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Ending E.O. 13166,
   the "Multilingual    Mandate"


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WHY EXECUTIVE ORDER 13166 SHOULD BE REVOKED

President Clinton issued Executive Order 13166 (E.O. 13166) on August 11, 2000. Its stated purpose is to improve access to government services for persons with Limited English Proficiency (LEP) e.g. non-English speaking persons, by requiring that all recipients of federal financial assistance take all reasonable steps to provide meaningful access to their services for LEP persons. The authority claimed for issuing E.O. 13166 was Title VI of the Civil Rights Act of 1964, which bars discrimination on the basis of "national origin." Accompanying Department of Justice (DOJ) Policy Guidelines state that "the failure to address language barriers" may be attributable to "invidious discrimination on the basis of national origin and race," or ignorance of the situation.

E.O. 13166 directed all agencies providing federal financial assistance to draft policy guidelines for all recipients of such federal assistance and submit their guidelines to DOJ for review and approval. The following summarizes our major concerns with E.O. 13166

1. THE AUTHORITY FOR ISSUING E.O. 13166 IS NON-EXISTENT
When Congress debated and passed the Civil Rights Act of 1964, the disparate impact of English fluency was never discussed or included in the meaning of "national origin" discrimination. That was for a good reason: It is self-evident that a person can choose to learn a new language, but they can never change their national origin. The courts have rejected repeated attempts to equate the failure to provide services in languages other than English with national origin discrimination.

2. E.O. 13166 IS HAVING AN ENORMOUS FISCAL IMPACT
By requiring translations and oral interpreter services to be made available, depending on circumstances, in the 300 plus languages that are reported to be used in the United States according to the Census, E.O. 13166 has added enormously to the cost of government operations. As a measure of fiscal impact, OMB estimates that HUD spent $1.7 million to provide language assistance services to LEP persons in ’02 and ’03. OMB estimates that the Treasury Department spent more than $1.1 million to provider translations and interpreters in ’02 and ’03. OMB estimates that the total national cost of providing language assistance services to LEP individuals could be as high as $1 to $2 billion annually. Still, the Office admits these figures may not adequately reflect the full cost of implementing E.O. 13166, since no federal agency is currently able to fully account for the cost of providing translations and interpreters under E.O. 13166. A more accurate illustration of the Order’s potential fiscal impact is Canada: a country roughly a tenth of the size of the U.S. in terms of population, that spends an estimated $1 billion annually to provide the translation and interpreter services needed to conduct its business in just two official languages.

3. E.O. 13166 CONSTITUTES A HUGE UNFUNDED MANDATE FOR STATE AND LOCAL GOVERNMENTS
All recipients of direct or indirect federal financial assistance must comply with E.O. 13166. This means virtually every state and local government agency in the country, and has therefore impacted state departments of motor vehicles, hospitals, police and fire departments, libraries, health clinics, and parks, as well as countless county and municipal agencies. Already, the California Medical Association is protesting that the financial burdens of compliance may force already financially strapped doctors and community hospitals to stop seeing indigent, non-English speaking patients. Similar objections have been raised by the American Medical Association and all 50 of its state chapters. The National Affordable Housing Management Association also opposes E.O. 13166. The Order is forcing affordable housing providers to divert scarce resources from providing vital tenant services, such as maintenance, in order to comply with the Order’s rigid language assistance requirements. (OVER)

4. E.O. 13166 UNDERMINES THE RIGHT OF STATES TO DECLARE ENGLISH THEIR OFFICIAL LANGUAGE
Thirty states have declared English their official language, often by lopsided victory margins as wide as 9-1. Despite this fact, E.O. 13166 policy guidance issued by the Justice Department asserts that E.O. 13166’s language assistance requirements supersede state laws that require state and local agencies to communicate officially in English. Specifically, the Justice Department’s E.O. 13166 policy guidance states:  “. . . some [federal funds] recipients operate in jurisdictions in which English has been declared the official language. Nonetheless, these recipients continue to be subject to Federal non-discrimination requirements, including those applicable to the provision of federally assisted services to persons with limited English proficiency.”

5. E.O. 13166 HAS ALREADY RESULTED IN VAGUE, ARBITRARY, AND INCONSISTENT STANDARDS OF COMPLIANCE
Several federal departments have issued regulations and guidelines to implement E.O. 13166 that create standards of compliance that are vague, arbitrary, and virtually impossible to meet. These in turn could create levels of risk and confusion that will impair or handicap the ordinary operations of innumerable government agencies and private contractors. For example, DOJ guidelines state "Programs that serve a few or even one LEP person are still subject to the Title VI obligation to take reasonable steps to provide meaningful opportunities for access." Yet, implementing guidelines regularly assert that there is no "one size fits all" standard for compliance.

Implementing regulations issued to date repeatedly are full of vague and uncertain phrases such as "reasonable steps," "meaningful access," "to the maximum extent practical," and "meaningful participation." There are arbitrary and inconsistent standards. DOJ regulations state that, depending on circumstances, translations must be available in 3, 5, 10, 15 or 30 languages. 

Treasury regulations state that E.O. 13166 applies to "All entities that receive federal financial assistance from Treasury either directly or indirectly, through a grant, contract, or subcontract," including the recipients of federal loans, donations of federal property, or any other form of assistance. Health and Human Services guidelines even include doctors in the Medicaid program.

Treasury regulations even go so far as to state that "Services denied, delayed, or provided under adverse circumstances [emphasis added] for an LEP person may constitute discrimination on the basis of national origin under Title VI."  Treasury regulations make covered entities responsible for the competence of translators they may employ and warn that such responsibility extends beyond things like formal certification to include assuring "sensitivity to the LEP person’s culture."

Taken as a whole, these regulations create a standard of compliance that is burdensome, vague, arbitrary, and virtually impossible to meet.

6. E.O. 13166 IS DESTRUCTIVE OF NATIONAL UNITY