DRAFT Used with Permission by Kentucky Victim Assistance Academy

23. What are the barriers to immigrants and refugees reporting sexual assault and domestic violence in your area? Your Responses: DRAFT Used with Permission by Kentucky Victim Assistance Academy

24. The Role of an Advocate • To inform client of options • To support client • To connect client with attorney & other necessary resources (e.g. counseling) * It is not the advocate’s job to file the immigration case or contact immigration DRAFT Used with Permission by Kentucky Victim Assistance Academy

25. Cultural Considerations Culturally Competent premises in our work with survivors of Sexual Assault and Domestic Violence • All persons have the right to live free from violence. • The perpetrator is responsible for the violence. • All victims have the right to safety and self-determination, including staying. • Domestic violence, sexual assault, and violence against women are present in all cultures, cutting across race, ethnicity, class, sexual identity, religion, etc. • Culture is not an excuse for violence. • All cultures are contradictory in that there is both widespread acceptance of domestic violence / sexual assault and traditions of resistance and empowerment. • Each survivor is not only a member of his/ her community, but a unique individual with their own responses. The complexity of a person’s response to domestic violence is shaped by multiple factors. • Differences exist both between and within cultures. • Just because we perceive someone to be of the same culture as ourselves does not mean we can make assumptions about their experience. • All communities and individuals can take preventative action against domestic violence and sexual assault. Source: Sujata Warrior DRAFT Used with Permission by Kentucky Victim Assistance Academy

26. National Origin Discrimination DRAFT Used with Permission by Kentucky Victim Assistance Academy

27. Sources of Law • Title VI of the Civil Rights Act • National origin discrimination includes language discrimination • Executive Order of 2000 signed by President Clinton • Department of Justice LEP Guidance of 2002 • Agency specific guidance and policy (e.g. DOJ, HHS) DRAFT Used with Permission by Kentucky Victim Assistance Academy

28. Title VI of Civil Rights Act of 1964 • Prohibits federal funding recipients from discrimination based upon race, color or national origin • National origin discrimination includes discrimination based on language ALL AGENCIES THAT RECEIVE FEDERAL FUNDING ARE RESPONSIBLE FOR COMPLIANCE DRAFT Used with Permission by Kentucky Victim Assistance Academy

29. Executive Order 13166 • All recipients of federal funding (including contract agencies) must provide language access to persons with Limited English Proficiency (“LEP”) • Must ensure MEANINGFUL ACCESS to services applicants and beneficiaries. • No difference in services • No unreasonable delay in services DRAFT Used with Permission by Kentucky Victim Assistance Academy

30. What is LEP? • Limited English Proficiency • English is not primary language • Limited ability to read, write, speak or understand English • Language for LEP individuals can be a barrier to accessing  important benefits or services, understanding and exercising important  rights, complying with applicable responsibilities, or understanding  other information provided by Federally funded programs and activities.  • Determination is by person, not by agency DRAFT Used with Permission by Kentucky Victim Assistance Academy

31. Policy Guidance 65 Fed. Ref. 50123 • The Department of Justice tasked with developing guidance for agencies “Enforcement of Title VI of the Civil Rights Act of 1964--National Origin Discrimination Against Persons with Limited English Proficiency: Policy Guidance” • Spells out concrete requirements • Offers tips and guidance to agencies DRAFT Used with Permission by Kentucky Victim Assistance Academy

32. Policy Guidance • Must provide access to LEP individuals • Agencies or entities conduct the following analysis to determine what is compliance: • Number or proportion of LEP individuals served or encountered in the eligible service population • Frequency of contacts • The nature and importance of the program, activity or services • Resources available DRAFT Used with Permission by Kentucky Victim Assistance Academy

33. What is the Number or Proportion of LEP Individuals in Your Service Area? • Must include language minority populations that are eligible for programs or activities but may be underserved because of existing  language barriers. • How determine number of LEP individuals? • Census data, data from school systems and from community  organizations, and data from state and local governments. • Community  agencies, school systems, religious organizations, legal aid entities,  and others can often assist in identifying populations for whom  outreach is needed and who would benefit from the recipients' programs  and activities were language services provided. DRAFT Used with Permission by Kentucky Victim Assistance Academy

