Introduction

The Individuals with Disabilities Education Act (“IDEA”) is meant to ensure that schools provide disabled students with the services they need to progress educationally. IDEA is rightfully hailed for providing comprehensive educational rights to millions of children previously neglected by the public education system. But from the perspective of situationism, IDEA is a disaster, particularly in addressing the needs of low-income, minority children from limited English proficiency (“LEP”) homes.

Situationism seeks to base law and policymaking on realist models of human action. To achieve this end, it draws on cognitive psychology, social psychology, behavioral neuroscience, evolutionary biology, and related fields. Situationism stands in opposition to non-realist models of human action, particularly dispositionist models, such as the rational actor so beloved by law and economics. The key situationist insight is that while it may appear that our dispositions (personality, attitude, preferences, character, free choices) determine our actions, in truth, our actions are ruled largely by our situations (environmental factors and sub-conscious mental & physical processes).

The Situation of IDEA

Education advocates know well the typical trajectory for LEP kids under IDEA. These children are generally identified as eligible for special education services later than children from English-proficient homes, for schools do not rigorously distinguish academic deficiencies due to disabilities from deficiencies due to limited English proficiency. Once LEP children are identified, their parents consent to limited assessments, simplistic goals, and inexpensive services because of their trust in school personnel. Only after years pass, as the children fall further and further behind their peers, do their parents seek out an advocate for help.

The situation established by IDEA virtually guarantees this outcome for the following reasons:

• IDEA requires schools to provide children the services they need in order to achieve “educational benefit” – generally speaking, progress towards individualized educational program (“IEP”) goals – without adequately reimbursing the schools for those services. Administrators and staff at cash-strapped schools may be dispositionally inclined to help disabled children, but absent funding, they have little situational incentive to properly assess children’s needs, to set challenging goals, or to seek out and provide the services they would need to meet such goals.

• IDEA posits a uniform “parent” able to take advantage of a broad array of rights under the law. In reality, LEP parents are subject to a wide variety of situational forces that diminish their ability to take advantage of these rights:

• Those who are illegal immigrants are, as a situational matter, terrified of invoking legal rights and procedures for fear of drawing attention to themselves and thereby increasing their risk of deportation.

• LEP parents are unable to meaningfully participate in IEP meetings in which school staff provide spoken translation. Staffers will generally translate the group’s conclusions, but not the side discussion that often occurs between team members. Moreover, while parents have the legal right to written translations of IEPs and assessment results, schools are under no legal obligation to inform parents of this right.

• In single-parent homes or in homes with two working parents, it is difficult to make time to learn about children’s rights, or to network with other parents or with disability rights organizations.

• Parents with limited education often trust those with more education and who present themselves as authority figures. Tragically, as system justification theory shows, members of disadvantaged groups regularly internalize perceptions of themselves as social inferiors, are reluctant to challenge the social order, and patiently accept inadequate outcomes. All of these tendencies lead to years of inadequate special education.

• School personnel who participate in IEP teams fall victim to groupthink: they seek consensus rather than airing objections and doubts, they fail to consider outside information and opinions that might contradict the group consensus, and they come to consider loyalty to the group and its consensus as the moral course of action. As Irving Janis, the psychologist who pioneered the study of groupthink, wrote, “Each member is likely to become more dependent than ever on the in-group for maintaining his self-image as a decent human being and will therefore be more strongly motivated to maintain group unity.” For a staffer to admit that a child is not progressing or to consult outside experts for assessments or services is to act immorally and betray the group, all at cost to his or her self-image.

• IDEA is a highly procedural law, exacting in its specification of what must be done to develop an IEP, who must participate, and the timeframes in which each step must be taken. An IEP developed according to these procedures gains procedural legitimacy: because the IEP is the outcome of these rigorous procedures, schools (not to mention administrative hearing officers and judges) presume it to be fair, even in the face of evidence that the child is not progressing. Moreover, much research shows that people view the fairness of procedures as trumping the fairness of outcomes.

• While IDEA gives parents rights to an independent educational evaluation and to a due process hearing, schools often view parents who asserts these rights as dispositionally selfish (i.e., as rational actors freely choosing to privilege their children’s needs over those of the school) rather than as situationally motivated (i.e., as human animals subject to a genetic compulsion to protect their offspring). The IEP team may also view these rights as procedurally illegitimate: invoking them brings in outside opinions and thereby calls into question the morality of group consensus, and also privileges outcomes over procedures. Just as schools view parents who assert their rights as selfish, parents come to view school staff as incompetent, uncaring, or even malicious (rather than as humans seeking procedural legitimacy and subject to economic constraints and groupthink). In taking these stances, both sides make what social psychologists describe as the fundamental attribution error: the human tendency to attribute others’ behavior to their dispositions rather their situations.

