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June 10, 2005

13166 & LEP

Don Herzog, The Bartlett Files: June 10, 2005

13166 is the number of the Executive Order promulgated by President Clinton on 8/16/00.  It requires federal agencies and those receiving federal funding to take reasonable steps to accommodate persons with LEP, or limited English proficiency.  And it casts the failure to take such steps as a violation of Title VI of the Civil Rights Act of 1964.  The relevant statutory language, § 2000d, provides:

No person in the United States 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.

So Clinton's thought was that failure to provide language assistance is tantamount to discrimination on the basis of national origin.  The order has been controversial from the start.  Congressmen routinely introduce legislation to overturn it, most recently here.  But the Bush administration has staunchly supported the order.  Testifying before the House Judiciary Committee on 3/16/05, assistant attorney general R. Alexander Acosta declared,

This administration is committed to improving the accessibility of these programs and activities to eligible LEP persons, a goal that reinforces its equally important commitment to promoting programs and activities designed to help individuals learn English.  As part of President Bush's Firstgov En Espanol initiative, the Civil Rights Division has established a Spanish language site.  During a two week period, nearly 5 percent of visits to our website homepage were to our Spanish language homepage a very significant percentage.  As we go forward, our focus in this area has turned to training federal grant recipients so they will be able to provide language assistance for individuals who need access services.

www.lep.gov puns on LEP to produce, Let Everyone Participate.  (Better than producing LEPers.)  Other federal units have fallen in line:  see for instance this EEOC site.

Executive Order 13166 doesn't single out Spanish for special treatment.  But its requiring "reasonable steps" to be taken "without unduly burdening" an agency's or funding recipient's work hooks up on the ground with the numbers.  The 2000 Census reports that 47 million Americans, or 18% of the population, spoke some language other than English at home.  (That figure is up from 14% in 1990, 11% in 1980.)  28 million of them spoke Spanish:  about half said they could also speak English "very well."  Obviously things will vary with the kind of government program or the geographic location.  But often the order requires having a Spanish interpreter on hand, making printed forms available in Spanish, and the like.

The politics of 13166 are of course wrapped up in calculations of winning votes.  Since those calculations always turn my eyelids into a mysterious lead alloy, I'll leave them to you.  Then there are issues of cost:  here are OMB's calculations.  But I don't think we can dispose of the matter by fretting about dollars, not least because the language of reasonable steps and undue burdens allows consideration of costs.  Before bickering about whether the costs are too high, we should figure out whether 13166 is a good thing.  I should note that a recent legal challenge by ProEnglish was tossed out:  the judge ruled they and the doctors they assembled had no standing to challenge HHS regulations adopted pursuant to the order (Colwell v. HHS, 2005 US Dist. Lexis 6556).

Here are two kinds of reasons Americans should speak English.  One:  they'll be better off in the job market.  (Here's a study on the convergence of low-wage jobs, food processing, rural Minnesota, and immigrants with little or no ability in English.)  On 2/13/01, pressing for a constitutional amendment to declare English our official language and require that all government records be kept in English, Rep. John Doolittle (R-CA) quoted "Ernesto Ortiz, a South Texas ranch hand":

"My children learn in Spanish in school so they can grow up to be busboys and waiters.  I teach them in English at home so they can grow up to be doctors and lawyers."

That goes directly to questions about teaching English as a second language, what language math or science should be taught in, and the like, but not directly to the merits of 13166.  Market-minded conservatives would ordinarily be happy to assure us that we can count on rational self-interest to sort out these matters.  After all, it's not as though 13166 requires people not to learn English.  If government agencies besides schools make it easier to get along without good English, are they complicit in making many persons with LEP an economic underclass?

Two:  English-speakers will be able to participate in a broader range of democratic debate.  Yes, the public sphere is already segmented in lots of ways:  by race, by ideology, and so on.  But if you speak English you can eavesdrop pretty easily on what's going on elsewhere, as indeed some are eavesdropping on this blog.  The language barrier is harder to get across.  (Google's translation function remains mostly good for laughs.)  And here there is a common good or public interest that goes beyond whatever incentives particular individuals have.

Plenty of persons with LEP will improve their English; if the usual sociological dynamics surrounding immigration kick in, even more of their children will.  But surely some won't:  they will remain in linguistic enclaves.  13166 requires federal agencies and those funded by them to take reasonable steps to accommodate them.  In health care, a translator can be the difference between life and death.  An economist might notice that at the margin, 13166 will encourage some persons with LEP not to improve their English.  But it takes time to learn English, too.  Barring dramatic changes in immigration policies,  there will be a steady supply of new immigrants who may need to deal with government agencies and programs while they're learning.  Given the steady stream of new immigrants, 13166 is, if you see what I mean, a permanent transition policy.  Still, a perverse effect of helping out those making the transition to English is making it easier for others to stay in their linguistic enclaves.