34. What is the Frequency of Contact with LEP Persons within your Agency? • LEP persons contacting agency on a daily basis means higher responsibilities • But even recipients  that serve LEP persons on an unpredictable or infrequent basis should have a plan to provide access • EX: being prepared to use telephonic interpretation services to obtain  immediate interpreter services. Recipients  should take care to consider whether appropriate outreach to LEP  persons could increase the frequency of contact with LEP language  groups. DRAFT Used with Permission by Kentucky Victim Assistance Academy

35. What is the Nature and Importance of the Program, Activity, or Service  Provided by your Program? Will the denial or delay of  access to services or information have serious or even life- threatening implications for the LEP individual? Ex: safety, law enforcement services or services that impacts rights vs. recreational or less urgent services DRAFT Used with Permission by Kentucky Victim Assistance Academy

36. What Resources Are Available? • Cost is not defense to non-compliance, but programs can look to cost-sharing strategies • Share resources with other community groups • Train bilingual staff to act as interpreters and translators • Use telephonic and video conferencing interpretation services • Pool resources and  standardize documents to reduce translation needs • Use qualified  translators and interpreters to ensure that documents need not be “fixed'' later and that inaccurate interpretations do not cause delay  or other costs • Develop formal use of qualified  community volunteers DRAFT Used with Permission by Kentucky Victim Assistance Academy

37. Oral vs. Written Options • Recipients have two main ways to provide language  services: • Oral interpretation either in person or via telephone  interpretation service. • Written translation, likewise, can  range from translation of an entire document to translation of a short  description of the document. • Need to translate VITAL DOCUMENTS Example: A police department in a largely Hispanic neighborhood may  need immediate oral interpreters available and should give serious  consideration to hiring some bilingual staff. DRAFT Used with Permission by Kentucky Victim Assistance Academy

38. Competency of Interpreters A COMPETENT INTERPRETER WILL:     • Demonstrate proficiency in and ability to communicate information  accurately in both English and in the other language • Identify and  employ the appropriate mode of interpreting (e.g., consecutive,  simultaneous, summarization, or sight translation);     • Have knowledge in both languages of any specialized terms or  concepts peculiar to the entity's program or activity • Understand and follow confidentiality and impartiality rules • Understand and adhere to their role as interpreters without  deviating into a role as counselor, legal advisor, or other roles  (particularly in court, administrative hearings, or law enforcement  contexts) FRIENDS OR FAMILY MEMBERS, ESPECIALLY CHILDREN ARE NOT COMPETENT INTERPRETERS ! DRAFT Used with Permission by Kentucky Victim Assistance Academy

39. PEOPLE WHO SHOULD NOT INTERPRET IN DOMESTIC VIOLENCE/SEXUAL ASSAULT CASES • Children: Putting a child in the middle of a parental conflict creates incredible pressure on the child, who is likely to feel torn regarding whom to side with; the child may be fearful of the batterer and feel pressured to interpret in his failure; children may not have vocabulary sufficient to translate legal information to the parent. • Family member of the victim: Despite the fact that a family member of the victim offers to volunteer, he or she may be blaming the victim for the abuse and not have a sufficient understanding of domestic violence to effectively provide support to the victim. The family member also might exaggerate the victim’s testimony in order to support her, which can lead to discrediting the victim-witness on cross-examination. Additionally, the family member might not have sufficient vocabulary to translate legal information to the victim. DRAFT Used with Permission by Kentucky Victim Assistance Academy

40. PEOPLE WHO SHOULD NOT INTERPRET IN DOMESTIC VIOLENCE/SEXUAL ASSAULT CASES (Continued) • Family member of the perpetrator/primary aggressor: A family member of the perpetrator/primary aggressor could intentionally volunteer to interpret in order to control what the victim says or manipulate the victim’s words. A family member of the defendant might blame the victim for the abuse. The family member also might not have a sufficient understanding of domestic violence to effectively provide support to the victim. • Friend of the family: As with family members, a friend who offers to interpret may wish to control what the victim says, reporting back tot he family what the victim is saying or blaming the victim for the abuse. A friend might not have a sufficient understanding of domestic violence to effectively provide support to the victim. He or she also might not have sufficient vocabulary to translate legal information to the victim. • Interpreter used by the perpetrator / primary aggressor: A person who interprets for the batterer should not be asked or allowed to interpret for the victim. This would create a significant risk of replicating the dynamic of power and control that is used in a battering relationship. It could also inhibit what the victim is willing to discuss with the court and with court personnel. Source: Cultural Considerations in Domestic Violence Cases. Family Violence Prevention Fund.1999 DRAFT Used with Permission by Kentucky Victim Assistance Academy