What is to be Done?

An obvious solution to this problem would be for federal and state governments (i) to prescribe rigorous assessment for disabilities of all children entering the school system, (ii) to specify exactly what services each disability merits, and (iii) to fully reimburse school districts for the costs of these assessments and services. Such a system would remove nearly all of the situational barriers to children receiving effective services in early childhood, when they are most effective.

Until that day comes, advocates for LEP children are advised to adopt a situationist perspective:

• Attempt to level the linguistic playing field. First, have someone from your office translate for the parent at IEP meetings. Even if you are bilingual, it is ideal to bring someone else so that you can be free to negotiate on behalf of the parent, and save precious time. Request that all written documents produced by the IEP team be translated into the parent’s native language.

• Encourage parents to assert their rights under IDEA (i.e., fight parents’ tendency towards system justification) and discourage them from expressing unwarranted anger or hostility towards school personnel (i.e., remind parents not to make the fundamental attribution error). It will take years for even the perfect IEP to be implemented if the school hates the family and is determined to stonewall on delivery of services.

• In your dealings with the school (and if need be, with administrative hearing officers and the courts), stress the procedural legitimacy of seeking an independent educational evaluation and a due process hearing.

• Resign yourself to groupthink, but use independent educational evaluations and due process as means to route around it. An IEP team will likely never admit that it has spent years signing off on inadequate IEPs; do what is necessary to stop the hearing officer from identifying with the IEP team so that she or she will look at the child’s circumstances with fresh eyes.

This article was authored by Jith Meganathan, Staff Attorney, Central California Legal Services.

The REP is happy to bring you the long-awaited and much-anticipated e-newsletter exploring Language Access issues faced by low-income persons of color. We hope this e-newsletter will shed some light onto how language can function as a proxy for race and how poverty attorneys can integrate Language Access advocacy into their practice and their organization’s client interaction practices.

The three contributors to this e-newsletter each bring a unique perspective to Language Access practice. We hope that you will find their short pieces informative and, perhaps, inspiring. Enjoy.

Language Access to the Courts
By T. Wong, Staff Attorney, Legal Services of Northern California

Avoiding Burnout of Bilingual Employees
By Annie Struby, Staff Attorney, Legal Aid of Western Missouri

Race Equity via Language Access to Public Benefits Services
By Jodie Berger, Regional Counsel, Legal Services of Northern California

The next e-newsletter will discuss land use and race equity. If you would like to contribute please contact us.

We are measuring interest for an online training on mapping language and race using decennial census data and ArcGIS 9.1 or Dataplace (free online mapping tool). If you are interested please contact us and indicate the program that you would like the training to be on.

There have long been issues of race and inequity in public benefits programs. See Race And The Politics Of Welfare Reform, Sanford F. Schram, Joe Soss, and Richard C. Fording. Editors, University of Michigan Press, 2003. Changing demographics, mandatory welfare-to-work requirements and, let’s face it, increased awareness among advocates, has shown serious problems in the ability of Limited English Proficient (LEP) individuals in equally accessing and benefiting from Public Benefits programs.

Looking at the experience in California:

• In California, the initial group reaching the 60-month limit on TANF benefits was disproportionately LEP households. These were mostly two-parent households in which the father worked a low wage job, and neither parent received welfare-to-work services. Others were offered a limited range of services that did not prepare them for work.

• The state does not find civil rights violations when workers fail to follow language access requirements, though ordering corrective action. The bureau’s rationale is that there is no “proof” of discriminatory intent. So far, the agency has rejected that disparate impact is a basis for finding discrimination, despite regulations and case law in the larger civil rights context. The result is that workers do not “feel” any consequence of their failure to meet the requirements.

• A review of audits of county welfare departments shows that none fully complied with the civil rights language access requirements. Bureau capacity to ensure that corrective action plans are submitted and completed is limited, and enforcement is difficult.

• New automation systems are wreaking havoc on use of translated forms. Systems designed to handle multiple languages were sending materials in English despite the case language coding. When that was fixed, other problems cropped up, such as forms coming out partially in-language, and part in English. Automated mailing resulted in workers being unaware of the language of the notices. Larger computer issues made it impossible to reach workers, as calls went up in response.

On the positive side, California has been very open to working with advocates, in the full social services context, as well as sub-levels of Welfare-to-work, fair hearings, and civil rights. Advocates have been invited to help improve the program, and have worked to overhaul civil rights compliance processes and reporting, regulations, and best practices.