I take that perverse effect seriously, but my inclination — no more than that; as I said before, I'm still puzzling over these issues is that 13166 is the right policy.  Yes, the questions of cost and implementation are real.  Rep. Doolittle also protested that

The Maine Medical Center is now required to post a "Interpreter Availability Sign" to be "printed at least in English, Farsi, Khmer, Russian, Serbo-Croatian (Cyrillic and Roman alphabets), Somali, Spanish and Vietnamese."

And that requirement, following a settlement with HHS, may well be overkill:  I don't know.  Most obviously, I'd want to know some of the linguistic demographics of Maine.  But on the question of principle, I think Clinton got this one right.  (And believe me, I've never been a Clinton fan.)  Government bureaucracies and programs are difficult enough to navigate without overcoming language issues, and a proud nation of immigrants shouldn't be pretending that only English-speakers are genuinely welcome.

Yes, we could leave it to private, voluntary actors to supply translation help.  That's a reasonable view:  I think it would be wrong to say that people have some strong legal entitlement to the existence of 13166, a view that alas is summoned up by the link to Title VI and discrimination on the basis of national origin.  The link to the statute gives the executive the right to do something here, and I'd think cheerfully about rolling over and playing dead to the objection that 13166 is properly a call for the legislature, not the executive.  But I'd add that as an interpretation and enforcement of what a statute requires, 13166 is not at all out of line with plenty of other executive orders.  (Here is a quick primer on the constitutional and jurisdictional questions.)  My view, anyway, is that 13166 is on balance a good policy, but not at all that it's obligatory.

By the way, the constitutional amendment to declare English our official language was introduced again this year.  I somberly report that the remarkable Mr. Bartlett is one of three co-sponsors.  But I learned that very late in the day, and you're wrong if you imagine it has any bearing on my views on the merits.

One more thought, about which I am pretty damned confident.  If you think 13166 a mistake, if you think that government affairs should all be conducted in English, or that it's wrong to require hospitals receiving federal funding to take reasonable steps to provide interpreters, you need an instrumental reason why.  That is, you need to explain what good consequences follow from your preferred regime, or what bad consequences follow from 13166.  If you think instead that regardless of the consequences, Americans should speak English or America is for English-speakers, then I think you have a picture of American identity that's drastically illiberal.  It's as bad an idea as requiring all of us to share a communion.  I don't think moral or political judgments are always consequentialist.  But I think here they properly are.  And that leads to one last, gentle, diagnostic suggestion.  If you're not just opposed to 13166, but indignant or passionately exercised by it, ask yourself why.

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Professor Don Herzog has been blogging about the status of the English language in America over at Left2Right. His first post asks: Is sharing a language more like sharing communion? or more like right-hand drive? How thin can the cement of a liber... [Read More]

Tracked on Jun 10, 2005 9:51:09 AM

Comments

Posted by: D.A. Ridgely

On the question of politics, Clinton, that incomparably sui generis politician (I’m courting the Roman vote here), clearly got it right, as did Bush, who’s at least smart enough to know how not to lose votes needlessly.

But on the question of principle? Which principle? The principle that doing good is a good thing to do? Are there many immigrants who, say, having oddly enough never seen a U.S. motion picture or listened to American popular music before they got here, slapped their forehead upon arrival, bemoaning (in translation, of course) “Oh no, they speak English here! If I’d known that, I’d never have come!”?

Forget for the moment the direct cost to the operation of government for the printing of forms in different languages, the staff interpreters, etc. As you acknowledged, the indirect cost of facilitating non-English monolingualism in the U.S. will surely be more non-English monolingualism. How much or many more? Who knows? But more, to be sure. More non-English speakers will be encouraged to immigrate to the U.S., too, if it becomes generally known that language is not a significant barrier. That might be a good thing or a bad thing, but it needs to be considered, too.

So, since no one has any hard data on what the total real direct and indirect costs are, nor even a system by which we can reliably measure any alleged benefits empirically, how can it be good in principle or good policy to enact any laws or mandate any public spending so carelessly?