41. Timeliness of Services • Interpretation should  be provided in a timely manner. • Language assistance  should be provided at a time and place that avoids the effective denial  of the service, benefit, or right at issue or the imposition of an  undue burden on or delay in important rights, benefits, or services to  the LEP person. • In providing law enforcement, health, and safety services, and when important legal  rights are at issue, a recipient would likely not be providing  meaningful access if it had one bilingual staffer available one day a  week to provide the service In cases involving victims, timeliness is of the utmost importance ! DRAFT Used with Permission by Kentucky Victim Assistance Academy

42. Implementation of Language Access Plan • Identifying individuals who have limited English proficiency and need assistance • Deciding on the ways to provide language assistance • Training Staff • Notifying persons with limited English proficiency • Monitoring and updating the policy DRAFT Used with Permission by Kentucky Victim Assistance Academy

43. Examples of Prohibited Practices • Language Access Plan that provides only for services in Spanish (failure to adequately assess needs in area) • Asking client to bring own interpreter • Having a plan in place but failing in implementation (staff are not trained, do not know of policy, are not authorized to access interpreters) • Providing unequal access (interpreter on site one day a week, “Hispanic court day”) • Using children as interpreters for provision of services dealing with safety or rights DRAFT Used with Permission by Kentucky Victim Assistance Academy

44. Complaint Procedure • Complaint form through Office of Civil Rights, Compliance and Review • Department of Justice will look favorably on intermediate steps that recipients take given that compliance will take time DRAFT Used with Permission by Kentucky Victim Assistance Academy

45. Additional Legal Concerns • Confidentiality • Agency’s own policy • HIPPA • Violation of other duties • Ex: Law enforcement in domestic violence situations has duty to provide information to victim about victim services and rights • Crime Victim Bill of Rights DRAFT Used with Permission by Kentucky Victim Assistance Academy

46. Resources • Know Your Rights brochures in different languages • “I SPEAK” Cards to identify language • www.lep.gov • Policy guidance for specific agencies • Demographic data • Model programs DRAFT Used with Permission by Kentucky Victim Assistance Academy

47. Basic Access to Services • Access to Services Necessary to Life and Safety: All individuals present in the United States, including undocumented immigrants, are guaranteed access to services “necessary to life and safety.” • Source: ( Attorney General Order No. 2353-2001, “Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation.”) • Among those services are access to EMS, police, fire, child and adult protective services, domestic violence and rape crisis programs, short term emergency housing, emergency medical care and vaccinations and treatment for communicable diseases. • Agencies that deny such services risk violating civil rights and fair housing laws. DRAFT Used with Permission by Kentucky Victim Assistance Academy

48. Immigration Options for Victims • Battered Spouse Waiver for conditional residents • VAWA Self-Petitioning for Abused Spouses and Children of US Citizens/Lawful Permanent Residents • U Visa for victims of serious crimes (rape/dv/trafficking) • T Visa for victims of severe form of trafficking in persons • Special Immigrant Juvenile petition for children who are in foster care/guardianship due to abuse, abandonment or neglect • Gender Based Asylum DRAFT Used with Permission by Kentucky Victim Assistance Academy

49. Intake • Screens for immigration history • Identifies problem areas/red flags • Identifies possible immigration remedies • Should be faxed/sent to immigration attorney ASAP DRAFT Used with Permission by Kentucky Victim Assistance Academy

50. A Little Herstory Marriage Fraud Amendment (1990): Battered spouse waiver for conditional residents VAWA 1994: Congress created self-petitioning for spouses and children of abusive U.S. citizen or Lawful Permanent Resident spouses or parents Victims did not have to choose between staying silent in an abusive relationship and being deported. DRAFT Used with Permission by Kentucky Victim Assistance Academy