Significantly, this year California modified its hearing regulations to toll the time in which to request a hearing when language issues are involved. The time to appeal now is tolled when the county either sends out notices in English, instead of the client’s designated language, or if an LEP recipient contacts a worker within the time to appeal, when no state translation exists. In the latter situation, the recipient is not required to show whether an interpretation of the notice at issue occurred, just the contact. The last gap, when a recipient does not know to call the worker, because the county never provided information about access to interpretive services, will be closed through training notes to the Administrative Law Judges.

Language access advocacy can be key in ensuring that recipients have appropriate and timely benefits and services, especially time-limited access to self-sufficiency skill training.

Wednesday, November 7 there will be a special, all day meeting of the National Language Access Advocates Network on Ensuring Language Access. Learn about best practices for serving LEP clients, and effective models for language access advocacy. Meet other Language advocates! (This day will not duplicate the language access sessions during the NLADA annual conference.)

By Jodie Berger, Regional Counsel, Legal Services of Northern California

Agencies (including Legal Aid organizations) have many options when deciding how they will serve LEP clients. One of the most favorable of these options is hiring bilingual staff people. This is preferential because they are on-site during the workday, they understand the agency’s policies and procedures, and clients are likely to feel more comfortable if they do not have to speak through an interpreter.

It is easy, however, to take advantage of the convenience of having a bilingual staff person by overusing their services, leading to their burnout.Overuse of bilingual staff by non-bilingual staff for interpretation or translation purposes usually happens very innocently. The non-bilingual staff person may have a “quick phone call” for which they need an interpreter or a “short letter” that needs to be translated. While a single request for this type of assistance may not be problematic, the bilingual staff person may be receiving these types of requests from many non-bilingual staff. Taken together, these “quick” translating/interpreting requests can account for a substantial portion of the bilingual staff person’s work time, impairing their ability to fulfill their regular job duties.

With a little planning, it is possible to avoid overusing your bilingual staff. First, job descriptions for bilingual staff must be written specifically enough so that the staff person knows in which situations he or she is expected to translate/interpret for another staff person. Job descriptions for bilingual and non-bilingual staff should be written so that the overall workloads will be comparable, instead of expecting a bilingual staff person to handle the same workload as a non-bilingual colleague while also fulfilling some or all of the agency’s language access needs.

Agencies must also develop clear guidelines regarding when it is appropriate to have a bilingual staff person assist in communication with LEP clients and when an outside interpreter or translator should be accessed. After a plan is established, all staff need training on what the guidelines are and how to apply them. This will insure that they only ask a bilingual staff person to translate or interpret when it is acceptable to do so. The process of accessing an outside interpreter should be made as simple as possible to increase the likelihood that non-bilingual staff will follow the guidelines.

By Anne Struby, Staff Attorney, Legal Services of Western Missouri

“Si usted es una persona que testificará en este caso, por favor, levantese y con su mano derecha, repita después de mí.”

For those of us who are not native Spanish speakers, and even for those of us who learned Spanish later in life, the above commands are probably not completely understood. You might be able to pick up bits and pieces, but what if you were in a courtroom representing yourself at an Unlawful Detainer trial and this phrase was read out loud to you once? This is just one example of how difficult court proceedings are for persons who are Limited English Proficient (LEP).

Court interpreters in California are mandated only for defendants in criminal cases under Government Code § 68560. Since then, legislation has been introduced to create the right to a court interpreter in non-criminal cases. Assembly Bill 1884 was passed in 1998 to develop a pilot interpreter program in Family Law Court, and Assemblyman Dave Jones introduced legislation in 2006, to establish the right to a court interpreter in civil cases (AB 2302, vetoed by the Governor).

The question is: Does the law require state courts to provide language access to pro per parties who speak a language other than English? As recipients of federal and state funding, courts could be susceptible to the liability under Title VI of the Civil Rights Act of 1964 and California Government Code Sec. 11135, the state civil rights statute. Under the California law, group-based discrimination is illegal under any programs or activities that receive direct or indirect state financial assistance or support. One protected class is “color or ethnic origin identification.” Cal. Gov’t. Code § 11135(a). “Linguistic characteristics common to a racial, cultural or ethnic group…” is included in the definition of “color or ethnic origin identification.” Cal. Code Regs., tit. 22, § 98210(b). In addition to the prohibition against discrimination, the regulations for § 11135 require that an affirmative effort be made to provide alternative communication services to the beneficiaries of the agency. Id. at § 98211(c).

For more language access advocacy in the courts, check out “Language Access to the Courts in California: A Legal Advocate’s Manual.” This manual, by a coalition of California advocates, explore the language access rights of LEP persons to receive a court interpreter in civil cases.

By T. Wong, Staff Attorney, Legal Services of Northern California