Posted by: D.A. Ridgely | Jun 10, 2005 8:17:26 AM


Posted by: too many steves

It is obvious (isn't it?) that English is the de facto standard language in the United States. It is also the language used in business in most of the world. As you, Mr. Herzog, point out, there are ample and equally obvious reasons, as well as empirical evidence, that speaking English competently is one of the keys to greater earning power and economic success.

But it seems to me that mandating that our government expend some effort on behalf of those for whom English is not, or barely, understood is just as obvious. There is a difference between providing language assistance so that services may be rendered and enabling non-English speakers to remain so (via native language teaching in schools).

The government has a primary obligation to ensure the services it provides are available to all eligible citizens. If LEP furthers achievement of that obligation then the cost is irrelevant.

Posted by: too many steves | Jun 10, 2005 10:19:38 AM


Posted by: Don Herzog

But Mr. Ridgely, life without 13166 has murky and hidden costs and benefits, too. This is just an everyday feature of political judgment: alas we're often groping around in the dark. To put the point differently, life before 13166 was not a regime in which we simply didn't "enact any laws or mandate any public spending." We did. We chose to conduct federal and federally funded business in English.

That cost less in the immediate budget sense. But the thought that overall it was therefore less costly brings to mind one of the wonderful pro-market essays by Frédéric Bastiat, "The Seen and the Unseen". Parallel points about opportunity cost and the like apply to government policy and spending.

Posted by: Don Herzog | Jun 10, 2005 10:22:33 AM


Posted by: D.A. Ridgely

But Mr. Herzog, of course choosing not to act has costs attendant to it just as acting does. But I still take that as my point, not yours. We may not know what the overall unseen costs of preserving the English status quo is either, but that hardly entitles policy or law makers to change the status quo willy-nilly in hopes that the overall benefits exceed the overall new costs. Arguably, I incur certain costs in the lack of pleasurable feelings crack cocaine would give me by smoking it. Doubtlessly, smoking some would give me those pleasurable feelings. Should I run off and buy an 8-ball and thereby find out whether I'm better off as a crack-head or not?

I don’t know whether any conscious decision to require English for government business was ever made, but I rather suspect the use of English was simply presumed to be the general rule until someone complained. We are a nation of immigrants, as the saying goes. As far as I know, excepting the African slave trade and the imposition of English on Native Americans by conquest, every adult non-English speaking immigrant to this country recognized the linguistic barrier but voluntarily came anyway. What evolved principle of justice requires changing that situation?

I can simply think of no good reason to institutionally discourage non-English speaking residents of this country from learning English. I can think of many reasons not to discourage them from learning English even as an unintended consequence. (Clearly, there are humanitarian and a few other exceptions, but they should be few, as few as humanely possible.) Incentives count. If you want more of some sort of behavior, make it less expensive in every sense of that term. If you want less of it, don’t facilitate or subsidize it. Herewith, an off-topic but nonetheless relevant example of that principle.

Posted by: D.A. Ridgely | Jun 10, 2005 11:19:30 AM


Posted by: Bret

D.A. Ridgely asked: "What evolved principle of justice requires changing that situation?"

Given that the government is much larger now than in the past, a citizen/resident/visitor is much more likely to be required to deal with it. Because of these increased requirements, I think it only fair that the government make it possible for non-English speakers to deal with it without having to incur the expense of their own translator.

Posted by: Bret | Jun 10, 2005 11:37:18 AM


Posted by: D.A. Ridgely

Bret, if that's the problem, I have a much better solution.

Posted by: D.A. Ridgely | Jun 10, 2005 11:52:50 AM


Posted by: Bret

D.A. Ridgely, yes, yes, yes, we all know what your solution would be. Not everybody is a Libertarian though.

Posted by: Bret | Jun 10, 2005 11:59:20 AM


Posted by: Jeff Licquia

"Reasonable accomodation" seems to be the weasel phrase at work here.

Certainly, I think it only proper that the police be able to communicate with the public they serve; thus "reasonable accomodation" sounds, on balance, to be the right thing.

On the other hand, should, say, the Department of Transportation be required to make such accomodations? Could they require, for example, that all bids for work on federal roads be submitted in English? I don't see why not.

Posted by: Jeff Licquia | Jun 10, 2005 12:53:30 PM


Posted by: LPFabulous

This seems to be one of those cases where there are obviously reasonable things we should do, and obviously unreasonable things. Mandating that hospitals be able to communicate with non-English speakers is, I think, manifestly a good idea. It's for the good of the patients and it's for the good of the people who pay insurance and taxes. On the other hand, it's almost certainly a bad idea to provide schools in which, for instance, all education is done in Spanish with no emphasis on learning English. We should be find some way to make it clear that English is understood to be the de facto language of the United States and the quicker you learn it the better off you'll be. On the other hand, we need a system that's set up so that not speaking English isn't an impediment to survival. Finding the appropriate position would almost certainly require a lot more benefit-cost analysis than we've seen.

