Legal Obligations of the Juvenile Justice System for Limited English Proficient Youth Sam Jammal Legislative Staff Attorney MALDEF

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 Dept. of Justice Implementation of Executive Order No

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 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 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- 9 th 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- 5 th 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