Posted by: LPFabulous | Jun 10, 2005 10:38:50 PM


Posted by: le sequoit

"My children learn in Spanish in school so they can grow up to be busboys and waiters. I teach them in English at home so they can grow up to be doctors and lawyers."

There is a conspicuous absence of center in the projection of opportunity in this statement, and I live there. My aversion is triggered by the underlying purpose of this order, which is to further enable the true ownership society to reap the benefit of suppressed labor costs.

That this process can be equally called Clintonesque or Bushist speaks volumes about the likelihood of the American two party system's intention of contributing to the welfare of the median class. I am utterly dismayed at the inibility of my mates to recognize such maneuvering, but would prefer that they learn more about French than Spanish, as in bourgeoisie.

Posted by: le sequoit | Jun 11, 2005 7:55:18 AM


Posted by: Sebastian Holsclaw

First we need to kill the italics.

Hopefully that worked. It may be that the most serious problems with 13166 are in implementation. But the long term effects of 13166 are to dramatically lessen the sociological pressure of learning English and to dramatically increase the segmentation of non-English speaking enclaves.

The second point is the one I don't think you are really addressing. Because of the economic strictures on 13166, typically only largish non-English speaking enclaves other than Spanish will get services under it (unless the ridiculous Maine example becomes typical in which case the whole thing will be crushingly expensive). Tiny enclaves won't get 13166 services. Before 13166 this would mean that tiny enclaves would either have to learn English, or they would have to move together. There is a strong incentive in both directions, but the typical case was that by the second generation, all of the enclave would be fluent in English because they were not large enough to have a non-English community into the second generation. That is not entirely the case with Spanish in some areas of the United States (California, Texas and parts of New York.) Spanish communities are large enough to have second generation communities that are not good English speakers.

My problem with 13166 is that it may provide a tipping point for long-lasting language enclaves other than Spanish with people who are not fluent in English even in the second generation. I understand that some first generation immigrants won't ever become particularly fluent, but I see no reason to help encourage the same in any second generation immigrants. 13166 combined with a bi-lingual teaching regime which can allow non-fluency for many years in schools seems like a very dangerous combination. (Which is to say that the question of what language schools teach in is NOT largely independent of 13166 especially since teaching is directly implemented by 13166 as one of the many programs which receive federal funding even if interpretation of the order has not gone that far yet).

Posted by: Sebastian Holsclaw | Jun 11, 2005 2:28:32 PM


Posted by: peggy

Speaking to Sebastian's worry that the second generation will not learn English, an anecdote might be in order.
My inner city neighborhood is half Hispanic. Most of the sales clerks are in their teens or twenties, are native Spanish speakers, and converse with the other clerks in Spanish. Yet when I approach the counter, they switch to flawless English without a trace of an accent.
I've also volunteered in the city schools and observed that these same children learn English.
Learning English as an adult is very difficult and in my city the classes are over subscribed.

Posted by: peggy | Jun 11, 2005 3:55:32 PM


Posted by: SBW

I can easily ask myself why I would be passionately opposed to 13166 based on the legal foundation for the executive order alone, judging from the reason you provided--failure to provide language assistance being tantamount to government discrimination. I remain unconvinced that a non-English speaking person who moves to the United States voluntarily deserves a fundamental right to language support in their native tongue. I agree that LEP support is a decent, humane act, but not a fundamental right, absence of which would be government discrimination--all just because a local clerk or hospital doctor does not happen to speak the native tongue of an immigrant coming in for help or care. Cost is not the issue here, principle is.

Also, that people expect America to be a nation of English speakers is either illiberal or equivalent to sharing communion is pure nonsense. Expecting everyone to learn English is not the same as requiring everyone to only learn English. Or the glaring fact that English is a fairly value free method of communication, not a belief system. Non-English Radio stations, TV stations, local papers, community centers, churches, web pages, all of these can (and indeed do) function presently in all sorts of immigrant communities without government support or hindrance. For those of us of the extreme "illiberal" bent, expecting individuals in these communities to also learn English to get ahead--if only to be able to minimally interact with the rest of society--is neither unrealistic or discriminatory. I would expect some more examples on how requiring the federal (or state, for that matter) government to function solely in English would destroy a linguistic community.

Posted by: SBW | Jun 11, 2005 7:06:58 PM


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